I’m a trial lawyer for injured people and businesses at The Beasley Firm. Founded in 1958, we have recovered over $2 billion for our clients through hundreds of verdicts and settlements in excess of $1 million. We’re listed in Super Lawyers, Best Lawyers in America, U.S. News’s Top Lawyers, [...]
The Downside Of Loser Pays: Father of Slain Soldier Ordered To Pay Costs To Protestors Who Cheered His Son’s Death
One of the most common "tort reform" (and "patent litigation reform" and "anti-SLAPP") ideas is to enact "loser pays," in which the side that lost has to pay the attorney's fees or costs to the side that won. In theory, "loser pays" (more officially known as "fee-shifting") will create a disincentive against filing frivolous lawsuits. As you can tell from the linked posts, I'm not a fan of fee-shifting. First, plaintiffs and plaintiffs' lawyers have ample incentive not to file a weak cases and tremendous incentive not to file frivolous cases, which by definition have no chance of success. Second, ... Continue Reading
David Mamet’s Master Class Memo To Trial Lawyers
Trial is theater. (Trial is not theatre, at least not in America.) A trial lawyer is thus the producer, director, screenwriter and narrator of her case. She is not the protagonist: that is the client. She is responsible for the budgeting, scheduling, and presentation of her case, which must: tell the client's story; tell the client's story coherently; tell the client's story concisely; tell the client's story persuasively; and, introduce all evidence necessary to the claim or defense in compliance with the rules of evidence; One witness at a time. It's theater, with limitations. Imagine Hamlet as a series of ... Continue Reading
Sen. Dodd’s Financial Reform Protects National Banks At The Expense Of Consumers, Investors and Taxpayers
With the health care debate over for now, Congress has moved on to "financial reform." If you don't recall, a small group of elite bankers at national banks spent the past 20 years or so making billions of dollars in profits by lobbying the Federal Reserve to adopt senseless and irresponsible policies that enabled the national banks to almost literally print their own money. Somewhere along the way, the recklessness that banks had encouraged everyone else to engage in made its way back into them. The banks made several trillion dollars worth of stupid bets — not "investments," just plain ... Continue Reading
Studies Confirm Public Pension Securities Fraud Lawsuits Are Driven By Fraud, Not Pay-For-Play
Kevin LaCroix at The D&O Diary reports, On March 24, 2010, Cornerstone Research released its annual study of securities class action lawsuit settlements. The most recent study, which is entitled "Securities Class Action Settlements: 2009 Review and Analysis" and is written by Ellen M. Ryan and Laura E. Simmons, can be found here. Cornerstone’s March 24, 2010 press release concerning the study can be found here. The study reflects a number of interesting observations about median and average securities class action lawsuit settlements that were approved during 2009. The study also includes a useful analysis of the factors that affect settlement ... Continue Reading
Federal Circuit Invalidates Harvard and MIT’s Patent For NF-kB Gene Expression
Via Blawgletter (and a couple other sources), the whole eleven-judge Federal Circuit issued a rare en banc opinion that held, 9-2, that Harvard, MIT, the Whitehead Institute for Biomedical Research, and Ariad Pharmaceuticals, Inc. couldn't, well, I'll let Barry Barnett explain: Ariad, MIT, the Whitehead Institute, and Harvard claimed that Eli Lilly infringed their patent on ways to reduce the symptoms of some diseases by causing a protein -- Nuclear Factor kappaB* -- to behave. The problem (as Blawgletter gleans from the judges' five opinions) arises from the fact that the inventors seem not to have figured out how to suppress ... Continue Reading
Fixing The Injustice of Ashcroft v. Iqbal
Last week, Prof. Edward A. Hartnett (of Seton Hall University School of Law) posted Responding to Twombly and Iqbal: Where Do We Go from Here? Hartnett's idea was eminently reasonable: I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? Hartnett proposes amending Rule 12 of the Federal Rules of Civil Procedure to include: Rule 12(j): Allegations Likely To Have Evidentiary Support After a Reasonable Opportunity for Discovery If, on ... Continue Reading
Lawsuits Are The Primary Reason Cars Are Safer Today
As always when a major corporation is caught killing, maiming or poisoning innocent people, the apologists have come out in full force in defense of Toyota. This time, they're blaming senior citizens. You see, old people become confused. They don't realize when they're accelerating and when they're braking. At least that's what I've been told by the usual suspects. Don't buy it: In the 50-second tape, crash victim Chris Lastrella begins by telling the dispatcher: “We're in a Lexus ... we're going north (state Route) 125 and our accelerator is stuck.” The dispatcher asks where they are passing, and Lastrella ... Continue Reading
Bruesewitz v. Wyeth: A Preemption Prelude To Autism Litigation?
Last week, the Supreme Court agreed to hear Bruesewitz v. Wyeth. The case will decide: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable. The relevant briefs and opinions are available at SCOTUSBlog. There's an old saying that lawyers and judges bat around, "reasonable ... Continue Reading
Trial Judges Are Not Umpires
Via Sports Law Blog, I saw a new paper: Aaron Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire Analogy, 119 Yale L.J. Online 113. [After writing this post, I saw the WSJ Law Blog covered it, too.] Here's the abstract: The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy ... Continue Reading
The Problem With HR 4364, The Proposed Federal Anti-SLAPP Law
Via Overlawyered, Eric Goldman and others favor HR 4364, the “Citizen Participation Act of 2009,” which would establish a federal anti-SLAPP law. Around half the States have anti-SLAPP (i.e., Anti-"Strategic Lawsuit Against Public Participation") statutes which make it easier to dismiss suits allegedly filed to chill freedom of speech. If the lawsuit arises from the Defendants' exercise of their rights to free speech — which in the post-Citizens United era means virtually every time a corporation advances an agenda — then the Defendant can file, at the very beginning of the lawsuit, a "special motion" that requires the Plaintiff show concrete evidence ... Continue Reading
