The Appellate Strategist

The Gap Between Express and Implied Preemption Narrows In The Ninth Circuit

Matthew A. Reed — Mon, 14 May 2012 13:09:50 -0800

The Ninth Circuit Court of Appeals recently shrank universe of state law claims pertaining to Class III medical devices that remain untouched by Riegel express preemption or Buckman implied preemption. In Stengel v. Medtronic, Inc., the Court ruled that a state law failure-to-warn claim premised on FDA regulations was impliedly preempted by the Supreme Court’s decision in Buckman, because it was analytically indistinct from the “fraud-on-the-FDA” claim with which Buckman dealt. To wit, both claims revolved around allegations that the defendant misled the FDA, whether by commission (Buckman) or omission (Stengel). When considered in conjunction with Riegel’s express preemption of state law claims that add to or change the duties of Class III medical device manufacturers under the Medical Device Amendments to the Food, Drug, and Cosmetic Act (“FDCA”), the Ninth Circuit’s robust view of Buckman implied preemption leaves very little room for a plaintiff to state a cognizable state-law cause of action against the manufacturer of a medical device cleared through the FDA’s premarket approval (“PMA”) process. The Court recognized the sharpened dilemma it left potential plaintiffs, but identified state-law manufacturing defect actions as a category of claims that had passed through the Reigel/Buckman gauntlet unscathed, at least in the Seventh Circuit, because they paralleled federal duties (and thus skirted Riegel) without resting solely on the breach of duties created by federal regulation (which would run afoul of Buckman).

Stengel follows the Ninth Circuit’s opinion in PhotoMedex, in which the Court interpreted Buckman to preempt, not only claims in which the plaintiff attempts to enforce the FDCA (because that is the exclusive jurisdiction of the FDA), but any attempt by a plaintiff to prove that a medical device manufacturer violated the FDCA – in the absence of a determination of such a violation by the FDA itself. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 928 (9^th Cir. 2010). Perhaps with PhotoMedex in mind, the Stengel plaintiffs attempted to distinguish Buckman by arguing that the FDA had already determined that Medtronic had violated FDA regulations, and thus they could prove their failure-to-warn claim without second-guessing the FDA’s decision-making. The Ninth Circuit demurred, noting that Buckman was concerned not only with preserving the FDA’s exclusive jurisdiction, but also with avoiding the “extraneous pull” that state-law claims would exert on the Congressionally-mandated FDCA scheme.

The Stengel opinion explicitly acknowledged that federal appellate courts were divided on the issue of whether state law failure-to-warn claims were preempted by Buckman. Interestingly, it aligned itself with the Eighth Circuit’s view, while spending a good amount of space explaining why the Fifth Circuit’s countervailing view was unpersuasive. Whether the Supreme Court takes note of the brewing circuit split, or the Ninth Circuit’s justification of its decision, remains to be seen.

Self-Contradictory Testimony Does Not Necessarily Create A Triable Issue of Fact Requiring Denial of Summary Judgment

Frederick Baker — Wed, 09 May 2012 09:02:49 -0800

It is not uncommon for a deposition witness testifying regarding critical events to make somewhat inconsistent statements under direct- and cross-examination. For decades California trial courts have denied summary judgment motions on the ground that such inconsistencies create triable issues of fact that must be resolved by juries. The lower courts cite two California Supreme Court opinions, Clemmer v. Hartford Insurance Co., 22 Cal.3d 865 (1978) and Reid v. Google, Inc., 50 Cal.4th 512 (2010), for the principle that "the task of disambiguating ambiguous utterances is for trial, not for summary judgment."

In Davis v. Foster Wheeler Energy Corp., __Cal.App.4^th__, 2012 WL 1435016 (2012) [pdf], the California Court of Appeal was asked to reverse a summary judgment entered against the heirs of a refinery worker who had died of asbestos-related disease and in favor of the manufacturer of an industrial boiler that had been insulated with asbestos. A witness who had worked with the decedent testified under examination by plaintiffs’ counsel that he had witnessed (while working nearby the decedent) the manufacturer’s employees remove asbestos insulation from pipes attached to the boiler, creating dust that was inhaled by the decedent. Later in the deposition, while being examined by defense counsel, the witness said the opposite; only insulators hired by the refinery had applied and removed asbestos. He denied having any knowledge that anyone associated with the manufacturer had ever applied or removed asbestos. The trial judge, having reviewed the testimony of another percipient witness that corroborated the deponent’s second version of the relevant events, granted summary judgment for the manufacturer: “[N]o reasonable jury considering this opposing testimony would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boilers.”

On appeal plaintiffs argued that Clemmer and Reid required reversal. The Court of Appeal, affirming, disagreed: “In this case, the testimony is not ambiguous, but is contradictory, and the issue is . . . whether with [the witness’s] internally contradictory testimony plaintiffs established the existence of a triable issue of fact, and on de novo review [citation] we agree with the trial court that it did not.”

Under Davis counsel need not shy away from bringing a summary judgment motion even where there are internal inconsistencies in the testimony, especially where the testimony favorable to the client is consistent with the weight of other evidence submitted for the trial court’s evaluation.

California Plaintiffs' Bar Seeks to Overturn Landmark Howell Decision On Medical Special Damages

Christina Imre — Tue, 08 May 2012 11:11:40 -0800

Last August, the California Supreme Court issued one of those once-in-a-generation opinions that cut a wide swath across many areas of tort law. A 6-1 opinion, Howell v. Hamilton Meats held that personal injury plaintiffs are limited to recovering, as medical special damages, the amount plaintiff’s private health insurer actually paid plaintiff’s medical provider in full satisfaction of the bill for services rendered to treat the personal injury. Plaintiffs cannot recover the face amount that their providers billed if their private health insurers paid less in full satisfaction, e.g., where the health insurer and hospital have a prenegotiated contractual agreement on how much the hospital will accept. Typically, the prenegotiated “discount” – though not really a “discount” at all – is much less than the face amount of the bill.

Though the phrase “landmark decision” is often over-used, Howell is one of those rare opinions that truly deserves the label. It applies to virtually every type of lawsuit in which the plaintiff who claims personal injury had private health insurance which picked up the tab for plaintiff’s medical services. In other words, Howell governs not merely in the traditional auto accident scenario, but any case in which plaintiff seeks to recover for medical services attributable to the injury defendant caused. Howell limits recovery to the “reasonable value” of the service, capped by the amount the provider accepted as payment in full. Some have estimated that Howell represents a net savings to defendants and their liability insurers of as much as $3 billion per year. Full disclosure: Sedgwick’s appellate department filed one of the amici curiae briefs on which the Supreme Court relied in its Howell decision.

The ink on Howell was hardly dry before a bill was introduced in the California Legislature to overrule it. SB 1528 was sponsored by Senate President Pro Tem Darrell Steinberg for the Consumer Attorneys of California (aka the plaintiffs’ bar.) As introduced in February, the two-paragraph bill declared that injured plaintiffs "shall be entitled to recover the reasonable value of medical services provided without regard to the amount actually paid." [pdf] In other words, the original version was aimed squarely at legislatively-overruling Howell.

But just a few days ago, the measure took an interesting detour. Proponents deleted all of the language that would have overturned Howell, leaving only a shell that says: “it is intent of the Legislature to establish a framework for compensating persons with injuries due to the fault of third parties.” [pdf] This, in essence, reduces the measure to a “spot bill” – one that contains no substantive provisions, a placeholder declaring the drafters’ “intent” to establish a compensation “framework” in the future. As Dan Walters, blogging for the Sacramento Bee, describes it: the remaining language is “essentially a blank slate that can move through the process and then be filled in later, perhaps in the crush of the legislative session's final days, with or without a compromise between the warring factions.”

According to California’s official legislative website, a hearing is set for May 8, 2012.

Stay tuned to Appellate Strategist for further reports.

Why Judicial Vacancies Matter, Part II

Kirk Jenkins — Mon, 30 Apr 2012 11:27:38 -0800

Last week, two long-standing judicial emergencies in the district courts ended with the Senate’s confirmation of Gregg Jeffrey Costa as a District Court Judge for the Southern District of Texas and David Campos Guaderrama as a District Court Judge for the Western District of Texas. Judge Costa’s seat had been vacant since June 11, 2010, and Judge Guaderrama’s since February 26, 2009. Nevertheless, judicial emergencies remain in effect with respect to thirty district court judgeships and seven Circuit Court judgeships.

These emergencies are not solely the result of a slow-moving nomination and confirmation process. Congress has failed for a generation to keep up with the fast-growing dockets in the Federal courts. In the district courts, the number of cases per judgeship increased 30% between 1993 and 2010 – from 407 cases per judgeship to 528. In 1993, 264,038 cases were pending in the district courts; in 2010, 359,594 cases were pending. During that same period, Congress authorized 35 new permanent District Court judgeships – an increase of only 5.5 percent [pdf].

The Circuit Courts are stretched equally thin. In 1993, 48,474 cases were pending in the Circuits – an average of 290 per judgeship. In 2010, 56,790 cases were pending – an average of 340 per judgeship, and an increase of 17 percent. The number of new permanent Circuit judgeships authorized by Congress during that period? Zero [pdf].

Federal judges see the harm done by this crisis firsthand. “I have my own standards,” said Chief District Judge B. Lynn Winmill of the District of Idaho late last year, “but it’s getting very, very hard to meet my standards. I want to have my decisions out in 30 days. Historically, I’ve done OK – until last year.” “Civil litigation has ground to a halt,” said Chief Judge Michael McCuskey of the Central District of Illinois in a Wall Street Journal interview. “You’ve got a right to sue but you do not get a right to a speedy jury trial.” In 1997, Judge McCuskey’s district had 55 civil cases which had been pending more than three years. In 2010, that backlog had grown to 1,200. “Ultimately, I think people will lose faith in the rule of law,” Chief Judge Alex Kozinski of the Ninth Circuit told the Washington Post. “We as a nation believe that if you have a dispute, you go to court and within a reasonable period of time, you get a decision.” During a panel at the Brookings Institution, Judge W. Royal Furgeson voiced his frustration with his overcrowded criminal docket:

I would sometimes look out in the evening at the mass of people assembled in my courtroom and it would take me back to the days when I was a very young lawyer and my firm was assigning me to handle clients in night traffic court . . . The problem, of course, in night traffic court is if my client got fined it was going to be a couple of hundred bucks at the most, and the problem I had with the defendants before me, they were looking at years – potentially years and years in a federal prison.

The four longest-standing judicial emergencies in the Circuit Courts are:

The Ninth Circuit: This court currently has 822 adjusted filings per judgeship. Like nine other Circuits, the Ninth reduced its total number of appeals pending as of the end of 2011, with terminations outpacing new filings, but 13,913 appeals still remained on the docket [pdf]. Judge Stephen S. Trott took Senior status on December 31, 2004. There is no nominee from the White House.
The Ninth Circuit: This new vacancy was created by Pub. L. No. 110-177, which transferred one authorized judgeship from the District of Columbia Circuit to the Ninth Circuit effective January 21, 2009. On February 24, 2010, President Obama nominated now-Associate Justice Goodwin H. Liu of the California Supreme Court to this seat, but Justice Liu asked that his name be withdrawn from consideration on May 25, 2011. Judge Jacqueline H. Nguyen of the United States District Court for the Central District of California was nominated for the seat on September 22, 2011.
The Seventh Circuit: This Court currently has 522 adjusted filings per judgeship. As of the end of 2011, 1,933 appeals were pending [pdf]. Judge Terence T. Evans took Senior status on January 7, 2010, and passed away on August 10, 2011. Professor Victoria F. Nourse of the University of Wisconsin Law School was nominated for the seat by President Obama on July 14, 2010. On January 18, 2012, after her nomination was returned to the President by the Senate, Professor Nourse requested that her name be withdrawn from consideration. There is no new nominee from the White House.
The Eleventh Circuit: This Court currently has 985 adjusted filings per judgeship. As of the end of 2011, 3,546 appeals were pending [pdf]. Judge Stanley F. Birch Jr. retired on August 29, 2010. President Obama nominated Jill A. Pryor to the seat on February 16, 2012.

Illinois Supreme Court Sets Civil Argument Schedule for May

Kirk Jenkins — Wed, 25 Apr 2012 10:51:52 -0800

Yesterday the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the May term, and the Court will hear oral argument in eight civil cases. The cases, with the issue or issues presented in each, are:

May 22:

Moore v. Chicago Park District, No. 112788 – Does an unnatural accumulation of snow and ice constitute the 'existence of a condition of any public property' as this expression is used in Section 3-106 of the Tort Immunity Act? See Tort Law.

Wilson v. Edward Hospital, No. 112898 – Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting set forth by the Supreme Court in Hudson v. City of Chicago, 228 Ill.2d 462 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), so that summary judgment entered on the actual agency claims in plaintiffs’ initial suit bars plaintiffs’ apparent agency claims in a refiled suit, even in the face of a ruling that there is a question of fact as to the apparent agency claims? See Tort Law.

Rush University Medical Center v. Sessions, Nos. 112906/112993 – Does the doctrine holding that self-settled spendthrift thrusts are revocable per se survive the enactment of the Fraudulent Transfer Act? See Trusts and Estates.

Choate v. Indiana Harbor Belt Railroad Co., No. 112948 -- (1) Does a defendant landowner have a duty of due care with respect to a nearly thirteen-year old injured while trying to jump aboard a slow-moving train on the landowner's tracks? (2) Was the expert opinion presented by plaintiff sufficient to support the jury's verdict on the grounds that improvements were reasonably practicable and would have prevented the accident? See Tort Law.

May 23:

Carter v. SSC Odin Operating Co., No. 113204 – (1) Is an agreement mandating arbitration of all claims for more than $200,000 arising out of nursing home claims void for lack of mutuality on the grounds it is illusory? (2) Is an agreement to arbitrate applicable to a wrongful death claim where plaintiff signed the agreement only in the status of decedent's "legal representative"? See Arbitration.

Martin v. Keeley & Sons, Inc., No. 113270 – Where the I-beam on a bridge the plaintiffs were constructing collapsed and fell, did the plaintiffs state a triable issue of fact on (1) the "relationship" prong of duty to preserve evidence, and (2) the "foreseeability" prong of the duty, meaning that a reasonable person would have foreseen that the beam was material to a potential civil action? See Tort Law.

Country Preferred Insurance Co. v. Whitehead, No. 113365 – Is the provision of an Illinois automobile insurance policy imposing a two-year statute of limitations on uninsured motorists claims invalid as against public policy with respect to an accident which occurred in Wisconsin, where the statute of limitations for uninsured motorist claims is three years? See Insurance.

In re Marriage of Coulter (Coulter v. Trinidad) – No. 113474 – May a trial court deny a petitioner's request for a preliminary injunction barring removal of the couple's minor children, pending a full hearing, where the parties had previously agreed that the wife could remove the children from the state at any time after 36 months from entry of judgment? See Domestic Relations.

Why Judicial Vacancies Matter - Part I of a Series

Kirk Jenkins — Tue, 24 Apr 2012 09:56:35 -0800

As Chief Justice John Roberts observed last year [pdf], judicial nominations have become something of a game for the political branches of the Federal government. Slow-walking judicial nominations – or even bringing the processing of new nominees to a complete halt – is either the last bastion of freedom or an assault on the Constitution. Both parties are comfortable making either argument, depending on which holds the political balance of power at any given moment. The voters don’t care, and nobody’s hurt.

Except somebody is hurt. Don’t believe me? There are currently 874 authorized Federal judgeships [pdf]. Eighty-two are currently vacant. Sixteen more judgeships will become vacant within the next nine months. That vacancy rate has been steady for many months, and with the general election campaign in full swing, prospects seem dim for making any significant progress in 2012.

Now look around your firm or legal department. Imagine one out of every ten senior attorney positions was vacant. Think that might slow down the work?

Judicial vacancies reduce public confidence in the judicial system. Faced with the prospect of putting their lives on hold for a year or more while they wait for committee votes and an up-or-down vote in the Senate, highly qualified attorneys are opting not to seek judicial appointments. Since criminal cases take precedence on the docket, civil litigants are waiting longer than ever for trial. Meritorious claims wait longer for compensation. Defendants facing meritless claims wait longer to remove the cloud that an unresolved lawsuit puts on a business. Since trial is further off, discovery stretches on and on, increasing the costs of litigation. As ABA President William T. Robinson III wrote, “Businesses face uncertainty and costly holdups, preventing them from investing and creating jobs.”

To be clear, I’m not advocating the confirmation of any particular nominee, or even the President’s nominees in general, as opposed to one or more nominees which the Senate might prefer. Rather, my point is the same one argued by ABA President Robinson, The New York Times, and other newspapers around the country, see here, and here , and here, and here: the White House and the Senate should take action to fill the vacant judgeships with qualified candidates on an emergency basis.

Because an emergency is exactly what many districts around the country are facing. The Administrative Office of the United States Courts defines a district court as a “judicial emergency” when (1) the court has two or more judgeships and only one active judge; (2) the court’s “weighted filings” are more than 600 per judgeship; or (3) “weighted filings” are between 430 and 600, and the vacancy is more than 18 months old. A vacancy on a court of appeals is an “emergency” if: (1) the court’s “adjusted filings” per three-judge panel exceed 700; or (2) “adjusted filings” are between 500 and 700 per panel, and the vacancy is more than 18 months old. There are currently thirty-two judicial emergencies in the district courts and seven in the Circuits. According to the Center for American Progress, more than 160 million Americans live in a jurisdiction declared a judicial emergency.

The four longest-standing judicial emergencies in the district courts are:

The Eastern District of North Carolina: This court currently carries 630 weighted filings per judgeship. Between 2010 and 2011, new filings increased 18.8%, and pending filings were up 10%. Judge Malcolm J. Howard took Senior status on December 31, 2005. There is no nominee from the White House.
The District of Maryland: This court carries 495 weighted filings per judgeship. Between 2010 and 2011, pending filings were down 1.8%. Judge Peter J. Messitte took Senior status on September 1, 2008. The President nominated Judge George Levi Russell III, an Associate Judge on the Circuit Court of Maryland for Baltimore City, to succeed Judge Messitte on November 10, 2011. Judge Russell is awaiting a confirmation vote by the full Senate.
The Western District of Texas: One of five pending judicial emergencies in the Texas District Courts, this court carries 751 weighted filings per judgeship. Between 2010 and 2011, pending filings increased 5.7%. Judge W. Royal Furgeson Jr. took Senior status on November 30, 2008. There is no nominee from the White House.
The Western District of Wisconsin: This court carries 600 weighted filings per judgeship. Between 2010 and 2011, pending filings were up 45.7%. Judge John C. Shabaz took Senior status on January 20, 2009. There is no nominee from the White House.

New Civil Opinion Coming From the Illinois Supreme Court

Kirk Jenkins — Tue, 17 Apr 2012 12:50:07 -0800

The Illinois Supreme Court has announced that on the morning of Thursday, April 19, it will file an opinion in one civil case [pdf]:

Santiago v. E. W. Bliss Co., No. 111792 – When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Products Liability Law Ebbs as California Supreme Court Issues Definitive O'Neil Opinion

Brian Thompson — Wed, 18 Jan 2012 13:34:48 -0800

The California Supreme Court has issued a resounding and conclusive opinion rejecting the surging liability theory that a product manufacturer may be held liable for harmful defects in products made by third parties unless the manufacturer’s own product contributed substantially to the harm, or the manufacturer participated substantially in creating a harmful combined use of the products.

The Court’s unanimous opinion in O’Neil v. Crane Co. – issued Thursday – slammed the door on plaintiffs’ attempt to create “an unprecedented expansion of strict products liability,” and reaffirmed the “bedrock principle” that strict liability is premised on harm caused by deficiencies in the defendant’s own product.

The plaintiffs in O’Neil had postulated that the defendant valve and pump manufacturers should be liable for the harm caused by the plaintiff’s exposure to asbestos-containing insulation products (made by others) that were used on or near the defendant’s all-metal products. However, there was no evidence that asbestos insulation – as opposed to some other type of insulation material – was necessary for the defendants’ pumps and valves to function properly.

A product’s “mere compatibility for use” or even its foreseeable use with defective components is not enough to render the defendant’s product itself defective. The Court noted the absurdity that would follow recognition of plaintiffs’ liability theory. Manufacturers of the saws and tools used to cut and remove asbestos insulation would become the next targets in asbestos litigation. And taken to its logical extreme, match manufacturers might be required to warn about the hazards of dynamite.

“The broad rule plaintiffs urge would not further the purposes of strict liability. Nor would public policy be served by requiring manufacturers to warn about the dangerous propensities of products they do not design, make, or sell,” wrote Justice Corrigan, writing for the unanimous Court. A manufacturer of a non-defective product is unable to exert pressure on other manufacturers to make their products safe. Additionally, manufacturers of non-defective products should not shoulder a burden of liability for products, the sale from which they derived no economic benefit. Nor should strict liability require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own product and warn about such risks. This “unrealistic” and “excessive” burden would actually undermine consumer safety by inundating users with excessive warnings.

The Court did not expressly opine on, but rather left open the possibility of liability in the case of a product that requires the use of a defective product in order to operate, or if a product manufacturer specifies or requires the use of a defective replacement part. However, the Court noted that in both contexts, “the policy rationales against imposing liability on a manufacturer for a defective part it did not produce or supply would remain.”

Now that two state Supreme Courts – California and Washington (see Braaten v. Saberhagen Holdings (2008) 165 Wn.2d 373,and Simonetta v. Viad Corp. (2008) 165 Wn.2d 341.) – have recently rejected this proposed expansion of products liability law in the asbestos context, expect that many other jurisdictions will follow and cap this emerging theory.

California Supreme Court Hears Argument in Pivotal Asbestos Product Liability Case

Brian Thompson — Tue, 15 Nov 2011 12:06:28 -0800

The California Supreme Court heard oral argument in O’Neil v. Crane Co. The Court’s decision will likely define an important area of strict products liability law in California – specifically, it will expand or limit the duty of product manufacturers to warn about the hazards of replacement parts made by others that are subsequently incorporated by the purchaser into the manufacturer’s original product.

O’Neil arises out of the plaintiff’s exposure to asbestos-containing gaskets and packing materials used in and around the defendants’ valves and pumps, which were incorporated by the Navy into the steam propulsion system aboard the USS Oriskany, where the plaintiff served while he was enlisted. Though the pumps and valves delivered to the Navy originally incorporated asbestos-containing gaskets and packing, all parties agreed that by the time plaintiff served aboard the Oriskany, the original asbestos packing and gaskets had been removed and replaced with packing and gaskets manufactured by third parties. Nevertheless, the plaintiff argued the pump and valve manufacturers had a duty to warn him regarding the hazards of asbestos.

Prior to O’Neil this legal issue had been addressed by the California Court of Appeal, most notably in Taylor v. Elliot Turbomachinery Co., Inc. (2009) 171 Cal. App. 4th 564. There, the First Appellate District noted, on facts indistinguishable from the present case, that the plaintiff’s injury did not come from the defendants’ equipment itself, but instead was released from products made or supplied by other manufacturers, though used in conjunction with the defendants’ equipment. Thus, the defendant manufacturers were not part of the chain of distribution of the injury-causing product, which was actually the asbestos-containing insulation. The court held that California law did not recognize a duty to warn of defects in another manufacturer's product. The Second District Court of Appeal below in O’Neil rejected the reasoning of Taylor, and instead ruled that a manufacturer is strictly liable for dangerous products with which its product will necessarily be used. The Supreme Court granted certiorari in O’Neil to resolve the conflict between the O’Neil and Taylor decisions.

At oral argument, one of the Justices’ primary concerns appeared to be factual in nature: What exactly was meant by the parties’ contention that the Navy “specified” or “required” the use of asbestos-containing insulation? As phrased by Chief Justice Cantil-Sakauye, did the Navy “say the magic word, ‘asbestos’” in its specifications to the defendants, or did the Navy merely promulgate performance specifications and the defendant manufacturers independently determined that asbestos-containing insulation was the best (or even only) material suitable to meet those requirements?

Another significant concern of the Court appeared to be whether the pumps and valves were capable of functioning without the asbestos-containing components. In other words, was asbestos required for the pumps and valves to function properly, or was asbestos merely required by the dictates of the steam propulsion system, and not the design of the valves or pumps themselves. The Court seemed troubled settling on the proposition that the pumps and valves could be deemed defectively designed if the pumps and valves were “asbestos neutral,” and could function just as well in other systems utilizing non-asbestos containing materials.

Ultimately this latter point may be where the court draws the line, assigning a duty to warn about replacement parts made by others only if the replacement part is identical to the original hazardous part, and the replacement part is essential to the function of the defendant’s product. The Court will issue its opinion within 90 days.

Two New Civil Opinions Coming From the Illinois Supreme Court

Kirk Jenkins — Tue, 25 Oct 2011 09:34:01 -0800

The Illinois Supreme Court has announced that on the morning of Thursday, October 27, it will file opinions in two civil cases [pdf]:

A.B.A.T.E. v. Giannoulias, No. 110611 -- Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.
Sierra Club v. Illinois Pollution Control Board, No. 110882 -- (1) Does a petitioner in an individual adjusted standard proceeding before the Illinois Pollution Control Board have a burden of proof with respect to the standards set forth in Section 27(a) of the Illinois Environmental Protection Act? (2) Must the Board make written findings or identify substantive evidence supporting its resolution of the Section 27(a) factors in such a proceeding? (3) Do environmental activist groups have standing to seek judicial review of the Board’s decision in an individual adjusted standard proceeding? See Government Law.

Is It Time For Florida to Adopt Daubert and Reject Frye?

Robert C. Weill — Tue, 25 Oct 2011 08:05:16 -0800

Witnesses called to testify as “experts” are cloaked with prestige and authority, and positioned to exert heavy influence on juries. This is accentuated with areas of expert testimony that are highly technical or specialized. The U.S. Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993), that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.”

In Daubert, the United States Supreme Court created a seismic shift in the test for the admissibility of expert testimony. Daubert held that Congress’ adoption of the Federal Rules of Evidence displaces the general acceptance test and requires the federal trial judge to ensure that any expert testimony admitted is both reliable and relevant. The Court has also clarified that an expert’s conclusions are not beyond the reach of the relevance/reliability test, and that the relevance/reliability test is not limited to the “scientific” and applies to all expert testimony. The Court has therefore given federal trial court judges the important responsibility of ensuring that expert testimony is based on reliable methodology and fits the facts of the case.

Florida, on the other hand, is among a shrinking minority of states still clinging to the antiquated Frye test. See Frye v. United States, 293 F. 1013, 1013-14 (D.C. Cir. 1923). This test does not provide trial judges with the legal tools for ensuring that “expert” witnesses are qualified and that their testimony is relevant, reliable and appropriate for a jury. Instead, the “test” is nothing more than a determination whether an expert’s methodology is “generally accepted.” This nebulous standard of “general acceptance” is not an adequate check on the integrity of expert evidence. The problem is compounded by Florida Supreme Court precedent holding that the Frye test applies only to a minority of cases involving expert testimony – those involving “new science.” If an expert’s testimony is based on science that the court does not deem “new” or derived from a field that is not traditionally “science,” then the test is not even triggered. So-called “pure opinion” testimony purportedly based on an expert’s overall experience is also beyond the reach of the Frye test.

This shortcoming in Florida jurisprudence undermines the integrity of the court system and quality of justice dispensed by trial courts. It also threatens to diminish the State’s many advantages in attracting business, particularly in light of the fact that most states in the Southeast have already modernized their laws governing the admissibility of expert evidence, including Georgia by legislation enacted in 2005 and North Carolina by legislation effective as of October 1, 2011.

The Florida Legislature can and should solve this problem by statutorily adopting Daubert to place Florida on equal footing with most other jurisdictions and federal courts.

[Robert C. Weill has co-authored a full-length article advocating for the Florida Legislature’s adoption of Daubert which will be published in the Nova Law Review in February 2012.]

6th Circuit Paging Ph.D. Jones?: Reliable Physician Causation Testimony Requires More Than Clinical Experience

Matthew A. Reed — Wed, 07 Sep 2011 09:43:48 -0800

In Thomas, Melau, and Anderson v. Novartis Pharms. Corp., the Sixth Circuit Court of Appeals recently affirmed a trio of cases prohibiting the testimony of treating physicians as specific causation experts. Though the appellate court’s opinion was not recommended for full-text publication, it nonetheless offers a salient reminder of a Daubert rule well-enunciated in the Sixth Circuit: A physician’s presumed expertise is in the diagnosis and treatment of disease, not necessarily in the scientifically reliable determination of its underlying cause.

Thomas involved three plaintiffs who filed separate lawsuits, but whose claims were heard by the Middle District of Tennessee pursuant to consolidated MDL proceedings. They alleged they developed biophosphonate-induced osteonecrosis of the jaw after taking Zometa and Aredia, drugs manufactured by Novartis for the prevention of bone maladies, typically in cancer patients. The plaintiffs retained general causation experts, but relied for proof of specific causation upon their non-retained treating physicians. Each plaintiff’s treating physician was excluded, but it is the exclusion rationale in Thomas that is of interest here.

The court began its analysis by noting that Thomas’ physician, Dr. Johnson, “appears to have used some form of a differential diagnosis, or differential etiology, which we have previously recognized is a proper basis for determining the cause of a medical condition when done properly.” Id. at 5. The propriety of such a method, however, depends upon the underlying expertise of the practitioner. The court acknowledged that Dr. Johnson was “unquestionably an experienced oral surgeon with many years of practice and training. He treated other patients with osteonecrosis of the jaw, and has read literature and attended conferences on osteonecrosis of the jaw.” Id. at 6. However, “[b]ecause Thomas relied on Dr. Johnson to give an expert opinion on the cause of his osteonecrosis of the jaw, it is not enough to show that Dr. Johnson can recognize and treat osteonecrosis of the jaw.” Id.

Thomas argued that expertise in causation was inherent in Dr. Johnson’s unquestioned ability to diagnose and treat osteonecrosis because “a treating physician needs to be able to distinguish the cause of the disease. The treatment usually used for osteonecrosis of the jaw would actually worsen conditions in those suffering from biophosphonate-induced osteonecrosis of the jaw. Because the cause of the osteonecrosis is central to determining the best course of treatment, and Dr. Johnson can treat osteonecrosis of the jaw, Thomas argues that Dr. Johnson, therefore, must be able to determine the cause of the condition.” Id. at 7. The court demurred. “While this inferential chain shows the importance of correctly determining the cause of the osteonecrosis, it does nothing to establish that Dr. Johnson can in fact, reliably determine the cause of a patient’s osteonecrosis of the jaw.” Id.

Thomas’ refusal to impute causation expertise to every clinical physician is rooted in an observation made by the Eastern District of Tennessee over 10 years ago: “[T]here is a fundamental distinction between [a physician’s] ability to render a medical diagnosis based on clinical experience and her ability to render an opinion on causation of [the plaintiff’s] injuries. Wynacht v. Beckman Instruments, Inc., 113 F. Supp. 2d 1205, 1209 (E.D. Tenn. 2000). The Sixth Circuit acknowledged and elaborated upon this distinction between diagnosis and etiology in Tamraz: “To use an analogy, chronic shortness of breath may be caused by diseases ranging from emphysema to lung fibrosis to bronchitis to heart disease – which would be the diagnosis. Heart disease, to pick one of these diagnoses, may be caused by diet, smoking, genetics or some combination of the three – which would be the etiology.” Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 673 (6^th Cir. 2010). The Tamraz court went on to observe that the nature of a clinician’s daily practice renders the etiologic component, which is critical in the courtroom, diminished past the point of scientific reliability in the doctor’s office or hospital:

When physicians think about etiology in a clinical setting . . . moreover, they may think about it in a different way from the way judges and juries think about it in a courtroom. Getting the diagnosis right matters greatly to a treating physician, as a bungled diagnosis can lead to unnecessary procedures at best and death at worse. But with etiology, the same physician may often follow a precautionary principle: If a particular factor might cause a disease, and the factor is readily avoidable, why not advise the patient to avoid it? . . . This low threshold for making a decision serves well in the clinic but not in the courtroom, where a decision requires not just an educated hunch but at least a preponderance of the evidence.

Id. (emphasis in original) (citations omitted).

Thomas never cited Tamraz, but Tamraz’s conclusion clearly underpins Thomas’ result: “The ability to diagnose medical conditions is not remotely the same as the ability to deduce in a scientifically reliable manner, the causes of those medical conditions. Doctors thus may testify to both, but the reliability of one does not guarantee the reliability of the other.” Id. at 673-74 (citation omitted) (overturning district court’s admission of expert as an abuse of discretion).

Illinois Supreme Court Sets Civil Argument Schedule for September

Kirk Jenkins — Tue, 23 Aug 2011 14:02:49 -0800

This afternoon the Illinois Supreme Court published its Oral Argument Calendar [pdf] for the September term, and the Court will hear oral argument in ten civil cases. The cases, with the issue or issues presented in each, are:

September 20:

Simpkins v. CSX Corporation, No. 110662 -- Does an employer owe a tort duty of due care to the immediate family of its employees? See Tort Law.

The Forest Preserve District of Du Page County v. First National Bank of Franklin Park, No. 110759 & 110760 -- (1) Has a plaintiff negotiated in good faith prior to filing a complaint for condemnation where it fails to offer the full amount of the highest appraisal it receives, fails to attach an appraisal to its offer letter and adds a short time-frame for acceptance to its offer? (2) Are clauses in Annexation Agreements providing that zoning and Special Use Designations survive the expiration of the agreement contrary to Illinois law? (3) Is Section 7-121 of the Eminent Domain Act, which provides that fair market value in a condemnation proceeding shall be determined as of the date the action was filed, unconstitutional as applied under Kirby Forest Industries v. United States, 467 U.S. 1 (1984)? See Government Law.

Wisnasky-Bettorf v. Pierce, No. 111253 -- Under Section 7-61 of the Illinois Election Code, 10 ILCS 5/7-61, must an established political party timely file a resolution with the appropriate official in order to fill a vacancy in nomination when no candidate appeared on the primary ballot for that party or ran as a write-in candidate? See Election Law.

September 21:

Citizens Opposing Pollution v. ExxonMobil Coal U.S.A. – Nos. 111286 & 111304 -- Does either the Surface Coal Mining Land Conservation and Reclamation Act, 225 ILCS 720/1.01 et seq., and/or the Water Use Act of 1983, 525 ILCS 45/1, permit a private right of action for enforcement? See Civil Procedure.

Sandholm v. Kuecker – No. 111443 -- (1) Is the Illinois Citizen Participation Act, 735 ILCS 110/1, unconstitutional, either on its face or as applied? (2) Is the attorneys fees provision of the Act limited to fees incurred in moving to dismiss under the Act? See Constitutional Law.

The Township of Jubilee v. The State of Illinois – No. 111447 -- Does the State’s filing of a counterclaim, after its motion to dismiss has been denied, waive a claim of sovereign immunity? See Government Law.

Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corporation – No. 111611 -- (1) Are claims brought under Section 4(d)(6) of the Franchise Act, 815 ILCS 710/4(d)(6), within the exclusive jurisdiction of the New Motor Vehicle Review Board? (2) Did the plaintiff otherwise state claims for relief under the Franchise Act? See Contract Law.

September 22:

Santiago v. E.W. Bliss Company – No. 111792 -- When an injured plaintiff intentionally files a complaint using a fictitious name, without leave of court as provided in 735 ILCS 5/2-401, and subsequent to the expiration of the statute of limitations, files an amended complaint with the correct plaintiff’s name, should the court dismiss with prejudice as a sanction, or because the limitations period has expired and the amended complaint does not relate back to the original filing? See Civil Procedure.

Nowak v. The City of Country Club Hills – No. 111838 -- May an injured public employee simultaneously collect the benefits provided under the Public Employee Disability Act, 5 ILCS 345/1, as well as the health benefit provided by Section 10(a) of the Public Safety Employee Benefits Act, 820 ILCS 320/10(a)? See Government Law.

Reliable Fire Equipment Co. v. Arredondo – No. 111871 -- What is the appropriate standard for determining whether an employer has a protectable interest in its customer list such that a non-compete clause in an employment agreement is enforceable? See Employment Law.

A Claim for Medical Expenses Is Limited to the Rate Negotiated by Plaintiff's Insurer - So Rules The California Supreme Court in Howell

Michael Walsh — Fri, 19 Aug 2011 08:58:09 -0800

Adding its voice to a continuing national debate, the California Supreme Court has adopted the minority rule and held that tort damages for past medical expenses are limited to those amounts actually paid and accepted as full payment for the services provided, when such amounts are determined by an existing agreement with the plaintiff’s insurance carrier. In such a case, an amount otherwise “billed” using rates outside of the agreement is irrelevant. In its opinion, the Court explained that only the prenegotiated amount actually paid by, or on behalf of, the plaintiff to settle a previous medical bill is recoverable as economic damages, because such a payment is the extent of plaintiff’s actual loss. As a result, the collateral source rule does not apply, because the issue is the measure of plaintiff’s actual damages, not how they were paid. The Court noted that, to be recoverable, such damages must be both reasonable and actually incurred. While acknowledging that this could result in wildly different damages for the same injury, depending on whether the plaintiff was insured, this does not change the measure of a particular plaintiff’s damages. The Court noted a similar disparity in lost income damages between different plaintiffs with identical injuries. There were several amicus briefs filed in this matter, including one prepared by Sedgwick. For more details about Howell, see the Damages update page.

Governor Brown Nominates U.C. Berkley Law Professor Goodwin Liu to California Supreme Court

Matthew A. Reed — Thu, 28 Jul 2011 07:55:38 -0800

Governor Jerry Brown has acted to fill the California Supreme Court vacancy created by the retirement earlier this year of Associate Justice Carlos R. Moreno by nominating U.C. Berkley law professor Goodwin Liu to the post.

Professor Liu, 40, has never been a judge, but recently garnered headlines as President Obama’s nominee for a seat on the U.S. 9^th Circuit Court of Appeals. His confirmation was blocked by Senate Republicans, citing his legal philosophy and despite support from prominent legal conservatives Kenneth W. Starr and Richard Painter. He ultimately withdrew his nomination.

Professor Liu is the son of Taiwanese immigrants. He was born in Georgia, but raised in Sacramento where, according to his CV, he attended public schools. He graduated Stanford in 1991 with a bachelor’s degree in biology, then went to Oxford on a Rhodes scholarship, where he took a masters degree in philosophy and physiology. “Upon returning to the United States, he went to Washington, D.C., to help launch the AmeriCorps national service program and worked for two years as a senior program officer at the Corporation for National Service.”

Professor Liu’s career in the law began upon graduation from Yale Law School in 1998, whereupon he clerked for Judge David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. He then worked “as Special Assistant to the Deputy Secretary of the U.S. Department of Education, where he developed and coordinated K-12 education policy.” A U.S. Supreme Court clerkship with Justice Ruth Bader Ginsburg followed, then a stint in O’Melveny & Myers’ appellate litigation practice in Washington, D.C. Since joining the Boalt Hall faculty in 2003, he has ascended to the rank of Associate Dean and Professor of Law while establishing himself as a nationally recognized expert on constitutional law, education policy, civil rights, and the Supreme Court.

He is also a prolific and influential legal scholar. Some of his more recent publications include:

Keeping Faith With The Constitution (2009) (with Pamela S. Karlan and Christopher H. Schroeder);
The Bush Administration and Civil Rights: Lessons Learned, 4 Duke Journal of Constitutional Law & Public Policy 77 (2009);
National Citizenship and the Promise of Equal Educational Opportunity, in The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009);
Rethinking Constitutional Welfare Rights, 61 Stanford Law Review 203 (2008).

Reach of Litigation Privilege To Be Tested By Florida Supreme Court

Robert C. Weill — Wed, 13 Jul 2011 06:23:26 -0800

In a day and age when every other day there seems to be a sex scandal involving a politician’s “indiscretions,” the Florida Supreme Court has been asked to examine a legal issue arising out of an alleged sex scandal. In DelMonico v. Traynor, No. SC10-1397, the Court must determine whether an attorney is protected by the litigation privilege against claims for defamation and tortious interference when he related to another party’s ex-spouses and former business associates during witness interviews that the party used prostitutes to entice business clients. The Court accepted the case for review based on conflict with the Court’s prior decision in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell P.A. v. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla. 1994). The district court’s decision is reported at 47 So. 3d 1287 (Fla. 4th DCA 2010), and the slip opinion can be found here. The Court heard oral argument on June 9, 2011.

The District Court’s Decision. The district court affirmed the application of the privilege to bar the claims against the attorney and his law firm. Over the dissent of one judge, the district court held that “[b]ecause the statements complained of were made by the [attorney] while he was acting as defense counsel in the underlying litigation, and the statements bore ‘some relation’ to the proceeding, they were absolutely privileged as a matter of law.”

The dissent, on the other hand, questioned whether a qualified, rather than absolute, privilege applied since the attorney’s defamatory statements targeted a person outside a “judicial proceeding.” It then concluded that disposition by summary judgment was not appropriate because “there remain disputed issues of material facts as to whether the attorney made the statements and whether they were made with the intent to injure the appellant.”

Review before the Florida Supreme Court. The Florida Supreme Court accepted review of the case based on express and direct conflict with its decision in Levin Middlebrooks which held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.” Petitioners asserted that the district court’s holding conflicted with Levin Middlebrooks “by applying an absolute privilege to statements defaming a party outside of a judicial proceeding, at a time when the defamed party and/or his lawyer are not present, not provided an opportunity to be heard, and not able to have any judicial recourse because the defamatory statements are not made in the ‘course of the judicial proceeding.’”

In sum, the issue before the Court turns on the meaning of the phrase “course of judicial proceeding.” Does the “course of judicial proceedings” requirement become non-issue once a lawsuit is filed? Does it sweep into its net comments made during potential witness interviews outside the presence of the defamed party or a judge? Does the term require that the statements be made during a formal discovery process (e.g., deposition, answer to interrogatories), a court filing, or in open court? In the end, the Court will have to balance “the chilling effect on free testimony” versus “the right of an individual to enjoy a reputation unimpaired by defamatory attacks” based on the facts of this case.

Employers Liable Only Once For Employee Negligence - California Follows the Majority Rule

Michael Walsh — Wed, 06 Jul 2011 15:22:23 -0800

Under respondeat superior, an employer is held vicariously liable for the acts of an employee when driving a vehicle within the scope of employment, irrespective of any fault by the employer. Alternatively, an employer can be directly liable for its own negligence under the theory of negligent hiring/retention or negligent entrustment. As a practical matter, a plaintiff injured by the driving employee can allege all such theories; however, does that remain true once the employer admits liability under respondeat superior?

In Armenta v. Churchill (1954) 42 Cal.2d 448 (Armenta), the California Supreme Court held that once an employer admits liability under respondeat superior for an employee driver, the plaintiff is then barred from also pursuing a claim of negligent entrustment. The Court concluded that these were merely two alternative theories for holding an employer liable for the same injury. Under the “all of nothing” principles then in place, an employer would either be held for 100% of the damages, or none at all, regardless of the theory used. However, since Armenta, California has adopted comparative negligence principles and voters enacted Proposition 51, creating mechanisms for parsing out the separate liability of each party involved. As a result, the courts of appeal split as to the continuing viability of Armenta, with the Court of Appeal in Diaz finding that Proposition 51 required a separate evaluation of the employer’s direct liability.

In Diaz v. Carcamo (2011) ___ Cal.4th ___, S181627, the unanimous Supreme Court has resolved the conflict below and upheld Armenta, noting that this remained the majority rule in the U.S. The Court first dismissed the purported distinction between a claim of negligent entrustment (Armenta) and negligent hiring (Diaz), noting these were “functionally identical” when addressing an employee driver. The Court also found it made no difference whether the employer conceded vicarious liability before or during trial. As to the main issue, the Court sided with Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, finding that the employer’s liability cannot exceed that of the employee driver who allegedly caused the accident, and that nothing in the development of negligence principles since Armenta had changed this. As a result, once vicarious liability for the employee is conceded, making the employer fully liable for the employee’s actions, the additional claims of negligent entrustment or negligent hiring become duplicative and superfluous and must be barred. Indeed, the Court noted the inherent inequity of holding the employer for a second share of liability in excess of the negligent driver’s liability, and remanded for a full retrial. For more details about Diaz, see the Torts & Products update page.

The Upshot: What Wal-Mart v. Dukes Means for Future Aggregate Litigation

Vance Wittie — Fri, 24 Jun 2011 07:19:27 -0800

The Supreme Court’s decision overturning the certification of the massive gender discrimination class in Wal-Mart v. Dukes [pdf] has been well-publicized. We go behind the headlines, therefore, to offer a few educated guesses as to what the case will mean for the future of class actions and other forms of aggregate litigation:

Statewide classes barred on state law will become more common as claimants will seek friendlier state jurisprudence on the commonality question;
Some counsel will seek to litigate claims through “mass actions” of large numbers of individual claimants rather than face rigorous class action requirements;
Greater care will be taken in framing class definitions to meet Wal-Mart’s more rigorous commonality standards;
The practice of “smuggling” monetary claims into purported injunctive class actions will stop;
Attempts to bring medical monitoring claims as injunctive class actions will face increased scrutiny;
Merits-related evidence will usually be essential at certification hearings;
Expert testimony at the certification stage will be subject to Daubert scrutiny;
The unanimous rejection of “trial by formula” will stifle “creative” attempts to dispose of aggregated claims by denying the defendants’ right to present individual defenses. “Bellweather” trials will not be binding.

Thomas & Lincoln on Appellate Practice: Your Credibility is Everything (The Bryan Garner Interviews IV)

Kirk Jenkins — Fri, 17 Jun 2011 11:32:56 -0800

"You don't want to lose credibility," Justice Thomas told Bryan Garner during their 2007 interview [pdf]. "That is the one thing you bring with you. And if you lose it, it's hard to get it back."

A lawyer's credibility is his or her stock in trade, and that's especially true in the appellate courts. Appellate judges rely on the lawyers before them to give an honest account of the facts below, and enter into an open dialogue about the application of the law to those facts. As Justice Kennedy said, "I've learned that the judges really want your help."

Few lawyers would question the proposition that they have a duty to be fair and honest about the facts and the record. Justice Ginsburg points that out in her interview with Garner: "if a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted - the rest of it." Nevertheless, it happens, at least in the intermediate appellate courts. After twenty-five years practicing in the appellate courts, I've certainly seen record cites that don't support the accompanying factual assertion. And once in a great while you see brief-writers whose discussion of a few key authorities stretches the boundaries a little too far.

The justices remind us to be scrupulous about the little things. The first and last thing I do with every brief is to review the applicable court rules - a habit I learned with my first appellate brief, when a senior partner reminded us that we would not under any circumstances be getting any non-compliance calls from the court clerk. Proofread carefully and repeatedly -- Justice Stevens observes that he "almost never" reads a brief with no typographical errors, but Justice Scalia told Garner that typographical errors undermine your credibility: "It just shows you're not careful." Particularly with courts of discretionary jurisdiction, Justices Thomas and Kennedy both note that some attorneys insist that the cases stand for more than they really do. "[W]e know that's not true," Justice Thomas said. "That's not advocacy; that's just being dishonest."

But protecting your credibility goes deeper than that. As Justice Thomas says: "I think when you give ground, you gain credibility. When you hold ground that you don't deserve, you do not gain credibility; you lose credibility." Bringing arguments with no chance of success is not a cost-free exercise in the appellate courts. Filing a petition for review at your state Supreme Court claiming that half a dozen issues are worthy of review -- or devoting an appellate brief to what's really a jury argument -- merely tells the court that you don't understand its mission.

Justice Thomas' advice reminded me of a story about Abraham Lincoln. Lincoln's friend Leonard Swett tried dozens of cases while riding circuit with Lincoln, both as his co-counsel and his opponent. After Lincoln's assassination, Swett told Lincoln's biographer (and former law partner) William Herndon:

As he entered the trial, where most lawyers would object, he would say he reckoned it would be fair to let this in, or that . . . When the whole thing was unraveled, the adversary would begin to see that what he was so blandly giving away was simply what he couldn't get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that.

Justice Thomas and President Lincoln have important advice for our practices. Most appellate judges glance at the counsel signature block when they pick up a brief. Strive to give them a sigh of relief when they see your name on the brief, because they know your record cites will say what you claim, your cases are correctly cited, your brief is complete and intellectually honest; in short, that you've given them the help they want.

Learning to Love Oral Argument (and Persuade the Court While You're At It) -- The Bryan Garner Interviews III

Kirk Jenkins — Thu, 16 Jun 2011 10:29:20 -0800

My favorite part of my job is oral argument. A well-prepared oral argument with a hot bench is everything that draws a lawyer into appellate practice -- a fast-paced but thoughtful give-and-take about what the law is, and where it should go. As Justice Scalia told Bryan Garner, “I think good counsel welcomes, welcomes questions.”

Still, nothing in appellate practice has more capacity to keep lawyers pacing the floor at night.

As you might expect, Bryan Garner's Supreme Court interviews contain detailed advice for preparing for oral argument, enjoying the process, and even persuading the court to your client's point of view while you're at it.

One of the most difficult skills to learn in appellate argument is how to stay on message despite a hot court. Inexperienced advocates tend to become wedded to a speech, or at least an inflexible outline. When the questions start flying, they can’t adapt their presentation, and sometimes they wind up committing the cardinal sin of responding to a question with "I'll get to that in a moment." You’re there to answer the court’s questions, nearly to the exclusion of all else. Evade, stall or equivocate, and you try the court’s patience and risk your credibility. Answer the question. Immediately.

Chief Justice Roberts offers a great suggestion for mastering the skill of adjusting your argument on the fly to fit the flow of questioning. He points out that every argument breaks down to just a few points – call them A-D. Put each point on an index card. During your practice sessions, shuffle the cards as you're introducing your argument, then look down and take your points in the order you see -- if the first card says point "C," then begin there. That way, if a judge interrupts in the first two minutes and wants to move straight to your final point, your presentation will flow smoothly from there through your other points.

As Jay O'Keeffe argued on his appellate blog De Novo last year, moot court practice sessions are an absolutely essential part of preparing for most cases. Today, more cases than ever are resolved on the briefs; oral argument doesn't change the result. But you can never predict whether your case will be one of the exceptions, so you have to be ready. Know the record and know the cases: "as a lawyer," the Chief Justice told Garner, "you've got to be prepared to answer a thousand questions. You might get eighty, you might get a hundred, but you've got to be prepared to answer more than a thousand." Although predicting the hard questions the court might ask is an indispensable skill for an appellate lawyer, you'll need help from your colleagues. The Chief Justice recalled:

I would do countless moot courts early on. For a Supreme Court case, certainly five, maybe as many as ten. I'd do them over and over again, and it paid off enormously in terms of generating familiarity with the types of questions people would ask and also developing a comfort level with answering.

The Chief Justice reminds us to resist the urge to staff your moot court with people who might be expected to be sympathetic to your client’s position. If your client is a criminal defendant, find three former prosecutors for your sessions. If you're representing a corporate defendant, find a former plaintiff's lawyer. Answering the easy questions doesn't do you any good; you want the hostile ones. Strive to walk out of your argument thinking it was easier than your moot courts.

I'll conclude with my own tip: listen and learn. Become a fan of the great oral advocates. Check out the oral argument audios at the Oyez Project. Pick up a few of Peter Irons' May It Please the Court book-and-audio collections and listen during your commute (just hope nobody asks what's on your iPod playlist).

Join us back here tomorrow for the conclusion of our four-part series on Bryan Garner's SCOTUS interviews in LawProse.