We recently conducted jury research on a significant case. The jurors were very typical for what we expect to see in a Manhattan jury.  But these jurors were brought in by First Court, a consulting firm that gave each juror a touchscreen laptop.  After each argument or witness, each juror answered a handful of excellent feedback questions--and all their answers flowed across our monitors, in real time.

It was fascinating to see how far the technology has advanced for generating objective feedback from lay people. We were awash in great insights! The results shocked both of us.

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Fundamental to any negligence action is a showing that the defendant's conduct fell below the degree of care that a reasonable person would exercise under the circumstances. For centuries, accident caes have been evaluated by juries and triers of fact as to whether a particular action was negligent, within the meaning of the long established common law definition.

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Trial lawyers love court drama in cinema. Film often mirrors life, and great movies have inspired countless individuals to become trial lawyers. An iconic example is the heated courtroom scene in a Few Good Men when Lieutenant Kaffe (Tom Cruise) grills Colonel Jessep (Jack Nicholson) on the witness stand by repeatedly asking, "Did you order the Code Red?" An agitated Jessep initially chastises, "You can't handle the truth" before loudly conceding, "You're god damn right I did!"

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Much has been written about the application of General Obligations Law 5-321 to lease agreements. As a general rule, an entity cannot be indemnified for its own negligence if the nature of the agreement falls under one of the applicable sections of the General Obligations Law.

However, through the recent Court of Appeals decision of Great Northern Insurance Company v. Interior Construction Corp., et al., 7 NY3d 412, 823 NYS2d 765 (2006), the Court of Appeals has reaffirmed its prior 1977 decision of Hogeland v. Sibley, Lindsay & Curr Co., 42 NY2d 153, 397 NYS2d 602 (1977).

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Article 16 of the CPLR—Joint and Several Liability. Just the mention of it can send shivers down the spine to the most experienced trial attorney. What is in essence a simple concept, can often get overly convoluted and confusing.

For many years, it has been the common understanding that Article 16 would not apply in situations where an entity who is liable purely on a vicarious or statutory nature seeks to pass through that liability to the actively negligent party. In such situations, the old adage, “in for a penny, in for a pound” applied.

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On Aug. 10, 2005, accident victims injured due to the negligence of a rental or leased vehicle operator lost a major avenue of recovery with the passage of H.R. 3—The Transportation Equity Act. The new federal law is ostensibly a transportation enactment, providing tremendous funding for substantial highway improvements throughout the 50 states.

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As defense counsel involved in personal injury litigation,we often wish we had the opportunity to talk to our clients before the accident. As Benjamin Franklin said,“An ounce of prevention is worth a pound of cure.” At times, our more proactive clients ask for advice on how to prevent accidents and limit exposure. But unlike most other businesses, an automobile rental company has a somewhat limited ability to reduce the potential for litigation.

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The liability defense bar,property owners and insurance companies in New York have lost one of their more effective tools: the “open and obvious” defense. For more than 80 years, this tool has been used successfully to defend slip,trip and fall cases. But with the March 9, 2004, ruling of the Appellate Division, First Department,in Westbrook v. W.R. Activities-Cabrera Markets, all four of the state’s appellate divisions are now united in eliminating the defense as a complete bar to recovery.

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Whether in upstate New York or downtown Manhattan,dog bite litigation remains omnipresent. In New York State, it is well settled that the owner of a domesticated animal will only be held strictly liable for personal injuries caused by that animal where a plaintiff can demonstrate that the owner knew or should have known of the animal’s vicious propensities.

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Lessors who have been reading Vehicle Leasing Today know the dangers of doing business in a state that imposes vicarious liability upon lessors. Simply stated, the lessor is responsible for the negligent acts of a permissive operator. If the operator causes catastrophic damages, the deep-pocket lessor must pay the tab.

While the National Vehicle Leasing Association is actively lobbying the state legislatures that still impose lessor vicarious liability (LVL) upon leasing companies, the exposure caused by LVL remains. Short of leaving the business, there are steps a leasing company can take to manage this risk.

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Lessor vicarious liability is one of the most pressing issues facing leasing companies doing business in those states with unlimited lessor vicarious liability (New York, Rhode Island, Connecticut, Maine and Washington, D.C.). The recent 28 million dollar verdict against Chase in Rhode Island resulted in favorable press for the leasing industry,including an article in Forbes Magazine (10/28/02), which presented the issue in the most favorable light to leasing companies.

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The specter of mold litigation is closing in on New York. This article will briefly discuss some of the issues to be considered by the attorney defending a mold case as well as advising that attorney of those issues that are paramount in the minds of the insurance carrier who likely assigned him that case.

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In the wake of the $32 million jury verdict rendered in Ballard v. Fire Insurance Exchange, numerous mold contamination claims, asserting both property damage and personal injury, have emerged throughout the country in both residential and commercial settings. New York has followed this trend and the explosive potential of these claims is portrayed in Chenensky v. Glenwood Management Corp., where a family has sued for $180 million for mold exposure arising from a water leak that management knew of for several years. Further, in Rivera v. Phipps Houses Services, plaintiffs filed a rent-abatement action with implicit claims of mold contamination and later settled for $1.8 million. Dozens of other mold claims have been filed under various guises and appear to be the genesis of an oncoming wave of new “toxic tort” litigation. These claims, however, can be defended by excluding scientific testimony, asserting statute of limitations and establishing alternative causation.

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