Litigation Commons^™

Expert Prevalence, Persuasion And Price: What Trial Participants Really Think About Experts, Andrew W. Jurs

Indiana Law Journal

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field.

Family Law - Interested Person's Lack Of Advocacy Approach Awareness Prompts Motion To Intervene Denial - In Re Guardianship Of B.V.G., 27 N.E.3d 842 (Mass. App. Ct. 2015), Kathryn E. Martin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - The Second Amendment With A Rational Bite: Looking For A Heightened Standard Of Review - Chief Of Police Of City Of Worcester V. Holden, 26 N.E.3d 715 (Mass. 2015), Michael F. Grimes

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Peeking Inside The Black Box: A Preliminary Survey Of Technology Assisted Review (Tar) And Predictive Coding Algorithms For Ediscovery, Shannon Brown

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

But-For Nassar, There Would Not Be A Causation Conundrum In Title Vii Retaliation Litigation: How University Of Texas Southwest Medical Center V. Nassar Makes It Harder For Employees To Prevail, Katherine Todd Stark

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Warger V. Shauers: Tanner 2.0 And The Need For A Less Restrictive Interpretation Of Federal Rule Of Evidence 606(B) And Its Exceptions, David K. Kouroyen Jr.

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Who's Calling The Shots: Individual V. State: A Look Inside The Exemption Laws And The Threats Of Foregoing Vaccinations, Lyndsey B. Davis

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

A Blessed Union: Technology Expanding Private Conversations Exempted By Massachusetts's Spousal Disqualification Rule To Voicemail Messages, Caterina A. Sacchini

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Juvenile Law - Notice By Publication: Going Public With Confidential Information - Adoption Of Zak, 32 N.E.3d 361 (Mass. App. Ct. 2015), Alyssa M. Johnson

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Table Of Contents, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Daubert Debunked: A History Of Legal Retrogression And The Need To Reassess Scientific Admissibility, Barbara Billauer Pfeffer

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Continuing Legacy Of Enron: Whistleblowing Under The Sarbanes-Oxley Act After Lawson V. Fmr Llc, Allen K. Barrett

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Blood Relations: Analyzing Kinship Based, Gang-Related Asylum Claims Under The Lens Of Understanding Particular Social Groups, Maria S. Hwang

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney's Fees Under Section 505 Of The Copyright Act, David E. Shipley

Scholarly Works

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

A Litigator's Guide To The Internet Of Things, Antigone Peyton

Richmond Journal of Law & Technology

Maybe you've heard about the Internet of Things (loT). It's the network of physical objects (or "things") that connect to the Internet and each other and have the ability to collect and exchange data. It includes a variety of devices with sensors, vehicles, buildings, and other items that contain electronics, software, and sensors. Some loT objects have "embedded intelligence," which allows them to detect and react to changes in their physical state. Though there is no specific definition of loT, the concept focuses on how computers, sensors, and objects interact with each other and collect information relating to their surroundings.

The Jury Trial In Antitrust Cases: An Anachronism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Seventh Amendment of the United States Constitution provides in relevant part that "[i]n suits at common law, where the value in controversy exceeds twenty dollars, the right of trial by jury shall be preserved." The jury trial has long been the foundation of the American civil justice system and is deeply embedded in American culture. As the Supreme Court has observed, "[m]aintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized …

Compassion Fatigue: Caveat Caregiver?, Jennifer Baum

Faculty Publications

(Excerpt)

Most of us are familiar with the stereotype of the burned out lawyer who drags herself to work in the morning, makes cynical comments throughout the day, no longer provides her best service to her clients, and goes home bored and uninspired. You may wonder why someone so uncaring ever became a child advocate in the first place, or how she lost her spark. And you know this could never happen to you. Right?

Wrong, according to a panel of experts convened by the ABA Section of Litigation’s Children’s Rights Litigation Committee in a teleconference examining the phenomenon recently …

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Faculty Scholarship

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

The Sixth Pillar Of Anti-Money Laundering Compliance: Balancing Effective Enforcement With Financial Privacy, Maria A. De Dios

Brooklyn Journal of Corporate, Financial & Commercial Law

The U.S. government has responded to the increase of financial crimes, including money laundering and terrorist financing, by requiring that financial institutions implement anti-money laundering compliance programs within their institutions. Most recently, the Financial Crimes Enforcement Network exercised its regulatory powers, as authorized by the Treasury Department, by proposing regulations that now explicitly add customer due diligence to the preexisting anti-money laundering regime. The policy behind the government’s legislative and regulatory measures is clear—financial institutions must ensure that they are protected from and not aiding in the illegal efforts of criminals. The complexity and insidiousness of these financial crimes makes …

A Cautionary Look At A Cautionary Doctrine, Andrew W. Fine

Brooklyn Journal of Corporate, Financial & Commercial Law

Optimism is an indispensable element of effective salesmanship. It is therefore quite natural for the directors of public companies to want to optimistically tout the potential long-term benefits of investing in their companies. After all, directors of public companies must be empowered to attract the attention and money of American investors. But what happens if these long-term projections fail to come true? Who is to blame for long-term projections that are simply unrealistic? A doctrine called the “bespeaks caution” doctrine has emerged in order to govern these inquiries, and holds that these optimistic forward-looking statements are legally immunized provided that …

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Lawn Sign Litigation: What Makes A Statue Content-Based For First Amendment Purposes, Leah K. Brady

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Shocking Results: Upholding The Prohibition Against The Civilian Possession Of Electrical Weapons - Commonwealth V. Caetano, 26 N.E.3d 688 (Mass. 2015), Vacated And Remanded Sub Nom. Caetano V. Massachusetts, 136 S. Ct. 1027 (2016), Kevin L. Corbin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Editor's Note, Annabel Rodriguez

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Civil Procedure - Mere Allegation Of Juror Misconduct Is Sufficient To Vacate A Final Judgment - Bouret-Echevarria V. Caribbean Aviation Maintenance Corp., 784 F.3d 37 (1st Cir. 2015), Kevin J. Castodio

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.