The Voice^TM

Or so we think. Did you have a plan for 2020? I did, and I bet you did, too. But for most of us, all plans went out the window in March as states of emergency were declared, events were called off, and our offices were shut down. Despite this, I had a great year in 2020. And it wasn’t because of my plans; it was because of my dreams. 

In November, I achieved one of my dreams: publishing a book, #Networked, which I wrote with nineteen other women lawyers who I found on LinkedIn. How did that come about? You guessed it: I met them following a dream. In addition to my law practice, I love writing. It is a passion that has slowly emerged over time as I allowed it. I started writing legal articles and then moved onto blogs about other topics, including law practice, life as a working mom, and mindfulness meditation. Though I had no clue what I was doing or where it might lead, it seemed I was pretty good at it. As I shared my work, people engaged with it, republished it, and expressed that they enjoyed what I had to say. 

This led me to think, “Hey, maybe a lawyer at a small firm in Kentucky might actually be able to write a book someday that a few people will read.” In 2019, I started toying with this idea more and spoke to friends who had published books. They offered great writing advice, but also let me know that a network and a following would be helpful. By that time, I had already started posting on LinkedIn regularly to share my tips on life, law practice, and leadership. Having always been a nerd and someone who rarely presents in an Instagram-worthy pose, I was astounded to see that there was a whole community of other lawyers with an appetite for down-to-earth honesty, occasional bits of awkward humor, and real facts about life as a working parent. 

When things shut down in March, I was fortunate to have already begun the process of creating this community. My new friends from the internet provided inspiration and support at a time when in-person inspiration and support was limited. From them, I got ideas, knowledge about how to use social media better, and so much wisdom about law practice, business, and networking. But I got something even more valuable: validation and confidence. Their feedback and support helped me realize that I had something to say, and that the world and our profession needed to hear it.

So, I kept writing daily posts about working at home, the value of being different, my struggles with perfectionism, anxiety, and mental health, writing, networking as an introvert, and things that mattered to me as a lawyer, a person, and a mom. And as I did, my network grew from around 500 to nearly 5,000 today. It wasn’t long until these new contacts led to business referrals and new opportunities to speak and write, including the chance to write and publish #Networked. 

Don’t get me wrong. Planning is part of progress. You cannot survive on dreams alone. But my point here is that you cannot thrive without them. Planning helped me create a process for creating content. I used it to identify topics, pay enough attention to the algorithm to avoid being constantly batted down by it, and to grow my network consistently over time. But my dream of writing a book provided the inspiration and motivation to keep going. It inspired me to post on days that I did not feel like it and to keep coming back when a post didn’t do as well I expected. It gave me courage to reach out to new people who interested me, even though as an introvert my tendency is to do everything on my own. It reminded me that there was always something bigger that my small, daily actions might help me to achieve.

Other lawyers often ask me how I “find the time” to write so much and to post each day on LinkedIn. I think they are expecting me to give them a time management strategy. I think they are looking for a plan. Some of my co-authors have plans, some of which are described in the chapters of #Networked, and I admire them for executing their plans incredibly well. But I don’t rely on plans when I post on LinkedIn, blog, or write. I follow my dreams instead. It has allowed me to share ideas and parts of myself that I never thought I could, make friends who I never would have met otherwise, and create opportunities for my firm and myself where none existed.  

If you are considering using social media actively or writing more, I do not dissuade you from planning. For us to manage our lives and practices and add anything new into the mix, planning, without question, is essential. But to create something where it didn’t exist before, or to try something that is new (and hard―and scary), or to keep on going and adjusting and learning from every failure requires more. To persist in the face of all of that, you need a dream. I sincerely hope that 2021 is much gentler with all our plans, but more than anything, I hope this year gives you a chance to dream.  

Claire E. Parsons is a member at Adams Law PLLC in Covington, Kentucky. She is a member of the DRI Governmental Liability, Women in the Law, and DRI for Life Committees and a past president of Kentucky Defense Counsel, Inc. She is a frequent, writer, speaker, and certified meditation teacher, who recently launched a blog on mindfulness for lawyers called Brilliant Legal Mind. You can follow her blog on Wordpress or social media or connect or follow Claire on LinkedIn. 

Courts also had to pivot; they implemented technological innovations to keep the system churning, with remote motion arguments, conferences, execution of discovery orders, and the like. Of course, the industry’s technological upheaval remains a work in progress, but we’re moving in the right direction. 

With the end to COVID in sight (hopefully), the pandemic has provided a roadmap for how the practice of law can be optimized toward client satisfaction—the foundation of this business. Here are some thoughts to consider as we envision the industry in the not-too-distant future. 

Virtual Appearances, Depositions, and Mediations Are Commonplace

When the pandemic started, many attorneys—me included—balked at the prospect of conducting remote depositions, which would not afford the opportunity to “size up” the witness in person. At this point, most of us have conducted dozens of remote depositions, which have similar utility to the in-person variety (especially considering that in-person depositions during the pandemic would involve masks, thereby making a witness’s demeanor more difficult to gauge). Remote depositions, at least for some witnesses, are here to stay.

In New York, where I practice, social distancing during in-person compliance conferences is next to impossible. Anyone who has appeared at, say, the compliance part in Kings County, will tell you that the practice resembles a cross between attending a busy DMV office and the commodities exchange at the end of Trading Places. Those court parts will not return before universal vaccinations—and may not return at all. Instead, attorneys will likely be permitted, if not encouraged, to document discovery compliance remotely.

As for other virtual court appearances, such as oral arguments, virtual practice offers a cost-effective, efficient, and pragmatic option for lawyers, clients, and the court system. Will virtual appearances replace all in-person litigation? Of course not. But courts are now equipped to handle some degree of remote litigation. The decision travel to court physically will hinge on the matter’s nature, the benefit of in-person practice, scheduling feasibility, and client preference. We expect certain important motions will be argued in person, but parties will continue to take advantage of some remote technologies.  

Virtual mediations, in our experience, have been quite popular and will almost certainly continue in a post-COVID world. In persona attendance at mediation often presents an inconvenience for insurance representatives and risk managers, who live and work well outside the jurisdiction of the cases they manage. Conversely, “calling in” to mediation, a pre-COVID practice, is less than ideal, given that the mediation’s tone can be lost through audio-exclusive communications. Virtual mediations, through audio–visual means, provide a practical compromise between the extremes.   Most likely expect some degree of remote mediation attendance is here for good. 

Virtual Bench Trials vs. Traditional Jury Trials

Depending on the jurisdiction, virtual bench trials will allow deponents and lawyers to participate from different places around the world. This will reduce client costs, and with an impartial judge as a finder of fact, it does present an option, particularly for brief trials with a low number of parties.  

Jury trials, however, are unlikely to move into a remote format—at least for the jurors, themselves. There have been a few virtual jury trials conducted throughout the country, which garnered mixed reviews in legal publications. Conducting a full, virtual, jury trial leaves litigants at the mercy of every juror’s internet connection for the duration of trial. Additionally, virtual jury trials present a host of other issues, including impractical hardships on the litigants—and the court system—when jurors fail to focus properly on the evidence presented via remote format. With all we have learned about remote litigation since March 2020, we expect post-COVID jury trials to resemble pre-COVID times once normalcy returns. The practical and appellate pitfalls of virtual jury trials will likely render them impractical, at least on a large-scale basis.

Virtual Workforce and Cybersecurity

The grind of the daily commute will return, but unlikely to the same degree as before. Working from home is no longer stigmatized, but is commonplace. For many companies, a virtual workforce will likely continue—at least on a limited basis. Firms with remote capabilities can function productively and effectively, which will cause more firms to downsize commercial spaces. 

The reality of work-from-home options does create additional risks for law firms to address. From a cyber perspective, law firms are one of many “vendors” that insurers use to help them manage risk. And as vendors, law firms are expected to abide by carrier guidelines, which include having appropriate cybersecurity and data privacy safeguards. The remote workforce evolution has created new cyber compliance issues that did not exist before 2020 (at least, not to the same degree). Law firm owners and privacy managers need to be mindful that a new set of safeguards must be considered, since firms with a remote workforce must rely on the security of multiple networks to function properly. If carrier guidelines do not yet specifically reference remote law practice and how it affects cyber/privacy issues, they will soon enough.

If firms can effectively consider, implement, and manage cybersecurity safeguards in their own law practices, firms will be ready for whatever carrier guidelines must be followed in the future. By understanding cybersecurity compliance and protocols, firms can apply this knowledge to counsel clients accurately about cyber-related issues when they happen (especially for those clients that are completely “in the dark” about cyber-related issues).

Obviously, attorneys cannot counsel clients about a field they do not fully understand. But learning the basics about data breach claims and response is an achievable goal.

Conclusion

The pandemic effect has already changed how we practice law, how clients evaluate firms, and even how firms evaluate employees. Not to get all existential here, but over the past ten to fifteen years, how many of us have lamented that we—or our children—are “glued to a screen all day.” As it turns out, years of screen time may have prepared us to conduct business during this pandemic. To be sure, if COVID-19 had been COVID-07, meaning, it had occurred in 2007, countless law firms would not have survived. In that sense, we should be grateful that the accumulation of screen time enabled us to function since March 2020.  Looking to a post-COVID world, we need to recognize certain segments of remote law practice are probably here to stay—as long as they are accompanied by the occasional happy hour!

The year 2020 (and now, 2021) never ceased to amaze us in terms of how many people want meaningful changes, as well as how those people choose to go about realizing their desired changes. We witnessed the storming of the Capitol Building on January 6, 2021, by American citizens, where we saw political supporters seeking to change the results of an already determined election. We also saw the George Floyd protests, where millions of people marched in this country and worldwide during a health crisis, to express disapproval of continued instances of police brutality aimed at minorities, predominantly Black men. The latest display of people’s desire for change is states and individuals now relaxing COVID restrictions, placing their hopes entirely in recently developed vaccines, all out of an eagerness to return to some sort of normalcy, whether for mental health or economic survival. While this narrative of hope by way of vaccines may help bring about an end to the COVID-19 pandemic, it will not change the glaring injustice experienced by all minorities, including women, Blacks, Latino Americans, Asian Americans, and Americans who identify as LGBTQIA+.

In underrepresented minority communities, COVID-19 has illuminated police brutality, lack of access to health care, and economic inequality, to name a few. Many of the individuals in these communities were already aware of these issues, as I expect that many of you reading this article are also well aware. However, you may not be aware of, or have not yet discovered, that this pandemic also created a lot of opportunities to address these problems, and hopefully achieve a lasting change for the better. As attorneys, we now find ourselves in a unique, but not an uncommon, position to guide this change in our communities through our abilities as problem solvers. This position is no different from the roles of the civil rights attorneys on whose shoulders we stand today.

No matter our differences (whether rooted in politics, race, gender, sexual orientation, or disability) or where our problems may lie (whether social or economic), we can all agree that there are changes we want to see. 

Let’s make it clear, this pandemic created and illuminated problems for every community, regardless of race, color, creed, or religion. However, every attorney can guide change in his or her community. No matter our differences (whether rooted in politics, race, gender, sexual orientation, or disability) or where our problems may lie (whether social or economic), we can all agree that there are changes we want to see. And although it is abundantly clear to some that there are two Americas (one, some may argue, is either diametrically opposed to the rights of the other or, at a minimum, possesses more liberties and freedoms than the other), we all are countrymen, and hopefully it resonates that we all have problems, some of which we share. This country is searching for solutions to these problems. Unfortunately, the methods some use when seeking change seem historically ineffective at bringing about a lasting cultural or societal shift.

But we can realize meaningful, lasting change! You can. Whether you are in-house or at a large, medium, or small firm, an associate or a partner, there are many things that you can do to guide the change you want to see, no matter what that change might be. You can get involved with local organizations; take on pro bono cases (for example, helping with evictions or civil rights); help change existing laws or help pass new ones; make a presentation to your clients about diversity and social issues that you care about; or encourage your clients to get involved in, or make donations to, organizations that champion your shared values.

We can do many things as attorneys to guide the change we all want, and, in the middle of our own vintages, we may have lost sight of our ability to create this change in our community. But with our abilities to solve problems, and the willingness to work, we can guide our communities during this COVID-19 pandemic to create lasting change.

Kennard Davis is an associate in the New Orleans Office of Kuchler Polk & Weiner, where he practices in the areas of commercial litigation, energy and natural resources, premises liability, product liability, and toxic torts. Kennard has been a member of DRI for three years and is the Membership Chair of DRI’s Diversity and Inclusion Committee. He is also a member of the Greater New Orleans Louis A. Martinet Legal Society, the Louisiana State Bar Association Young Lawyers Division Member, the A.P. Tureaud Inn of Court, the New Orleans Bar Association, and Son of a Saint. 

People form judgements about us from the moment we open our mouths, and juries are no different. Voice quality can draw jurors in or push them away. A warm, authentic, intelligible, compelling voice will typically get a jury on your side. Problems arise if vocal quality is strident, harsh, or nasally. It could be that words are not clear, that volume is too low or too high, or that the rate is too slow or too fast. It could be that your body language and gestures obscure your message, or that a regional accent confuses the listener or draws attention away from your message. Whatever the communication issue, you can eliminate many barriers to clarity. 

You don’t have to be stuck with the voice you think you were born with. By learning a few basics about how the voice works, and with practice, you can make substantial changes to how you sound and how a jury responds to you.

I want to first acknowledge just how challenging your job is. You must get the jury on your side. You must engage, impress, and convince them. You want to make them feel your client’s  diligence, empathy, accountability, compassion, or even outrage. This is not easy—for anyone. You will spend multiple hours and many days researching, writing, constructing, and rehearsing your argument to ensure success. Most of you will simply hope that your voice comes along for the ride and does what it needs to do.

Think about the best litigators you have seen and heard. The “litigator from heaven.” What about their voices made them expressive and compelling? What I typically hear in response to this question is strong volume, clear and articulate words, warm and confident quality, vocal variety, and ease. The expressive voice is an integration of a number of systems in the body that work together. Each system can be trained to perform at a higher level. Baring accident or extreme illness, we all have the same equipment for powerful and clear speech.

Let’s look at the component parts of the voice: the body, the breath, the resonators, and the articulators.

Our body can suppress or release the voice based on how much tension it carries. Expressive speakers know that releasing habitual tension is the first step. Tension anywhere in the body can have a significant, negative effect on voice. Tension in the head, neck, shoulders, rib cage, hips, knees, and feet radiates to the vocal folds and dampens the voice. A small, high voice is caused by tension; a constricted husky sound is caused by tension. Mumbled and mushy voices are caused by tension.

Stretching and shaking major body parts can release habitual tension that we don’t even know exists. Isolation of body parts is a simple release exercise that relaxes and energizes the body.

Start with the feet, put a circle in each ankle and then shakes out the foot. Soften the knees; locked knees will destroy ease and presence, as well as block deep central breathing. Put a circle in your hips, like the hula hoop days of your youth. Stretch your rib cage. Move your shoulders in a circle. Gently release your head and neck.

Breath is the integral power source of the voice. What you hear and recognize as human speech is breath that moves out of the lungs past the vocal folds, which vibrate against the flow of breath hundreds of times per second. If you don’t have enough breath, you don’t have powerful, energized sound. There are a number of specific exercises that can help a speaker learn how to breathe deeply, centrally, and efficiently.

The resonators are the body’s natural amplifiers. Think of your mouth as your megaphone. If you mouth is small and tight, your voice will be small and tight. Massage the jaw hinge, clean the inside of your mouth with your tongue, do a big open mouth yawn. Intentionally make more space in our mouth, and the voice will be louder and warmer.

If you have been told that you can’t always be understood, it may be an articulation issue. For any number of reasons, our articulators may be lazy. We may leave out parts of words or final consonants. A helpful exercise is “every part of every word.” Practice your speech at a low volume and focus on saying every part of every word, each syllable, each vowel, and each consonant. Then go back and just say it at your regular volume level. Once your mouth has intentionally done every sound, you will be much more articulate when you speak with ease.

The next time you are preparing for an opening or closing, follow this simple checklist:

• Release physical tension.
• Ground your feet, soften your knees.
• Connect to deep central breath.
• Make space in your mouth.
• Speak your words clearly.

Back to our image of the litigators from heaven who we discussed earlier, they are comfortable in their own skin. If you follow the five steps above before you walk into the courtroom, you will be comfortable in your own skin and your voice will be strong and compelling.

Rena Cook M.A., M.F.A., is the founder of Vocal Authority and a professor emeritus at the University of Oklahoma.  Ms. Cook is a professional voice coach dedicated to growth in communication, confidence, and presence.  As an author, speaker, and presenter, Rena helps people develop a more authentic and compelling delivery style.  Her recent book, Empower Your Voice: For Women in Business, Politics, and Life, is available on Amazon; her seminar “The Expressive Litigator” is being developed into a book.

Allocation is a complex issue when a jury renders a general verdict, and there is no allocation of the damages that are the basis for the verdict, or when the parties do not have the jury issue a special verdict or answer special interrogatories that may provide answers or insight into the jury’s verdict. One issue is determining which party should bear the burden of allocating or bearing the consequences of a general verdict if the damages were not allocated before the judgment or in a settlement agreement. 

The South Carolina Supreme Court recently established a procedure for allocating general verdicts in a construction defect suit. Ex Parte: Builders Mutual Ins. Co., 431 S.C. 93, 847 S.E.2d 87 (2020). In a decision before Ex Parte: Builders Mutual Ins. Co., the South Carolina Supreme Court held that the removal and replacement of defective work to repair “property damage” was not an insured loss, even if such costs are incidental to the repair of property damage. Auto Owners Ins. Co. v. Newman, 385 S.C.187, 197–98, 684 S.E.2d 541, 546 (2009). Accordingly, for a construction defect suit in South Carolina, one has to isolate within a verdict what may be the cost to repair “property damage,” excluding the costs to remove and replace defective work.

The appeal in Ex Parte: Builders Mutual Ins. Co. arose out of motions by insurers to intervene in an underlying condominium construction defect suit to have the trial court submit special interrogatories to the jury to allocate damages in accordance with the principles in Newman. For the underlying construction defect suit, there was sufficient testimony and documents in the record for the jury to perform an allocation as part of the deliberation. The proposed interrogatories would be submitted to the jury without advising the jury of insurance or the purpose of the interrogatories.

Insurers were regularly moving to intervene in South Carolina because the supreme court in Newman bound Auto-Owners Ins. Co. to a general arbitration award rendered in the underlying construction defect proceeding in a later declaratory judgment action brought by Auto-Owners Ins. Co. Newman, 385 S.C. at 198, 684 S.E.2d at 547. The supreme court stated that Auto-Owners Ins. Co. could have requested that the arbitrator allocate the award between insured and noninsured losses. Id. Years later, the South Carolina Supreme Court affirmed the same result in another insurance coverage action arising out of a general jury verdict and judgment in a construction defect suit. Harleysville Grp. Ins. v. Heritage Cmtys., Inc., 420 S.C. 321, 363, 803 S.E.2d 288, 311 (2017). 

In Ex Parte: Builders Mutual Ins. Co., the supreme court affirmed the trial court’s denial of the motions to intervene by insurers and held that insurers would not now be bound by a general verdict or judgment in an underlying action. Ex Parte: Builders Mutual Ins. Co., 431 S.C. at 109, 847 S.E.2d at 95–96 (stating “[t]he Insurers most assuredly have a right to a determination of which portions of the Association's damages are covered under the commercial general liability (CGL) policies between the Insurers and the Insureds. As such, we reaffirm our prior holdings allowing insurance companies to contest coverage in a subsequent declaratory judgment action.”). 

The supreme court established a new procedure in South Carolina for parties to allocate a general verdict for the purposes of insurance coverage. Ex Parte: Builders Mutual Ins. Co., 431 S.C. at 109, 847 S.E.2d at 95–96. First, the supreme court stated that the parties may agree on a procedure. Id. Failing an agreement between the parties, the supreme court established a default procedure to allow litigants to use percentages, rather than exact dollar amounts, to determine the amount of covered and noncovered damages in a general verdict:  

John L. McCants is a member in the law firm of Rogers Lewis Jackson Mann and Quinn LLC in Columbia, South Carolina, and is now in his 34th year of the practice of law. He concentrates his practice, in part, on insurance coverage and complex construction litigation, representing general contractors, specialty subcontractors, and other parties in arbitrations and civil court. Mr. McCants has been selected for the 2021 edition of Best Lawyers in America in the construction litigation category and 2021 South Carolina Super Lawyers in the construction litigation category. He is the publications chair of the DRI Construction Law Committee.

Marisa Trasatti, Robert E. Scott Jr., and Kevin Foreman

On February 24, 2021, in the federal sex trafficking matter, J.L. v. Best Western International, Inc., et al., 1:19-cv-3713 (D. Colo.), DRI members and Wilson Elser attorneys Marisa Trasatti, Robert E. Scott, Jr., and Kevin Foreman successfully achieved dismissal of the first amended complaint against a major U.S. hotel brand in a federal civil case arising from alleged sex trafficking on premise in the U.S. District Court for the District of Colorado. Judge Brimmer granted the motion to dismiss with prejudice as to all claims after permitting one round of repleading by the plaintiff. The first amended complaint alleged one count against each defendant under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). Other brand hotelier defendants also prevailed.

Charles Spevacek

On February 8, 2021, Meagher + Geer PLLP attorney Charles (Chuck) Spevacek and his team made news heard around the insurance world when they obtained on behalf of two Chubb entities—ACE American Insurance Company and ACE Property & Casualty Insurance Company—an order from United States District Court for the District of Minnesota granting their motion for summary judgment and dismissing the claim of Target Corporation for insurance coverage for losses arising out of its 2013 data breach. In November of 2019, Target sued its primary CGL insurer ACE American, and third-layer excess CGL carrier ACE Property & Casualty, for breach of contract and for a declaratory judgment, seeking to compel the defendants to indemnify it for the sums paid in settlement of the claims of various payment card issuing companies alleged as the cost of replacement of millions of plastic payment cards compromised as a result of Target’s 2013 data breach. Target claimed that its settlement payments were reimbursable under the ACE-issued, primary CGL and excess CGL policies as sums it was legally obligated to pay as damages for the loss of use of tangible property. The court rejected Target’s claims and directed that summary judgment be entered in favor of the ACE defendants.

News of this decision has been reported in the Insurance Journal, Reuters, Insurance Business, Business Insurance, The Insurer, and Fintech Zoom. It was the “headline” case reported in Law360 Insurance.

Robert E. Noble III and Robert Luskin

Goodman McGuffey LLP attorneys and DRI members Robert. E Noble III and Robert A. Luskin won summary judgement for Noodle Life, a closely held family corporation, in Hee Jin Lowery and John Lowery v. Noodle Life, Inc., a restaurant liability matter involving soup spilled into the plaintiff’s lap. This case turned more complex when allegations of alter ego, agency, joint venture and attempts to pierce the corporate veil were injected into the litigation.

Both Robert and Bert practice in the firm’s Atlanta office, covering a wide range of restaurant, hospitality, and other litigated matters.

Christopher T. Sheean and Eric J. Skwiat

DRI members Christopher (Chris) T. Sheean, a partner at Swanson Martin & Bell LLP in Chicago, and Eric J. Skwiat, a senior associate at the firm, obtained summary judgment on February 23, 2021, on behalf of their clients, Barnett Outdoors LLC and Dick’s Sporting Goods, Inc., in the United States District Court for the Southern District of New York. 
The case involved claims that the plaintiff suffered severe injuries when she fired her Barnett Lady Raptor crossbow, damaging her left thumb, which she had inadvertently placed in the path of the bowstring. The plaintiff argued that the crossbow was defective because it lacked an adequate thumb guard. The plaintiff’s expert had argued that a feasible alternative design existed, but in an earlier ruling on a Daubert motion, the court barred that testimony, finding the expert had failed to demonstrate that he had adequately tested the alternative designs to render a reliable opinion. See Nemes v. Dick’s Sporting Goods, Inc., No. 17-CV-1688 (NSR), 2019 WL 3982212, at *10 (S.D.N.Y. Aug. 23, 2019). The plaintiff’s counsel argued that they should be permitted to present their case to a jury absent expert testimony on feasible alternative design, arguing that the economic and technological feasibility and benefits of a wider guard were within the ken of the ordinary juror. Defendants argued that the proposed alternative design lacked any reliable support, was an engineering concept beyond the knowledge of the average person, and that the case should not be permitted to proceed to trial.

Applying New York law, Judge Nelson S. Roman granted summary judgment on the plaintiff’s claims for strict liability, negligence, and breach of warranty. The court noted that under New York precedent, a party cannot present evidence at trial of a feasible alternative design absent expert testimony, unless the economic and technological feasibility of the proposed alternative design would be obvious to a lay person. Without any expert testimony to support the plaintiff’s claim that a wider finger reminder on the Lady Raptor crossbow was a feasible alternative design, the court found that the plaintiff could not prevail at trial under New York law on a claim for strict liability. In reaching the decision, the court declined to follow the holding in Castaldi v. Land Rover N. Am., Inc., No. 06-CV-1008JGKAM, 2007 WL 4165283, at *10 (E.D.N.Y. Nov. 21, 2007), noting that decision was not persuasive and misstated the holding in Faryniarz v. Nike, Inc. (Faryniarz I), 2002 WL 530997 (S.D.N.Y. 2002).

The court also granted summary judgment on the plaintiff’s negligence claim, finding that “[t]he feasibility of an alternative design is an ‘element [] of design-defect claims under both strict product liability and negligence theories.’” Nemes, Case No. 17-CV-1688 (NSR), Dkt. 72, at. P. 14), citing Erazo v. SCM Group N.Am., 2019 WL 1044365, at *20. The court gave a detailed discussion regarding the distinction between a claim for breach of the implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability, noting the plaintiff’s counsel’s failure to distinguish the two claims in the plaintiff’s complaint and briefs. Finally, the court granted summary judgment on the plaintiff’s claim for breach of an express warranty, finding that the plaintiff’s counsel had abandoned that claim by failing to address it in their briefs.

Paul Caleo and Lynn Rivera

The plaintiff, a USC college student, alleged millions of dollars in damages for claims of kidnapping and sexual assault arising from sexual intercourse with a driver named as co-defendant.  The plaintiff was highly intoxicated. The plaintiff alleged the motel, Snooty Fox Motor Inn, an hourly room rental establishment, was responsible for the rape because it rented her and the driver a motel room. The plaintiff argued that the motel should not have rented her a room because it had inadequate security, she was too intoxicated to present at the check-in window, had an improper Swedish identification, and vomited and fell in the parking lot. 

DRI members Paul Caleo and Lynn Rivera of Burnham Brown filed a motion for summary judgment in Los Angeles Superior Court, arguing that the crimes were not foreseeable to the motel, and it breached no duty of care owed to the plaintiff. The plaintiff opposed the motion, arguing there was a triable issue of fact on whether the motel had inadequate security measures. The court granted the motion in its entirely, finding the motel breached no duty of care owed to plaintiff as a matter of law resulting in a judgment in Snooty Fox’s favor against the plaintiff.  Los Angeles County Superior Court is well known as a difficult venue to obtain a favorable ruling on a motion for summary judgment.