Results revealed a mixed verdict
President-elect Biden! I like the sound of that, but we still have a lot of work to do down ballot where we came up short. The election results revealed a mixed verdict with the loss of pro-civil-justice House members and unfulfilled expectations in the Senate.
On the “definite win” side, I want to thank the entire trial lawyer community and the state TLAs for the work AAJ and state association members did to protect the vote – in all 50 states! I am pleased to report that AAJ’s Voter Protection Action Committee (VPAC) connected more than 1,200 people nationwide with volunteer opportunities. The will of our volunteers, particularly during a volatile election cycle, underscores one thing of which we are certain: Trial lawyers always rise to the occasion and stand up for what is right and just.
While Joe Biden and Kamala Harris will be our next president and vice president, the Senate may continue to be led by tort reform advocate Mitch McConnell, unless the January 5 run-off elections in Georgia produce a different result. There are two incredible candidates, Rev. Raphael Warnock and Jon Ossoff, who could tip the balance in favor of access to justice in the Senate. The House continues to be led by pro-civil-justice lawmakers.
If Mitch McConnell remains as Senate Leader, there will continue to be a log jam on affirmative legislative issues and judicial appointments. Regardless of what happens in Congress, AAJ will continue to have a robust regulatory role in the federal agencies and vigilantly monitor the Federal Rules for proposals that could harm your clients’ cases. We anticipate that we will be working even harder in these areas to ensure that regulations have teeth and federal rules are balanced.
We will continue to build partnerships and coalitions where we can. Watch this space.
Legal affairs update
U.S. Supreme Court victory in qualified immunity case
On November 4, 2020, the U.S. Supreme Court held that the Fifth Circuit Court of Appeals erred in granting Texas correctional officers summary judgment on the basis of qualified immunity. The Court’s opinion states that under the “particularly egregious facts of this case, any reasonable officer should have realized that [plaintiff’s] conditions of confinement offended the Constitution.”
In Taylor v. Riojas, No. 19-1261 (U.S. Nov. 4, 2020), the plaintiff inmate was held in appallingly inhumane conditions, including being forced to sleep in overflowing sewage. He brought a section 1983 claim against the correctional officers. The Fifth Circuit held that while there was evidence that his Eighth Amendment rights had been violated, qualified immunity barred his claims.
On petition for certiorari in the Supreme Court, AAJ signed on to an amicus curiae brief (www.justice.org/resources/research/taylor-v-riojas) with a coalition of organizations urging the Court to overturn the doctrine of qualified immunity. In a step toward such a result, the Court vacated the Fifth Circuit’s finding of summary judgment based on qualified immunity. Justice Thomas dissented; Justice Barrett took no part in the consideration or decision of the case.
Federal Rules update
Proposal on Federal Rule of Evidence 702 – Expert witnesses
Since March, the defense bar has filed a large volume of comments proposing changes to FRE 702 – Testimony by Expert Witnesses. Their goal is to add a preponderance of the evidence standard to the rule and limit “overstatements” by expert witnesses. The Advisory Committee on the Rules of Evidence is considering such a change and has released several draft rules that were discussed at the Committee’s November 13 meeting.
At their meeting, the committee focused on whether the preponderance of the evidence standard should be added into the text of Rule 702. Committee members believe such an addition would help address what they perceive to be courts’ misapplication of Rule 702 as it currently stands. The committee also considered whether a limitation on “overstatements” should be addressed. This was met with ample opposition by the Department of Justice and support by federal defenders and other committee members.
Social Security rulemaking underway
A formal comment period is well underway for proposed supplemental rules to the Federal Rules of Civil Procedure to govern Social Security review actions. AAJ recommends that you submit comments focusing on whether supplemental rules are necessary for these cases and how they would benefit or hinder your practice, particularly in comparison to the local rules under which you currently operate.
Deadlines and instructions
The formal comment period runs through February 16, 2021. Requests to testify at the public hearing on the rule, which will be held virtually on January 22, 2021, must be submitted no later than December 23, 2020. Additional information, including the draft rule text, can be found at www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment.
Issues to consider
This rulemaking commenced as a result of studies showing that Social Security appeals make up about 7% of the federal docket. Comments may want to address the necessity of creating separate FRCP to govern Social Security review actions; how the proposed timelines compare to timing requirements in your jurisdiction; the privacy, security, or identity theft issues raised by requiring the last four digits of Social Security number; or any addition to the proposed rules that would improve the draft.
Ms. Lipsen was named Chief Executive Officer of the American Association for Justice (AAJ), formerly known as the Association of Trial Lawyers of America (ATLA), in April 2010. She joined the organization in 1993 to direct AAJ’s Public Affairs department.
by the author.
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