Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches

June 22nd, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , |

Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies. Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story. Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases. Laurie Webb Daniel Partner Webb Daniel Friedlander Kathryn Lehman Partner King & Spalding CLE On-Demand Webinar July 18th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. Why do motions to dismiss or for summary judgment usually fail? How can defense counsel give the jury a reason not to award punitive damages? Why must defense counsel, when punitive damages are alleged, think like a plaintiff's lawyer? How can anchoring be used effectively? How can counsel use FRE 407 to show that punitive damages are unnecessary? Finding and telling the defendant's story Focusing on the "why" of the defendant's actions Countering [...]

Influencing the Jury Using and Objecting to Demonstrative Exhibits

June 22nd, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , |

Influencing the Jury Using and Objecting to Demonstrative Exhibits Developing a Visual Strategy for Trial, Recognizing Misleading or Inaccurate Exhibits, Proposed Amendments to FRE 611 Lawyers throw away an important opportunity to influence the jury if they do not offer their own demonstrative exhibits and object to misleading or inaccurate exhibits offered by their opponents. Jurors routinely create their own diagrams, charts, lists, etc. to visually organize and understand what they believe they heard and saw in the courtroom. Creating both an affirmative and defensive "visual strategy" for trial is as important as picking the theme for trial and requires planning and the proper foundation. Demonstrative exhibits are powerful tools that can be inaccurate or misleading--accidentally or intentionally. Too much, and the jury can be overwhelmed. The issue of misleading and inaccurate demonstrative exhibits and visual aids has fueled proposed amendments to Federal Rule of Evidence 6ll that could curtail their use or at least heighten the hurdles to using them. Professor Colin Miller Professor of Law University of South Carolina School of Law Justin Watkins Attorney Langdon & Emison Live CLE Webinar July 11th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What is the difference between an exhibit and visual aid? Are demonstratives presumed acceptable unless objected to? In what ways [...]

Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis

June 22nd, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , |

Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis Understanding the Measure of Loss and How Economic Experts Attempt to Model Them on a Classwide Basis Consumer fraud, false advertising, and latent-defect product class action cases often seek to recover the difference between the market price actually paid and the true market price that reflects the impact of the unlawful, unfair, or fraudulent business practice: the “price premium.” In evaluating price premium damages, plaintiff and defense experts often disagree about how and to what extent economic models are supposed to--and do--take into account both the demand and supply side of market. Separating the effect of the relevant claims from the effects of numerous other confounding factors must be done in accordance with rigorous scientific standards. In determining whether to certify proposed consumer classes, courts often evaluate price premium models proposed by plaintiff and defendant experts. This evaluation is often critical in the class certification decision as plaintiffs have the burden to demonstrate that the calculation of damages is possible on a class wide basis. Sascha Henry Partner Sheppard Mullin Hayley Reynolds Attorney Gutride Safier Jon Tomlin Senior Managing Director Ankura CLE On-Demand Webinar This Strafford production has been specially selected for HB audiences. What is conjoint analysis, generally, [...]

The Rise of Multi-Claimant Litigation in England and How Companies Can Manage Potential Exposure

June 21st, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , , |

The Authors Sheila L. Birnbaum Mark S. Cheffo Dorothy Cory-Wright Evan Flowers Jacqueline Harrington Will Sachse Stephen Surgeoner Rachel Leary Caroline Power Julie Witham Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The Rise of Multi-Claimant Litigation in England and How Companies Can Manage Potential Exposure "With the growth in US/English partnerships for bringing multi-claimant actions in England, there may be an increased interest in leveraging US discovery for copycat English claims. The larger mass torts become in the United States, the more likely they are to feed into related multi-claimant actions in England." Abstract: Recent court decisions have signaled the English courts’ willingness to embrace multi-claimant litigation and to broaden the types of questions decided on a collective basis. These developments have led UK-based plaintiffs’ lawyers to expand mass tort filings, including doing so in partnership with US plaintiffs’ lawyers who are actively advertising in England. This article provides an overview of multi-claimant litigation in England, highlights some of the factors that may lead to its increase, and discusses steps that companies operating in the English market can take now to manage potential exposure. Three primary [...]

How Companies Seeking to Leave China for Mexico Can Mitigate Their Legal Risks and Protect Against New Ones

June 21st, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , |

The Author Dan Harris (dan@harrisbricken.com) is co-founder of Harris Bricken where he focuses his practice on international law and protecting businesses in their foreign operations. A leading authority on the subject, he is also editor of the highly regarded China Law Blog, and a valued member of the Editorial Board of Advisors for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. How Companies Seeking to Leave China for Mexico Can Mitigate Their Legal Risks and Protect Against New Ones "Chinese manufacturers commonly seek retaliation against foreign buyers that cease buying product from them. For this reason, it is critical that you line up your new suppliers (preferably in a country other than China) and have them ready to go before you even hint to anyone in China that you might cease or reduce production with an existing China supplier." Abstract: The author, one of the leading authorities on the legal issues related to international manufacturing, discusses the risks companies will face if they move their manufacturing out of China, what they should do to mitigate those risks, and what new risks they will face in [...]

Climate Change, Property Rights, and Conservation: Highlights from a Decade of Environmental Law (2013–2023)

June 16th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , |

The Author Victoria Kline (linkedin.com/in/victoria-kline) just graduated from the University of Miami School of Law, and is an incoming associate at Jones Day. She focused her studies on environmental law, which also will be her area of practice. (Congratulations to Victoria on her graduation and getting her start at Reed Smith!) Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Climate Change, Property Rights, and Conservation: Highlights from a Decade of Environmental Law (2013–2023) Abstract: The author discusses nine recent decisions—all but one handed down by the Supreme Court—that demonstrate the ongoing debate over responsibility for the effects of climate change, how the courts are essentially asked to strike a balance between environmental protection and economic development, the intersection of property rights and conservation, and how litigants fared with their arguments over different aspects of this important and, many would say, existential dilemma. The author concludes with an update from the United Nations Framework Convention on Climate Change and the establishment of a loss and damage fund for countries harmed by climate change. "The past decade has seen numerous legal challenges and landmark rulings in environmental law, reflecting the growing recognition of the critical [...]

Procedural Challenges to the IRS’s Compliance With the APA and Its Impact on Tax Litigation

June 16th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , |

The Author Jeffrey S. Luechtefeld (jeff.luechtefeld@chamberlainlaw.com) is a tax controversy and litigation attorney with Chamberlain, Hrdlicka, White, Williams, and Aughtry (Atlanta, Georgia) where he focuses his practice on resolving tax disputes with the Internal Revenue Service, administratively or through litigation. Jeff previously was a Special Trial Attorney for the IRS Office of Chief Counsel as well as a director in the tax controversy practice of a big four accounting firm. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Procedural Challenges to IRS Compliance With the APA and Its Impact on Tax Litigation Abstract: The Administrative Procedure Act (APA) places specific requirements on agencies of the federal government when engaged in a “rule making” that has the force and effect  of law. Recently, the APA has become a focal point in tax litigation, due in large part to the IRS’s history of refusing to comply with the process mandated by the APA. This article focuses on procedural challenges to the IRS’s compliance with the APA based on the IRS’s history of non-compliance with the APA’s notice-and-comment requirement. It highlights recent trends in tax litigation and considers the future of APA challenges in this area. [...]

Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims

June 16th, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , |

The Authors Judy Selby (judy.selby@kennedyslaw.com) is a Partner at Kennedys (New York) where she focuses her practice primarily on insurance coverage matters with a concentration in coverage for exposures arising out of emerging technology, digital, and compliance risks. Tracey M.Kline (tracey.kline@kennedyslaw.com) is an Associate at Kennedys (Philadelphia) where she focuses her practice primarily on insurance coverage litigation and cyber matters. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Ohio Supreme Court Ruling Sends Important Reminder: Long-Standing, Fundamental Principles of Insurance Policy Construction and Law Are Applicable to Cyber Claims Abstract: On December 27, 2022, the Ohio Supreme Court unanimously ruled that a business owner’s property insurance policy issued by Owners Insurance Co. to EMOI Services, LLC did not afford coverage for losses sustained in a ransomware attack because computer software is “entirely intangible” and “cannot experience ‘direct physical loss or physical damage.’” EMOI Servs., LLC. v. Owners Ins. Co., 2022-Ohio-4649 (Ohio 2022). In doing so, the court reversed an attention-getting split decision by the lower appellate court. This article takes an in-depth look at the case and discusses its significant implications. The Ohio Supreme Court’s decision was based on its commonsense [...]

Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights

June 14th, 2023|Categories: Emerging Litigation & Risk, Journal on Emerging Issues in Litigation, New Featured Post for Home Page|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , |

The Author Griffen Thorne (griffen@harrisbricken.com) is an attorney in the Los Angeles office of Harris Bricken Sliwoski LLP, an international emerging markets law firm. He represents clients in highly regulated emerging industries, such as cannabis, in corporate and commercial transactions. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Unarmed or Unwell: How Federal Law Infringes Medical Marijuana Users’ Second Amendment Rights As Justice Amy Coney Barrett noted while on the Seventh Circuit, “legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.” In the coming years, the government’s ability to write off all medical marijuana users as dangerous is likely to be curtailed, even if the Controlled Substances Act continues to make marijuana use a federal crime. Abstract: In the wake of the 2022 U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, federal courts have reached opposite outcomes on whether federal prohibitions on marijuana users’ rights to own or possess firearms are constitutional. As a result, there is a high likelihood of a circuit split that results in the overturning of those federal laws. The author [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination

June 9th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , |

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend against these tactics and create the best opportunity for success at trial. Beth C. Boggs Managing Partner Boggs Avellino Lach & Boggs Matthew D. Gurbach Partner Bricker Graydon Kathryn Whitlock Partner Bricker Graydon LIVE Webinar June 27th 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What is the underlying basis for "reptilian" theory trial tactics? How are plaintiffs' attorneys leveraging reptile tactics to influence jurors? How [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination

June 9th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , |

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend against these tactics and create the best opportunity for success at trial. Beth C. Boggs Managing Partner Boggs Avellino Lach & Boggs Matthew D. Gurbach Partner Bricker Graydon Kathryn Whitlock Partner Bricker Graydon LIVE Webinar June 27th 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. What is the underlying basis for "reptilian" theory trial tactics? How are plaintiffs' attorneys leveraging reptile tactics to influence jurors? How [...]

Law Firm Technology Directors? Yes.

June 6th, 2023|Categories: ELP, Podcasts|Tags: , , , , , , , , , |

In this episode we talk about the advantages of having technology and software development capabilities inside your law firm. Can you imagine? And we’re not just talking about someone who is adept at unjamming the printer.  

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