Traps for the Unwary – Waiver

by Lee Gesmer on July 23, 2008

What do lawyers fear the most? Spiders, snakes, public speaking, death by auto de fe?

Well, I’ll be darned if I know, but one thing that scares the bejesus out of all thinking lawyers is waiver. Lawyers start to become vaguely aware of this horror in law school. Once they go out into practice it slowly dawns on them that it’s ultimately undefinable, that it lurks behind every legal shrub and tree, that opposing counsel will throw it in your face when you least expect it and long after you can fix it, and that if they don’t a court may do so on its own initiative. In its most severe forms it can lead to bankruptcy, scandal, and even malpractice (apologies to Jimmy Stewart).

Take a simple summary judgment motion in federal court. Unbeknownst to the novice lawyer, this process is fraught with dangers. The defendant files the motion.… Read the full article

Rock Star Judges and E-Law

by Lee Gesmer on July 21, 2008

Anytime these judges write an opinion, it’s treated like a papal encyclical,” . . . They really influence other judges, who act like these are the rock stars of their profession. . . These ‘rock star’ judges are not surprised that they, and not the new rules, are still the final word in e-discovery. . . .

Quoted from Rockin’ Out the E-Law, ABA Journal, July 2008.

Rock star judges, huh? OK, I’m trying not to wince, laugh or, well, you know… The American Bar Association needs to sell its publications, so you can’t blame them too much, I suppose.

In any event, this article names several judges as prominent in the area of discovery of electronically stored evidence (“ESI”), including Chief Magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland, Se… Read the full article

The words “hostile work environment” get tossed around a lot by lawyers. But, just what constitutes a hostile environment that’s actionable under Title VII of the Civil Rights Act of 1964 is uncertain. It’s sort of a “I can’t define it, but I know it when I see it” standard. That standard may work at the two extremes (clearly egregious vs. obviously benign behavior), but it can be difficult to apply in the grey zone.

The First Circuit has weighed in on this issue with an important decision, reported in today’s Boston Globe, reversing summary judgment against an employee of the Town of Grafton who claimed a hostile work environment based on the assertion that her supervisor repeatedly stared at her breasts. The First Circuit saw the behavior in this case differently than the trial judge, who had dismissed the case.

Quoting from the Boston Globe article:

The three-member appeals panel said that Billings’s sexual harassment suit had raised serious claims, including that Connor had created a hostile work environment by staring at the breasts of several town employees and, after Billings complained to the Board of Selectmen around 2001, had retaliated against her by transferring her to another municipal job.

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The Massachusetts "Guide" to Evidence

by Lee Gesmer on October 16, 2007

Courts, Litigation. Back in the early 1980s, when I was new to the Massachusetts Bar, there was an effort by the organized bar to codify the rules of evidence. That effort failed, and to this day the rules of evidence are a confusing patchwork of common law and legislative enactment. The “go to” source for the law of evidence has been, in the memory of almost all living Massachusetts attorneys, the Handbook of Massachusetts Evidence (8th Ed. 2006), by the former Chief Judge of the Supreme Judicial Court, Paul Liacos, and currently edited by Mark Brodin and Michael Avery. (The previous editions of this work were published in 1940, 1948, 1956, 1967 (when Justice Liacos took over), 1981 and 1993). However, the long-dead phoenix of evidence codification may be rising from the ashes, albeit in a slightly different form. In 2006 the SJC established an advisory committee to develop a “Guide” to evidence (not to be confused with “Rules” of evidence), and that Guide is now in its proposed form.… Read the full article