Trade-secret litigation poses a problem distinct from other types of intellectual property litigation. In litigation over patents, copyrights and trademarks, the asserted intellectual property is publicly filed and its specific contours are clearly identified.
I write this article having officially completed, or as I might call it, survived, my first year as an associate at a law firm. Needless to say, it has been a tough year, full of change, hard work, and most of all, learning.
Several months ago, Bob discovered an arbitrator in one of his cases had a business relationship with the adverse party. Bob was smart enough to know the arbitrator probably would be partial to the adverse party.
The proposed amendments to the Federal Rules of Civil Procedure, and specifically Rule 26(b)(1)'s proposed proportionality language, have been the source of much debate during the past year. The period for public commentary on the proposed amendments is now closed.
The attorney-client privilege continues to be a frequently litigated issue in Pennsylvania. In 2011, the Pennsylvania Supreme Court decided Gillard v. AIG Insurance, 15 A.3d 44 (Pa. 2011), which affirmed that the attorney-client privilege is a "two-way street" and confirmed that all communications between an attorney and the client are privileged.
More than 20 years have now passed since U.S. District Judge Robert S. Gawthrop III of the Eastern District of Pennsylvania handed down the seminal opinion on attorney conduct during depositions in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and while its advices and admonitions remain instructive to this day, the impact of the decision upon attorney conduct in Pennsylvania is up for debate.
Readers of this series on ADR in The Legal over past years have undoubtedly been struck by the strong presumption in favor of the arbitrability of disputes under both the Federal Arbitration Act (FAA) and the decisions of state courts.
Last month, if you had asked attorneys on the streets of Philadelphia whether they thought an action could be brought against Mercedes-Benz USA, the American distributor of Mercedes vehicles in the United States, in a Pennsylvania court for conduct occurring outside the state, most would have said yes. Last month, they probably would have been right, as Pennsylvania courts would have likely exercised jurisdiction over MBUSA based upon the substantial and continuous business MBUSA conducts every day in the state.
While litigation and arbitration share many similarities, they also differ in several fundamental respects. With its streamlined procedures, arbitration offers significant time and cost efficiencies, as well as confidentiality, flexibility, less formality and greater control.
Bob knows arbitration can be a quick process. One impediment: those darn appeals. Even when he wins at arbitration (and he occasionally does win), Bob and his client still have to face petitions to vacate the arbitration award.
Even truthful statements can sometimes create a misleading impression. Take these two sentences as an example: "Company A's decisions were made in New York. Banker B, who represents Company A, is located in New York." Do these two sentences imply a different meaning together than they do apart? How about this statement: "The apple that he sold was not completely rotten." Is this a truthful statement if the apple was pristine?
The American Arbitration Association (AAA) has revised its Commercial Arbitration Rules. The revised rules, which apply to any claim filed on or after Oct. 1, 2013, are designed to enhance significantly the efficiency of the arbitration process. For a full set of the rules, visit the AAA's website at www.adr.org.
A document dump—where a party responds to a document request by unfairly producing as many debatably responsive documents as possible in an effort to bury the opposition in paper—is one of the oldest of litigation discovery gamesmanship tricks.
As members of the legal community continue to strive to provide the best possible value and service to their clients, solo practitioners and international law firms alike have recently begun turning to predictive coding in an attempt to increase productivity while decreasing the costs associated with document review and production.
The mandatory arbitration clause: a term that sends chills down the backs of many plaintiff nursing home attorneys. If you handle nursing home cases you have surely been faced with mandatory arbitration clauses and have had to explain to families why it is unlikely that their case will be heard in a court of law.
The Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) created the "limited tort" option in this commonwealth, which limits a person who elects for that option from recovering non-economic damages, with certain exceptions.
Today, drivers increasingly utilize electronic devices while driving. While in the past a driver's attention may have been distracted by the radio, irritated children in the back seat, snacks and bulky paper maps, modern travelers confront a whole array of potentially distracting electronic devices.
Jurors expect information to be presented in a way that accommodates them. And with today's jury groups being composed of more Generation X and Y-ers - two groups that thrive in an environment where news and information are presented in a fast-paced, brief manner - it is imperative that information in the courtroom follows suit, or it will be lost on the audience.
Hardball tactics are common in business. Often, the law not only does not prohibit such tactics, it encourages them in the name of vibrant competition and efficiency. However, there are lines that cannot be crossed, at least not without creating risks of liability.
In many commercial disputes, the proper measure of damages is lost profits. Easily stated, the loss would be the profit that the injured party would have earned "but for" the alleged wrongdoing of the defendant.
Several articles in this ADR series in The Legal have pointed out that in agreeing to arbitration, counsel must consider whether the hearing is to be conducted pursuant to rules of evidence. Often ignored, however, is the extent to which the arbitrator will be constrained by such rules.
Cases these days seem to involve more paper than ever. While detailed documentation may generally be a good thing, it has also resulted in an additional seat at the deposition table just for all the documents.
In B.H. v. Easton Area School District, the Third Circuit decided that, absent disruption, public school principals may not restrict "plausibly political" student speech or speech with a social message, unless the language is "plainly lewd." This article explains the importance, including the controversy, of the B.H. holding.
Bob's client, Roger, came to Bob with a tale of woe. More than five years ago, Roger entered into a service contract with Alan. Roger completed the requested work, Alan paid the amount due, and the matter was over — seemingly.
The proposed amendments to the Federal Rules of Civil Procedure present not only a significant shift in the scope of discovery allowed in federal court, but also would usher in a new era of other limitations on discovery.
In many cases, the distinction between litigation and arbitration has become blurred as more litigation practices are infused into arbitration. Clients thus lose the cost and time savings that they sought by selecting arbitration in the first place.
In Marino, Robinson & Associates v. Robinson, Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. entered summary judgment dismissing the case against a defendant who allegedly violated a nonsolicitation clause.
Summertime. Time to watch a ballgame, take a walk in the park or a swim in the lake. Most of these activities can be enjoyed on public parks and on public lands. Unfortunately, sometimes visitors to these areas suffer injuries while engaging in these common summertime activities. If an injury was caused by a dangerous condition on the property, how does an injured victim overcome sovereign, local and the recreational use of land and water immunities afforded governmental entities to successfully make a claim for damages? If injured on property owned by a local or state agency, proving negligence and recovering damages is truly an uphill battle.
Recent news articles have proclaimed that housing prices are beginning to rebound. Even hard-hit locations like Las Vegas are reporting rising home values compared with last year. Despite this very welcome turnaround, many homeowners are not out of the financial woods yet.
The right of publicity has traced a long arc since Hugo Zacchini, the human cannonball, was shot from a cannon in 1972. That year, a TV news report included Zacchini's entire act from ignition to landing without his permission; Zacchini then sued claiming that his right of publicity had been violated.
Those of us who represent property owners are no strangers to dealing with local governments that demand exorbitant monetary concessions as a condition to approving our clients' land-use applications, including where the exaction has virtually no demonstrable connection with the proposed development.
Courts have been dealing with many of the challenges at the forefront of the social media debate for centuries. These include determining how to make sure jurors aren't prejudiced by outside information and how much litigators can learn about jury members prior to voir dire. These aren't new questions or challenges. They’re just being brought into sharper focus.
You are walking out of the bar association building when you hear your name. Turning, you recognize Jane, a senior litigator in the firm you recently left to start your own practice. She catches up to you and asks how things are going. You worked with Jane on several cases and respect her highly, so when she invites you to lunch, you accept.
In my 20-plus years of assessing damages in personal and business disputes, I have been involved in many different types of cases. In some cases, discovery takes a scorched-earth approach, and in others, it takes "a scorched earth, and then some" approach.
The Chamber of Commerce, certain members of the U.S. Supreme Court and other ersatz "tort reformers" love to bash class actions and the lawyers who file them. But what do class action consumers say when they recover from one of the very few class cases to actually go to trial? Judging from the letters in one such case, it is a resounding "thank you."
Lawyers periodically select Bob as a neutral arbitrator. Bob knows he has only one shot as the arbitrator. Something about the functus officio doctrine that limits his ability to revisit issues once he makes his final decision. S
In K.A. v. Pocono Mountain School District, 710 F.3d 99 (3d Cir. 2013), the U.S. Court of Appeals for the Third Circuit decided, as a matter of first impression, that the advertising material of third parties constitutes "student speech," if distributed by a student in the public school.
Parties often agree to arbitration assuming that the process is the functional equivalent of a nonjury court trial and differs from it only in that it allows them to select their judge, time and place of hearing.
Distracted driving due to mobile phone use while behind the wheel is a dangerous and prevalent problem. In 2010, nearly 20 percent of all motor vehicle accidents were attributed in some way to distracted driving.
Workplace conflict can be very expensive for businesses — and that expense has been increasing over the last 10 years, due to higher jury verdicts, attorney fees and other costs, as well as an increase in the number of these conflicts. Businesses can reduce their liability in this area by taking steps to prevent conflicts before they arise, and to resolve them as early as possible, before they grow into full-blown disputes.
Every so often Pennsylvania appellate courts hand down a decision that addresses several novel and/or uncommon legal issues in one decision. When the courts render such a legal gem, the legal community should be aware of the decision. One such appellate decision is the state Superior Court's opinion in the recently decided case of Shiner v. Ralston, No. 1791 MDA 2011, (Pa. Super. Feb. 22, 2013). In Shiner, a panel of the Superior Court addressed several interesting legal issues: (1) the distinction between the "sudden emergency doctrine" and the "sudden medical emergency defense"; (2) the defendants' burden of proof in order to obtain summary judgment where they seek judgment based upon an affirmative defense; (3) the proof required for expert testimony where the party offering the testimony does not have the burden of proof; and (4) the moving party's ability to obtain summary judgment under the Nanty-Glo rule where it relies upon its own witnesses' testimony.
Consider the following scenario — your business is one of many sued in a class action lawsuit for allegedly conspiring to overcharge consumers of baby products. After five years of costly litigation, all of the defendants decide to settle.
In personal injury and wrongful death matters, economic losses associated with a loss of earnings capacity and fringe benefits are claimable. Fringe benefits are typically a category of offerings by an employer to an employee for items other than regular salary and wages. The Bureau of Labor Statistics tracks various fringe benefit costs by employers that include (1) legally required costs associated with payroll taxes, (2) costs related to supplemental pay for vacation, sick time, bonuses and overtime, (3) insurance benefits, which may include health care coverage or premium payment assistance, group life insurance, disability insurance and unemployment insurance, and (4) retirement and pension benefits.
Bob has had it with adversaries who act in bad faith in court-ordered mediation and get away with it. Last week, Bob and his client went to a court-ordered mediation session. Bob's client, the plaintiff in a commercial dispute, sought seven-figure damages arising out of the defendant's "shocking" and "ill-considered" breach of contract.
There is much that the latest developments in neuroscience can teach legal professionals about negotiations. This is particularly true when it comes to how people process information and make decisions. Mediators and lawyers alike can benefit particularly from what neuroscientists have revealed about priming and framing, two potent filtering mechanisms that can either inflame the emotional barriers to settlement or potentially defuse them.
Recently, I was selected to serve as juror in a criminal case. Despite my surprise and initial trepidation (I had work waiting for me back at the office), serving as a juror proved to be a terrific learning experience. While serving as a juror in a criminal case, this civil trial attorney learned, from how I felt as well as through my observations of the other jurors, the following seven important things about trying a case that I may not have otherwise appreciated.
Arbitrator selection represents one of the most critical acts undertaken by any party to a dispute. After all, the arbitrator is empowered to render an unassailable decision that is rarely subject to appellate review.
Although there is abundant case law in Pennsylvania discussing remedies available to an innocent party when the other party destroys evidence, there is no Pennsylvania decisional law that addresses the discoverability of "litigation hold" notices from an attorney to his or her client, or of any other communication between attorney and client that addresses the obligation to preserve evidence. This article addresses the growing case law emanating from district courts within the Third Circuit that permit limited discovery of such communications.
People will tell you that a life is priceless. But in a practical sense, a life has both economic and non-economic value to individuals, loved ones and friends. In the damages world, the value of a life is really a question of economic value.
The past few years have witnessed a sharp increase in the use of the aggregate settlement as the go-to device for globally resolving mass tort claims. However, as with most new devices, the excitement over the novelty can sometimes outpace ethical considerations.
When Pennsylvanians are seriously injured or their loved ones die, our citizens turn to attorneys for answers and solutions. Pennsylvania common law guarantees our citizenry a basic right to recover damages for both personal injuries and wrongful death. These very broad civil rights allow injured victims every opportunity to obtain full and fair compensation. Yet, as it turns out, that doesn't always happen. While fair recovery often depends on the facts of a case, attorneys too often neglect some avenues of recovery or choose a methodology to present their client's claim that misses the mark in maximizing recovery.
This is the 12th and final article in this series on mediation advocacy. The 11th article, "Mediation Advocacy: Preparing to Avoid an Impasse," published December 21, 2012, provided tips on how to avoid and address an impasse.
Bob knows arbitration does not always save time compared to litigation and that it does not always cost less than litigation. Plus, it may not always be confidential, which is one of its supposed attractions.
This is the 11th article in this series on mediation advocacy. The 10th article, published November 21, addressed the pre-mediation groundwork needed in preparation for signing a terms sheet or a settlement agreement at the end of the mediation session.
At virtually every mediation, the mediator or counsel advise the clients that mediation communications are privileged, so that parties may feel comfortable in offering concessions or otherwise making statements, as disclosure cannot be compelled in any subsequent proceeding.
This is the 10th article in this series on mediation advocacy. This article discusses the kind of groundwork counsel should perform to be ready for signing a terms sheet or a settlement agreement at the end of the mediation session.
Calculating damages related to an impaired business can be a difficult task. No one has a crystal ball regarding the future. However, the valuation approach allows for a supportable and hopefully reasonable prediction of what would have happened had an impairment not occurred.
Expert witnesses can be crucial in trials involving highly technical topics, such as banking, technology, engineering, medicine or insurance. Working with your expert to create trial graphics to simplify and illuminate these technical topics is also crucial; without them, even the most attentive jury members may get confused and stop paying attention.
In his article in The Legal Charles Forer explained that if a party to an arbitration agreement retains the right to make a retroactive change, the agreement to arbitrate may be considered illusory and no longer binding.
Many of the ADR articles that have appeared in The Legal over the past few years have highlighted the often-blurred understanding in statutes and court decisions of the concept of confidentiality as it relates to mediation.
The misuse of antipsychotic drugs within the nursing home population is, unfortunately, a common and long-standing practice that puts elderly residents at increased risk of death. Fortunately, this practice has come to the forefront and numerous organizations are implementing policies in order to reduce and/or eliminate it. Reduction in the use of antipsychotic medications within our nursing home populations can not only dramatically reduce costs but it will also result in better quality of care for patients.
This is the eighth article in this series on mediation advocacy. The seventh article, published July 25, discussed the strategic uses of pre-mediation submissions. The article continued a scenario in which the parties, Widgetronics and DesignMetrics, entered into a contract containing a dispute resolution clause and became embroiled in a dispute over Widgetronics' alleged wrongful termination of the contract. During the preliminary conference call with the mediator, the parties and mediator formulated a framework for the mediation session, including the initial joint session. This article provides tips on effective advocacy for that initial session.
Forensic accountants are frequently brought in to cases where they are asked to quantify economic damages, based on the alleged acts of one or more parties, or respond to another expert's calculation. One of the first questions to be asked is, "Your income went down by how much?"
This is the seventh article in a series on mediation advocacy. The sixth article, published June 29 ("Mediation Preparation: Don't Let the Informality Fool You"), discussed how to prepare for the mediation.
This is the sixth article in this series on mediation advocacy. The fifth article, published May 18, discussed how to prepare for the preliminary planning meeting with the mediator and opposing counsel.
By Marc S. Raspanti, Pamela C. Brecht and James F. Wyatt
North Carolina's False Claims Act has a more stringent "first-to-file" provision than its federal counterpart. The federal False Claims Act's first-to-file provision is intended to prevent potential relators from filing parasitic suits based on the same allegations that underlie an already pending qui tam suit.
By Marc S. Raspanti, Pamela C. Brecht and James F. Wyatt
Since the passage of the North Carolina False Claims Act in 2009, which became effective Jan. 1, 2010, North Carolinians have had a powerful weapon to combat fraud against their tax dollars and to return these funds to the state coffers. At the time it was passed, North Carolina joined 25 other states and the District of Columbia by enacting its own False Claims Act.
Picture this: A person walks into an electronics store and looks at a number of brand new laptops, studying all the features, capacity, speed, screen visibility, etc. After studying about 10 different models, she settles on one that, cost-wise, is in the middle of the pack. The laptop is purchased and our customer goes home, excited to get started with her new gadget. Once home, she plugs it in and gets it open to the startup screen — only to find that the laptop lacks both Internet and printer software. Confused and confounded, our purchaser calls the store and asks: "What is going on?" To which, the sales manager responds: "Oh, you wanted those items? Well, sure, they're optional — but not to worry, as we can install those for an extra charge."
It has been said that cases are won or lost at the deposition stage of the civil litigation process. The deposition represents the one pretrial opportunity to assess the opposing party's demeanor as well as its entire case on a face-to-face basis.
To say the least, Bob has run into problems when he represented clients in arbitrations. Not that he ever did anything wrong. Bob attributed the problems to the "system." More precisely, the "arbitration system."
From a cost-benefit analysis, the defense's total out-of-pocket cost to hire a damage expert in all cases where significant damages are sought would likely not even approach the potential reduced award that could occur in just one case. Think about the $280 million potential savings previously referenced. But even a potential benefit savings of $100,000 would greatly outweigh the cost of an expert in most cases.
This is the fourth article in this series on mediation advocacy. With both parties ready to proceed to mediation, the next step is the selection of a mediator — a key step in the process, as a good mediator will increase the likelihood that the mediation will succeed.
What happens in arbitrations where the Federal Arbitration Act is not otherwise implicated or controlling, such as a local construction or accident case? Do arbitrators empowered under state law have the authority to order such pretrial discovery from non-parties?
On March 13, at a CLE program hosted by the Association of Business Trial Lawyers, a panel composed of U.S. District Court Judge Charles Breyer of the Northern District of California, Morrison & Foerster's James Brosnahan, Cotchett Pitre & McCarthy's Joseph Cotchett and jury consultant Carrie Mason discussed techniques on delivering the best opening statement.