Litigation Commons^™

Reforms In The Business And Operating Manner Of The Ohio Courts Of Appeals, Jeffrey A. Parness, Jack E. Reagle

Akron Law Review

This article will review, and comment upon, some of the techniques available to the Ohio appeals courts. The task of preparing this article was facilitated greatly by the many Ohio appeals court judges who responded to a survey letter, reproduced in the appendix, sent by the authors in the Summer of 1981. The results of this survey are incorporated in the following pages, though we are confident they do not represent the judges' last words. To promote further dialogue, we have deleted references to the names of the particular judges whose remarks are noted, and have instead assigned each judge …

The Propriety Of Prospective Relief And Attorney's Fees Awards Against State-Court Judges In Federal Civil Rights Actions, Stephen J. Shapiro

Akron Law Review

During the past thirty years, the United States Supreme Court has refined a system of immunities for governmental officials when those officials are sued under 42 U.S.C. § 1983 for violation of constitutional rights. The kind of immunity granted varies with the kind of governmental function exercised by the official when committing the alleged constitutional violation. Persons exercising legislative functions are absolutely immune from suit either for damages or for prospective (declaratory or injunctive) relief. Those exercising prosecutorial functions are absolutely immune from damages but may be sued for prospective relief. Those exercising executive functions are granted only a conditional, …

Procedural Defenses Available To The New-Party Defendant: The Necessity Of Obtaining Leave To Amend And Relation Back, F. Thomas Vickers

Akron Law Review

The application of the Rules of Civil Procedure to these various situations has been the subject of much judicial attention. In this regard, two issues have provoked the greatest amount of controversy, to wit: (1) whether leave of court is required prior to amendment of the complaint to add a new-party defendant, and (2) when and under what circumstances may a new-party defendant be brought into a civil action after the statute of limitations applicable to the claim asserted against him has expired. It is upon these questions that this paper is primarily focused.

Microcomputers, Risk Analysis, And Litigation Strategy, Stuart S. Nagel

Akron Law Review

This article covers three important aspects of litigation strategy. The first part is concerned with varieties of sensitivity analysis in civil and criminal cases. Sensitivity analysis refers to how the bottom-line conclusion of going to trial, accepting a settlement, or choosing another alternative is affected by changes in the inputs, which mainly relate to such matters or criteria as (1) the predicted damages, (2) the probability of receiving them, (3) the settlement offered, (4) the litigation costs, and (5) the settlement costs.

The second part deals with the use of decision matrices and microcomputers for analyzing litigation-strategy decisions, including sensitivity …

Nonbank Banks: A Bank Is Always A Bank Unless Of Course It Is A Nonbank Bank: Board Of Governors V. Dimension Financial Corporation, Joseph Reece

Akron Law Review

Board of Governors v. Dimension Financial Corporation is of major significance because it is the first Supreme Court case addressing the issue of whether "nonbank banks" should be regulated under the Bank Holding Company Act of 1956 (BHCA). In rendering the Dimension Financial decision, the Supreme Court may have taken a major step in diffusing the controversy between financial institutions, the Federal Reserve Board, and Congress by determining when a bank is a "bank" for purposes of regulation under the BHCA.

In analyzing the issue before it, the Dimension Court reviewed applicable statutes, relevant case law, and legislative history and …

One Step Forward And Two Steps Backward - Goodwill As A Distributable Asset Of A Law Partnership, Jean Hoffman

Akron Law Review

The Ohio Supreme Court examined both the traditional and modern views of goodwill as an asset in a law partnership and held that it was not against public policy to include measurable goodwill as an asset upon the dissolution of a law partnership. The court also concluded that ethical considerations did not preclude finding goodwill in a law partnership. However, the court held that goodwill could be distributed upon the dissolution of the partnership only when it was specifically provided for in the partnership agreement. This paper will examine the Spayd v. Turner, Granzow and Hollenkamp court's findings and the …

Prince V. St. Francis-St. George Hospital, Inc., Michael Christie

Akron Law Review

This note considers the possible impact on Ohio law of the Prince holding. A review of Ohio's prior position on invasion of privacy suggests that the holding of Prince represents a substantial departure from past decisions in two respects: first, the plaintiffs alleged that their privacy was invaded when information was communicated to only one other person, and second, the invasion of the privacy of one spouse served as the basis for a claim of the other spouse. This apparent departure of Prince from prior decisions is discussed in the context of a physician's duty of confidentiality and defendant's breach …

United States Trust Co. V. I.R.S., Scott D. Brackett

Akron Law Review

During the course of its administration, an estate may receive income that is subject to federal income tax. When, and if, an estate receives such income the executor is faced with the task of filing the estate's income tax return along with a number of related considerations. One of the more important considerations is the allocation of the burden of such tax between the beneficiaries of the estate and the estate itself.

Subchapter J of the Internal Revenue Code provides the mechanism to allocate that burden between the beneficiaries and the estate. Generally, Subchapter J attempts to allocate the tax …

Bad News: Privacy Ruling To Increase Press Litigation, The Florida Star V. B.J.F., Mary Ellen Hockwalt

Akron Law Review

This note analyzes the history and precedent upon which the Court relied in reaching Florida Star's "harsh outcome." Next, the note discusses how the Court, by refusing to extend its holding beyond the facts of the case and give broad Constitutional protection to publications of truth, failed to provide lower courts with any guidance in deciding future invasion of privacy actions. Finally, the note examines the Court's balancing test: weighing the privacy interests of a crime victim against the newspaper's freedom to print truthful information.

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Cantwell Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

Procuring Trial Testimony From Corporate Officers And Employees: Alternative Methods And Suggestions For Reform, Richard J. Oparil

Akron Law Review

This article discusses the situation under the current Federal Rules of Civil Procedure, including some alternative methods of obtaining testimony at trial. The article then discusses various ways the problem could be solved through rule changes to help ensure live trial testimony by corporate officials.

The Constutionality Of Punitive Damages: Pacific Mutual Life Insurance Company V. Cleopatra Haslip, Thomas P. Mannion

Akron Law Review

This Note examines the history of the constitutional challenges to the doctrine of punitive damages. Next, this Note explores the Supreme Court's decision in Haslip. Finally, this Note examines the ramifications of the Haslip decision.

The Supreme Court's Impact On Litigation, Stephen L. Wasby

Akron Law Review

The focus of this article is on that segment of the litigation cycle in which lawyers' attention to the Court's rulings affects the cases they bring and how they bring them. To indicate the Court's importance for litigating organizations' existence and functioning, we first explore a set of cases involving the NAACP. These cases, involving the organization's survival, show how the need for organizational maintenance affects an organization's ability to litigate as it would like to do. Drawing on the law of procedure, we next examine cases affecting organizations' ability to bring cases. Then we turn to see how Supreme …

The American Inns Of Court: Preparing Our Students For Ethical Practice, Joryn Jenkins

Akron Law Review

Despite the recognition of the merit and effectiveness of the American Inns of Court concept, and despite the rapid growth of this burgeoning movement, and despite the intrinsic involvement of over one thousand law students and of nearly one hundred law schools affiliated with Inns across the country, many legal educators are unaware of the Inns' existence, purpose, possibilities, and successes. Why should this ignorance be remedied?

Mcintyre V. Ohio Elections Comm'n: "A Whole New Boutique Of Wonderful First Amendment Litigation Opens Its Doors", Mark A. Whitt

Akron Law Review

This Note analyzes the Court's decision in McIntyre. Part II defines the issue presented in the case and provides a general background on disclosure statutes, with particular attention drawn to the Supreme Court's decision in Talley v. California. A brief discussion of various state court decisions post-Talley is also provided. The Statement of the Case in Part III presents the facts, procedural history and holding of the case. Part IV analyzes the Court's holding.

This Note disagrees with the Court's holding for three reasons. First, it argues that the Court misinterpreted the history of anonymous political speech and engaged in …

Newsroom: Logan On Bp Settlement, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Not Treble Damages: Cartel Recoveries Are Mostly Less Than Single Damages, John M. Connor, Robert H. Lande

All Faculty Scholarship

Antitrust law provides treble damages for victims of antitrust violations, but the vast majority of private cases settle. The average or median size of these settlements relative to the overcharges involved has, until now, been only the subject of anecdotes or speculation. To ascertain what we term "Recovery Ratios," we assembled a sample consisting of every completed private U.S. cartel case discovered from 1990 to mid-2014 for which we could find the necessary information. For each of these 71 cases we collected, we assembled neutral scholarly estimates of affected commerce and overcharges. We compared these to the damages secured in …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2014 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, subject matter jurisdiction, arbitration, and civil procedure.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

After an uneventful 2013 on the class action front, the United States Court of Appeals for the Eleventh Circuit tackled an assortment of class action issues during 2014, which often required the court to navigate around a recent wave of Supreme Court precedents affecting that area.

Ethical Responsibility And Legal Liability Of Lawyers For Failure To Institute Or Monitor Litigation Holds, Nathan M. Crystal

Akron Law Review

The ethical and legal basis for subjecting counsel to discipline or liability for failing to initiate or implement litigation holds in connection with ESI exists. Recent important cases, while not imposing discipline or liability on counsel, have continued to lay the ground work for such liability. ...Cases in which counsel are held liable for damages to their clients or subject to discipline for failing to comply with well established ESI discovery obligations will not be long in coming as the new approach to winning litigation through discovery continues to develop.

Interlocutory Review Of Litigation-Avoidance Claims: Insights From Appeals Under The Federal Arbitration Act, Roger J. Perlstadt

Akron Law Review

Part I of this article outlines and critiques current law on stays pending appeal of refusals to enforce purported arbitration agreements. Part II proposes a simple analysis of expected error costs to determine whether to stay litigation pending interlocutory appeal of rejections of litigationavoidance claims. This analysis looks to (1) potential harm to plaintiffs of erroneously staying litigation pending appeal, (2) potential harm to defendants of erroneously refusing to stay litigation pending appeal, and (3) the likelihood of each of those types of harms arising, which is based on the likelihood that the district court’s denial of the litigation avoidance …

Is Meaningful Peer Review Headed Back To Florida?, Brendan A. Sorg

Akron Law Review

This comment lays the foundation to evaluate the sustainability of Amendment 7 post-PSQIA in Part II by first examining medical peer review, its origin, its evolution and why peer review remains important to patient safety. Although many physicians dislike peer review, Congress has acknowledged its importance by making peer review mandatory and by providing the statutory protections to ensure peer review remains meaningful.7 States have followed suit, passing their own laws that provide for the protection of peer review materials. Part II also addresses how Amendment 7 reversed Florida’s historical approach providing broad peer review protection and how this erosion …

What Are Lawyers For?, Daniel Markovits

Akron Law Review

What are lawyers for? What social purposes do lawyers serve? What functions underwrite the special obligations and entitlements that accompany the lawyer’s professional role? I shall try to sketch an answer to these questions, at least with respect to lawyers who function as litigators, in adjudication. The answer will surprise many. Lawyers, I shall argue, do not serve truth or justice, and should not seek them. Instead, lawyers serve to legitimate

New Hardware And Software Innovations (For Volumetric Modeling), A. Keith Turner

Uncovering the Hidden Resource: Groundwater Law, Hydrology, and Policy in the 1990s (Summer Conference, June 15-17)

19 pages (includes illustrations and maps).

Bellwether Trial Selection In Multi-District Litigation: Empirical Evidence In Favor Of Random Selection, Loren H. Brown, Matthew A. Holian, Arindam Ghosh

Akron Law Review

For decades, courts overseeing mass tort litigation have struggled with how to identify the right plaintiffs for early trials. These initial trials, often called “bellwether” trials, are intended to help the parties evaluate the merits of other cases in the same litigation. But a successful bellwether process depends heavily on the method by which the trials are selected. A process that all litigants regard as fair and that results in the selection of plaintiffs who are representative of the claims of other plaintiffs can help to facilitate the resolution of an entire mass tort docket, whereas a process that is …

Inmates’ E-Mails With Their Attorneys: Off-Limits For The Government?, Amelia H. Barry

Catholic University Law Review

The attorney-client privilege is vital to inmates who otherwise have limited opportunities for private communications in prison. Traditionally, inmates have only been able to communicate with their attorneys via in-person visits, phone calls, and mailed letters. As federal inmates have begun using e-mail to converse with their attorneys, courts have had to determine if these conversations are protected by the attorney-client privilege. This Comment discusses courts’ approaches to this question, many of which have found that inmates’ e-mail communications with their attorneys are not privileged because by using the federal prison e-mail system, which warns users that conversations can be …

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

Summary Of Logan V. Abe, 131 Nev. Adv. Op. No. 31 (Jun. 4, 2015), Michael S. Valiente

Nevada Supreme Court Summaries

A party incurs an expense even if a third party pays the expense on the party’s behalf, as long as the party would otherwise be legally obligated to pay the expense. Thus, costs and reasonable attorney fees that a third party paid on behalf of a litigant can be recovered under NRS 17.115(4) and NRCP 68(f)(2). In addition, a party can recover expert witness fees even if the expert did not testify at trial and was not deposed.

The Call To Witness: Historical Divides, Literary Narrative, And The Power Of Oath, Nancy Cook

Marquette Law Review

A decade ago, in her book, Narrative, Authority and Law, Robin West posed these questions: How might we develop a moral sensibility with which to criticize law that is independent of the influence of law? How should we criticize law from a moral point of view, given the influence of law over our moral beliefs? What is the role of narrative in this enterprise?

The “Call to Witness” is an entreaty to look to narratives as acts of witness for a partial answer to these questions. Narratives bring to light the real conflicts underlying court cases and law, the motives …