Expert Analysis

• 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.

• The Legal Issues Flying Around The Evolving Drone Market

  

  As the number of drone registrations is expected to more than double over the next three years, the industry faces new risks and considerations related to privacy, Fourth Amendment, criminal, evidentiary, First Amendment, and insurance litigation, say attorneys at Covington.

• 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.

• Circ. Split May Have Big Effect On SEC Disgorgement Remedy

  

  The Second Circuit’s recent U.S. Securities and Exchange Commission v. Ahmed ruling follows equitable limitations on disgorgement imposed by the U.S. Supreme Court despite subsequent congressional amendment, provides guidance on rules that govern the remedy, and sets up a significant circuit split with the Fifth Circuit, says Elisha Kobre at Bradley Arant.

• 3 Ways Courts Approach Patent Eligibility At Trial And After

  

  Sorin Zaharia and Mark Liang at O’Melveny analyze all 36 district court cases where patent eligibility under Section 101 was decided at trial or post-trial after Alice, specifically focusing on how different districts address step two of the Alice inquiry, as well as the impact of each approach on the outcome.

• Opinion

  Supreme Court Must End Acquitted Conduct Sentencing

  

  While all three branches of government have shown reluctance to address the issue of acquitted conduct sentencing, including the U.S. Supreme Court in its recent denial of certiorari in a case addressing the topic, the court must — as only it can — put an end to this unconstitutional practice, say Alan Ellis at the Law Offices of Alan Ellis and Mark Allenbaugh at Sentencing Stats.

• The Supreme Court Is At War With Itself On Extraterritoriality

  

  The U.S. Supreme Court recently issued two conflicting pronouncements about the presumption against extraterritoriality without acknowledging the tensions between these decisions, which leaves lower courts, practitioners and potential defendants in the dark, says Jonah Knobler at Patterson Belknap.

• OpenSea Verdict Backs DOJ Digital Asset Insider Trading View

  

  The recent conviction of a former OpenSea manager in New York federal court confirms, for the first time, that the U.S. Department of Justice can prosecute insider trading activity involving digital assets under the traditional fraud statutes, irrespective of how an asset is legally classified, say attorneys at BakerHostetler.

• Copyright Trial Defense Tips From 'Thinking Out Loud' Case

  

  The twofold defense strategy that earned Ed Sheeran his recent "Thinking Out Loud" copyright trial victory revealed the strength of a musician's testimony, the importance of a consistent narrative and the power of public policy arguments when combating infringement claims, say Jonathan Phillips and Latrice Burks at Larson.

• 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.

• High Court 'Purely Legal' Appeal Ruling Raises New Questions

  

  The U.S. Supreme Court’s unanimous May decision in Dupree v. Younger, holding that “purely legal” arguments rejected at summary judgment can be appealed without post-trial motions, resolves a circuit split but creates new questions that appellate counsel must now carefully navigate in each circuit, say attorneys at DLA Piper.

• The Wild West Of Event Windows In Securities Class Actions

  

  Securities fraud class action verdicts are rare and often fail to resolve critical questions on loss causation standards, meaning the uncertainty around multiday event windows implies a greater risk for plaintiffs lawyers — but a potentially high reward if the battle of experts goes their way, say Lauren Goldman and Alexander Law at Boies Schiller.

• 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.

• Challenging Gov't Use Of Nontraditional White Collar Tools

  

  As the government prosecutes white collar cases with an ever-increasing reliance on nontraditional tools — including wiretaps, cooperating witnesses and racketeering charges — defense attorneys must understand how to mount effective defenses against such tools, say Glenn MacKinlay and Dean Elwell at McCarter & English.

• 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.