Blog Archives
Negotiating With a Manipulative Party?
June 2, 2016
From a litigation advocacy perspective, it is unlikely you will be able to conduct actual negotiations via text. However, if you end up in mediation, remember that much of the bluster of the machiavellian, the manipulation of the psychopath, and the preening behavior of the narcissist will be eliminated when they are interacting with you not in person, but through the mediator. Make yourself think concretely—not “what does that really mean?” but, “what was offered?”. If you find yourself...
June 2, 2016
From a litigation advocacy perspective, it is unlikely you will be able to conduct actual negotiations via text. However, if you end up in mediation, remember that much of the bluster of the machiavellian, the manipulation of the psychopath, and the preening behavior of the narcissist will be eliminated when they are interacting with you not in person, but through the mediator. Make yourself think concretely—not “what does that really mean?” but, “what was offered?”. If you find yourself...
How to Satisfy Twombly/Iqbal in a Products Liability Case
June 2, 2016
In a significant contribution to the Fifth Circuit’s case law applying Twombly and Iqbal, the Court reversed the Rule 12 dismissal of a products liability case in Flagg v. Stryker Corp., recognizing that “in products liability lawsuits, almost all of the evidence is in the possession of the defendant.” The defendants, manufacturers of toe implants, contended that Flagg’s allegations “lack . . .details about how the implants may have deviated from specifications and performance standards”...
June 2, 2016
In a significant contribution to the Fifth Circuit’s case law applying Twombly and Iqbal, the Court reversed the Rule 12 dismissal of a products liability case in Flagg v. Stryker Corp., recognizing that “in products liability lawsuits, almost all of the evidence is in the possession of the defendant.” The defendants, manufacturers of toe implants, contended that Flagg’s allegations “lack . . .details about how the implants may have deviated from specifications and performance standards”...
Arbitration Clauses in Legal Fee Agreements
June 2, 2016
We all know about arbitration clauses but a recent case out of California, East Coast Foods v. Kelly, Lowry & Kelley, LLP, No. B262679, had something to say about arbitration specifically in the case of legal fee disputes. Is the arbitration clause in an engagement agreement between lawyer and client enforceable? In this case, yes. East Coast Foods is perhaps best known through one of its businesses, Roscoe's House of Chicken 'N Waffles. There was a copyright dispute raised by ASCAP over allegedly...
June 2, 2016
We all know about arbitration clauses but a recent case out of California, East Coast Foods v. Kelly, Lowry & Kelley, LLP, No. B262679, had something to say about arbitration specifically in the case of legal fee disputes. Is the arbitration clause in an engagement agreement between lawyer and client enforceable? In this case, yes. East Coast Foods is perhaps best known through one of its businesses, Roscoe's House of Chicken 'N Waffles. There was a copyright dispute raised by ASCAP over allegedly...
No Contractual Duty of Good Faith in Texas?
June 1, 2016
In spite of most jurisdictions reading a duty of good faith and fair dealing into all contracts, a Fifth Circuit Court of Appeals has held that it is unlikely that the Texas Supreme Court would find such a duty to exist in Texas. Wow. Additionally, the court found that no fiduciary relationship between a university student and his/her university faculty and other representatives. Section 205 of the Restatement (Second) of Contracts states that “[e]very contract imposes upon each party a duty...
June 1, 2016
In spite of most jurisdictions reading a duty of good faith and fair dealing into all contracts, a Fifth Circuit Court of Appeals has held that it is unlikely that the Texas Supreme Court would find such a duty to exist in Texas. Wow. Additionally, the court found that no fiduciary relationship between a university student and his/her university faculty and other representatives. Section 205 of the Restatement (Second) of Contracts states that “[e]very contract imposes upon each party a duty...
Veil Not Pierced
June 1, 2016
In Carpenter Properties Inc. v. JP Morgan Chase Bank, the Fifth Circuit found that a contract had been modified notwithstanding a signature on a formal counteroffer, but then found no liability under a “corporate veil” theory as to Chase: “[M]ere frustration with Chase for its failure to pay a commission once Chase’s identity was known is insufficient to amount to frustration of contractual expectations regarding the party to whom Carpenter looked for performance . . . .” No. 15-60309 (May...
June 1, 2016
In Carpenter Properties Inc. v. JP Morgan Chase Bank, the Fifth Circuit found that a contract had been modified notwithstanding a signature on a formal counteroffer, but then found no liability under a “corporate veil” theory as to Chase: “[M]ere frustration with Chase for its failure to pay a commission once Chase’s identity was known is insufficient to amount to frustration of contractual expectations regarding the party to whom Carpenter looked for performance . . . .” No. 15-60309 (May...
Medicare Set-Aside Accounts for Future Medical Expenses in Personal Injury Claims
June 1, 2016
When a settlement is reached in a personal injury lawsuit, a written settlement agreement is prepared, and, if medical expenses for the injured party have been paid by Medicare, a Medicare Set-Aside Account (MSA) may be created to reimburse Medicare for past, and potentially future, medical payments. The purpose of a MSA is to ensure that Medicare will not pay bills for plaintiff’s injuries where there is other insurance available. The rationale is that since plaintiff received settlement money...
June 1, 2016
When a settlement is reached in a personal injury lawsuit, a written settlement agreement is prepared, and, if medical expenses for the injured party have been paid by Medicare, a Medicare Set-Aside Account (MSA) may be created to reimburse Medicare for past, and potentially future, medical payments. The purpose of a MSA is to ensure that Medicare will not pay bills for plaintiff’s injuries where there is other insurance available. The rationale is that since plaintiff received settlement money...
Sharkey on the Economic Loss Rule in Products Cases
May 31, 2016
Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases). The abstract provides: Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability...
May 31, 2016
Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases). The abstract provides: Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability...
Study: Apology Laws Speed Up Malpractice Litigation
May 31, 2016
Dr. Patrick McKenna, of the Wisconsin School of Medicine and Public Health, has published a study on the effect of apology immunity laws in med mal cases. He found: that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws. In the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted. Renal & Urology News has the story.
May 31, 2016
Dr. Patrick McKenna, of the Wisconsin School of Medicine and Public Health, has published a study on the effect of apology immunity laws in med mal cases. He found: that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws. In the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted. Renal & Urology News has the story.
Anchoring Legal Standards
May 31, 2016
This article presents the first empirical study on whether anchors influence the interpretation of vague legal standards. To test this question, the article presents a series of stylized experiments that measure and compare participants’ interpretation of a vague norm after they were exposed to anchors. Overall, the results suggest that the content of substantive legal rules might be altered by anchors. This effect is documented in numerous legal settings (e.g., torts, corporate, copyright) and across...
May 31, 2016
This article presents the first empirical study on whether anchors influence the interpretation of vague legal standards. To test this question, the article presents a series of stylized experiments that measure and compare participants’ interpretation of a vague norm after they were exposed to anchors. Overall, the results suggest that the content of substantive legal rules might be altered by anchors. This effect is documented in numerous legal settings (e.g., torts, corporate, copyright) and across...
Sharkey on The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence
May 30, 2016
Cathy Sharkey (NYU Law) has posted a new piece on SSRN entitled The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence. Here's the abstract: The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only...
May 30, 2016
Cathy Sharkey (NYU Law) has posted a new piece on SSRN entitled The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence. Here's the abstract: The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only...
