Hecker Fink LLP’s Post

Pattern jury instructions are a great place to start--not finish. 📝 In Echols v. Johnson, the Seventh Circuit determined the district court erred by issuing the pattern jury instruction for a failure-to-protect claim under 42 U.S.C. § 1983 and the Fourteenth Amendment’s Due Process Clause. The instruction failed to account for the Supreme Court’s 2015 decision in Kingsley v. Hendrickson, 576 U.S. 389, and the Seventh Circuit’s 2022 decisions in Kemp v. Fulton Cty. and Thomas v. Dart, providing that civil detainees (like those in Echols) asserting a failure-to-protect claim must demonstrate that the defendant acted in an objectively unreasonable way—not that the defendant subjectively knew of the risk of harm. The #juryinstructions are a sometimes-overlooked aspect of #advocacy in trial preparation. 🏛 Even if the instructions are completely up to date, your case may require or benefit from a special instruction or a modification to the standard instructions. After all, most jurors are not attorneys and the instructions—and your closing argument based on them—are all the law they’re going to get. And if there’s a flaw in the pattern instruction, your case may alert the committee to fix it. 🛠 #civilrights #trialprep

On December 1, several amendments to the Federal Rules of Evidence took effect.    The most important change affecting DRI members and their clients is to Evidence Rule 702. It has been revised to state explicitly that the proponent of an expert must demonstrate to the court that it is more likely than not that the witness meets the requirements of the rule.     DRI Past Presidents Toyja Kelley and Douglas Burrell and Gardner Duvall, then chair of the Center’s Legislation and Rules Committee, submitted comments on this Rule and testified in support of this amendment before the Federal Judicial Conference Advisory Committee on Evidence Rules in 2022.     Two other rules have also been amended: Evidence Rule 106 has been amended to make it clear that, if a party introduces a statement, an adverse party may require the introduction—over a hearsay objection—of another part of the statement or any other statement that in fairness ought to be considered to prevent a misimpression from being created.     Evidence Rule 615 now makes it clear that in addition to barring witnesses from the courtroom, the judge may also prohibit disclosure of trial testimony to witnesses who are excluded and to prohibit witnesses from accessing trial testimony.  Learn more about these changes here: https://bit.ly/47ODeSv. #DRICommunity #DRILawyer #DRItheCenter #PublicPolicy #Legislation #Advocacy #Law The Center provides the most effective voice for the defense bar in the discussion of substantive law, judicial process, constitutional issues, and the integrity of the civil justice system at both the national and state levels. 

For anyone navigating Texas' new business court, Ryan Sullivan's recent Law360 article "Questions Linger Over Texas Business Court's Jurisdiction" helps potential litigants explore the key questions and complexities of supplemental jurisdiction and concurrent proceedings. Read the full article at the link below. #triallawyers #texaslaw   https://lnkd.in/dt7ZuJNj

Feeling that the judge may have erred in their ruling? Here are your avenues for recourse in Maryland: Option 1: Motion to Amend or Alter Believe there's a mistake in law or fact? You have 10 days post-judgment to file a motion to alter or amend the judgment. It's your first step towards rectifying potential errors. Option 2: En Banc Review For family law matters at the circuit court level, consider an en banc review if your case was heard by less than three judges. This allows three circuit judges to reevaluate the decision, offering a fresh perspective on your case. Option 3: Motion for a New Trial If there's a significant legal oversight or lack of evidence supporting the judgment, this motion requests vacating the judgment and the initiation of a new trial. It's a chance for a fresh evaluation. Option 4: Filing for an Appeal Disagree with the judge's order? Take your case to an appellate court, like the Court of Special Appeals, which will review your case for legal errors. This could lead to a reversal of the decision and a remand for further proceedings. Each option offers a path towards justice. Knowing your rights and the legal avenues available can empower you in seeking a fair resolution. #LegalOptions #MarylandLaw #JusticeSystem #AppealProcess

Jack Smith's ANSWERING BRIEF FOR THE UNITED STATES - PDF: https://lnkd.in/gpdp_gbm | Smith’s DC appeal brief opposing Trump’s immunity and double jeopardy claims. ARGUMENT -The Defendant Has No Immunity from Federal Criminal Prosecution. --Separation-of-powers analysis provides no support for immunizing a former President from federal criminal prosecution. -- Constitutional text, historical practice, and other immunity doctrines do not support the defendant’s contrary claim. -- Even if separation-of-powers principles limited the federal prosecution of a former President in some unusual circumstances, those principles would not require dismissal here. -- Even if a former President were entitled to immunity from criminal prosecution comparable to his immunity from civil liability, dismissal is not warranted here. -- The Defendant’s Acquittal at an Impeachment Trial Does Not Bar This Prosecution

The Michigan Supreme Court will be hearing arguments later this month, April 2024, with respect to a claim alleging clergy abuse. The crucial legal issue before the Michigan Supreme Court turns on a statute of limitations. A statute of limitations is a law that sets the time by which a party must initiate legal proceedings following an alleged offense. For civil litigation in Michigan, statutes of limitations depend on the type of action or claim the plaintiff is bringing, and are set forth in various provisions of Michigan Law. Additionally, Michigan statutes and case law address situations in which a statute of limitations should be extended or tolled based on the nature of the claim and factual specifics of a case. In the case before the Michigan Supreme Court, the central question is whether a 2018 Michigan Law expanding the civil statute of limitations for criminal sexual conduct applies retroactively. That is – did the expansion of the statute of limitations apply to cases which were already time-barred under the prior statute of limitations before the statute was enacted in 2018. The Michigan Court of Appeals found that the 2018 Michigan Law did not apply retroactively. The Michigan Supreme Court will have the final word on the issue in the written opinion it will issue following the arguments it will hear later this month. This case highlights the importance of consulting with experienced Michigan plaintiffs’ attorneys like Moss & Colella, P.C. when you believe you may have a potential claim. We can help you understand the merits of your claim, as well as advise on the sometimes complicated issues regarding whether or not your claim can be timely made. David Moss A. Vince Colella Ryan Piekarski Melanie Duda Matthew McCann #plaintiffslaw #civillitigation #personalinjury #Michiganpersonalinjury

Syed v. Lee is now the longest-pending of the Supreme Court of Maryland's open cases. Based on argument, I thought we'd probably see a fairly swift ruling that this case is moot, while admonishing the State's Attorney and directing the Rules Committee to address problems going forward. I was wrong at least on timing, and each passing day makes me think more that Syed will again be on the losing end of a 4-3 opinion. I often hear: "So what? Mr. Lee will address the court in person, and the charges will be dismissed again." But if the Appellate Court is affirmed, the case reverts to before Judge Phinn ordered Syed acquitted. That would be the point of finding the case not moot and the error not harmless. After everything that has happened in this case, I don't know how anyone can feel confident in predicting what would happen next. Even if the same result were somehow inevitable, temporarily reinstating the conviction still would have consequences. Syed spent ages 17 to 41 behind bars. Based on actions by the State, Syed would have to prepare to walk back into the court as a convicted felon with a life sentence. The psychological consequences are massive. As the child of a felon, my recurring nightmare since childhood has been the prison bars slamming shut. I cannot imagine the impact on Syed and his family. And if the dismissal anew were a foregone conclusion, then how would a new hearing benefit Hae Min Lee's family? It would prolong everyone's uncertainty, plus the prospect of another round of appeals. I was in the overflow room the morning of the hearing. The confusion was great, as Judge Phinn learned Mr. Lee wanted to testify. Neither the Legislature nor the Rules Committee had given her guidance. Facing an uncertain situation, Judge Phinn disappointed the impatient crowd by giving Mr. Lee the time he needed to prepare his statement, which was powerful. Whenever I try envisioning a ruling against Syed, I wonder how it would address the mootness points raised in Judge Berger's dissent and Justice Battaglia's questions. Reading the Appellate Court's opinion and the briefs, the essential point would seem to be that, for victims' rights to have meaning, there must be special rules of mootness and harmlessness to address the State's Attorney's actions. But the Maryland courts have discretion to decide moot questions precisely to vindicate the underlying rights for future cases. When precedential opinions find there was error, but the error was harmless, they aid trial courts in future cases. There is no tension in an opinion that identifies injustices, assigns blame, directs the Rules Committee to address the situation going forward, and finds the case moot or any error harmless. Still, each passing day deepens my fear that at least four justices will reinstate the conviction. I hope I'm wrong again.

Last week I was in 2 courtrooms in 2 counties across the state.  Two takeaways: 1. Know who you are and own it. Lawyers should not be chameleons. A litigator is who he or she is and should own who they are whether they are arguing in New York City or Brown County, Wisconsin. 2. But also, know where you are and adapt. A litigator must do the prep work to familiarize themselves with the Court. How often does the Court see this issue, what is the judge's style, what are the court's procedures matters? A litigator’s value is controlling everything they can, but being adaptable to what they cannot. A litigator should not change who he or she is but appropriately adapt to the Court they are practicing before. #LegalInsights #LitigationStrategy #CourtroomExperience #LegalPreparation #AdaptabilityInLaw #KnowYourCourt #LitigationTips #LegalStrategy #CourtroomPresence

The Litigation Team at Bloomberg Law keeps killing it with new product launches. From our latest Healthcare Bankruptcy & Restructuring Toolkit to state practical guidance for New York (all of the other BLAW goodies, such as Dockets and News). Our commitment to educating the bench and bar is a key to shared successes. If you practice in New York and are a BLAW subscriber, I encourage you to check it out. #NewYork #litigation #guidance #dockets #law #research