Donald Trump’s list of people he would consider nominating to the Supreme Court includes judges who have indicated support for various conservative causes, range in age from 41 to 58 and hail primarily from conservative and Republican-governed states, reports Reuters. The eight men and three women all are white.

The list includes William Pryor, who as Alabama attorney general, urged the U.S. Supreme Court in 2003 to uphold a Texas law banning gay sex.

Another is Texas Supreme Court Justice Don Willett, who earlier in his career was part of Texas’ legal team that won a Supreme Court battle to display the Ten Commandments on a monument in the state Capitol.

Read the article.

Ernest Aliseda has joined Dykema in its Commercial Litigation Practice Group as a member in the firm’s McAllen, Texas office.

Prior to joining Dykema, Aliseda served as General Counsel/Chief Legal Officer for the Loya Insurance Group companies, where he handled general legal matters and managed and oversaw diverse litigation throughout the country. Aliseda is also a former State District Judge for both the 398th and 139th State District Courts in Hidalgo County.

In a release, the firm said Aliseda will advise and represent clients in commercial and general litigation matters, along with serving as a mediator and arbitrator in personal injury, commercial, employment, international and personal injury law cases.

“We are very pleased and fortunate to add an attorney of Ernie’s stature to our roster,” said Diann Bartek, Office Managing Member of Dykema’s McAllen office. “His reputation precedes him. There is no doubt that his strong background in commercial litigation and his experience as a judge will be extremely valuable to the firm and its clients.”

Aliseda is a governor-appointed Regent of the University of Texas System Board of Regents and a State Bar of Texas President-appointed member of the Board of the Texas Bar College. He received his law degree from the University of Houston Law Center and his undergraduate degree from Texas A&M University.

He is board certified by the Texas Board of Legal Specialization in personal injury trial law, along with being trained as a mediator, arbitrator, and litigation management professional. He is also a lieutenant colonel in the U.S. Army Reserves, where he serves as a military judge.

A Delaware judge has dismissed a lawsuit by Wal-Mart Stores Inc. shareholders who accused the board of the world’s largest retailer of trying to cover up bribes paid by company executives in Mexico, according to a report by Reuters.

The Delaware judge ruled that an earlier dismissal by an Arkansas judge of a nearly identical lawsuit by another group of shareholders precluded the Delaware case from going forward.

“He said that while the Arkansas plaintiffs may have chosen to rush their case rather than fully investigate alleged wrongdoing, their haste did not disqualify them from representing Wal-Mart shareholders,” Reuters reported.

In 2012, The New York Times reported that found Wal-Mart had engaged in a multi-year bribery campaign to build its Wal-Mart de Mexico business.

Read the article.

The lawyer who struck a $100 million deal with Uber Technologies Inc. is being accused of greed by some of the drivers covered by the accord who want her bumped, reports Bloomberg News.

“She has single-handedly stuck a knife in the back of every Uber driver in the country,” Hunter Shkolnik, a New York lawyer who’s pursuing his own cases against the ride-share service, said Friday in a phone interview with Bloomberg. “The entire class was thrown under the bus and backed over.”

Shkolnik asked the San Francisco federal judge who presides over the class-action settlement to remove Shannon Liss-Riordan as lead attorney. He says she sold out her clients by accepting a payout for California and Massachusetts drivers that’s less than 10 percent of the value of their claims “while she walks away with $25 million.”

Liss-Jordan labeled the claims as “uninformed,” “untrue and malicious.”

Read the article.

Image created by Meredith Atwater for opensource.com

It is possible to be mistaken about the existence or terms of an agreement and for that mistake to thereby prove that no contract exists, writes Glenn West in Weil, Gotshal & Manges LLP’s Global Private Equity Watch.

As a general rule, being mistaken about whether you contracted, or what you contracted for, does not mean that a contract does not exist based upon the terms of the written agreement you signed. A party’s protestations that he or she did not understand the agreement, or believed it said something other than what it said, or that the words used in the agreement meant something other than what they are determined by a court to mean, will generally not be entertained by a court,” he wrote.

He discusses the case of Patterson v. CitiMortgage, Inc., which illustrates that “a unilateral mistake made by a party that is not made manifest to the other party will not be a basis for reformation because, absent knowledge of the mistaken belief, the other party is entitled to rely on the written agreement as manifesting the intentions of the otherwise mistaken party.”

Read the article.

Contracts containing uniform terms and conditions are a common feature of modern commercial life, write James F. Bogan III and William D. Meyer of Kilpatrick Townsend & Stockton LLP.

“Consumers are oftentimes required to agree to such contracts in order to buy a good or service, and the contracts typically contain provisions that benefit the business/seller and limit the legal remedies available to the consumer/buyer. While the law generally favors freedom of contract and supports the enforceability of uniform terms and conditions, a recent case applying New Jersey law shows that a business could be exposed to liability – including as a class action defendant – for simply including certain types of limiting clauses in consumer contracts,” they explain.

In their article, they discuss the case of Johnson v. Wynn’s Extended Care, Inc., in which the 3rd Circuit Court of Appeals ruled that a consumer has a valid cause of action against a business where its service contract simply contains a provision waiving attorneys’ fees and splitting costs.

Read the article.

eTERA Consulting, a data and technology management company, will present a complimentary webinar focused on eDiscovery and social media on May 19, 2016 at 11 a.m. EDT with panel speakers Bruce Malter, Emily Acosta and Michael Dwyer.

More than 45 percent of corporations have used publicly available social media content in litigation and fraud investigations, according to a study conducted in 2015 on social media analytics and eDiscovery. This one-hour webinar will provide attendees with information on when social media must be discovered, how social media is discovered, and how to enact processes and procedures to protect a corporation from becoming liable in a case, eTERA said in a release.

eTERA’s Bruce Malter, Vice President of Consulting Solutions; Segal McCambridge’s Emily Acosta, Esq., Associate; and Motorola Solutions’ Michael Dwyer, Project Manager in the Office of the Chief Administrative Officer, will discuss the following key topics:

• Current state and continued growth of social media
• Policies corporations could enact to reduce the risk of being held liable
• How to contain costs when faced with litigation that involves social media
• Information required from social media accounts in order to remain compliant with current regulations
• How to pull data from social media accounts for a case

This webinar is part of eTERA’s ongoing series of training and education initiatives to help legal professionals stay abreast of critical issues surrounding data management and eDiscovery.

Register for the webinar.

Speakers:

Bruce Malter, Vice President of Consulting Solutions, eTERA Consulting
Bruce Malter is responsible for developing eTERA’s client engagement program, as well as enhancing the company’s consulting service offerings, while growing the Midwest client base. Bruce brings over 25 years of experience with professional services companies and technology providers.

Emily Acosta, Esq., Associate, Segal McCambridge
Emily Acosta represents clients in complex commercial, employment and data security matters. Whether in the context of litigation or business counseling, Emily provides her clients with practical, simple solutions. She handles cases from initial client meeting to trial, and has substantial experience drafting and arguing procedural and dispositive motions, conducting depositions and preparing complex matters for trial.

Michael Dwyer, Project Manager in the Office of the Chief Administrative Officer, Motorola Solutions
Michael Dwyer is an experienced technology professional with over 20 years of legal analysis and management experience. Michael has extensive experience developing and implementing various corporate operational strategies, policies and platforms related to the legal function, including litigation preparedness plans, matter decision analytics and legal spend management.

Litigator Sean M. Whyte has joined Gardere Wynne Sewell LLP as a partner in the firm’s Dallas office. He joins the firm from Alston & Bird, where he has practiced since 2011.

In a release, the firm said Whyte’s litigation practice includes complex commercial litigation, consumer class actions and products liability. He has practiced before state and federal courts, with class-action experience that includes defending clients in cases involving Internet sales practices, consumer fraud and other federal statutes. He has also represented clients in regulatory and government investigative matters involving federal agencies, including the U.S. Department of Energy and the Federal Trade Commission.

“Sean’s versatile expertise will further allow our litigation group to offer the best solutions for our clients,” says Gardere Chair Holland N. O’Neil. “Our litigation partners are among the most respected in their field, and we are honored to have Sean join our team.”

While at Alston & Bird, Whyte worked on litigation that resulted in a victory in the U.S. 5th Circuit Court of Appeals in the first case to consider Texas’ Anti-SLAPP statute. He also helped win the first dismissal of a federal action under the Texas Health and Safety Code statute granting limited immunity to telecommunication providers related to 911 calls. He began his legal career at Jones Day in 2004 where he assisted on litigation resulting from Hurricane Katrina and the Deepwater Horizon oil spill.

Whyte received a juris doctor degree from The University of Texas School of Law in 2004, where he was an articles editor for the Texas Law Review. He completed course work for a doctorate degree in applied philosophy at Bowling Green State University and obtained a master’s degree from the same school in applied philosophy in 1996. He also earned his bachelor’s degree in philosophy in 1994 at West Virginia University. Prior to law school, Whyte served as a senior lecturer and adjunct philosophy instructor at universities in Ohio and Michigan.

In addition to his legal practice, Whyte serves as the co-vice chair of the Law Day Committee for the Dallas Bar Association. In 2014, he was named to the Texas Rising Stars list for his work in business litigation, and he was awarded Pro Bono Lawyer of the Year by the Dallas Volunteer Attorney Program in 2010.

“It is an honor to join Gardere’s well-known and respected litigation practice,” Whyte said. “I am proud to be joining this exceptional group of professionals.”

A federal bankruptcy judge in Dallas ruled late Tuesday that Dallas entrepreneurs Sam and Charles Wyly committed tax fraud when they created a series of offshore trusts in the Isle of Man in the 1990s to shield more than $1 billion for the family tax-free, according to a report in The Dallas Morning News.

There is “clear and convincing evidence” that the “heart of the Wyly offshore system had been established through deceptive and fraudulent actions,” wrote U.S. Bankruptcy Judge Barbara Houser.

“The IRS claims that the Wylys, who made billions of dollars growing and then selling Michaels Stores and Bonanza steakhouses, set up the series of offshore trusts in the Isle of Man in order to hide income from being taxed, while still using the money in the trusts to fund a lavish lifestyle,” the report says.

Under the ruling, Sam Wyly, the surviving brother, could be required to pay the IRS as much as $1.4 billion in back taxes and penalties.

Read the article.

Eric Schmidt took the witness stand Tuesday in Oracle’s copyright infringement lawsuit against Google, and he gave little ground during some tense exchanges with Oracle’s attorney, reports PCWorld.

In the suit, Oracle accuses Google of infringing its Java copyrights in the Android operating system. Schmidt is chairman of Alphabet, Google’s parent company.

Schmidt, the first witness to testify, was initially questioned by Google’s own attorneys, and testified that Google did not believe it needed a license to use 37 Java application programming interfaces for which Oracle owns the copyright. But on cross-examination, Oracle’s attorney asked him if Google’s APIs are treated as proprietary.

“Are you telling me that you don’t treat your APIs as proprietary?” Oracle attorney Peter Bicks asked Schmidt.

Read the article.

A Dallas appellate court considered whether California law governed contract and tort claims against California-based former employees who signed employment agreements containing a choice-of-law clause stating that Texas substantive law would apply, according to a report by Neil R. Burger in Carrington Coleman Sloman & Blumenthal, L.L.P.’s Sua Sponte blog.

“Applying the applicable provisions of the Restatement (2d) of Conflicts, the Dallas Court of Appeals affirmed the trial court’s ruling that California law would apply to the claims for breach of the non-competition provision and related tort claims, because of California’s more significant relationship to the dispute and because application of Texas law would contravene a fundamental policy of California,” he wrote.

The case is Merritt, Hawkins & Associates, LLC v. Caporicci.

Read the article.

Chief Justice John G. Roberts Jr. shrugged off any difficulty the Supreme Court might be having reaching consensus with an equal number of ideologically divided justices, reports The Washington Post.

“Roberts seemed careful not to say anything that would aid either Democrats demanding that the Senate vote on President Obama’s nominee, Judge Merrick Garland, or Republicans who say the next president should name the replacement for Justice Antonin Scalia,” according to the report by Robert Barnes.

The eight-justice court already has said it was deadlocked on several cases. And while it is true that only a small percentage of the court’s cases are decided 5 to 4, the most important ones often are, Barnes writes.

Read the article.

The Consumer Financial Protection Bureau proposed a rule Thursday that would ban arbitration clauses, which would affect the entire financial industry and the hundreds of millions of bank accounts, credit cards and other financial services Americans use, reports the Associated Press.

“The CFPB’s proposal does have a significant limitation,” the report explains. “The ban would only apply when consumers want to create or join a class-action lawsuit. Financial companies will still be able to force individuals to settle disputes through arbitration; however cases where a lone customer wants to sue his or her bank are far less common.”

The financial industry claims that arbitration is a more efficient way for customers to resolve disputes, and a study commissioned by the CFPB in lends that claim some credence. “However, when large numbers of customers were negatively impacted by the same issue, the same study showed arbitration clauses hinder the ability for customers to seek relief,” the AP report says.

Read the article.

Financial services lawyers are predicting that efforts by the Consumer Financial Protection Bureau to prevent companies from keeping consumer complaints out of a courtroom will wind up being challenged in court, reports The Wall Street Journal.

A rule proposed by the agency Thursday would prohibit financial companies from using mandatory-arbitration clauses as a way to block class-action lawsuits, according to the report. “While companies would still be able to require consumers to enter arbitration to resolve individual disputes, the elimination of the no-class arbitration provisions would strip away incentives for companies to include arbitration clauses in their contracts. And many are predicting that as a result, companies would discontinue using them.”

But the CFPB counters that class actions are a “more effective means for consumers to challenge problematic practices by … companies” than arbitration, which it says gives financial service providers an unfair advantage over customers.

Read the report.

A federal judge in San Diego said he wanted a trial by the middle of this year in a lawsuit against Donald Trump over the now defunct Trump University, according to a report by ABC News. That was before the real estate mogul appeared headed for the Republican presidential nomination.

“U.S. District Judge Gonzalo Curiel is expected to address the trial’s timing at a hearing Friday in San Diego. Trump’s lawyers, who have put the candidate on a list of witnesses who may testify, have signaled opposition to a trial while Trump is in the race,” the report says.

“This will be a zoo if it were to go to trial,” Trump lawyer Daniel Petrocelli said at a hearing in March.

Read the article.

The U.S. Supreme Court has rejected a challenge by business groups to Seattle’s law raising its minimum wage to $15 an hour, a move echoed by other locales, in a case focusing on how the ordinance affected local franchises like McDonald’s, reports Reuters.

The high court action left intact a lower court ruling backing the measure.

Reuters says supporters of the wage raise see the ruling as a defeat for “the big business lobby” that has taken aim at minimum wage hikes.

Read the article.

Los Angeles-based Quinn Emanuel law firm and two of its partners sued the estate of high-profile attorney Hillel Chodos, claiming the famous litigator crossed the line in one of the final cases of his career, reports Courthouse News.

Chodos, one of the highest-paid attorneys in Los Angeles, represented celebrities and politicians in a career in which he handled more than 1,000 cases before he died at 81 in 2015.

Quinn Emanuel Urquhart & Sullivan and its attorneys Steven Madison and Michael Lifrak sued Chodos’ estate and its executor, Rafael Chodos, on April 22 in Superior Court.

The complaint filed in Los Angeles Superior Court stems from a case that began in 2009, when Chodos was representing Karen Christiansen in a lawsuit against the Beverly Hills Unified School District, represented by Quinn Emanuel, the report says. Chodos filed a suit against the firm and the school district, alleging malicious prosecution, fraud and corruption. The sole purpose of the suit was to prevent Quinn Emanuel from continuing to represent the school district, giving him an advantage, the complaint says.

Read the article.

By Mehjabeen Rahman
The Expert Institute

Being familiar with objections to expert testimony is the best way to protect the credibility of your expert’s testimony and also challenge that of the opposing expert’s. From discovery to trial, there are several occasions where objections as to an expert’s opinion are proper. Below is a list of possible objections to look over before your next case involving an expert witness.

Deposition Objections

An expert’s deposition is an important part of their overall testimony. In addition to its scientific and technical nature, it is sworn testimony that can be used to later impeach an expert witness at trial. It is important to note, however, that a deposition is still different than trial and there are a number of objections that can be properly raised with respect to an expert’s deposition testimony. For example, counsel can object when a question asks the expert for:

1. Legal analysis over factual information

Questions that ask expert witness opinions about the legal analysis of the case rather than purely factual information are objectionable on the grounds that the testimony qualifies as attorney work product protected under FRCP 26(b)(4)(C). The Advisory Committee notes “[t]he refocus of disclosure on “facts or data” [changed from “data and other information” in 1993] is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions of counsel.”

2. Privileged information

It is important to note that any objection based on privilege must be made or it is waived for the party that failed to raise it on the record.

3. Testimony outside the scope of expert’s assigned task

As a general matter, questions that attempt to elicit information outside the scope of the witness’ expertise are improper. Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 14 (N.D. Ill. 1972). For example, in a medical malpractice case involving a faulty device, an expert may be familiar with other similar devices and face questions about his or her opinion about devices from other manufacturers. When appropriate, counsel can make the objection that the question is outside the scope of the expert’s assigned task.

4. Confidential information protected from persons at the deposition

Under FRCP 26(c)(1), a party can move for a protective order of parts of an expert’s testimony that may require disclosure of sensitive and protected information. For example, Rule 26(c)(1)(G) says “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including…requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” This is an important rule to remember when dealing with terms of a business contract or client medical history. The expert witness may answer when the certain persons designated in the protective order leave the deposition room.

5. Answers already provided by the expert earlier in the deposition

“Asked and answered” is a standard objection during depositions when the deponent is repeatedly asked a question they have answered. This is especially important if the question is asked for any other purpose except clarification of earlier testimony, for example if the question is repeated to harass or otherwise embarrass the witness.

6. Mischaracterization of earlier testimony

In some instances during an expert’s deposition, opposing counsel may phrase a question by misstating the expert’s earlier testimony. Especially where scientific or otherwise technical data and conclusions are concerned, it is important to clear these mischaracterizations up on the record when they occur.

7. Leading or coaching of the expert witness by opposing counsel

Another standard objection when an expert is under direct examination by opposing question. The expert is there to testify to factual matters and questions presented should not presuppose or suggest the answer. This sometimes occurs when the expert asks the interviewer for clarification about a question.

8. Improper form of a question

“Objection to form” is a vague and broad objection, commonly raised during depositions. Improper form objections can fall into many categories, where some jurisdictions require the objecting party to note a specific ground and others allow a general “objection to form.” A common example is when an expert is asked a compound question, meaning a series of multiple questions without giving the witness an opportunity to answer each individually. Whenever an objection to form is raised, the witness is still required to answer but the objection notes for the record that the form of the question was improper for being:

• Compound
• Prejudicial/Misleading
• Ambiguous
• Argumentative
• Calling for speculation
• Confusing

9. Opposing party’s failure to compensate the expert

The federal rules require that experts be properly compensated for providing deposition testimony under FRCP 26(b)(4)(E)(i)-(ii). When the deposition is at the request of opposing counsel, an objection is proper where an expert has not been fairly compensated for the separate time and work to prepare specifically for the deposition.

Pretrial and Trial Objections

1. Motions in limine

Typically, motions to exclude or otherwise challenge expert testimony will be raised during pretrial proceedings via motions in limine. The federal rules govern expert witness testimony under Rule 26 and provide the grounds for which an expert’s testimony can be excluded, including:

• For failure to properly designate an expert witness
• Failure to submit the expert’s report in a timely manner
• Failure to submit required documents like the expert’s CV or publications
• Failure to provide any notes or related material used by expert to form the expert opinion

2. Expert witness will not assist the trier of fact

Under the Federal Rules of Evidence 703, an expert’s opinion is admissible only if the witness’ expertise and testimony will assist the trier of fact in understanding the case.

3. Expert lacks the proper qualifications

Scope: A scientific background is not required for an expert to qualify as an expert witness. However, it is important to know the scope of expert’s knowledge as it applies to the case. For example, an individual that was a teacher for deaf children for over 30 years does not automatically render the witness an expert in deaf people’s heightened sense of sight as a general fact.

Credentials: If an expert’s particular background or expertise is not appropriate for the issues on which he or she is expected to testify, then a motion in limine is proper. Similarly, if there are issues with the representations on the expert’s CV, these are often raised pretrial as well.

4. Reliability of principle and methods (Daubert challenges)

Expert report methodology: A Daubert motion is the most direct way to challenge the reliability of an expert’s opinion. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny set the standards for the admissibility of expert reports and testimony. The Daubert Court set out factors to be considered in determining whether an expert’s report is reliable:

1. whether the expert’s theory can and has been tested;
2. whether the theory has been subjected to peer review and publication;
3. the known or potential rate of error of the particular scientific technique;
4. whether the technique is generally accepted in the scientific community

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) expanded Daubert to include non-scientific expert testimony.

In 2000, the FRE 702 was changed to essentially codify the Daubert factors. For tips on successfully handling Daubert challenges, look here.

If the objections above are not raised in a pre-trial motions, they may still be raised when the expert witness is tendered at trial. Admissibility of expert witness testimony is governed by FRE Rules 702-705.

In addition to challenging the witness’ qualifications, scope of expertise and and reliability of principles and methods used to form the opinion, counsel can object when a question asked at trial:

1. Assumes facts not in evidence
2. Lacks the proper foundation
3. Seeks an answer already admitted by stipulation. See FRE 403.

Expert witnesses are retained to explain technical or scientific subject matter and help the trier of fact to understand certain aspects of the case. FRCP 26 protects attorney-expert communications and governs the disclosure of expert witness testimony. FRE Rules 702-705 govern the admissibility of expert opinions.

Recommind, a leader in advanced analytics software, today announced that its alliance partner, Hire Counsel, has offered a unique fixed-price document review model to solve price uncertainty issues in eDiscovery. The new pricing model strengthens Recommind’s Alliance Partner Program, which is a global ecosystem of specialized services providers powered by Recommind’s award-winning Axcelerate eDiscovery and investigations platform.

By combining continuous machine learning, pervasive project management and relevancy predictions generated by Axcelerate, Hire Counsel has been able to deliver first pass review at a fixed price, ensuring superior results on budget, on time, Recommind said in a release. Given the successful implementation in its Detroit office, Hire Counsel will make the offering available in its review centers across the country, eliminating the risk of price overruns.

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From two different courts in two different states on two very different claims come the same concept: an agreement to arbitrate may be binding even without a signed contract, according to a report by Stan Martin on the Commonsense Construction Law website.

“One comes via an unsigned law firm partnership agreement, and the other via an agreement placed on the wrapping of a bundle of roofing shingles, held to be binding on the property owner who hired the contractor who engaged, in turn, the subcontractor purchasing the shingles,” he writes.

“These cases serve as a reminder that (1) a person or company can be bound by a contract without signing that contract, based on other actions, and (2) if that (unsigned) contract calls for arbitration, the person/company is bound to arbitrate disputes that arise under the contract.”

Read the article.