Wednesday, July 12, 2006



Flood of Litigation From Katrina Begins

Almost a year later, Hurricane Katrina is churning up something other than storms, broken levees and floods:  litigation. This AP article, Groundbreaking Trial Could Help Decide Katrina Insurance Claims (7/11/06), reports on a federal lawsuit that will address whether thousands of people who lost homes in Hurricane Katrina can recover damages from their insurance companies. Apparently, may homeowners did not have flood insurance, because their insurance representatives had misled them to believe that it was not necessary. Lawyers will also argue that even if policies exclude flood-related damage, the policies still cover wind-related damage -- and that the losses were caused by high winds, as high as 140 mph, rather than water.


Katrina may also spur pet lawsuits, as reported in this WTVNY News Report (7/6/06). Seems that some the families that took in pets lost during the hurricane have grown attached to them and want to keep them, even after new owners have surfaced. One source even said that some evacuees are now terrorizing those families who adopted the animals in hopes of getting their pets back. And lawsuits have been filed to recover the animals. 


We've heard estimates of the huge costs of Katrina's destruction. I wonder if any of those numbers included the cost of all of these lawsuits.


Posted by Carolyn Elefant

Gen X vs. Gen Y on the Jury

Mark Beese at Leadership for Lawyers has this post about the differences between Generation X  and Generation Y jurors, which is based on a recent article by Dr. Karen Lisko. Apparently, Generation X jurors want more data, focus on the pragramatic and are impressed with parties who take ethics risks in business. By contrast, Generation Y jurors want a case presented in an even more technologically savvy manner than Gen X, are well educated, are highly analytical thinkers, are interested in teamwork in the jury room and respect parties who abide by commitments.


All very interesting, but what about the Boomers? As Boomers turn 60 and retire, they're the ones who'll have more time to serve on juries as opposed to the younger generations who are now in the prime of their careers. I'd be interested in seeing how Boomers compare to the younger generation on a jury.


Posted by Carolyn Elefant

Being Nice Will Save You Money!

As I posted here at My Shingle, simply being courteous or hospitable to clients can spare you from a lawsuit. Same is true for employers; badmouthing an employee can result in megadefamation verdicts, as Mike Fox reminds us at this  Employers Lawyer post.


Fox reports on two anti-employer verdicts. The first, out of Maine, involved a $3 million verdict against Merrill Lynch. Apparently, Merrill Lynch was required by statute to report the conduct of one of its brokers, and she alleged defamation based on information in the report. In the second case, an employee was accused of stealing and won $1.5 million in damages.


As Fox points out, in both cases, the employer seemed to have justification for its actions. Still, I can't help but wonder whether the outcome would have changed if the employer had made the allegations more tactfully. In most, but not all cases, bedside manner can make the difference.


Posted by Carolyn Elefant

Can Lawyers Blink?

Human Law reports here that he's working his way through Malcolm Gladwell'sbook "Blink." Patten describes that in "Blink," Gladwell makes the case for snap judgments and mind reading, relying on "adaptive unconscious" to translate clues from our first two seconds of looking at a person or considering a problem. 


But do intuitive thinking and legal reasoning mix?  Patten opines:


The problem is that legal training makes you think again, again and again. The message of the book will not resonate with most lawyers.  


And that's unfortunate.  Because many times, we lawyers have only an instant to size up a judge's reaction or decide whether a prospective client is worth representing or figure out how a jury is responding to our arguments. It would be nice if we could learn to set our legal training aside and apply new skills to make these decisions in just a blink.


Posted by Carolyn Elefant



A Bad Few Weeks for Prosecutors

Peter Henning of White Collar Crime Prof Blog summarizes a series of setbacks and embarrassments for federal prosecutors during the past few weeks -- and also raises the tantalizing question about whether individual prosecutors who took the questionable action bear responsibility when they merely carried out office policy.


Henning offers two examples of prosecutorial overreaching. First, there's federal district Judge Lewis Kaplan's findings in the KPMG case that prosecutors acted improperly when they intimidated KPMG into cutting off attorney fees payments for employees charged in the government's investigation. In his ruling, Kaplan had noted that the prosecutors were "economical with the truth" in their filings and testimony, a euphemistic way of calling them liars. After the ruling, U.S. Attorney Michael Garcia (who had handled the matter) asked the court to withdraw that statement and remove references to the prosecutors by name, explaining:


"The Government's stance in connection with this matter was an Office position, and the Government's submissions were approved by layers of supervisors.  If the Court continues to find fault with those submissions, the fault should not be attributed to individual prosecutors." 


Another example of prosecutors taking liberty with the facts came in a concurring opinion by Judge Kozinski, where a prosecutor tried to mislead the court about facts to support sentencing enhancement. The prosecutor had taken a sentence fragment out of context and characterized it as a finding of the court, when clearly it was not. What Henning finds interesting about the case, however, is that the slip opinion identified by name the AUSAs responsible for misstatements to the court, but the opinion in the bound volume had the names removed. In essence, the lawyer who was the subject of Judge Kozinski's concurrence obtained the same relief sought by Garcia from Judge Kaplan.


Henning asks whether a lawyer like Garcia had an obligation to speak out against perceived wrongdoing by his office and whether it was fair for his name to be attached to a decision that reflects office policy. Saying that a decision is a policy of "office policy" is merely a way of deflecting responsibility. Moreover, when individual prosecutors know that their name and reputation are on the line for questionable tactics, maybe it will give them incentive to speak out against them. 


As for the lawyer in the Kozinski decision, he committed the error individually. Had that prosecutor been an attorney in private practice who engaged in misrepresentation, I have no doubt that his name would have remained associated with the case. Why should government prosecutors, who carry an even greater burden of disclosure to the court, be treated any more favorably?


Finally, it bears noting that individual government attorneys aren't always let off the hook for misconduct. Tom Kirkendall of Houston's Clear Thinkers updates us on Carla Martin, the FAA attorney who violated a court order in the Moussaoui prosecution by allowing prosecution witnesses to read trial testimony. News sources report that Martin is "emotionally distraught, crying when she talks about the criminal investigation and feeling like a prisoner in her own apartment, Martin's mother said last week." And she remains subject to both state and federal investigations, which will determine her ultimate punishment.


Posted by Carolyn Elefant on July 11, 2006 at 12:43 PM | Permalink



    Legal Watch:

Sincerely yours Rodrigo González Fernández.