News

     Bloomberg Law has published an opinion piece by CCL President Robert S. Peck criticizing the trend in States of putting politics over justice by targeting prosecutors for their policies, rather than focusing on the real probelm of prosecutorial overreach.

      A brief written by CCL told the Illinois Appellate Court that the Attorney General's invited brief, which denies immunity to a nursing home defendant in six cases where it did not undertake any special efforts to render assistance to the State, provides an authoritative rendering of the Governor's intent when he issued an executive order responding to the COVID-19 health crisis.

     In responding to the brief, the nursing home claimed that the Attorney General had improperly taken sides and that his interpretation misread the order's plain language. The CCL brief countered that reading, explaining that it not only made sense, but reflected the obvious and clearly expressed intent behind the order. Any other interpretation, CCL argued, raised profound constitutional separation of powers issues that should be avoided.

     The court is expected to issue its decision on whether the nursing home is entitled to immunity without further hearing.

     Covering such diverse topics as judicial independence, juries, police use of force, and evictions, CCL President Robert S. Peck participated in conversations intended to develop research and make practice use of it as a member of the Board of Advisers of the Civil Justice Research Initiative, a project of University of California at Berkeley School of Law.

      In addition, as a member of the Jury Working Group, Peck discussed ways to replicate a famous jury study from the 1960s that provided the most comprehensive statistics on jury use and behavior that has ever occurred. The daunting project would attempt to seek cooperation from judicial systems to have a number of smaller scale and geographically tied studies. Although still in the planning stages, the study would provide ways to increase use of juries, which has fallen off precipitously in the last decade, in efficient and beneficial ways.

     CCL President Robert S. Peck advises appellate advocates to prepare for a traditional question from a judge: "What is Your Best Case?" Judges often look for a simple straightforward answer to the question before them and sizing up each side's best case can often provide a powerful guide to decision.

     In a post on the Appellate Advocacy Blog, Peck suggests that an advocate not strain to find a "best case" when no single case answers the question. While there may be instances where it does, often an explanation of how several cases inexorably lead to the right conclusion may be necessary and should not be avoided when it is the correct way to look at the issue.

      CCL told the Massachusetts Supreme Judicial Court that its courts have personal jurisdiction over FCA, the successor to old Chrysler, in a case where one of its vehicles failed to protect a passenger after it rolled over in New Hampshire, in an amicus curiae brief filed on behalf of the American Association for Justice and the Massachusetts Association of Trial Lawyers. 

      The plaintiff originally filed the case in New Hampshire state court, but FCA successfully removed it to federal court and won dismissal of the case on personal jurisdiction grounds because the car had been sold in Massachusetts before it was bought used by the current owner in New Hampshire. After that decision, the U.S. Supreme Court issued a ruling that made the ruling erroneous, permitting the case to be brought in the state where the injury occurred as long as the defendant did substantial business there. While that case was pending, the plaintiff re-filed their lawsuit in Massachusetts, where it now claims that Massachusetts is the wrong jurisdiction to exercise authority over it and that New Hampshire would have been suitable. 

       Although the CCL brief supported the plaintiff's argument that there is nothing that prevents Massachusetts from issuing a decision binding on FCA, it added a new argument that FCA is judicially estopped and constructively consented to jurisdiction by its actions pointing to Massachusetts in opposing a hearing in New Hampshire. Subsequently, at the oral argument in the case, the justices asked about this argument, showing that it was an effective issue to raise in the CCL-drafted brief.

     In separate amicus briefs filed in the U.S. Supreme Court, a group of prominent civil procedure law professors and the Association of Transportation Law Professionals urged the Supreme Court to grant CCL's petition for a writ of certiorari in Douglass v. NYK Line. 

     The case raises an important and unanswered question about personal jurisdiction when Federal Rule of Civil Procedure 4(k)(2) is raised, as well as under admiralty law. The case arose from a collision of a container ship with the U.S.S. Fitzgerald, a destroyer, in Japanese territorial waters, that resulted in the death of seven U.S. sailors and injuries to more than 40 others. 

     The U.S. Court of Appeals for the Fifth Circuit, hearing the case en banc, ruled 12-5 that the case could not be heard in the United States. CCL has argued that the ruling effectively renders Rule 4(k)(2), promulgated at the request of the Supreme Court and approved by Congress, unconstitutional, while also turning the courts' back on traditional admiralty jurisdiction.

     NYK Line, the defendant, will file a brief in opposition to certiorari in 30 days, after which CCL is entitled to file a reply brief, before the Supreme Court votes on the case.

     CCL President Robert S. Peck argued that Who Serves on the Bench Matters in a post on the Appellate Advocacy Blog, a part of the Law Professors Blog Network. Although lawyers prefer to think that the rule of law prevails, we are also very aware that judges have viewpoints and experiences that color their approach to legal issues. Appellate lawyers look at the body of work of those on the bench and tailor their arguments to the panel that will hear the case. The "ideologically tinged" battles over confirmations and elections cannot help but translate into the types of rulings that come from a court. That the rhetoric of campaigns and slanted news presentations find its way into opinions has become obvious to even casual observers. 

     Using an example from a recent decision, where the dissent gratuitously called out the majority about an internal issue and the prospect of a new majority, Peck writes that, not only does who serves make a difference, but that the judges are also aware of it.

     Commenting on the latest draft of what will become a Restatement of the Law on Medical Malpractice from the American Law Institute, CCL President Robert S. Peck suggested that the draft needed to recognize that sometimes the defendant physician undertakes treatment that requires a different specialty. When that occurs, the rules governing expert witnesses should allow the plaintiff to have an expert who practices in the correct specialty testify about why that type of education and experience is essential and why the treating doctor committed medical negligence. 

     The ALI's Restatements are considered by many courts as authoritative descriptions of the law. Lawyers are elected to membership in the ALI based on outstanding achievements and experience. Those who comment on draft Restatements are usually members who have specialized interest or expertise in the topic. 

     In making his point about expert testimony, Peck used an example of a case he won in the Florida Supreme Court, Estate of McCall v. United States, in which inexperienced doctors botched a delivery, resulting in the young mother bleeding to death on the operating table. The doctors were awaiting a colleague who was operating at another hospital, when they could have easily sought help from veteran OB/GYN's who were on the other side of the wall, but worked for a different employer.

     Peck also commented on other aspects of the several hundred page draft, which will now take his and others' comments into account.

      The Ohio Supreme Court issued its mandate in Brandt v. Pompa, striking the state's personal-injury damage cap in a case involving the repeated rape of a minor. The 4-3 decision, issued December 16 after argument by CCL President Robert S. Peck, held that the statutory exception to the cap, for permanent and catastrophic physical injuries, denied due process to the plaintiffs who had permanent and catastrophic psychological injuries, a distinction in the legislation that had no rational basis. 

       The defendant, however, filed a motion for reconsideration on December 27, along with a request that all four justices in the majority recuse themselves. The reconsideration motion largely reargued his losing case, but also emphasized a complaint from one of the dissenting justices -- that the majority had rushed him to complete his dissent in order to issue the decision and allow reconsideration to be determined this year, while the same justices who heard the case were intact. Chief Justice Maureen O'Connor, who wrote the decision, reached mandatory retirement age this year, so that she must step down on December 31. The alleged departure from internal operating procedures in forcing the dissenter to issue his opinion served as the basis of the recusal request.

      The justices refused to recuse and, after CCL's Peck wrote a memorandum in opposition to reconsideration one day after the motion was filed, which urged summary denial, the Court did just that and issued a one-sentence denial of reconsideration. With that order, the case is now at its end.

     Today, Bloomberg Law published an opinion piece co-authored by CCL President Robert S. Peck on revitalizing the use of jury trials as a means to regain confidence in the courts. 

     The article, Fixing the Public's Confidence in the Courts Starts with Juries, recognizes the continued downward slide of public confidence in the courts, as well as the silver lining that respect for juries remains high. It further notes that jury trials in civil cases have become exceedingly rare and must be restored if the courts are to maintain the public's respect. 

      The article was co-authored with law professors Richard Jolly of Southwestern Law School and Valerie Hans of Cornell Law School.