- Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
- “Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
- Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
- “‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
- Academics prosper through expert witness work, part one zillion [Ira Stoll]
- Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
- Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]
- “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
- New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
- Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
- “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
- CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
- “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
- The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]
“A federal judge in Manhattan is ordering lawyers in a United Parcel Service lawsuit to file new pleadings that are short and plain, in keeping with Rule 8 of the Federal Rules of Civil Procedure. … UPS ‘launched its relatively straightforward claims with a sprawling 175-paragraph complaint, larded with more than 1,400 pages of exhibits,’ [U.S. District Judge William Pauley III] wrote. Lawyers for former franchisees responded with a 210-page answer with counterclaims and ‘voluminous exhibits,’ later expanded in an amended answer to a ‘breathtaking’ 303 pages that ‘brims with irrelevant and redundant allegations,’ Pauley said.” [ABA Journal]
Some lawyers have filed attempted mass suits (earlier here, here, etc. on Mohawk Industries case) claiming that by hiring undocumented workers employers have engaged in “racketeering” for which they should owe money under the RICO law to other workers, above and beyond whatever wages were agreed to at the time or prescribed by statute. It was always a strained theory, and now is said to be encountering tougher going because courts are being more particular about requiring that plaintiffs’ pleadings spell out plausible theories of proximate cause, injury and damages, under the Twombly/Iqbal standard by which the U.S. Supreme Court has toughened early scrutiny of lawsuits. If that’s so, chalk up one more Twiqbal victory for common sense and restraint in litigation. [Workplace Prof, from the Spring]
Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:
We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .
That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.
After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):
Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.
That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,
the District Court tossed the case overboard to a Magistrate Judge for discovery.
At that point it was too late: the discovery goat rodeo had begun.
Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.
The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.
- By convention the business/defense side isn’t fond of jury trial while plaintiff’s side sings its praises, but Louisiana fight might turn that image on its head [Hayride, sequel at TortsProf (measure fails)]
- Generous tort law, modern industrial economy, doing away with principle of limited liability: pick (at most) two of three [Megan McArdle]
- Fallacies about Stella Liebeck McDonald’s hot coffee case go on and on, which means correctives need to keep coming too [Jim Dedman, DRI]
- Interaction of products liability with workplace injury often provides multiple bites at compensation apple, overdue for reform [Michael Krauss]
- Ford Motor is among most recent seeking to pull back the curtain on asbestos bankruptcy shenanigans [Daniel Fisher; related, Washington Examiner] “Page after page he sits on the straw man’s chest, punching him in the face” [David Oliver on expert affidavit in asbestos case]
- Kansas moves to raise med-mal caps as directed by state supreme court, rebuffs business requests for collateral source rule reform [Kansas Medical Society]
- Let’s hope so: “More stringent pleading for class actions?” [Matthew J.B. Lawrence via Andrew Trask, Class Strategist]
The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.
Equal time dept.: Richard Epstein takes a different view.
- How procedural improvements could help curb speculative and abusive lawsuits [Stuart Taylor, Jr., American Spectator, recommending Prof. Donald Elliott’s plan for judicial pre-screening of complaints; Richard Reinsch]
- Proposed revisions to Federal Rules of Civil Procedure would curtail depositions, interrogatories [ABA Journal, more; Wajert] Better use of incentives could reduce costs of discovery [Rebecca Womeldorf, WLF]
- “The ‘e’ in e-mail might as well stand for evidence” — Bloomberg’s Norm Pearlstine at Google Big Tent DC [@jeffjohnroberts]
- Contracting around litigation rules: “Why Is Privatized Procedure So Rare?” [Dave Hoffman]
- Walden v. Fiore: “Cert grant for civ pro buffs” [Ann Althouse; more on constitutional limits on personal jurisdiction from Stephen Sachs via Linda Mullenix, Jotwell via Will Baude]
- California, Wisconsin toughen up lax rules on expert witness admissibility [Bernstein, more] Florida moves to adopt Daubert gatekeeping standard [Maggie Tamburro, Bullseye, William Bissett/Lauren Soble]
- Lawyer disciplinary proceedings make good occasion for noticing that vague notice pleading can trample defendants’ due process interest, but will anyone apply the lesson beyond lawyers? [John Steele, Legal Ethics Forum]
Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.
The ACLU’s lawsuit over the NSA surveillance program, or Larry Klayman’s? And which has more grandstanding? If you have to ask… [Howard Wasserman, Prawfs]