Comments on Recent Cases: November 2021

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Part of my work involves reading court decisions to keep abreast of how judges decide the types of cases I handle. Below, I share some thoughts on recent decisions, including one decision about which I wrote an article that was published in Litigation News.

Court Denies Summary Judgment Due to Problems with Expert Report

To proceed from discovery to trial, litigants often need to defeat a motion for summary judgment. To do so, they must submit some evidence that could persuade a judge or jury to rule in their favor.

When one side submits an expert report to support their case for summary judgment, an opponent may submit an opposing report. On summary judgment, the court does not usually decide which report is correct; instead, it usually assesses the reports to see whether the one submitted by the moving party is so airtight that no trial is necessary.

In a recent case, the state appeals court in Manhattan affirmed a trial court decision to deny summary judgment for this very reason. It found that the defendant’s expert report may not be perfectly reliable due to errors in it and it found that the opposing expert report reflected facts that could lead to the plaintiff winning at trial. Accordingly, the court left the decision on which expert is right to trial.

Cases like this illustrate why both sides of a case often need experts and why preparing a good expert report is often crucial for success in litigation.

Court Considers Ethical Issues In Re-Using Text From Legal Briefs

Litigation News recently published my article about the ethical limits to the re-use of documents in litigation.

Attorneys often re-use documents as forms or templates for different matters. This often helps clients by saving time and money, and by incorporating language that has been carefully crafted and tested over time. But attorneys who re-use language inappropriately may face sanctions.

New York Court Narrowly Applies “Stray Remark” Doctrine

It can be difficult for a plaintiff to prove that her employer discriminated against her. Most employers do not expressly say, “I am being racist” or “I am firing you because of your sex.” But plaintiffs often can cite an instance or two of a racist or sexist comment as evidence of discriminatory intent. In response, employers may claim in litigation that these comments were “stray remarks” that seldom occurred and are insufficient to support a discrimination claim.

The state appellate court in Manhattan recently ruled that five homophobic slurs in the span of ten minutes could not constitute stray remarks under New York’s anti-discrimination laws. Presumably, the defendant argued that since the slurs only took place in one ten-minute span, they collectively were one stray remark. But the court rejected the argument, treating them as five separate remarks.

Decisions like this narrow the application of the stray remark doctrine to inappropriate comments that not only are rare, but also brief.

Court Disregards Promise to Pay Adversary’s Attorneys’ Fees Because of a Superseding Contract

After an unfavorable jury verdict, lawyers may ask the judge to set the verdict aside and rule in their favor anyway. This sounds inconsistent with the principle that the jury decides the facts in litigation, but judges may grant the motion if there was no evidence that could have led the jury to decide as they did.

When parties appeal a jury verdict, technically they are appealing the decision to deny a motion to set aside the verdict. In a recent decision, the state appellate court in Manhattan affirmed the denial of such a motion, applying the deferential standard for jury verdicts. It affirmed, not because it agreed with the verdict, but because the evidence at trial was “legally sufficient” to make the jury’s decision “not irrational.”

In particular, it noted that, while the winning lawyer made “inflammatory” statements in summation, the trial judge cured that defect by instructing the jury appropriately.

Cases like this show how hard it can be to reverse a jury verdict.