Who’s Paying? A Review of Rule 41(D)’s Authorization of Attorney Fee Awards

March 13, 2019

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!

March 5, 2019

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

February 26, 2019

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

February 21, 2019

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 Solidifying the Federal Arbitration Act

February 20, 2019

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 Solidifying the Federal Arbitration Act”

Past Posting: New Jersey’s Gamble to End the Professional and Amateur Sports Protection Act

February 13, 2019

Photo Credit: https://www.goodsportsbooks.com/horse-racing-faq-betting-on-horses-qa/

By: Hunter Hamm
Research and Writing Editor, American Journal of Trial Advocacy

On May 14, 2018, the United States Supreme Court legalized gambling on individual sporting events. Sports betting is a common form of gambling in the United States, and illegal sports betting is currently estimated to range from $100-$200 billion per year.[1] Traditionally, sports gambling has faced strong opposition in America.[2] Since the nineteenth century, gambling was largely made illegal.[3] Opponents of the practice parallel the introduction of sports betting to that of gateway drugs, introducing “young people with a strong interest in sports” to other types of gambling.[4] Moreover, past corruption created from sports betting has seriously damaged the legacy of professional sports.[5] Continue reading “Past Posting: New Jersey’s Gamble to End the Professional and Amateur Sports Protection Act”

With the Recent Growth of the Public Domain, Will America See Another Copyright Term Extension?

February 12, 2019

Photo Credit: http://sbegumlaw.com/wp-content/uploads/2015/11/copyright-definition.jpg

By: Kim Massey
Member, American Journal of Trial Advocacy

Introduction

The first of January is generally celebrated as Public Domain Day, and in 2019, Public Domain Day was once again celebrated as works from 1923 entered the public domain[1] and became “free as the air to common use.”[2] Public Domain Day is when the copyright term for works—such as books, films, and musical compositions—expires.[3] However, in 1998, Congress extended the copyright term for future works and works that still enjoyed copyright protections by an additional twenty years.[4] This act—the Sonny Bono Copyright Term Extension Act—virtually prevented any works from entering the public domain for the last twenty years.[5] While the Sonny Bono Copyright Term Extension Act (CTEA) was challenged as unconstitutional, the Supreme Court upheld the constitutionality of the CTEA.[6] 

Continue reading “With the Recent Growth of the Public Domain, Will America See Another Copyright Term Extension?”

A Picture is Worth a Thousands Words :)

February 7, 2019

Photo Credit: campaignsandelections.com

Written By: Mary Margaret Clark
Member, American Journal of Trial Advocacy

There is something happening that very few in the legal profession saw coming: emojis. Tiny pictures of facial expressions used in text messages and social media are now becoming the subject of legal disputes.[1] The lawsuits involving the images are spanning from business transactions to harassment claims to actions for defamation.[2]   Emojis are typically used to provide context in a text message by “standing in for facial expressions” and can sometimes be used as a filler for an entire word.[3]  Although emojis have the potential to offer clarity to messages, the legal profession has seen the opposite as it begins to decipher the intent behind emojis.[4] Continue reading “A Picture is Worth a Thousands Words :)”

America: Land of the Free and Home of the Falsely Imprisoned

February 7, 2019

By: Allyson Swecker

Articles and Symposium Editor, American Journal of Trial Advocacy

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[1] These words from the Fourteenth Amendment to the Constitution seem fairly straightforward. Unfortunately, in the case of United States citizen Davino Watson, these words provided no protection from a three-year false imprisonment amidst deportation proceedings. The Fourteenth Amendment was created to ensure that no person be deprived of their freedom “without due process of law.”[2] This is true regardless of whether a person is a United States citizen.[3] For Davino Watson, the Fourteenth Amendment provided seemingly no protection. Continue reading “America: Land of the Free and Home of the Falsely Imprisoned”

Braggs v. Dunn—The Eighth Amendment’s ban on cruel and unusual punishment as applied to mental health

February 7, 2019

Photo Credit: Marc Goldberg, Tel Aviv Schizophrenia, Marc’s Words

By: Lisa K. Cagle
Associate Editor, American Journal of Trial Advocacy

Incarceration in the United States has been on the rise for decades,[1] causing the U.S. to have the highest incarceration rate in the world.[2] According to a study by the Department of Justice, more than half of these inmates have mental health problems diagnosable under the DSM-IV.[3] Given that 95% of inmates eventually leave prison and return to the general population,[4] the entire population benefits from treating these mental health problems. Furthermore, in 1976, the Supreme Court of the United States recognized the importance of treating prisoners’ medical conditions and declared that deliberate indifference to prisoners’ serious medical needs is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.[5] Recently in Braggs v. Dunn,[6] a federal court in Alabama addressed the issue of “inadequate mental-health care in prison facilities.”[7] Continue reading “Braggs v. Dunn—The Eighth Amendment’s ban on cruel and unusual punishment as applied to mental health”