Litigation Watch in the Wake of Hurricane Michael

Photo Credit: Brandon Miller and Brandon Giggs, Michael the Strongest Hurricane to Hit the Continental US since Andrew, CNN (Oct. 11, 2018; 9.46 am) https://www.cnn.com/2018/10/09/weather/hurricane-michael-stats-superlatives-wxc-trnd/index.html.

By: Stephanie Smith

Member, American Journal of Trial Advocacy

Hurricane Michael made its way up the 14th Judicial Circuit on October 10, 2018.[1] This storm was the first Category 4 hurricane to make landfall in Florida’s Panhandle since 1851.[2] Top winds reached 155 mph.[3] Additionally, this was the third most intense hurricane to make landfall in the U.S. recorded history based on central pressure at 919 millibars minimum pressure.[4] To say the effects were devastating is an understatement; there were at least 72 fatalities, 57 of those in the United States.[5] Records show the storm had a high-water storm surge of 9 to 14 feet from Mexico Beach through the Apalachee Bay.[6] Total economic losses are estimated at approximately $25 billion.[7] These include privately insured wind and storm surge damage to residential, commercial, and industrial properties and automobiles.[8] Approximately a million customers in Florida, Georgia, Alabama, and South Carolina lost power.[9] Many community members went without power or internet for two months. Continue reading Litigation Watch in the Wake of Hurricane Michael

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

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

302 Pages of Hope

“Hope is a good thing, maybe the best of things, and no good thing ever dies.” The Shawshank Redemption (Castle Rock Entertainment 1994).

Senior Research and Writing Editor: Amanda L. B. Wineman

302 pages. 302 pages is what it took District Court Judge Myron Thompson to fully explain his ruling in Braggs v. Dunn.[1] He wrote 302 pages detailing the inadequacies and failures of the Alabama Department of Corrections (ADOC) in providing mental health care to its prisoners.[2] In a multi-faceted set of cases, the Southern Poverty Law Center, along with attorneys from other Alabama firms, brought suit on behalf of a class of prisoners from fifteen ADOC facilities against ADOC.[3] The first phase involved American Disability Act (ADA) claims that ADOC discriminated on the basis of physical disabilities and that they failed to make accommodations for disabilities.[4] Continue reading 302 Pages of Hope

Could Rondini Spark Reform for Rape Laws?

By Mallory Bullard, Senior Research and Writing Editor

Ask yourself, “What do rape cases have in common?” Many responses might be racing through your mind. You may be thinking of words such as: victim, consent, or maybe even force. While those words are all associated with rape cases, the uniqueness of the crime is a commonality that is often overlooked. Rape is distinguishable because “[n]o other violent crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality.”[i] Continue reading Could Rondini Spark Reform for Rape Laws?