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TABLE OF CONTENTS The Brief
Winter 2010 Vol. 39 No.2
Article Abstracts " You, the Jury, and the Internet "
By Jeffrey T. Frederick
The increasingly prominent role of the Internet poses a potential threat to the integrity of jury trials, both before and during litigation. This results from jurors’ information searches, Web contact with litigants’ advocates, and blogging or e-mailing comments about their courtroom experiences. On the other hand, the Internet gives attorneys unprecedented access to information about potential jurors, from public records to social Web sites and Internet postings by the jurors themselves. One jury expert addresses the dangers of jurors’ easy access to outside information and offers recommendations to minimize the pitfalls and maximize the benefits of the Internet in the jury context.
Top Of Page " The Assignment Clause in First-Party Property Insurance Policies: Are Postloss Assignments of Policy Proceeds Enforceable? "
By Catherine M. Colinvaux and Kristen Suga Heres
Insurers often choose to protect themselves from increased risk by limiting an insured’s ability to assign policy coverage rights to another person or entity. Despite policy language that requires insurer consent for assignments, many courts have held that antiassignment provisions cannot prevent an insured from assigning insurance proceeds after a loss has already occurred. Two insurance coverage experts explore the increasing willingness of courts to distinguish, however, between accrued and unaccrued claims and to bar the assignment of unaccrued claims—to keep third parties from collecting for losses that are not fixed.
Top Of Page " Injunctive Relief under Federal Rule of Civil Procedure 23(b)(2): Recent Industrial Life Litigation Sheds More Light"
Jeffrey M. Grantham
FRCP Rule 23(b)(2) was promulgated as a tool for plaintiffs in civil rights cases to obtain injunctive relief, employed primarily by persons claiming discriminatory conduct in an employment context. However, to overcome individualized issue hurdles in Rule 23(b)(3) class actions for monetary damages, plaintiffs lawyers began pushing claims formerly brought under Rule 23(b)(3) into the Rule 23(b)(2) arena. One lawyer specializing in complex insurance claims asserts that Rule 23(b)(2) claims should focus on stopping harm to a class rather than a particular individual. He surveys recent life insurance cases to demonstrate that courts have been reluctant to allow plaintiffs to recast monetary claims as equitable relief in order to “bootstrap” their claims under Rule 23(b)(2).
Top Of Page " Hybrid Class Actions: Bridging the Gap between the Process Due and the Process that Functions "
William H. Narwold and Mathew P. Jasinski
Embracing the notion that a defendant’s conduct might warrant both injunctive relief under FRCP Rule 23(b)(2) and an award of damages under Rule 23(b)(3), courts are increasingly willing to certify “hybrid” classes, according to two lawyers specializing in consumer fraud litigation. They contend that hybrid class actions seek to compensate class members for collective and individual harm and suggest this hybrid allows courts to better construct remedies that satisfy common and individual needs of class members while protecting important constitutional rights.
Top Of Page " How Do Courts Calculate Attorney Fee Awards? "
Brooks Magratten, Robert D. Phillips Jr., Thomas Connolly, Renee Feldman and Issac Mamaysky
When a successful litigant is allowed by case law, contract, or statute to obtain attorney fees from the losing party, courts decide on an amount by employing the lodestar method, the predominant basis for determining attorney fee awards. This article examines case law on fee awards and principles of the lodestar method, under which courts multiply the hours an attorney works by the attorney’s hourly rate and adjust that amount up or down depending on the characteristics of a given case.
Top Of Page " Multidistrict Litigation and Bellwether Trials: Leading Litigants to Resolution in Complex Litigation "
Richard J. Arsenault and J.R. Whaley
Among the litigation management techniques and procedures employed to deal with complex litigation are multidistrict litigation (MDL) and bellwether trials, sometimes referred to as “test cases.” Two lawyers explain MDLs and bellwether trials, discussing how the latter can improve the prospects of global resolution and assist in developing efficient trial plans for subsequent litigation.
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