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The Brief

Past Issues


Index to Volumes 24 through 30

Each issue of The Brief, the Section's quarterly magazine, includes an array of practical articles of interest to plaintiffs' and defense lawyers who practice tort or insurance law.  In addition, the popular "Practice TIPS" section provides practical, how-to advice on practice and litigation matters.

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The Brief
Fall 2008 Vol. 38 No. 1
Article Abstracts

" Learning to Live with Electronic Data Recorders"
by Nancy M. Erfle
Most cars are now equipped with computers, known as electronic data recorders (EDRs), that record and save various types of data and information about vehicle and driver performance. EDRs are quickly becoming a common issue in litigation where automobiles are involved. The author, an expert in automotive product litigation, explains the kind of data stored in EDRs and considers recent and upcoming changes in the legal landscape. She also examines legal challenges that may arise when litigants introduce EDR data, including those related to reliability/admissibility, discovery, dispositive motions, and preservation of data for use at trial.

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" Confidential or Not? Attorney-Client and Work Product Privilege in Bad Faith Property Claims"
by Arnold F. Mascali Jr. and James R. Tortorella
In the past eight years, property insurers and policyholders have faced some of the most devastating insured events in history with values approaching tens and even hundreds of millions of dollars. With such high stakes, carriers and insureds are turning to counsel at an earlier stage of the adjustment process. The attorney needs to understand thoroughly the property claims process and the importance of thoughtful creation of documents, especially to avoid exposing supposedly confidential communications to disclosure later on. The authors discuss the fundamentals and nuances of preparing and presenting a property claim and analyze cases addressing the attorney-client and work product privilege in the context of a threatened or actual bad faith property claim.

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" Covenants Not to Compete: Make Them Work for you"
Joel W. Mohrman
Considering the value of intellectual property and the mobility of employees, enforceable covenants not to compete are more important than ever. State laws vary, but key principles apply in all venues: the covenants usually are not stand-alone agreements and are limited in time, scope, and geography. One intellectual property expert discusses the questions lawyers must ask about each jurisdiction and client, examines no-hire agreements and nondisclosure agreements, and reviews recent case law.

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" The Annuity Conundrum: Responding to the Abuse of Elderly Investors"
by Joseph H. Aughtman
Unlike retirement plans, there is no limit as to how much one can invest in annuities, under which an investor provides princi-pal for which the issuer guarantees fixed or variable payments over time. Typically issued by insurance companies, annuities are marketed as instruments to protect investors’ principal. A lawyer specializing in insurance and financial services class actions explains how annuities have been used as instruments to defraud investors—especially senior citizens—and how plaintiffs firms have initiated class actions to curb such fraudulent practices.

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" What Every Lawyer Needs to Know about Internal Corporate Investigations"
by Carol Ann Petren and Charles P. Scheeler
An internal corporate investigation is shaped by factors ranging from document preservation and witness interviews to attorney-client privilege and the communication of conclusions. Two litigators who have served as defense counsel in major securities fraud cases examine these factors and suggest that a company’s willingness to honestly investigate a situation can reinforce its ethical fabric, improve operations, and fortify its credibility with regulators and law enforcement officials.

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" Handling Cases with Claims of Negligence, Strict Liability, and Breach of Warranty"
by William A. Rubert
Whether by statute or by judicial decision, most states have adopted some form of strict liability in product liability cases, under which a product’s manufacturer or anyone placing that product in commerce can be held liable if a defect in the product caused an injury. The strict liability theory is often added to or merged with theories of negligence and breach of warranty. One litigator explores these causes of action, where the theories clash, and the means by which some of the conflicting rules may be reconciled.

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" Practice Tip: In Opening Argument, Tell Your Client's Story"
by John Buckley and Alice Hector
Getting the listener to see the story from your side is the objective of any persuasive opening argument. Two seasoned litigators offer steps to help you tell a story from your client’s perspective, draw in the jurors and enhance their retention, and empower them to reach a verdict in your client’s favor.

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