Litigation Commons^™

Survey Of Illinois Law: Waiver Of The Attorney-Client Privilege And Work Product Protection, 37 S. Ill. U. L.J. 825 (2013), Ralph Ruebner, Katarina Durcova

UIC Law Open Access Faculty Scholarship

Effective January 1, 2013, two new Illinois Supreme Court rules clarify and limit the waiver of the attorney-client privilege and work product protection rule. Illinois Rule of Evidence 502 ("IRE 502"), which spells out the limitations on waiver, is accompanied by a "clawback provision" in Illinois Supreme Court Rule 201(p) ("Rule 201(p)") that details the procedural steps a disclosing party should take to successfully assert the privilege following an inadvertent discovery disclosure. Additionally, these changes clarify the mandatory duty of the receiving party. IRE 502 was modeled on Federal Rule of Evidence 502 ("FRE 502") and Rule 201(p) was modeled …

Waiting For John Doe: The Practical And Constitutional Implications Of Dna Indictments, Daniel Gaudet

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Innovation And Litigation: Tensions Between Universities And Patents And How To Fix Them, Jacob H. Rooksby

Law Faculty Publications

Universities that own patents have a problem. While nearly all are keen to enhance their revenue generated from patents, few are eager or prepared to enforce them in court, alone or with their exclusive licensees, should a third party deploy a product or process covered by a university-owned patent. Yet strict prudential standing requirements imposed by the United States Court of Appeals for the Federal Circuit (“CAFC”) effectively require university participation as plaintiffs in enforcement lawsuits over their exclusively licensed patents, regardless of a university’s effective ability or enthusiasm to participate in a given action. Supported by forty years of …

The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran

Articles

The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …

The S&P Litigation And Access To Federal Court: A Case Study In The Limits Of Our Removal Model, Gil Seinfeld

Articles

On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL …

Foreign Official Define Thyself: How To Define Foreign Officials And Instrumentalities In The Face Of Aggressive Enforcement Of The Foreign Corrupt Practices Act, Alexander L. Harisiadis

Catholic University Law Review

No abstract provided.

Discovery Under 28 U.S.C. §1782: Distinguishing International Commercial Arbitration And International Investment Arbitration, S. I. Strong

Faculty Publications

For many years, courts, commentators and counsel agreed that 28 U.S.C. §1782 – a somewhat extraordinary procedural device that allows U.S. courts to order discovery in the United States “for use in a proceeding in a foreign or international tribunal” – did not apply to disputes involving international arbitration. However, that presumption has come under challenge in recent years, particularly in the realm of investment arbitration, where the Chevron-Ecuador dispute has made Section 1782 requests a commonplace procedure. This Article takes a rigorous look at both the history and the future of Section 1782 in international arbitration, taking care to …

#Bewareofovershare: Social Media Discovery And Importance In Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013), Jennifer K. Gregory

UIC Review of Intellectual Property Law

As the use of social media continues to expand, lawyers will increasingly rely on evidence gleaned from social media sources. This is already true in several areas of litigation, including various types of intellectual property litigation. Thus far, the rules of civil procedure, evidence, and professional conduct have addressed many of the issues that arise regarding the acquisition and use of social media evidence. Lawyers should at least investigate social media usage by key parties in each particular case in order to be aware of what social media evidence could be available. Lawyers are also responsible for having a basic …

Should There Be A Presumption Favoring Awards Of Attorney’S Fees In Copyright Litigation?, 12 J. Marshall Rev. Intell. Prop. L. 630 (2013), William T. Mcgrath

UIC Review of Intellectual Property Law

Section 505 of the Copyright Act allows courts to award attorney’s fees to the prevailing party in a copyright case. Almost twenty years ago, the Supreme Court in Fogerty resolved a split among the circuits over the interpretation of that statute. First, it held that courts should apply several nonexclusive factors when determining if the prevailing party, whether defendant or plaintiff, should be entitled to recover attorney’s fees. Second, the Court refused to apply a presumption that the prevailing party will automatically recover attorney’s fees, opting instead for the districts courts to apply “equitable discretion” in awarding fees. But in …

Due Process And The Future Of Class Actions, Alexandra Lahav

Faculty Articles and Papers

No abstract provided.

'May It Please The Court?': A Short Story, Angela Mae Kupenda

Journal Articles

This story tells a fictional account of a black woman lawyer who is about to try the biggest case of her life. While many black women lawyers seek to express their individuality and bring the best of themselves into their work and lives, conventions and norms about race and gender force them to give huge attention to things that likely matter little in the long run. In this story, we go on a journey of self-discovery with the protagonist, Angel, in hopes that she will be able to please the court in this—her trial of a lifetime.

What Do Clients Want From Their Lawyers?, Clark D. Cunningham

Faculty Publications By Year

This working paper assembles empirical data from England, Australia and the United States indicating that individual clients do not evaluate their lawyers - as attorneys frequently assume - primarily in terms of the outcomes achieved. Rather, clients place greater weight on the quality of communication with their lawyers and are often disappointed by failure to listen carefully and explain clearly. The paper concludes with suggestive survey data that organizational clients may have similar views about the large firm lawyers that represent them. The author is the director of the Effective Lawyer-Client Communication Project and the National Institute for Teaching Ethics …

The Stricter Standard: An Empirical Assessment Of Daubert’S Effect On Civil Defendants, Andrew Jurs, Scott Devito

Catholic University Law Review

No abstract provided.

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Introduction

NYLS Law Review

No abstract provided.

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Consumer Financial Services Arbitration: What Does The Future Hold After Concepcion?, Alan S. Kaplinsky, Mark J. Levin

Journal of Business & Technology Law

No abstract provided.

Commentator’S Response To J. Goodwin 'Norms Of Advocacy', Camille Cameron

Articles, Book Chapters, & Popular Press

Professor Goodwin makes a case for the normative complexity of advocacy. She makes this case in the contexts of courtroom advocacy and advocacy in the public relations industry. I am going to examine that conclusion by reference to one of her two chosen case studies – courtroom advocacy. I am also going to agree with her conclusion that courtroom advocacy is normatively complex, although I will part company with her on a few points.

Goodwin has argued that the activity of arguing in court is normatively structured, in the sense that it is more than just persuasion, it is certainly …

Estimating The Cost Of Civil Litigation, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

To obtain reliable estimates of litigation costs, the National Center for State Courts (NCSC) has developed an alternative method of cost estimation: the Civil Litigation Cost Model (CLCM). The NCSC model relies on the amount of time expended by attorneys in various litigation tasks in a variety of civil cases filed in state courts. This event-based approach to estimating litigation costs is an adaptation of the methods employed by the NCSC for court workload studies. Because these tasks take place sequentially in civil litigation, the use of this approach permits the NCSC to estimate litigation costs for cases that resolve …

Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

We reported in a recent paper that during the 2008-09 financial crisis, for the average firm, idiosyncratic risk, as measured by variance, increased by five-fold. This finding is important for securities litigation because idiosyncratic risk plays a central role in event study methodology. Event studies are commonly used in securities litigation to determine materiality and loss causation. Many bits of news affect an issuer’s share price at the time of a corporate disclosure that is the subject of litigation. Because of this, even if an issuer’s market–adjusted price changes at the time of the disclosure, one cannot determine with certainty …

Jewish Law Courts In America: Lessons Offered To Sharia Courts By The Beth Din Of America Precedent, Michael J. Broyde

Faculty Articles

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came …

Plata V. Brown And Realignment: Jails, Prisons, Courts, And Politics, Margo Schlanger

Articles

The year 2011 marked an important milestone in American institutional reform litigation. That year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. Not since 1978 had the Court ratified a lower court's crowding-related order in a jail or prison case, and the order before the Court in 2011 was fairly aggressive; theoretically, it could have (although this was never a real prospect) induced the release …

Future Conduct And The Limits Of Class-Action Settlements, James Grimmelmann

Cornell Law Faculty Publications

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with …

Litigation As A Measure Of Well-Being, Theodore Eisenberg, Sital Kalantry, Nick Robinson

Cornell Law Faculty Publications

No abstract provided.

Symmetry And Class Action Litigation, Alexandra Lahav

Faculty Articles and Papers

In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to equalize resources between individual plaintiffs and organizational defendants by allowing plaintiffs to pool their claims. Current developments of class action doctrine, however, reinforce in the courtroom the asymmetry that exists between individual plaintiffs and organizational defendants outside the court. This Article explores these trends and the questions they raise. …

Underclaiming And Overclaiming, Peter Siegelman, Sachin Pandya

Faculty Articles and Papers

Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.

The Mosaic Theory In Individual Rights Litigation: On The Genealogy And Expansion Of A Concept, Robert M. Pallitto

Richmond Public Interest Law Review

This article explores the use of the concept of "mosaics" in individual rights litigation, a topic that has received virtually no scholarly attention. Originally a construct used in analysis of intelligence data, the mosaic theory has been transposed to the litigation context and applied in a range of recent case law. Here, the article examines the theory's use in two settings that have important implications for individual liberties: to support the state secrets privilege as a form of information control, and to defeat habeas petitions filed by "war on terror" detainees. In these areas, the mosaic concept is used in …

The “Friend”Ly Lawyer: Professionalism And Ethical Considerations Of The Use Of Social Networking During Litigation, Nicola A. Boothe-Perry

Journal Publications

Social media use has exploded around the world. The top social networking site (SNS), Facebook, reports that it has more than a billion members with approximately two million friend requests every twenty minutes. Coupled with the other top 15 social networking sites, including Linkedln, Google+, Twitter, and MySpace, the number of social networking users is estimated to exceed 2 billion. With billions of people producing and consuming media content through SNS, there has been a growing trend of law firms' use of SNS as a marketing tool and litigators' inclusion of discovery from SNS as a part of their discovery …

Say What: Confusion In The Courts Over What Is The Proper Standard Of Review For Hearsay Rulings, Todd J. Bruno

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Gun-Shy Commonwealth: Self-Defense And Concealed Carry In Post-Heller Massachusetts, Megan Ruebsamen

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.