For your client to win at trial, the trial lawyer in you must tell a human story, one that moves jurors to decide in your client’s favor. Flesh-and-blood witnesses fill essential roles in the drama. So-so ones will turn the story to mush, and bad ones will allow your friend on the other side to beat you and your client about the head and neck with it. Difficult witnesses – DWs – therefore pose a risk you must use all your talents and powers to manage.

How can you prepare DWs for their potentially pivotal turn on the courtroom stage? In this series of posts, I offer thoughts from 33 years of trying cases.
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Pay-for-delay

Listen up, direct purchasers of pharmaceuticals.

Since 2013, pay-for-delay antitrust cases against Big Pharma could succeed if they alleged that a brand-name drug company had made “large and unjustified” payments for a competitor to postpone bringing a generic substitute to market. FTC v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013). But how “large” and how “unjustified” does Actavis require the payments to be?

A new decision by the Third Circuit provides a plaintiff-friendly answer, one that allows claimants in many cases to move beyond the pleading stage into discovery and potentially trial on the merits.
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Because arbitration

If you’ve ever felt that Uber costs more than it should, you can forget about fixing that in court. Under a new ruling by the Second Circuit, no matter how good your claim and regardless of how much money it involves, Uber can beat you every time.

Every. Single. Time.


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The question of who belongs in a class action deserves a lot of think about it time. A good class definition may save class plaintiffs lots of trouble in winning certification of the class — a do-or-die event in the life of the class action.

A new ruling by the Second Circuit highlights that true fact. In re Petrobras Securities, No. 16-1914-cv (2d Cir. July 7, 2017).
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Election results

Many voters believed that the major U.S. political parties offered them two disappointing choices for President this year.

Although their reasons for disparaging their options varied from voter to voter, a rough consensus emerged about the candidates’ relative riskiness. While one had served in public office for decades, the other had never done any government work. At least in terms of familiarity with the job, the first seemed safe, the other risky.

But in the Electoral College, the “safe” one lost, and the “risky” one prevailed.

Why?

You’ll have many thoughts on how to answer that question. You can find plenty of opinions anywhere you look.

But as a trial lawyer, I have a particular interest in one possible, if partial, explanation:

Does a cognitive tendency in our brains push us towards risk (or perhaps away from it) when we face a set of alternatives that we perceive as negative?
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