Professional Ethics and Responsibility Archives - Page 2 of 2

Category: Professional Ethics and Responsibility

Witness Coaching by Whisper Leads to Sanctions for Defense Witness and Attorney

As noted in two prior posts, one on May 15, 2020, and the other on May 29, 2020, the COVID-19 pandemic and the resulting explosion in the use of remote depositions present a number of novel issues for lawyers to consider, whether taking or defending depositions. Regardless of these “unprecedented times,” some things remain the same, including that it is improper for a witness to be coached about answers while the deposition is occurring.

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New Jury Selection Procedure in California: Is This the End of Peremptory Challenges? Is This the End of Batson?

Jury selection in California is undergoing significant change. In August 2020, the California legislature passed AB 3070, which was signed by Governor Gavin Newsome on September 30. Beginning in 2022, objections to peremptory challenges in criminal cases will have more teeth, including a list of presumptively invalid reasons for striking a prospective juror and a new standard of review for appellate review of a trial court’s decision. While AB 3070 does not apply officially to civil jury trials until 2026, the significant overhaul in procedure effectuated by this new law is likely to influence a court’s analysis of the civil jury selection process before that time. The new law’s aim is noble: to bring an end to discrimination in jury selection. However, critics, including many within the California judiciary, say the new procedure is “unworkable.”

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A Litigator’s Guide to the 2020 New Jersey Rule Amendments

The New Jersey Court Rules were amended in July 2020, effective September 1, 2020. A number of these amendments are important for litigators, and this post provides a summary.

New Jersey Court Rules Governing Motion Practice

Rule 4:6-2: Motions to Dismiss for Failure to State a Claim

Rule 4:6-2 (“How Presented”) governs assertion of defenses. The amendments target the Rule’s provisions governing motions to dismiss for failure to state a claim upon which relief may be granted. Previously, motions to dismiss were calendared on New Jersey’s typical 16-day cycle for motions, with motion papers required to be filed at least 16 days prior to the motion’s return date. The amended Rule now requires such motion papers to be served in accordance with Rule 4:46-1 – New Jersey’s Rule governing summary judgment motions.

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The Ethics of Social Media “Friendship”

Social media information that reflects a person’s physical condition, activity level, and emotional state is a particularly valuable source of discovery in product liability and personal injury cases. See, e.g., Forman v. Henkin, 30 N.Y.3d 656 (2018). Lawyers must take great care to collect that information ethically.

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Minnesota Supreme Court’s Abolishment of Century-Old Common-Law Prohibition Against Champerty Paves Way for Third-Party Litigation Financing

In a unanimous decision, the Minnesota Supreme Court abolished Minnesota’s common-law prohibition against champerty and maintenance, opening Minnesota to third-party litigation financing. Maslowski v. Prospect Funding Partners LLC, et al., A18-1906, 2020 WL 2893376 (Minn. June 3, 2020).

For the less practiced in Middle English, champerty is “an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim” and maintenance is “improper assistance in prosecuting or defending a lawsuit given to a litigant by someone who has no bona fide interest in the case, meddling in someone else’s litigation.” Black’s Law Dictionary (11th ed. 2019). Today, champerty and maintenance are often associated with third-party litigation financing.

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New Study Shows Link Between Increased Product Liability Litigation And Decreased Technological Innovation

It’s an argument both manufacturers and the defense bar have been making for years: an increased risk of liability for new products will deter manufacturers from developing new technologies. Yet despite the apparent logic of such an argument, there was scant empirical evidence backing up this claim . . . until last month.

Researchers Alberto Galasso of the University of Toronto and Hong Luo of Harvard Business School recently published a working paper that examines the impact of increased litigation for medical implant manufacturers in the early 1990s. The paper, titled “How Does Product Liability Risk Affect Innovation? Evidence From Medical Implants,” shows how this increase led to a decrease in downstream innovation in medical implants and demonstrates how tort reform—specifically the 1998 Biomaterials Access Assurance Act (BAAA)—subsequently reversed this trend and spurred further innovation for raw material manufacturers.

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