Month: June 2013

Arthur Miller Article June 2013

Arthur Miller has written a new article, published in the NYU Law Journal titled, Simplified Pleading, Meaningful Days In Court, and Trials On the Merits: Reflections on the Deformation of Federal Procedure.

The article discusses the lengthy transformation of the federal courts from trial-oriented to paperwork-oriented. Miller discusses the increased focus on pleading and summary judgment. He also discusses the structures put in place to settle cases by the federal courts, designed to get rid of cases on the docket and to reduce the workload of the courts.

Miller believes that these changes have harmed plaintiffs by narrowing the law and restricting precedent. In my view, he is correct. Far more cases are dismissed or settled than go to trial. Both litigants and judges are often afraid of trials. Settlement also allows judges to avoid making hard decisions. They can’t be criticized for a settlement. They can be criticized for a decision made at a trial to admit hearsay or to reject a document as not a business record.

Edward X. Clinton, Jr.

Edward X. Clinton, Jr.

Court Revokes Pro Hac Vice Admission For Witness Related Misconduct

HomeDIRECT, INC. v. HEP DIRECT, INC., Dist. Court, ND Illinois 2013 – Google Scholar.

This is a case where Judge Zagel of the Northern District of Illinois revoked the pro hac vice admission of a lawyer to practice before him.

The lawyer and his client were accused of attempting to influence a witness in a civil case by canceling a debt the witness purportedly owed to the client. The lawyer and the client vigorously disputed the allegations, but, after a fact hearing, Judge Zagel ruled against them.

He explained the decision to sanction the Defendant as follows:

“HEP’s conduct is wrongful in that it exchanged a thing of value for a crucial witness’s declaration contradicting the prior statements (truthful or not) alleged by HomeDirect in support of its claims against HEP. I note in particular that the conduct of Hewitt, CEO of HEP, demonstrated that his solicitation of this declaration was made out of desperation or near desperation in the face of Home’s complaint. The transaction was motivated out of fear of a witness’s testimony and not for purposes of resolving an overdue account receivable. Paying a crucial witness for the purpose to ensure they are useless to the opposing party is egregious.”

Additionally, Judge Zagel found that the lawyer for the defendant acted with incivility to the other lawyers in the case.

Edward X. Clinton, Jr.

Lawyer Passes Note To Client In Deposition – Pro Hac Vice Admission Revoked

SIUPA v. ASTRA TECH, INC., Dist. Court, D. Massachusetts 2013 – Google Scholar.

This is a rare decision on a motion to reconsider the revocation of pro hac vice admission. A pro hac vice admission is one by leave of court for a lawyer who is not admitted to practice in that court. In rare cases the pro hac vice admission can be revoked where the lawyer engaged in some form of serious misconduct.

In this case the lawyer was accused of passing a note to his client during a deposition. The lawyer denied it, but the district judge held a hearing. The district judge found that the lawyer had, indeed, passed the note and had submitted a falsified exhibit to the court.

Lawyers know that they are not supposed to coach witnesses during a deposition. Here, the lawyer passed a note to the witness and, allegedly, lied about it.

Edward X. Clinton, Jr.

District Court Sanctions Party For Poor Preparation By Rule 30(b)(6) Witness

CITGO PETROLEUM CORPORATION v. SEACHEM, Dist. Court, SD Texas 2013 – Google Scholar.

Rule 30(b)(6) allows a litigant to depose an organization through a representative. The notice asks the other party to provide a witness who can testify on certain topics. Here, the District Court granted sanctions because the witness was poorly prepared and the other party, Citgo, had to incur expense to find the answers to the questions it asked. The court found that the parent company, YPF, was “intentionally shielding itself” from certain knowledge about the affairs of an affiliate.

The issue here – how much work you have to do to prepare the 30(b)(6) witness comes up frequently. The rule is designed to allow the company to propose one witness who can testify on many topics. The company can also use several deponents to answer the questions. The idea is to reduce the number of depositions and reduce litigation costs.

Here sanctions issued not because of poor preparation, but because the court concluded that the company prepared the witness poorly to avoid disclosing information.

Edward X. Clinton, Jr.