Labarbera V. Wynn Las Vegas, Llc, 134 Nev. Adv. Op. 51 (Jul. 19, 2018),
2018
University of Nevada, Las Vegas -- William S. Boyd School of Law
Labarbera V. Wynn Las Vegas, Llc, 134 Nev. Adv. Op. 51 (Jul. 19, 2018), Casey Lee
Nevada Supreme Court Summaries
The Court determined that the district court erred when it precluded the appellant from testifying by video conference from Italy and when it cited the incorrect legal standard to exclude evidence of appellant’s intoxication.
Trial Practice And Procedure,
2018
Mercer University School of Law
Trial Practice And Procedure, John O'Shea Sullivan, Tala Amirfazli, Adelyn B. Boleman
Mercer Law Review
The 2017 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 civil procedure, statutory interpretation, and federal subject-matter jurisdiction.
Getting Schooled: The United States Court Of Appeals For The Eleventh Circuit Holds That The Federal Government Need Not Show "Good Cause" Before Settling And Dismissing A Pending Qui Tam Action Against College,
2018
Mercer University School of Law
Getting Schooled: The United States Court Of Appeals For The Eleventh Circuit Holds That The Federal Government Need Not Show "Good Cause" Before Settling And Dismissing A Pending Qui Tam Action Against College, Laura Leigh Fox
Mercer Law Review
In United States v. Everglades College, Inc., a case of first impression in the United States Court of Appeals for the Eleventh Circuit, the court interpreted the good cause intervention requirement of § 3730(c)(3) of Title 31 of the United States Code (U.S.C.). The court was asked to determine whether the United States needed to show "good cause" for intervening in a qui tam action brought by two private individuals under the False Claims Act (FCA). The government, after originally declining to proceed with the FCA action itself, eventually decided to "intervene" while the action was pending on the …
"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
St. Mary's Journal on Legal Malpractice & Ethics
U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …
Dirty Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts,
2018
Villanova University Charles Widger School of Law
Dirty Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill
Faculty Publications
U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both (i) explain why …
Access To Justice: Impact Of Twombly & Iqbal On State Court Systems,
2018
The University of Akron
Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz
Akron Law Review
Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact …
Long Gone! When To Recall Discharged Juries,
2018
The University of Akron
Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini
Akron Law Review
In June 2016 the Supreme Court ruled in Dietz v. Bouldin that federal judges in civil cases could, in order to amend a flawed verdict, reuse a jury that was discharged and long gone. Under this ruling, by the time the court or the attorneys recognize the inconsistent ruling, the jury could and likely will have been profoundly prejudiced, therefore violating the claimant’s right to a fair trial afforded to him by our democratic system of justice. The prejudice test implemented by the Court in Dietz is not detailed enough to tighten the reins on judicial discretion and ensure that …
The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections,
2018
The University of Akron
The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman
Akron Law Review
The Sedona Principles and Commentaries in the Third Edition (2018) are worthy successors to those of the Second Edition (2007) and, in many respects, a substantial improvement. Principles 2, 5 and 8 build on the 2015 amendments to Federal Civil Rules, including amended Rule 26(b)(1), in advocating an increased emphasis on proportionality across the full spectrum of e-discovery activity. They also reflect a more nuanced view of Rule 26(b)(2)(B), added by the 2006 Amendments to deal with undue burden or costs, as does Principle 13 in regard to cost allocation, which recommends use of amended Rule 26(c) to the exclusion …
U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis,
2018
The University of Akron
U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran
Akron Law Review
U.S. discovery has long been a troublesome issue between the U.S. and civil-law nations. The passage of the Hague Convention on Evidence might have brought much-needed relief, but U.S. courts minimized its effects, favoring continued use of the Federal Rules of Civil Procedure. Civil-law states passed blocking statutes or their equivalents as they sought to protect what they considered to be fundamental values of privacy and national sovereignty. With the rise of transnational litigation, Section 1782 discovery was intended to provide assistance to foreign courts and parties in litigation abroad by opening certain discovery channels in the U. S. to …
Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments,
2018
The University of Akron
Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd
Akron Law Review
Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.
Initial Disclosures: The Past, Present, And Future Of Discovery,
2018
The University of Akron
Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman
Akron Law Review
This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest a …
Discovery Innovation: Discovery Reform And Federal Civil Rulemaking,
2018
The University of Akron
Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman
Akron Law Review
Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers with better …
Self-Destruct Apps: Spoliation By Design?,
2018
The University of Akron
Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak
Akron Law Review
The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by design and …
Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases,
2018
The University of Akron
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,
2018
The University of Akron
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,
2018
The University of Akron
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,
2018
The University of Akron
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,
2018
Brooklyn Law School
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?,
2018
Texas A&M University School of Law
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,
2018
St. Mary's University School of Law
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 …
