I’m on trial this week (a dispute over the ownership of a business), so posting will obviously be light for the next two weeks. But I couldn’t let this quote from an article about Samuel L. Jackson slip by:

William Friedkin, who directed Jackson in “Rules of Engagement,” told me: “Sam is a director’s dream. Some actors hope to find their character during shooting. He knows his character before shooting. Sam’s old-school. I just got out of his way. I never did more than two takes with Sam.” Friedkin said that some people say Jackson works too much, but he dismissed actors who wait around for “Hamlet.” “You take what you can get,” he said, “to keep your engine tuned. An artist doesn’t burn out with age because he works too much. Working hones his craft.”

So it is with trial lawyers. You need to get back into the courtroom to keep your engine tuned, to hone your craft.

Some parts of trial are like riding a bike. You won’t forget how to tell if a statement is hearsay (assuming you knew how to tell in the first place).

But situations change quickly in a courtroom and a lawyer’s judgment tends to dull if not exercised frequently. Even in what seems like the most routine witness, there will always be adverse rulings from the judge or unexpected statements from a witness, and there’s a particular skill in figuring out what to do with that change immediately, a skill that simply can’t be taught or practiced. You just have to do it, and do it often.

Read more about our Pennsylvania sexual abuse lawyers.

In my last post about sexual assault myths, I referenced a case involving three sexual assault convictions overturned by the Pennsylvania Superior Court. (The case is formally Commonwealth v. Claybrook; here’s the Philadelphia Inquirer’s write-up.) The jury convicted and the trial judge denied the defendant’s motion for a new trial, but the Superior Court reversed, holding that the convictions were “contrary to the weight of the evidence,” and so remanded the case for a new trial. The prosecution appealed to the Pennsylvania Supreme Court, which is now considering the case.

This sort of issue is a bit distant from my normal work on civil litigation, but it implicates a fundamental principle of how our courts are supposed to function, hence my interest. In general, appellate courts exist to review legal issues, not factual issues. They don’t hear any testimony. They don’t see any witnesses shift and pivot in their seat, fumble with their words, look to their lawyer for help, or observe any other non-verbal cues that we associate with a person lying, being confused, or telling the truth. They read a cold transcribed record, where “I shot the clerk” may mean something else entirely.

As a civil lawyer, I find it strange to see an appellate court ever overrule a jury’s factual findings where those factual findings were also sustained by the trial judge. In civil trials, unless the trial judge made a legal error — like allowing in prejudicial evidence, excluding probative evidence, or giving a flawed jury instruction — then the verdict will almost always stand on appeal. The closest we have in civil litigation to “weight of the evidence” is “judgment notwithstanding the verdict,” which ends the case in favor of the party that lost in front of the jury, but that’s essentially reserved for the trial court to decide, not the appellate court, and the standard is astonishingly strict:

In reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there was sufficient competent evidence to sustain the verdict. We view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Finally, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury. A court may not vacate a jury’s finding unless the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.

Birth Center v. St. Paul Companies, Inc., 787 A. 2d 376 (Pa. 2001)(quotations and citations omitted). In the Birth Center case, I hasten to add, the trial court granted judgment n.o.v., overturning the jury’s verdict, but the Pennsylvania Supreme Court re-instated the jury’s verdict. It’s the jury’s province, not the court’s, to decide the facts. Like I said, outside of reversals for purely legal issues, judgment n.o.v. is exceedingly rare.

In criminal trials, however, there’s the “weight of the evidence” challenge, which I can only describe as a request for a do-over. In contrast to a motion for judgment n.o.v. in the civil context, a defendant’s motion for a new trial on the weight of the evidence allows the trial court to independently review the facts decided by the jury, with a far less strict standard than “no two reasonable minds could disagree:”

A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A. 2d 745 (Pa. 2000)(quotations and citations omitted).

Justice demands we have a check on the jury system like that. Justice is blind, but juries sometimes are not — sometimes they’re genuinely confused, given the complicated way in which trials are run — and the trial judge stands as a bulwark against manifest injustices. The “weight of the evidence” challenge was perhaps most famously granted by Judge James Edwin Horton in the Scottsboro Boys re-trial, where he overturned the jury’s conviction of the young men for rape. (Judge Horton knew the ruling would cost him his re-election, and it did.)  Continue Reading How Does An Appellate Court Find A Conviction Contrary To The Weight Of The Evidence?

It’s counterintuitive, but the law is more a science than an art. If you look at the entire universe of legal questions raised in and among our society on any given day, the vast majority have a simple, clear, and obvious answer.

Speed limits are constitutional. So is the sales tax. It is illegal to walk into a gas station, point a gun at the cashier, and demand their money. It is negligent for a driver to text while driving. If you hire a painter to paint your house for $1,000 and the painter does not paint your house, you do not owe them $1,000. And so on.

Parts of the law, however — the parts that warrant hiring a lawyer — are more an art than a science. How would you describe The Tonight Show in an entertainment contract? Should Mark Zuckerberg sue The Social Network for defamation? Does an obvious satire constitute trademark infringement? These questions don’t have easy answers. They don’t have right or wrong answers, just a wide spectrum of different answers with different benefits and drawbacks. That’s why you hire a professional, rather than a computer or an unskilled laborer, to answer them.

I’m a trial lawyer, so I’m biased, but I think that the law is at its artistic zenith at trial. I don’t like the analogy of trial to war (in my humble opinion, war is unique in the human experience and beyond analogy to lesser endeavors), and I don’t think sports really fits the bill (because trial lawyers think like a coach but execute like a player), so I tend to analogize to games of strategy. It’s like Chess or Go. There’s a new Harry Potter movie coming out; we can say trial is like a wizard battle.

Trial lawyers walk into court with plans, backup plans, and with training and experience in various techniques and methods. Trial, though, has a way of knocking askew the best laid schemes of mice and men; it’s less a choreographed ballet and more a rough mix of strategic adaptation, technical mastery, wit, and endurance.

Trial is hard. Anyone who tells you otherwise is doing it wrong.

My views on the difficulty and sophistication of trial lawyering are not particularly novel or unique, which is why it was a bit strange to read this recent post at Drug and Device Law:

The following week, we had lunch with an in-house lawyer. She was from a different company and, like us, had nothing to do with the case alluded to above. But she had followed it with interest. Moreover, she once had a case against the same plaintiff lawyer, who had operated from the selfsame playbook. Everything was the same: same disregard for the judge’s orders, same rearguments on points lost, same palpable insincerity, and same guy you couldn’t trust as far as you can throw a Sumo wrestler. But that case settled after closing arguments. And the jury was happy to talk with the lawyers. It turned out that they really did think the plaintiff lawyer was a buffoon. He ticked them off big time. But they were also thinking about giving him a big time verdict. So did that jury anger toward the plaintiff lawyer mean anything? Or do plaintiff lawyers get a free pass?

The easy answer is that plaintiff lawyers get a free pass if they have a sympathetic client. Just as the plaintiff lawyer insists, jurors are loath to take out their anger on an individual who has sustained a terrible injury. But the in-house lawyer went a step further, and offered a fascinating theory: an angry jury — no matter the source of the injury — is bad for the defense. If the case has become a nightmare for the jury, lasting way longer than expected and filled with mind-numbing sidebars and recesses (occasioned by the plaintiff lawyer’s latest outrage), the jury grows furious. If the atmosphere of the courtroom reeks of hostility, the jury marinates in that atmosphere. When it comes time for that verdict, the jury’s anger is a heckuva lot more likely to be visited upon a Fortune 100 company than someone who has spent a couple of weeks in an ICU and will never go to a junior prom.

That sort of cynical plan to inflame the jury by acting like a buffoon goes against everything trial lawyers are taught and everything they learn from experience. Sure, trial lawyers should push the boundaries sometimes, but they must be extraordinarily careful in doing it, not least because they can destroy their own cases by violating court orders.

If the above intentional anger theory is true, then the lawyer is practically begging to lose their case and to be sued for legal malpractice. It’s not like the case would be that hard; the lawyer is routinely violating court orders.

Ron Miller, himself a plaintiff’s trial lawyer, already responded here:

[T]he whole idea is so condescending: a sympathetic plaintiff and an angry jury trumps all. Really, if jurors are this dumb, we have to see if King George is available because the whole idea of democracy is just dumb. If these people are so foolish, why are we letting them vote?

… But there is a point here. Bad lawyers sometimes get great verdicts. What is the answer to this apparent contradiction of the evil plaintiffs’ lawyer and the big verdicts? Because there is no question this happens all of the time.

… [G]etting good cases is the key to having a successful plaintiffs’ practice. There is no law that only good plaintiffs’ lawyers get good cases. The skill sets to get personal injury cases and prepare them and try them overlap a little bit (and more so, admittedly, for defense lawyers). But not much. You are far better off being a bad lawyer with a good case than the reverse. Why? Because juries usually get it right.

Couldn’t agree more. Facts win cases. It’s a lot more common for a bad lawyer to lose a case than for a good lawyer to win a case. (If that last sentence seems strange, let it sink in.)

But maybe there’s still something to learn from the example. We lawyers see ourselves as wizards, and thus masters of patient deception, but, well, what if we just take everything the wayward plaintiff’s lawyer said at face value? Maybe he really was just highly emotional about this client’s cause. He would not be the first lawyer to become emotionally invested in the case; most of us trial lawyers have to expend additional effort to control our emotions at trial. Maybe he’s just not very good at that.

It reminds me of a recent NYTimes Opinionator column, In Search of the True Self:

How is one to know which aspect of a person counts as that person’s true self?

If we look to the philosophical tradition, we find a relatively straightforward answer to this question.  This answer, endorsed by numerous different philosophers in different ways, says that what is most distinctive and essential to a human being is the capacity for rational reflection.  A person might find herself having various urges, whims or fleeting emotions, but these are not who she most fundamentally is.  …

But when I mention this view to people outside the world of philosophy, they often seem stunned that anyone could ever believe it.  They are immediately drawn to the very opposite view.  The true self, they suggest, lies precisely in our suppressed urges and unacknowledged emotions, while our ability to reflect is just a hindrance that gets in the way of this true self’s expression.  To find a moment when a person’s true self comes out, they think, one needs to look at the times when people are so drunk or overcome by passion that they are unable to suppress what is deep within them.

Juries tend not to be composed of philosophers (there just aren’t that many philosophers in the population), so I presume that most juries believe that the wayward plaintiff’s lawyer lacks self control and that his true self, a person passionate about his client’s cause, is coming through and speaking to the jury.

If that’s the case, then there is indeed value to the lawyers’ outbursts: they convey passion and belief to the jury. “Anger” isn’t the issue; “sincerity” is. Juries, like all normal people, respond favorably to sincerity.

I’m sure the plaintiff’s lawyer could do a better job at conveying this sincerity without violating court orders and frustrating everyone in the room, but I’m doubtful that the lawyer is acting that way as a purely cynical ploy. It’s just too crazy of a plan, particularly when other, less risky options are available.


There’s been a wave of antitrust class actions predicated on patent misuse by pharmaceutical companies of the past decade. The troublesome Illinois Brick decision prevents “indirect purchasers” — which means you, me, and our health insurance plans — from bringing federal antitrust claims, so plaintiffs’ lawyers have had to get creative in use of state law to obtain relief for companies that have been overcharged for their medication, like the Sheet Metal Workers tried to do with the Pennsylvania Unfair Trade Practices and Consumer Protection Law (PUTPCPL). Given decades of efforts by anti-competition legislatures and judges to undermine consumer fraud law, it can be a tough sell.

When the direct purchasers, who are really wholesale dealers several steps removed from patients, come in, though, it’s a different story entirely, like in the Neurotin decision last week from the District Court for New Jersey:

Plaintiffs in the instant action each directly purchased Neurontin, a brand-name version of the drug compound gabapentin anhydrous (‘gabapentin’), from Defendants Pfizer, Inc. and Warner-Lambert Company, LLC (collectively, ‘Warner-Lambert’). In their Amended Complaint, Plaintiffs allege that Warner-Lambert engaged in an overarching anticompetitive scheme to acquire and maintain monopoly power in the market for gabapentin products in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2. Warner-Lambert is alleged to have carried out this scheme by:

(1) procuring two additional patents that it improperly listed in the Orange Book; (2) manipulating the patent approval process so that a third patent with claims so limited that they are impossible to accurately measure or distinguish from the prior art enabling the patent to be used to delay generic entry; (3) filing and prosecuting multiple sham lawsuits on these patents that no reasonable litigant could have expected to succeed; and (4) engaging in fraudulent off-label promotion to convince doctors to prescribe Neurontin for uses for which it was not approved.

DPNC Complaint ¶ 29. Plaintiffs claim that these actions were designed to, and did in fact, delay the entry of generic gabapentin into the market until late 2004. Plaintiffs allege that but for Warner-Lambert’s anticompetitive scheme, generic manufacturers would have entered the market at lower prices as early as 2000. As a result of this delayed entry, Plaintiffs contend that they and other direct purchasers of Neurontin were foreclosed from the opportunity of purchasing lower-priced generic versions of the drug for years, and were accordingly compelled to pay non-competitive prices for gabapentin. Plaintiffs seek damages for this overcharge pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26.

Neurontin Antitrust Litig. v. Pfizer, Inc., 2011 U.S. Dist. LEXIS 7453, at *4–5 (D.N.J. Jan. 25, 2011). It’s a case made for class action status, a case in which a large company damaged dozens or hundreds (depending on who’s counting) of smaller companies through the same course of conduct.

But it’s defense lawyers job to raise issues, whether there are any or not, so they gave it the old college try in opposing class certification. As usual in class actions, the battleground was over Federal Rule of Civil Procedure 23(b) (23(b)(3), that is, rather than 23(b)(2), at issue in Dukes v. Wal-Mart) and whether plaintiffs could show that (1) ‘questions of law or fact common to class members predominate over any questions affecting only individual members,’ and that (2) ‘a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.’ Fed. R. Civ. P. 23(b)(3).

The drug company’s hook this time:

The critical disputed issue here concerns whether common questions predominate with respect to antitrust impact. As noted above, ‘impact’ or ‘fact of damage’ is an essential element of Plaintiffs’ claim, and requires proof that Plaintiffs suffered some injury that was caused by Warner-Lambert’s antitrust violation. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969). At the class certification stage, the Court’s concern is only whether Plaintiffs could prove impact through predominately class-wide evidence; not whether, in fact, they have. Hydrogen Peroxide, 522 F.3d at 311; Linerboard, 305 F.3d at 152.

In the instant case, Plaintiffs assert that Warner-Lambert’s scheme delayed the market entry of generic gabapentin, in turn delaying the ability of Class Members to substitute purchases of Neurontin with purchases of a generic alternative. Plaintiffs contend that their injury stems from the higher prices they paid for Neurontin as a result of being foreclosed from buying lower-priced generics (the ‘overcharge’). To show this injury, Plaintiffs plan to demonstrate that, absent Warner-Lambert’s anticompetitive conduct, Class Members would have purchased the lower-priced generic in place of Neurontin. Warner-Lambert has conceded that this is a cognizable theory of injury, recognizing that ‘class members suffered damages to the extent that each entity would have substituted generic gabapentin for its purchases of Neurontin.’

Frankly, I find this line of attack to be silly, since there’s no doubt that Plaintiffs could prove impact through predominately class-wide evidence — the only question is the extent to which that actually happened, which is a question for the jury — and I’m glad to see the District of New Jersey rejected it.

That’s all well and good, and would be somewhat standard for a direct purchaser antitrust class action, but the interesting part came in one of the Court’s footnotes discussing what evidence satisfies the “predominance” factor in class certification:

See, e.g., Relafen, 218 F.R.D. at 343 (finding predominance requirement met where direct purchasers relied on ‘governmental and academic studies, projections and analyses described in [defendant’s] and its competitors’ internal documents, and price and sales data for Relafen and its generic equivalents’); Wellbutrin, 2008 U.S. Dist. LEXIS 36719, 2008 WL 1946848, at *8 (approving Dr. French’s use of literature examining impact of generic entry into pharmaceutical market and analysis of public data collected on dispensation and purchases of prescription drugs to prove common impact); Cardizem, 200 F.R.D. at 308 (approving the use of academic studies, defendants’ internal sales documents, and marketplace sales data, to prove common impact); Nifedipine, 246 F.R.D. at 370 (noting that plaintiffs’ expert explained that common impact could be proved by studies of generic entry on the pharmaceutical industry, evidence obtained from defendants, and publicly available sales data, and concluding that ‘plaintiffs have offered a sufficient colorable method of proving class-wide impact with common evidence as to the issue of causation’); Tricor, 252 F.R.D. at 229 (same); Meijer, 246 F.R.D. at 308 (same); K-Dur, 2008 U.S. Dist. LEXIS 118396, 2008 WL 2669390, at *15 (same).

Neurontin Antitrust Litig. v. Pfizer, Inc., 2011 U.S. Dist. LEXIS 7453, at *30–31 n.16 (D.N.J. Jan. 25, 2011). Undoubtedly right on the merits — what better way to prove what a defendants’ customers did than to look at the actual sales? — and a good cite to remember next time you’re litigating a nationwide, multi-million dollar patent abuse lawsuit. Or, if you really want the scoop, Barry over at Blawgletter is hosting a Webinar on just these sorts of issues today.



Via Scott Greenfield, Radley Balko writes about the $2 million settlement of the Sal Culosi case:

Fairfax County detective, David Baucum, overheard [Culosi] and some friends wagering on a college football game at a bar. “To Sal, betting a few bills on the Redskins was a stress reliever, done among friends,” a friend of Culosi’s told me… “None of us single, successful professionals ever thought that betting 50 bucks or so on the Virginia/Virginia Tech football game was a crime worthy of investigation.” Baucum apparently did. After overhearing the wagering, Baucum befriended Culosi. During the next several months he talked Culosi into raising the stakes of what Culosi thought were friendly wagers. Eventually Culosi and Baucum bet more than $2,000 in a single day, enough under Virginia law for police to charge Culosi with running a gambling operation.

By this point, the story is already curious, if not outright disturbing. No county, not even Fairfax County, has so many police officers, and so many good leads, that it can investigate and prosecute every single crime. For better or for worse, police officers and prosecutors make discretionary decisions every day, decisions often based on the severity of the alleged crime. Some crimes are ignored. Some crimes result in a warning, other crimes result in an arrest on sight, and a small fraction of crimes result in a months-long investigation with undercover officers.

I am not sure where a single instance of betting more than $2,000 in a single day should land on that continuum — it strikes me of the sort of crime worthy of a warning at most — but a handful of bets among friends amounting to a few hundred dollars falls absolutely nowhere on that continuum. It is not a “crime.” There is nothing about it worthy of concern, much less arrest, much less an undercover investigation. It is awfully hard to prevail on the defense of entrapment, but I think Culosi might have done it: “Where the Government has induced an individual to break the law and the defense of entrapment is at issue . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992).

All of which is to say, it’s hard to understand why so much police attention was directed at Culosi in the first place.

I represent people with civil rights claims against the police. I’ve represented police officers with civil rights claims against other police officers, and I’ve defended police officers from claims unrelated to their work. Most police officers want to do an honest day’s work, hopefully make the world a better place, and then go home. There are, of course, many officers who are constitutionally unfit for the job, but there also are a fair share of incompetent or malicious lawyers, doctors, butchers, bakers, and candlestick makers. That’s life.

But police officers’ work makes their situation different. They are commissioned by the government to put themselves at risk are authorized to use deadly force. They are given a duty, and trained to have an ethos, of ensuring order. The combination has a way of getting out of hand:

On the night of January 24, 2006, Baucum called Culosi and arranged a time to drop by to collect his winnings. When Culosi, barefoot and clad in a T-shirt and jeans, stepped out of his house to meet the man he thought was a friend, the SWAT team moved in. Moments later, Bullock, who had had been on duty since 4 a.m. and hadn’t slept in 17 hours, killed him. Culosi’s last words: “Dude, what are you doing?”

When deadly force is involved, it doesn’t take much for a curious and disturbing situation to immediately become tragic. No single mistake, no mere negligence, will cause a 38-year-old optometrist to be gunned down by a SWAT team for doing nothing more than betting on college football and, through the encouragement of the police, betting just above the legal limit.

Why was the undercover operation approved? Who decided to forcibly arrest Culosi, instead of just calling him? Who decided a SWAT team was needed? Why was an office who hadn’t slept in nearly a day involved? Why did he have his weapon in an aggressive posture, with his finger on the trigger?

And for each of those, who else knew it was happening, and why didn’t they stop it?

For a respectable member of the community to be killed for no reason, the state itself must have failed him.

But you can’t sue the state for failing you. The state, a legal fiction, enjoys a legal fiction invented for royalty, that of sovereign immunity. Even the federal government can’t authorize suits against the state, as I wrote before. 42 U.S.C. 1983 provides:

Every person who, under color of any [state law], subjects… any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …

1983 enables plaintiffs to sue “persons” who, acting “under color of” state law, violate rights guaranteed by the U.S. Constitution. But 1983 doesn’t enable plaintiffs to sue states that violate constitutional rights. The Eleventh Amendment and “the structure of the original Constitution itself” recognize the sovereign immunity of the states from suits by private citizens, which Congress can’t overcome with merely a statute. See Alden v. Maine, 527 U.S. 706 (1999)(holding Congress generally cannot authorize private suits against the state even in state’s own courts).

You also can’t sue them for wrongful death, the way you can sue a doctor who botches a surgery, a drunk truck driver, or a careless manufacturer — since they’re governmental employees, they, too, are immune from normal tort suit.

The only way, then, that Sal Culosi’s survivors could bring suit is by suing the officers personally under 42 U.S.C. 1983 for violating constitutional rights “under color of state law.” It’s not really “personally,” of course, since the government — you know, the “under color of state law” part — will pay every penny of the defense and the judgment, but we call it “personally” as another legal fiction, to open up new defenses for the government, such as arguments that the officer can’t “personally” afford judgments above a certain size.

But even that’s not simple. There’s no constitutional right to a competent police force. Instead, there are only constitutional rights to deprivation of life without due process, and rights to be free of excessive governmental force.

How much “process” is “due?” Not a lot. How much “force” becomes “excessive?” A lot more than most people think.

Moreover, all those “personally” sued officers — who are sued “personally” only as a legal fiction — get special rights of appeal because they’re sued “personally.” Unlike virtually every other type of lawsuit in America, in which appeals have to wait until the case is over, government officers sued for violating constitutional rights get to appeal in the middle of the case and have an appellate court double-check the ongoing work of the trial court. It happened in Culosi’s case; the government got a freebie appeal even before trial was held. More work, most expenses, more risk, more delay.

As Balko notes, after Culosi’s parents settled the case, his mother posted a heartbreaking entry online the site set up for her son:

I’ll beg your forgiveness Son…because I am not able…to go the distance. They call it…settlement. I call it something else…and because of that…my heart…is not settled…and my hope for justice…and my promise to you…have both been compromised…I believe in my heart that we would have won in court but I was told to consider the risk of that not happening…Our family has already been through almost 5 years of pain, frustration, disappointments, and stress…and there was the opinion that even if we won the county would appeal and that would mean a few more years and resources fighting what could still be a losing battle.

As Greenfield says, although the settlement claims it’s not “an admission of liability,” it is exactly that. Fairfax County didn’t vindicate itself by paying out $2 million after pointlessly entrapping and killing an upstanding citizen in his prime.

But the case is a reminder of just how hard it is for plaintiffs, particularly those with claims against the government, to prevail, even in the most meritorious of cases. It took Culosi’s parents “5 years of pain, frustration, disappointments, and stress” just to get the point where their case could settle pre-trial. Vindication at trial and on appeal would undoubtedly have taken several more years and, indeed, could have resulted in a total loss — a vindication of Fairfax County’s conduct — if the courts didn’t think the legal fictions lined up the right way.

The civil legal system is, at best, a form of rough justice, one that knows only how to speak in terms of money. Fairfax County has spoken as loudly as they ever will: Sal died wrongly, needlessly, and illegally. We can only hope that, when the government’s money talks, they will listen to what it is saying.


If you’re a reader of this blog, you’re undoubtedly familiar with Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a pair of Supreme Court cases which altered the pleading standards applicable to civil cases filed in federal court.

Defense lawyers have jumped all over those two opinions in an attempt to dismiss lawsuits — particularly complex commercial class actions, like antitrust cases — before any discovery can be taken. Every lawsuit, they claim, no matter how detailed and compelling, is "implausible" under Twombly and Iqbal. I taught CLEs to help other trial lawyers defeat those arguments.

Back when the Iqbal opinion first came out, I wasn’t impressed. Sure, the Supreme Court added the word "plausible" to the Rule 8 standard, but frankly I didn’t think Twombly or Iqbal would make Rule 8 and Rule 12(b)(6) any more dispositive than they already were. Before either of those cases were decided, if a judge read a plaintiff’s complaint and thought that the claim was "implausible," they would dismiss it under Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief could be granted. Twombly and Iqbal simply codified a practice that was already widespread in the federal judiciary.

That’s not to say I think the opinions do nothing — by way of their vague, ambiguous and amorphous language, they confuse a lot of judges into arbitrarily deeming certain allegations to be "conclusions" instead of "facts" (and even Judge Posner can’t figure out the "plausibility v. probability" distinction) — but the underlying legal principles are the same.

I said as much at the time. Time has proven me correct.

Almost exactly a year ago I posted Second Circuit Revives Digital Music Price-Fixing Case, Takes A Bite Out Of Twombly, noting a Second Circuit opinion which held:

Although the Twombly court acknowledged that for purposes of summary judgment a plaintiff must present evidence that tends to exclude the possibility of independent action, 550 U.S. at 554, and that the district court below had held that plaintiffs must allege additional facts that tended to exclude independent self-interested conduct, id. at 552, it specifically held that, to survive a motion to dismiss, plaintiffs need only “enough factual matter (taken as true) to suggest that an agreement was made,” id. at 556; see also 2 Areeda & Hovenkamp § 307d1 (3d ed. 2007) (“[T]he Supreme Court did not hold that the same standard applies to a complaint and a discovery record . . . . The ‘plausibly suggesting’ threshold for a conspiracy complaint remains considerably less than the ‘tends to rule out the possibility’ standard for summary judgment.”).

Defendants next argue that Twombly requires that a plaintiff identify the specific time, place, or person related to each conspiracy allegation. This is also incorrect. The Twombly court noted, in dicta, that had the claim of agreement in that case not rested on the parallel conduct described in the complaint, “we doubt that the . . . references to an agreement among the [Baby Bells] would have given the notice required by Rule 8 . . [because] the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies.” 550 at 565 n.10. In this case, as in Twombly, the claim of agreement rests on the parallel conduct described in the complaint. Therefore, plaintiffs were not required to mention a specific time, place or person involved in each conspiracy allegation. 

The Second Circuit’s opinion was significant. The case was right up Twombly‘s alley — an allegation of an illegal agreement in violation of antitrust laws, the details of which were still known only to the defendants — and so the Second Circuit’s reinstatement of the case dealt a powerful blow to the defense lawyers who had been arguing that Twombly and Iqbal had slammed the courthouse shut on plaintiffs who couldn’t prove their whole case before even filing it.

The record companies in that case weren’t inclined to throw in the towel, so they filed a petition for certiorari to the Supreme Court arguing, as you would imagine, that the Second Circuit failed to follow Twombly and Iqbal.

A funny thing happened yesterday. Tucked in among pages and pages of summary orders at the Supreme Court was this:

The petition for a writ of certiorari is denied. The Chief Justice and Justice Sotomayor took no part in the consideration or decision of this petition.

The Second Circuit’s opinion thus stands firm. Even after Twombly and Iqbal, all a plaintiff needs to allege, even in a complex antitrust case, is “enough factual matter (taken as true) to suggest" the elements of the claim.

That’s the same as the Third Circuit recently held in In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) and later applied to all cases, including complex cases, in W. Penn Allegheny Health Sys. v. UPMC, No. 09-4468, (3d Cir. November 29, 2010)(precedential).

In short, the Circuit Courts have taken a hard look at Twombly and Iqbal and have rejected the numerous attempts by big corporations to slam the courthouse doors shut on meritorious cases, and the Supreme Court hasn’t stopped those Courts from setting the record straight.

In celebration, below the fold are some plaintiff-friendly precedential opinions over the last year in various Courts of Appeals (in addition to the Second Circuit and Third Circuit opinions above). 

Continue Reading Another Twombly/Iqbal Victory for Plaintiffs: SCOTUS Denies Certiorari for Digital Music Price-Fixing Case

[UPDATELaw Librarian Blog and 3 Geeks and a Law Blog both have detailed coverage of the case and what it means for the publishing industry, and Jonathan Turley has background on the Campbell punitive damages case.]

[UPDATE II: As The Legal Intelligencer  reported, and as I predicted below, Judge Fullam cut the punitive damages verdict, holding “the constitutional limit in this case should be set at $110,000 for each plaintiff. When combined with the compensatory damages, this would result in a recovery of $200,000 for each plaintiff.” That’s roughly a 1:1 ratio of compensatory:punitive damages, which is low under recent precedent, even in non-personal injury cases.]

One of the big secrets about the legal world is that a huge portion of the work is performed by the newly-minted lawyers with little or no experience in anything, much less experience in the fields they are called upon to practice.

The Supreme Court (along with most federal and state courts) hires almost exclusively lawyers who have just graduated from law school. Expensive “BigLaw” corporate law firms churn through new graduates by the thousands, inflicting them on clients at $150–250 an hour to flail about through legal database searches and to endlessly review clients’ e-mails and documents to determine if they are arguably privileged.

Then there is the legal publishing industry. When all of these new lawyers are looking for answers in fields they barely understand, much less can practice in, they turn to textbooks, treatises, hornbooks, and guides that are supposed to give them all the answers or, at least, point them in the right direction. (Everyone expects hornbooks to be like a map, but, really, they’re meant more to be a compass.) Some of these guides are fantastic, written by seasoned professionals who explain, in simple but not too simple terms, what the relevant issues are and where a practitioner should go to answer further questions.

And then there is what happened to the Pennsylvania Criminal Procedure: Law, Commentary and Forms written by David Rudovsky (whose civil rights practice I’ve discussed here) of the University of Pennsylvania Law School and Leonard Sosnov of Widener Law School and published by West, one of the more prominent legal publishers. As The Legal Intelligencer recounted:

[T]he professors claimed that, because of a pay dispute, they stopped working on the project and therefore did none of the work on the December 2008 supplement, or “pocket part,” to their book…

West’s response, they claimed, was to publish a “sham” update that still carried the professors’ names, but included almost no case updates. …

But the supplement published in December 2008, Bazelon said, added just three new cases and failed to take note of any of the cases that had been reversed in the past year by the state Supreme Court.

The evidence, Bazelon said, showed that West assigned the task of writing an update to a woman who had graduated from law school one year before and then gave her just one week to do the work and never reviewed it before publication.

The law professors were understandably unhappy with their names being attached to a worthless supplement which not only failed to provide any new information, but which misled readers into thinking that the information contained in the textbook was more current than it actually was.

So they sued, as I previously described in How To Write Your Brief So That The Judge Will Hate You. As Rebecca Tushnet noted, the professors’ creative false advertising claims were dismissed before trial, leaving just the defamation.

Last week, a jury awarded them each $90,000 in compensatory damages and $2.5 million in punitive damages, for a total of $5.18 million. Not bad for a book that only made $17,000 in revenue.

Two issues jump out at me.

First, their punitive damages award has a math problem. As I noted in The Third Circuit’s 1:1 Punitive Damages Ruling: The Lingering Complications of State Farm v. Campbell, the Supreme Court has already indicated that it expects a “single-digit” ratio between compensatory damages and punitive damages in cases that do not involve physical injury, and the highest that the Third Circuit has approved to my knowledge is a one-to-seven ratio (in the CGB Occupational Therapy v. RAJ Health Services case cited in my post), which would limit the professors to $630,000 in punitive damages each.

Second, the trial court found that the publication was defamation per se because it “ascribes to another conduct or a condition that would adversely affect his fitness for the proper conduct of his lawful business.” Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 343 (3d Cir. Pa. 2005); see also Restatement (Second) of Torts § 573 (1977). It’s an important finding, since Plaintiffs then need only prove “general damages,” i.e., proof that one’s reputation was actually affected by the slander, or that he suffered personal humiliation, or both. Although I frankly agree with the law professors here (as you would expect, considering that I represent plaintiffs defamation cases), there is a good chance that the Third Circuit might not.

Nonetheless, the case is an important reminder to the legal publishing industry: if you are going to make her books the way you make sausage, just make sure the nominal authors of the books are on board with it.

The New Yorker recently reviewed Jay-Z’s book explaining his discography (“Decoded”) alongside “The Anthology of Rap,” a nine-hundred-page compendium published by two English professors who argue that rap should be considered a form of modern poetry.

I won’t touch that argument; poets and English professors are notoriously violent.

But one part of the article bears particular relevance to advocates:

Too often, hip-hop’s embrace of crime narratives has been portrayed as a flaw or a mistake, a regrettable detour from the overtly ideological rhymes of groups like Public Enemy. But in Jay-Z’s view Public Enemy is an anomaly. “You rarely become Chuck D when you’re listening to Public Enemy,” he writes. “It’s more like watching a really, really lively speech.” By contrast, his tales of hustling were generous, because they made it easy for fans to imagine that they were part of the action. “I don’t think any listeners think I’m threatening them,” he writes. “I think they’re singing along with me, threatening someone else. They’re thinking, Yeah, I’m coming for you. And they might apply it to anything, to taking their next math test or straightening out that chick talking outta pocket in the next cubicle.

There’s a crucial distinction between making a compelling argument and truly conveying to a listener the emotions you feel. Legal advocacy is nominally only about the former; there’s no shortage of cases and commentators complaining about “inflaming the jury’s passions” or the like. (Don’t believe everything you read — defense lawyers try to “inflame the jury’s passions” just as often as plaintiff’s lawyers.)

But in practice legal advocacy is about both. A “really lively speech” isn’t as persuasive as a “really lively speech” that also helps listeners “imagine that they were part of action” — and thus helps listeners feel, and not just think, the same unwavering conviction and rightness that the lawyer feels about their client’s cause.

As much as we would all like to draft every brief, and prepare every argument, with the head and the heart, with overwhelming reason and passion, most lawyers default to either the reasoned or the emotive perspective in their drafting and preparation. (In my humble opinion, the more complicated the law in the case is, the more likely it is that lawyers will focus primarily on their reasoning.) Then, to the extent possible, and largely as an afterthought, the lawyer will either nudge an emotive argument to fit with the reasoning or sprinkle the reasoning with emotion.

Yet, as I described in my part of The Jury Expert’s article on Don Keenan & David Ball’s “Reptile” book:

In the field of advocacy, little has changed since the publication of Aristotle’s Rhetoric two and a half millenia ago. “There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.” Whatever label we give our particular means of exciting the emotions — such as Ball and Keenan’s “reptile” or Allen, Schwartz and Wyzga’s “moral sense” — we must be careful not to miss the forest for the trees.

Advocacy is an art driven by language and emotion, not a science driven by data and testable hypotheses. Although it is always folly to attempt to manipulate a jury, advocates must remain open to all of the rhetorical tools available to them, and must adapt to the case at hand, sometimes by focusing on “the immediate danger of the kind of thing the defendant did,” sometimes by crafting a “persuasive narrative” through “attention choreography,” and sometimes by mixing those approaches.


As Aristotle described in the Poetics:

Poetry in general seems to have sprung from two causes, each of them lying deep in our nature. First, the instinct of imitation is implanted in man from childhood, one difference between him and other animals being that he is the most imitative of living creatures, and through imitation learns his earliest lessons; and no less universal is the pleasure felt in things imitated. We have evidence of this in the facts of experience. Objects which in themselves we view with pain, we delight to contemplate when reproduced with minute fidelity: such as the forms of the most ignoble animals and of dead bodies. The cause of this again is, that to learn gives the liveliest pleasure, not only to philosophers but to men in general; whose capacity, however, of learning is more limited. Thus the reason why men enjoy seeing a likeness is, that in contemplating it they find themselves learning or inferring, and saying perhaps, ‘Ah, that is he.’ For if you happen not to have seen the original, the pleasure will be due not to the imitation as such, but to the execution, the coloring, or some such other cause.

Imitation, then, is one instinct of our nature. Next, there is the instinct for ‘harmony’ and rhythm, meters being manifestly sections of rhythm. Persons, therefore, starting with this natural gift developed by degrees their special aptitudes, till their rude improvisations gave birth to Poetry.

Per Aristotle, advocates need first and foremost to “reason logically,” but should also “excite the emotions,” including by enabling “the instinct of imitation.”

Part Chuck D, part Jay-Z.

(But leave the “harmony and rhythm” to the poets and the rappers.)

[Update: Judge Massiah-Jackson upheld the verdict and overruled the defendants’ post-trial motions. Now comes the appeal to the Pennsylvania Superior Court.]

[Update 2: The Pennsylvania Superior Court reversed, citing three grounds: an error in the jury instruction, the need for Dr. Booth to produce an expert report before trial, and the need for the jury to hear about Dr. Booth’s tolling agreement with the plaintiff. Judge Wecht dissented on all three of those issues.]

[Update 3: The Pennsylvania Supreme Court reversed the Superior Court on every issue, an important win for plaintiffs.]

[Update 4: The Pennsylvania Superior Court  decided the damages issue, holding that the verdict was excessive, and instructing the trial court to re-hear on the issue of remittitur.

Let me add a note here: it has been six years since the trial verdict, and eight years since the lawsuit was filed. This case is a harsh reminder that a big verdict doesn’t necessarily mean money in the plaintiff’s pocket — often it means many more years of litigation ahead.]

As The Legal Intelligencer hinted last night:

A Philadelphia jury returned a $27.6 million verdict Monday in favor of a woman and her husband who said she was injured while taking part in a promotional video for an artificial knee implant. Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson presided over the trial in Polett v. Public Communications Inc. The judge confirmed that the jury awarded $26.6 million to plaintiff Margo Polett and $1 million to plaintiff Dan Polett for loss of consortium. The jury apportioned 36 percent negligence to public relations company Public Communications Inc., the Chicago firm hired to make the artificial knee video, 34 percent negligence to orthopedic medical device manufacturer Zimmer, and 30 percent negligence to Margo Polett, the judge confirmed.

Polett, 71, of Gladwyne, Pa., now must use a walker and she has had four surgeries that have failed to improve her condition, the plaintiffs’ memorandum said.

We’re no strangers to big verdicts; just last week, the Pennsylvania Superior Court affirmed a $20.5 million verdict that Slade McLaughlin and I obtained two years ago.

Our case was substantially different from Ms. Polett’s — there’s a big difference between the death of an 18-year-old and an injury which is crippling, but not paralyzing, to a woman in her 60s at the time of the accident.

But large verdicts all tend to share one thing in common: outrage.

I haven’t a clue what happened at the trial. But from looking at the docket, I can make a few educated guesses. Consider these pre-trial rulings:


Just look at the nonsense the defendants filed. A summary judgment based on “no duty” and comparative negligence as a barrier to relief? That used to work a few generations ago under the banner of “contributory negligence.” These days it’s an “outmoded, and widely criticized, legal doctrine” that was replaced by 42 Pa.C.S.A. § 7102. Gorski v. Smith, 812 A.2d 683, 701 (Pa. Super. Ct. 2002). Little wonder the defendants lost that one.

Then, having lost that issue on summary judgment, they raised the same issue again — rephrased as an effort to preclude “opinion testimony” on the matter — as a motion in limine, where they again lost. Again, little wonder. See Pa.R.E. 702, 42 Pa.C.S.A. (“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise[]”). See also Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995) (holding, “The test to be applied … is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.”).

Then they filed motion in limine to preclude “incomplete hypothetical scenarios?” If an opponent’s hypothetical is incomplete, you have more than enough opportunity to explain that to the jury. Unless the scenario is totally baseless — which even the defendant knew it wasn’t, otherwise they would have filed a Frye motion instead, per Trach v. Fellin, 817 A.2d 1102 (Pa. Super. Ct. 2003) — then the issue goes for the jury to determine.

Just off the titles I can predict that the defense was predicated upon blaming the victim entirely for the accident, asserting that they had no responsibility whatsoever to the plaintiff, and legal hail-mary throws aimed at taking factual determinations from the jury.

Don’t believe me? Consider the first things they did in the case: file a third-party complaint against Dr. Robert Booth, her treating physician and the inventor of the knee replacement itself. Little wonder he testified (as far as I can tell from the reporting) that, in his medical opinion, the plaintiff’s injuries had nothing to do with his treatment or with the nature of the device itself.

All of which, I’m sure, went over like a lead balloon. Juries don’t like it when people who are at least partly at fault for the damage claim to be unaccountable.

I doubt Ms. Polett will take home anywhere near the $8mm to $19mm due under the verdict (consider the reality of birth injury verdicts), but it’s no surprise that she’s walking away victorious.

Bormes v. U.S., 2009-1546 (Fed. Cir. November 16, 2010), isn’t the type of suit you see every day:

On August 9, 2008, Bormes, an attorney, filed a law-suit on behalf of one of his clients in the U.S. District Court for the Northern District of Illinois using its online document filing system. Bormes paid the filing fee using his credit card, and the transaction was processed through the government’s pay.gov system. The govern-ment then provided Bormes with a confirmation webpage that appeared on Bormes’ computer screen. The confir-mation page contained the expiration date of Bormes’ credit card.

That’s a problem. 15 U.S.C. § 1681c(g)(1), part of the Fair Credit Reporting Act, provides:

Except as otherwise provided in this subsection, no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.

Thus, Bormes filed suit, just as he could against any other vendor which disclosed too much information on a receipt:

Alleging that the display of his and similarly situated plaintiffs’ credit card information violated section 1681c(g)(1) of FCRA, Bormes filed a class action lawsuit against the government. Bormes seeks, among other things, statutory damages, attorney’s fees, and costs.

But there’s a problem: the United States government isn’t just any other vendor. It’s the sovereign, so you have to come up with some specific basis authorization for suing it:

In his complaint, Bormes alleged jurisdiction under both 28 U.S.C. § 1346(a)(2), commonly referred to as the Little Tucker Act, and FCRA’s own jurisdictional provision, 15 U.S.C. § 1681p.

The District Court dismissed, on the ground that FCRA did not waive the federal government’s sovereign immunity, and so jurisdiction under the Little Tucker Act was moot.

Normally, claims against the United States have to be filed in the United States Court of Federal Claims, but that’s quite a lot of work for people who have modest claims. The Little Tucker Act is, in essence, small claims court for claims against the United States:

The Little Tucker Act, 28 U.S.C. § 1346, gives the district courts jurisdiction, concurrent with the Court of Federal Claims, over “any other [than tax refund] civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon any Act of Congress.” The Little Tucker Act is therefore a jurisdictional provision that also operates “to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts).” United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009).

Which brings us to the issue at hand:

Because the Little Tucker Act operates to waive sovereign immunity, the district court erred in dismissing Bormes’ case without considering whether the Little Tucker Act provided an alternative basis for jurisdiction. If the Little Tucker Act authorizes the district court to hear this case, it also provides the waiver of sovereign immunity that the trial court found lacking in the FCRA itself. See United States v. Mitchell, 463 U.S. 206, 216 (1983) (“If a claim falls within the terms of the Tucker Act, the United States has presumptively consented to suit.”).

To support jurisdiction under the Little Tucker Act, the substantive law that provides the basis for the plaintiff’s claims must be “money-mandating.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). A source of law is money-mandating if it “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (quotation omitted). This “fair interpretation” rule demands a showing “demonstrably lower” than the initial waiver of sovereign immunity: “It is enough . . . that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be ‘lightly inferred,’ . . . a fair inference will do.” Id.

And, indeed, the FCRP is about as money-mandating as it gets; the FRCP “unquestionably provides for money damages” and “expressly defines the term ‘person’ to include ‘any . . . government.'”

You don’t need anything more than that to establish the waiver of sovereign immunity and jurisdiction under the Little Tucker Act. Dismissal vacated and remanded back to the District Court.

[UPDATE: The Supreme Court has since granted certiorari on the case, which should be interesting. Based on my understanding of how many government jobs work, this could present a big problem if the United States is exposed to, for example, liability for illegal background checks.]