The Limits of Common Sense in Judicial Decisionmaking

Judge Posner’s recent opinion in Mitchell v. JCG Industries, Inc. enters a Twilight Zone of appellate decisionmaking that is truly bewildering. The issue was whether the FLSA requires poultry workers to be paid overtime for “donning and doffing” protective clothing at the beginning and end of their lunch breaks. Judge Posner answered that question, in part, by timing how long it took three of the court’s staff to don and doff the clothing. The parties had submitted conflicting testimony about this precise issue at the summary judgment stage. Nonetheless, Judge Posner, joined by Judge Kaanne, affirmed the grant of summary judgment in the employer’s favor based in part on the results of the in-chambers experiment.

Continue reading “The Limits of Common Sense in Judicial Decisionmaking”

How to Appeal a Sanctions Order

Can a lawyer obtain appellate review of a sanctions order by piggy-backing on her client’s notice of appeal? The Court of Appeals for the First Circuit raised this question sua sponte in a decision issued on March 26, 2014, In re Joannie Plaza-Martinez.

A federal public defender appealed a sanctions order against her as well as her client’s sentence in a single notice of appeal. The notice of appeal was “unarguably proper” as to the client. Whether it was also proper as to the public defender’s appeal of the sanction order was “an unresolved jurisdictional question.”

Continue reading “How to Appeal a Sanctions Order”

Duane Morris Attorney Thomas Newman Selected as the New York City “2013 Appellate Practice Lawyer of the Year”

Duane Morris congratulates Thomas R. Newman on being named the New York City “2013 Appellate Practice Lawyer of the Year” by Best Lawyers. Those honored as the “Lawyer of the Year” in their specialty have received impressive voting averages amongst their peers, and are a select group, with only a single lawyer in each practice area and metropolitan area being recognized as such. Mr. Newman has also been recognized by Best Lawyers in America for both Appellate Practice and Insurance Law since 2007, and is listed in Chambers USA: America’s Leading Lawyers for Business in Insurance: Dispute Resolution, both in New York and Nationwide.

“What Trial Lawyers Can Learn from Appellate Lawyers: Effective Appellate Advocacy Actually Begins at Trial”

Duane Morris partner Robert Byer will lead an ALI-CLE video webcast on the subject of “What Trial Lawyers Can Learn from Appellate Lawyers: Effective Appellate Advocacy Actually Begins at Trial” on Thursday, October 4, 2012.

Appellate advocacy and adjudication are fundamentally different from what transpires in trial courts. The failure to recognize critical differences, including how the perspective of an appellate judge differs from that of a trial judge, can result in the loss of an otherwise winnable appeal. This hour-long webcast examines those differences, and provides tips for how to prevent issues that may be critical in the appeals process. Click here to learn more about this seminar.

Possible Split Decisions Not Related to Party Affiliation

I disagree with the premise of the opening sentence of your September 12 editorial, “Absence of Seventh Justice Impairs Court’s Ability to Act.” You write that the suspension of Justice Joan Orie Melvin “left the court divided equally with three Democrats and three Republicans, creating the possibility of 3-3 split decisions.”

I agree that there is a possibility of evenly divided decisions, and that as a result the Pennsylvania Supreme Court should exercise its power to assign a temporary justice. However, I disagree that this has anything to do with political party registration.

Click here to read the entirety of Robert Byer’s article from The Legal Intelligencer.

“Every Breath” of Asbestos Is Not a Substantial Factor in Pennsylvania

The Pennsylvania Supreme Court unanimously found that plaintiffs cannot rely on the theory that “every breath” is a substantial contributing factor in causing an asbestos-related disease in an asbestos case involving friction exposures, i.e., brakes and clutches. The May 23, 2012, ruling in Diana K. Betz v. Pneumo Abex LLC (“Simikian”) overturns the en banc decision of the state Superior Court, which the Pennsylvania Supreme Court found to be based on an “unduly cramped perspective.” This decision changes the face of asbestos litigation in Pennsylvania and may have farther-reaching impact. Plaintiffs can no longer lump together exposures and say all exposures contributed to disease. This brings asbestos litigation in line with the mainstream causation requirements for other substances—plaintiffs must be able to prove that each product was a substantial factor in their disease. (Note: Duane Morris represented defendant Ford in this case.)

To read the rest of this alert, please visit the Duane Morris website.

Don’t Wait Until Appeal To Respond To Your Opponent’s Evidentiary Objections

California appellate courts continue to work through application of Reid v. Google (2010) 50 Cal.4th 512 to evidentiary objections raised in summary judgment proceedings. For those facing this issue—either in the trial court or on appeal—a new decision by Division Three of the Second District is a must read. (Tarle v. Kaiser Foundation Health Plan Inc. (2nd Dist., Div. 3, May 22, 2012 No. B224739) __Cal.App.4th__.)

Continue reading “Don’t Wait Until Appeal To Respond To Your Opponent’s Evidentiary Objections”

If You’ve Ever Encountered A Difficult Court Clerk, Here’s Your Case

If you have ever run into a court clerk who seems set on making things difficult, take comfort in a December 14, 2011 decision issued by the California Court of Appeal for the Sixth District, Voit v. Superior Court of Santa Clara County, __Cal.App.4th__(December 14, 2011) (No. H037034). There, the clerk refused to accept for filing a request for appointment of counsel in a civil case submitted by an incarcerated and indigent individual. Four times Voit tried to get the Court to accept the filing and each time it was rejected for a claimed deficiency, the last few times with a note explaining that the court does not assign counsel for civil matters and requesting authority to the contrary.

Continue reading “If You’ve Ever Encountered A Difficult Court Clerk, Here’s Your Case”