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When Can Attorneys' Fees Be Recovered In An Award Enforcement Action, M. Anderson Berry, Katherine S. Ritchey, Nandini Iyer

M. Anderson Berry

Because parties do not always comply with arbitration awards, it may be necessary for the prevailing party to seek enforcement of the award in a court of law—typically in a jurisdiction where the losing party has sufficient assets. This article focuses on whether the prevailing party can recover attorneys’ fees accrued during the enforcement procedure in U.S. district court under the Federal Arbitration Act (FAA).

New Federal Rules For Pending Cases, M. Anderson Berry, Caroline N. Mitchell

M. Anderson Berry

On Dec. 1, 2010, changes to Rule 26 of the Federal Rules of Civil Procedure (FRCP) extended work-product protection to discovery of draft reports by testifying experts and, with three exceptions, to communications between those experts and retaining attorneys. The amendments also require attorneys relying on experts who will provide testimony - but who are not required to provide a full expert report - to disclose the subject matter of the planned testimony and summarize the facts and opinions that the expert expects to offer.

What is not clear is whether this "attorney-expert work-product doctrine" applies to draft reports and …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

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

E. Stewart Moritz

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 …