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"Litigators' Immunity From Non-Client Lawsuits"
In their zeal to represent clients with winning excellence, litigators often say or do things that hurt non-clients such as adverse parties and counsel as well as third person non-parties. For policy reasons, the law provides litigators with immunity from civil liability to non-clients. The doctrine often is called the "Litigation Privilege".
Is the immunity from civil suit "absolute" or "qualified"? What if the attorney violates an ethical rule? Does the immunity still hold? Where is the line to be drawn and non-client suits to be permitted? And, oh yes, then there's that pesky N.Y. Judiciary Law Section 487 to keep in mind. The questions are important since surveys suggest that some 20% of lawsuits filed versus lawyers are brought by non-client claimants.
The column briefly surveys the landscape, provides information sources for further research and focuses on a hot-off-the-press Texas Supreme Court decision where a products liability defense firm and experts it hired were independently sued and accused of spoliation of evidence.
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‘Residual Hearsay’ Exception: Recent Changes Bring More Muscle'
Significant changes were made to Federal Evidence Rule 807, effective December 1, 2020. The so-called Residual Hearsay Exception would allow into evidence hearsay statements even if they don't fall within the array of "standard" hearsay exceptions found in FRE 803 and 804 -- provided certain conditions are met. The Residual Exception has not been used so often in the past but the changes likely will make it more of a "go-to" weapon in litigation. Judges are vested with lots of discretion and that, too, may make Rule 807 more attractive for them to use as an admissibility mechanism. Further, counsel can seek a Rule 104 hearing on admissibility of the item but keep in mind that the court is not bound by the rules of evidence in such hearings, except for privilege. The risks need to be assessed.
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Congratulations to PLAC Member De Martenson of Huie Law for being inducted into the 2019 Class of Fellows by the Alabama Law Foundation. Click here to read the full press release.
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