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The Nebraska Litigation & Trial Advisor

Red Sox Cryptonite – .500

By Kyle Wallor on Posted in Sports

After noting the Sox rough start to the season two weeks ago, I suggested rays of sunshine were creeping in due a 7-3 record over the last 10 with the Sox sitting at 11-13.  Apparently, approaching the .500 mark is just too much for the Sox to handle.  Over the course of the season, the Sox have been able to drag themselves close to .500 on three occasions, April 15 (4-5), April 30 (11-11) and May 15 (17-19).  Two of those occasions have been followed by horrific losing streaks.  They lost five straight from April 16 to April 21 to drop back down to 4-10.  They lost five more from May 1 to May 6 to drop back to 11-16.  One thing is for certain, this does seem to be a streaky team.  They have four losing streaks of three games or more, and three winning streaks of three games or more.  So, the question becomes is the five game winning streak from May 11 to May 15 going to be followed by another horrific slide?  Based on the Sox splitting two with the Rays since, we will just have to see if they streak in one direction or another.

There have been some bright spots to consider during the last two weeks, Will Middlebrooks and Daniel Nava.  Even though Middlebrooks has leveled off, he has had an impressive run since being called up after Kevin Youkilis was placed on the 15 Day DL on May 2.  Over that time, Middlebrooks has posted a .259 average, 4 home runs (two in one game), 14 RBI, a .295 OBP, a .552 SLG and a .847 OPS.  Despite GM Ben Cherington indicating Youkilis would not lose his job to an jury, Middlebrooks has been so good (and Youkilis so bad before the DL) there are number of people who feel the Sox should find a way to keep Middlebrooks in Boston even if that includes trading Youkilis. 

Nava, a prized outfield prospect of the Red Sox, was called on up May 10 and in 8 games has posted a .409 average,  1 home run, 7 RBI, a .594 OBP, a .727 SLG and a 1.321 OPS.  Obviously he is on a hot streak and will cool down a bit.  If Nava stays as remotely as hot as he has been, Marlon Byrd might find himself designated for assignment when Jacoby Ellsbury is ready to return. 

The Sox pitching appears to have improved in May with team ERA of 3.56 and WHIP of 1.28.  Jon Lester had a one run complete game in the last week.  Josh Beckett had a bounce back start of seven innings of shutout ball one game after golfgate. 

My prediction stands, third or worst in the AL East.  As the winning streaks show, this team has the talent to prove me wrong.

The Art of Jury Selection

By Brian J. Brislen on Posted in Voir Dire

This post is authored by Dave Schmitt, a partner in LDM’s litigation department.  Mr. Schmitt draws upon his years of trial experience to discuss some of his thoughts on jury selection and provide a tool for selecting your next jury.

By: Dave Schmitt:

Parties resolve disputes through litigation and the trial process.  Typically a dispute in a legal case is decided by a jury rendering a verdict at the conclusion of the trial.  The individuals serving on the jury are sworn to give a verdict on the basis of the evidence submitted to them in court.  Depending on the jurisdiction, a jury may be comprised of up to 12 people.  The art of jury selection is the process by which jurors are selected from a large pool of individuals and sworn to return a fair and just verdict.  The process of jury selection, in legal terms, is known as “voir dire.”  The origin of the term voir dire is Anglo-French and means “to speak the truth.”

At the beginning of a trial, attorneys will question potential jurors in an effort to determine the existence of any bias or prejudice that would prevent the individual from serving on the jury in a fair and impartial manner.  Attorneys typically seek to obtain credibility with the potential jurors by explaining the voir dire process is not meant to pry into their lives.  Establishing credibility is important to encourage juror candor and obtain complete, honest answers.

Attorneys are each given a specified number of preemptory challenges to exercise at the conclusion of questioning.  An attorney exercises preemptory challenges to exclude those individuals the attorney believes, based on answers given, could be biased and detrimental to that attorney’s client.  I utilize an outline which contains areas of questioning I address as a defense attorney.    Attorneys will typically want to ask additional questions tailored to the specific case.  However, this outline is a useful tool to elicit potential juror bias or prejudice and will assist you in the art of jury selection.

Cyber Gripe – Opinion, Defamation or Outright Harassment

By Kyle Wallor on Posted in In-House Counsel

As the target of a local a cyber griper, I have taken interest in reading about cyber activities taken against individuals and businesses.  The activities can range from posting complaints on review websites all the way to creating websites for the purpose of complaining about a person or a business.  Just last month, Jicheng “Kevin” Liu, a reportedly prolific burglar suspected in some 90 burglaries in the Chicago area, was also reported to be a prolific cyber-stalker.  His cyber activities included: (1) the destruction of an eBay business through flooding consumer websites with complaints about the owners of the business; (2) targeting the professional and criminal reputation of two persons he wrongfully believed caused his arrest; and (3) running on-line ads claiming an accuser of his performed acts of prostitution out of her home. 

In this day and age, the internet is largely replacing print media and persons often resort to search engines to find out information about a person or business they may be considering for a particular job or business opportunity.  As a result, anyone with a keyboard and access to the internet may have the ability to affect the online reputation of a person or a business.  With little regulation and oversight, the internet is ripe for abuse and vigilantism.  This is exactly why a niche business has been established for protecting your on-line reputation.  In fact, there is website dedicated to anti-bullying and internet safety. 

From the perspective of the civil arena and assuming the allegations about Mr. Liu’s cyber activities are accurate, the line into defamation has easily been crossed.  The more difficult questions arise when persons offer “opinions” about a person or a business.  As a result, courts often have to balance freedom of speech against reputation.  Over the next couple of weeks, we will take a look at these issues and how the courts are handling them.

College Baseball Season Winding Down

By Brian J. Brislen on Posted in Sports

The college baseball season is nearing its post season.  Here in Omaha we celebrate that end with the exclamation point that is the College World Series.  The CWS is set to begin its second season in the new TD Ameritrade Park in downtown Omaha, just north of the Old Market District.  Over the past decade Nebraskans have been able to cheer on local baseball teams as they made a real push to reach the CWS.  Nebraska succeeded in making the CWS for the first time in 2001 and followed that up with appearances in 2002 and 2005.  Creighton has made the NCAA tournament in 2000, 2005, 2007 and 2011 though it has not made it through to the CWS since 1991.

This year both Creighton and Nebraska are stuggling to make the post season.  Creighton, remains in last place of the Missouri Valley Conference with a 5-12 recored (20-23 overall).  Nebraska, meanwhile, has fallen into a tie for seventh place in the Big Ten Conference at 9-9 (29-19 overall).  These two teams recently completed the last game in their anual three game series.  Creighton pounded the Huskers 8-1 to avoid being swept by NU in the season series.

Creighton will play non-conference games this weekend against Dallas-Baptist.  NU plays Minnesota this weekend in Lincoln in what is its second to last conference series.  Only the top six teams will make the Big Ten Tournament.  Sitting tied for senventh makes this an important series for NU.

Data Protection and Consumer Notification (Part III)

By Brian J. Brislen on Posted in In-House Counsel

Last week I discussed what type of information is considered “personal information” under the Consumer Notification of Data Security Breach Act of 2006; Nebraska Statutes § 87-801.  If you are storing “personal information” which is subject to a data security breach, the Act requires that the person or entity storing that information provide notice of the breach to those whose personal information is being stored.  How do you give notice and meet the requirements of the Act?

The Act says notice can be written, telephonic or, under certain circumstances, electronic.  Of course, as always, there are exceptions to these types of notice.  In this case, “substitute notice” may be given under the following circumstances:

  1. if the notice would cost in excess of $75,000;
  2. if there are more than 100,000 residents to be notified; or
  3. if the individual or entity does not have sufficient contact information to provide notice;

So, the exception begs the questions; what is substitute notice?  It requires these things:

  1. E-mail notice (if the individual or entity has e-mail addresses;
  2. Conspicuous posting of the notice on a website if one is maintained;
  3. Notice to major statewide media outlets.

In the case of a small business (ten or fewer employees) which can demonstrate that the notice will cost more than $10,000 there is an extra step to substitute notice.  In addition to the above, such an entity must take out a paid advertisement in a local newspaper that is distributed in the geographic area in which the entity is located.  The ad must cover at least one-quarter of a page in the newspaper and must be published once a week for three consecutive weeks.

Complying with the Act will not cure all potential liability in the event you suffer digital security breach.  Compliance will, however, reduce the headache that is associated with such an event.

Litigators Can Learn From the Stanley Cup Playoffs

By Kyle Wallor on Posted in Trial

The National Hockey League is presently holding the Stanley Cup Playoffs.  As you may know, professional hockey is a an extremely physical sport which often includes physical confrontation. This is because all professional hockey players ferociously compete to secure the lone goal of each player in the NHL, having his name etched on the Stanley Cup alongside every other Stanley Cup Champion. Despite the physical and emotional intensity of competing in such an arena, the National Hockey League has a long standing tradition whereby both teams line up in the the middle of the rink to shake each others’ hands at the end of each playoff series.

Once aspiring lawyers enter law school, they learn of their ethical obligation to zealously represent each client within the bounds of the law.  Ethics professors often attempt to demonstrate this obligation with examples of legal positions which are distasteful to public and the attorney presenting the position.  In almost each example, the distasteful position is successful.  More importantly, it is counsel’s ethical and professional obligation to advance those very positions.   If an attorney fails to do so, it is a violation the ethical and professional duty owed to the client.  After entering private practice, we have to fulfil this obligation and deal with professional pressures of successfully representing clients.  Due to the adversarial nature of litigation and this obligation, litigators can find themselves in hard fought cases which sometimes become contentious.

Fortunately, the practice of litigation in Omaha, Nebraska generally lends itself to cordial and professional interaction.  As a result, the completion of case can result in a handshake or a phone call of congratulations regardless if the result is a jury verdict, a ruling from a court or a settlement.  However, the handshake or phone call is not the absolute tradition it is during the NHL Playoffs.  All litigators, in fact the practice of law as a whole, would be well served to follow the lead of the NHL regardless of the sting of the result and end each matter with a heartfelt handshake of congratulations.

Law Day and Avenger Day: What Superheroes Teach us About the Law

By Brian J. Brislen on Posted in Sports, Uncategorized

I am taking this opportunity to add a second post on a Friday.  This post is a break from the sports themed Friday format of this blog.  And the break is for good reason.  Actually two good reasons (but one better than the other).  First and foremost, this week (on May 1) marked the annual “Law Day” celebration.  As my colleague, Jason Grams, explained to a class of fifth graders to which he spoke as part of the Omaha Bar Association’s Lawyers in the Classroom activity, Law Day was established by proclamation in 1958 by President Dwight Eisenhower.  Each succeeding president has issued a proclamation on May 1 in honor of law day.  This year, President Obama recalled the purpose of President Eisenhower’s 1958 proclamation as “fitting that the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice, and equality under law which our forefathers bequeathed to us.”  President Obama, however, did not mention Eisenhower’s other reasons for establishing Law Day; that law “distinguishes our governmental system from the type of government that rules by might alone,” that our government serves “as a beacon light for oppressed peoples of the world,” or that “universal application of the principle of the rule of law in the settlement of international disputes would greatly enhance the cause of a just and enduring peace.”

On Wednesday, some of my colleagues and I attended the Omaha Bar Association’s celebration of Law Day.  It was a great event that was well attended by the members of the Omaha Bar.  The legal system in this country is far from perfect but, as this year’s Law Day theme (No Courts/No Justice/No Freedom) reminds us, it is essential to maintain the integrity of our Country.

The second reason to deviate from our Friday sports related theme is that today is the official U.S. release of the much anticipated Avenger’s movie.  Avenger’s all over the country are assembling at movie houses to take in one of the most anticipated movie events in a long time.  What does that have to do with the law?  The Yale University’s Lillian Goldman Law Library has had one answer on display.  While comic book superheroes may provide escapism for many of us, they have represented the first introduction into ideas of justice for many others.  And, as the Law Day theme notes, without our Courts, there can be no Justice and therefore, no Freedom.

 

Red Sox in Last Place After Month of Baseball

By Kyle Wallor on Posted in Sports

The Red Sox presently find themselves 11-13, and bringing up the rear in the AL East.  They also have the 10th best record in the American League.  As noted two weeks ago, I am not surprised even though they have the talent to be better.  Let’s take a look on how things have unfolded. 

Going into the first month, the Sox were well aware that they would be without Carl Crawford.  However, the expected closer, Andrew Bailey, went down for 3 to 4 months for right thumb surgery just before the Sox broke camp for the regular season.  Two weeks into the season, Jacoby Ellsbury went down for 6-8 weeks with a shoulder separation.  These injuries created an unexpected shuffle at the end of the bullpen and left the Sox with the loss of an MVP candidate of at the top of the order.  Let’s just say it showed with the Sox going 4-10 over the first 14, with the bullpen imploding in a loss at Detroit and blowing a 9 run lead in three innings against the Yankees. 

Based on a statistical perspective, the Sox are about where one would expect.  They are batting .276 as a team, and scoring 5.5 runs a game.  At the same time, opponents are batting .276 and scoring just over 5.5 runs a game.  So, just under .500 is not too bad in light of the numbers.  You might expect .500, but the manager is getting his feet wet after a 10 year sabbatical from Major League Baseball. 

After a slow start, there are some things to keep the spirits up.  The Sox are 7-3 over the last 10, albeit against the Twins, White Sox and A’s.  Offensively, David Ortiz has had an abnormally fast start with a .391 average, .441 OBP, .707 SLG, 21 RBI and 6 home-runs.  Dustin Pedroia has been his normally reliable self both offensively and defensively. Ryan Sweeney, Cody Ross and Mike Aviles have all provided way more production than expected.   One would expect Adrian Gonzalez will heat up soon and this should help carry the team for a few weeks. 

On the pitching front, Alfredo Aceves appears to be settling into his role as the closer and the rest of bullpen is improving as established roles develop following some early season fire drills.  Josh Bard has pitched well, and has made a good transition from the pen to being a starter.  Despite his start on Tuesday night, Felix Dubront has been better than expected.  Clay Buchholz appears to be ironing out some early season issues.  He is showing flashes of brilliance, tempered by occasional dips in performance.  Lastly and most importantly, Jon Lester appears to be heating up with very solid 7 inning shutout starts over his last two games. 

I am not backing off my prediction of third or worse in the AL East.  However, the Sox seem to be righting the ship and I’d love to see them prove me wrong.  There is no doubt in my mind they have the talent and depth to do it.

Go Sox!

Implications of Data Protection and Consumer Notification (Part II)

By Brian J. Brislen on Posted in In-House Counsel

Recently, I posted about the requirements of the Data Protection and Consumer Notification of Data Security Breach Act of 2006; Nebraska Statutes § 87-801.  What does this Act mean for business and individuals in Nebraska?  In my last post I noted that the Act requires notification to individuals if there is a security breach involving “personal information.”  But how do you know if you have “personal information?”  The Act defines “personal information” as:

[A] Nebraska resident’s first name or first initial and last name in combination with any one or more of the following data elements that relate to the resident if either the name or the data elements are not encrypted, redacted, or otherwise altered by any method or technology in such a manner that the name or data elements are unreadable:

(a) Social security number;

(b) Motor vehicle operator’s license number or state identification card number;

(c) Account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a resident’s financial account;

(d) Unique electronic identification number or routing code, in combination with any required security code, access code, or password; or

(e) Unique biometric data, such as a fingerprint, voice print, or retina or iris image, or other unique physical representation.

Neb.Rev.Stat. § 87-802(5).  The Act also specifically excludes any “publicly available information that is lawfully made available to the general public from federal, state, or local government records.”  Neb.Rev.Stat. § 87-802(5)

So, if you store information falling within the definition of “personal information” you need to assess how and when to provide notification to those Nebraska residents affected by a security breach (which itself is defined as “the unauthorized acquisition of unencrypted computerized data that compromises the security, confidentiality, or integrity of personal information maintained by an individual or a commercial entity”).  Failing to do so creates a risk that suit could be brought for violating the Act.

However, though there have been no reported cases discussing the implications of the Act, the Act itself vests the power to enforce it with the Attorney General.  See Neb.Rev.Stat. § 87-806.  That appears to mean that the Act does not vest a private citizen with a cause of action to enforce its terms; rather, the Attorney General of Nebraska would have the only power to sue for violations of the Act (I will write more about when statutes confer private causes of action to individuals in subsequent posts).  I will discuss what the Act says about “notice” and how to avoid such a suit in my next post.

Seven Final Thoughts on Economic Damages and Joint and Several Liability

By Kyle Wallor on Posted in In-House Counsel, Legislation

Over the course of this six part series, we have examined the state of economic damages and joint and several liability law in Nebraska.  I will provide some closing thoughts on the state of the law, the system and a substantial question that has not been answered.

  1. Any co-defendant has the risk of being jointly liable for all economic damages when there is no settlement between the claimant and any liable party (Part I);
  2. A settlement between a claimant and a liable party extinguishes joint and several liability for the remaining liable party (when there are two liable parties) (Part II and Part III);
  3. The Nebraska Supreme Court is of the opinion that its decision in Tadros encourages settlement and creates finality of litigation (Part IV);
  4. A pro tanto credit should be applied in strict liability cases (Part V);
  5. In reality, the system does not encourage settlement as it allows plaintiffs to hold a liable party hostage with the risk of exposure to substantial economic damages on the basis of minimal liability as long as no settlement occurs;
  6. In reality, the system does not encourage settlement as it places plaintiffs’ counsel in a situation of potentially leaving money on the table (as occurred in Tadros, Part III) and exposing themselves to personal liability;
  7. The Nebraska Supreme Court has provided little guidance on the application of the Comparative Fault Act in cases with more than two liable parties and one liable party reaches a settlement.  Arguably, Neb.Rev.Stat. 25-21,185.10 will still apply as the “action” will involve “more than one defendant” at the time it is tried.  Arguably, Neb.Rev.Stat. 25-21,185.11 will also apply as there will most likely be a “release, covenant not to sue or similar agreement” entered into between the claimant and the settling liable party.  It is my expectation that there will be a hybrid application of the two statutes in an effort to “encourage settlement” and “finality in litigation”.  However, that is yet to be determined.