The Recognitions

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I hate William Gaddis. As a would-be writer, Gaddis has had no direct influence on me. And yet, pretty much everything I have done, or planned to do, or started to do, as a writer, which I genuinely thought to be fresh or innovative, I have come to discover has pretty much already been done by him. The invasion or …

Winter’s Tale

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If someone had told me what Mark Helprin’s Winter’s Tale was about, I don’t think I would have read it. Written in 1983, the plot is three parts Gangs of New York, two parts Age of Innocence, with a dash of Dickens and a pinch of Lord of the Rings. A turn-of-century “period piece” set in and around the city …

American Pastoral

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I love the last sentence. “What on earth is less reprehensible than the life of the Levovs?” I love the Swede Levov character. I don’t know if I have ever identified with a fictional character (or even another real person) in the same way I identified with Levov. (Who, whether coincidentally or by design, is a literary alter ego of …

Infinite Jest

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From: Steve Herman To: Bill Chisholm Sent: Tuesday, January 31, 2006 12:36 AM Subject: Book of Last Ten Years What was “the” book of the last 10 years I am supposed to read? ————————————– From: Bill Chisholm Sent: Tuesday, January 31, 2006 11:12 AM infinite jest by david foster wallace ————————————– From: Steve Herman To: Bill Chisholm Sent: Sunday, March …

The Castle (with a touch of Michael Chabon and a lot of James Frey)

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The Castle is one of those books that is sitting on a shelf which I have been meaning to read for years. It really wasn’t as Kafkaesque as I would have expected. Why didn’t the guy just leave? But the book did have those great passages. The Castle, whose contours were already beginning to dissolve, lay silent as ever; never …

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Is John Updike the Shakespeare of Our Time? (The Centaur) (and a touch of Seinfeld)

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It seems like every piece of literary criticism I read lately uses Updike’s work as some sort of benchmark for great literature in the 20th Century. (X is the new Updike…; as Updike and X replaced Faulkner and Joyce…; there isn’t a clear figure from the latter part of the century whom you can point to like you could point …

What to Put on Your i-Pod

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In the new John Sanford mystery, the protagonist receives an i-Pod as a gift, and refuses to load it until he has determined exactly which 100 songs he wants to include. He spends the novel composing his list, while entertaining suggestions and defending against criticisms from his friends. At the end of the book, he publishes the list. To his …

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New York Superior Court Denies Motion to Seal Documents in Product Liability Action in the Interest of Public Policy

In For Trial Lawyers, What's New in Product Liability Law?, What's New in the Courts by gravierhouseLeave a Comment

Two parents sued Graco after their child died due to an alleged defect in a Graco stroller. The parties negotiated a settlement that contained a confidentiality agreement, and the plaintiffs filed an unopposed motion to seal with the court. While acknowledging the propriety of confidentiality of court proceedings under limited circumstances, the court noted that the inquiry into whether to …

The Martian (and a Lesson from Behavioral Economics)

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I thought The Martian was a pretty good movie. Well-made. Well-filmed. Well-acted. (I didn’t really like the Matt Damon character all that much, and found the voice-over narration via video diary a little formulaic and annoying, although I frankly can’t, off the top of my head, think of a better alternative.) But it was reasonably suspenseful and interesting. Thought-provoking. And/But …

The Long Arc of Justice

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View Full Document Like many of you, I suspect, I began law school with something called Pennoyer v. Neff, followed shortly thereafter by something called a “progeny.” Not being a lawyer at the time, the whole thing made very little sense to me. While it seemed logical to ask whether the parties or events had a sufficient connection to a …

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“Legalnomics”: Lessons from the Field of Behavioral Economics about Perception and Decision-Making for Trial Lawyers

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View Full Document When I first started practicing law in 1994, the art of trial advocacy embraced the concept of storytelling as a central way of communicating the plaintiff’s cause to the jury. The convention, at that time, was to paint the plaintiff as the protagonist in his or her own life’s story. The jury would be sympathetic to his …

Personal Remarks

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From the LAJ President’s Luncheon, March 20, 2015: View Full Document Last night I read a blog post by my partner Jed about how hard it is to be a plaintiffs’ lawyer.[1] And I was reminded of this scene in the movie Philadelphia. Everyone probably remembers the scene where Denzel Washington goes to see Tom Hanks in his home, as …

To the Rules Committee: Some Thoughts About Class Actions

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Last year, it became clear that the Civil Rules Committee was going to take yet another look at potential changes to the Federal Class Action Procedure, embodied in Rule 23.  For whatever it may or may not have been worth, I provided the Committee with a few thoughts about the current state of class actions, from kind of a Big Picture …

The King of Shorts

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During the Deepwater Horizon litigation, some of the lawyers circulated a few anonymous parodies of interviews that were given by a lawyer who is not involved in the litigation to the U.S. Chamber of Commerce, apparently seeking some attention for himself.  With a Hundred Years of Solitude type feel, they attempt of make light of a fairly incredulous situation.  Are some people really so desperate to feel relevant or …

Standing On The Shoulders Of Those Who Came Before Us

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View Full Document Thank you for the honor of serving as LAJ president. I look forward to the coming year and pledge my service to you. There is one important step you can take today that will make a difference in a new lawyer’s life. Become a mentor. In my law practice, I have been extremely fortunate to have benefitted …

To Protect and Preserve an Independent Judiciary

In For Trial Lawyers, Legal Ethics & Professionalism by gravierhouse1 Comment

View Full Document Our Founding Fathers recognized that a strong and independent judiciary was essential to safeguard the personal and property rights of all members of society, who would be treated equally, under the Rule of Law. Here, in Louisiana, we have a strong, committed, vibrant, intelligent, dedicated, independent, and hard-working judiciary that helps attorneys on both sides of the …

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Judge in W.D. Arkansas Sanctions Attorneys who Dismiss Putative Class Action to Effectuate Settlement in State Court

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A putative class action was filed in the Circuit Court of Polk County, Arkansas, and properly removed under the Class Action Fairness Act of 2005 (CAFA). An answer was filed, followed by a motion for partial judgment on the pleadings.  Then the court stayed the action on joint motion of the parties. At the initial mediation session, the possibility of …

New Jersey Committee on Lawyer Advertising Issues a Notice to the Bar re “Superlawyers” “Best Lawyers” etc

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Lawyer advertising that mentions awards such as “Super Lawyers,” “Rising Stars” and “Best Lawyers” has spurred the filing of many complaints with the New Jersey Supreme Court Committee on Lawyer Advertising, which recently issued a reminder: Lawyers may refer to such honors in their advertising “only when the basis for comparison can be verified” and the group bestowing the accolade …

U.S. Fifth Circuit Affirms En Banc Suspension of Attorney Who Hired Co-Counsel in Order to Prompt District Court Judge’s Recusal

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The U.S. Fifth Circuit Court of Appeals affirmed a one-year suspension (six months deferred) of an attorney who was found to have hired a close friend of the presiding judge as co-counsel in order to obtain judge’s recusal. Rule 2 of the Eastern District’s Rules for Lawyer Disciplinary Enforcement states that “the court en banc may impose discipline upon a …

U.S. Ninth Circuit Declines to Mechanically Apply Traditional Conflict Rules to Class Actions

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The articulated bases for the State of California’s automatic disqualification rule for simultaneous conflicts “fits the circumstances of the lawyer who represents a class of plaintiffs whose interests may in some ways be adverse to each other, but all of whose interests are adverse to the defendant. In a class action, conflicts often arise not because an attorney simultaneously represents litigation adversaries but …

Louisiana Supreme Court Issues Rule for the Disposition of Unidentified Funds in Trust Account

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On March 23, 2016, Rules 1.15(g)(7) and 1.15(h) of the Louisiana Rules of Professional Conduct were added to provide the following: “Unidentified Funds” are funds on deposit in an IOLTA account for at least one year that after reasonable due diligence cannot be documented as belonging to a client, a third person, or the lawyer or law firm. A lawyer …

ABA Provides Guidance to Attorneys Who Receive Subpoenas Seeking Client File Materials

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The ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion addressing a lawyer’s “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information,” which offers the following guidance and advice: “The lawyer’s obligations of notice and consultation upon receiving a demand for client files and information are essentially the same for current and …

Louisiana Attorney Sanctioned for Reckless Criticism of Trial Court Judge

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An attorney seeking writs from the Louisiana Supreme Court regarding the refusal of a district court to recuse itself in a family law matter accused the trial court judge of manipulating the transcript and the court of appeal of a cover up.  Sanctioning the attorney for a year and a day (with all but six months suspended), a divided Louisiana Supreme Court found …

GM Multi-District Litigation Raises Interesting Ethical Issues Regarding Lead Counsel’s Duties to Other Plaintiffs in the Litigation

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In the General Motors Ignition Switch Litigation, MDL No. 2543, a motion was made to remove Lead Counsel based on a confidential “inventory settlement” of Lead Counsel’s cases, and alleged improprieties regarding the selection (and alleged de-selection) of potential “bellwether” trial cases (in which Lead Counsel allegedly demanded a personal share of the fee).  While the Court’s Order, denying the …

A Client May be Advised to Hide or Remove Social Media, as Long as the Materials Are Preserved

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Both the Florida State Bar Association and the North Carolina State Bar Association have issued advisory opinions indicating that a lawyer may advise a client to “clean up” his or her Facebook or other social media pages by changing the privacy settings so that they are not publicly accessible and/or by removing photos, posts or other information. However, where potentially …

Judge in Northern District of Illinois Strikes Portions of Answer, Affirmative Defenses Not Made in Good Faith

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A number of recent decisions call into question a defense lawyer’s obligations under Rule 11 in responding to allegations in the plaintiff’s complaint, as well as the substantive question of whether the Iqbal/Twombly pleading standard applies to affirmative defenses. Judge Milton Shadur, sitting in the Northern District of Illinois, recently struck repeated aversions that a document “speaks for itself” and …

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U.S. Supreme Court Vacates and Remands Statutory Damages Case for “Concreteness” of Injury Analysis under Article III

In What's New in Class Action Law?, What's New in the Courts by gravierhouseLeave a Comment

The defendant operates a ‘people search engine’ which conducts a computerized search in a wide variety of databases and provides information about the subject of the search.  Based on inaccurrate information that gathered and then disseminated about the plaintiff, he filed a class complaint under the Fair Credit Reporting Act (FCRA), which provides that any business or person who willfully …

U.S. Fifth Circuit Reverses Defense Verdict where District Court Had Not Conducted Daubert Hearing re Chiropractor Testimony Elicited by Defendants

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Patient who suffered severe injuries after being treated with infrared therapy device for diabetic condition of peripheral neuropathy brought products liability action against manufacturer and distributor. After denying patient’s pre-trial motion to exclude testimony of chiropractor, the jury found for the defendants.  The U.S. Fifth Circuit reversed and remanded for Daubert consideration: “Initially, we dispose of the defendants’ contention that …

Judge in W.D. Arkansas Sanctions Attorneys who Dismiss Putative Class Action to Effectuate Settlement in State Court

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A putative class action was filed in the Circuit Court of Polk County, Arkansas, and properly removed under the Class Action Fairness Act of 2005 (CAFA). An answer was filed, followed by a motion for partial judgment on the pleadings.  Then the court stayed the action on joint motion of the parties. At the initial mediation session, the possibility of …

Fifth Circuit Remands Putative Class Action under CAFAs Home State Abstention after RICO Claims are Dismissed

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A putative class action was filed by a Louisiana citizen in Texas State Court challenging the use of red light cameras within Texas. After removal, Watson amended his complaint to delete the RICO claim, and, eleven days later, moved to remand the case to State Court, arguing that CAFA’s exceptions precluded the district court from exercising diversity jurisdiction over the …

Fifth Circuit Affirms Breach of Fiduciary Duty regarding ESOP Transactions

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Bruister and Associates, Inc. was a home service provider that installed and serviced satellite television equipment for a sole client, DirecTV. It set up an employee stock ownership plan (ESOP) for its employees. In a three-year period from 2002 to 2005, Bruister’s owner, Herbert C. Bruister, sold 100% of his shares (also representing 100% of the company’s outstanding shares) to …

Supreme Court of Delaware Holds that Registration to Do Business in State Does Not Confer Personal Jurisdiction

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The Delaware Supreme Court held that the U.S. Supreme Court’s decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), effectively overruled the prior Delaware caselaw permitting Delaware courts to exercise jurisdiction over corporations that had registered to do business in the state. In this particular case, a large Georgia corporation that had properly registered to do business in the …

U.S. Ninth Circuit Declines to Mechanically Apply Traditional Conflict Rules to Class Actions

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The articulated bases for the State of California’s automatic disqualification rule for simultaneous conflicts “fits the circumstances of the lawyer who represents a class of plaintiffs whose interests may in some ways be adverse to each other, but all of whose interests are adverse to the defendant. In a class action, conflicts often arise not because an attorney simultaneously represents litigation adversaries but …

U.S. Fifth Circuit Re-Affirms pre-Stolt-Nielsen Caselaw referring the Question of Collective or Class Action under the Arbitration Agreement to the Arbitrator

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Stolt–Nielsen does not overrule prior Supreme Court and Fifth Circuit decisions requiring questions of arbitrability, including the availability of class mechanisms, to be deferred to arbitration by agreement.” In this particular case: “Section (g) of the arbitration agreement subjects ‘claims challenging the validity or enforceability of this Agreement (in whole or in part) or challenging the applicability of the Agreement …

U.S. Magistrate Judge in the Connecticut Declines to Compel Production from Defendant’s Overseas Manufacturer

In What's New in E-Discovery and Spoliation?, What's New in Product Liability Law?, What's New in the Courts by gravierhouseLeave a Comment

In a suit against General Electric regarding alleged defects in GE branded microwaves, the plaintiffs sought to compel GE to produce discovery from Samsung Electrics Co., Ltd. (Samsung Korea), the manufacturer of the microwaves at issue.  Plaintiffs’ motion to compel was denied. “The relationship between GE and Samsung Korea does not evidence GE’s legal entitlement to the documents: they are completely different entities; GE is …

U.S. Fifth Circuit Grants Rehearing En Banc to Consider when Reliance Can Be Inferred in Class Actions brought under the Civil RICO Statute

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On March 12, 2016, a majority of the judges on the U.S. Fifth Circuit voted to grant Rehearing En Banc to reconsider the October 15, 2015 decision in the Torres v. S.G.E. Management Ponzi scheme case, in which the original Panel refused to allow reliance to be inferred where there was some other rational explanation for the conduct in question: The …

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