Federal Civil Litigation – Page 7 – Marquette University Law School Faculty Blog

The Verdict? A Very Successful Civil Trial Conference

Post author:Daniel D. Blinka
Post published:November 9, 2009
Post category:Evidence Federal Civil Litigation Marquette Law School Wisconsin Civil Litigation

One of this Law School’s most noteworthy legacies is its production of many of the region’s most outstanding trial lawyers. The legacy was fully evident on Friday, November 6, 2009 at the Civil Trial Evidence and Litigation Conference. The sold-out event served as a “last call for Sensenbrenner Hall” of sorts while featuring a panel that well-represented the many fine trial lawyers who have distinguished themselves as Marquette lawyers. It was my privilege to help organize the conference along with Pat Dunphy (L’76), who conceived of the idea and was the key to assembling the talented panel of Marquette alumni. In light of Friday’s success, Pat and I have already begun discussing next year’s civil litigation conference, which will be held in the Law School’s new venue in Eckstein Hall.

The presentations spanned a broad array of issues and problems regularly confronted in civil litigation. The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases. Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial. Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon. Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions. Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery. Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

Reinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees

Post author:Paul M. Secunda
Post published:October 13, 2009
Post category:Constitutional Interpretation Federal Civil Litigation Labor & Employment Law

Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.

Here’s the abstract:

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

ACS Presentation on 2008-09 Supreme Court Opinions

Post author:Joshua Pollack
Post published:October 10, 2009
Post category:Criminal Law & Process Federal Civil Litigation Federal Criminal Law & Process Federal Law & Legal System Marquette Law School Political Processes & Rhetoric U.S. Supreme Court Uncategorized

With the beginning of the 2009-2010 term of the Supreme Court, the Marquette Chapter of American Constitution Society for Law and Public Policy (ACS) spent a lunch-hour discussing some of the more interesting cases of the past 2008-2009 term. Leading the lunch discussion were Marquette professors Blinka, McChrystal, and Secunda.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least). In Gant, the Court limited the scope of “search incident to arrest.” The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).