Litigation Commons^™

Slipping Away From Justice: The Effect Of Attorney Skill On Trial Outcomes, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions-not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Front Loading And Heavy Lifting: How Pre-Dismissal Discovery Can Address The Detrimental Effect Of Iqbal On Civil Rights Cases, Suzette M. Malveaux

Publications

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is often difficult, if not impossible, …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Publications

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Publications

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is …

A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert

Faculty Publications

This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.

Playing Nice: The Dos And Don'ts Of Courtroom Etiquette, Maureen A. Howard

Articles

No matter how brilliant the lawyer, impressive her credentials, thorough her case preparation, or razor-sharp her analytic skills, she risks damaging her case — and her reputation — if she fails to comply with basic courtroom etiquette. There are certain dos and don’ts of courtroom behavior that are understood by seasoned trial lawyers and expected from judges. There are also common courtesies expected by jurors of lawyers who are viewed as professional and credible. A lawyer will undoubtedly learn these behavioral norms in the trenches over time, but she is well advised to have a courtroom etiquette checklist in her …

Liar! Liar! Impeaching A Witness On Cross-Examination, Maureen A. Howard

Articles

There are certain trial moments that can set an advocate’s heart a-flutter. One is the opportunity to show the jury that an adverse witness is not to be trusted. Even better is the chance to expose the witness to be a bald-faced liar.

Welcome to the wonderful world of impeachment. Impeachment is the art of discrediting the witness on cross-examination. There are seven impeachment techniques:

• Bias, interest, and motive

• Contradictory facts

• Prior convictions — FRE 609

• Prior bad acts — FRE 608 (b)

• Prior inconsistent statements — FRE 613

• Bad character for truthfulness — …

Mastering Foolproof Witness Control On Cross-Examination, Maureen A. Howard

Articles

In the wonderfully entertaining and instructive video, The Ten Commandments of Cross-Examination, the late Irving Younger offered this appraisal of lawyers’ ability to conduct cross-exam: “Most lawyers do it badly all the time, no lawyer does it well all the time, and no lawyer in the early stages of his career does it well at all.” Happily, we’ve come a long way since Younger’s grim 1975 assessment, due to the instruction of maestros like Younger, Terrence McCarthy (McCarthy on Cross-Examination), and Larry Pozner and Roger Dodd (Cross-Examination: Science and Techniques). All too often, however, lawyers …

Closing Argument: Connecting The Dots For The Jury, Maureen A. Howard

Articles

A common error made by unseasoned attorneys when giving closing argument is retelling the “story” of their case. Storytelling is best used in opening statement, not closing argument. By the time the jurors hear closing argument, they are well acquainted with the story, because they have heard two opening statements and all the evidence.

Closing argument, as the name suggests, is instead the time to argue. This means that in addition to revisiting the theme(s) presented in opening statement, a lawyer may use rhetorical questions, draw conclusions and inferences from the evidence, discuss the credibility of the witness, examine the …

Opening Statement: Persuading Without Argument, Maureen A. Howard

Articles

A basic rule of trial practice is that a lawyer cannot argue in opening statement. A lawyer who breaks this rule runs the risk of drawing an objection from opposing counsel and having it sustained by the judge. Of course, as with most rules of trial practice, a lawyer can get away with de minimus violations in most cases and wholesale disregard in cases where opposing counsel—whether as a result of inexperience, inattention or trial strategy—doesn’t object. Although simple in concept, lawyers commonly falter in practical application of the “no argument” rule in two ways: 1) failing to understand what …

Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle

Scholarly Articles

In the 1990s, when the Internet was still considered novel, courts struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. So when Zippo Manufacturing v. Zippo DOT Com established an apparently easy-to-apply test for deciding whether a defendant’s virtual contacts are sufficient for personal jurisdiction, many courts embraced it . To date, however, the Federal Circuit has neither adopted nor rejected the Zippo approach, leaving litigants and lower courts in patent cases with little guidance on the issue. Although a recent decision suggests that the Federal Circuit recognizes the limitations of Zippo, it …

New Options For State Indirect Purchaser Legislation: Protecting The Real Victims Of Antitrust Violations, Robert H. Lande

All Faculty Scholarship

In Illinois Brick v. Illinois Co., the Supreme Court held that, under federal antitrust law, only direct purchasers have standing to sue antitrust violators for damages. Since most products travel through one or more intermediaries before reaching consumers, this decision left most true victims of illegal cartels and other antitrust violations without a remedy to compensate them. Illinois Brick Co. also had the effect of undermining the objective of optimal deterrence of antitrust violations-because direct purchasers often have a suboptimal incentive to sue, the Court's decision often allows violators to escape paying significant damages. For this reason firms are insufficiently …

Direct Examination: Lawyer As Director, Maureen A. Howard

Articles

A trial lawyer presenting her case in chief through direct examination is somewhat like a film director: the lawyer thoroughly analyzes the case and develops a plan for the most effective way to present the case to the jury to best advance her theme and theory. Just as no script would play out on film the exact same way in the hands of different directors, no case would be presented in exactly the same way by different trial lawyers. Yet there are constants to be found in the steps effective trial lawyers take during their case in chief when presenting …

Rethinking Summary Judgment: Revamp Required?., Mak Mun Luan

Student Works (2010-2019)

Summary judgment has been touted as an effective tool for disposing of litigations in timely and cost effective manners, as disputes between litigants may be resolved without the need of full trials and the usual pre-trial processes associated with civil litigation. However, the tension between the potential for this procedure to produce a final judgment versus the litigants' entitlements to full trials, illustrates how reform in this procedure may be crucial. This paper sought to outline the current laws with regards to summary judgment in Malaysia and explore ways in which it may be revamped. For comparison, summary judgment procedures …

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

Fee Shifting In Litigation: Survey And Assessment, Avery W. Katz, Chris William Sanchirico

Faculty Scholarship

Should the party who loses in litigation be forced to pay the legal fees of the winner? This paper surveys the economic literature regarding the effects of legal fee shifting on a variety of decisions arising before and during the litigation process. Section 2 provides a brief survey of the practical situations in which legal fee shifting does and does not arise. Section 3 analyzes the effects of indemnification on the incentives to expend resources in litigated cases. Section 4 examines how indemnification influences the decisions to bring and to defend against suit, and Section 5 assesses its effects on …

Litigation Governance: Taking Accountability Seriously, John C. Coffee Jr.

Faculty Scholarship

Both Europe and the United States are rethinking their approach to aggregate litigation. In the United States, class actions have long been organized around an entrepreneurial model that uses economic incentives to align the interest of the class attorney with those of the class. But increasingly, potential class members are preferring exit to voice, suggesting that the advantages of the U.S. model may have been overstated. In contrast, Europe has long resisted the United States's entrepreneurial model, and the contemporary debate in Europe centers on whether certain elements of the U.S. model – namely, opt-out class actions, contingent fees, and …

Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki

Faculty Scholarship

In addition to judicial education programs that the Law and Economics Center conducts, we also have a division that focuses on public policy research, known as the Searle Civil Justice Institute. In November, we held a public policy roundtable where we commissioned a variety of research and brought together a group of experts, both academic and practitioner experts, to discuss the issue of balancing the appropriate roles of markets, litigation, and regulation. And the notion there is that each one - markets, litigation, and regulation - can and probably should play a role in addressing various consumer harms.