Articles Posted in Miscellaneous

Here is a recent law review article that summarizes the state of the law of sanctions in cases involving electronic discovery. The article, entitled “Electronic Discovery Sanctions in the Twenty-First Century,” is authored by a federal court judge and a law clerk.

The lawyers at Kirkland & Ellis, a major law firm with its home office in Chicago, had a real bad day recently after its client got hammered with sanctions.

Financier Ron Perelman has sued Morgan Stanley for fraud, alleging that it helped appliance maker Sunbeam Corp. conceal accounting woes tht reduced the value of Perelman’s investment in Sunbeam. The trial is scheduled to begin shortly.

The trial judge is Elizabeth Maass. She ruled that Morgan Stanley hid emails and hit failings in its search for emails. “Many of these failings were done knowingly, deliberately and in bad faith,” Judge Maass wrote in her order.

Those of you who do any products liability, medical negligence, or commerical litigation know that e-discovery is a hot topic. More and more discoverable data never makes its way to a piece of paper, so a RFP seeking only paper documents will not get you what you hoped to get or are entitled to get.

Likewise, courts are imposing requirements on lawyers to advise their clients to maintain electronic data after a lawsuit has been filed. The failure to act promptly and appropriately can have dire consequences.

A Seattle law firm has created a blog dedicated to electronic discovery. Take advantage of this firm’s resources to educate yourself about and stay current on this important issue.

The Insurance Commissioner from the State of Washington has issued a report that examines whether or not there is a medical malpractice insurance crisis in the state.

Rather than relying on simple statements from doctors and their insurers the Insurance Commissioner did a closed claim study covering about 90% of the physicians from the state. The report shows that the number of $1,000,000+ verdicts or settlements is relatively flat and that there were only 50 verdicts for the plaintiff in the 10 – year period covered by the study. Seventy-three percent of the claimants recovered nothing.

This data, not dissimilar from information received from the a recent Texas study, adds further support for the notion that rising medical malpractice insurance rates are out of control or that they are caused by a defect in the jury system that will be fixed by caps on damages.

Sorry for the lack of a post yesterday; I am at a conference in Florida and the day was a little hectic.

I didn’t write the Trial Lawyer’s Prayer, but I wish I had. Read more of Evan Schaeffer’s stuff by clicking here.

Trial Lawyer’s Prayer, by Evan Schaeffer

The ABA is hosting a 90-minute teleconference and live audio webcast on how to unearth fact information on the Internet.

Carole Levitt and Mark Rosch, authors of the ABA’s The Lawyer’s Guide to Fact Finding on the Internet will be the speakers. They will address issues like locating public records, locating background information on people and companies, and effective search techniques.

The seminar will take place on April 14, 2005 from 12:30 to 2:00 Eastern time. Call 800.285.2221 weekdays from 8:30 a.m. to 6:30 p.m. Eastern time to register. The program is eligible for 1.5 hours of CLE credit. Click here for more information.

Many of us have attempted to use police officers as expert witnesses at trial. We have also had them used against us.

The Delaware Supreme Court has recently ruled that it was reversible error for a trial judge to permit a police officer to testify to the “primary contributing cause” when the police officer was not qualified as an expert in accident reconstruction. The decision in Lagola v. Thomas may be read by clicking here.

Testimony by police officers in traffic wreck cases often carries substantial weight. This decision may be of assistance to you in your attempt to exclude the opinion testimony of a police officer.

David Swanner, a lawyer in South Carolina, has a blog focused on the use of legal technology by trial lawyers. David’s blog has a lot of good information on Powerpoint, yet another great weapon that we can use when we go into battle.

David also has a guest post entitled “Twelve Ways Technology Can Make You a Better Trial Lawyer” that he made to another blog. It is filled with good ideas.

All of this demonstrates why technology and the Internet is changing law practice as we know it. When small firm lawyers are ready to share their ideas and invest in appropriate technology, the advantage that large firms have historically had dwindles.

A study from Texas has determined that the medical malpractice “crisis” behind the push for restrictions on the rights of patients is phony, which is no news to anyone who understands the issue.

“We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states,” said the study, conducted by law professors at the University of Texas, University of Illinois and Columbia University law schools.

The article tells us that “‘only a few states have comprehensive insurance databases like that of Texas,’ said David Hyman, one of the study authors, ‘but similar studies elsewhere have found nothing to indicate a link between litigation and rising medical costs.'”

The Illinois Court of Appeals has ruled that surveillance videos made of a plaintiff in a personal injury suit are disoverable.

In Shields v. Burlington Northern and Santa Fe Railroad Co. defendant argued that the films were protected under the work product doctrine. The appellate court followed the majority rule and held that the plaintiff was entitled to the videos. The court stated that “surveillance videos contain substantive evidence concerning the extent of a plaintiff’s injuries, and they do not reveal mental processes, opinions or other conceptual data. Thus, surveillance videotapes do not count as work product.” Read the opinion by clicking here.

It is important to warn your clients of the risk of surveillance videos. We tell our clients about the risk not because we want them to restrict their activities in public places but because we want to encourage them to accurately remember the activities they engage in so that they will not be impeached on video. Clients should also be cautioned about the difference between the activities they “can’t do” as a result of their injuiries versus the activities they do less frequently or do with pain they did not experience before the injury. An understanding of the difference in degree of these limitations will reduce the likelihood of successful impeachment of your client, by video or otherwise.