Philly is still reeling from the horrific Center City building collapse last week. Every conversation I’ve had included both shock over the poor oversight of high-risk work like demolition and the conclusion that, surely, the City will be sued and will pay something towards the victims. Most everyone, including other lawyers who don’t do catastrophic injury work, are shocked to hear that it is unlikely that the City will be liable.

The primary cause of disaster is obvious: the work crew performed appallingly amateurish work. Taking down a building literally joined to other buildings isn’t rocket science, but it still requires structural engineering work. First, per OSHA, “an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure,” and then steps need to be taken to avoid such “unplanned collapses,” such as by braces, or shoring, or helical piers, or all three, and then, in all likelihood, the structure needs to be taken down manually.

What you don’t do is what property owner Richard C. Basciano apparently did: pay some bankrupt company $10,000 to rip the thing down with sledgehammers and an excavator, and then get it “expedited” by an architect who never bothers to review the demolition plan. The general rule is that “a landowner who engages an independent contractor is not responsible for the acts or omissions of such independent contractor or his employees,” Beil v. Telesis Const., Inc., 11 A.3d 456 (Pa. 2011), which would seem to absolve Basciano, but that rule is subject to a number of exceptions, like the “dangerous condition,” “retained control,” and “peculiar risk” exceptions. For a discussion of all three, see Farabaugh v. Pennsylvania Turnpike Com’n, 911 A.2d 1264 (Pa. 2006). It is in general hard to pin liability on a property owner, but this situation looks nothing like your typical by-the-book demolition.
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Via Howard Bashman, last week a three-judge panel of the First Circuit Court of Appeals issued a per curiam opinion in Rodriguez-Machado v. Shinseki, affirming a District Court’s grant of summary judgment in an Age Discrimination in Employment Act case. It was a routine case that had been dismissed by the District Court for three commonplace reasons: the plaintiff, who worked at the Veterans Administration, (1) had not been injured enough in their workplace to have suffered an “adverse employment action”; (2) had not shown the hostility she suffered at work rose to the “level of severity or pervasiveness” required to state an ADEA claim; and (3) couldn’t show the adverse employment action she allegedly suffered was in retaliation for her filing a claim with the Equal Employment Opportunity Commission (EEOC).

More than 23,000 age discrimination charges were filed with the EEOC last year (EEOC / ADEA statistics here), and a significant number of those charges go on to be filed as lawsuits. There’s thus no dearth of these cases in the federal courts, which have decided more than one thousand ADEA cases over the past year, hundreds of them on similar grounds as Rodriguez-Machado v. Shinseki. It was, by and large, a routine case dismissed on routine grounds, on appeal for routine reasons, and the First Circuit could have just as easily looked at the District Court’s opinion, the briefs, and then affirmed dismissal of the discrimination claim, as federal appellate courts do every day.

But the First Circuit didn’t even reach the merits of the case. Instead, it blasted the plaintiff’s lawyer:

This case provides an important reminder to lawyers  and  litigants alike:  substantial  noncompliance” with important  appellate  rules,  in  and  of  itself,  constitutes sufficient  cause  to  dismiss  an  appeal. …

Unfortunately, plaintiff’s briefs are textbook examples of how not to litigate a case on appeal, infracting some important procedural rules. Again, claims of age discrimination, retaliation, and hostile work environment are often, as here, factually complicated and legally intricate. Yet plaintiff’s opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute. Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either. Shockingly still, plaintiff’s principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories:  She mentions a few ADEA cases, but only in the context of setting out the accepted summary judgment standard – amazingly, she spends no time describing the legal contours of an ADEA claim. …

To wrap up: Plaintiff’s lackluster way offends some major appellate procedural rules and controlling caselaw. Being human, lawyers of course will not always dot every “i” and cross every “t” in trying to live up to their obligations under the rules. And occasional mistakes – minor infringements of the rules that neither create unfairness to one’s adversary nor impair the court’s ability to comprehend and scrutinize a party’s papers – typically will not warrant Draconian consequences. But major breaches call for severe decrees, and the violations here are certainly major, given that they cripple any attempt to review the issues intelligently.

Consequently, for the reasons batted around above, we dismiss plaintiff’s appeal with prejudice, as the caselaw permits in situations like this.

(Citations and quotations omitted.) And that was that: plaintiff’s case was dismissed, with no effort to review the merits.

Here are the offending briefs from the plaintiff, as well as the defendants’ responsive briefs. The plaintiff’s brief certainly isn’t a model of written argument (and it does, as the defendants pointed out, mistakenly claim an “abuse of discretion” standard for the appeal of a summary judgment, rather than a de novo standard), but did it really “cripple any attempt to review the issues intelligently,” as the First Circuit concluded? The defendant had no trouble comprehending the arguments and responding. Was it really “amazing,” as the First Circuit claimed, that the plaintiff didn’t reiterate “the legal contours of an ADEA claim” when the plaintiff’s brief states right at the onset that they’re not challenging the legal standard used by the District Court, but rather the District Court’s review of the evidence? 
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Read more about sexual abuse lawsuits.

My children are young enough that Elmo’s voice still carries considerable weight in our home, and so I was disheartened to hear last week’s allegations that Kevin Clash, Elmo’s creator and voice, had a sexual relationship with a teenager. The alleged victim recanted — perhaps in exchange for a settlement, the reports I’ve seen have been unclear — but the issue resurfaced yesterday with the filing of a lawsuit against Kevin Clash in New York by a second alleged victim. The New York Times has a copy of the complaint; the new alleged victim, now 24 years old, claims Clash trolled sex chat lines for teenagers, found the victim, and then engaged in a sexual relationship with him while he was only 15 years old.

I, of course, don’t know if the allegations are true or not, but I do know that the case has a big problem in terms of whether it’s likely to succeed: the statute of limitations in New York has already expired for all of the usual claims alleged in sexual abuse cases. Apparently in recognition of that, his lawyers have not raised any of the typical state tort law sexual abuse claims — for example, assault and intentional infliction of emotional distress — but have instead filed for damages under a federal criminal statute most commonly used for child pornography victims. More on that in a moment.

As I discussed back when Jerry Sandusky was indicted, it is common — and understandable — for childhood sexual abuse victims to only be able to come forward many years after the abuse occurred, and thus often after the statute of limitations has run. In most states, including New York, the statute of limitations for tort claims is “tolled” (i.e., the clock doesn’t start running) until the victim turns 18 years old, but thereafter the victim only has a few years in which to file their civil claim. Few people turn 18 and suddenly come to terms with a traumatic event — the first few years in adulthood often isn’t enough time for a victim to process what has happened, and many victims repress memories about the assaults until their 30s, sometimes even later — and thus many victims never really have a chance to prove their case in court.

New York’s general statute of limitations for personal injury cases is three years, and New York law has not been kind to sexual abuse victims who failed to file a lawsuit within three years of their 18th birthday. In Zumpano v. Quinn, 6 N.Y.3d 666 (2006), former parishioners of two Catholic dioceses claimed they were sexually abused by priests but didn’t file a lawsuit until more than 20 years after they reached adulthood. The New York Court of Appeals ruled that the abuse was sufficient to trigger the statute of limitations for claims against both the priests and the dioceses that employed them, and so the statute ran three years after they turned 18 years old.

That’s the rule in the majority of states: the statute of limitations for childhood sexual abuse cases begins running right when the victim turns 18 years old. There are some exceptions — like the discovery rule, or tolling for fraudulent concealment — but they’re usually quite limited, and they’re often only applicable to the claims against the abuser’s employer. Earlier this year, for example, in the Poly Prep School Abuse case, a federal judge in New York allowed plaintiffs to move forward on their negligence and other claims related to abuse, on the theory that the school had allegedly “fraudulently concealed” their awareness of the abuser’s danger to the children. (Here’s the court order, which is a must-read for anyone interested in statute of limitations issues in sexual abuse cases, and here’s a New York Times story on the order.)

But I don’t see how Clash’s alleged victim could apply any of that court’s reasoning, which rests on the theory that the victim may not have had access to evidence showing the liability of the abuser’s employer, to his case; indeed, it seems his lawyers already concluded that his state tort claims were long gone, and so didn’t even attempt to allege any of the normal claims relating to sexual abuse. Instead, the alleged victim raises one and only one claim: “coercion and enticement to sexual activity in violation of 18 U.S.C. § 2422.”
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Graduate students in America live like ancient monks: they subside primarily off of stale noodles and rice, in constant fear that bureaucratic politics or the whims of their superiors will end their careers at a moment’s notice. They spend a little time researching and a lot of time inflating egos and toiling in drudgery, too overwhelmed with the full professors’ work to complete their dissertations.

Part of the problem arises from the nature of academia. As the eminent physicist Max Planck said decades ago, “a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.” The old guard will also look unfavorably upon any threat to their intellectual hegemony; most graduate students learn quickly to think what they like but to act like everyone else, feigning unwavering support for their advisors’ pet theories. Part of the problem arises from the total absence of accountability in academia, and the acceptance across many disciplines that graduate students are unpaid laborers who can be terminated at will rather than grant-supported students who represent the next generation of higher education.

It’s not like the dismal state of graduate studies is a big secret. The creator of PhD Comics (a.k.a. “Piled Higher and Deeper”) makes a living out of lampooning it. Earlier this week an email at an Astronomy PhD program was leaked (more here at Slashdot); helpful advice for succeeding with a stipend of around $20,000 annually includes, “We realize that students with families will not have 80-100 hours/week to spend at work. Again, what matters most is productivity.” It’s not a recent problem; one widely circulated letter from a Chemistry professor to his post-doctoral researcher in 1996 warned, “I have noticed that you have failed to come in to lab on several weekends, and more recently have failed to show up in the evenings.” To many universities, graduate programs are a for-profit racket not unlike medical residency.

Unfortunately, there’s a certain segment of the population — comprised mostly of people who hold tenure of some sort, like full professors, federal judges, and prominent newspaper columnists — that believes graduate students are insufficiently obsequious and afraid, and that academic freedom is in great peril when a professor can’t destroy a student’s career for some sort of grave “fault,” like being a girl (despite Title IX). 
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On Thursday, I was on a CLE panel for the American Bar Association’s “Torts and Insurance Practice Section” annual leadership retreat at the idyllic Palm Springs, where we (two state court trial judges, one federal magistrate judge, a defense lawyer, and yours truly) discussed a mix of discovery practice. As described by the ABA TIPS website:

We are also offering a Professionalism and Ethics CLE session on Thursday afternoon immediately before our Welcome Reception entitled: “Through the Looking Glass: What Lawyers Can Learn From Judges and What Judges Can Learn From Lawyers”, where a distinguished panel of lawyers and judges will discuss the deposition practice under the Federal Rules limiting objections, including how lawyers can effectively represent their clients while also complying with the rule and how judges and lawyers characterize compliance. The judges on our panel also will comment on the behavior they observe during the discovery process and provide guidance about ways that lawyers can improve the process, when judicial intervention is or is not necessary, and how judges respond to lawyers’ inappropriate conduct. In addition, the panelists will discuss how lawyers can work cooperatively and professionally with opposing counsel and what judges want to see from lawyers — and lawyers want to see from judges — to promote civility in the courtroom.

My contribution to the written materials was this prior post of mine about sanctions for coaching witnesses in depositions. Judge Jeffrey Cole, author of one of the opinions I discussed at length in that post, was on the panel, which was a thrill for me, and he was as enthused, energetic, and accurate (“read the statute, read the statute, read the statute”) as you would expect from his opinions.

The conversation wandered, as all good discussions of law wander across scenarios with consistent themes, through depositions, motions, ethics, sanctions, and what to do in troubling situations. As we seemed to agree (at least in my view), much of the sanctionable and otherwise inappropriate conduct by counsel arises not from an intentional decision to conceal evidence in a particular case, but from mindless clinging to default obstructionist tactics that they use in all cases.  These lawyers start cases in a “NO” posture, which can escalate to sanctionable conduct when it causes needless objections, a failure to produce evidence or honest testimony, and, finally — after the obstructionism has persisted long enough — an irreversible situation that is impossible to explain away.

One troubling situation raised by an audience member (who, from the context given in the question, was likely a defense lawyer, as are most of the active members of the ABA) involved a client you’re defending at a deposition saying something that you know to be incorrect. What do you do then?


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[Updated June 7, 2019, see below.]

A year and a half ago, I wrote a post, Philosophy Explains How Legal Ethics Turn Lawyers Into Liars, discussing a couple situations in which I witnessed my opposing counsel tell the judge an outright lie about the case.

I can’t say that I’m surprised to find that this problem hasn’t disappeared since that post, and I continue to devote many hours responding to opposing counsels’ objectively baseless motions.  Generally, these motions aren’t quickly or crudely written; rather, they tend to be quite carefully crafted and polished to create the appearance of a legitimate issue for resolution, a patchwork of quotes taken out of context from distinguishable cases.

Most notably, in a recent example, the baseless motion (for summary judgment) made no effort to address the central issue, which was that the defendant had, for the past two years, engaged in a procedural tactic that one Circuit Court has called “dishonest,” a procedural tactic that automatically waived their argument. Indeed, our own federal appellate court, the Third Circuit, examined that exact same procedural tactic just last year and had specifically ruled against it; my opposing counsel found that case and cited it for a completely different purpose, ignoring the actual reasoning and holding, which rendered their motion frivolous.

I suppose I could have filed a one-page response simply citing that case correctly, with a couple opinions from other Circuits – the unanimous rule across country, including the Restatement rule, is to reject this “dishonest” tactic – but I don’t take briefing on dispositive motions lightly. More to point, no one should taking briefing lightly; as I have said before, one of the worst things you can do is listen to the Supreme Court and hamper your own brief by voluntarily dropping meritorious issues, and so I addressed every issue raised by the wayward brief, each in detail, each with appropriate citations.

I have no doubt their dubious motion for summary judgment will be denied. Here’s the question: do I threaten my opponent with Rule 11 sanctions for wasting my time and the Court’s? I take it as a point of pride to actually know what is and what is not sanctionable — see, e.g. my post on sanctions for deposition coaching of witnesses — so I’m not going to send that threat unless I think there’s a real chance of sanctions actually being awarded. And thus the question is: can you get sanctions for having to respond to an opponent’s brief that failed to address directly contradictory precedent?

 
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Facebook, I wish I knew how to quit you. If we’re not discussing why Mark Zuckerberg won’t sue The Social Network, then we’re talking about you unilaterally changing your Terms of Use or your potential patent battle with Google over Foursquare. And now this:

Olympic rowing twins Cameron and Tyler Winklevoss are pushing ahead with another suit against Facebook, a day after they decided not to appeal [to the] U.S. Supreme Court [a] ruling [by the Ninth Circuit] upholding their $65 million settlement with Facebook and its founder Mark Zuckerberg.

I added the edits above because the original report was just wrong.

The continuation of the Winklevosses’ suit caught a lot of people off-guard: how can the Winklevosses continue a lawsuit in one court when another court has already held that they settled all of their claims?

Grab a cup of coffee and pick up your wands, we’re going beyond 1L Civil Procedure.

Some Background On The Two Lawsuits And The Settlement Agreement

A brief recap: there are two lawsuits involving the Winklevoss twins and Facebook, a lawsuit they filed in Massachusetts federal court (that’s the ConnectU case central to The Social Network) and a lawsuit Facebook filed against them in California federal court which, the Ninth Circuit summarized,

alleg[ed] that the Winklevosses and ConnectU hacked into Facebook to purloin user data, and tried to steal users by spamming them. The ensuing litigation involved several other parties and gave bread to many lawyers, but the details are not particularly relevant here.

Indeed. That Ninth Circuit opinion was quite boring by legal standards: it held that the one-and-one-third page term sheet that the ConnectU plaintiffs signed with the Facebook defendants following a mediation — in which the ConnectU plaintiffs released all their claims in exchange for cash and a piece of Facebook — was enforceable. The ConnectU plaintiffs came up with a couple clever arguments, like the claim that Facebook misrepresented its value and thus violated securities laws, but none of those really mattered: that one-and-one-third page term sheet was good enough to create an enforceable settlement.

That’s the opinion the Winklevosses were appealing to the Supreme Court. Not a bad idea to give that appeal up — their odds of success were minuscule, given that the case didn’t raise any particularly novel or interesting questions of law. It was your standard argument over whether or not a party would be bound by an initial settlement that was not reduced to a longer, finalized document to their satisfaction. (The answer is usually “yes.”)

The California case is thus done and gone, with a Ninth Circuit opinion affirming that the settlement included provisions under which:

The parties also agreed to grant each other “mutual releases as broad as possible,” and the Winklevosses represented and warranted that “[t]hey have no further right to assert against Facebook” and “no further claims against Facebook & its related parties.”

Ordinarily, there’s nothing more to do. The Winklevosses released and settled all of their claims, including the ones in Massachusetts. Typically, if there are multiple cases and one case ends with an agreement or opinion holding that all claims are released, the plaintiff files a praecipe or stipulation to dismiss the case. If they don’t, the defendant files a pro forma page-or-two motion moving to enforce the settlement and dismiss the case.

Using Fed.R.Civ.P. 60(b) To Revive A Lawsuit After You Lose

So, what gives? Can the Winklevosses really set aside the settlement agreement, despite the Ninth Circuit’s ruling enforcing it?

In relevant part, Federal Rule of Civil Procedure 60(b) states:

On motion and upon such terms as are just, the court may relieve a party … from a final judgment, order, or proceeding for the following reasons: … (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party….

As an April 20, 2011 status letter the Winklevosses filed with the Massachusetts court says:

The [ConnectU] Founders respectfully submit that Fed.R.Civ.P. 60(b) and Anderson v. Cryovac, Inc., 862 F.2d 910, 928-930 (1st Cir. 1988) warrant an inquiry into whether the Facebook Defendants intentionally or inadvertently suppressed evidence.

Ironically, if you’re in the United States, then you’re likely familiar with the case the Winklevosses rely on, Anderson v. Cryovac, Inc., 862 F.2d 910, 928-930 (1st Cir. 1988), even if you’re not a lawyer. It’s part of the appeal in the environmental contamination / toxic torts case that was the subject of A Civil Action.


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We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,’” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)


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The NYTimes had an article this weekend about the growing number of e-discovery vendors who can go beyond mere keyword searches into linguistic and sociological reasoning about millions of pages of documents:

[T]hanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

It often comes as a surprise to non-lawyers and law students, but the bulk of litigation work (measured in hours) performed at big law firms doesn’t really involve legal training or legal reasoning. The bulk of the work — which is performed by junior associates and contract attorneys as part of the “leverage” business model — involves the dreaded “document review.”


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Hello Lawyerist readers! Apparently a recent post there referenced this blog as a Trial Practice Blog Worth Bookmarking. I’m honored.

The link at Lawyerist pointed to this category page, which hasn’t been directly updated since March 2011 because this blog is in the (very long) process of transitioning to new blogging software. That’s why