Walmart’s Answer To Tracy Morgan’s Lawsuit Is Worse Than You Think

Back in June, I wrote a short post on the fatal accident involving a Walmart truck plowing through traffic on the New Jersey Turnpike. It hit a charter bus carrying comedian Tracy Morgan and several of his friends and fellow comedians, including James McNair, who died in the crash. As I said then, “Walmart has responded with typical corporate doublespeak, promising to do ‘the right thing,’ at least to the extent the law forces them to do so.” Consider me jaded after enough years in this job: when a big corporation hurts someone and says they’ll do “the right thing,” ... Continue Reading

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To Practice Law Is To Be Afraid

When it comes to lawyer “war stories,” I agree with Philip Thomas: “The only stories about a lawyer that other lawyers want to hear are funny stories.” That said, cautionary tales have an important place in the law school curriculum: learning to “think like a lawyer” includes understanding how and why lawyers screw up. How else are law students supposed to learn just how dire the consequences can be?   Via the ABA Journal and the WSJ Law Blog, I saw a new law review article called, “This is Your Brain on Law School: The Impact of Fear-Based Narratives on ... Continue Reading

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MedPage Today Parrots Drug Company Marketing As “Medical News”

I represent clients in the consolidated Actos litigation, and so I’m well-versed with the science linking the drug’s use to bladder cancer. As the federal court overseeing the litigation held in a Daubert order, there’s ample scientific evidence demonstrating that even just one year of Actos use can increase the risk of bladder cancer. So, the headline at MedPage on August 29, 2014 was quite a surprise: “No Actos Cancer Link in Long Term Data.” I assumed that the headline reflected some new scientific study showing the absence of a link to bladder cancer.   Then I read the actual ... Continue Reading

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What If Liebeck v. McDonald’s Was Just Another Case?

This week marks the 20th anniversary of the verdict in the Stella Liebeck v. McDonald's hot coffee case. Abnormal Use has for years been one of the few places where people could find genuine information about the case itself, rather than just commentary about the case, the great majority of which is based upon misunderstood or mischaracterized facts. They've put up with a series of posts reflecting on the case's enduring legacy. They kindly let me step up on their soapbox for a day to give a plaintiff's perspective. Here's how my post begins: Medical malpractice has killed more Americans in the ... Continue Reading

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Lawyers Are Responsible For Their Clients’ Production of Documents

Earlier this week, I wrote about lawyers obstructing discovery by responding to discovery interrogatories themselves, either by letter or by an unverified response, rather than by having their client answer. Federal Rule of Civil Procedure 33(b) makes clear that’s just plain wrong.   When it comes to requests for production of documents (or electronically-stored information), the Rules are a bit more intricate — but, when used properly, more powerful.   Unlike Rule 33, Rule 34 (relating to requests for production of documents and electronically stored information) has no similar requirement that the party sign the responses. Thus, a lawyer may ... Continue Reading

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A Lawyer’s Letter Is Not A Substitute For Interrogatory Answers

A couple weeks ago, I wrote about how lawyers abuse “meet and confer” requirements to obstruct civil discovery. This time, let’s talk about lawyers obstructing discovery by responding to discovery interrogatories themselves, rather than by having their client answer.   It’s a common progression of events:   1. Lawyer A serves a bunch of interrogatories on Lawyer B. 2. Lawyer B responds with a bunch of boilerplate objections. (See my prior post for more.) 3. Lawyer A threatens to file a motion to compel. 4. Lawyer B “answers” some of the requests either: a. by sending a letter that generally ... Continue Reading

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Please Stop Calling Amazon A Monopoly

  I read a lot of book-related publications and blogs, and thus I have endured weeks of Hachette-versus-Amazon posts, as the publishing giant has wrangled with the online retail giant over the terms of their contract. Perhaps unsurprisingly, the writers and publications with ties to the “Big Five” in the publishing industry have sided with Hachette, whereas the commenters to the articles and the blogs (most of which are presumably customers of books) tend to wonder why a garden-variety dispute between two big companies over money is being billed as the downfall of civilization.   I ignored most of these ... Continue Reading

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Daubert Doesn’t Ask Judges To Become Experts On Statistics

Back in 2012, I wrote: “Scientific evidence is one of those rare areas of law upon which every lawyer agrees: we are all certain that everyone else is wrong.”   There have been some missteps in the law’s use of scientific proof as evidence in civil litigation — like when the Supreme Court affirmed a trial court holding in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that an engineer with a Masters in Mechanical Engineering who had worked in tire design and failure testing at Michelin was nonetheless incompetent to testify about tire failures — but, by and ... Continue Reading

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This Is Rice: How To Get Better At The Practice Of Law

  This month the Smithsonian has long profile on Anthony Bourdain that ends with, “What would you like your last meal to be?” In typical Bourdain fashion, the meal he has in mind is virtually impossible to get without reservations weeks in advance: a sushi course at Sukiyabashi Jiro, the three Michelin star restaurant profiled in the excellent documentary Jiro Dreams of Sushi. As Bourdain explains:   Watch the film and you will understand. It is an 88-year-old man doing the same basic 30 or 40 basic cuts of Edo-style sushi, meaning nothing innovative. Every night he’s been going to ... Continue Reading

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Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?

Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.   The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA ... Continue Reading

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