Expert Analysis

• 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.

• Durham Hearing Shows Common Cross-Examination Errors

  

  Trial attorneys can glean several key cross-examination lessons from the mistakes made by several members of the U.S. House of Representatives during a recent hearing on special counsel John Durham’s FBI probe, say Luke Andrews and Asha Laskar at Poole Huffman.

• Opinion

  When Corporate Self-Disclosure Threatens Individuals' Rights

  

  The prosecution of former Cognizant executives in New Jersey federal court demonstrates how the U.S. Department of Justice’s corporate enforcement policy can contravene the constitutional rights of individual defendants who are employed by cooperating companies, says Gideon Mark at the University of Maryland.

• High Court Ruling Boosts New York Times v. Sullivan Vitality

  

  The U.S. Supreme Court's recent decision in Counterman v. Colorado, that the First Amendment requires a recklessness standard for true threats prosecutions, shows that an outright overruling of New York Times v. Sullivan is now unlikely despite prior dissenting opinions urging the court to revisit its actual malice standard, say attorneys at Davis Wright.

• Strategies For Conducting More Effective Plea Negotiations

  

  The sentencing of “Varsity Blues” scandal architect Rick Singer earlier this year provides a helpful case study on the plea bargain process, spotlighting three key negotiation concepts and seven tactics for defense attorneys, say lawyers at Riley Safer.

• 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.

• Equinox Bias Verdict Shows Swift Employer Response Is Key

  

  A nearly $11.3 million jury verdict against Equinox in New York federal court shows just how high the stakes are for employers dealing with harassment and discrimination in the workplace, and how important consistent investigation and discipline are when responding to individual internal complaints, says Jennifer Huelskamp at Porter Wright.

• 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.