Authored By: Michael Flynn

Excerpt

          You are the lawyer representing a party in a big lawsuit!  The stakes are high for both parties in the lawsuit and the facts and the law of the case are both interesting and challenging.  The case promises to be hotly contested.  You have prepared as well as you can with detailed proof charts covering every witness culled from extensive investigation and document analysis.  Now it is time to move forward and execute your plan and see what happens.  A major step in the execution of your litigation plan is taking the deposition of the potentially adverse, even hostile, opposing party and witnesses.  You have put together a deposition plan for each witness that includes learning everything you can from each witness, confirming with the witness what you think you already know, testing the witness to see if you can gain some valuable admissions, and tying down the facts that each witness testifies about.  You are ready!  Then, at the deposition of a key witness, this happens:

            Q:        Who else was present at the final meeting you attended confirming the final design of the table saw?

            A:        I don’t know.

            OR

            Q:        Who else was present at the final meeting you attended confirming the final design of the table saw?

            A:        I don’t remember.

            OR

            Q:        Who else was present at the final meeting you attended confirming the final design of the table saw?

            A:        I think Mr. Patterson, the primary engineer.

            Unfortunately, this happens all too often to lawyers taking depositions.  These kinds of “flimsy answers” demand that the lawyer taking the deposition first listen to the answer and, when the witness and the subject matter of inquiry are critical to the lawsuit, figure out what to do next.

            Attorneys often struggle in depositions and at trial to get needed information from witnesses.  A witness may present these flimsy answers for a multitude of reasons.  A witness’s flimsy answers will become even more problematic when the witness provides such answers as a common response to questions of all kinds or to avoid providing damaging information to the deposing attorney.  There are numerous texts, articles, and continuing legal education publications that provide useful information about how to conduct a competent witness examination both in deposition and at trial.  The purpose of this article is to distill this information and  add  tips  specifically  directed  to  the  witness who provides the flimsy “I don’t know,” “I don’t remember,” or “I think so” answers.

Authored By: Stephen D. Palmer

Excerpt

          As of early 2021, more than 29 million people had contracted COVID-19 in the United States and more than 530,000 Americans had died from the virus.  With the spread of COVID-19 in the United States, there is a conceivable crush of workers’ compensation COVID-19 litigation coming.  This Article lays out a basic roadmap that practitioners (on both sides of the aisle) can use in analyzing the compensability of COVID-19 cases in their respective states and is mainly illustrated using the substantive law pulled from the state of Alabama.

Authored By: Sean Roman Strockyj

Excerpt

          This Article explores whether a respondent in various mental health proceedings in New York may be compelled to take the witness stand.  The author focuses on applications brought under New York’s Mental Hygiene Law (MHL), including psychiatric commitment cases, guardianship applications, and matters brought under the Sex Offender Management and Treatment Act (SOMTA).  In such litigation it is common for respondents to be represented by the Mental Hygiene Legal Service (MHLS), court appointed government attorneys whose focus is mental health law.  Each of the aforementioned proceedings can result in jury trials, where an application for respondent testimony is most likely to be necessary.  It is a subject that developed an inconsistent body of caselaw and is scarcely addressed in scholarly publications.

Authored By: Mark A. Behrens, Cary Silverman & Christopher E. Appel

Excerpt:

            Plaintiffs’ attorneys are aggressively asking jurors to award ever-higher sums for pain and suffering, and often getting it.  Summation anchoring—requesting an unjustifiably high noneconomic damage award in closing—is highly effective, particularly when sympathetic jurors lack objective means to determine compensation for pain and suffering. Research shows, “the more you ask for, the more you get.”

          The cycle of plaintiffs’ counsel asking for and receiving inflated noneconomic damage awards—that are frequently reduced post-trial and on appeal—is inefficient.  Courts and legislatures should address anchoring tactics by plaintiffs’ counsel that contribute to nuclear verdicts and social inflation.

Authored by: Kristen P. Watson & Katherine E. West

Excerpt:

          Since its enactment in 1991, the Telephone Consumer Protection Act (TCPA) has generated voluminous litigation and debate regarding the exact parameters of the TCPA’s regulatory scope.  Among other things, courts and the Federal Communications Commission (FCC) struggled to define precisely what technology constitutes an automatic telephone dialing system (ATDS) within the meaning of the TCPA.  The drastic advancement in technology over the last thirty years has made defining an ATDS much more difficult.  However, the FCC’s attempt to keep pace with changing technology by broadening its definition of an ATDS has given rise to a circuit split on the issue.  In 2021, the Supreme Court weighed in when it decided Facebook, Inc. v. Duguid.  In a unanimous decision, the Supreme Court drastically narrowed the scope of an ATDS, although it remains to be seen how Congress and the plaintiff’s bar will respond.