Law Commons^™

Fashionable Genetic Explanations In The Courtroom: Litigating Personal Injuries Based On Genetic Risk, Jennifer Wriggins

Faculty Publications

New developments in molecular genetics hold much promise for society. Gene therapy research is underway with the aim of helping to fight, and perhaps even eliminate some diseases. DNA data can be used as evidence to help free innocent people and put guilty ones in jail. Agricultural biotechnology can make crops and pesticides more productive. And cloning may offer exciting potential. There is little doubt that further· developments in the areas of genetics and biotechnology will change our lives in unanticipated ways.

Despite the potential benefits to society, there exist valid and serious I concerns about the potential for misuse …

Attempting To Ensure Fairness In The Glare Of The Media, Richard D. Friedman

Book Chapters

All legal systems worthy of credit have a commitment to achieving fairness between the parties to the litigation. In addition, common law legal systems have a longstanding commitment to openness in judicial proceedings. At the same time, and in part for the same reasons, they also have a longstanding commitment to freedom of expression. There is inevitably a tension among these three goals, because in cases of great public interest openness leads to publicity, and publicity may threaten or at least appear to threaten the fairness of a trial. In addition, sometimes publicity may create an intrusion on the lives …

Law In The Backwaters: A Comment Of Mirjan Damaška's Evidence Law Adrift, Samuel R. Gross

Reviews

The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation …

"Countering Stereotypes." Review Of Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards, By N. Vidmar, Samuel R. Gross

Reviews

The story of The Medical Malpractice Trial has a place in popular American legal culture, somewhere on the shelf with Killers Who Got Off on Technicalities. The plot is simple and tragic. The protagonist is the Doctor, a good man with a flaw: He tries too hard. In the process, he makes an innocent mistake or believes he can prevent the unpreventable. In any event, he fails and the Patient dies or is permanently injured. For this unintentional error the Doctor is crucified, by the vengeful anger of the Patient or her survivors, the avarice of the plaintiffs' lawyer, the …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

Don't Try: Civil Jury Verdicts In A System Geared To Settlement, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …

The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross

Articles

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After …

Revising Article 9 To Reduce Wasteful Litigation, James J. White

Articles

For reasons that are unclear to me, the committees reviewing the articles of the Uniform Commercial Code and drafting revisions are congenitally conservative. Perhaps these committees take their charge too seriously, namely, to revise, not to revolutionize. Perhaps their intimate knowledge of the subject matter exaggerates the importance of each section and consequently magnifies the apparent size of every change. In any case, my own experience with two such committees tells me that the members quickly become focused on revisions and amendments that any outsider would describe as modest. To the extent that the revision of any of the articles …

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

A Rededication, John W. Reed

Other Publications

The delivered keynote address during the April 18, 1988, dedication of the new Lansing courtroom of the United States District Court for the Western District of Michigan.

Rules Pertaining To Witnesses, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Opinions And Expert Testimony, John W. Reed

Book Chapters

Article VI of the Michigan Rules of Evidence contains the rules dealing with witnesses. Trials bring to mind testimonial evidence. There surely are other kinds of evidence, such as docmnents, guns, automobile tires, chemical substances, and the like. But most evidence comes from the mouths of witnesses, and even demonstrative evidence usually is admitted only after a witness has taken the stand and testified to foundation facts. So it is important and appropriate that we turn to the provisions of the rules that deal with qualifications and credibility of witnesses. I would like to direct your attention to MRE 601 …

Evidence Problems In Criminal Cases, John W. Reed

Book Chapters

The Federal Rules of Evidence, enacted by Congress, became effective on July 1, 1975. Ten states have adopted state versions of the Federal Rules to govern trials in their courts, and about half the remaining states are considering whether to follow suit. Michigan is one of these latter states. Early in 1977 a committee appointed by the Supreme Court of Michigan proposed rules of evidence for Michigan closely patterned on the Federal Rules, and, if all goes well, the Court will promulgate rules for the Michigan courts to become effective in 1977 or soon thereafter. Michigan lawyers should be aware …

Foreword: Brewer V. Williams--A Hard Look At A Discomfiting Record, Yale Kamisar

Articles

In recent decades, few matters have split the Supreme Court, troubled the legal profession, and agitated the public as much as the police interrogation-confession cases. The recent case of Brewer v. Williams3 is as provocative as any, because the Supreme Court there revdrsed the defendant's conviction for the "savage murder of a small child" even though no Justice denied his guilt,4 he was warned of his rights no fewer than five times, 5 and any "interrogation" that might have occurred seemed quite mild.6

Don't Speak Of Love, John W. Reed

Other Publications

I was asked to speak to you this morning about communication in the courtroom. Specifically I was told that this group, keenly interested in the trial process, would like to hear any comments I might offer on problems of persuading judges and jurors. If your delegate who invited me misread your interest, you still have time to move to the Lewis and CLark Room, down the hall, where, indeed, some of the most able communicators in the trial business are demonstrating what I shall only describe.

The Trial Brief, Edson R. Sunderland, Clifford W. Crandall

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The present purpose is to outline a course of investigation suitable to the preparation of a case for trial and to suggest methods of making the material collected during the search for authorities readily available." [p.417-418]

Bringing Third Parties Into Actions At Law—Set-Off Against The Assignor, Edson R. Sunderland

Articles

It frequently happens, in an action by an assignee, that the defendant wishes to use as a cross-action a claim against the assignor. This results in no diffiulty unless the amount of the set-off against the assignor is greater than the claim of the plaintiff, or unless the cross-action calls for a specific remedy against the assigner in addition to its defensive effect upon the plaintiff's demand. In each of these cases we have a three-sided controversy. In the first, the set-off operates against the plaintiff to the extent of his claim and against the assignor for the balance. In …

Liability Of Manufacturer To Remote Vender For Defective Automobile Wheel, Horace Lafayette Wilgus

Articles

Plaintiff. in February, 19O9. purchased from the Utica Motor Car Company, a Cadillac six-passenger touring car, manufactured by the Cadillac Motor Car Company, of Michigan. The Utica company was a dealer in motor cars, and purchased to resell; it was the original vendee, and the plaintiff was the sub-vendee. The car was used very little until July 31, 1909, when the plaintiff, an experienced driver, while driving the car on a main public road in good condition, at a speed of 12 to 15 miles per hour, was severely and permanently injured by the right front wheel suddenly breaking down …

Should A Correct Verdict Be Set Aside Because The Jury Failed To Follow Erroneous Instructions?, Edson R. Sunderland

Articles

One of the common grounds of a new trial is that the verdict is contrary to law. What law is meant,--the law as it really is, or the law that was given to the jury by the court's instruction? Most cases hold to the latter view. It is the duty of the jury to take the law from the court, whether the court in so giving it is right or wrong. Hence, the jury violate their duty if they fail to follow instructions, even if the instructions are wrong, and a verdict based on a breach of the jury's duty …

Burden Of Proof, Victor H. Lane

Articles

The case of Rowe, Adin.. v. Colorado and Southern R. R. Co. (Tex. Civ. App. 1918), 205 S. W. 731, is typical of the confusion all too common in the use of this term "burden of proof"

Corporations, Shareholders' Right To Have A Dividend Declared And Paid Out Of Surplus, Horace Lafayette Wilgus

Articles

In Dodge v. Ford Motor Co. (Mich. 1919), 170, N. W. 668, the questions were not new, and with one exception, the decision was not unusual, but the sums involved were enormos. The Motor Company was incorporated in 1903, under the general manufacturing incorporating act of Michigan (P. A. 232, 1903), for the manufacture and sale of automobiles, motors and devices incident to their construction and operation, with an authorized Capital Stock of $150,000-$100,000 then paid up, $49,000 in cash, $40,000 in letters patent issued and applied for, and $11,000 in machinery and contracts. In 1908 the stock was increased …

Cost Of Public Justice, John R. Rood

Articles

The common citizen who becomes victim of a wrong and seeks redress in the courts of America soon finds by bitter experience that it is better to bear those ills we have than go to law. The expense is more than the thing is worth. The result depends on who has the longest purse, the most endurance, and the shrewdest lawyer, and little on the merits of the case. When he gets to court he finds his remaining money is being spent, not in the trial of his case, but in deciding whether an absque hoc is a sine que …

The Inefficiency Of The American Jury, Edson R. Sunderland

Articles

What is proposed in the present article is to show that in attempting to preserve the independence of the jury in its exclusive juris- diction over questions of fact, the people and the courts in most American jurisdictions have departed from the common law practice and have introduced a principle calculated to undermine the very institution which they wish to strengthen. That is to say, through the rules prohibiting judges from commenting on the weight of the evidence, juries tend to become irresponsible, verdicts tend to become matters of chance, and the intricacy of procedure, with its cost, delay and …

Can Affidavits Of Jurors To Show Misconduct Be Admitted For The Purpose Of Setting Aside A 'Quotient Verdict'?, Grover C. Grismore

Articles

A recent Oklahoma case raises one phase of a question which has been perplexing the courts ever since jury trials were invented, and in regard to which there is a great contrariety of opinion. After a verdict had been rendered for the plaintiff in a personal injury suit, the defendant made a motion for a new trial on the ground of misconduct of the jury, and in support of his motion offered the affidavits of several of the jurors to the effect that the verdict was determined upon as the result of an agreement whereby each one of the jurors …

The Trial Brief, Edson R. Sunderland

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The purpose of this lesson is to outline a course of investigation suitable to the preparation of a case for trial, and to suggest methods of making the material collected during the search for authorities readily available." [p.353]

Pleading Estoppel, W. Gordon Stoner

Articles

No subject is fraught with more difficulties for the pleader than that of estoppel. The problems of "when" and "how" to plead seem never so perplexing as when they arise in connection with this subject. That these problems are not confined to any day or age is evidenced by the reports from the time of Lord COKE down to the latest advance sheets of the present day reporter systems, and the lawyers of no generation have been wholly agreed on their solution. No system of pleading yet established has been free from these questions and with each general change in …

Liquidated Damages And Estoppel By Contract, Joseph H. Drake

Articles

In the last edition of "Sedgwick's Elements of the Law of Damages" the author says (p. 232) that the subject of liquidated damages has been put in a new light by the two cases of the Sun Printing and Publishing Association v. Moore1 and the Clydebank R. &S. Co. v. Castaneda,2 and that they may be expected to have a considerable effect upon the further development of the law on the subject. The learned author then presents the old canons of interpretation with full illustration from the cases, followed by the citation of the decisions above mentioned, and concludes that …

Statutory Abolition Of Defense Of Insanity In Criminal Cases, John R. Rood

Articles

The great lengths to which the defense of insanity has been carried in homicide cases has induced numerous legislative attempts to abolish the evil; and the fate which such legislation has met and deserves at the hands of the courts is a matter of considerable interest.

The Trial Brief, Edson R. Sunderland

Book Chapters

Professor Sunderland writes in introduction to his chapter: "As this is not a book of practice, an extended discussion of the general subject of 'Preparation for Trial' would manifestly be out of place.... The purpose of this part is to outline a course of investigation suitable in preparing a case for trial and to suggest methods for making the materials so obtained readily available." [p.207]