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21 Oct, 2017

“Nebraska Nice”? Some Say Not As Friendly As Before

2018-04-23T20:50:32-05:00October 21st, 2017|In-House Counsel, Nebraska Litigation & Trial Advisor, Tort Reform|

If you track the periodic Lawsuit Climate Survey, published by the U.S. Chamber of Commerce’s Institute for Legal Reform, you know the 2017 rankings were issued last month.  The 2017 Survey constitutes the 11th fielding of the survey since the Institute for Legal Reform first began conducting its survey in 2002. The Survey This year’s survey was based on telephone and online surveys of 1,321 in-house counsel, senior litigators or [...]

24 Jan, 2013

Lance Armstrong, Oprah and the False Claims Act

2018-04-24T00:08:56-05:00January 24th, 2013|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor, Trial|

This post is authored by Stacy Morris, a partner in LDM's litigation department. By Stacy Morris Recently, we had written several blog posts about the expanding reach of the False Claims Act, and, in particular, of the whistleblower provisions which allow citizens to bring private actions against those suspected of making false or fraudulent claims to the government.  The False Claims Act has become an increasingly hot topic over the [...]

17 Jan, 2013

To Keep or Not to Keep: Targeting Overpayments of Government Funds through the False Claims Act

2018-04-24T00:08:56-05:00January 17th, 2013|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor, Trial|

This post is authored by Stacy Morris, a partner in LDM's litigation department. By Stacy Morris In earlier posts, we had submitted a four-part series about the False Claim Act (“FCA”), and its ever-expanding reach in light of amendments that were passed as part of the Fraud Enforcement and Recovery Act (“FERA”) of 2009.  The FCA generally prohibits making false or fraudulent statements to the government to get government funds.  [...]

4 Sep, 2012

Law Students’ Suits Against Law Schools Dismissed

2018-04-24T00:12:17-05:00September 4th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

In February, one of our blogs noted lawsuits being filed by laws students seeking damages due to law schools misrepresenting employment and salary data.  This included suits against New York Law School and Thomas M. Cooley Law School .  The claims raised by the suits appeared to be an uphill climb due to a few factors.  First, the critical thinking and analysis required of a potential attorney.  Second, the unforeseen effects of the economic decline in 2008.  At least two [...]

29 May, 2012

Cyber Gripe – “Anonymous” Comments Could Cost You Millions

2018-04-24T00:12:17-05:00May 29th, 2012|Discovery, In-House Counsel, Nebraska Litigation & Trial Advisor|

Two weeks ago, I noted the Internet has become an area where individuals with access to the Internet can effect peoples' lives and businesses.  Just about every website, blog and Internet forum provides individuals with the opportunity to comment on anything subject matter.  The comments are also often made under the guise of an "anonymous" username which provides little to no personal information about the commenters.  Be careful, your comments might [...]

15 May, 2012

Cyber Gripe – Opinion, Defamation or Outright Harassment

2018-04-24T00:12:17-05:00May 15th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

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 [...]

10 May, 2012

Data Protection and Consumer Notification (Part III)

2018-04-24T00:08:56-05:00May 10th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

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 [...]

3 May, 2012

Implications of Data Protection and Consumer Notification (Part II)

2018-04-24T00:08:56-05:00May 3rd, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

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 [...]

1 May, 2012

Seven Final Thoughts on Economic Damages and Joint and Several Liability

2018-04-24T00:12:17-05:00May 1st, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

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. 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 [...]

24 Apr, 2012

Economic Damages and Joint and Several Liability, Part V

2018-04-24T00:12:17-05:00April 24th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

As per my note in Part IV, I am going to take a look at a case which appears to be contrary to the Nebraska Supreme Court's ruling in Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007), Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000).  However, common analysis between the opinions does create some consistency.  Jameson was a strict liability suit against brought [...]

19 Apr, 2012

Data Protection and Consumer Notification in Nebraska

2018-04-24T00:08:57-05:00April 19th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

In my post last week I mentioned that Nebraska has a law call the Data Protection and Consumer Notification of Data Security Breach Act of 2006.  It is found in the Nebraska Statutes beginning at section 87-801.  The name is mouthful.  But while it is clear that a simple name was not the goal of the Act, making consumers aware of any potential data breaches of their personal information is.  The [...]

17 Apr, 2012

Economic Damages and Joint and Several Liability, Part IV

2018-04-24T00:12:18-05:00April 17th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

As noted in Part III of this series, we are going to examine the reasoning behind the Nebraska Supreme Court determining joint and several liability ceases when one of two liable parties settle with a claimant as set forth in Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007). In reaching its determination, the Court first considered the plain language of the Neb.Rev.Stat. §§ 25-21,185.09 to 25-21,185.11.  In doing so, the Court first determined Neb.Rev.Stat. § [...]

10 Apr, 2012

Economic Damages and Joint and Several Liability, Part III

2018-04-24T00:12:18-05:00April 10th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

As alluded to in Part I and Part II of this series, the Nebraska Supreme Court addressed the effect of Nebraska's Comparative Fault Act on joint and several liability when a settlement occurs with one liable party in Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007).  Tadros arose when Georgette Tadros was seriously injured when she was struck by a vehicle while crossing the street.  Tadros had begun [...]

5 Apr, 2012

Public Relations in Litigation

2018-04-24T00:08:57-05:00April 5th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

By now nearly everyone has heard about the “Pink Slime” debate involving Beef Products, Inc.  A recent article in the Omaha World Herald discussed BPI’s admitted miscalculation about the publicity its product was receiving.  The article suggests that BPI did little to get out in front of the issue by actively combating the misnomer “pink slime” and the information that was being reported about it. Reading about that reminded me of an [...]

3 Apr, 2012

Economic Damages and Joint and Several Liability, Part II

2018-04-24T00:12:18-05:00April 3rd, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

In Part I of this series, we addressed the general rule for joint and several liability.  This week we will take our first step in addressing joint and several liability when a claimant settles with a person liable or a co-defendant before the matter is submitted to a jury. Before Tadros v. City of Omaha, 273 Neb. 935, 735 N.W.2d 377 (2007), practitioners generally believed Neb.Rev.Stat. § 25-21,18.10 continued to control the situation and a jury would apportion [...]

20 Mar, 2012

Economic Damages and Joint and Several Liability – Part I

2018-04-24T00:12:18-05:00March 20th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

Over the next few Tuesday posts, we will be addressing the interplay between economic damages and joint and several liability.  It is often complicated, and can lead to some potentially inequitable results in large economic damage cases.  In handling cases with mutiple defendants and substantial economic damages, joint and several liability is a primary consideration in determining exposure.  As with some states, joint and several liability in Nebraska is covered by the Nebraska Comparative Fault Act, [...]

13 Mar, 2012

The Expanding Reach—and Allure—of the False Claims Act: Part IV

2018-04-24T00:12:18-05:00March 13th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

The next series of posts are authored by Stacy Morris, a partner in LDM’s litigation department.  Mr. Morris has agreed to draw upon his experiences with the False Claims Act to provide information about the growing issues for businesses and individuals.  By Stacy Morris Under the FCA, a lawsuit can be brought directly by the Department of Justice (DOJ), or on the government’s behalf in what is referred to as [...]

8 Mar, 2012

The Expanding Reach—and Allure—of the False Claims Act: Part III

2018-04-24T00:08:57-05:00March 8th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

This is part III in a series of posts authored by Stacy Morris, a partner in LDM’s litigation department.  Mr. Morris has agreed to draw upon his experiences with the False Claims Act to provide information about the growing issues for businesses and individuals. By Stacy Morris The allure of a claim under the FCA is due in large part to the built-in damages provisions.  There is a two-step process [...]

6 Mar, 2012

The Expanding Reach—and Allure—of the False Claims Act: Part II

2018-04-24T00:12:18-05:00March 6th, 2012|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor|

The next series of posts are authored by Stacy Morris, a partner in LDM’s litigation department.  Mr. Morris has agreed to draw upon his experiences with the False Claims Act to provide information about the growing issues for businesses and individuals. By Stacy Morris Last week, we provided a brief introduction to the origins of the FCA, and pointed out three of the provisions that are often alleged in FCA [...]

21 Feb, 2012

Nine Thoughts Following ABA Client Counseling Competition

2018-04-24T00:12:18-05:00February 21st, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

On Friday February 17, 2012, I spent the afternoon at Creighton University's School of Law judging the ABA Regional Client Counseling Competition.  In sum, teams of two law students from Midwestern law schools were provided with a "client" to interview and counsel over forty-five minute period.  Each team interviewed three clients with different legal issues.  After completing the interview, the teams were evaluated based on a number of factors.  The competition was a incredible [...]

2 Feb, 2012

The Parol Evidence Rule: Don’t Forget the Exceptions! Part 2

2018-04-24T00:08:57-05:00February 2nd, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

My trial from last week is concluded but today's post is part 2 of Kara Jermain's article discussing the parol evidence rule.  My thanks to Kara for her work on this project while I was busy with trial. Last week’s article discussed the parol evidence rule.  The parol evidence rule excludes outside evidence of a prior or simultaneous agreement if it is not contained in contracting parties’ final written agreement.  The rule can [...]

31 Jan, 2012

Jurors, Smart-phones and Jury Trial Mayhem

2018-04-24T00:12:18-05:00January 31st, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

On January 30, 2012, Todd Cooper authored an article for the Omaha World Herald about Douglas County Nebraska Juror No. 22, who was found to be in contempt of court for consulting his smart-phone during the course of first-degree sexual assault trial.  Juror No. 22 was discharged from the jury and subsequently sentenced to 40 hours of community service.  Mr. Cooper's article discussed Juror No. 22's work emergency wherein if he did not stop a train with an [...]

26 Jan, 2012

The Parol Evidence Rule: Completeness When Contracting is Key – Part 1

2018-04-24T00:08:57-05:00January 26th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

Brian Brislen is in trial this week, and Kara Jermain of the Lamson, Dugan and Murray Litigation Department authored this week's Thursday blog.  While the “parol evidence rule” may sound like legal mumbo jumbo that could not possibly affect you or your business in any way, the rule has serious consequences for anyone entering into a contract.  The rule typically deals with a situation where parties begin negotiating verbally or even informally [...]

11 Jan, 2012

Employer is not a “Released Person” for Purposes of Apportionment Under Nebraska’s Comparative Fault Act

2018-04-24T00:12:18-05:00January 11th, 2012|In-House Counsel, Nebraska Litigation & Trial Advisor|

On January 6, 2012, the Nebraska Supreme Court decided the hotly contested issue of whether a court may apportion liability to an employer in a third-party action for peronsal injuries when the employer is immune from suit in tort under the Nebraska Workers' Compensation Act in Downey v. Western Community College Area, 282 Neb. 97o, ___ N.W.2d ___ (2012).  Generally speaking, an apportionment of fault instruction and concomitant jury verdict form is provided by Nebraska's courts when a potential [...]

20 Dec, 2011

Three Thoughts on Answering Over (and Potentially Waiving) Objections to Interrogatories in Nebraska

2018-04-24T00:12:18-05:00December 20th, 2011|Discovery, In-House Counsel, Nebraska Litigation & Trial Advisor|

A pitfall in handling interrogatories in Nebraska's state courts is waiving an objection by answering over it.  While Federal Rule of Civil Procedure 33 specifically addresses the issue by providing "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath" in FRCP 33(b)(3) and "[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless [...]

6 Dec, 2011

Paid vs. Billed – What is the Correct Measure of Medical Bill Damage?

2018-04-24T00:12:19-05:00December 6th, 2011|In-House Counsel, Legislation, Nebraska Litigation & Trial Advisor, Trial|

The world of health insurance and medical billing write-offs has created a hot topic in the world of personal injury trial practice, whether the measure of medical bill damages a personal injury plaintiff may recover is the amount billed by the provider or the amount paid and accepted as full and final payment by the provider.  The issue has been addressed by legislation in many states.  Some attorneys believe Nebraska's Unicameral Legislature addressed the issue [...]

1 Dec, 2011

Mitigating Jurors’ Potential Use of Electronic Information

2018-04-24T00:08:58-05:00December 1st, 2011|In-House Counsel, Nebraska Litigation & Trial Advisor, Trial, Voir Dire|

Nearly everyone, it seems, has a smart phone. Access to information no longer comes from the morning or evening newspaper. Information is refreshed by the minute through numerous on-line news sources. What impact does that have on a jury trial? The December, 2011, ABA newsletter, First Focus, has published an interesting article highlighting the ABA Judicial Division’s National Conference of State Trial Judges work to issue guidance to Judges and [...]

17 Nov, 2011

Depositions: Avoid Being a Defensive or Combative Witness

2018-04-24T00:08:58-05:00November 17th, 2011|Deposition Preparation, Depositions, In-House Counsel, Nebraska Litigation & Trial Advisor, Witness Preparation|

If you have followed this blog since it started earlier this fall you read our Friday Nebraska sports related posts. Yesterday, the ABA Journal posted its own sports related story. Author Debra Cassens Weiss reported on a deposition of former NBA superstar Allen Iverson. Apparently, AI was not very thrilled about the deposition or the lawyer taking it. The lawyer has apparently represented clients against Iverson in two prior cases. [...]

15 Nov, 2011

Per Diem Arguments in Nebraska post Richardson v. Children’s Hospital – Part IV Potential Solutions and Arguments

2018-04-24T00:12:19-05:00November 15th, 2011|Closing Argument, In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

This is Part IV in a four part series.  Part I, Part II and Part III. Another flaw in per diem arguments is that they suggest pain can be equated to dollars and that a formula will justly compensate a plaintiff.  Note to the jury that unless plaintiff has established with credible evidence why a certain dollar amount should be applied to a particular time segment, perhaps the jury should [...]

8 Nov, 2011

Per Diem Arguments in Nebraska post Richardson v. Children’s Hospital – Part III Potential Solutions and Arguments

2018-04-24T00:12:19-05:00November 8th, 2011|Closing Argument, In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

This is Part III of a four part series.  Part I, Part II and Part IV. The jurisdictions that approved per diem arguments generally fall into two categories, the first declare per diem arguments proper; the second declare them proper only if accompanied by a cautionary instruction.  Courts holding per diem arguments proper, or proper with caution, do so for the following reasons: Per diem arguments do not constitute the introduction [...]

1 Nov, 2011

Per Diem Arguments in Nebraska post Richardson v. Children’s Hospital – Part II The Richardson Decision and Its Potential Effect

2018-04-24T00:12:19-05:00November 1st, 2011|Closing Argument, In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

This is Part II of four part series.  Part I, Part III, and Part IV. The Baylor and Dowd decisions set the stage for the Nebraska Supreme Court’s opinion in Richardson v. Children’s Hospital, 280 Neb. 396, 787 N.W.2d 235 (2010) and Nebraska joining the majority of Courts which approve per diem arguments in one form or another.  In Richarson, Plaintiff made a blatant per diem argument.  During Plaintiff’s closing, counsel [...]

25 Oct, 2011

Per Diem Arguments in Nebraska post Richardson v. Children’s Hospital – Part I The History

2018-04-24T00:12:19-05:00October 25th, 2011|Closing Argument, In-House Counsel, Nebraska Litigation & Trial Advisor, Trial|

This is a four part series discussing the history and use of per diem arguments in the state of Nebraska. Part II, Part III and Part IV. Before the Nebraska Supreme Court’s outright approval of per diem arguments in Richardson v. Children’s Hospital, 208 Neb. 396, 787 N.W.2d 235 (2010), I often found myself channeling Oliver Stone’s chain smoking conspiratorial reincarnation of David Ferrie in the movie JFK during my attempts [...]

18 Oct, 2011

Honesty and Integrity – Two Keys to Working with In-House Counsel

2018-04-24T00:12:19-05:00October 18th, 2011|In-House Counsel, Nebraska Litigation & Trial Advisor|

The subject of securing work from corporate clients is the subject of numerous blogs and plenty of discussion.    However, what seems to get lost in the never ending desire to grow your practice and your business is maintaining and developing the relationships you have with existing clients.  This especially true when you add up the pressures of securing good results, establishing healthy relationships with the people who are responsible [...]