Expert Analysis

• Ch. 11 Ruling Offers Lessons On Avoiding Deal Dismantlement

  

  A Mississippi bankruptcy court's recent ruling in Express Grain Terminals illustrates how memorializing a deal in multiple contracts can affect a debtor's ability to dismantle that deal in bankruptcy, and offers some drafting lessons, says Lisa Tancredi at Womble Bond.

• Opinion

  Remote Hearings Should Be The Default In Civil Litigation

  

  The Federal Rules of Civil Procedure impose an affirmative duty on courts to eliminate undue cost, so remote hearings should be the default in civil litigation even after the pandemic, while in-person hearings must justify their existence, says Joshua Sohn at the U.S. Department of Justice.

• Attorneys Today Need To Depose Like There's No Tomorrow

  

  With people leaving the workforce in droves amid the “Great Resignation” and with younger workers less inclined to stay in one place for long, attorneys need to adjust their deposition strategies to minimize risks of losing crucial witnesses who may move on from a client or opponent company before a case goes to trial, say Anthony Argiropoulos and Maximilian Cadmus at Epstein Becker.

• How Attorneys Can Ethically Terminate A Client Relationship

  

  As illustrated by Dentons’ recent request to withdraw from its representation of a casino mogul in Bartlit Beck v. Okada, terminating client relationships prematurely can be tricky and met with skepticism in the courts, but following certain best practices can make the process a little less painful for everyone involved, says Trisha Rich at Holland & Knight.

• Opinion

  Bankruptcy Is Optimal Venue For Mass Tort Cases

  

  While the recent bankruptcies of Johnson & Johnson, Purdue Pharma and Boy Scouts of America have sparked debate about whether bankruptcy court is the best venue for resolving mass tort claims, bankruptcy's structural, procedural and substantive benefits make it a superior choice over multidistrict litigation, says Samir Parikh at Lewis & Clark Law School.

• The Key To Turning Solid Briefs Into Winning Briefs

  

  Even a well-written brief can omit key facts, make tone-deaf legal arguments or ignore practical implications, so lawyers drafting motions and appeals should incorporate feedback processes akin to moot courts and jury research, says Andrew Nichols at Charis Lex.

• Opinion

  Scouts Mass Tort Shows How Victims Can Be Left Behind

  

  A number of recent mass-tort cases, including pending litigation against the Boy Scouts of America over sexual abuse claims, demonstrate how plaintiffs lawyers' efforts to make cases bigger and more lucrative can undermine the actual interests of victims, says O.H. Skinner at Alliance for Consumers.

• Walter Dellinger's Little-Known, Outsize Impact On Legal Aid

  

  The late Walter Dellinger’s pro bono work distinguishes him forever, but his greatest moment involved a little-known U.S. Supreme Court case, Brown v. Legal Foundation of Washington, which helped preserve one of the largest sources of legal aid funding — and Dellinger’s arguments were as magical as the program he helped save, says David Lash at O'Melveny.

• Why I'll Miss Arguing Before Justice Breyer

  

  Carter Phillips at Sidley shares some of his fondest memories of retiring Justice Stephen Breyer both inside and out of the courtroom, and explains why he thinks the justice’s multipronged questions during U.S. Supreme Court oral arguments were everything an advocate could ask for.

• Recent Rulings Show Lawyer Criticism Of Judges Is Perilous

  

  Although many lawyers may believe the First Amendment broadly protects their opinions and good faith criticism of judges, recent sanctions decisions from courts across the country suggest lawyers are at greater risk of discipline for criticizing judges than they have been in the past, says John Harris at Frankfurt Kurnit.

• Breyer's Role In Courthouse Design Sets A Judicial Template

  

  As U.S. Supreme Court Justice Stephen Breyer prepares to retire, his pivotal role two decades ago in the design of the award-winning John Joseph Moakley U.S. Courthouse in Boston demonstrates how the judiciary can engage in civic architecture and specifically the design of courthouses, says Kate Diamond at HDR.

• Opinion

  J&J Can't Be Allowed To Dodge Civil Justice With Bankruptcy

  

  Next week, the New Jersey Bankruptcy Court should not allow Johnson & Johnson to use the bankruptcy system to derail tens of thousands of talcum powder lawsuits, or it could lay the groundwork for other thriving companies to circumvent the civil justice system, say attorneys at Tycko & Zavareei.

• BigLaw Must Nix All-Or-Nothing Work Model To Retain Talent

  

  Record numbers of workers quitting in the “Great Resignation,” paired with the growing success of nontraditional and freelance legal services, show that BigLaw’s management committees must reconsider rigid billable hour expectations and be open to part-time and noncontinuous work arrangements, says Hui Chen at Hui Chen Ethics.

• Opinion

  Biden's Supreme Court Nominee Should Have 5 Key Qualities

  

  In fulfilling his campaign promise to nominate a Black woman to the U.S. Supreme Court, President Joe Biden should look for candidates with experience as a state trial judge, a background in public education and a few other important characteristics, says Benes Aldana, president of The National Judicial College.

• Using 3rd-Party Releases In Chapter 11 After Court Pushback

  

  A Virginia federal court recently vacated the Mahwah Bergen bankruptcy confirmation order for containing impermissible nonconsensual third-party releases, representing another blow from federal judges to the long-used bankruptcy tool and laying out stringent guidelines for its usage, say attorneys at Schulte Roth.