Blawgletter®

CLE on Current Developments in Business Litigation

At 1:00 p.m. Eastern on April 16, 2008, the American Bar Association will present a teleconference on "Current Developments in Business Litigation".  Subjects will range from e-discovery and case evaluation to electronic exhibits and streamlining litigation.  ABA members can participate for $9.75 and get an hour of CLE credit.

The ABA Journal previews the CLE program in short articles that the authors adapted from their chapters in Business and Commercial Litigation in Federal Courts.  The ABA's Section of Litigation and Thomson West published the treatise in 2005.

Presenters will include David Boies, Judge Shira A. Scheindlin, and -- you guessed it -- Blawgletter.  Our article, from the chapter on "Techniques for Streamlining and Expediting Litigation", appears below. 

Streamlining Litigation: Try to get along with opposing counsel

BY STEPHEN D. SUSMAN AND BARRY C. BARNETT

Maybe it’s just not obvious that one of the best tactics for streamlining litigation is simply to make an effort to get along with opposing counsel.

Some lawyers still conclude that the byproducts of contentiousness—higher costs and longer delays in particular—somehow work to their advantage and advance the interests of their clients. These lawyers may deliberately provoke opposing counsel in hopes of wearing them down, or at least distracting them and forcing errors. Lawyers may even resort to juvenile attacks and bombard opposing counsel with threats of personal sanctions.

By contrast, opposing lawyers who get along with each other make an enormous difference to the administration of justice. Their good relations translate into all kinds of benefits to the court and their clients: greater ease in scheduling conferences, discovery, hearings and trials; elimination of unnecessary motion practice and discovery fights; a focus on the merits; fewer misunderstandings and, as a result, less disagreement; far lower costs; a happier judge; and more confidence among the litigants in the fairness of the process.

Illustration by Stuart Bradford

Getting off to an amiable start doesn’t take much effort. Counsel on either side can encourage good relations simply by calling the opposing lawyers as early as possible to introduce themselves.

Make this a habit! That way you can truthfully tell opposing counsel that you always call regardless of which side you represent. You can propose, in every case, that both sides agree on a standard set of procedures before either side can figure out which will benefit more from any particular procedure. Offer to send opposing counsel a draft, and promise to consider any additions or changes they suggest.

The worst possibility is that the opposition says no. But you will have started the process of setting a cooperative tone and promoting trust. Those efforts increase the likelihood of entering into agreements that will streamline and expedite every phase of the case.

The court has a key responsibility for relations between counsel. While many judges hate the idea of refereeing arguments between counsel—and tend to think both sides share equal blame for their disputes—letting poor relations between lawyers fester creates more problems for judges in the long run. Abuses multiply. Communication vanishes. Justice suffers.

The judge must strongly discourage disputatiousness, personal attacks and displays of anger. And he or she must grapple with the problem early and consistently. Adopting codes of behavior helps, but it can’t substitute for personal intervention by the judge when appropriate. Indeed, judicial aloofness gives the appearance of sanctioning boorish behavior and worse. Consistently bad conduct by counsel reflects poor management by the court.

But persuading the judge to take action can be a challenge and may become impossible late in a case. As soon as you see a chronic problem, therefore, consider asking for a brief conference with the judge to establish expectations about professional behavior. Do not, under any circumstances, attack opposing counsel, even if—especially if—you believe they richly deserve it. A neutral but earnest request for the court’s assistance has the best chance of success. Most judges will take the hint.

Get those questions ready!

"Spent Mushroom Substrate" Remediator Loses Case

Blawgletter doesn't much care for mushrooms.  Or other kinds of fungi for that matter.  A Federal Circuit decision two days ago confirms us in our bias.

Growing mushrooms, we learned as we read the opinion, produces a nasty byproduct -- something by the name of "spent mushroom substrate".  SMS's nitrogen-richness creates problems, we also discovered, when the toadstool farmer dumps the SMS in the woods, where rains carry it into streams and from there into fragile ecosystems and drinking water supplies.

We love business cases, by the way, in part because we get to learn about a great many industries.  Who knew, for example, that mushroom-farming "is a major economic activity in Chester County, Pennsylvania"?  Rick's Mushrooms, Inc. v. United States, No. 07-5137, slip op. at 2 (Fed. Cir. Apr. 2, 2008).  You can bet your last pile of Shiitakes that we didn't before today.

The Rick's Mushrooms case involved a claim against the government for its bum instructions on how to clean up SMS at an "SMS transfer facility", where some mysterious process leaches out the mushrooms' nitrogenous leavings from soil and converts them into potting soil and such.  We think that Rick's Mushrooms somehow forgot to exhaust administrative remedies before suing and therefore couldn't establish subject matter jurisdiction.  But that just may be the psilocybe cubensis talking.

Go ask Alice, we say.

$109 Million for Clintons Since 2000

Two lawyers, one facing and later suffering disbarment, earned $109 million in seven years, per The Washington Post.  About $51 million came from the ex-President's speaking honoraria.  Another $30 represented book royalties for him and the former First Lady. 

Blawgletter's question?  Where did the other $28 million come from?

Happy Friday!

Quote of the Day: E. Grady Jolly

This case was birthed in Louisiana state court by Barry and Sheryle Bernhard.  It was adopted by the Middle District of Louisiana when the defendants, Capital One and Whitney National Bank, removed it on the basis of a federal question.  Whitney appeals a split-the-baby decision of the district court, granting summary judgment in Whitney's favor on the federal claim, yet remanding the state claims.  Because we hold that, under the unusual circumstances of this case, the district court lacked federal question jurisdiction, we VACATE the district court's judgment and REMAND with instructions that the case be remanded to te custody of the state court.

Bernhard v. Whitney Nat'l Bank, No. 07-30464 (5th Cir. Apr. 2, 2008).

You will forgive Blawgletter for speculating that the court delayed issuing the opinion for a day.

Who said federal judges aren't funny?  Sometimes.

Second Circuit Smokes "Light" Cigarette Class Action

Writing for a unanimous panel, Second Circuit Judge John M. Walker, Jr, today gave half a dozen or more reasons why the district court shouldn't have certified a class of "light" cigarette smokers.  They included that:

• The fraud claims under the Racketeer Influenced and Corrupt Organizations Act of 1970 required each class member to prove that he or she "relied" on false information about the health risks of smoking "light" cigarettes.
• No presumption of reliance applies in this case.
• Each class member also had to show "loss causation" -- that the mistruths about light cigs led them to suffer some kind of compensable harm -- because some of them might have bought and inhaled even if they knew the truth.
• RICO doesn't allow benefit of the bargain damages.
• The plaintiffs' methodologies for computing overpayment don't stand up.

  McLaughlin v. Am. Tobacco Co., No. 06-4666 (2d Cir. Apr. 3, 2008).

The first point caught Blawgletter's eye.  Avid readers -- thanks mom and dad! -- will recall that the Supreme Court has before it a case that will decide that very issue:  Does RICO require proof of reliance?  Post here, amicus brief yonder.

Smokin!

Enron Day at the Fifth Circuit

Today the Fifth Circuit heard arguments in the appeal of former Enron CEO Jeffrey K. Skilling from his criminal conviction for fraud.  But by the time that session rolled around, in the East Courtroom of the magnificent John Minor Wisdom Court of Appeals Building in New Orleans, the same panel heard three other Enron cases. 

Blawgletter wonders if Their Honors felt some Enron overload.

We don't know what specific issues the first three cases involve, but they all look to us like civil matters.  See the Court's schedule here.

The panel members?  Circuit Judges Jerry E. Smith and Edward C. Prado and Western District of Texas District Judge Alia Moses Ludlum.  Now inhabitating a cell in Minnesota, Mr. Skilling hopes they rule soon. His way

Can you say mark to market?.

Perhaps This Helps Explain the Decline in the Texas Supreme Court's Influence

Blawgletter wrote recently about a survey that puts the Supreme Court of Texas way below the "influence" one would expect from the second most populous -- and therefore smartest -- state in the Union.  The survey's ranking methodology also indicates that the Court's influence declined even further since the "Justice for Sale" days in the 1980s.  Yipes.

True or not true?  We don't rightly know, but we do know that today we read a decision -- from last Friday -- that may emblemize why the Court's recent opinions don't carry a bunch of persuasive force outside the Lone Star state.

The case involved the question of whether a "drive axle" that detaches from Vehicle A still counts as a "motor vehicle" for purposes of determining whether Vehicle A made "actual physical contact" with Vehicle B.  If the flying axle from Vehicle A does so count, the insurer of Vehicle B has to pay for the damage under its "uninsured motorist" policy.

The Court held that a "drive axle with two tandem wheels" ceased its status as "motor vehicle" when it came loose from an 18-wheeler before sailing across the divider and crashing into the oncoming station wagon of Mohamad Elchehimi.  In so ruling, the Court relied on a non-precedential Texas court of appeals opinion that deemed a loading ramp not a "motor vehicle" after its separation from the rest of a truck.  Nationwide Ins. Co. v. Elchehimi, 06-0106 (Tex. Mar. 28, 2008).

No word on what the Court would have done if the truck disintegrated into several pieces -- none of which by itself would qualify as a "motor vehicle" -- before striking the other vehicle.

The two-Justice dissent cited and discussed dozens of cases, from Texas and elsewhere, and explained in detail why coverage exists "when the insured is struck by an integral part of another vehicle and there is a temporal continuity between the part’s detachment from the unknown vehicle and collision with the insured."  The "actual physical contact" requirement exists, the dissenters urged, to prevent fraudulent claims -- not to cut off coverage for plainly meritorious claims.

We expect that the Elchehimi decision will earn the "followed" designation in Shepard's from zero of the Court's sister courts around the nation.  Because a persuasive legal opinion can't simply string quotes and cites and sentences and paragraphs together and state a conclusion that seems colorable to the majority.  The opinion must also make compelling sense.  It helps if it seems fair.  Elchehimi, in our view, may reach colorability, but it falls painfully short of convincing.  Not to mention of fairness.

Our feed wishes it had an echo chamber.

Federal Courts Declare One-Day Opinion Moratorium

Speaking on condition of anonymity, Chief Justice John Glover Roberts, Jr. -- the "Glover" is silent -- announced today that the U.S. judiciary will keep its opinions to itself for the duration of April Fools' Day.  Unidentifiable but independent sources verified the gist of the Chief's secret press release.

Ralph Waldo Emerson (1803-82), commenting in a rare beyond-the-grave interview, praised the magisterial hiatus, mumbling something about "foolish consistency", a "hobgoblin", and "little minds".  Apparently he believes a once-a-year quotidian moratorium the very opposite of foolishness.

The GEICO gecko had no comment.  At least not one Blawgletter could publish in a family blawg.

Yes, our feed does boast a bigger RSS icon today.

Paulson Plan: Ruse -- or Sham?

Treasury Secretary Henry J. "Hank" Paulson, Jr., leaned forward across the lecturn as he described his year-in-the-making "Blueprint for a Modernized Financial Regulatory Structure".  NYT article here; WSJ here.

The Blueprint arrives with passing strange timing.  In the midst of market turmoil and calls for stiffer regulation, Mr. Paulson urges . . . strengthening the President's Working Group on Financial Markets to make recommendations, creating a Mortgage Origination Commission to make more recommendations, and continuing (via the Federal Reserve) to furnish bail-outs, er, "liquidity provisioning" for banking institutions that made supremely stupid investment choices.  One gets the feeling that the only real part of this "short term" portion of the Blueprint is the last one.

The Blueprint goes on to recommend middle and long term solutions.  Blawgletter's favorite is the one to abolish state regulation of insurance companies.  But a theme permeates the whole stinkin' document:  Preemption, preemption, preemption.

That a former Chairman and CEO of Goldman Sachs would support federalization of financial market regulation shouldn't come as a surprise.  But the notion that the ideas will actually strengthen or improve regulatory oversight calls, at first blush, for a big dose of skepticism.  Plus we can't imagine that Mr. Paulson has so little political savvy as to believe that the Blueprint will actually produce any change in the short term.  The administration can expand or create all the "Commissions" it wants, and the Fed can keep doing what it's already started doing (that "liquidity provisioning" thing). 

So what was the purpose of announcing, just now, a Blueprint for no changes before January 2009 but huge ones later on?

BAP Tosses Lawyer Sanctions

The Eighth Circuit's Bankruptcy Appellate Panel today overturned the bankruptcy equivalent of Rule 11 sanctions against a lawyer for taking "inconsistent" positions on behalf of his clients.  The BAP noted:

Advancing different legal theories that might result in an inequitable result should not subject an attorney to sanctions when one of those arguments fails to carry the day.  An attorney's ethical obligation is to represent his or her clients vigorously and zealously, which Mr. Oliver did in this case.

In re Thayer (Am. Residential Mortgage, LP v.Thayer), No. 07-6045 (8th Cir. BAP Mar. 31, 2008).

Well, duh.