What is an implied private right of action?

First look at the phrase "private right of action".  Action here means a civil lawsuit.  Private right of action means a private person - - we're not referring to the state - - has the right to commence a lawsuit.  

When a legislature passes a law, the state can prosecute someone who violates the law.  For example, federal law prohibits people from defrauding others in connection with the sale and purchase of securities (securities = stocks etc.)  That means the state has the power to prosecute people who defraud others in connection with securities transactions.   But private persons also have the right to sue defendants they allege violated certain types of securities laws - - this is a private right of action.

 US law generally refers to two types of private rights of action - - (i) express and (ii) implied.  An express private right of action is where the legislature states in a statute that private persons have the right to sue if someone violates the law. For example, let's say Congress passes a law prohibiting people from participating in a criminal enterprise and expressly authorizes private persons to sue in federal court if they were victimized by the criminal enterprise.  Congress is granting people an express right of action based on the federal law.

But some private rights of action are implied.  The legislature might not expressly state that private persons have a right to sue but the courts conclude that the legislature intended to empower private persons to sue defendants who violated the law.  The court would say the statute creates an implied private right of action.

Also, courts have concluded that people have an implied right to sue based on certain types of Constitutional violations.  

For example, the United States Constitution does not say that private persons have the right to sue federal agents who violate their rights.  But the Supreme Court concluded that there is an implied private right of action to sue federal officials who violate a person's Constitutional rights (Bivens v. Six Unnamed Agents - - post on that is here).

Below is a video on private rights of action.

 

Are expert witnesses paid?

Yes, expert witnesses are usually paid.  Experts are typically hired by one of the parties to a case and are compensated for their time developing their expert opinions.  If fact, if you look at the Federal Rules of Civil Procedure, you will see that experts are required to disclose their compensation.  

In some high profile cases experts can be paid quite a bit for their preparation time.  

 

What is an expert witness?

There are two types of witnesses - - fact witnesses (sometimes called percipient witnesses or eyewitnesses) and expert witnesses.  

Most witnesses are so-called fact witnesses and can testify as to what they personally saw, heard, or experienced.   For example, a witness to a car accident can testify about what he personally saw.  But could he testify as to whether the car that was involved in the accident was properly designed?  Probably not.  Even if he has an opinion, a judge won't allow him to testify because his lay opinion will not help the jury.  

To testify about car design and many other topics that require specialized knowledge, one must be an expert.  Experts can provide opinion testimony about matters that ordinary people  cannot.  Think about television crime dramas where medical professionals testify about the time and cause of death even though they did not see the victim die.  

Before a witness can testify as an expert he has to satisfy several criteria.  If you look at Federal Rule of Evidence 702 you can see the standards in the federal courts for a witness to testify as an expert.  First, the judge will have to be satisfied that the witness is actually an expert based upon education, training, knowledge, or skill.  For example, a doctor or a medical researcher might have the appropriate education and training to testify about a new drug.

Second, the judge must be satisfied that the expert's testimony is based upon sufficient facts or data and that the expert applied the proper principles to the facts or data to reach his conclusion.  It's not enough for a doctor to say that he believes a certain type of medicine was inappropriate to treat a patient.  The  doctor must satisfy the judge that his analysis was sufficiently rigorous.

Finally, if the judge agrees that the witness is an expert, and that the expert applied the proper principles and methods to the facts and data to reach his conclusion, the witness will be allowed to testify if the judge believes that the expert's testimony will be helpful to  the jury.  

I uploaded a video to my Youtube page on expert witnesses:

 

What is a deposition?

A deposition is where a witness or a party must answer questions under oath before trial.  The deponent's answer are transcribed and today many depositions are videotaped.  Depositions typically take place in a conference room.  The judge is not present.  

Depositions are an important discovery device - - remember, discovery is how parties obtain and share information prior to trial in a civil litigation.   

Depositions are a useful way for lawyers to learn what witnesses will later say at trial.  A witness who contradicts his deposition testimony will come across as unbelievable at trial.   Based on deposition testimony and other evidence acquired during discovery, parties will often move for (and oppose) summary judgment.

Depositions usually take place after the parties exchange documents.  Lawyers can then ask deponents about the documents.  For example, in a business litigation, an executive might be questioned for hours or even days about emails that he sent and received.

 

 

 

What is remand? New Video.

Remand is where a court gives a case back to another court.  If you are studying US law you will typically see a court remand a case back to another court in two situations: (i) after an appeal; (ii) after a case is improperly removed to federal court.  I talked a bit about remand after improper removal in an earlier post.  You will also often see an appellate court remand a case back to a trial court.  For example, if an appellate court thinks that a trial court applies a law incorrectly, the appellate court can remand the case back to the trial court and instruct the court to apply the law correctly.

I uploaded a video on remand:

New Impleader Video

Back in May I posted a short entry on impleader.  Below is a video on impleader that I just uploaded.

 In the federal courts impleader is governed by Rule 14 of the Federal Rules of Civil Procedure.  States also allow impleader.  

Generally speaking, the Federal Rules (and state rules) favor resolving related disputes in a single case to promote efficiency.  Impleader allows a defendant to sue a third party based on the principle that if the defendant is liable to the plaintiff, then this third party is liable to the defendant.  The defendant is now also called a third party plaintiff.  The original plaintiff's lawsuit against the defendant/third party plaintiff and the defendant/third party plaintiff's lawsuit against the third party defendant are resolved in the same case.

Let's say A sues B.  B's insurance policy requires C to reimburse B if B owes money to A.  B can implead C into the case.  B sues C as a third party plaintiff arguing that if B owes any money to A, C must owe money to B.

 

Why do US textbooks refer to property rights as a "bundle of rights"?

If you take a class on property law in the US at some point you will probably see a reference to "bundles of rights." The student is meant to imagine someone holding a bundle of sticks and each stick represents a right with respect to a piece of land or personal property.

One way to think about this is ...what exactly do we mean when someone "owns" something?  Let's say you buy a car.  We say you "own the car" but we mean that you have a number of rights with respect to the car.  You can drive the car, sell the car, and tell me to stay out of your car.  

But other people might have rights with respect to property, too.  If a mechanic works on your car and you don't pay him, he might have rights to hold the car.  Let's say you buy a house but allow me to stay in your house as a tenant. I might have the right to exclude you or other people from entering the house.  

Below is a video introducing some of these ideas:

 

 

 

 

What is a concurring opinion?

A concurring opinion is where a judge agrees with another judge or judges' conclusion, but explains that he arrived at the same conclusion for different or additional reasons.

Remember, in the United States, appellate courts are comprised of a panel of at least three judges.  Let's say a panel of three judges must decide whether to affirm or reverse a trial court's decision.  All three of the judges might agree that the trial court's decision should be reversed.  However, the judges might have different reasons why the trial court should be reversed.  When a judge decides to write why he agrees with the conclusion that another judge reached but for different or additional reasons, he writes a  concurring opinion.

Attorneys in the United States must be careful to distinguish a majority opinion from a concurring opinion.  I'll talk about that more soon but for now, here is a video on concurring opinions.

 

 

What is exclusive federal subject matter jurisdiction?

When we say subject matter jurisdiction we mean the power of a court to decide a certain type of case.  Federal courts in the United States have the power to decide some types of cases but they do not have subject matter jurisdiction over every type of case in the United States.

U.S. federal courts' subject matter jurisdiction comes from the Constitution and the Congress of the United States.  If you look at Article III of the U.S. Constitution you will see a list of cases in which the federal courts have subject matter jurisdiction.  These cases include, among other things, admiralty cases, patent cases, and cases between two different states (e.g., New York sues New Jersey).  

Some cases can be heard in both state and federal courts.  We can say that the federal and state courts have concurrent jurisdiction over those types of cases.

For some types of cases federal courts have exclusive federal subject matter jurisdiction - - only federal courts can decide these types of cases.  In other words, the cases cannot be heard in state court.   Some examples where federal courts have exclusive subject matter jurisdiction include the types of cases I listed above as well as bankruptcy cases and federal antitrust cases.

 When passing a law, sometimes Congress will specify that federal courts have exclusive subject matter jurisdiction.   For example, if you look at 18 USC 2338 and subsequent sections you will see that Congress established certain laws addressing terrorism and that these cases can only be heard in federal courts.

 

 

What if someone refuses to share information during discovery?

You have probably learned that in the United States courts favor broad discovery.  For example, in federal court parties are required to disclose certain information at the beginning of the case without being asked.  Parties then must meet to create a plan and schedule for discovery.   During discovery parties are able to seek a wide range of information from each other.  

Of course there are controversies.  For example, one party might believe that a document is immune from discovery because the document came from the party's lawyer and contains legal advice.  How can this controversy be settled?

Courts usually encourage parties to settle the argument by discussing the problem and coming up with their own solutions.  If that doesn't work, the parties might meet with a judge or a magistrate  - - a special judge dealing with specific matters, such as discovery - - to resolve the issue.  

Sometimes the party seeking the information will have to make a motion to compel.  A motion is where a judge is asked to do something.  A motion to compel is where a judge is asked to order someone to do something.  For example, in a motion to compel production (disclosure) of a document, the party seeking the document will ask the judge to order the party holding the document to disclose it.  If the motion is granted, the party in possession of the document must provide it to the moving party.  

I uploaded a short video on motions to compel during discovery: