Law Commons^™

How Evidence Of Subsequent Remedial Measures Matters, Bernard Chao, Kylie Santos

Sturm College of Law: Faculty Scholarship

Federal Rule of Evidence 407 prohibits plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. Among its purported justifications, the rule prevents hindsight bias from unduly influencing jury decisions. Nonetheless, plaintiffs often take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility). Fearing that the exceptions could swallow the rule, some courts will even exclude evidence that fits into one of these exceptions because it is ostensibly too prejudicial. Alternatively, other courts instruct juries that they should only use the evidence for the …

Focusing Patent Litigation, Bernard Chao

Sturm College of Law: Faculty Scholarship

Patent litigation is often called the “sport of kings.” While that phrase may not be appropriate for all patent disputes, it is an apt description of the high-stakes cases. Attorneys in these lawsuits tend to zealously advocate for their respective sides by asserting every argument that they can legitimately raise. Patentees often assert an excessive number of patent claims and even pile on unnecessary patents. Some of these claims may be well-founded. But so long as they can make a colorable infringement argument, patentees typically include many weaker claims too. Likewise, patent defendants respond with burdensome and duplicative invalidity defenses. …

Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao

Sturm College of Law: Faculty Scholarship

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …

The New Settlement Tools, Bernard Chao, Christopher Robertson, David Yokum

Sturm College of Law: Faculty Scholarship

By protecting the right to a jury, the state and federal constitutions recognize the fundamental value of having civil and criminal disputes resolved by laypersons. Actual trials, however, are relatively rare, in part because parties seek to avoid the risks and cost of trials and courts seek to clear dockets efficiently. But as desirable as settlement may be, it can be a difficult way to resolve a dispute. Parties view their cases from different perspectives, and these perspectives often cause both sides to be overly optimistic and to expect unreasonably large or unreasonably small resolutions.

This article describes a novel …

Time Is Money: An Empirical Assessment Of Non-Economic Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson

Sturm College of Law: Faculty Scholarship

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of fifty-one U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (per diem) or demand a specific amount (lump sum). Either sort of large number could exploit an irrational anchoring effect. We performed a realistic, online, video-based experiment with 732 human subjects. We replicated prior work showing that large lump sum demands drive larger jury verdicts, but surprisingly found no effect of similarly-sized per diem anchors. We did find per diem effects on binary liability outcomes, and thus …

Skills & Values: Discovery Practice, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

Skills & Values: Discovery Practice, Third Edition, is designed to serve as an introduction to the practical application of the discovery rules. The book introduces each discovery topic briefly and then provides a context and structure for exercises and self-study. Skills & Values: Discovery Practice can be used by a professor teaching a full pre-trial course, or one focused just on discovery law. It can be used alone or in conjunction with another pre-trial text, and it can be used with the problem set provided in the appendix or with a professor's own problem set. It also can be …

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David Yokum

Sturm College of Law: Faculty Scholarship

Numerous studies have shown that the amount of a juror's damages decision is strongly affected by the number suggested by the plaintiffs attorney, independent of the strength of the actual evidence (a psychological effect known as "anchoring"). For scholars and policymakers, this behavior is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). One noted paper even concluded that "the more you ask for, the more you get. " Others believe that the damage demand must pass the "straight-face" test because outlandishly high demands will diminish credibility and risk …

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

The Case For Contribution In Patent Law, Bernard Chao

Sturm College of Law: Faculty Scholarship

Under tort law’s theory of contribution, when one party is sued, it can implead other parties that may be jointly and severally liable and ask that they pay their fair share of any judgment. Although contribution theory has spread to numerous wide-ranging areas of the law, patent law is not among them. Thus, when a manufacturer is sued for patent infringement, it cannot seek contribution from the component supplier that included the patented technology in its component. This omission from patent law has generated surprisingly little commentary. In the few instances where an accused infringer has sought a right of …

E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield

Sturm College of Law: Faculty Scholarship

The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.

Introduction To The Online Colorado Litigator's Handbook, Robert S. Anderson

Sturm College of Law: Faculty Scholarship

The Litigator's Handbook includes surveys of district court judges throughout the state with detailed questions of each judge's preferences and proscriptions for practice and procedure; answers to some questions that attorneys want to know but may be afraid to ask; and commentary that indicates the court's general level of receptiveness to particular types of requests.

Pretrial Publicity In Criminal Cases Of National Notoriety: Constructing A Remedy For The Remediless Wrong, Robert M. Hardaway, Douglas B. Tumminello

Sturm College of Law: Faculty Scholarship

Part I of this Article examines the history of pretrial publicity in American courts and explores the values that the Sixth Amendment seeks to protect. Part II criticizes the Supreme Court's current approach to the pretrial publicity problem. Part III analyzes case studies of nationally notorious trials. Part IV explores remedial measures reasonably calculated to nullify the effects of prejudicial publicity and cases in which a trial judge's omission of those measures constitutes reversible error. Finally, this Article concludes by setting forth a proposed standard that should be applied in order to ensure the defendant's right to a fair trial …

Preventive Law And The Legal Autopsy: For Legal Profession As A Whole, It's A Learning And Research Tool, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

The legal autopsy can be a careful learning and research tool, not only for the individual practitioner, but for the legal profession as a whole. A complete (or "horizontal") autopsy which includes an investigation of both sides of a case can be expensive and time-consuming to prepare. In many cases, practical consideration may dictate a more limited (or "vertical")-but also useful-autopsy investigating only one side of the case.

Equivalent Deterrence: A Proposed Alternative To The Exclusionary Rule In Criminal Proceedings, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Perhaps no other area of American jurisprudence is as controversial as the exclusionary rule. Rejected by all other civilized countries2 and held in contempt by much of the American public, the rule reached its zenith during the Warren Court, only to be chipped away a little at a time by the Burger Court. Indeed, if the rule is ever to die, it seems destined to go out with a whimper rather than a bang. . .

1985 Civil Rule Amendments, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Effective January 1, 1985, significant amendments were made to several of the Colorado Rules of Civil Procedure ("C.R.C.P."). The most important amendments were to C.R.C.P. Rules 59 (posttrial) motions) and 103 (garnishment).' However, there were also significant amendments to C.R.C.P. Rules 58 (entry of judgment), 52 (findings by the court), 50 (motion for directed verdict), and 6 (time), as well as Colorado Appellate Rules ("C.A.R.") Rule 4 (appeals).

Collateral Estoppel - A Colorado Primer, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Perhaps no legal doctrine has been the source of so much confusion and misunderstanding as collateral estoppel. This is unfortunate since issues involving collateral estoppel arise in a large number of cases, and when properly raised are often determinative of the entire case. For the practicing attorney, it is just as important to know how to defend against an adversary's use of collateral estoppel as it is to know when and how to raise this doctrine offensively.