Category Archives: Trial Tactics

Recusal: Use it or Lose it

Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer. However, the Pennsylvania Supreme Court recently ruled that waiting too long to decide on a motion to recuse may result in the request being untimely.

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Lawyer’s Privacy Concerns Trumped by Public Persona?  

In a recent and ongoing case out of California, a successful attorney’s highly visible public profile may have contributed to a judge ordering the disclosure of the attorney’s personal financial records in relation to a malpractice action initiated against the attorney. A Los Angeles plaintiff’s attorney was recently sued by 28 former clients, who allege that the attorney misappropriated more than $12.5 million of settlement funds. The plaintiffs claim that their former attorney never informed them of the terms of the $17 million settlement agreement, or provided accounting records related to the allocation of the settlement funds.

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Attorney Disbarred for Conspiring to have Adversary Arrested

Many professionals are driven, competitive, proud and devoted to their craft. Professionals want to achieve success for their clients, they want to win. But what defines success? Professionals must stay within the rules of the road at all times or the result will most certainly be a total failure. Take for example the attorney accused of conspiring to setup his adversary on a DUI charge. You can’t make this stuff up.

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Egregious Conduct Warrants Mistrial

e·gre·gious: adjective; outstandingly bad/shocking. In the malpractice context, egregious is used to describe conduct that is so extraordinary that it may violate the rules of Professional Conduct. What is considered egregious can vary depending on the circumstances of the case and often is defined by the end result. Take for example the following case, where counsel’s egregious conduct resulted in a mistrial. According to the court: “That word – egregious—is difficult to write, but nothing else seems adequate.”

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“Name Calling” Warrants Mistrial in New Jersey

Attorneys are held to a reasonably well defined standard when it comes to professional conduct. Clearly, however, not all attorneys abide by this code. What an attorney may consider zealous advocacy can easily turn into unprofessional conduct if taken too far. Take for example the following case out of New Jersey where comments from the plaintiff's counsel were found to exceed the bounds of permissible advocacy and resulted in a mistrial, vacating a nearly $2.5 million judgment.

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Overzealous Advocacy Leads to Sanctions: Part II

Attorneys have an obligation to provide zealous advocacy on behalf of their clients and to pursue a client’s interests within the bounds of the law. We recently posted an example of an attorney that crossed the line. Here’s another example which resulted in sanctions imposed upon an attorney for discovery abuse. In both cases, sanctions were levied against attorneys defending a deposition. Accordingly, we’ll take the opportunity to provide some tips to avoid a similar result in your practice.

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Using Good Judgment Before Seeking Summary Judgment

For the defense bar, a motion for summary judgment can be an incredibly effective litigation tool. The successful motion puts an immediate end to a matter before trial, can limit the issues in dispute, or can provoke more reasonable settlement discussions. The MSJ unclogs dockets and saves litigants and courts time, effort, and money. But statistics suggest that MSJ’s are rarely granted and are often expensive to prepare. So defense practitioners should be asking themselves: is this the appropriate case to file an MSJ? The following tips may help in your analysis.

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When Tempers Flare: Liability Arising from Deposition Fight?

Litigation can get heated. Tempers may flare when the stakes are high and the result can be contentious exchanges amongst counsel. Sure, the adversarial nature of litigation is to be expected (and welcomed by some practitioners), but there is a line in the sand. Some cross that line and make things personal. What to do when things spiral out of control? Can insults form the basis for a separate suit amongst counsel?

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Work-Product Doctrine Tested in Pennsylvania

Attorneys must communicate with expert witnesses to define the scope of the engagement, to prepare for trial, and to evaluate the evidence. Depending on the jurisdiction, some or all of that communication may be protected from disclosure pursuant to the attorney work-product doctrine. In Barrick v. Holy Spirit Hospital, the Pennsylvania Supreme Court considered the extent of the privilege in this context and reached a bright-line rule in favor of non-disclosure.

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Recent Decision: Impeaching an Expert Witness

Attorneys and litigants would love a peek behind the curtain to develop a better understanding of their adversary’s case. Of course discovery provides the parties with various tools to identify and narrow the issues prior to trial. But discovery can only reach so far. In light of various privileges and exceptions, litigants often grapple over those materials that are discoverable and those that remain protected. In a recent New Jersey Superior Court decision, the court evaluated the extent of the attorney work-product doctrine as it pertains to expert testimony.

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