By Robert Chapski 

We have all been there.  Sometimes the judge rules against you even when you spent days working on the fool proof brief and know the law better than anyone could (or should).   One lawyer learned the hard way, though, that it never pays to show your disdain for the Court. 

Who really knows what happened in the case of a Georgia lawyer who was found in contempt after what the Court perceived to be a disrespectful reaction to a ruling. 

Nevertheless, better to err on the side of caution and take whatever ruling a court hands down with a poker face.  There are other venues and other battles to fight. 

By Eileen Burkhalter Smith 

We have previously mentioned the uptick in jurors texting and messaging during trial. 

This week, a Miami-Dade Circuit Judge declared a mistrial in a civil fraud case resulting from a witness text-messaging on the stand.  The witness was the CEO of the Plaintiff, and he was texting to another company employee who had previously testified.   

A courtroom spectator brought this to the Judge's attention, and the Defense's request for a mistrial was granted.  The Judge's exasperation seems well-founded (especially because this witness had been reprimanded before in this trial about communicating with another witness).

By Eileen Burkhalter Smith  

I think a big challenge to a young lawyer in taking any deposition is knowing what you are entitled to “discover” through questioning and document review.  This is especially difficult with expert witnesses who often have files and documents you may not have seen prior to the deposition.  

I once had an opposing lawyer, one who had been practicing much longer than me, get very irritated with me when I asked to review the expert’s file during a deposition.  The expert’s file was lengthy, and he had referred to it throughout the deposition.  Even though we had discussed a few pages in the file, I asked to look at the whole thing, page by page.  The opposing lawyer was shocked and said “do you want to see what’s in his wallet, too?!”  I was surprised by his obvious frustration, and I believe my response was “uh, no, that is okay.”  

At the time, I knew I was entitled to see the file, and I could not figure out why my opponent was so exasperated.  The rules don’t require me to prove that this information is relevant, and it certainly isn’t privileged.  I think if the expert brings it into the deposition, I am entitled to see it.  Next time, I am going to say, “Sure.  He brought it into the deposition, so hand it over!” 

By Eileen Burkhalter Smith

Great article in the New York Times about the effect of technology on juries, and, more specifically, technology's interference with jury trials. Several recent trials have been appealed or declared a mistrial because of jurors getting public information about the case from their phones with internet access, or posting updates on public messaging sites during the trial or deliberations. 

I dealt with a jury consulting company recently that mentioned they had run into this too. They monitored Facebook during voir dire and were able to eliminate several potential jurors who posted to their Facebook pages during the voir dire, about serving on the jury in that trial. I suspect this may become much more of a problem in the future.

By Brian Malcom 

Jesse Washington for the Associated Press reports that Austin Tighe, co-lead counsel for the NAACP, believes black homebuyers have been 3 1/2 times more likely to receive a subprime loan than white borrowers and "six times more likely to get a subprime rate when refinancing."  In other words, the NAACP believes black applicants were steered into subprime loans despite having qualifications equal to white loan applicants.

Today's suit is not the first of its kind.  Larry Childs, a partner at Waller Lansden, submitted an article for the 2009 Banking Law Seminar in Birmingham, Alabama a month ago today.  The article, Heads You Lose, Tails You Lose: Lender Liability in the New Age of Banking, covered this recent trend of blaming the banks.  Childs wrote, "[t]he cities of Baltimore, Cleveland, and Birmingham, among others, all sued lenders claiming predatory lending.  The municipal/plaintiffs’ lawyer coalition have so far named national and regional lenders who have made the most loans to low-income borrowers and, consequently, have had the highest rates of default.”  Childs predicted that, “[w]ith a worsening economy, litigation relating to subprime loans and predatory lending will continue to increase.”    

While today’s suit by the NAACP is not being brought by a government, like the suits in Baltimore, Birmingham, and Cleveland, the suit will likely contain very similar allegations of discrimination and targeting.  This suit may be a preview of a wave of litigation by private and/or non-profit organizations seeking relief from lending institutions.

Read the Associated Press article here.

Read Larry Childs’s article here:  Heads You Lose Tails You Lose- Lender Liability in the New Age of Banking.pdf (177.08 kb)