From Gary v. Braddock Cemetery, 2008 U.S. App. LEXIS 2533 (3d Cir. Feb. 5, 2008): With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in ...

Highland Capital Mgmt., LP v. Schneider, 2008 U.S. Dist. LEXIS 7019 (S.D.N.Y. Jan. 28, 2008): 1. No Testimony as to Witness Credibility. “[Expert] Duval's opinion as to the credibility of witnesses is inadmissible.... [T]he credibility of witnesses is exclusively for the determination of the jury.... Such subjective review of ...

Facts known only to a decedent can be deadly difficult to prove. The plaintiff’s decedent in Brown v. SmithKline Beecham Corp., 2008 U.S. Dist. LEXIS 5091 (N.D. Ill. Jan. 18, 2008), died as a result of a stroke that his widow attributed to his ingestion of Contac.® It was essential on the issue of causation to prove ingestion within 72 hours of death, but the p ...

The admissibility of text messages from the defendant to the victim was a key issue in State v. Espiritu, 2008 Haw. LEXIS 15 (Haw. Sup. Ct. Jan. 28, 2008), an appeal from a conviction for attempted murder and other offenses. The defendant conceded that the text messages “would arguably be admissible as an exception to the hearsay rule as an admission by a party-o ...

A new article discussing recent developments in attorney-client privilege and work product protection in the corporate context has been posted on the Recent Articles page. It can be found at http://www.josephny_live.com/articles/viewarticle.php?54. ...

Some good deeds go unpunished. The plaintiff in Allen v. Tribune N.Y. Newspaper Holdings, LLC, 246 F.R.D. 465 (S.D.N.Y. 2007), dismissed a weak case and managed not to get sanctioned as a result of dismissing it. Several hours after an initial status conference before Judge Jed S. Rakoff, plaintiffs’ voluntarily dismissed their complaint. (It must have been som ...

The Federal Rules of Civil Procedure do not specifically address spoliation. The Rules Enabling Act is a factor, as it dictates that “rules shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), and it is challenging to draft a proscription against spoliation while being unable to craft the preservation duty the violation of which tr ...

The Associated Press reports that, on Thursday, January 31, the Senate Judiciary Committee approved the following federal judicial salary increases by a 10-7 vote: District court judges, from $169,300 to about $218,000. Circuit judges, from $179,500 to about $231,100. Supreme Court associate justices, from $208,100 to about $267,900 ...

The plaintiff in C.T. v. Liberal School Dist., 2008 U.S. Dist. LEXIS 5863 (D. Kan. Jan. 25, 2008), listed a series of emails on his privilege log, but did not separately list the attachments. Held, “any claim of privilege plaintiff might wish to raise as to those documents has been waived, and the attached documents, to the extent they are responsive to defendant ...

The Senate Judiciary Committee has scheduled an Executive Business Meeting for 10 a.m. on Thursday, January 31, 2008. Item 1 on the agenda is S. 1638, the Federal Judicial Salary Restoration Act. Item 3 is S. 2450, Federal Rule of Evidence 502. ...