Full Moon, Full Breakfast, and Full Costs

Photo Credit: Mark Theoharis, How Much Are Legal Fees? – Costs of Hiring Different Types of Lawyers, Money Crashers, https://www.moneycrashers.com/legal-fees-hiring-lawyer-costs (last visited Mar. 20, 2019).

By: Gray Gilmore

Associate Editor, American Journal of Trial Advocacy

Because of the high cost of litigation, Congress allows for a party to recover costs as awards. Specifically, there are six categories of litigation expenses that qualify as costs, and parties are limited to these categories unless another federal statute provides otherwise.[1] Nowhere in the general costs statute allows for a cost award to include litigation expenses, such as jury consulting, expert witnesses, and e-discovery.[2] Continue reading Full Moon, Full Breakfast, and Full Costs

CONCUSSION LITIGATION LEADING INSURERS TO DISCONTINUE COVERAGE FOR HEAD INJURIES IN FOOTBALL

Photo Credit: Woodruff Health Sciences Center (2017). Emory physicians care for Atlanta Falcons on their journey to the Super Bowl. Available at: http://news.emory.edu/stories/2017/01/emory_docs_head_to_superbowl/ [Accessed 23 Feb. 2019].

By: Catherine Collins

Member, American Journal of Trial Advocacy

Introduction

Recently, ESPN released an article addressing an emerging issue which could potentially endanger the sport of football.[i] The article and coverage on ESPN’s Outside the Lines explains the dissolving insurance market in the contact sports realm regarding coverage for concussions and other head related injuries.[ii] The NFL no longer has general liability insurance covering traumatic head injuries, and only one insurance provider remains in the market for such coverage.[iii] Continue reading CONCUSSION LITIGATION LEADING INSURERS TO DISCONTINUE COVERAGE FOR HEAD INJURIES IN FOOTBALL

WHO’S PAYING? A REVIEW OF RULE 41(D)’S AUTHORIZATION OF ATTORNEY FEE AWARDS

Image: https://silblawfirm.com/wp-content/uploads/2017/07/Recovering-Attorneys-Fees820x400.jpg

By: Will Johnson

Associate Editor, American Journal of Trial Advocacy

Federal Rule of Civil Procedure 41(d) governs situations in which the plaintiff voluntarily dismisses an action and subsequently refiles the same or similar case in a different jurisdiction.[1] In such situations, the rule permits the court to order the plaintiff pay all or part of the costs of the previously dismissed action.[2] Recently, an explosion of litigation concerning Rule 41(d) has left United States Courts of Appeals split on whether the rule allows for the recovery of attorneys’ fees as “costs” of the previously dismissed actions.[3] Typically, attorneys’ fees are not awardable as “costs” to the prevailing party under the so-called “American Rule” unless Congress has carved out an exception to the rule.[4] Notably, four different circuits have established strong stances on the award of attorneys’ fees pursuant to Rule 41(d) within the last two years after a sixteen year period of stagnation.[5] As a result, three prominent interpretations of Rule 41(d) exist, with three courts ruling attorneys’ fees are always awardable as costs,[6] one court ruling attorneys’ fees are never awardable as costs,[7] and four courts finding middle ground by ruling attorneys’ fees are awardable as costs if the underlying substantive statute of the action brought allows for the award of attorneys’ fees.[8] This article explores Rule 41(d) and its intent and provides a survey of each available circuit’s position of the award of attorneys’ fees as “costs” pursuant to Rule 41(d). Continue reading WHO’S PAYING? A REVIEW OF RULE 41(D)’S AUTHORIZATION OF ATTORNEY FEE AWARDS

Attorney Advertising: You Get a Multi-Million Dollar Settlement! You get one too!

Photo Credit: https://www.istockphoto.com/photo/falling-money-on-a-white-background-dollars-rain-3d-illustration-gm678604596-124542593

By:  Sara Rogan

Member, American Journal of Trial Advocacy

In the over 40 years since the seminal case of Bates v. State Bar of Arizona[1] in 1977, attorney advertising has been and continues to be revolutionized. What was once illegal is now prolific. It was estimated by Kantar Media’s Campaign Media Analysis Group that in 2016 alone, attorneys and firms spent almost $771 million on televised advertisements.[2] One firm is estimated to spend roughly $30 million annually on advertising.[3] The Institute for Legal Reform notes that “legal advertising not only appears to be recession-proof, but also politics-proof,” surviving and thriving in a time when other advertisement industries struggle.[4] A well-known Alabama attorney has at least 2,000 billboards employed for his advertisements throughout the state and is becoming a familiar face throughout the southeast.[5] Attorney advertisements take the form of billboards, commercials, displays on websites, and search engine prompts – not to mention all the paraphernalia that contains firm names and logos such as cups, koozies, pens, and notepads. The path is already being paved for attorneys to collect numbers from police reports to solicit their services to people involved in an incident.[6] Continue reading Attorney Advertising: You Get a Multi-Million Dollar Settlement! You get one too!

Opportunity Hidden in the New Tax Law

Photo Credit: https://www.camoinassociates.com/opportunity-zone-update-find-your-community-interactive-map

By: Alex Townsley

Benjamin Franklin has been credited with once saying, “[I]n this world, nothing is certain except death and taxes.”[1] Americans are reminded of the truth of the latter certainty every year during tax season, but this year, along with the usual pains of preparing one’s taxes, taxpayers are grappling with understanding the effects of the Tax Cuts and Jobs Act of 2017.[2] However, there may be some unexpected relief in the form of a new program called “[O]pportunity [Z]one[s].”[3] Continue reading Opportunity Hidden in the New Tax Law

Life After Miller: Retroactive Sentencing and the Rare Juvenile

Photo Credit: Associated Press, apnews.com

Written by: Kimberly Fasking

Member, American Journal of Trial Advocacy

In 2006, Evan Miller was convicted of a crime he had committed just three years prior, at the age of fourteen.[1] He and a friend had robbed, beaten, and killed his mother’s drug dealer after an evening drinking and smoking marijuana with the victim.[2] Miller was convicted of murder, and he was sentenced to life without the possibility of parole, the mandatory sentence in the state of Alabama at the time for such an offense.[3] Continue reading Life After Miller: Retroactive Sentencing and the Rare Juvenile

KAVANAUGH’S FIRST OPINION: FURTHER SOLDIFYING THE FEDERAL ARBITRATION ACT

Photo Credit: http://altalaw.ca/areas-of-practice/arbitration/

By: Nick Jackson

Associate Editor, American Journal of Trial Advocacy

INTRODUCTION

In January 2019, Brett Kavanaugh, a newly confirmed justice on the Supreme Court of the United States, delivered his first opinion, one that was unanimously confirmed by the Court.[1] In Henry Schein, Inc. v. Archer and White Sales, Inc.,[2] the Court overturned the Fifth Circuit’s interpretation of the Federal Arbitration Act, stating “arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms.”[3] In recent years, arbitration agreements have become a controversial aspect of the American legal system.[4] Accordingly, many individuals have brought forth challenges to contest unfavorable arbitration results.[5] One of the most criticized aspects of arbitration deals with forced arbitration agreements.[6] However, the controversial nature of arbitration agreements has failed to limit their use in industries where the use of arbitration is increasing such as the credit card, banking, insurance, and mobile phones services industries.[7] Continue reading KAVANAUGH’S FIRST OPINION: FURTHER SOLDIFYING THE FEDERAL ARBITRATION ACT