If not, what exactly is a client paying for? The real issue is not the scope of the privilege or the fact that the scope changes, but that practitioners need to understand the parameters of the privilege as well as the changes to it, and account for them. To me, the most interesting aspect of the story is the players’ refrain that they constantly felt it necessary to play while injured (and with injuries serious enough that most of the general population would be out on long term disability benefits if they suffered from them) out of fear they would lose their jobs otherwise. For a plan fiduciary charged with fiduciary breaches or other errors related to tax aspects of a plan, pointing to the IRS and saying the participant’s only recourse is to seek a refund from the IRS is an extraordinarily potent variation of this defense. What the data and their crunchers are doing is reducing the events that make up baseball games to numbers, so that people without vast experience observing the game and its myriad variations can understand and act on the game’s nuances.

But Randy makes very good points about the frivolity of this particular class action suit, ranging from the fact that the plaintiff has elected expensive seats over cheaper seats where there is no possible risk of injury from foul balls, rendering her complaints self-serving (to say the least), to the fact that the case probably cannot survive the types of filtering events (such as motions to dismiss, class certification standards, etc.) As explained in this excellent blog post, there are a number of ways to attack commonality in an ERISA class action, by focusing on what may be different among the members of the proposed class. Commonality – which is the requirement that the class members have some central part of their claims against the defendant in common – is the central focus of this aspect of class action litigation, but it has a less than great track record in precluding certification of classes in ERISA cases. The late Barry Tanenbaum, wrote: “Professional poker is a ruthless meritocracy.”.

I was reminded of this by this discussion of behavioral economics and choice architecture in this extensive New York Times article on Uber’s use of choice architecture to manipulate (too harsh a word? First, you’ll pay more social security, a forced saving for retirement. Want proof? But that’s the default.”. Third, you can use programs to deduct your retirement contributions, and the interest, dividends, and other profits accumulate tax free until you retire. Most people are mediocre, but nearly everyone makes a living. It’s not hard to see why. At that trial, however, I could see that choice architecture could be woven into the special questions, creating a series of questions that, unobtrusively, could influence the jury’s progress through the decision tree that the special questions presented to them.

And I suppose if I have to tie it back into the subject of this blog, and to my own professional preoccupations – which include the need to communicate clearly to juries and to understand when expert analysis is only interfering with doing that – I would point out that this is the perfect illustration of exactly how statistics, misused, can misrepresent reality in the courtroom. In the Old Testament of the Bible, Joseph advised the Pharaoh to save grain in good years to avoid starvation in the bad ones. In this excellent article in Inside Counsel, authors Alan Dabdoub and Trey Cox provide empirical support for these views, which have, until now, been based simply on my own years of arbitrating and litigating cases, and of observing the difference between the two.

Although lawyers are all taught in law school about the sanctity of the corporate form and the protection against liability it grants to company officers, lawyers quickly learn that, in practice, that is a principle more often honored in the breach. I hope you take them seriously. The more telling and immediate issue is a point that underlies Randy’s piece, which is that the law maintains such principles disfavoring claims of injuries by fans. But the First Circuit ruling holds that there is some room for an expert to deviate from the written report disclosed to the other side, within reason and subject to the limits laid out in the decision. Its hard enough to convince a jury to find infringement, but once having done so, it is better to move onto damages in front of that same jury, with whom you have presumably already established credibility. It’s another form of arrogance.

Instead, you have to convince the court that the arbitration proceeding itself was so flawed that reversal is needed, either because the procedures used were flawed, the arbitrator was biased, the ruling was so far afield that it reflects a failure by the arbitrator to follow applicable law, or the party that lost at arbitration was deprived of a fair opportunity to present that party’s case. In a column for Poker Pages, he once wrote: “One of the most troubling aspects of the tournament circuit is seeing how many players are constantly broke.

The reason for this, they consistently explain, is the fact that NFL contracts are not guaranteed, and thus, if they lose their roster spot, they lose their livelihood. We are not talking, after all, about East German sports authorities doping up athletes, or even baseball players voluntarily – but illegally – taking PEDs. But the ability to understand their clients when they talk about coding, or to understand both the tech and reasoning behind electronic discovery, is a core competency in this day and age.

Personally, I am not convinced of the need for any formal requirement: technology is so embedded in any efficient provision of legal services to a client and in any interaction with essentially any business client of any size, that simple economics are going to eventually drive to the margins any lawyer who cannot, on a day in, day out basis, engage with technology on an at least marginally competent level. And, as Hermann suggests and my article on patent infringement litigation focused on, you can use that concern to reduce legal costs and get better results, all at the same time. You’re just another talented player, and it’s happened to many talented players.

What I am referring to is this decision out of the First Circuit on the use of experts in a case that one of my colleagues, Robert La Hait, won the other day. Well, Steve Martin wrote in a memoir that the first time he appeared on the Tonight Show, Johnny Carson, during a commercial break, told him that the thing about comedy is that you end up using everything you have ever come across in your life. In essence, astute and experienced people who have seen enough baseball can tell you the same thing, and make the same judgment calls about which players are good at what, how to use players, what tactical decisions to make, and what players to sign, without ever needing the crutch of statistical analysis to do so.

Devilfish and Gavin each won World Poker Tour and WSOP titles, along with millions in tournaments and cash games, but Phil Hellmuth and other pros have run charity tournaments or started crowdfunding pages to help their surviving families. Cases built around such statistical approaches can run off the tracks, if one side or the other’s statistician applies suspect methodology. Having litigated a number of intellectual property cases – including trying a patent case – for smaller and emerging companies who were facing off against deeper pocketed rivals, I knew that the key to cost containment was to focus strategy, discovery, expert issues, and motion practice only on the pieces needed to win at trial or summary judgment, and to avoid the siren song of pursuing interesting but expensive and likely not important side issues in the case. Posted By Stephen D. Rosenberg In Percentage Players Die Broke Too: Notes on Litigation and Trial Tactics Permalink | . Medical costs become immensely higher as you get older, and they have busted countless older pros. Second, in a case built on legal theories, it is always better to have a second chance to press that theory if it is rejected the first time around, which litigation allows by means of appeal.

The lawyers on the other side of the case, clearly lacking even a passing familiarity with the concepts of behavioral economics and choice architecture, agreed to the structure that we proposed, and, eventually, the jury did in fact find in my client’s favor as it worked its way through the list of questions, somewhere about halfway through the eight or nine questions. As is typical in these types of things, the judge made this request on the last day of witness testimony, with the jury hearing the parties’ closings and then being given the case – including the special questions – the next day. I have lost count of how many times I have explained my view that arbitration is not, by definition, preferable to litigation for resolving disputes, and that instead, in each and every given case, a party should think carefully about which dispute resolution forum is preferable. But in these procedural failings are a number of lessons about arbitration and, in a broader sense, the proper role of a lawyer in advising a client. Face it: sports was more fun when batters corked bats and pitchers scuffed the ball, and no one called in the lawyers over it.

Making contracts guaranteed can be done almost instantaneously, and would significantly alter the culture of “playing hurt.” The NFL often likes to hide behind the collective bargaining agreement (“CBA”) as a reason why certain things can or cannot be done: I have little doubt though, that even to the extent changing to guaranteed contracts might relate to the CBA, that the players would agree pretty much immediately to amend the CBA to allow them, or even better, to mandate them. The lawyers on the other side of the case, clearly lacking even a passing familiarity with the concepts of behavioral economics and choice architecture, agreed to the structure that we proposed, and, eventually, the jury did in fact find in my client’s favor as it worked its way through the list of questions, somewhere about halfway through the eight or nine questions. In truth, over the last few years, it has become rarer and rarer to find opposing counsel who walked into this trap, and it was more a question of whether a particular expert prepared drafts that contradicted his or her final report without realizing the earlier draft might be discoverable. The takeaway from Kenney on this line drawing is summarized nicely in this blog post by an unidentified Paul Hastings lawyer or two: First, the attorney-client privilege is available for settlor matters, such as "adopting, amending, or terminating an ERISA plan" because those decisions do not involve ERISA fiduciary functions of managing or administering the plan. Now by this, I certainly do not mean that every lawyer needs to be a coder. But it’s certainly too many. Stu was arguably history’s greatest no-limit tournament player, but he died in a crummy motel. Its an interesting issue not because of any urgency in mandating technological proficiencies for lawyers – as noted, I think the marketplace will regulate that all on its own – but because it points to the importance of a broader knowledge base for representing clients, and the extent to which a competency in the core social sciences is more necessary, but much less sexy than talking about, competency with technology. Deposition practice, for instance, is a perfect example.

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