Expert Analysis

• 5 Mistakes To Avoid In Civil Litigation Witness Preparation

  

  For witness preparation to be effective in civil litigation, defense counsel should avoid several pitfalls, including overlooking the witness’s emotional status, making assumptions about their experience and not devoting enough time to the preparation process, say Bill Kanasky and Steve Wood at Courtroom Sciences.

• J&J Unit Ch. 11 Case Shows Texas 2-Step May Be Wrong Move

  

  The Third Circuit's recent ruling in the Chapter 11 case of Johnson & Johnson's talc-related damages unit raises new questions about the viability of divisional merger transactions as a means to manage mass tort liabilities through bankruptcy, especially when there is a robust funding arrangement, say attorneys at Mayer Brown.

• Evaluating Workplace Accommodations For Service Animals

  

  In Bennett v. Hurley Medical Center, a Michigan federal court ruled in favor of the hospital after a nursing intern filed a disability discrimination lawsuit regarding her service dog, highlighting the importance of engaging in interactive processes and individualized actions in workplace accommodation decisions, say Keith Anderson and Anne Yuengert at Bradley Arant.

• Garland Memo May Curb A Powerful Prosecutorial Tool

  

  Attorney General Merrick Garland’s recent policy memo, instructing that proportionality should be the top consideration in charging decisions, may limit prosecutors’ increased use of the aggravated identity theft statute to induce guilty pleas in white collar cases, say Brandon Fox and Sasha Peters at Jenner & Block.

• 3 Reasons Why Reframing Can Create Juror Backlash

  

  Though reframing jurors' existing negative perceptions of your client or product can be an important trial tool, this strategy can also backfire if it fails to consider how people may react to overt persuasion attempts or perceived deception, say Nick Polavin and Jill Leibold at IMS Consulting.

• A Missing Issue In 'Blank Space' Insurance Ruling

  

  As Norwegian Hull Club v. North Star heads to trial in Florida federal court, the most interesting part of the court opinion denying summary judgment is the argument it doesn't address — contra proferentem, which could have been used to resolve the case's blank space ambiguity in the policyholder's favor, say Jeffrey Mikoni and Scott Greenspan at Pillsbury.

• Actual TM Confusion And Social Media Evidence: 4 Questions

  

  As recent federal rulings increasingly analyze whether social media posts may constitute evidence of actual trademark confusion, parties should ask a series of questions before employing this type of evidence in litigation, says Dylan I. Scher at Quinn Emanuel.

• Justices Leave Questions Open On Dual-Purpose Atty Advice

  

  The U.S. Supreme Court's recent dismissal of In re: Grand Jury on grounds that certiorari was improvidently granted leaves unresolved a circuit split over the proper test for deciding when attorney-client privilege protects a lawyer's advice that has multiple purposes, say Susan Combs and Richard Kiely at Holland & Hart.

• Trial Strategies To Shore Up Gaps In Your Case Narrative

  

  As several recent verdicts reiterate, jurors crave a coherent and complete case narrative, so to mitigate the impact of information gaps that can lead to mistrials, mixed verdicts or total losses litigators can use certain approaches to craft a story that’s impervious to attacks, says Clint Townson at Townson Litigation Consulting.

• The Jurisdictional Conflict At Center Of 9th Circ. FCA Case

  

  In Island Industries v. Sigma, the Ninth Circuit will decide whether district courts have subject matter jurisdiction over False Claims Act qui tam actions that are based on alleged customs duties fraud, resurrecting an issue that has received little attention in the last 20 years and potentially creating a consequential customs-related exception, say attorneys at Morgan Lewis.

• Townstone Ruling Rocks The Boat On Equal Credit Law Reach

  

  While an Illinois federal court's recent decision in Consumer Financial Protection Bureau v. Townstone has disturbed the use of the Equal Credit Opportunity Act to address discrimination in preapplication activities, lenders must still continue to monitor how they interact with prospective applicants to mitigate fair lending risk, say attorneys at Paul Hastings.

• DOJ Fraud Section's 2022 By The Numbers

  

  Attorneys at Wiley discuss the U.S. Department of Justice Criminal Division Fraud Section's activity over the past year in comparison with prior years and discuss trends to expect throughout the rest of 2023.

• J&J Ch. 11 Dismissal Ignores Mass Tort Bankruptcy Principles

  

  The Third Circuit's recent dismissal of LTL Management's Chapter 11 petition due to insufficient financial distress — even as the Johnson & Johnson subsidiary defends thousands of tort claims — runs contrary to decades of precedent in mass tort bankruptcies, says Douglas Smith at Aurelius Law.

• 2 Takeaways From 3rd Circ.'s J&J Bankruptcy Ruling

  

  The Third Circuit's recent dismissal of J&J; subsidiary LTL Management's Chapter 11 bankruptcy petition may raise difficult questions for debtors trying to prove that they are in financial distress, as practitioners will have to grapple with an amorphous financial distress standard and the termination of a preliminary injunction currently staying myriad similar lawsuits, say attorneys at Hunton.

• Steps Lawyers Can Take Following Involuntary Terminations

  

  Though lawyers can struggle to recover from involuntary terminations, it's critical that they be able to step back, review any feedback given and look for opportunities for growth, say Jessica Hernandez at JLH Coaching & Consulting and Albert Tawil at Lateral Hub.