Trial Lawyers Research Articles

Racist Antitrust, Antiracist Antitrust

If the tumultuous 2010s yielded one consistent theme, it is frustration with inequality coalescing into collective action. In response, progressive enforcers and commentators have begun to explore whether the antitrust laws—enacted in an attempt to counter concentrated power during a previous Gilded Age—might play a role in addressing systemic racialized inequality. This essay contributes to that ongoing conversation by historicizing a pair of antitrust cases: Knights of the Ku Klux Klan and Superior Court Trial Lawyers Association. The first is an admirable example of antiracist antitrust. The second is its opposite. Together, these two decisions represent divergent paths. Which has the contemporary antitrust enterprise followed? The Supreme Court’s most recent substantive decision in the area, Ohio v. American Express, suggests both room for hope and reason for concern. The essay concludes by offering four recommendations for how antitrust can retake the high road. Antitrust can and should help to address—rather than exacerbate—structural inequality.

ПРОФЕССИОНАЛЬНО ОРИЕНТИРОВАННОЕ ОБУЧЕНИЕ СТУДЕНТОВ НЕЯЗЫКОВЫХ НАПРАВЛЕНИЙ: МЕЖДУНАРОДНЫЕ ПРОФЕССИОНАЛЬНЫЕ КОНКУРСЫ

The article deals with the issues of training a new generation of professional staff with a set of hard and soft skills on the example of foreign language training of lawyers. Special attention is paid to the development of both communicative and universal competencies such as the ability to defend personal position, teamwork, cooperation and interpersonal communication, presentation skills, stress resistance. The aim of this article is to describe the technology of professionally integrated foreign language teaching by preparing law students to participate in international competitions in English, as well as to analyze advantages of this technology. The model of technology of professionally integrated foreign language teaching is described. The method of modeling professional situations by mock trials is presented in detail. The authors describe the components and stages of implementation of the described technology, and justify its effectiveness. The results of a two-year study of the pedagogical potential of the technology in training students of Petrozavodsk State University for international competitions, such as the Amicus Curiae competition for trial lawyers, are given. To prove the statistical significance of the obtained data, Student’s t-test was applied. In the experimental group, after the completion of training, the average arithmetic indicator of the level of competence in reading, writing, speaking and listening in English is 0.84 – 1.33 points, which is a statistically significant result (texpl5>tcrit2.093, with the significance level α = 0.05). The technology proved to be effective for training students’ presentation skills, teamwork, collaboration and interpersonal communication skills, as well as their sense of confidence and self-control. The authors conclude that the inclusion of competitive elements in the learning environment encourages both the development of universal and professional competencies, and the improvement of foreign language proficiency of non-linguistic students.

The Human Component

This contribution is written from the perspective of a trial attorney with more than 20 years of experience representing clients in the California criminal justice system. Proper representation of the accused often requires a multidisciplinary approach in which legal care, medical care and mental health care work in conjunction with one another. Often, a client is laboring through layers of physical pain, fear, grief, and a possible myriad of mental health issues when his or her liberty is dependent on the ability to provide an accurate picture of their lives. In order to assist the client in providing the most comprehensive description of himself or herself, the defense team requires an empathic approach; one that is respectful of boundaries; and one willing to explore the context of the information uncovered during the course of investigation and representation.This contribution will detail the case of Marissa B , and how her investigation and advocacy wed her data to the context and circumstances surrounding her case to reveal information behind the human being in need of representation.

Derecho a una educación de calidad, formación de Juristas como práctica docente

El derecho a una educación de calidad (CPEUM:3; PNUD,2020:4), obliga a Instituciones de Educación Superior (IES), a formar estudiantes científicamente. Formar en ciencias a un estudiante de Derecho es formar Juristas o profesionales capaces de operar sobre las Normas jurídicas para que en su confección y vigencia lleguen a generar justicia y equidad evitando impunidades y tantos objetivos ulteriores que impactan a la vez al resto de los Derechos humanos.Diferenciar definitoriamente los conceptos de “Jurista” y el de “Abogado litigante” parece sencillo, pero requiere de analizar la factibilidad metodológica de una práctica formativa extraordinaria que permita a estudiantes aspirar a ser amorosos amantes de la Norma Jurídica (como objeto de estudio del Derecho), y no solo “usuarios” a conveniencia de la misma. En un contexto de pandemia, mediante clases virtuales vía TEAMS, se opera este paquete didáctico innovador que ha generado hallazgos que podrían permitir la réplica de este ejercicio en otra institución de enseñanza del Derecho interesada.

Boz Among the Radicals: Dickens Records a Turning Point in Tax History

Charles Dickens recorded many trials conduct by his friend, the attorney Thomas Talfourd. Dickens was only twenty-two years old when he recorded the trial of the Weekly True Sun's principal officers for their challenge to the Whig Parliament's rejection of an income tax. Liberal members of Parliament and the public opposed the trial. Dickens' perfect capture of the trial attorneys' and defendants' speeches at the trial reveals his understanding of the issues and his apparent sympathy with the defendants' cause. Yet he later stood back from all this, with the apparent exception of his parting of the ways with Harriet Martineau, his partner in the publishing venture of Dickens' middle years, which have been his rejection of her taking the same side the Whigs had taken in 1934.

LA IMPORTANCIA DEL APRENDIZAJE, LA ENSEÑANZA Y EL ESTUDIO DEL DERECHO

El presente artículo se centra en establecer la importancia que todo académico del Derecho debe conocer; ya sea como estudiante, docente universitario, abogado litigante, juez, fiscal y todo conocedor del mundo jurídico; tanto en el aprendizaje inicial, abarcando también la enseñanza superior y el estudio continuo del Derecho; los temas que se desarrollan a continuación fueron considerados con la finalidad de mejorar la calidad del proceso de enseñanza, estudio y aprendizaje del futuro abogado y del abogado en sí.
 Por ello el presente artículo, a través del estudio e interpretación del tema, se inicia a desarrollar conceptualizando cada uno de los aspectos relevantes del aprendizaje, la enseñanza y el estudio del Derecho; citando autores como, Atienza, Carbonell, Ossorio, López; entre otros que desarrollan temas relevantes respecto del Derecho.

The Experience of a Legal Career: Attorneys’ Impact on the System and the System's Impact on Attorneys

Because attorneys are essential to a fair legal process, it is important to understand the experience of a legal career. This article first reviews research on the influence of attorneys on the legal system, focusing on the effect on the influence of trial attorneys on ( a) juries, with a particular focus on attorney skill, behavior, trial decisions (i.e., joinder/severance, jury selection, opening arguments, witness selection, questioning style, cross-examination, objections, closing arguments), and characteristics (gender, race/ethnicity, attractiveness), and ( b) clients. The article then reviews the limited research on the role and impact of attorneys outside the litigation context, followed by the influence of the legal system on attorneys, with a focus on attorney distress (prevalence, causes, and consequences). The review concludes with a discussion of the overall relationship between attorneys and the legal system.

Responsibilities, Strategies, and Practice Factors in Clinical Cost Conversations: a US Physician Survey

Physicians play a key role in mitigating and managing costs in healthcare which are rising. Conduct a cross-sectional survey in 2017, comparing results to a 2012 survey to understand US physicians' evolving attitudes and strategies concerning healthcare costs. Random sample of 1200 US physicians from the AMA Masterfile. Physician views on responsibility for costs of care, enthusiasm for cost-saving strategies, cost-consciousness scale, and practice strategies on addressing cost. Among 1200 physicians surveyed in 2017, 489 responded (41%). In 2017, slightly more physicians reported that physicians have a major responsibility for addressing healthcare costs (32% vs. 27%, p = 0.03). In 2017, more physicians attributed "major responsibility" for addressing healthcare costs to pharmaceutical companies (68% vs. 56%, p < 0.001) and hospital and health systems (63% vs. 56%%, p = 0.008) in contrast to 2012. Fewer respondents in 2017 attributed major responsibility for addressing costs to trial lawyers (53% vs. 59%, p = 0.007) and patients (42% vs. 52%, p < 0.0001) as compared to 2012. Physician enthusiasm for patient-focused cost-containment strategies like high deductible health plans and higher co-pays (62% vs. 42%, p < 0.0001 and 62% vs. 39%, p < 0.0001, not enthusiastic, respectively) declined. Physicians reported that when they discussed cost, it resulted in a change in disease management 56% of the time. Cost-consciousness within surveyed physicians had not changed meaningfully in 2017 since 2012 (31.7 vs. 31.2). Most physicians continued to agree that decision support tools showing costs would be helpful in their practice (> 70%). After adjusting for specialty, political affiliation, practice setting, age, and gender, only democratic/independent affiliation remained a significant predictor of cost-consciousness. US physicians increasingly attribute responsibility for rising healthcare costs to organizations and express less enthusiasm for strategies that increase patient out-of-pocket cost. Interventions that focus on physician knowledge and communication strategies regarding cost of care may be helpful.

The Inciting Incident

In literary terms, a trial lawyer has to decide how to introduce the inciting incident, the central moment of change or conflict around which the entire story revolves. More precisely, the question is whether to begin - the opening statement or final argument - with the inciting incident, or to precede it with some amount of exposition. That decision, in turn, depends on the nature of the story itself. Is the central conflict self-explanatory, requiring little or no contest? Or does the story require nuance and background in order to be understandable? This essay uses examples from film and literature - from Kafka's Metamorphosis to Mark Twain's Huckleberry Finn, and from Casablanca to Saving Private Ryan - to explore the different approaches to this problem.

Silicone Gel Breast Implants: Past, Present, and Future.

The authors have provided an in-depth review of the history of saline and silicone gel-filled breast implants. In the history of medicine, no devices have been more scrutinized and thoroughly studied than breast implants. Although we as plastic surgeons recognize and appreciate the benefits that our patients derive from these devices, society as a whole continues to remain skeptical. The reasons for this are complex and multifactorial but appear to be fueled by the media, oppositional organizations, and several trial lawyers. Prior to 1990, when the silicone gel implant controversy began, there were only eight indexed publications that dealt with the issue of silicone gel breast implants. Since 1990, there have been more than 500 indexed publications dealing with silicone gel implants. At the time of the moratorium in 1992, we as plastic surgeons did not have a leg to stand on because there was a paucity of scientific evidence to support our observations that silicone breast implants were safe and effective devices.

PERAN ADVOKAT DALAM PEMBANGUNAN HUKUM INDONESIA

In everyday there are few terms that used to interpret this law profession. Some are termed the lawyers and also use the phrase of legal advisor, lawyer or advocate in Malaysia known as Peguam . The advocates, lawyer and legal advisor terms in english languange also can be called as trial lawyer or specifically in America known as attorney at law as well as in the United Kingdom known as barrister , and the role given by the lawyer that using the legal advisor terms in America known as counselor at law or also solicitor in United Kingdom. In constitution number 18 of 2003 about advocate, the word advocate is used in chapter I about General Conditions explained, Advocate is a person who work as legal professionals, both inside and outside of the court who fulfills the requirements under the provisions of this law. In practice the law profession is not only undertaken by the advocate during examination process at the level of investigation and examination in court (litigation process), however the role of advocate is also seen outside the court. The need for advocate legal services outside the court process is currently increasing, in line with growing needs of the community law, especially in existence that is increasingly open in association between nations. Through consulting services, negotiation and in making contracts for community empowerment and national law reform, especially in the economics and trade, including settlement of disputes outside of the court. Advocates as one element of the justice system is one of the pillars in upholding the rule of law and the human right. Advocates are a noble profession that is closely related to humanity. Increasing capital flows and foreign investment, especially among business people in ASEAN member countries (inter-ASEAN trade and investment), logically it will be followed by an increase in the need of lawyers or legal advisor services. This profession is important in providing direction and legal advices, including the assistance needed by business people properly and protected in Indonesia. Vice versa, when Indonesian business people decided to develop the investment and production activites, for example to Thailand or other ASEAN countries. Indonesian business people will need the services of lawyers or legal advisor who understand the provisions of Thailand laws. The challenges of the advocates basically lies mostly on advocates and the professional advocate commuity to how far the advocates can respond to the problems of the community in his environment. Another challenge is the political climate factor wich is not conducive to developing the role of advocates, for this reason, there is a need for a socialization of the function of the existence of an advocate role both for officials and the general public. These challenges will be increasingly complex when professional skill and the enthusiasm for learning from the lawyers do not grow in accordance with the demands of the global era, including the mastery of foreign languages as a key to opening communication with foreign relation. For this reason, the relationship network with IBA ( International BAR Association), ABA ( American BAR Association ), Lawyer Commitee For Human Rights and the like needs in the era of globization.

Imperial Tobacco and Trial Lawyers: An Unstable and Unsuccessful Retreat

The Supreme Court of Canada established an architectural model of the Constitution through the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island and the Reference re Secession of Quebec. This model has an informing core of “organizing principles” engaging both written and unwritten rules. These two decisions and earlier landmark rulings have used unwritten principles to reach dramatic conclusions. Yet, the Supreme Court departs from this line of authority in Imperial Tobacco in which a strong textual approach is taken. The author argues this decision led to instability in constitutional doctrine that was further complicated in Trial Lawyers. This article explores the strengths of the Judges Reference and the Secession Reference and the need to uphold the use of unwritten constitutional principles while calling for the Imperial Tobacco case to be set aside.

Taxing Litigation: Federal Tax Concerns of Personal Injury Plaintiffs and Their Lawyers

This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs’ recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney’s fees and costs are deductible by plaintiffs.In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount of damages awarded. These attempts have been met with varying degrees of success, depending on the jurisdiction and context.The Article then addresses the personal tax issues of trial lawyers themselves. Structured attorney fee arrangements, whereby these lawyers attempt to defer tax on contingent fees, are discussed. The tax deductibility of litigation costs advanced by contingent fee lawyers to their clients is considered. Finally, the Article concludes with a discussion of how provisions of the 2017 Tax Act might affect trial lawyers.

Eficacia de las medidas de protección en procesos de violencia familiar garantizan el derecho a la integridad de víctimas en la Corte Superior de Justicia de Tacna, sede central, 2017.

La investigación realizada es de corte jurídico social, de tipo descriptivo-exploratorio y dogmático-jurídico. Se aplicaron cuestionarios anónimos (17 preguntas con alternativa múltiple y de tipo dicotómico) a 341 participantes, entre los cuales se incluyen abogados litigantes en procesos judiciales de violencia familiar, defensores públicos, magistrados y secretarios de juzgados de familia, abogados del Centro de Emergencia Mujer (Tacna) y fiscales de familia (provinciales y adjuntos). Asimismo, se aplicó una ficha de análisis documental para recoger datos de 338 resoluciones de audiencias de medidas de protección en procesos de violencia familiar. La investigación pretendió determinar la eficacia de las medidas de protección otorgadas a las víctimas que denuncian violencia familiar ante juzgados de familia de la Corte Superior de Justicia de Tacna (CSJT). En base a los resultados de la encuesta realizada y a la revisión y análisis de las resoluciones judiciales, se llegó a la conclusión que son eficaces las medidas de protección otorgadas a las víctimas por los magistrados de los cuatro Juzgados de Familia de la CSJT ya que garantizan el derecho a la integridad de las víctimas. Asimismo, si bien la propia ley expresa taxativamente que es la Policía Nacional del Perú la entidad responsable de ejecutar las medidas de protección dictadas por el juzgado de familia correspondiente, la mayoría de los encuestados considera que si existe una supervisión eficaz del cumplimiento de las medidas de protección, lo que significa que si se realiza un seguimiento de manera periódica de dichas medidas otorgadas a favor de la víctima. Por otro lado, la percepción que tienen los operadores de justicia encuestados es que la ley 30364 y la no regulación de la conciliación resulta más efectiva que la ley 26260, ya que la ley 30364 garantiza el derecho a la integridad de la víctima, genera más confianza en la justicia y los jueces y la proyecta como una medida más severa a la sociedad.

Arresting Officers and Treating Physicians: When May a Witness Testify to What Others Told Him for the Purpose of Explaining His Conduct?

Under the hearsay rules, witnesses are frequently allowed to testify about a statement they heard someone else make, even if the statement might otherwise be inadmissible hearsay, if the testimony will properly enable the witness to explain to the jury why the witness formed certain beliefs or took certain actions on the basis of that But just as often, in cases involving nearly identical circumstances, such testimony is not admissible for that purpose. As is so often the case with respect to the hearsay rules, everything depends on the context. The distinction is an important one for the trial lawyer, because lawyers invariably find themselves embroiled in arguments over this fine line at every trial. This article clearly lays out and explains the important but sometimes poorly understood law concerning the circumstances under which a lawyer may — or may not — properly respond to a hearsay objection by advising the judge: This evidence about that statement is not being offered for its truth, but to allow the witness to explain to the jury the beliefs he formed, or the things he did, after he heard or read that statement.

California's Glyphosate Judgement – Emotion, Bad Science and Greed Win the Day

Jurors in California have awarded $289 million to a man who claimed that his cancer was due to Monsanto's herbicide glyphosate, even though that is biologically impossible. Even the judge acknowledged that there was no evidence of harm. Yet, trial lawyers manipulated a jury's emotions and the public's misunderstanding of science to score another jackpot verdict. The plaintiff, Dewayne Johnson, claims that glyphosate gave him non-Hodgkin's lymphoma, a cancer that occurs when the immune system goes awry. There are three major problems with this claim. First, as stated above, glyphosate does not cause cancer because it does not harm humans. It is an herbicide, so it is only toxic to plants. There is no known biological mechanism by which glyphosate could cause cancer, therefore its carcinogenicity is not even theoretically possible. That is why there is not a single reputable public health agency that believes glyphosate causes cancer. The US Environmental Protection Agency, the World Health Organization, and the European Food Safety Authority all reject claims of any link. The only organization of note that rejects this scientific consensus is a group within the World Health Organization called the International Agency for Research on Cancer (IARC). Contrary to all evidence, the group insists that glyphosate causes cancer – along with bacon and hot water. The truth is that IARC is a fringe outlier, staunchly ideological rather than scientific, and rife with financial conflicts of interest. Christopher Portier, a special adviser to the IARC working group that examined glyphosate, was also working for the activist organization the Environmental Defense Fund and received $160,000 from trial lawyers who stood to profit handsomely if IARC declared glyphosate a carcinogen because they could file suits in lawsuit-happy California. IARC's credibility has been so thoroughly shattered that Congress recently pulled its funding. Secondly, although the root cause of non-Hodgkin's lymphoma is unknown, that does not mean its etiology is completely open to speculation. Lymphomas originate from white blood cells, so scientists believe that autoimmune disease or chronic infections play a role. Just because the plaintiff's attorneys can fool a jury into believing that glyphosate causes non-Hodgkin's lymphoma does not mean there is any scientific evidence – and there is not. Thirdly, glyphosate has been off-patent for 18 years, and about 40% of the world's glyphosate is made in China. So, why pick on Monsanto when several different companies could have supplied the glyphosate the plaintiff used?

Exorcising Presumptions? Judges and Attorneys Contemplate “Felon-Juror Inclusion” in Maine

This exploratory study is the first to examine how courtroom personnel conceive of and navigate Maine’s unique policy of felon-juror inclusion. Findings derived from interviews with trial judges and trial attorneys in Maine, the only U.S. jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants ostensibly reject the criminology of the other, instead viewing former offenders as individual fellow citizens who contribute to and benefit from their inclusion in the jury process. These views also tend to shape jury selection in Maine, as participants reported taking a case-specific, personalized approach to the screening of felon-jurors. For felon-jurors with a sexual offense, however, some participants refused to acknowledge the possibility of reformation, intimating that all such offenders lack the character to engage in the jury process. In sum, this study suggests that among courtroom personnel in Maine, the criminology of the other has little influence on their conceptualizations and treatment of almost all potential felon-jurors.

The Poet with a Briefcase: The Russian Lawyer's Quest for the Professional Ideal

This article explores the discourse of professional self‐presentation of the new Russian trial lawyer in the decades following the Judicial Reform of 1864. Reluctant to be seen as a mere expert, the lawyer presented himself as an artist and citizen and modeled elements of his professional image after the paradigm of the Russian writer. The entwining of the civic and the artistic in the lawyer’s self‐fashioning was part of his program to defend the profession before an often hostile public opinion and to shore up his professional and cultural authority. In bringing out this aspect of the lawyer’s quest for professional identity we gain a fuller understanding of the fraught relationship between Russian law and letters in the post‐reform decades. While traditionally, the writers’ critique of lawyers has been viewed as an expression of moral disapproval of lawyering and of a more abstract antipathy to law, the article suggests that the lawyers’ continued efforts to portray themselves as Russian writers’ surrogates in the courtroom was also a cause for concern and a reason for criticism.

The Proliferation of Forensic Sciences and Evidence before International Criminal Tribunals from a Defence Perspective

The advent of forensic sciences at international criminal tribunals provokes scientific challenges, while confronting the judges and trial attorneys at the same time with the limitations of forensic sciences in international trials. This article discerns some of these challenges and limitations, which are pertinent to defence counsel, with a focus on the practice and jurisprudence of the International Criminal Court. It demonstrates that forensic evidence can have an impact on the probative value of the evidence, also at the level of international criminal tribunals. Adequate knowledge of the basics of forensic sciences and the principles which underpin this discipline can enable defence counsel to elicit potential exculpatory information at trial. For instance, certain new forensic techniques such as probabilistic genotyping can be quite persuasive to determine guilt or innocence. This article formulates practical recommendations for defence counsel operating at the International Criminal Court in approaching forensic evidence.

What the Mind Knows the Eye Sees

In the April 2017 issue of The Journal for Nurse Practitioners, I published a column about the impact of the systematic exclusion of women from health research. What was once referred to as sexism and we now call gender bias is considered the fundamental cause for most of the disadvantages that women have encountered in society, family relationships, health care, and the workplace through the centuries. The existence and results of gender bias are well-documented in scholarly journals and the popular press. Recently, an article appeared in my news feed about a study that was undertaken to examine gender bias in the courtroom. The report described an experiment in which the researchers used an actual court case to see if subjects would critique the closing argument of 6 seasoned trial attorneys differently depending on the gender of the attorney. Although the attorneys delivered the exact same angry presentation to several groups of male and female test viewers, the performances of the 3 female lawyers were consistently described in significantly different terms than that of their 3 male counterparts. The male attorneys were assessed to be commanding, powerful, competent, and hirable. The females were described as shrill, hysterical, grating, and obnoxious. 1 Salerno J.M. Phalen H.J. Reyes R.N. Schweitzer N.J. Closing with emotion: the differential impact of male versus female attorneys expressing anger in court. Law Hum Behav. 2018 Jun 25; ([Epub ahead of print])https://doi.org/10.1037/lhb0000292 Crossref PubMed Scopus (19) Google Scholar The researchers opined that because women are viewed more negatively than men when expressing anger it might adversely affect their ability to advance in their careers. I would suggest that it might also determine the fate of their clients. To most of our readers, this may not be shocking news. Nevertheless, gender bias and its pervasive existence in society are important issues that have implications for women’s psychological and physical well-being. Department Editor Denise G. Link, PhD, WHNP-BC, CNE, FAANP, FAAN, is a clinical professor at Arizona State University College of Nursing and Health Innovation in Phoenix. Denise welcomes ideas for future columns and can be reached at