Expert Columns

Litigation

Early Identification of Trade Secrets Is the Best Defense

By Kenneth Racowski |

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.

Lessons I've Learned While Being a First-Year Associate

By Emily Ashe |

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.

Seeking Arbitrator Disqualification Before Arbitration Award

By Charles F. Forer |

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.

Proportionality to Replace Expansive Discovery in Rule 26(b)(1) Amendments

By Shannon McClure Roberts and Molly Campbell |

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.

Waiver of Attorney-Client Privilege Is a One-Way Street

By Madeline M. Sherry and Stephen J. Finley Jr. |

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.

A Nonbinding but Persuasive Foundational Text in State Court

By Asher Brooks Chancey |

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.

When Do Superseding Contracts Impact Right to Arbitrate?

By Abraham J. Gafni |

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.

When Are Physicians Liable for Injuries to Nonpatients?

By Stephen J. Pokiniewski Jr. |

Under Pennsylvania law, a physician may be held liable only under very limited circumstances for injuries sustained by nonpatients.

Grimes: Another Look at Reliance and Loss Under Pa.'s UTPCPL

By Charlotte E. Thomas |

The Pennsylvania Supreme Court is taking another look at justifiable reliance and "ascertainable loss" under Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL).

Does Daimler Mark the End of Forum Shopping?

By Will Sylianteng |

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.

Formulating a Mindset to Achieve More Effective Arbitrations

By Harrie Samaras and Judy Weintraub |

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.

Landowners' Duty to Provide Security as Crime Increases

By Miriam Barish |

Violent crime is on the rise nationally in the United States, and is most prevalent in big cities, including Philadelphia.

Are Non-Appealability Clauses in Arbitration Effective?

By Charles F. Forer |

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.

Are There Restrictions on the Arbitrator Serving as Mediator?

By Abraham J. Gafni |

The different roles of arbitrators and mediators are well recognized in dispute resolution.

Application of Truth Defense Not Always Straightforward

By Steven T. Voigt |

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?

Reviewing the Revised AAA Commercial Arbitration Rules

By Harrie Samaras and Judy Weintraub |

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.

Proposed Federal Rules Will Discourage Document Dumps

By Michael Murphy |

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.

When Are Arbitration Agreements Preempted by the FAA?

By Abraham J. Gafni |

Decisions of the U.S. Supreme Court in recent years have discouraged many parties from seeking to invalidate arbitration agreements on the ground that they are unconscionable under state law.

Joseph Fantini

Predictive Coding: Revolutionary or a Fading Trend?

By Joseph Fantini |

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.

At What Point Can You Seek to Disqualify an Arbitrator?

By Charles F. Forer |

Bob's client sold a portion of its business to Rabbit Corp. At Bob's urging, the client agreed to arbitrate any claims arising out of the sales agreement. A claim arose shortly after the sale.

Arbitration Clause Not Applicable to Wrongful-Death Claim

By Shayna Slater |

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.

Availability of Summary Judgment for 'Serious Injury'

By Michael Heyden |

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.

Punitive Damages for Electronic Device Use While Driving

By Patrick McDonnell and Kailee Farrell |

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.

The Vital Role of Graphics in the Courtroom

By Ron Kurzman |

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.

Rules of the Game: Tortious Interference With Contract

By Kevin P. Allen |

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.

Mock Arbitrations: A Way to Fine Tune Your Presentation

By Harrie Samaras and Judy Weintraub |

You could have the greatest case, but if you don't present it effectively to the arbitration panel, you might not attain the results you want—or that your client needs.

Understanding Cost Accounting to Determine Lost Profit

By William E. Harris |

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.

Do Arbitrators Have Power to Exclude Relevant Evidence?

By Abraham J. Gafni |

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.

Preparing for Depositions in the New Age of Technology

By Melissa Fry Hague |

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.

Increased Protection for Expression in Public Schools

By John E. Freund III and Keely Jac Collins |

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.

Does the Statute of Limitations Apply in Arbitration?

By Charles F. Forer |

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.

'Proportional' Discovery Proposed for Fed. Civil Cases

By Joseph F. Rich |

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.

Are Time and Cost Efficiencies in Arbitration a Fantasy?

By Harrie Samaras and Judy Weintraub |

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.

Flexibility of Arbitrators in Shaping Creative Remedies

By Abraham J. Gafni |

Increasingly, attention has been drawn by courts and commentators to arbitrators' authority and the scope of awards they may issue.

But He Asked Me First

By William MacMinn |

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.

Premises Liability Claims That Occur on Recreational Areas

By Christopher Marzzacco |

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.

Right Time to Muddy the Waters Over Lien Stripping, Again

By Greg T. Kupniewski |

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.

Publicity Rights of Athlete Violated by Video Avatar

By Michael I. Rudell and Neil J. Rosini |

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.

What Do You Need to Ask About the Judge Assigned to Your Case?

By Michael Eisenbaum |

Do you know the answer to the question posed above? If you don't, you could be in for unpleasant surprises as your lawsuit progresses and in the ultimate judgment issued by the court.

Court Extends Constitutional Protections to Land Owners

By Marc B. Kaplin and Pamela M. Tobin |

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.

Tips for Dealing With New Technology in Jury Trials

By Howard D. Scher |

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.

Top 10 Mistakes to Avoid Making in Mediation Advocacy

By Harrie Samaras and Judy Weintraub |

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.

Drafting Exculpatory Releases After Chepkevich and Tayar

By Nancy Green |

The Pennsylvania Supreme Court has decided two cases important to business owners and operators of recreational programs and facilities.

Taking a Proactive Approach to Damages Discovery

By William E. Harris |

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.

Consumers Send Thank-You Notes for Class Action Recovery

By Michael D. Donovan |

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."

Demystifying Lack of Consistent Pre-emption Rulings

By Adrianne Walvoord Webb |

From litigating pharmaceutical and medical device cases to litigating worker safety and motor vehicle cases, pre-emption is an issue.

Difference Between Post-Judgment, Post-Award Interest

By Charles F. Forer |

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

Untangling Student, Third-Party Speech in Public School

By Keely Jac Collins |

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.

Are There Limits to an Arbitrator's Award of Interest?

By Abraham J. Gafni |

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.

Employers Vicariously Liable for Distracted Driving

By Michael Schafle |

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.

Taking Steps to Reduce the Cost of Workplace Conflict

By Harrie Samaras and Judy Weintraub |

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.

Can Judgment on Your Arbitration Award Be Entered in Court?

By Charles F. Forer |

Bob may be interested in the theoretical issues of the law. His clients? They want results. But they do not want to pay a bundle to get those results.

Using the Sudden Medical Emergency Defense in Pennsylvania

By Stephen J. Pokiniewski Jr. |

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.

Questioning Cy Pres Awards After Class Action Settlements

By George J. Krueger and Lauren Winchester |

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.

An Examination of Claimed Lost Social Security Benefits

By William E. Harris |

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.

Considering the Mediation Privilege in Awarding Legal Fees

By Abraham J. Gafni |

To what extent may mediation impact an award of attorney fees as part of the costs in litigation?

Discussion of Removal Issues Arising From Arbitration Cases

By Patrick McDonnell and John McConnell |

Compulsory arbitration cases historically posed problems for diverse defendants seeking to remove a personal injury case to federal court.

Using Early Case Assessment as a Tool for Triaging Disputes

By Harrie Samaras and Judy Weintraub |

When a dispute first surfaces, the extent of the risk to an organization and the level of resources required to resolve it may not be readily apparent.

Can Sanctions Be Applied for Bad Faith in Court-Ordered Mediation?

By Charles F. Forer |

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.

What Neuroscience Can Teach Legal Professionals About Settlement Negotiations

By Jane C. Greenspan |

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.

Seven Things a Civil Trial Attorney Learned While Serving as a Juror

By Bonnie M. Hoffman |

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.

Pennsylvania Damages Law: Disregard of Economic Principles

By Samuel J. Kursh and Scott Measley |

In Helpin v. Trustees of the University of Pennsylvania, the Pennsylvania Supreme Court continued its disregard of economic/financial principles and decades of economic data.

Selecting Non-Neutral Arbitrators in a Multiparty Dispute

By Abraham J. Gafni |

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.

Discoverability of Litigation Hold Notices in Pennsylvania

By Don Foster |

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.

Reasonably Determining the Economic Value of a Life

By William E. Harris |

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.

Aggregate Settlements and Ethical Considerations in Mass Tort Claims

By Marina Corodemus and Renee Henderson |

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.

Maximizing Damages: Personal Injury and Wrongful Death Actions

By Larry E. Coben |

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.

After the Mediation Session: Where Do You Go From There?

By Judy Weintraub and Harrie Samaras |

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.

Arbitrator Unavailability During Arbitration Proceedings

By Charles F. Forer |

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.

Mediation Advocacy: Preparing to Avoid an Impasse

By Judy Weintraub and Harrie Samaras |

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.

Beware of Waiving the Mediation Communications Privilege

By Abraham J. Gafni |

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.

Wrongful Birth and Life Claims Under Pennsylvania Law

By Stephen J. Pokiniewski Jr. |

In 1988, the Pennsylvania legislature passed and then-Governor Robert P. Casey signed into law what is now codified as 42 Pa.C.S. Section 8305. Section 8305, in relevant part, sets forth that:

Mediation Advocacy: Taking Aim at Settlement

By Harrie Samaras and Judy Weintraub |

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.

Getting Away With Fraud During the Mediation Process

By Charles F. Forer |

Bob's client, Allan, was a whiner. Always complaining about his lawsuit. Forever knocking Bob about his inability to end it quickly. Upset that Bob did not apply scorched-earth tactics.

How to Calculate Losses Related to Business Impairment

By William E. Harris |

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.

The Art of Using Economical Expert Witness Graphics

By G. Christopher Ritter |

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.

Considering Unavailability When Drafting Arbitration Agreements

By Abraham J. Gafni |

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.

Is There a Settlement Negotiation Privilege?

By Abraham J. Gafni |

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.

Overuse of Antipsychotic Medications in Nursing Homes

By Shayna Slater |

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.

The Mediation Session: Tips on Strategy for Caucuses

By Judy Weintraub and Harrie Samaras |

This is the ninth article in this series on mediation advocacy. The eighth article, published August 31, discussed the advocacy strategy for the opening joint session.

Sandy Koufax, Mediation and Working With Experts

By Charles F. Forer |

Bob knows mediation offers many benefits, even if the process does not always lead to a settlement of the dispute. To illustrate these benefits, Bob tells his Sandy Koufax story:

The Mediation: Strategy for the Initial Joint Session

By Judy Weintraub and Harrie Samaras |

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.

Mandatory Mediation: Avoiding Pitfalls by Complying With the Agreement

By Abraham J. Gafni |

Discussion concerning whether to provide for mandatory mediation in commercial contracts generally results in a debate about its usefulness.

Your Income Went Down by How Much?

By Jeff Willoughby |

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?"

The Strategic Use of Pre-Mediation Submissions

By Judy Weintraub and Harrie Samaras |

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.

Mediation Preparation: Don't Let the Informality Fool You

By Judy Weintraub and Harrie Samaras |

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.

The Tar Heel State Steps Up Its Fight Against Fraud — Part II

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.

The Tar Heel State Steps Up Its Fight Against Fraud — Part I

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.

Appropriate Jury Trial Limitations Found in Nursing Home Contracts

By Joel I. Fishbein |

This paper published Shayna Slater's article, "Mandatory Arbitration Clauses: A Sneaky Secret of Nursing Homes," and has agreed to permit this author to respond.

Attorney-Client Privilege: Is There a Fiduciary Exception?

By Denis James Lawler, Daphne Goldman and Mackenzie W. Smith |

This article continues with a discussion of the problems with an uncertain attorney-client privilege and developments regarding a fiduciary exception in the states over the last 10 years.

Attorney-Client Privilege: Is There a Fiduciary Exception?

By Denis James Lawler, Daphne Goldman and Mackenzie W. Smith |

Every lawyer is familiar with the attorney-client privilege. Most, however, have perhaps never encountered what is often referred to as the "fiduciary exception" to that privilege.

Back to the Future: When Safety Equipment Is Sold as an Option

By Larry E. Coben |

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."

Five Common Mistakes to Avoid During Deposition

By Daniel E. Cummins |

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.

Having Your Cake and Eating It, Too: Illusory Arbitration Agreements

By Charles F. Forer |

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."

The Mediation's Framework: How to Approach a Preliminary Meeting

By Judy Weintraub and Harrie Samaras |

This is the fifth article in this series on mediation advocacy. The fourth article discussed how to find mediators and how to decide which mediator to select.

To Hire or Not to Hire an Expert on Damages

By William E. Harris |

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.

Surprise! Attorney Fees and Rule 68, a Trap for the Unwary

By Grant S. Palmer and Michael A. Iannucci |

It is Tuesday morning. Yesterday, your adversary accepted a Rule 68 Offer of Judgment for $5,000 to settle "all claims," which concluded a long, hard-fought federal litigation.

What You Need to Know About Selecting a Mediator

By Harrie Samaras and Judy Weintraub |

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.

Pretrial Discovery From Non-Parties in Arbitration Under State Law

By Abraham J. Gafni |

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?

The Art of Opening Statements: How to Connect With Jurors

By Vitaly Gashpar |

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.