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© 2025 Emerging Litigation Podcast
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Litigators and other legal and risk professionals share their thoughts on ELP about new legal theories or areas of litigation that plaintiff attorneys, defense counsel, corporations, risk professionals and others will want to be aware of. The host is Tom Hagy, long-time legal news enthusiast, former editor and publisher of Mealey's Litigation Reports, current Editor-in-Chief of the Journal on Emerging Issues in Litigation, and owner of HB Litigation Conferences and Critical Legal Content. ELP is a co-production of HB, CLC, Law Street Media, and vLex Fastcase. Contact Editor@LitigationConferences.com.
102 Episodes
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Southern California’s wildfire season has turned into a year-round crisis, and with it comes a surge in litigation. On this episode of the Emerging Litigation Podcast, we explore the aftermath of the devastating January 2025 wildfires, including the high-profile Eaton and Palisades fires, and the complex legal battles now unfolding. My guest, Ed Diab, is a founding partner of Diab Chambers LLP, a boutique law firm with a sharp focus on wildfire litigation. Ed and his team have worked alongsid...
Whopping jury verdicts from 2024 illustrate why trial teams sometimes include appellate counsel, because including them -- even as you prepare to defend a high stakes case at trial -- can improve your chances on appeal should a jury hand you a half-billion-dollar verdict. But what functions do appellate attorneys perform at trial? Are they listening for errors or proactively guiding trial counsel? Do they ever address the court or sit quietly at the defense table or maybe in the back row? T...
The horrific wildfires unleashing carnage in Southern California underscore the need for reliable insurance protection both for businesses and homeowners. As of Jan. 16, 2025, these wildfires have scorched more than 60 square miles, claimed at least 25 lives, and left 26 people missing. With more than 12,000 structures destroyed and tens of thousands displaced, the economic impact is estimated between $135 billion and $150 billion. On a new episode of the Emerging Litigation Podcast,...
NFTs – or non-fungible tokens – have taken the digital world by storm – or perhaps just a downloadable picture of a storm – promising to revolutionize not only the way we perceive, protect, purchase, and own digital assets, but how we might even buy a house or other assets in the real world. These unique digital certificates, recorded on a blockchain, exploded onto the scene in post-pandemic 2021 with record-breaking sales and widespread media coverage. One of the most amazing example...
As if the rocketing evolution of technology isn't presenting enough challenges to inventors under patent law, the Supreme Court has done its part, too. I just finished reading Graham Moore's novel "The Last Days of Night," where titans of the late 1800s and early 1990s Thomas Edison, George Westinghouse, and Nikola Tesla "clashed with sparks flying over AC and DC electrical power systems," a corny description suggested by my AI editor. Having read the book, it was fun to speak with modern...
Once again we dive into one of the hottest topics in environmental law right now: PFAS. Specifically, our guest talks about the EPA’s new PFAS Safe Drinking Water Final Rule, which mandates acceptable levels of PFAS in public water systems. This episode is based on a CLE webinar our guest recorded for HB Litigation a couple months back. Since then, if you’ve been following PFAS developments, you know pushback on the rule is coming from several directions, as our guest predicted....
Soon after emergency response teams scramble into action to address chemical fires, explosions, or other toxic events, attorneys begin gathering and analyzing information either to mitigate corporate risk or to seek remedies for anyone impacted by such an event. Listen to my interview with Edgar C. "Ed" Gentle III and Katherine "Kip" Benson of Gentle, Turner & Benson LLC, about legal activity that goes on in the immediate aftermath of a toxic event, using as a backdrop the recent chemic...
People. We’re complicated creatures. We can be compassionate. We can fall in love. Sometimes we don’t care for each other, but here we are. Also, some people cross the lines of propriety, causing emotional or even physical harm to others on our teams, whether we work with them, for them, or whether we supervise them. And sometimes we work more than regular hours, either because we’re directed to or because we’re willing to do what it takes to help our teams succeed. The workplace can b...
The United Nations and World Economic Forum calculates that the cost of corporate corruption globally is $5 trillion a year, or 5% of the world’s 2022 GDP. Corruption can hamper economic growth by discouraging investment, increasing transaction costs, and distorting market competition. It can perpetuate poverty by diverting resources away from essential services and benefiting the wealthy and powerful. It can undermine democratic institutions and erode public trust in governments. It c...
The DOJ’s annual report for 2023 revealed that the agency’s Health Care Fraud Unit was its busiest criminal enforcement section, responsible for convicting more than $3.8 billion in False Claims Act and whistleblower claims. There has reportedly been an uptick in whistleblower work among law firms and a record number of whistleblower cases. Still, some healthcare providers and hospital systems tend to hide their heads in their scrubs after being served. Today we’re going to talk about...
How secure is our nation's critical infrastructure? One recent event serves as a cautionary tale. In this episode, we tackle this pressing question in the context of cybersecurity. We'll address President Biden's recent National Security Memorandum on Critical Infrastructure Security and Resilience, and its implications for sectors like energy, water, and transportation. Our guest, Elizabeth Burgin Waller, from Virginia's WoodsRogers law firm, brings her extensive knowledge in privacy...
Listen as intellectual property attorneys Tiffany Gehrke and Kelley Gordon of Marshall Gerstein in Chicago share their insights into three matters relevant anyone watching copyright and trademark law, or anyone fond of branded t-shirts and fancy French beverages. I talk to Tiffany Gehrke about two cases. One is Vidal v. Elster, better known as the “TRUMP TOO SMALL” case. Just decided by the Supreme Court, this deals with whether a mark containing criticism of a government official or ...
Everyone knows that price fixing is against the law, chiefly Section 1 of the Sherman Act. Competitors may not collude, i.e., agree, to keep prices where they want them, but there are relatively new pricing platforms that some companies maintain take them out of the equation, so they do not have to share private information directly with competitors. Instead, they claim, they feed their data to a third-party which uses algorithms to come up with pricing for these competitors based on data t...
Companies are grappling with how to market the eco-friendly, people friendly, and animal friendly characteristics of their products and services, while also not getting in trouble with the law. Some have learned this the hard way. Some have wisely consulted experts. (That's foreshadowing.) ESG – or Environmental, Social and Governance – reporting and so-called greenwashing litigation have implications for a wide range of stakeholders. Companies face significant financial and reputational ri...
In this episode we talk about litigation automation, and another case in which innovators are using artificial intelligence to transform legal operations. We also speak with our guest about his transformation from a litigator to a tech entrepreneur, and how the company he co-founded is using modern tools to do in minutes what used to take hours. These tasks include responding to demand letters, complaints, and discovery requests, and executing matter profiling and data analytics, all of which...
Biometric data is big business. It many cases it even helps make our lives better. It also presents significant risks for a variety of parties, in addition to those of us who surrender our data. Companies collecting, storing, utilizing, and monetizing the data face penalties and litigation bolstered by the increasing number of states enacting biometric information privacy acts, or BIPAs, the first of which was in Illinois. Biometric information -- fingerprints, facia...
This episode is dedicated to Mental Health Awareness Month -- May 2024 -- in which we explore some of the keys to achieving wellbeing as a human litigator. Lawyers contemplate suicide at "an exceedingly high rate." Whereas 4.2% of adults have reported contemplating suicide, that figure is 10-12% among lawyers. According to a study published by MDPI, lawyers are prone to mental health issues, including anxiety, depression, and substance abuse. "[O]ur findings suggest the profile of a lawyer ...
The art and science of forecasting litigation outcomes just got a lot more sciencey. Years of immersion in complex business disputes is bound to shine a light on problems begging for solutions. In this case, our guest observed the laborious and ineffective slog that is trying to forecast how long a case will take, how much it might cost, which jurisdiction will treat it with kindness, or how a judge might rule on a motion for summary judgment. These are some of the critical questions our ...
Our Legal Tech Host Sara Lord speaks with data scientist and eDiscovery expert Lenora Gray of Redgrave Data. Discovery is a staple in any litigation practice, and it has been transformed by technology assisted review tools – or TAR. eDiscovery has developed into its own specialty – with eDiscovery experts on staff who know all there is to know about the technology, standards, processes, and practices. But every litigator needs to understand how eDiscovery tools work. They should be a...
Tom Hagy interviews jury and trial expert Tara Trask about picking juries in an age of misinformation, general distrust, tribalism, unleashed social media warriors, flamers, and propagandists, and unorthodox legal strategies that seem to unfold on a daily basis. All of these conditions began to accelerate in the lead-up to the 2016 presidential election in which Donald Trump prevailed over Hillary Clinton, continued to heat up in Trump's race against then-candidate Joe Biden, culminated in th...
“Of all the opportunities legal operations teams might identify to save time, money, and resources while potentially improving quality, Robotic Process Automation may currently offer the biggest and most immediate opportunities.” That is from the forthcoming book, "Legal Operations in the Age of AI and Data," specifically the “Automation in Legal Departments” chapter written by Tara Emory, Wilzette Louis and Adam Poeppelmeier of Redgrave Data, and Kassie Burns of King & Spalding. ...
Surveys abound on artificial intelligence and the law – many of them by companies bringing the technology into their products for attorneys. One survey says three quarters of lawyers expect AI to be integrated into their legal practices in the near term. Half say they expect it will boost productivity, half feel it will be transformative, while nine out of ten attorneys expressed concerns about artificial intelligence applications and attendant ethical issues. In an arti...
Laundering money generated in the drug trade. The United Nations Office on Drugs and Crime estimates that between $800 billion to $2 trillion is laundered annually. Laundering money intended to support terrorism. The International Monetary Fund is concerned about terrorism financing, and proliferation financing, providing funds for nuclear, chemical, or biological weapons. Money that is embezzled or other schemes also must be laundered, that is, if you're a criminal or criminal enterprise.&nb...
Litigators who do other things besides litigate -- you know them. Some perform comedy, act on stage or in film, or they are gifted musicians. Some are even drummers. (Drummer joke, if that’s not too edgy.) One highly acclaimed San Francisco class action litigator is talented on the kit and owns her own drum company. Another Los Angeles-based litigator started his own record label. Another San Francisco litigator left the profession, moved to South Africa, and led people on safari...
Today we talk about liability forecasting and the role it plays in the administration of massive, sometimes multi-billion-dollar mass tort settlement trusts. These mechanisms were built to fairly and judiciously compensate current and future claimants for their injuries. Mass tort litigation is a complicated beast as is the administration of these trusts. There are many overlapping, interlocking, intersecting, and dynamic layers involved with people, companies, diseases, certain financi...
In this episode we talk about artificial intelligence in the world of invention. My guest recently co-wrote an article for the Journal of Robotics, Artificial Intelligence & Law about a recent decision from the U.S. Court of Appeals for the Federal Circuit that expounded on the principle that only human beings -- not machines -- can be named as inventors under U.S. patent law. The decision applies a straightforward interpretation of patent statutes, our guest says. Beyond invention, wh...
Annual U.S. litigation cost estimates vary wildly. Some say $250 billion, others say $430 billion. When you consider indirect costs, such as lost productivity or economic damages, some put the costs as high as $1.5 trillion. According to Statista, more than $5 billion is spent on employment litigation alone, and another $4.5 billion on commercial litigation. Litigation surrounding intellectual property, product liability, and real estate disputes, cost more than $3 billion each....
This isn’t going to be another theoretical sermon on the business of law, but how two partners – with the help of a business expert – re-envisioned their practice, throwing out traditional models and transforming their firm into something unique. First, we’re going to talk about looking strategically at your law firm as you would any business. The goal here, being tweaking or adjusting your practice in a way that has the most impact on your bottom line. Second, we’re going to ta...
The PFAS family of man-made compounds are found in countless consumer products, as well as medical devices and firefighting foam. The incredibly strong carbon-fluorine bond that make PFAS so useful also makes them incredibly persistent. They are so ubiquitous that PFAS can be found in the blood of every human on earth and rainwater throughout the world. In this episode we are going to give you some history of the compounds, discuss some important differences, review what litigation we'r...
According to the Department of Agriculture Americans consume 137 pounds of fresh produce per year. That not only fuels our bodies but also a $146 billion industry. Produce starts to degrade immediately after harvest, so transporting fresh fruits and vegetables from farms to stores in a safe and timely manner poses numerous challenges. What legal and reputational risks do growers, brokers, and shippers face? What laws come into play? What are the essential components of contracts among...
What’s gotten into some corporations these days? Some are reducing their carbon footprint and reducing waste. Some are demanding ethical behavior. Some are even paying attention to wages of frontline workers. In this episode we discuss the role of attorneys and in-house counsel in the courageous new world of Environment, Social, and Governance, or ESG. And, not to disappoint, I mention a beloved cartoon duck who, when you think about it, raises questions about inclusivity and workplac...
The Ninth Circuit Court of Appeals recently struck down Berkeley, California's ban on natural gas infrastructure in new buildings. The court ruled unanimously that the ban violates federal law. This subject is important as we will likely see more natural gas bans in the future and the Berkeley case has set a precedent for how similar cases may be treated. The case was brought by the California Restaurant Association, the National Restaurant Association, and the American Gas Associatio...
Challenged by the pandemic, war, trade conflicts, natural disasters, consumer demand, and inflationary pressures, the global supply chain has drawn heightened scrutiny for its impact on the economy, the labor market, the delivery of goods and services, and national security. What have the U.S. Department of Justice and Federal Trade Commission had to say? Have they sufficiently addressed the issue? Any further measures in the works? Are we seeing disputes in the courts? How can su...
The Federal Trade Commission’s proposed rule banning non-compete agreements between employers and workers has met with considerable support and just as much opposition. Proposed on Jan. 5, 2023, a vote on a final rule not anticipated until Spring 2024. Will all of the challenges to the rule result in a substantially different final version? Why has the FTC chosen now? Who is contesting the rule and what are some of the challenges it raises? What does it mean for employers and other ent...
The IRS closed more than 72,000 appeals last year and its Chief Counsel's Office received more than 65,000 cases. That's a lot of disputes. Safe to say they are about rules. Following rules. Not following rules. Questioning rules. Then, there are rules about rules that the IRS must follow. The Administrative Procedure Act (APA) is such a beast. The APA places requirements on federal agencies when engaged in a “rule making” that has the force and effect of law. The APA has become a foc...
There are no borders when it comes to commerce, which means there are no borders when it comes to business disputes and litigation, either. In addition to evidence and witnesses being spread across continents -- from Chicago to Shanghai to Sumatra -- nations' various rules and traditions governing discovery is another substantial complicating factor. Navigating these complexities requires specialized tools, a thorough understanding of how they do things from jurisdiction t...
Auto-GPT is a new generative artificial intelligence application which autonomously “self-prompts” to engage beyond a human-chatbot discussion. This takes us into a realm of AI self-prompted actions that do not need additional human inputs. It also potentially puts the “traditional” GPT models on a fast track to further reduce human interaction. The number of use cases as well as the number of legal and ethical questions is inevitable. For that reason, it's becoming increasingly important f...
You might think that if you purchase a product for a price inflated by bad actors in the supply chain that you would be able to collect damages. Unfortunately, depending on who you are, you would be wrong. Consumers and businesses, indirect purchasers of products whose prices are fixed by those who supply the maker of your purchase may not collect damages in states that, surprisingly, do not have antitrust laws that give them standing. But what about federal law? Why do some states p...
Consumers are driving a wave of litigation against companies for allegedly sharing details of what videos they watch on their platforms. Will litigation tamp down this activity? What harm is being caused? How will existing laws be interpreted? Are these organizations within their rights? Dozens of organizations -- ranging from the rough-and-tumble NFL to the decidedly less rough-and-tumble NPR -- are among the defendants in nearly 50 proposed class actions which clai...
In this episode we talk about the advantages of having technology and software development capabilities inside your law firm. Can you imagine? And we’re not just talking about someone who is adept at unjamming the printer. While the legal tech industry offers myriad high-quality solutions (some of my best friends are technology solutions), there are times when a litigator just wants that one thing that the tech doesn’t do. Or, working with the tech has such a long learning curve that t...
Last year the Aylstock, Witkin, Kreis & Overholtz law firm filed the first class action against L’Oréal and Softsheen-Carson for injuries, primarily to Black women, allegedly caused by hair relaxers and straighteners. Now there are more than 60 cases consolidated in multidistrict litigation. Recent studies cited in the litigation show that Black women who use these products develop cancers at a rate disproportionate to that experienced by white women. The plaintiffs say the ...
According to studies cited in a 2019 article in Business Insider, people develop first impressions of you “even before you open your mouth,” that your mere appearance “affects how trustworthy, promiscuous, and powerful people think you are.” It’s the trustworthy part that attorneys need to pay attention to. Regardless of the strength of their case or whether the law is on their side, an attorney still must be persuasive. And, unless the audience – whether it is a judge, a panel of judges, a...
Diversity and inclusion initiatives aren’t just valuable for checking off compliance boxes and writing marketing copy. Those benefits are a distant second and third to the genuine value team diversity has on the success of a company or a project. That also means law firms and trials. A recent article published by the American Bar Association Tort and Insurance Practice Section hailed diversity of perspectives for how they improve a team’s ability to resolve legal issues, innovate solutions, a...
It’s unlikely Sen. Elizabeth Warren has a future in copywriting for the fintech industry. (That was sarcasm.) Warren, who championed the creation of Consumer Financial Protection Bureau (CFPB), calls the Zelle digital payments network a “preferred tool for grifters like romance scammers, cryptocurrency con artists, and those who prowl social media sites advertising concert tickets and purebred puppies — only to disappear with buyers’ cash after they pay.” Scams and fraud committ...
Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states. In the employment context, both recreational and medicinal uses raise...
The European Union’s new Unified Patent Court is an international body set up by participating EU Member States to deal with the infringement and validity of both Unitary Patents and European patents. The court's objective is “putting an end to costly parallel litigation and enhancing legal certainty.” Unitary patents are intended to make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the European Patent Office, making the procedure simpl...
Before COVID-19 came to America in early 2020, “going to court” literally meant putting on your shoes and walking into a courthouse, typically a large building with courtrooms inside, and people in robes and business suits and, in some cases, more restrictive attire. Stoked by necessity, courts sprinted toward solutions for keeping the wheels of justice spinning while also keeping everyone away from each other. Until then it didn’t seem possible that attorneys could or would appear be...
It's apparently (and hopefully) on its last legs. The Covid-19 pandemic was the most recent health issue to raise questions around government’s involvement (or interference) in an individual’s control over their own medical treatment. In their article – Government Involvement in Medical Care Decisions During Outbreaks of Disease: How Far is Too Far? – our guests wrote about the intersection of law and medicine. They reviewed medical mandates, implications brought about by the impact of adva...
The judicial system is overburdened for a number of reasons, and greater efficiency is a must if court systems are to achieve their important objectives. Technology and openness to all that it offers is a key solution, something that was tried, tested and proven during the Covid pandemic which closed courthouses and law offices around the nation. Along with technology, improvements can be made by reexamining their orthodoxies about how things should be done based on decades of "that's how w...
When large companies face massive mass tort litigation, one way they can survive is to file for bankruptcy protection and reorganize. 3M recently put its Aearo Technologies subsidiary into bankruptcy in the face of more than 230,000 claims that's its defective earplugs caused hearing loss. When it came to filing bankruptcy 3M said Aearo was solely responsible for the product. But for several years of litigation 3M argued that it, as the parent, was solely responsible, not it...
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