I Borrow (Steal) A Theme From Peter King
Peter King is one of my favorite sportswriters. His Monday Morning Quarterback column for Sports Illustrated has a regular section called "Ten Things I Think I Think." He is an intelligent guy and a better writer than me, so instead of coming up with an idea of my own I stole his. So here are some things I think I think (but I might be wrong):
Walter Olson points out that the $75 million liability cap in the Oil Pollution Act of 1990 does not override state law remedies that may apply to the BP oil spill. His point is that the $75 million cap in the federal law may not be the upper limit of BP's actual liability, depending on the amounts recoverable under state law. Yeah, but: lots of states have damages caps that apply to common law tort claims arising under state law. I do not know if Louisiana, Missisippi, Alabama and Florida have caps that would apply, but I think it's an important piece of information to know if you are analyzing whether the damages cap in the federal law needs to be changed.
Many lawyers in Maryland (and elsewhere, presumably) beleive that to be admissible, expert opinion evidence needs to be accompanied by some sort of magic words like "within a reasonable degree of medical certainty." First, I think that is not the law. I think it is sufficient if it is clear that the standard is "more likely than not" for an expert in whatever field is applicable. And I think if the law is that some magic words are required, that is a stupid requirement that should be changed. It is clunky, cumbersome, overly technical, and a perfect example of lawyerspeak that clues the jury in to ignore whatever follows it. The court has just accepted the witness as an expert. It should be clear to everyone that his opinion testimony is offered as that of an expert in the field. Why do we go out of our way to make our legal proeedings as cumbersome, time-consuming and annoying for the jury as possible?
I think Bret Michaels is getting a lot of valuable exposure for having not died. I also think it is painfully obvious that the bandanna is because he is bald. One more reason to hit the Maryland State Fair.
I think the primary function of a "Motion for Reconsideration" is to elevate legal billings. In my experience, when trial judges are presented with an additional and more detailed recitation of facts that have already been presented to them, they rarely decide they were wrong the first time. I am sure these motions have some value in making a record for an appeal, but I can't recall ever having seen a trial judge grant one.
I think that when faced with a party or witness whose first language is not English, but has some limited proficiency, more lawyers should consider using an interpreter anyway and letting the witness testify in their native language. Interpreters have a cost and add more time to a deposition, but the transcript will be a lot more accurate. Particularly if the witness stutters and/or is a Seinfeldian "low talker."
You may remember me blogging about a defense verdict in a tough four-day trial recently. I think is was very nice of my client to send me a thoughtful personal letter saying what a great job I did, even though we didn't win. On balance, though, I would rather win and not get a nice letter.
