Civil Procedure Commons^™

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm

Akron Law Review

The 2015 amendments to the Federal Rules of Civil Procedure ambitiously sought to reduce pretrial delay, expense, and burden in civil cases. But the rules are not self-executing, and without active hands on judicial supervision and intervention where necessary to insure that the Rules are being applied as intended, there is a risk that the objectives of the amended rules will not be realized. This article discusses a number of common sense, practical, yet effective ways in which judges can fulfill their obligation to effectively manage their cases to achieve the goal of Rule 1 of the Rules of Civil …

Breaking The Boilerplate Habit In Civil Discovery, Steven S. Gensler, Lee H. Rosenthal

Akron Law Review

No more boilerplate in discovery requests or responses. That is the clear message of the 2015 amendments to the Federal Rules of Civil Procedure. Inspired by that message, some judges have taken a firm stand, warning lawyers to change their ways or face serious sanctions. Will it be enough to root out practices deeply engrained in discovery culture? This Article examines the “anti boilerplate” rule changes and the cases applying them. We endorse the rule changes and applaud the judges who have spoken out. But if real change is to occur, more judges—many more judges—must join them. As judges consider …

Asymmetry And Adequacy In Discovery Incentives: The Discouraging Implications Of Haeger V. Goodyear, Jeffrey W. Stempel

Akron Law Review

In 2017, the U.S. Supreme Court unanimously vacated a $2.7 million fee-shifting award imposed on Goodyear Tire & Rubber Co. in response to rather egregious concealment of key testing documents concerning a failing tire blamed for a serious accident. Although the Court’s opinion does not foreclose imposition of substantial sanctions on remand, Haeger v. Goodyear stands as a rather stark illustration of the potential for discovery cheating to have comparatively little consequence—at least for the litigant if not counsel—if the cheating is not discovered until after conclusion of the matter. Although the perceived problem of excessive or overbroad discovery—“expansive discovery …

Attorney Negligence And Negligent Spoliation: The Need For New Tools To Prompt Attorney Competence In Preservation, Paula Schaefer

Akron Law Review

Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence¾particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys fail to …

Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima

Brooklyn Law Review

Third-party funding (TPLF) is when a nonparty, who does not have a direct stake in the litigation, funds a lawsuit. There are varying motivations that drive TPLF arrangements—including investors offering loans to receive a portion of the settlement or public interest groups sponsoring impact litigation. This note discusses a specific mode of TPLF that is motivated by a personal interest in the lawsuit rather than monetary gain, referred to as “malice maintenance.” At common law, maintenance was prohibited to prevent powerful and wealthy individuals form taking advantage of the court system. The majority of states today, however, permit at least …

When Can The Patent Office Intervene In Its Own Cases?, Saurabh Vishnubhakat

Faculty Scholarship

The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority. A relatively little-known aspect of that authority is the agency's statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal. Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in …

A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle

St. Mary's Law Journal

The Internet provides trial attorneys an additional tool to investigate the backgrounds of prospective jurors during voir dire. Online searches of a person’s name and social media accounts can reveal information that could be used as grounds for a challenge for cause or to facilitate intelligent use of peremptory strikes. Texas lawmakers have not yet provided any official guidance as to whether attorneys can investigate prospective jurors online or how they might do so, should it be allowed. Texas’s current voir dire structure, judicial opinions, and ethics opinions, together, support the notion that Texas trial attorneys should be given opportunities …

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

A Review Of Civil Protection Orders In Six Jurisdictions, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

Traditional criminal and civil remedies are inadequate responses against the problem of domestic violence. The criminal justice system requires allegations to be proven beyond reasonable doubt, the focus is on punishment for past acts instead of prevention of vio-lence from recurring, and the existing criminal offences do not fully cover the range of undesirable conduct. As for the civil justice system, the court processes take too long and are often incomprehensible to litigants-in-person, and there are no clear penalties imposed by the law even if an injunction is awarded by the court. In order to provide vic-tims of domestic violence …

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora

St. Mary's Journal on Legal Malpractice & Ethics

Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …

Policy Considerations And Implications In United States V. Bryant, Jessica Larsen

Northwestern Journal of Law & Social Policy

No abstract provided.

Cat Scratch Fever: The Spread Of The Cat’S Paw Doctrine In The Second Circuit, Crystal Jackson-Kaloz

Catholic University Law Review

The phrase “cat’s paw” comes from an Aesop’s fable and has been used to define a person used by another as a tool or a scapegoat. The phrase was coined and injected into employment discrimination law by Judge Richard Posner in Shager v. Upjohn Co. and later adopted by the U.S. Supreme Court in Staub v. Proctor Hospital. In Staub, the Supreme Court held that an employer could be liable for an adverse employment decision that was based on the recommendation of a supervisor who possessed a discriminatory or retaliatory bias against the adversely affected employee. However, the …

Partisan Gerrymandering And The Illusion Of Unfairness, Jacob Eisler

Catholic University Law Review

Contemporary political discussions have given increasing attention on gerrymandering. Most discussions of gerrymandering focus on the practice’s illegitimate use as a weapon to distort popular democracy. This has been the Supreme Court’s focus as well, but all to no avail. The Supreme Court’s gerrymandering jurisprudence illustrates the difficulty in policing the practice, with the Court struggling to formulate a coherent test to determine when gerrymandering is permissible and when it runs afoul.

The increase focus on gerrymandering as a weapon invites a discussion whether the practice may is inherently illegitimate. This Article suggests two conditions, described as “partisan loyalty” and …

Campbell V. Campbell: Requiring Adherence To The Correct Legal Standard In Child Custody Proceedings - The "Best Interest Of The Child", Lisa M. Fitzgibbon

Maine Law Review

Should a divorce court be permitted to consider evidence of a parent's misuse of legal process when rendering a child custody decree? In Campbell v. Campbell the Maine Superior Court concluded that Mrs. Campbell had sought an ex parte protection from abuse order against her husband in an effort to gain a tactical advantage in the custody proceeding—she did not need protection from abuse. The court then awarded Mr. Campbell custody of the children, on the basis of Mrs. Campbell's misuse of legal process. Yet, by focusing its attention upon one parent's conduct, the superior court deviated from what was …

Fitzgerald V. Mobile Billboards, L.L.C., 134 Nev. Adv. Op. 30 (May 3, 2018), Shaneka J. Malloyd

Nevada Supreme Court Summaries

No abstract provided.

The Pro Bono Collaborative Project Spotlight: Pro Bono Collaborative Aci Civil Legal Clinics Project Expands To Women's Facility (05-03-2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Termination Of Hospital Medical Staff Privileges For Economic Reasons: An Appeal For Consistency, June D. Zellers, Michael R. Poulin

Maine Law Review

The relationship between physicians and hospitals is undergoing significant change. Historically, a physician maintained a private practice in the community and looked to the local hospital for ancillary support when his or her patients were too ill to remain at home. This community-based physician gained access to the hospital by obtaining medical staff privileges. These privileges allowed the physician to admit patients to the hospital, treat patients while they were there, and use the hospital's staff and equipment. The physician generally enjoyed the use of the privileges throughout his or her active career, losing them only if found incompetent. Today, …

Prisoners Of Fate: The Challenges Of Creating Change For Children Of Incarcerated Parents, Amy B. Cyphert

Maryland Law Review

Children of incarcerated parents, the invisible victims of mass incarceration, suffer tremendous physical, psychological, educational, and financial burdens—detrimental consequences that can continue even long after a parent has been released. Although these children are blameless, policy makers, judges, and prison officials in charge of visitation policies have largely overlooked them. The United States Sentencing Commission Guidelines Manual explicitly instructs judges to ignore children when fashioning their parents’ sentences, and judges have largely hewed to this policy, even in the wake of the 2005 United States v. Booker decision that made those Guidelines merely advisory, not mandatory. Although some scholars have …

Guilty Until Proven Innocent: California's Prop. 50 Turns The Concept Of Due Process On Its Head, Brantley I. Pepperman

Loyola of Los Angeles Law Review

For decades, “good governance” has been little more than a talking point for politicians on the road to reelection or a promotion to higher office. In 2014, the California Legislature attempted to give teeth to the idea, successfully spearheading an amendment to the California Constitution approved by voters in 2016. But despite its efforts to “drain the swamp,” the Legislature gave itself a powerful tool, the authority to suspend or expel legislators without pay, that presents more problems than solutions. This article explores the implications of that amendment, including the extent to which it, as codified, comports with procedural due …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely important …

The Representation Of Female Victims In Front-Page News Stories: The Effect Of Race/Ethnicity, Danielle C. Slakoff

Student Work

My dissertation examines how white, black, and Latina female victims are differentially portrayed in front-page newspaper stories. I hypothesized there would be differences across the three groups in 1) the total number of front-page stories, 2) coverage intensity and use of photographs, 3) presence of unsympathetic and sympathetic themes in newspaper stories, and 4) overall story narratives. To test my expectations, I examined front-page newspaper stories about female victims from seven widely-circulated U.S. newspapers from the calendar year 2006 with a mixed-methods approach. I found more front-page stories about white female victims than black and Latina female victims. In addition, …

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.