August 2018

Talk is cheap…until lawyers get involved.

“Lawyers: are persons who write a 10,000 word document and call it a brief.” – Franz Kafka

Mouthpiece: n. old-fashion slang for one’s lawyer. Burton’s Legal Thesaurus, 4E. (2007). Retrieved August 8, 2018, from https://legal-dictionary.thefreedictionary.com/mouthpiece

There are thousands of sated comedians in the world who make a living off the caricature of loquacious litigators. Indeed, it is probably a fair statement that attorneys like to talk. Attend any bar event anywhere in the country and, more likely than not, you will find a group attorneys exchanging war stories. Lawyers, especially trial attorneys, relish opportunities to reminisce about trials won, how incomprehensible it is that they lost a “slam dunk” motion, or the occasional client they never want to see again.

Most of the time, idle attorney chatter over rubber chicken bar association dinners is entirely benign. However, public statements made by an attorney during a trial or the pendency of case that may go to trial is consequential all of the time. This is because, as Chief Justice Rehnquist observed, “a lawyer’s extrajudicial statements pose a threat to the fairness of a trial due to an attorney’s special access to information.” Gentile v. State Bar of Nevada, 501 U.S. 1031, 1071 (1991). In theory, an attorney’s comments on the scope of evidence or a case’s merits could predispose a jury pool and, thus, unintentionally (or deliberately) prejudice a judicial outcome.

Continue Reading Trial Publicity: Public Statements Made by an Attorney during Court Proceedings have Limits

Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

Continue Reading A Healthy Reminder of Burden Shifting