Tort Reform in the Courts: A Defense Attorney Challenges Outdated Legal Precedents
May 31, 2006
In 1789 and afterwards, when colonies became states, most state legislatures passed 'reception statutes.' These often forgotten parts of state law history 'received' the common law of England as of that date and, more importantly, empowered the courts to develop the common law in light of 'reason and experience.' <i>See</i> Victor E. Schwartz & Leah Lorber, <i>Judicial Nullification of Civil Justice Reform Violates the Fundamental Federal Constitutional Principle of Separation of Powers: How to Restore the Right Balance</i>, 32 Rutgers L.J. (2001). Over the past 240 years, legislatures have retrieved the right to make law, including property law, commercial law, divorce law, and almost every other civil field. There is one vestige, however, where courts still make law ' the law of torts.
Finding Work Product That Really Matters
May 31, 2006
Say Knowledge Management in non-KM circles ' especially in law firms ' and you're likely to get a blank stare. This is often because the mission of knowledge management has not been communicated to stakeholders, or the term has been used so broadly that it no longer means anything. One way to overcome the 'what is KM?' challenge (and to gain great credibility for someone in my position) is to be able to respond to a well-defined need with an equally well-focused solution.
<b>Practice Tip:</b> Preparing for the Malware Epidemic: Working in the 21st Century
May 31, 2006
Malware (Wikipedia): Malware is software designed to infiltrate or damage a computer system, without the owner's consent. <br>Nothing can be more disruptive, costly and frustrating than being a victim of malware. Being the victim of an attack can be particularly devastating in terms of lost productivity for attorneys and staff, missed filing deadlines, reduction in billable time and loss of client confidence.
Are They Getting It?
May 31, 2006
When a jury hears an argument, how do you know if they're getting it? They may start out conscientious and alert with good intentions about performing their civic duty, but that enthusiasm may dissipate throughout the trial and adversely affect the decision-making process. Like it or not, attention spans wane, boredom creeps in and life gets in the way all the while you're trying to win your case.
Practice Tip: Providing Privileged Material to Testifying Experts Can Lead to Nasty Surprises
May 31, 2006
Consider this not unimaginable scenario: Opposing counsel calls for production of a confidential memorandum that details your impressions of the case and trial strategies. This is clearly protected as core work product, right? Not necessarily. In fact, if you shared the memo with your testifying expert in a federal court case, the answer is 'probably not.' Perhaps even more troubling is the following situation: On cross-examination, your expert is asked to reveal the content of confidential oral communications between you and your client to which he was privy in his capacity as a testifying expert. Once protected by the virtually impenetrable shroud of the attorney-client privilege, these types of communications also may now be discoverable if the testifying expert 'considered' the information in forming his opinions. <i>See</i> Fed. R. Civ. P. 26(a)(2)(B).
Programs Keep Alumni Close to Old Firms
May 31, 2006
As firms strive to differentiate themselves through marketing techniques and stave off mergers through network affiliations, they are gearing up alumni programs to net referrals and maintain positive relationships with former employees.
Law Firm Leadership and Communications
May 31, 2006
Confronted by increased competition and changes in the way expense conscious corporate clients procure legal services, law firms are responding by building capacity ' increasing their size through aggressive lateral hiring and acquisition. It is an appropriate response; driven by the market perception that in order to compete today for global corporate business, it is imperative that the modern law firm be large enough to handle both commoditized work as well as provide high end counsel, deep enough to handle any and all matters that a company may face, and streamlined enough to take advantage of technological and other economies of scale. But the myriad of market-based arguments that enable the creation of these large partnerships with hundreds of partners beg the question: 'Now that we've built the infrastructure, how do we truly distinguish ourselves in a manner that actually confirms these assumptions and secures the business?'
Implementing Practice Management in a Mid-sized Firm
May 31, 2006
Practice management is gaining strength as a discipline in many mid-sized firms. Long adhered to in large firms as a way to interact most effectively with clients, produce the client's work in the most timely and cost-effective manner, and generate collegiality among lawyers, in mid-sized firms many managing partners have relegated the practice of law to individual partners, reluctant to impose their judgments on how individual client matters were being performed. This results from their belief that lawyer management should not have to follow up on partners responsible for performing client work or for managing substantive practice areas.
Retaliation: What is an Adverse Action?
May 31, 2006
It has become an increasingly common fact pattern: An employer discriminates against an employee, for example, because of her gender. She files a claim of discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). In a matter of days, the employer finds out about her charges and decides to make her work life miserable. This might create a straightforward claim for unlawful retaliation, that is if the employer's actions made her life 'miserable enough.' The question of what is 'miserable enough' has divided the courts, and thus there may not be a clear answer to questions on adverse employment actions for employers or employees.
Should the Heeding Presumption Apply to Pharmaceutical Failure-to-Warn Claims? PA Court Says 'No'
May 31, 2006
Part One of this series discussed the rationales courts typically draw upon in deciding whether to apply a heeding presumption in failure-to-warn cases in general. This installment analyzes the application of the heeding presumption in pharmaceutical failure-to-warn cases specifically and explains why justifications for the presumption in the general product liability context do not necessarily hold true in the pharmaceutical failure-to-warn setting.
