THE TRIAL LAWYER'S GUIDE 1992 INDEX SUPPLEMENT for Trial Lawyer's Guide 1991 Annual by JOHN J. KENNELLY and the Publisher's Editorial Staff CALLAGHAN Be DEERFIELD, IL « NEW YORK,NY +« ROCHESTER, NY Customer Service: 1-800-323-1336 COPYRIGHT © 1992 BY CLARK BOARDMAN CALLAGHAN A DIVISION OF THOMSON LEGAL PUBLISHING, INC. ALL RIGHTS RESERVED "This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service."—From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers. Index Supplement REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES ACCIDENT REPORT military mishaps Aircraft Mishap Report, 91-138, 150 hearsay exception, 91-135 NTSB reports, compared, 91-142 pilot error, 91-138 National Transportation Safety Board Reports conflicts among Federal Rules, 91-144, 151 FAA prohibition on admissibility, 91-142, 144 et seq. - probable cause conclusions, government litigants, 91-151, 152 Rule 803(a)(C), Federal Rules of Evidence, 91-151 Rule 803(8), Federal Rules of Evidence "fact findings," construction, 91-140 hearsay exception, 91-139 legislative intent, 91-140 NTSB reports, 91-142 opinions and conclusions in factual reports, 91-137 trustworthiness of opinions, assessment, 91-141 ADMISSIBILITY OF EVIDENCE government regulations, products liability case, 91-208 ALABAMA insurance selection of counsel under reservation of rights, 91-167 APPEAL AND ERROR arguments acknowledgement of court, 91-268, 277 arrogant judges, responses, 91-281 1 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT APPEAL AND ERROR—Cont. @ arguments—Cont. "blunt" judges, challenging, 91-280 deferential responses in service of client's cause, 91-282 expiration of argument time, 91-275 @ familiarity with judges hearing appeal, 91-268 flexibility and innovation, 91-272 forum non conveniens, Air France hijacking case, 91-277 impact on decisions, statistical studies, 91-265 importance, 91-264 issues addressed, focus, 91-270 issues requiring no argument, 91-275 judicial signals to argue issue, 91-276 judicial signals to limit argument, 91-274 merits of case, belief in, 91-274 number of oral advocates, 91-273 Oral Advocacy, Ten Commandments, 91-268 orienting review of facts and issues, 91-276 preparation, 91-269 quality of argument, grading statistics, 91-267 questions and responses, 91-272 responses to blunt judges, 91-276 speaking voice, 91-273 suggestions, 91-268 termination, timeliness, 91-273 waiver, 91-274 written briefs, comparison, 91-264, 265 ARGUMENTS appeals acknowledgement of court, 91-268, 277 arrogant judges, responses to, 91-281 "blunt" judges, challenging, 91-280 deference in service of client's cause, 91-282 expiration of argument time, 91-275 familiarity with judges hearing appeal, 91-268 flexibility and innovation, 91-272 forum non conveniens, Air France highjacking case, 91-277 2 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT e ARGUMENTS—Cont. appeals—Cont. impact on decisions, statistical studies, 91-265 importance, 91-264 issues addressed, focus, 91-270 e issues requiring no argument, 91-275 judicial signal to argue issue, 91-276 judicial signals to limit argument, 91-274 merits of case, belief in, 91-274 number of oral advocates, 91-273 Oral Advocacy, Ten Commandments, 91-268 orienting review of facts and issues, 91-276 preparation, 91-269 quality of argument, grading statistics, 91-267 questions and responses, 91-272 responses to blunt judges, 91-276 speaking voice, understanding of, 91-273 suggestions, 91-258 termination, timeliness, 91-273 waiver, 91-274 ATTORNEYS billing clients for services computerized time-keeping, 91-185, 194 experience as factor in fixing fees, 91-192 insurance company clients, 91-184 minimum billable hours, 91-87 time-keeping factors, 91-185, 194 fees class actions, 91-76 et seq. reasonableness, 92-459 writing accurate articulation, 91-154 briefs, 91-156 a clarity, 91-154, 161 drafting, 91-1594 intended purposes and audience, 91-155 language choices, 91-155 nouns, verbs, and adjectives, 91-158 e REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT ATTORNEYS—Cont. writing—Cont. positive vs. negative assertions, 91-159 spelling in legal documents, 91—160 style, 91-160 verbosity, 91-136, 137 ATTORNEYS' FEES class action suits attorney as claimant, 91-81 class benefit as standard, 91-79, 82, 85 common fund doctrine, 91-76, 79 fee petition preparation, 91-82 fee shifting rules, applicability, 91-77, 79 limitation on potential liability, 91-84 lodestar approach, judicial discretion, 91-80 market risk test, 91-82, 83 meritless suits, disincentive, 91-84 per diem system, effect, 91-86 percentage of recovery principle, 91-85 proofs, 91-83 public interest factor, 91-82 reasonableness requirement, 91-79 risk compensation, 91-81 subsidy of unsuccessful suits, 91-84 Supreme Court rule, 91-79, 85 congressional intent, 91-79 factors reasonableness, 92-459 fee shifting rules "American Rule," distinction, 91-77 common fund cases, applicability, 91-79 fee petition preparation time, 91-82 interest for delayed payment, 91-78 interested parties, 91-81 lodestar approach, 91-77 lodestar formuia, 91-78 public benefit factor, 91-79, 82 reasonable time spent, 91-77 4 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT .ATTORNEYS' FEES—Cont. fee shifting rules—Cont. risk compensation, contingent fee cases, 91-81 risk factor, 91-78 risk multiplier inducing meritless claims, 91-84 statutory fee shifting factors, 91-77 subsidy of unsuccessful suits, 91-84 hourly rates lodestar multiplication system, critique, 91-85 hourly rates, 91-184 computer enhancements, effect, 91-185 computerized plumbing bill, comparison, 91-194 contingent fee, comparison, 91-186 productivity, time equation, 91-197 insurance cases contingent fees, 91—186 cost spiral, 91-182 fees contingent on saving under settlement evaluation, 91-199 flat fee arrangements, 91-187 per diem system, critique, 91-196 payment demands, 92-464 per diem basis common fund cases, 91-86, 87 lodestar improprieties, 91-85, 87 reasonableness burden, 92-459 time spent on case as factor, 92-459 time-keeping methods, 92-466 AUTOMOBILES insurance ambiguities in policy, construction, 91-120 choice of compensation system, 91—184 construction of policy against insurer, 91-119 cost problems, 91-171, 182 cost-containment measures, 91-173 cost-induced cutbacks, 91-171, 182 5 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT AUTOMOBILES—Cont. insurance—Cont. insurance affordability problems, 91-182 internal cost controls, 91-184 no-fault insurance plans, 91-182 no-fault proposals, 91-182 no-fault replacement of tort recovery system, 91-184 notice requirement and underinsured motorist recovery, 91-332 policy coverage and exclusion clauses, 91-116 punitive damage coverage, 91-202 reparations, 91-182 restrictions on payments for minor injuries, 91-183 state-run insurance proposals, 91-172 underwriting loss increases, effects, 91-171 unlicensed minor as "covered person," 91-116 personal injuries heart damage after blunt chest trauma, 91-249 BIBLIOGRAPHY insurer and counsel in defense of claims, relationship, 91-199 premises liability for third-party assaults, 91-42 BRIEF drafting, 91-156 CALIFORNIA premises liability for third-party assaults foreseeability and duty, 91-28, 71 CAUSATION see also Proximate Cause CHILDREN wrongful death action dollar amount of awards, case list, 91-108 excessive awards for death, 91-105 loss of society, recovery of damages, 91-106 stepchildren, 91-316 6 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES e& TLG INDEX—SUPPLEMENT CIVIL RIGHTS ACTIONS definition, 91-283 accuracy and consistency checks, 91-298 age, sex and race data, accuracy, 91-300 biased or inaccurate data, 91-293 class membership errors, 91-300 computerized date development, 91-293 constructed pools analyses, 91-308 contents, 91-283 creation, 91-285 credibility of data base, 91-293 current and permanent positions, table, 91-298 data and data base accuracy, responsibility, 91-299 data base for analysis of issues, 91-284 data set redundancy, 91-304, 305 diagnostic checks of variables in data base, 91-300 diagnostic checks targeted to allegations in case, 91-304 employer's personnel system, comprehension, 91-295 error checks within single record, 91-302 error checks between two or more records, 91-303 existing computerized files, 91-289 hypothetical case, 91-283 incomplete data sources, 91-292 information table, 91-286 judicial review of accuracy checks, 91-304, 305 key personnel actions and information, selection, 91-286 mergers and separations of computerized files, 91-287 monetary award analyses, 91-309 personal actions includable, 91-285, 286 qualifications as analytical factor, 91-309 questions answerable by appropriate file, 91-284, 310 recommended procedure in developing file, 91-294 salary progression, 91-309 source document errors, 91-306 source documents, 91-291 source documents as data base, 91-291 standardizing values in data file, 91-295 subjective judgments preceding data entry, 91-292 temporary and permanent assignments, tracking, 91-297 7 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES TLG INDEX—SUPPLEMENT CIVIL RIGHTS ACTIONS—Cont. definition—Cont. transcription of data, clerical errors, 91-292 unaugmented computerized files, review, 91-294 validity checks, 91-305 variables included in file, table, 91-288 waiting time analyses, 91-307 work force descriptions, 91-306 employee history file instructions police use of deadly force, 91-112 CLASS ACTIONS attorneys’ fees approach, judicial discretion lodestar approach, 91-80 attorney as claimant, 91-81 class benefit as standard, 91-79, 82, 85 common fund doctrine, purpose, 91-79 disincentive for meritless suits, 91-84 fee petition preparation, 91-82 limitation on potential liability, 91-84 market risk test, 91-82, 83 per diem system, effect, 91-86 percentage of recovery principle, 91-85 proofs, 91-83 public interest factor, 91-82 risk compensation, 91-81 subsidy of unsuccessfull suits, 91-84 Supreme Court rule, 91-79, 85 federal standards attorney fee calculations, 91-79, 85 COMPUTERS computer-generated animation, 92-434 software reliability, 92-439 variables, 92-435 law office hourly billing rates, cost increases, 91-185, 194 8 REFERENCES ARE TO YEAR AND PAGE OF ANNUAL VOLUMES