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Trial Practice

Practice Points

What you need to know in a quick-to-read format. Find all of the Trial Practice Committee’s Practice Points in this archive.


Expert Witnesses—the Basics
By R. Adam Swick and Ryan Goldstein – December 30, 2021
Experts can be crucial in certain matters, so it is worth considering an expert’s potential benefits early in a case. Here are a few basics to keep in mind when thinking about experts.

Trial Preparation for Young Lawyers: Exhibit Lists
By John Austin – December 2, 2021
Failing to introduce a key piece of evidence can happen to even the most experienced litigators. Learn about one basic technique to ensure that all exhibits are identified and entered.

Attorneys for Landlords and Residential Tenants Forecast a Tsunami of Eviction Litigation
By John Austin – February 4, 2021
Even after the eviction moratorium is lifted, the case backlog may take a year to clear.


COVID-19: Advice for Notaries During the Pandemic
By John Austin – April 8, 2020
With a little thought and some planning, notaries can employ social distancing practices to reduce the amount of physical contact and time they need to spend with document signers.

Five Tips to Prepare Your Client for Mediation
By John Austin – February 7, 2020
It pays dividends to advise parties about what to expect and what not to expect during this sometimes arduous but beneficial process.


Top Five Free Legal News Websites for the Legal News Junkie
By John Austin – October 31, 2019
When the ABA and the Section of Litigation aren't enough, turn to our favorite spots for legal news.

Barter Internet Sites May Be Hiding Assets Subject to Judgments
By John Austin – October 31, 2019
When that writ of execution comes back without satisfaction, you may want to inquire whether an ongoing business is transacting business somewhere on the internet where actual currency is not involved.

Excusing Jurors During Deliberations: Determining “Good Cause”
By Tracey E. Timlin – September 6, 2019
A juror’s unwillingness or inability to deliberate fairly and impartially and to follow court instructions can wreak havoc on a trial at the last minute.

Fourth Circuit Chops, Slices, and Dices Attorney Fees
By John Austin – July 31, 2019
While many may “win” an award, the wise attorney shall first determine if the amount of the work justifies what could be a meager award.

On Stuffing the Record for Appeal
By Stephanie E. O’Byrne – July 24, 2019
Lawyers can be highly effective advocates—if we avoid forcing the court to pick our best arguments for us.

A Quick Guide to Rule 608(b): An Underutilized Impeachment Tool
By Tracey Timlin – June 7, 2019
Learn how to master the art of this often misunderstood rule.

Papa John’s Executives Ordered to Produce Emails and Text Messages from Personal Accounts
By Aaron R. Sims – January 31, 2019
This decision provides insight into actions that companies and their directors and officers can take to try to protect personal communications from discovery.

Federal Forum Selection Provision Invalidated by State Court
By Travis Dunkelberger – January 31, 2019
The court’s decision relied heavily on the seminal decision in Boilermakers Local 154 Retirement Fund v. Chevron Corp.


Buyer Validly Terminated Merger Agreement in Unprecedented MAE Finding
By Matthew Davis & Jacob Kirkham – November 30, 2018
Delaware Court of Chancery decision is likely to have far-reaching impacts on mergers and commercial contracts.

Domestic Corporation Liability for Foreign Torts under the Alien Torts Statute
By Maxwell W. Mahoney – October 31, 2018
In an ongoing case, plaintiffs allege that Nestle and Cargill perpetuated a system of child slavery on cocoa farms.

Finish with a Punch: Tips for Writing Effective Conclusions
By Brian J. Williams – October 31, 2018
Learn how to craft the perfect ending.

Evidence of Debt Collector’s Net Worth under FDCPA
By Maxwell W. Mahoney – September 10, 2018
In Tourgeman v. Nelson & Kennard, the Ninth Circuit held that the consumer bears the burden to present evidence at trial of the debt collector’s net worth in order to establish entitlement to class statutory damages under the Fair Debt Collection Practices Act.

Impossibility Preemption Mandates Reversal of $3 Million Verdict Against Pharma Giant
By Jeffrey B. Greenspan – August 31, 2018
The case involves GlaxoSmithKline and a negligent omissions on drug labels.

Do-Nothing Landlords Can Be Liable for Known Tenant-On-Tenant Harassment Under Federal Housing Act
By Jeffrey B. Greenspan – August 30, 2018
Following Wetzel v. Glen St. Andrew Living Community, landlords must take reasonable steps to stop harassment based on protected status.

Travel Ban Upheld Despite Trump’s Incendiary Tweets
By Brittany Levine – July 31, 2018
Will courts continue to apply the rational basis test for the executive’s actions related to immigration even when fundamental constitutional rights are called into question, or was this an isolated application of the more lenient standard?

Cohen Discloses Taping Trump: Even if It Is Legal, Is It Ethical?
By Brittany Levine – July 31, 2018
Before an attorney records a conversation without the other party’s knowledge, there are several things to consider.

The U.S. Supreme Court Nexus Required for State Taxation of Online Sales
By Otto S. Shill, III – June 27, 2018
But questions remain after South Dakota v. Wayfair.

Victory for Employers Hoping to Enforce Individualized Arbitration Agreements
By Julia Acken – June 27, 2018
In Epic Systems Corp. v. Lewis, the Supreme Court resolved a growing split among federal circuit courts about the enforceability of class action waivers.

Privacy Settings May Not Protect Your Privacy from Facebook
By Brittany Levine – May 30, 2018
The lawsuit is based on Facebook’s face-scanning technology that uses facial geometry to tag users in photographs.

U.S. Supreme Court: Reporting to the SEC Is a Prerequisite for Dodd-Frank’s “Whistleblower” Anti-Retaliation Protection
By Jeffrey B. Greenspan – March 11, 2018
The case is Digital Realty Trust, Inc. v. Somers.

Tips for Preparing the Client for a Jury Trial
By John S. Austin – February 28, 2018
Your client’s performance before the jury may be the deciding edge to victory and a larger verdict.

Seventh Circuit Reminds Litigants that Doctrine of Forum Non Conveniens Still "Has Continuing Application in Federal Courts"
By Jeffrey B. Greenspan – February 13, 2018
The proper procedural vehicle to enforce such a clause is the "residual" common law doctrine.

Are Nationwide Class Settlements Endangered by Ninth Circuit’s Opinion in Hyundai and Kia Case?
By Wystan Ackerman – January 31, 2018
Learn what what parties can do when they want to settle but the issues are governed by state law that in some respects varies among the 50 states.

The Top 10 Class Action-Related Developments of 2017
By Paul Karlsgodt – January 31, 2018
In a relatively quiet year for class actions, there were at least enough noteworthy developments to put together a quick list.


Federal Circuit Answers Lingering Venue Question in Patent Infringement Cases
By Anne E. McClellan and Jimmie W. Pursell – November 28, 2017
The case is In re Micron Tech, Inc.

Supreme Court Finds Exceptions to Appeals Filing Deadline Permissible, Not Violation of Jurisdictional Limits
By Shanna Bowman – November 13, 2017
The Court rules in Hamer v. Neighborhood Housing Services of Chicago et al.

Hermès Compels Arbitration in Discrimination Suit in 2nd Circuit
By Connor Choate – August 31, 2017
The court rejected the plaintiff's "look-through" approach entirely, affirming the lower court’s decision.

Fifth Circuit Vacates Penalties against ExxonMobil
By Connor Choate – August 31, 2017
The penalties came against the energy giant after the 2013 oil spill.

Tips for Presenting Your Clients During Voir Dire
By John Austin – August 31, 2017
In civil trials, clients rarely if ever have experienced the voir dire process.

Networking Tip for Young Civil Litigators: Court Appointed Cases
By Connor Choate – July 31, 2017
Learn how to unearth this potential networking gold mine.

Tips for Getting City and State Records into Evidence
By Connor Choate – July 31, 2017
Litigators should not assume they may be admissible for hearings and trials through “judicial notice.”

Judge Holds Judgment in Dish Network Class Action Case
By Connor Choate – July 31, 2017
A federal judge in North Carolina chose not to enter the full $61 million judgment against the satellite broadcast provider for illegal telemarketing calls.

Johnson & Johnson Focuses on Talc Expert
By Connor Choate – July 31, 2017
The first jury trial in California over links between the pharma giant's talcum powder products and ovarian cancer continues.

Talcum Powder Trial Begins
By Connor Choate – June 30, 2017
The case alleges Johnson & Johnson knew about carcinogenic effects but did not warn consumers.

Well-Done Grilling of Expert in McDonald’s Overtime Trial
By Alison Austin – May 30, 2017
Slight errors and the exploitation of those errors may result in the difference of millions of dollars.

Judge in "Pharma Bro" Case Rejects Mistrial Request
By Connor Choate – June 30, 2017
The Eastern District Court of New York disagreed that negative press coverage "irreparably tainted" the jury-selection process.

Agribusiness Giant Ordered to Pay $218 Million in Damages to Corn Growers
By Connor Choate – June 30, 2017
The case involves Syngenta and a genetically modified seed rejected by China, resulting in massive losses for farmers.

Eleventh Circuit Affirms District Court in Florida Hotel Development Deal
By Connor Choate – June 30, 2017
The case is Al-Ghena et al v. Talat Radwan et al.

Three Steps So You Don’t “WannaCry” about Ransomware
By Alison Austin – May 30, 2017
Learn how to protect your firm's computer systems from malicious attacks.

Public Wi-fi: Lawyers Beware of Coffeehouse Practice
By Alison Austin – May 30, 2017
Confidential information is at risk when lawyers use the service without proper safeguards.

Federal Judge Vacates State Judgment Entered in Error Where Case Removed
By Alison Austin – May 30, 2017
The California case involves an arbitration award to an Afghan subcontractor.

First Circuit Denied New Trial Where Foreman Was Felon
By John Austin – March 31, 2017
The case is Faria v. Harleysville Worchester Ins. Co..

Ninth Circuit Dismisses Severed Cross-Claim for Lack of Subject Matter Jurisdiction
By John Austin – February 28, 2017
The case is Herklotz v. Parkinson, et al.

Tips to Plan Ahead for Free CLE
By John Austin – February 28, 2017
Mandatory continuing legal education can be one of the necessary annoyances lawyers face every year. Learn how to make it easier on yourself.

CA Appeals Court Finds “Abuse of Discretion” Where Trial Court Fails to Continue Summary Judgment Hearing
By John Austin – February 28, 2017
The case is Hamilton v. Orange County Sheriff's Dept.

Seventh Circuit, Applying Spokeo, Dismisses Putative Class Claim for Lack of Article III Standing
By Jeffrey D. Gardner – February 10, 2017
The case is Meyers v. Nicolet Restaurant of De Pere.

Can Data Analytics after E-Discovery Help with Trial Preparation?
By John Austin – January 31, 2017
If the case involves boxes or even boatloads of electronic documents, then the answer is an emphatic yes.

Third Circuit Reverses Dismissal of Data Breach Class Action Claim
By John Austin – January 31, 2017
The January 2017 case involves the Fair Credit Reporting Act.

Mandatory Reporting of Child Porn May Impact Lawyer’s Duty to Report
By John Austin – January 31, 2017
Practitioners should be careful to navigate the narrow path between mandatory disclosure and protection of confidential information.

Five Tips to Ensure Document Security
By John Austin – January 31, 2017
Learn how to ensure your documents are safe from prying eyes.


The Second Circuit Protects the Attorney-Client Privilege under the Common Interest Doctrine
By Farrah Champagne – October 31, 2016
The case is Schaeffler v. United States.

The Eleventh Circuit Allows a Nonparty to Invoke the Fifth Amendment Privilege
By Farrah Champagne – October 31, 2016
Coquina Investments v. TD Bank arose out of a billion-dollar Ponzi scheme where an investment partnership claimed that a bank assisted a lawyer in perpetrating a fraud.

5 Tips for First-Time Depositions
By John Austin – September 30, 2016
Learn how to prepare for and execute your first depo.

Third Circuit Reinstates Dismissed Case Based on "Unmentioned" Exhibits
By John Austin – September 30, 2016
The case is Carpenters Health and Welfare Fund of Philadelphia and Vicinity v. Management Resource Systems, Inc.

Ninth Circuit Holds "Fraudulent Joinder" Doctrine Misapplied
By John Austin – August 31, 2016
In Weeping Hollow Avenue Trust v. Spencer, the court found that the “joined” party had a viable claim in the matter.

Removal to Federal Court Not Waiver of Tribal Immunity
By John Austin – August 31, 2016
The decision in Bodi v. Shingle Springs Band of Miwok Indians cures the divide in its lower districts.

5 Tips for Civil Litigation Discovery
By John Austin – August 31, 2016
Discovery is often intimidating for litigators, especially young lawyers. The key is to stay ahead of the deadlines.

Skype Not Confirmed Secure for Attorney-Client Communications
By John Austin – July 31, 2016
Attorneys should presume that communications with clients via online video chat is akin to talking to clients in a coffeehouse.

Litigator's Guide to Data on Mobile Devices
By John Austin – August 31, 2016
There's more information stored on our devices than most people realize.

First Circuit Affirms Lower Court’s Substitution of Parties Post Judgment
By John Austin – July 31, 2016
The case is Rodriquez-Miranda v. Benin et al.

Fourth Circuit Allows Appeal Where Appellant Gives "Functional" Notice of Appeal
By John Austin – July 31, 2016
The case is Clark v. Cartledge

Second Circuit Affirms Decertification of Class after Jury Trial but Before Judgment
By John Austin – July 31, 2016
The case is Mazzei v. The Money Store et al.

Dismissal of Claims under Anti-SLAPP Statute Not Immediately Appealable
By Connor Choate – June 30, 2016
In Hyan v. Hummer, the Ninth Circuit Court of Appeals recently held that the dismissal of a claim under California’s anti-SLAPP statute against was not a “final decision” under Federal Rule of Civil Procedure 54(d).

Franchise Activities Result in Personal Jurisdiction over Franchisee
By Connor Choate – June 30, 2016
The First Circuit Court of Appeals recently held that a Massachusetts’ district court had personal jurisdiction over an Oregon company in a franchise dispute under the purposeful availment doctrine where the company had taken advantage of the benefits offered by the Massachusetts’s franchiser.

Second Circuit Joins Other Circuits in National Bank Citizenship Determination
By Connor Choate – June 30, 2016
The case is OneWest v. Melina.

New Mexico Supreme Court Holds Skype Testimony Violates Sixth Amendment
By Connor Choate – June 30, 2016
In a recent opinion, the New Mexico Supreme Court held that witness testimony, via two-way video conferencing such as Skype, violates a defendant’s right of confrontation under the Sixth Amendment.


5 Tips for Engaging Opening Statements
By Farrah Champagne – October 30, 2015
The opening statement provides the first impression of the case and shapes the impressions of the jury.