Law Commons^™

The Lawyer Doth Protest Too Much, Methinks: Reconsidering The Contemporaneous Objection Requirement In Depositions, E. Stewart Moritz

Akron Law Faculty Publications

The time has come to eliminate the contemporaneous objection requirement for depositions.

From the original 1938 framing of the Federal Rules of Civil Procedure (Rules) to the present, no one has recognized that the theory behind the contemporaneous objection rule in depositions, as drawn from pre-Rules equity practice, does not match the function of depositions in our post-Rules system of open discovery. Pre-Rules depositions in the federal courts were exclusively testimony-preservation devices, and never discovery tools. The common law and statutory procedural rules for pre-Rules depositions, including the contemporaneous objection rule, reflected this use . But when the original Federal …

Too Little, Too Late: Ineffective Assistance Of Counsel, The Duty To Investigate, And Pretrial Discovery In Criminal Cases, Jenny M. Roberts

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Duty To Preserve Documents Before Litigation Commences, Camille Cameron

Articles, Book Chapters, & Popular Press

This paper explores the nature, extent and boundaries of the duties that exist to preserve relevant documents where no litigation has yet commenced and where such litigation can be reasonably anticipated. It uses as the context for this discussion the recent tobacco litigation case McCabe v. British Australian Tobacco (BA T). The duties to preserve are considered from the perspectives of prospective plaintiffs, who need the documents to prove a claim; prospective defendants (and their servants, agents and employees), who may for legitimate reasons have document management policies that call for routine destruction of documents; and judges (and juries), who …

Civility In Litigation: How Can The Profession Promote And Enforce Good Behavior?, Aviva A. Orenstein, Torrence Lewis

Articles by Maurer Faculty

This essay emanates from a talk that was given to the Defense Trial Counsel of Indiana at its annual meeting’s luncheon. The good thing about talking about civility, particularly at lunch, is that no one dare heckle or throw food. Beyond the obvious constraints against rude behavior inherent in the medium, we sense a genuine openness to the topic. Defense counsel, in particular, feel besieged by what they perceive to be uncivil behavior, and welcome affirmation about the nature of the problem and some suggestions for solutions. More generally, one can argue that the lack of civility in legal culture …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.