Expert Analysis

• Operant Conditioning: Techniques To Prepare Your Witness

  

  Attorneys can apply operant conditioning principles, such as positive and negative reinforcement, during witness preparation sessions to enhance the quality of witnesses’ deposition and trial testimony and counter the potential influence of opposing counsel, say Bill Kanasky and Steve Wood at Courtroom Sciences.

• Operant Conditioning: Tactics That Can Derail Your Witness

  

  There are many ways opposing counsel may use operant conditioning principles, including rewards and punishments, to obtain damaging testimony from your witnesses, so understanding this psychological theory is key, say Steve Wood and Bill Kanasky at Courtroom Sciences.

• Perspectives

  Mallory Gives Plaintiffs A Better Shot At Justice

  

  Critics of the U.S. Supreme Court's recent decision in Mallory v. Norfolk Southern claim it opens the door to litigation tourism, but the ruling simply gives plaintiffs more options — enabling them to seek justice against major corporations in the best possible court, say Rayna Kessler and Ethan Seidenberg at Robins Kaplan.

• Courts Can Overturn Deficient State Regulations, Too

  

  While suits challenging federal regulations have become commonplace, such cases against state agencies are virtually nonexistent, but many states have provisions that allow litigants to bring suit for regulations with inadequate cost-benefit analyses, says Reeve Bull at the Virginia Office of Regulatory Management.

• Micromobility Can Lead To Macro Liability For Cities, Cos.

  

  E-bike and scooter manufacturers and rental operators, as well as the cities that host such services, must be aware of the major litigation risk associated with the growing number of serious accidents and injuries involving such micromobility devices — and should track emerging regulations in this area, says Arturo Aviles at Segal McCambridge.

• Tales From The Trenches Of Remote Depositions

  

  As practitioners continue to conduct depositions remotely in the post-pandemic world, these virtual environments are rife with opportunities for improper behavior such as witness coaching, scripted testimony and a general lack of civility — but there are methods to prevent and combat these behaviors, say Jennifer Gibbs and Bennett Moss at Zelle.

• Time For Courts, Attorneys To Use Amended Evidence Rule

  

  Though recent amendments to Federal Rule of Evidence 702, clarifying courts’ gatekeeping role in admitting expert witness testimony, will not formally go into effect until Dec. 1, practitioners should use the amendments now to weed out flawed jurisprudence of the past and prevent it moving forward, say Eric Lasker at Hollingsworth and Lawrence Ebner at the Atlantic Legal Foundation.

• Opinion

  Mallory Opinion Implicitly Overturned NC Sales Tax Ruling

  

  The U.S. Supreme Court recently declined to review Quad Graphics v. North Carolina Department of Revenue, but importantly kicked the legs from under Quad's outcome a week later, stating in its Mallory decision that the high court has the prerogative to overrule its own decisions, says Richard Pomp at the University of Connecticut.

• Tide May Be Turning On Texas Two-Step Bankruptcy Strategy

  

  Recent developments in several high-profile bankruptcy cases suggest that the use of the Texas Two-Step to shield solvent companies from tort claims may be falling out of favor, but until the U.S. Supreme Court hears one of these cases the strategy will remain divisive and the subject of increased scrutiny, say attorneys at Rivkin Radler.

• Level Up Lawyers' Business Development With Gamification

  

  With employee engagement at a 10-year low in the U.S., there are several gamification techniques marketing and business development teams at law firms can use to make generating new clients and matters more appealing to lawyers, says Heather McCullough at Society 54.

• Mallory Ruling Leaves Personal Jurisdiction Deeply Unsettled

  

  In Mallory v. Norfolk Southern Railway, a closely divided U.S. Supreme Court recently rolled back key aspects of its 2017 opinion in Daimler AG v. Bauman that limited personal jurisdiction, leaving as many questions for businesses as it answers, say John Cerreta and James Rotondo at Day Pitney.

• Handling Hostile Depositions: Keep Calm And Make A Record

  

  When depositions turn contentious, attorneys should, among other strategies, maintain a professional demeanor and note any objectionable conduct on the record, thereby increasing chances of a favorable outcome for the client while preserving the integrity of the legal process, say attorneys at Steptoe & Johnson.

• Using Counterfactuals To Shift Jurors' Hindsight Bias

  

  Counterfactuals can reduce or increase jurors’ hindsight bias by helping them imagine how events could have unfolded differently, but before attorneys make use of this key tool at trial, they should keep several important principles in mind, say Merrie Jo Pitera and David Metz at IMS Consulting, and John Ursu at Faegre Drinker.

• 5 Ways Firms Can Rethink Office Design In A Hybrid World

  

  As workplaces across the country adapt to flexible work, law firms must prioritize individuality, amenities and technology in office design, says Kristin Cerutti at Nelson Worldwide.

• Opinion

  Bar Score Is Best Hiring Metric Post-Affirmative Action

  

  After the U.S. Supreme Court's ruling striking down affirmative action admissions policies, law firms looking to foster diversity in hiring should view an applicant's Multistate Bar Examination score as the best metric of legal ability — over law school name or GPA, says attorney Alice Griffin.