May 4, 2007
The "Thursday" Interview
Click the link at the bottom of this post to listen to this week's Friday installment of the Thursday interview. This week's interview is with Anthony J. Bellia Jr. of Notre Dame Law School about his new article The Origins of Article III "Arising Under" Jurisdiction. Thanks to A.J. for a great interview.
May 3, 2007
$65 Million Pants--UPDATED
Where one ought to begin a CivPro course is one of the recurring topics on this blog. I've decided to replace my "anatomy of a lawsuit" lecture with $65 million pants. Many thanks to Greg McNeal who blogs over at AIDP for bringing this lawsuit about some extraordinarily valuable pants (at least according to the plaintiff) to our attention. I think this lawsuit is a great springboard for introducing a number of topics many of us cover in the first few CivPro classes, such as ADR, remedies, and why some people hate lawyers. Greg and I are on the hunt for the pleadings in this case. If you happen to find them first, please send them here so that we can make them available to all. Enjoy the article, and, again, many thanks to Greg.
UPDATE: This morning Good Morning America ran a story on this lawsuit . You can see it here. According to GMA, the plaintiff is seeking $67 million, not the $65 million reported here and elsewhere. Sixty-seven million? Now we're getting a bit ridiculous.
FRCP Amendments Approved
On April 30, the Supreme Court approved amendments to:
Civil Rules 4, 5.1, 9, 11, 14, 16, 26, 30, 31, 33, 34, 37, 40, 45, 50, 71.1, and 78; Comprehensive Restyle Civil Rules 1-86; Restyle Illustrative Civil Forms; and new Civil Rule 5.2.
At this link, you can find a document prepared by the Advisory Committee regarding the restyling. In dual-column form, it displays the text of the old rule on the left and of the restyled rule on the right. Dial-up users beware; it's a 255-page .pdf file. (Benjamin Spencer reports Here) --RR
May 1, 2007
Prof. Lubet in the American Lawyer
Prof. Steven Lubet has an essay today in the American Lawyer, discussing the Seventh Circuit's censure of a lawyer's deposition conduct. Rather than instructing the client not to answer the question, according to the Seventh Circuit, the lawyer should have "called off the deposition and
applied for a protective order" from the trial court. Lubet concludes that "there is more than a bit of unreality in this aspect of the Seventh Circuit's analysis." (Hat tip to How Appealing) --RR
April 30, 2007
Domicile, CAFA, and Local Controversies
Weems v. Touro (5th Cir. 2007) involved the CAFA and the plaintiff's burden in establishing the local-controversy exception. Cheryl Weems filed a class-action petition against some medical defendants in Louisiana state court based on events following Hurricane Katrina. The proposed class comprised patients staying at a hospital when Katrina hit. The defendants removed under the CAFA, and Weems successfully moved to remand under the local-controversy exception. The Fifth Circuit reversed, holding that she failed to prove that more than 2/3 of the members of the proposed plaintiff classes were citizens of Louisiana at the time of filing.
Weems filed the suit about a year after Katrina. To prove the citizenship of the class, Weems produced hospital forms on which more than 2/3 of the class identified a Louisiana primary residence. Of course, these forms were filled out before Katrina hit. The court held that Weems did not meet her burden of proving domicile at the time of filing. The relevant time to determine citizenship is at filing, not at the injury-causing event. Plaintiff sued a year after the event (and the forms were signed before then). Given the mass relocations after Katrina a year-old indication of residency was not sufficient. Anyway, residence does not equal domicile--the party must prove residence plus an intent to remain indefinitely. Weems argued for a presumption of continuing domicile. The problem with that was she never proved an initial domicile to continue -- she proved an initial residence. Thus, Weems failed to prove current domicile directly (because the forms were too old and only indicated residence), and plaintiff's allegation of previous residence did not establish a previous domicile and therefore could not give rise to a presumption of continuing domicile. --RR