Fort Worth Star-Telegram consumer columnist Dave Lieber, 50, had an argument with his son in the restaurant parking lot the morning of Aug. 13, told him to walk home, but doubled back to return minutes later after thinking better of it. Police later arrested him on two felony charges of child abandonment. Watauga, a suburb of Fort Worth, has crime rates well below the national average. (Alex Branch, “S-T Watchdog columnist Dave Lieber arrested”, Fort Worth Star-Telegram, Aug. 27; Dave Lieber, “How parents can learn from serious mistakes”, Fort Worth Star-Telegram, Aug. 15; Chuck Lindell, “Father’s arrest ignites debate over child abandonment”, Austin American-Statesman, Aug. 28).
Archive for August, 2008
Can I Go First? Trial Lawyers Get a Leg Up on Depositions
Critical to any lawsuit is who gets to go first in taking depositions. Most of the time, the party that notices the deposition first, gets priority in scheduling.
That’s why a new court decision in Connecticut will send shivers through businesses because it now allows trial lawyers and their clients to always go first. While the rule will just apply to Connecticut employers, other states may have similar rules (or imprecise practice procedural) in place.
How could this happen, particularly when procedural court rules are designed to make sure that each party has a fair chance during a case? Well, it’s an example of how imprecise language can get twisted around; in this case, the court held that the rules preventing discovery from beginning are separate from the rules allowing depositions.
In the first in-depth written decision on the point, Waterbury Superior Court Judge Jane Scholl has concluded that a plaintiff can file a notice of deposition with the initial complaint. This tactical advantage gives the plaintiff first crack at digging up — or nailing down — key information in the case.
Scholl ruled hat the Practice Book rules “do not restrict when notices of depositions may be served,” so long as the deposition takes place at least 20 days after the case has formally begun.
The decision is not sitting well with defense lawyers. This “essentially means that a defendant can never take a plaintiff’s deposition first, which seems unfair,” said David J. Robinson, one of the attorneys working on the medical malpractice case over which Scholl is presiding.
I would not be surprised to see this issue brought up to Connecticut judges as they sit and review the procedural rules. But for businesses in Connecticut, it’s going to be an uphill battle…and its going to increase the stress in defending the case when you have to submit to a deposition without even knowing all the facts that the plaintiff might allege. (CT Law Tribune, 8/25, subscription required)
Joe Biden and the trial lawyers redux
Add the August 28 LA Times to the list of newspapers looking askance at Joe Biden and his family’s cozy relationship to judicial-hellhole asbestos attorneys, in this case Madison County’s SimmonsCooper. (Chuck Neubauer and Tom Hamburger, “Business dealings of Biden family could be problematic for him”, Aug. 28). Unfortunately, the article somehow manages to miss the rationale for creating the trust fund, which was the degree to which so much asbestos litigation in the country is abusive.
Update: also, Am Law Daily.
Claim: ADHD made lawyer pocket partners’ share of settlement
The Louisiana Attorney Disciplinary Board’s charges against attorney John M. Sharp, formerly managing partner in the firm Sharp Henry Cerniglia Colvin Weaver & Davis, may possibly recall the old joke: lawyer finds satchel of someone’s misplaced cash, followed by wrenching dilemma of legal ethics: should he tell the partners? (Karina Donica, “Attorney involved in city-Cleco case faces possible disbarment”, Town Talk (Alexandria, La.), Aug. 22)(via ABA Journal).
Warning: peanut butter contains peanuts
In the wacky warning genre, that one’s been around a while, but it can still get a discussion going (Wegman’s, What If via Megan McArdle).
Biden and the trial lawyers
A USA Today story delves deeply into how Biden’s done the bidding of the litigation lobby special interest group, particularly with respect to the bipartisan asbestos litigation reform bill.
Lies, Damned Lies and Court Statistics…
Hartford, CT likes to count Mark Twain as one of its native sons; for those planning your next vacation to Hartford, his old house is designed to evoke a steamship. Among the quotes attributed to him (but actually cribbed from Disraeli) is: “There are three kinds of lies: lies, damned lies and statistics.”
I wonder what he’d think of the latest statistics about case filings and dispositions in our federal courts. [Update: The statistics were just released on August 20th.] We just got our printed version in the office on Friday (and the stats are now available here online). Could the days of “Overlawyered” be numbered with an actual decline in certain types of lawsuits? Nah, but some of the numbers sure are curious.
In Connecticut, for example, new lawsuits are down over 20 percent in the last ten years or so. Employment discrimination lawsuits are down almost 25 percent nationwide since 2000.
But as Twain hinted, stats aren’t always what they seem. While certain areas have seen decreases, others have seen increases. Wage & hour claims are up 25 percent since 2000 and claims filed in parts of Florida have skyrocketed over the last year or so.
So, is litigation up or down in federal courts? Yes and no. It just depends how you crunch the numbers.
After Setting Fires, Firefighter Wants Job Back
In 1997, Erie, Pa. hired its first female firefighter. Nearly a decade later, she was quietly fired after setting fire to her father’s house as part of a suicide attempt. In fact, the Erie Civil Service Commission wrote at the time that: “Her setting a fire … is the single most significant act a fire fighter may not commit. The act of establishing a fire in a residence is wholly incompatible with the role of the fire fighter, despite the mitigating circumstances of [her] psychological state.” Now, she has brought her appeal public in a filing in local courts earlier this year. (GoErie.com, 3/24)
Patent Troll Tracker case: second blogger subpoenaed
Attorney Eric Albritton has been suing Rick Frenkel and his former employer, Cisco, over allegedly defamatory content on Frenkel’s much-missed Patent Troll Tracker blog. Now Albritton has also aimed broad legal demands at a second IP-law blogger, Dennis Crouch of the well-known Patently-O, demanding not only the unveiling of anonymous commenters at that blog but even the handing over of private notes that readers have written to Crouch. (Patently-O, Aug. 24 via Elefant).
Paycheck Fairness Act Takes Center Stage
Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.
No doubt we’ll hear about the Paycheck Fairness Act bill because she’s not endorsing anyone for President. “Equal Pay for Equal Work” has been one of the talking points of the week.
There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well. Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6).
What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about. It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used). And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.
But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation. Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole. Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.
It’s hard to see how some changes will have any real impact on employers. For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”. While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers. After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”? And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.
On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective).
Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here). For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior.
The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill. We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year. Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.
(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)