Claims for legal advice privilege are becoming more difficult and narrower in the EU, according to a February 10, 2017 article published at JD Supra by Latham & Watkins. The article is: Reserving Privilege for the Few: The High Court Confirms the Narrow Interpretation of “Client” for the Purposes of Legal Advice Privilege.

The article includes links to three notable decisions. Among other things, the article explains:

“Central to the ruling [against RBS] was the finding that relevant employees did not fall within the definition of the “client” for legal advice privilege purposes. The Court also confirmed that English privilege rules should be applied in cases before the English court so that, even though the interview notes were likely to have been privileged as a matter of US law, they were not privileged in English proceedings.”

A slightly dated (2015) but now free article comparing US and EU law on product liability is described in a January 29, 2017 post at the TortsProfBlog. The introduction explains:

Lauren Sterrett has posted to SSRN Products Liability:  Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime.  The abstract provides:

In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.”

2016 has been quite the year, and it looks as if 2017 could be quite the year. To close out this year, a link to Nathan Schactman’s December 28, 2016 blog article regarding the likelihood that 2017 will bring an end to the federal rule for the ancient document exception to the hearsay rule. The article covers much ground and is quite helpful when thinking about various aspects of the future for the litigation industry.

On to 2017; best wishes to all!

The growing breadth and depth of global class actions is explored in a September 20, 2016 post at D&O Diary. Riffing off of Professor Coffee’s recent article, Kevin LaCroix pulls together several of his past posts, along with other data and updates, including some interesting observations about class action developments in Asia, as well as Canada and Australia. Beyond pointing out the facts, he includes the following two notable observations:

“Discussion

Coffee’s review of these issues is entirely consistent with my own analysis in several prior blog posts. One particular aspect of Coffee’s discussion that I found particularly apt is his discussion of how all of these things have come together despite what is perhaps an almost universal disdain outside the U.S. for U.S.-style litigation, particularly U.S. class action litigation. I am fortunate to have been able to travel around the world for various professional meetings in recent years. Often I am the only American in the room. I have become quite accustomed to hearing the locals express deep distain for the U.S. litigation model. But what has happened over the years is that slowly but surely despite the disdain for U.S. litigation procedures, many countries have adopted procedural reforms that reflect aspects of U.S. style litigation, even U.S. class action litigation. Often these reforms arise when local investors aggrieved by a corporate scandal push for legislative reform so that they have some procedural mechanism for redress.

Professor Coffee correctly notes that role that entrepreneurial U.S. plaintiffs’ lawyers have played in driving some of these changes and in establishing procedural pathways to be used in pursuing collective investor claims. He also alludes to the role of third-party litigation funding, but in my view the role of third-party litigation funding is even more significant than Coffee’s account suggests. Coffee’s article does not even mention the rise of securities class action litigation in Australia and Canada, the two countries other than the U.S. where class action litigation is most common. In both of those countries, third-party litigation funding has played an indispensable role in the rise of class action litigation (and U.S. plaintiffs’ law firms have not played nearly as critical of a role). Many recent litigation initiative arising out of high profile scandals have also been led by litigation funding firms (refer here, for example).”

Florida has been an increasingly kind venue and profitable place for plaintiff lawyers. Case law developments during 2016 are reviewed in a July 25, 2016 article in LAW360.  The introduction follows, and the full article is well worth reading.

Law360, Miami (July 25, 2016, 4:51 PM ET) — The Florida Supreme Court gave workers and smokers a boost in the first half of 2016 as it scuttled parts of the state’s workers’ compensation law and made it easier for Engle progeny plaintiffs to seek punitive damages against tobacco companies, among other recent decisions that have made waves. The two pairs of decisions on workers’ compensation and tobacco litigation were among several issued by Florida appeals courts so far this year that should reverberate in litigation throughout the state.

On the other hand, the Florida legislature adopted Daubert by statute in 2013. Some in the defense camp have lauded that result, as described in a July 15, 2016 article in LAW360.  Others, on the plaintiff side disagree, as described in a July 25, 2016 article in LAW360. More change on Daubert could happen later in 2016 or next year. The July 15 article provides a cogent explanation, which also received comment in the July 25 article. The July 15 article explains the bottom line as follows:

“The [Daubert legislation and rulings]may all end up being in vain. There are serious efforts to have Daubert rejected. By way of background, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard as a matter of Florida law. The Supreme Court has not yet spoken on or addressed this issue. Hence, the present state of affairs and uncertainty about which expert standard will govern in Florida. The Florida Bar’s Code of Rules and Evidence Committee submitted a Three Year Cycle Report proposing that Sections 90.702 and 90.704 not be adopted as Rules of Evidence to the extent they are deemed procedural. The Florida Board of Governors approved the report by a wide margin of a vote. On Feb. 1, 2016, the Florida Board of Governors submitted the report to the Florida Supreme Court, recommending that the Daubert amendments be rejected. The Florida Supreme Court will hear oral arguments for and against Daubert on Sept. 1, 2016.”

 

Interested judges,  lawyers and accused persons actually can work to solve problems, as opposed to simply reaching decisions and meting out sentences. In that vein, the Supreme Court of Illinois has used trial court experience to create some broad rules for the specialty courts.  The rules and process to date are described in a December 8, 2105 article in the Chicago Daily Bulletin (pay wall).  In view of the public interest nature of the courts and rules, I’ve taken the liberty of pasting below the entire article.

Kudos to all involved for working to produce better and more useful outcomes for real people facing real problems.

“By Andrew Maloney

Law Bulletin staff writer
SPRINGFIELD — Aiming to expand drug and mental health courts across the state, Illinois’ top justices announced wide-ranging rules for so-called “problem-solving courts” Tuesday morning.

The new guidelines from the Illinois Supreme Court describe for local circuits how to create and operate the non-adversarial courts that have gained traction across the country over the last decade or so for veterans, the mentally ill and other types of offenders.

According to the high court, there are more than 100 such problem-solving courts in the state, and more are in the works.

Chief Justice Rita B. Garman said because of the knowledge gained from those courts, Illinois is ready to enter a “new era” of expanding their availability.

“In effect, we are ready to use the knowledge and experience gained thus far to raise the bar so that individuals throughout the state have access to a problem-solving, rather than a purely punitive, justice system,” Garman said in a statement.

“Problem-solving courts serve not only the individuals whose conduct has brought them into to justice system, but their families, their neighborhoods and the community as a whole.”

State laws have specific rules for drug, mental health and veterans courts, and chief judges of judicial circuits have much of the authority to run them. The Veterans and Servicemembers Court Treatment Act, for example, says veterans are only eligible for a problem-solving court if prosecutors allow it and the crime is probationable, among other things.

But if the defendant completes the treatment program, his or her original charges can be dismissed.

With the new guidelines, local circuits are still given some latitude to decide, for instance, what types of therapeutic courts they will run and who is eligible for them.

But the new rules also say they need to look at certain types of data, create timelines and objectives and get their ideas approved by the high court’s administrative arm. They also have to propose a budget and have their idea reviewed on-site by the high court’s administrative office.

The new rules provide more specifics. They state that participants cannot be required to waive their appellate rights and that programs specifically target those who are most likely to reoffend because of unemployment or substance abuse.

The rules also state that judges who preside over the courts have training in a variety of areas, including criminal law, behavioral health and mental illness among others areas.

Courts already in existence have up to a year and a half to review the new rules and come into compliance with them.

The system puts a premium on “evidence-based practices,” which “shall be considered and utilized in all aspects of each (problem-solving court),” according to the 85-page document outlining the new high court standards.

They are defined in the document as “approaches which have been empirically researched and proven to have measurable positive outcomes.”

Although somewhat of a general term, the court document links to specific examples of such approaches, including a website citing a study from Hawaii in which a major finding was that “swift and certain” punishments deterred crime more than arbitrarily lengthy punishments.”

Another study showed keeping delinquent children and teens in community families — and away from other delinquents — also resulted in positive outcomes.

Second District Appellate Justice Kathryn E. Zenoff, a former chief judge in the 17th Judicial Circuit who ran one of the first mental health courts in the state, said that evidence-based practices “are essential to the success of these courts.”

“The standards and certification process, drafted with great care and attention by judges and (administrative) staff with extensive experience in this area, will ensure the utilization of these practices so that the participants in these courts and the public will see positive results,” she said in a statement.”

The Aubin opinion in late October was accompanied by happy talk from the US Chamber of Commerce (they focused on not losing completely on the learned intermediary issue). But now, defense lawyers are admitting Aubin worsened the situation in Florida for asbestos defendants and others. For example, Wilson Elser’s  Walter Latimer published a December 8, 2015 online article regarding the Aubin decision. The article includes the following introduction and conclusion; the entire article is worth reading:

“The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected the risk-utility test in favor of the consumer-expectation test. The consumer-expectation test examines whether a product is unreasonably dangerous because it failed to perform as safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. The risk-utility test, on the other hand, poses a higher burden of proof for plaintiffs. It focuses on whether the utility of a product outweighs any risk of using it. It also requires the plaintiff to prove that a reasonable alternative design existed. Conversely, under the consumer-expectation test, the plaintiff is not required to prove a reasonable alternative design existed. In sum, the Court’s decision in Aubin, made it easier for plaintiffs to claim that a defendant’s product is defectively designed.

****

Ultimately, Aubin is a pivotal case in product liability because it established that the consumer-expectation test must be applied to design defect cases. This decision, in our view, will result in more design defect claims being tried and may encourage more product defect claims to be litigated against manufacturers in the state of Florida.”

The opinion is Aubin v. Union Carbide Corp., 2015 Fla. LEXIS 2417, CCH Prod. Liab. Rep. P19,712, 40 Fla. L. Weekly S 596 (Fla. Oct. 29, 2015).

Specialty courts provide a favored group of litigants with access to special judicial processes and jurists. Some say the courts are part of a race to the bottom, and are often offered by tiny jurisdictions that rank low in other options for producing economic value. Apparantly further proving the thesis, the UK’s High Court now has a new specialty court for financial industry litigation, as announced last summer and recently explained in a November 9, 2015 LAW360 article. The latter explains:

“Only three kinds of actions can be commenced in the Financial List:

claims that principally relate to loans, project finance, banking transactions, derivatives and complex financial products, financial benchmark, capital or currency controls, bank guarantees, bonds, debt securities, private equity deals, hedge fund disputes, sovereign debt, or clearing and settlement, and are for more than £50 million or its foreign currency equivalent;
claims that require particular expertise in the “financial markets”; and
claims that raise issues of general importance to the “financial markets.”

For these purposes “financial markets” include the fixed income markets (covering repos, bonds, credit derivatives, debt securities and commercial paper generally), the equity, derivatives, loan, foreign currency, and commodities markets.

Actions can only be commenced in the Financial List if they fall within one of the three kinds set out above. Cases commenced in other divisions of the High Court “which fall within the spirit but not the letter” of the cases set out above can, however, be transferred into the Financial List through the exercise of the court’s case management powers.”