Archive for the ‘Craig’s commentary’ category

Candidate for President-Elect / Young Lawyers Division – Utah State Bar

June 19, 2007

I am running for President – Elect of the Young Lawyers Division of the Utah State Bar. Voting will take place June 25 – 29, 2007. Those eligible to vote include members of the Utah State Bar under 36 years of age as well as members who have been admitted to their first state bar for less than three years, regardless of age.

For those interested in seeing more detailed information regarding my platform and qualifications, see this link.

Judge Tena Campbell – Scouts settle fire suit for $6.5 million

May 16, 2007

The U.S. Attorney’s Office announced yesterday it has settled its case against the Boy Scouts of America concerning a wildfire that scorched more than 14,000 acres in the Uintah Mountains in June 2002.

Although the U.S. Attorney’s Office previously claimed the damages were in excess of $12 million, the parties ultimately settled for $6.5 million.

The best lesson learned in this case was how not to put out a fire.

http://deseretnews.com/dn/view/0,1249,660221041,00.html

http://www.ksl.com/?nid=148&sid=1225675

Proctor & Gamble case – Jurors admit their verdict was not unanimous and that they averaged out their verdict

March 30, 2007

Proctor & Gamble v. Randy L. Haugen, et al

1:95-cv-94

Judge Ted Stewart

United States District Court for the District of Utah, Northern Division

For those unfamiliar with this case, Proctor & Gamble sued several defendants for spreading the rumor that Proctor & Gamble was somehow affiliated with the Church of Satan.  P&G claimed lost profits due to the rumor. The case was originally filed in 1995 and has been in the pre-trial stage since that time.

On March 20, 2007, the court signed a $19,250,000 judgment in favor of P&G after the jury’s verdict for that same amount.

On March 26, 2007, various defendants filed a “Motion for Immediate Inquiry into Possible Jury Misconduct.”  According to the Motion (which was supported by three affidavits by three separate jurors — affidavits were attached to the motion), one of the jurors contacted one of the defendants, “to discuss, among other things, the manner in which damages had been calculated.”  Defense lawyers talked with this juror, and with at least two other jurors. The three jurors agreed that “the jurors had awarded no damages to P&G other than ‘out of pocket’ expenses,” such as attorney fees, that had accumulated over the last 12 years.

According to the motion, the jurors were apparently unaware that the judge (not the jury) was to determine attorney fees in this particular case.  Jurors also were never requested during the case by plaintiff’s counsel to reimburse their client for out-of-pocket attorney fees. Accordingly, there was no evidence presented during the trial regarding reasonableness, necessity, or amount of the attorney fees.

However, according to the motion, it appears that the majority of the jury (which consisted of 11 members), felt that although P&G wasn’t entitled to direct economic damages, P&G was entitled to reimbursement of attorneys’ fees (despite no request by plaintiff’s counsel or instruction by the court to consider attorneys’ fees).

Since the jury had no evidence on how to compute attorneys’ fees, a few juror members offered their opinion in the jury room as to what attorneys charge per hour.  Some said $300/hr., others ventured that it was $350/hr. or even $600/hr.  The jurors continued in their estimation of total attorney’s fees by looking at “the number of lawyers around P&G’s counsel table.”  All of this alleged jury banter is supported by the three juror affidavits presented in the motion.

In trying to come to an agreement as to how much to reimburse, all 11 jurors gave their separate opinion to each other as to the amount of attorneys fees that should be awarded.  “Ultimately, the jurors agreed to add up all of their various guesses (including two ‘zero’ verdicts) and divide by the number of jurors.” The average was calculated to $19,250,000, and the jury returned a verdict for that amount.

This scenario is frankly a nightmare for trial attorneys.  It confirms (again) a long-held belief by many, that despite the lawyers’ best efforts: (1) juries often don’t understand what they are supposed to do; (2) juries often don’t follow the jury instructions; and (3) juries often compromise or “average” their disagreements into what the jury later declares to be a “unanimous” verdict.

As a side note, District of Utah Local Rule 47-2(b) states: “The court will instruct jurors that they are under no obligation to discuss their deliberations or verdict with anyone, although they are free to do so if they wish. The court may set special conditions or restrictions upon juror interviews or may forbid such interviews.”  I have no information as to whether the court set any “conditions” or “restrictions” for the jurors in this case.

Remember that although the motion is supported by three affidavits from three separate jury members, the plaintiff has not had a chance to respond.  We eagerly await such response and I will report upon it when it is filed with the court.

http://www.sltrib.com/ci_5557841

Motion for Inquiry

Jury instructions

Verdict form

Article – Electronic Filing in Federal Court

January 31, 2007

I wrote an article regarding electronic filing in federal court that was just published in the Jan./Feb. issue of the Utah Bar Journal.  If you’re interested in reading the article, click on the link below.

Electronic Filing in Federal Court – Where are We Now?

Universal Advertising, Inc. – Project Fal$e Hope$

December 27, 2006

The Federal Trade Commission and the U.S. Department of Justice have filed suit against a Centerville, Utah company (Universal Advertising, Inc.) accusing the company of making false claims to entice franchisees to buy into the business.

The company has apparently used language such as: “Immediate Cash Flow! Incredible Return on Investment! The Perfect Home Based Business!” in its marketing to convince others to buy in.

The suit alleges Universal has violated the Franchise Rule that requires franchisers to have a reasonable basis for earnings claims, to provide complete and accurate financial information to potential buyers and to disclose the number of prior purchasers who achieved the same or better results as touted in promotional material.

The franchise (Universal) provides, for a minimum of $3,995, a display rack to the franchisee, which holds business cards and pamphlets.  The franchisee then finds suitable areas (such as restaurants, hair salons, etc.) to place the display racks. The franchisee then charges rent to businesses to display the business cards and brochures within the display rack.

Unclear in this article is why people actually believed they needed to pay Universal $3,995 for a display rack they certainly could have found at Wal-Mart for $100.

The FTC has labled this crackdown on home-based businesses “Project Fal$e Hope$.”

http://www.sltrib.com/ci_4898082

To footnote or not to footnote, that is the question

September 7, 2006

Reading Magistrate Judge Brooke C. Wells’ latest opinion reminds me of a continuing debate between comentators, authors and judges regarding the writing style of judicial opinions.

There seems to be a growing trend for some judges to put citations in footnotes and to generally abstain from using substantive footnotes.  This argument is advocated by leading author Bryan Garner, as summarized by this article. (By the way, Garner’s lectures and seminars are outstanding if you ever have the chance to attend).

Judge Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, opposes this style, as outlined in this article

Magistrate Judge Wells clearly prefers placing citations in footnotes.