The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

California Supreme Court Grants Review in Six Civil Cases

By on Posted in California

Last week the Supreme Court granted review in six civil cases, covering a wide variety of issues:

 

  • Professional Engineers in California Government v. Schwarzenegger, which the Supreme Court transferred on its own motion before the Court of Appeal ruled on the issues raised, in order to expedite review of the Governor’s ability to mandate a furlough program on state employees. See Employment – Compensation & Benefits update.
  • SeaBright Ins. Co. v. U.S. Airways, Inc., which addresses the ability of an injured employee of an independent contractor to hold the hirer of the contractor liable for the breach of statutory or regulatory non-delegable duty. See Torts & Products update.
  • Oasis West Realty, LLC v. Goldman, which addresses counsel’s duty of loyalty to a former client when there is no subsequent representation and the attorney is acting on his or her own behalf. See Attorney-Related update.
  • St. John’s Well Child & Family Center v. Schwarzenegger, which addresses the application of the governor’s line item veto to mid-year bills that reduce appropriations. See Other update.
  • Episcopal Church Cases, in which the court returns to a case already reviewed to address whether the Court of Appeal properly implemented the court’s opinion. See Civil Procedure/Evidence/Discovery update.
     

 

Does It Matter If Your Antitrust Judge Has Been Trained in Economics?

By Kirk Jenkins on Posted in Antitrust, Federal

It’s no secret to those of us who’ve been defending antitrust cases for a number of years that economic expert witnesses are a more important part of the defense team than ever before. Triers of fact often must evaluate complex economic analyses of the competitive effect of sophisticated business strategies. According to Judge Richard Posner of the Seventh Circuit — an antitrust expert — the task facing the average judge or juror is overwhelming:

Econometrics is such a difficult subject that it is unrealistic to expect the average judge or juror to be able to understand all the criticisms of an econometric study, no matter how skillful the econometrician is in explaining the study to a lay audience.

So what effect does economic complexity have on the likelihood that an antitrust case will be appealed? Is the judge’s decision more likely not to be appealed — or to be affirmed if it is appealed — if the judge has at least basic training in antitrust economics? Until recently, there was no empirical evidence on these important questions.

Two antitrust scholars, Professor Joshua Wright and Professor Michael Baye, have filled that gap in an important new study, Is Antitrust Too Complicated for Generalist Judges? The Impact of Economic Complexity & Judicial Training on Appeals, which will appear in an upcoming issue of the Journal of Law & Economics. Professor Wright is an Assistant Professor of Law at George Mason University’s School of Law, and Professor Baye holds professorships in Business, and in Business Economics and Public Policy at Indiana University’s Kelley School of Business. The professors’ study has been discussed in Core Economics, the Antitrust and Competition Policy Blog, Legal Theory Blog, and most recently, Business Wire.  Professor Wright has been blogging the study for some time as it came together on his antitrust blog, Truth on the Market, here, here, and here.

The study is more than worth a complete read, but here’s a summary. The professors collected every published decision involving the merits of an antitrust claim between 1996 and 2006 — 714 decisions, including both district judges and administrative law judges. The researchers coded the cases by type of claim, as well as collecting data on the education and experience of the judges involved. Next, the professors searched for certain terms in the decisions in order to separate cases involving factually complex economic testimony from factually simpler cases. Finally, the study identified judges who had attended basic economic training classes at the George Mason University Law and Economics Center.

Professors Wright and Baye concluded that in cases not involving complex econometric data, the decisions of judges who had attended economic training programs were significantly less likely to be appealed, and less likely — when they were appealed — to be reversed. Interestingly, previous experience deciding antitrust cases was not an adequate substitute for economics training when it came to improving judicial decision-making. Responding to criticism that economics education programs for judges were biased towards politically conservative, free-market based economic theories, the researchers concluded that "trained" judges’ decisions performed equally well whether the judge was a Democratic or Republican President’s nominee.

Like most good research, the study suggests a number of follow-up questions – join me below the jump to see what some of those are.

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Why A Fresh Analysis Matters in Litigation

By Kirk Jenkins on Posted in Civil and Appellate Procedure

Most litigators, whether trial lawyers or appellate specialists, are regularly asked to estimate the chances of a particular case result. So you can imagine the reaction in the legal blog world when four professors — Jane Goodman-Delahunty, Maria Hartwig, Par Anders Granhag and Elizabeth F. Loftus — published a study concluding that many lawyers may not be very good at it. Titled Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, [pdf] the article appeared in the American Psychological Association’s Psychology, Public Policy & Law.

Over the past few weeks, the study’s been everywhere: The Chronicle of Higher Education, Point of Law, Disputing, the Volokh Conspiracy, the ABA Journal and the Wall Street Journal Blog.  [Thanks to the WSJ Blog for bringing the study to my attention.]

The professors surveyed nearly five hundred litigators from forty-four states across the country, each of whom had a case expected to go to trial during the study period. Each attorney was asked two questions: (1) what would be a win in terms of the attorney’s minimal goal for the case; and (2) what is the probability that you will achieve this outcome or something better? After the cases were settled or tried, the professors conducted follow-up interviews about the case outcome and the lawyers’ subjective perception of the outcome. 

Overall, only one third of all participants reported a case result which matched their original goal. Forty-four percent of the litigators — including many who reported a high level of confidence in their expected result — did less well than they expected. Interestingly, the researchers did not find that more years of experience resulted in more accurate predictions. Civil attorneys performed no better than criminal attorneys, nor did predictions tend to improve as trial drew closer. The only positive correlation the professors found was gender: women lawyers tended to make more accurate predictions than men did.

The researchers suggested several possible reasons for the participants’ overconfidence: (1) litigators’ role requires them to project maximum confidence in their position; (2) lawyers’ commitment to, and emotional investment in, clients might lead to overconfidence; (3) wishful thinking; or (4) litigators’ perception that they have considerable control over events, whether circumstances suggest that’s true or not.

Although this isn’t the place to analyze the researchers’ methodology, their basic conclusion — that objective analysis of likely trial outcomes can be challenging – seems plausible, given the demands of trial work, with the years of preparation, discovery and motion practice and the emotional investment in the case and the client that comes with it.

So would the researchers have reached the same conclusion in a study limited to experienced appellate specialists?

I’m not aware of any objective, peer-reviewed research on that question, but my anecdotal impression, after sixteen years as an appellate specialist, is that the researchers would not have found the same overconfidence error in such a study. Join me below the jump for some reasons why.

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Ninth Circuit Tosses Antitrust Claim Against State Agency Accused of Price-Fixing

By Kirk Jenkins on Posted in Antitrust, Federal

Can a government agency conspire to fix prices? When it comes to the California Travel and Tourism Commission, the Ninth Circuit says the answer is "no." Shames v. California Travel and Tourism Commission [pdf].

The CTTC consists of a dozen commissioners appointed by the Governor, and two dozen selected by the tourism industry. In 2006, the passenger rental car industry proposed a bill by which the industry agreed to pay a high assessment fee — thereby considerably increasing the CTTC’s budget — in return for allowing the rental car industry to "unbundle" a tourism assessment fee and concession fee and itemize such fees separately from the base rental rate. According to plaintiffs’ complaint, the CTTC colluded with the industry to pass these charges through to retail customers.

The district court held that "state action immunity" barred the complaint, and the Ninth Circuit affirmed.

In California Retail Liquor Dealers Association v. Midcal Aluminum, the Supreme Court held that private actors were immune from antitrust liability when two factors were satisfied: (1) the challenged restraint was clearly articulated and affirmatively expressed as state policy; and (2) the policy was "actively supervised" by the state.

On appeal in Shames, the plaintiffs argued that the first factor required that specific anticompetitive acts be expressly authorized by state legislation. The Ninth Circuit disagreed, holding that the first factor was satisfied where the anticompetitive actions were reasonably foreseeable in view of a broader statutory authorization, a standard easily satisfied by the 2006 CTTC legislation.

Citing both the Supreme Court’s and its own precedent, the Court held that because there is little likelihood that a governmental agency would enter into a private price-fixing arrangement, there is no need for the state to actively supervise the agency’s conduct for state action immunity to apply. The Court found that although two-thirds of the CTTC’s commissioners are appointed by the tourism industry rather than by the government, the Commission was sufficiently similar to a government agency for the second factor to be inapplicable.

Texas Supreme Court Grants Review in Four Cases

By on Posted in Insurance, Texas

On May 28, 2010, the Texas Supreme Court granted petitions for review in the following cases:

  • Anglo-Dutch Petroleum Int’l v. Greenberg Peden P.C.—This case concerns the construction of a contingency fee agreement and the circumstances under which a court can conclude that an agreement is ambiguous.
  • Hyde Park Baptist Church v. Turner—This case concerns the sufficiency of the evidence to support an award of future mental anguish damages and the qualifications of a clinical psychologist to render an opinion in such a case. In addition, the case will consider whether a jury may properly apportion more responsibility to a negligent tortfeasor than an intentional tortfeasor.
  • American Home Assurance v. Maryland Cas. Co.—The case will consider the application of the notice and settlement-without-consent provisions of a liability policy covering an additional insured where the additional insured’s own liability insurers have paid a claim and seek subrogation.
  • Molinet v. Kimbrell—This case will resolve the conflict between the absolute two-year statute of limitations applicable to healthcare claims and the 60-day window for asserting claims against persons designated as responsible third parties under the proportionate responsibility statute.

Oral argument has not been set for these cases.

Illinois Supreme Court Allows Petitions for Leave to Appeal In Eight New Civil Cases

By Kirk Jenkins on Posted in Class Actions, Illinois

Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases.  They are:

  • Uldrych v. VHS of Illinois, Inc., Williams v. Board of Review, 2010 WL 743894 (1st Dist., 2010), which involves the question of whether implied indemnity actions are subject to the four-year statute of repose governing actions which “aris[e] out of patient care”;
     
  • Barber v. American Airlines, Inc., 2010 WL 546359 (1st Dist., 2010), which involves the question of whether and when a defendant’s tender of the relief sought by a class representative prior to class certification moots the action;
     
  • Lemmenes v. Orland Fire Protection District and Gaffney v. Board of Trustees of the Orland Fire Protection District, 2010 WL 1133028 (Lemmenes) and 397 Ill.App.3d 679 (Gaffney), 2010 (Lemmenes) and 2009 (Gaffney) decisions from the First District, consolidated by the Supreme Court, which involve the question of under what circumstances a firefighter injured while participating in a training exercise “reasonably believes” that he or she is responding to an emergency for purposes of being entitled to continued payment of health insurance premiums for the firefighter and his or her family;
     
  • Howell v. Dunaway, 924 N.E.2d 1190 (5th Dist. 2010), which involves the issue of whether various hospitals’ statutory liens for services under the Health Care Services Lien Act were properly reduced by a share of attorneys’ fees incurred by the injured parties pursuant to the common fund rule;
     
  • LaSalle Bank National Association v. Cypress Creek, 398 Ill.App.3d 592 (3rd Dist. 2010), which involves several questions relating to allocation of foreclosure proceeds where both a mortgagee and mechanics’ lien claimants are present;
     
  • Thompson v. Gordon, 398 Ill.App.3d 538 (2nd Dist. 2009), which involves the question of whether expert witness testimony created genuine issues regarding duty, breach and causation in a negligence action arising from a contract to design a replacement for a bridge deck; and
     
  • Jablonski v. Ford Motor Company, 398 Ill.App.3d 222 (5th Dist. 2010), which involves several issues respecting whether plaintiffs’ multiple theories of negligence and claim for punitive damages were properly submitted to the jury.

For further details about all eight cases, check Appellate Strategist’s database of civil issues pending at the Illinois Supreme Court.

ERISA Fee Claimant Does Not Have to Be Prevailing Party

By on Posted in Employment, ERISA, Federal

In Hardt v. Reliance Standard Life Ins. Co. (.pdf), the Supreme Court resolved a Circuit split on the issue of whether an ERISA attorney’s fees claimant must be a prevailing party to obtain a fee award  — in short, the answer is “no.”  Instead, an ERISA fee claimant must only show “some degree of success on the merits,” which is not “trivial success on the merits” or “a purely procedural victory.”  Anticipating that the degree of success question could take on a life of its own, the Court stated that this standard is satisfied "If the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’” 

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California Supreme Court Rejects Attempt to Expand Definition of Employer

By on Posted in California, Employment

In Martinez, the unanimous California Supreme Court affirmed the rulings of the lower courts by rejecting an attempt by agricultural workers to collect unpaid wages from food distributors who bought produce from that farm. In doing so, the court reviewed the history and jurisdiction of the Industrial Welfare Commission (IWC) and its work orders from 1916 to the present. The Court found that a civil action for unpaid wages authorized by Labor Code section 1194 was properly directed only to employers, and rejected attempts to expand the definition of "employ" as historically used by the IWC. For more Martinez case history, see the Employment-Compensation & Benefits update page.

California Supreme Court Dismisses Hertz Without Review

By on Posted in California, Employment

 

In March 2009, the California Supreme Court granted review in Hertz to address the issue of whether a worker’s inability to participate in vocational rehabilitation due to nonindustrial causes should be apportioned under Labor Code sections 4663 and 4664, as they were amended in 2004 by SB 899. The Court of Appeal had ruled that the statute required apportionment. (see H032438.) Briefing was complete, including several amicus briefs, and the matter was presumably waiting for oral argument. However, the Supreme Court has now dismissed this matter under Cal. Rules of Court, rule 8.528(b). As such, unless the court orders otherwise, the Court of Appeal opinion will remain unpublished

ALI Resumes Work on Restatement (Third) of Torts: Economic Torts

By Kirk Jenkins on Posted in Federal

During this morning’s special session at the American Law Institute’s Annual Meeting, Director Lance Liebman has announced that work is resuming on the Restatement (Third) of Torts: Economic Torts and Related Wrongs with Reporter Professor Ward Farnsworth. 

A few more details about the Institute’s new project on insurance law have also become available.  Principles of Liability Insurance Law is expected to consist of three chapters: Principles of Contract Law in the Liability insurance Context, Principles of Liability Coverage, and Principles of Management of Insured Liabilities.

Finally, the Institute is in the earliest stages of "Principles of Government Ethics," which aspires to reflect the current state of this emerging area, as well as perhaps proposing a Model Statute.

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