Esquire Viewpoint: Getting you ready for what's next in litigation

The world of litigation is rapidly evolving. Learn how to get more from your investments, improve outcomes, and seize the opportunities inherent in change.

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Competent Representation Requires Mastery of Email

As technology changes, so do the rules governing litigation. Continuing to learn about best practices is necessary in an age of rapid technological development, and staying abreast with the latest changes gives any lawyer an advantage in conducting his or her case.

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Meeting the Objective Analysis Standard When Representing Former Clients

Appearance-of-impropriety standards are no longer sufficient in determining when former clients may or may not disqualify counsel. Judiciary officials argued lawyers must abide by more objective standards as outlined by Model Rule 1.9 Duties to Former Clients when conducting litigation with former clients.

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Reviewing the Rules of the Road: Where to Conduct a Deposition

Conducting a deposition is a crucial part of the litigation process. While the rules for administering a deposition clearly define when and how a deposition should be conducted, they remain less certain about the deposition’s location.

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When to Rely on PR Strategy: How Far is Too Far?

Litigators will want to keep a close eye on all matters of communication and be careful not to assume privileges automatically exists between a client and third parties. If third parties don’t provide the necessary information and legal advice for the client’s case, that information will not remain privileged and may come under scrutiny by court officials and opposing parties.

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Keeping Track of Consolidated Cases

In a decision made by the Supreme Court in the Fall of 2017, justices announced independent cause for appeal by a party in consolidated cases cannot be denied. Their resolution is a reminder for lawyers and officials to expect appeals by parties in consolidated cases and to take the necessary steps to enter into the appeal process.

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Understanding Corporate Monitoring and Fines

Hiring third parties to conduct international business is appealing, but companies should consider the risks of working with third parties before they find themselves in trouble – or a multimillion-dollar lawsuit.

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Is Joint Representation of Two Clients in a Deposition Okay?

Many questions arise as to how one should proceed with a deposition in which two clients provide testimony for the same case. Before agreeing to joint defense, it’s important to consider all possible outcomes for the case and how you should proceed – or if you should proceed at all.

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4 Things You Must Know about AIA Trial Depositions

Approaching an AIA trial deposition is starkly different from a standard litigation deposition, and there are 4 elements of AIA depositions that litigators must know to handle them appropriately.

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Will AI Help or Hurt Legal Professionals?

When an industry is confronted with a new technology that seeks to improve the efficiency of tasks, the workers of that industry are naturally inclined to feel concerned about how that technology may disrupt the way the industry runs. Currently, artificial intelligence (AI) in litigation is transforming the profession through automation of such time-consuming tasks […]

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Activists Bring Climate Change Policy to the Courtroom

When those parties and companies refuse to make voluntary changes to improve such climate change factors as pollution output and planet-harming resource gathering methods, activists looking to protect the planet have no other choice but to take them to court.

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U.S. IPR Patent Review Process Legality Has Been Upheld

Houston-based oilfield services company Oil States International, Inc. challenged the legality of inter partes review (IPR), a patent review process that allows the Patent Trial and Appeal Board (PTAB) to hold hearings with patent challengers and patent holders to determine the validity of a patent. The company argued that IPR violated the right of defendants […]

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The Emerging Prevalence of Commercial Disparagement

In a world in which social media gives customer and companies the opportunity to say anything about one another instantly, there is a heightened danger of violating the commercial disparagement tort.

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Why Does Class-Action Defense Spending Continue to Rise?

The $2.24 billion class-action market has been the driving force behind some of today’s most helpful consumer-side changes. As the momentum of positive change accelerates, so too will the total cost of class-action defense.

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AOB lawsuits compound agony of Florida hurricanes

Assignment of benefits started out as a convenience for Florida residents [but]…has become a vehicle for fraud and claim build-up by some vendors.”

State Farm Florida spokesperson Michal Brower via Insurance Journal.

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Security perils continue to haunt law firms and clients

Law firms are investing more money in information security these days because their clients are effectively demanding it.

More than 2 in 5 lawyers (41 percent) recently interviewed by Robert Half Legal were planning to spend more on information security-related tools and services in the next 12 months.

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Online accessibility issues fuel new ADA litigation

The Americans with Disabilities Act has made public accommodations like retail stores more accessible to people with disabilities. Which raises the question – would those retail stores’ websites be considered public accommodations?

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Climate goes to court

The pace of climate litigation is anything but glacial. We’ve seen a flurry of important developments in just the 90 days since we first blogged about the new climate litigation movement. Plaintiffs are pressuring oil companies for compensation and governments to fight climate change.

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Drone litigation takes flight

Drones are soaring in popularity and, given the cloudy legal atmosphere, have injected jet fuel into aviation law practices.

What are the rules for flying them? Who makes the rules? And what if you feel threatened by a drone?

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I won the lottery. Does anyone have to know?

Three intriguing new cases related to privacy, legal and personal, just cropped up: A court deals another blow to Facebook’s face-recognition program. A landowner fights to keep spy cameras and border patrollers off his ranch. And a lottery winner tries to stay anonymous. Lottery winner won’t identify herself Can you blame the lottery winner? She […]

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What’s next in malpractice litigation?

Malpractice litigation isn’t what it used to be. Successful medical malpractice claims have been falling in number over recent decades. The trend could shift, however, if litigators gravitate toward new, tech-related frontiers of the practice.

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Weed and robots to alter liability landscape

Sale of recreational cannabis is legal in a handful of states with more expected to follow, raising new product liability questions for sellers, regulators, insurers, and litigators. For instance, should cannabis be treated like liquor or be considered an unreasonably dangerous product?

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When graffiti is art, whitewash is a weapon

Plaintiff attorneys: you might want to reconsider your definition of art.

Defense attorneys: be careful what your clients demolish, and how they demolish it.

Artists: your community just got bigger.

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Why secrecy matters in product liability

Confidentiality may be a non-negotiable condition for a victim to secure a settlement, so granting it may be your first job if you’re a plaintiff attorney. And confidentiality clearly protects manufacturers’ reputations, so obtaining a protective order may be your first job as a defense attorney.

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Can litigation halt the opioid crisis?

Numerous claims have been filed across the country by cities (including New York), counties and states against makers and distributors of prescription painkillers. Delaware, for example, just became at least the 15th state to sue, according to Reuters. The lawsuit, filed in a state court, targets a number of drug makers, distributors and retailers.

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New: a climate litigation movement

Climate-related efforts have spread from the science community to politicians to regulators to activists – and now, increasingly, the courts. As of last May, the United States had 654 climate change litigation cases – almost three times that of the rest of the world combined – and the number of countries in which climate change […]

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What’s new, what to expect in Class-action

What do fashion, the Supreme Court, and GMOs have in common? Class-action litigation. Here are some recent noteworthy developments in the category with implications for 2018.

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Let’s clear up your cloud-related obligations

Got responsibilities? Of course you do, lots of them.

Competent lawyering means knowing the law, honing skills, and preparing thoroughly. But that’s just in reference to your cases. A whole other set of responsibilities is cropping up around the technologies you or your firm might use to do your work.

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2018 Will Bring Smarter, Data-Driven Law

A new year prods us to stop reflecting and start anticipating, so let’s get right to 2018’s crystal ball. Particularly intriguing are prognostications around data, artificial intelligence, analytics and machine learning – terms that overlap.

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Internet of Things will spawn lots of things to litigate

The Internet of Things, among a handful of new technologies transforming the way we live, is also shaping up to be a ripe area for litigation. Expect to see claims around IoT security, privacy, data ownership and profit-sharing.

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Our Holiday Wish List for You

Law never takes a vacation, but legal professionals do. Or should if they want to stay fresh, productive and familiar to their families.

So as we enter the time of year reserved for loved ones, here’s Esquire’s Holiday Wish List for you, our clients.

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Blockchain, the next litigation magnet

Blockchain – the hot new distributed ledger technology that underlies cryptocurrency – is also shaping up to be a rollicking arena for intellectual property litigation.

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Construction defects: who decides whether to sue?

An interesting experiment is under way in Colorado.

Policy makers have changed the rules of construction defect litigation in hopes of reengineering the housing mix. Condo development has essentially stalled despite the state’s status as a millennial magnet.

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Litigation finance: an emerging trend

Litigation finance, a term that didn’t resonate with most of us five years ago, now signifies a rapidly growing way that legal bills are getting paid.

Industry watchers are examining the potential of the funding instrument to change the way litigation happens, support the growth of innovative firms, and enrich investors. Also being tracked are the risks to the emerging practice.

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Trick, treat, or travesty? Tales from the legal crypt

It’s fun to be spooked when it’s candy-hunting kids in costumes but kind of creepy if you find yourself in a twisted legal situation. To mark the holiday, here’s a smattering silly or strange stories from our world:

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Six ways to unleash your inner rainmaker

The internet continues to dismantle institutions. Two decades ago, consumers would buy everything they needed from one or two department stores. Then the internet came along, and that became the store: Consumers searched first for the product they wanted, hardly caring at all which retailer it came from. If it came from Sears, great. Amazon? That was great, too.

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Transcripts make great teachers

My first deposition seemed to go pretty well. It was 17 years ago. I left the room feeling good about how I handled a hostile witness. But when I read through the transcript a few days later, I cringed a bit. I hadn’t done quite as well as I initially thought. The questions I asked […]

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Quiz: Are you a legal pad lawyer or an iPad lawyer?

It’s been more than a century since the invention of the legal pad, a staple of this profession (and, incidentally, Seinfeld’s canvas of choice for four decades).

Are you a legal pad lawyer? Or an iPad lawyer?

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Tackling shared challenges of firms & clients

With 40,000 members, the CLM is the largest insurance industry professional trade association for claims and litigation professionals. We are the consulting arm of the CLM, and we advise litigation and claim executives, law firms, and service and technology companies on how to make their businesses stronger.

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National deposition services contracts: good for law firms, too

Corporate legal departments that hire a nationwide company to provide deposition services for their law firms may be requiring some of their firms to adapt to new ways of doing business. However, many law firms find that these types of arrangements have advantages.

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Five litigation headaches I could have avoided

Much has changed since I left full-time litigation. Back then, and we’re talking fewer than five years ago (lest I sound like an old man lamenting my two-way uphill walk to school), nobody I knew was using the deposition technology that’s available today. Almost everything happened in person, and the work product was usually trapped in paper.

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To protect clients, look beyond your corporate network

Unfortunately, cybercriminals see law departments and firms as enticing targets: They are replete with financial data, personal information (such as the plaintiff registry in a class action), and the kind of confidential information that tips multimillion-dollar cases. As the ABA (PDF) put it: Law firms are targets for two general reasons: (1) they obtain, store […]

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Why Pro Bono Work Makes You a Better Attorney (and a Better Person)

Some of the most impactful moments of my career are tied to the pro bono work I’ve done. Without pro bono, it’s unlikely that I would’ve had the opportunity to participate in a Supreme Court case (PDF). But as thrilling as that was, it was the pro bono representation of a widow who had lost faith in the legal system that sticks out as a highlight of my career.

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Seven ways to keep corporate counsel happy

As my company’s general counsel, I depend heavily on my outside law firms and lawyers. I value these relationships – and my lawyers do, too, since I pay their bills. I’m writing this post to help outside lawyers keep inside counsel happy.

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Avoid (or at least survive) bet-the-company litigation

We recently blogged about the rapid growth of bet-the-company litigation. Short version of that post: the number of companies involved in such cases is quadrupling. If you’re corporate counsel, you want to do your best to avoid such risky, resource-devouring litigation, and survive it when it’s inevitable.

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Why does consolidation stop with your law firms?

Corporate law departments and insurance claims organizations continue to consolidate their outside law firms in order to control spending, streamline processes and improve performance. But why do these organizations often restrict their consolidation effort to the law firms?

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What’s driving bet-the-company litigation?

Although corporate litigation spending is flat, the number of companies managing “bet-the-company” litigation has quadrupled in the last two years, posing new challenges to corporate counsel, outside counsel and litigators.

Bet-the-company litigation can be any legal action that threatens the existence of the company or major line of business, whether or not the case goes to trial.

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Cybersecurity: have you checked your service providers?

Cybersecurity is only as strong as your weakest link. No matter how well you shore up your firm or corporate legal department, you can still become vulnerable through a vendor. That was the case for Target and Home Depot, which have suffered costly, embarrassing, and damaging breaches that jeopardized customer relationships.

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Seize the power in your next deposition

I blogged the other day on why you’d want to, or need to, video-record a deposition: a witness being out of the country, outside subpoena power, sick, or otherwise unavailable. Or maybe a key witness for your side is better on camera than in print. (On the flip side, you’d want to video-record opposing witnesses who discredit themselves on camera).

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Expert witnesses, your quintessential storytellers

Verdicts often come down to who tells the better story. As a litigator, you sometimes need help telling your story, so you turn to an expert witness.

When you work with experts, are you getting everything you need from them? Many lawyers aren’t.

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If only I’d had video…

I was a big-firm litigator for 14 years before joining Esquire as general counsel. I loved the chess match, the battle, and pinning opposing witnesses down.

But on one particular day, in a complex securities arbitration, I found myself sitting in the witness chair.

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Multigenerational approach drives growth in law firms

The aging workforce poses risks for every business – and law firms are hardly an exception. The vast majority of managing partners are baby boomers, age 52 to 71. Are you prepared for upcoming decades? It’s not easy.

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Don’t complicate complex litigation

Complex litigation. It’s a synonym for high stress, and it’s daunting for law firms, lawyers and the people who support them. What exactly does the term complex litigation mean? It generally signifies a case with high stakes, complicated procedures, multiple parties, multiple jurisdictions, media scrutiny, lengthy discovery and big investments in time and money. Class […]

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The case for video depositions

The law is made up of words, documents and abstractions. Many of us love this stuff. And we’re good at it. But it can put the rest of the world to sleep.

Take jurors, who live normal lives steeped in TV and

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Let’s (re)think depositions

The world has gone digital – well, most of the world has. We’ve digitized the way we work, communicate, analyze, predict, sell and buy. The practice of law has gone digital as well. There’s electronic case research, court filings, discovery, records management, video testimony and more.

So why do depositions still have to be so paper-intensive?

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Who knew? A weapon to tackle ALAE, ULAE and loss cost

We don’t usually traffic in alphabet soup, but we know insurance defense, and we know how important each of these acronyms is to your business. They’re major costs you want to reduce. If you’re a claims exec, you know exactly what I’m talking about. If you’re new in the industry, let me explain.

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How to hone young lawyers’ deposition skills

It’s the same in law as it is in sports: great performances build on good practice.

For young attorneys, though, opportunities to practice depositions can be scarce, especially in real-life settings. That’s because litigation is increasingly focused on bet-the-company matters, and in those matters, senior litigators take center stage.

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Join a deposition from plane? Why not?

Practicing law can be stressful, and the stakes don’t get much higher than defending a high-profile class-action suit. Except when you’re defending one of the biggest companies on the planet. And you’re the lead attorney on the case. And it’s looking like you’ll have to miss the most important deposition in the case.

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eBook: Get the Most From Remote Depositions

Remote depositions are an exciting, rapidly maturing method for making depositions more cost-effective and strategic. Download our eBook to learn: What are remote depositions? Why should you care about remote depositions? What are some use cases for taking remote depositions today? Eight best practices for conducting effective depositions using remote technology.

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The growing challenge of international litigation

International litigation poses a host of challenges for firms and their clients, and the demand for services related to this litigation is rising.

The share of corporate counsel needing to conduct cross-border discovery rose to 41 percent in 2015-2016, up from 35 percent the year before.

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Corporate counsel, outside attorneys teaming up for better depositions

As general counsel, you typically let your outside attorneys manage your cases. You can’t be everywhere at once and only have so much bandwidth to monitor each discrete activity—from the initiation of a suit through judgment—in each of the dozens or hundreds of matters on your plate.

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Six success factors for better remote depositions

Maybe you’re considering remote depositions to save yourself (and your clients) time, money, and headaches. Or you’re already doing depositions remotely and want to improve. Either way, these six factors will help you get the most success, savings, and satisfaction out of your remote depositions.

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Five reasons you should consider remote depositions

Grandparents chat face-to-face with grandkids over iPhones. Facebook users broadcast live from concerts and games. Pundits Skype into CNN every day. Yet lawyers still fly around the country with boxes of hard-copy exhibits to conduct depositions in person. Why?