Alternative Liability

Torts was interesting today. We are covering “causation,” which is one of the elements of a negligence claim that the plaintiff has to prove to win a case – kinda. Anyway, to make a longer story short, we were specifically talking about “alternative liability,” which is employed when there are two defendants that are equally liable for a single claim brought by a plaintiff. There are loose restrictions that must be present when using alternative liability, which are:

1. Each defendant must be negligent
2. Proper parties. Generally, there can’t be too many defendants.
3. Harm to the plaintiff.
4. Simultaneous actions by the defendants.
5. Plaintiff can’t prove which defendant is negligent.
6. Defendant has superior knowledge of negligence.

If the plaintiff can show 1-6, or the court finds 1-6 present, then the burden of proof shifts from the plaintiff to the defendant. At this point, if the jury finds for the plaintiff, then both defendants are equally fully liable. That is, if the jury determines that the plaintiff is to be awarded $1,000,000 then the plaintiff can select one of the defendants to pay the full amount. It is up to the defendants to sort out the costs on their own, in a separate matter.

My question is, can the defendants, who are both equally liable, but only one of which will be selected by the plaintiff to pay the damages, attempt to persuade the plaintiff to chose the other defendant?

Zealous Representation

Excerpt from my Civil Procedure book:

The means employed by litigators to achieve victory for their clients regularly involve manipulating people and the flow of information in order to present their client’s positions as persuasively and favorably as possible. This manipulation may involve any or all of the following general techniques:

  • not disclosing evidence that could be damaging to the client or helpful to an opposing party
  • not disclosing persuasive legal precedents that could be damaging to the client
  • undermining or deflating persuasive evidence and precedents that are damaging to the client and are introduced by opposing counsel, by such means as upsetting or discrediting honest and reliable witnesses or by burying adverse evidence under mounds of obfuscating evidentiary debris
  • overemphasizing and present out of context evidence and precedents that appear favorable to the client
  • pressuring or cajoling witnesses, jurors, and judges into adoption views that support the client’s position
  • deceiving opposing counsel and parties about the weaknesses of the client’s case and the vulnerabilities of the opposing party and counsel that have nothing to do with the merits of a given dispute by such means as intimidating an anxious opponent, spending a poor opponent into submission, or “soaking” in settlement an opponent who has public image problems or who for other reasons cannot endure the risk and public exposure of a trial.

None of these techniques is illegal or violates the letter of the ethical rules of the profession. Indeed, the refusal to resort to at least some of these devices may be construed as a breach of an attorney’s obligation “to represent his client zealously within the bounds of the law.”

Midterm Time

I have a lot to do. I was feeling a bit overwhelmed earlier in Contracts, but then I took the big picture approach to everything and decided all will be fine in the long run. I have a Civil Procedure midterm on Friday. It’s take home and we get 24 hours from 3pm Friday to turn it in. That means I get to spend all day Saturday writing about how to bring a case in court. Believe me, I know it sounds fun, but I can think of better ways to spend my weekend. Like watching UM beat Penn State.

Top it off with a research report due Friday at 2pm and we’ve got a great week going.

Time to study. Bought a printer. Go Tigers!

Look Around

Look to the past. Look to nature. Look beyond what you can see. Behind the wall that separates you from the neighbor on the other side. From the world. Look at something weird and different. Something abstract. Something that can’t be defined. Look at a different culture. A different people. A different individual. Look at yourself. Look around the next corner. Look at the second to last page and burn the last. Look . . . I have to go to legal writing. More later.

Spontaneous Panels

If you have attended college, a film festival, or a conference then you have probably sat in on a panel where selected individuals with arbitrary specific knowledge or accomplishments sit on a raised platform and speak to an audience. Sometimes, at the end, the audience, which is seated in less comfortable chairs and banned from eating or drinking is allowed to ask questions.

The audience is, from my personal observations, usually, and almost expected to be, awed by what the panel members have to say. However, more often than not the audience has had more probing and creative questions and insights than the panel members.

This prompts two thoughts for me. First, what does it take to become a panel member? I ask this not just because I want a more comfortable seat, free food, and more attention, but because they seem to be passionate about what they do. They know people that are passionate. They interact, joke, and take risks.

Second, how can we capture the energy, minus the typical hierarchy, of panels in every day life?

My answer to this is “spontaneous panels.” Panels that start on a park bench with one panelist, and are allowed to morph. Ideally, passers by will join and add their two cents.The success of this idea, or the institution of this idea to be more specific, rests on the willingness of my peers to participate.