Trials

News & Analysis as of

Divided Panel Debates a Jury’s Ability to Resist the Persuasive Power of Hollywood

In United States v. Monsalvatge (Nos. 14-1113, 14-1139, and 14-1206), a divided panel of the Second Circuit explored the contentious topic of introducing blockbuster films as evidence in a criminal prosecution. Defendants...more

Litigant Beware: Ignore the Duty to Reconstruct the Record Under Rule 10(c) at Your Peril

In Roberts v. Ferman, 826 F.3d 117 (3d Cir. 2016), the Third Circuit sought to clarify the circumstances in which a party forfeits arguments made in a post-trial motion by refusing to agree to reconstruct the record under...more

Florida Supreme Court Rejects More Rigorous Expert Testimony Standard

The federal court system and 36 states have adopted the so-called Daubert standard in place of the Frye standard when it comes to qualifying expert witnesses under the rules of evidence. In 2013, the Florida Legislature...more

Supreme Court speaks on Daubert – says not much

Last week the supreme court issued its opinion on the recommendations of the Florida Bar Rules committee regarding the new Daubert statute. The supreme court noted there are “grave concerns” that (unidentified) elements of...more

Daubert Under the Microscope Again by Florida Courts

In a ruling that raises new issues about the adoption of the Daubert standard for the admissibility of expert opinions in Florida state court, the Florida Supreme Court has declined to adopt, to the extent they are...more

9 Tips Attorneys/Realtime Reporting

Having access to the instantaneous transcript provided by a court reporter during a deposition, arbitration, or trial has great value to attorneys. Court reporters can provide the realtime transcript text to attorneys in the...more

Sealing the Case: Controversy Surrounds New York Commercial Division Proposed New Rule

In late 2016, the Commercial Division Advisory Council proffered a proposed rule, Proposed Rule 11-h, which would amend Rule 216.1(a) of the Uniform Rules for Trial Courts in New York to define the “good cause” under which...more

New Year, New Rules: More Changes to the Commercial Division Rules Coming in 2017

The New York Commercial Division is poised to continue its rules revamp, with six new rules proposals announced since October. While these proposals would not alter practice before the Commercial Division in the same manner...more

Off The Record. Or Not?

In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more

Benedict’s Maritime Bulletin: Discovery and Disclosure: Civil Litigation Tools for Obtaining Evidence in the United States,...

The ever-increasing cost of civil litigation was once thought to be a unique trait of the United States civil justice system. However, the expense of civil litigation is on the rise across the globe, due in no small part to...more

What Will The Courtrooms Of The 2020s Look Like?

I recently attended a presentation by futurist Michael Rogers that sparked me to think about what the courtrooms of the 2020s might look like. According to Rogers, one of the next big advances in technology will be augmented...more

Ready for Your Close-up? Five Tips for Using Videoconferencing Technology at Trial

From a technological standpoint, it is now relatively simple to present live video and audio testimony during a court proceeding of a witness located anywhere in the world. There are many advantages to presenting testimony in...more

Eighth Circuit Opinions Highlight Need to Apply Appellate Lens at Trial Court

We often quip that the best way to establish a winning record as an appellate lawyer is to represent the party that won below; that’s no joke. In nearly every appellate court— state or federal— appellants have an uphill...more

Supreme Court denies Cert in Cases Challenging Constitutionality of AIA Trials

On October 11, 2016, the US Supreme Court denied petitions for certiorari filed in two cases by parties challenging the constitutionality of post grant proceedings instituted under the Leahy-Smith America Invents Act....more

Does Your Expert Challenge Quack Like an Untimely Daubert Motion?

In Frigaliment Importing Co. v. BNS Int’l Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960), Judge Friendly famously asked “What is chicken?” A case decided last year raises the question, “What is a Daubert motion?”...more

Seen on the Screen

This is one of those stories you simply cannot make up. We were using technology to get some ideas about technology. That is, we were surfing around the internet to find descriptions of the successful use of technology...more

Amgen v. Apotex: District Court Decides that the ’138 Patent is Not Invalid on Some Grounds; Enablement is Still an Open Issue

As we previously reported, on July 5, the Federal Circuit affirmed the district court’s grant of a preliminary injunction enjoining Apotex from launching its biosimilar version of Amgen’s Neulasta (pegfilgrastim) until it...more

Excluded Evidence: Is Your Proffer Sufficient To Preserve The Error?

Just because you know what your excluded evidence would have shown does not mean that the trial court knows and, as importantly for appellate purposes, that the appellate court can glean from the record the substance of the...more

Yes, Counselor, You Argued That Below, But No, It Is Not Preserved

Don’t assume that just because your argument is clearly reflected somewhere in the record that it is preserved for appeal. Often for purposes of preservation, the procedural context for the argument is just as important as...more

Running Into A Brick Wall Who Wears A Black Robe: Tips For Trying A Case Before A Hostile Judge

For trial lawyers, hostile adversaries are par for the course. But judges are supposed to be irreproachably impartial, right? That is, after all, the very cornerstone of our judicial system. So when you find yourself trying...more

Terminating Sanctions for Attorney Misconduct

Rebecca Osborne v. Todd Farm Service, et. al. - Court Of Appeal, Second Appellate District (May 2, 2016) - An attorney, as an officer of the court, has the obligation to respect and follow court proceedings and...more

Getting It Right The First Time: Presenting A Persuasive Argument Without Relying On The Court’s Familiarity With The Facts Or The...

Even apart from the importance of assuring appellate review, properly preserving the record and carefully laying out one’s argument can have an immediate impact at the trial level. Very often, a litigator comes across a...more

Objecting to a Magistrate Judge's Report and Recommendation

An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and...more

What is a Board Certified Attorney in Florida?

I was asked recently by a friend what it means to be a Florida Bar Board Certified Trial Lawyer. It is a very valid and important question....more

No Due Process Violation Where Judgment Entered on Patents Not Asserted at Trial

A recent case reminds litigators to be diligent in protecting their clients’ due-process rights when narrowing a case for trial or risk forfeiting the right to trial altogether. In Nuance Communications v. ABBYY USA Software...more

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