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Optimizing Trial Technology and Tools

Even the most experienced trial attorney can be intimidated by the use of technology at trial.  The litigation world has come a long way.  In less than 15 years, we have gone from distributing paper copies of exhibits to jurors—even in complex commercial trials—to having a variety of technological options available.  And not just for displaying exhibits, but for scientific demonstrations, opening/closing aids, and showing live testimony from remote locations.  To be competitive, trial lawyers need to know what the technological options are, how to use them, and how to do so effectively.

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Respond with Caution! Responses to Discovery “Subject to the Stated Objections” May Waive Your Client’s Objections

A growing number of federal courts have confirmed that the once-common discovery practice of asserting an objection, followed by a bare “conditional” response, i.e., stating that “Without waiving the stated objections, defendant will produce non-privileged responsive documents,” is now considered improper and may result in an inadvertent waiver of the party’s stated objections.

It has become common practice among many litigators to respond to a discovery request by stating the party’s objection, followed by a conditional response.  For instance, practitioners routinely respond to a discovery request by stating, “Subject to and without waiving the stated objections, Defendant will produce non-privileged responsive documents.” Many federal district courts are concluding that such a conditional response, without specifying which part is objected to and which part is being responded to, is improper and, most significantly, that a party may waive its objections by responding conditionally.  Sprint Comm. Co., L.P. v. Comcast Cable Comm., LLC, No. 11-02684-JWL, 2014 WL -------, *4–8 (D. Kan. Feb. 11, 2014), available at

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Liebeck v. McDonalds Restaurants: The Original Coffee Product Liability Case

Back in 1994, Stella Liebeck v. McDonalds Restaurants became one of the most talked about lawsuits in American history. To this day, that New Mexico state court case is an essential component of any tort reform debate or discussion of litigation lore.  At that time, and to this day, the thought of a fast food drive-thru customer spilling coffee on herself in her vehicle and later recovering a punitive verdict of $2.7 million was simply too much for many members of the public. As we all know, the case became fodder for late night talk show hosts and later, Internet commentators, most of whom were relatively unfamiliar with the basic facts of the case. Over the years, the case has become part cautionary tale, part urban legend, and individuals seeking confirmation of even the most basic facts of the case have encountered great difficulty (in part because the case resulted in no formal appellate opinion setting forth its factual and procedural background).

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