PART ONE LITIGATION AND ALTERNATIVE DISPUTE LITIGATION .docx

PART ONE: LITIGATION AND ALTERNATIVE DISPUTE
LITIGATION
Click here to see the trailer for a 1992 movie entitled Class
Action, starring Gene Hackman as a
plaintiffs' personal injury attorney and Mary Elizabeth
Mastriano as his adult daughter, who is
(of course! ) a defense attorney.
http://www.youtube.com/watch?v=p1_EqTja4Pk
Although the movie is the background for the following
questions, you should be able to answer
the questions without watching the movie.
1. The movie features a case where the father/ attorney
represents the plaintiffs and the
daughter/attorney represents the defendants. The family
relationship between the two attorneys
raises the probability of conflicting interests, leaks of
confidential information, and emotionally
charged decision making. The two related attorneys nonetheless
manage to get the permission of
judge to go forward with the case, on opposite sides. What must
the attorneys obtain from their
clients before they can move ahead in this way? (Please provide
a short answer.)
2. For this question please choose the best option from the four
choices listed. Early in the
movie, the plaintiffs’ attorney requests the names, positions,

current contact information and all
of the stored documents or reports generated by each of the
employees who worked on the
Meridian: the car that is the subject of the litigation. The
defendants initially object to that very
broad discovery request, but are told by the judge to comply.
Defendants learn that a damaging
report about the Meridian (one written by a now retired
engineer) is in their files. If the
defendants wanted to comply with the ethical and procedural
rules that apply in litigation, they
will respond to the plaintiffs’ discovery request by:
a. Destroying the damaging report, as part of their duty to
provide their client with the best
possible defense
b. Specifically calling the damaging report to the attention of
the plaintiffs’ attorney, so that the
truth will come out during the case.
c. Turning the report over to the plaintiffs’ attorneys along with
all of the other documents the
plaintiff has requested, and in their current form or order,
making no attempt either to hide or to
highlight it.
d. Creating a confusing filing system that makes the report hard
to find, misfiling the report
within the confusing system, and sending the report to the
plaintiff along with many irrelevant
and misleading documents, in addition to all the of documents
the plaintiff has requested.
3. Later in the movie, the defense attorney is called upon to
cross examine the retired engineer
who wrote the damaging report. The report has been destroyed
by a rogue attorney, and was
never given to the plaintiff. Plaintiff has thus been forced to
rely solely on the testimony of the

retired engineer to establish that the report existed, and that it
clearly warned the car company of
dangerous defects in the Meridian’s design. The defense
position is that no report existed, and
that the retired engineer’s memory is so poor that his testimony
cannot be trusted. The defense
attorney knows, for a fact, that the retired engineer is telling the
truth. Which of the following
best describes her ethical and legal duties when it is time to
cross examine the aging and easily
confused engineer? Please choose the best of the four answers
provided below.
a. Reveal to the judge, in front of the jury, that her boss
destroyed the report and that the engineer
is telling the truth.
b. Decline to cross examine the engineer by telling the judge
that she has “no questions for this
witness.”
c. Cross examine the engineer about his claim that he wrote and
submitted a report about the
defects he found in the Meridian, in an effort to convince the
jury that the engineer is mistaken or
lying about this point.
d. Cross examine the engineer in a way that highlights his
generally declining memory and
increasing confusion, so that his credibility will be reduced in
the eyes of the jury.
4. The case featured in this movie is a “class action:” a single
lawsuit brought on behalf of many
plaintiffs, all of whom are in a similar situation, and all of
whom share a common claim against
the defendant.

Class actions are permitted in federal courts and in some, but
not all state courts. Here are the
criteria federal judges use to decide whether to "certify" a class,
taken from Rule 23 of the
Federal Rules of Civil Procedure:
Rule 23 (a) Prerequisites: One or more members of a class may
sue as representative parties on
behalf of all members only if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the
class; and
(4) the representative parties will fairly and adequately protect
the interests of the class
Rule 23 (b) A class action may be maintained if Rule 23(a) is
satisfied and if . . . .the the court
finds that the questions of law or fact common to class members
predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods
for fairly and efficiently adjudicating the controversy.
Judges applying these standards typically certify classes in
product liability cases where a group
of plaintiffs who all bought the same product allege that the
product had a common, defective
design. Judges have refused, however, to certify classes in cases
where the claim of each plaintiff
involves a unique story about what happened to that plaintiff
and how that particular plaintiff
responded. For example, no court has been willing to certify a
class of "all tobacco smokers with
lung disease" to bring a product liability suits against cigarette
companies. Last year, the
Supreme Court refused to certify a huge class made up of

female employees who wanted to sue
Walmart for discrimination, on the ground that the plaintiffs’
stories about specific
discriminatory incidents were too different from one another to
“fit” into a class action. The
plaintiffs have yet to decide whether they will attempt to sue in
smaller groups or give up the
idea of using a class action to make their claims "big" enough to
be worth the cost of litigating.
If you like going to the movies, you are probably aware of how
expensive the food and drinks
sold at the concession stands can be. Here is an article (taken
from the Wall Street Journal's "law
blog") about a man who is really made about that, and who says
he isn’t going to take it
anymore. Please read the article, and then answer the three
questions below.
March 6, 2013, 11:00 AM
Michigan Man Pops AMC Theaters with Class Action over
Concessions Prices
by Sam Favate/ Reuters
We all gripe about movies, don’t we? High ticket prices, chatty
people in the
theater, the eerie, distracting glow of cell phones — and to top
it off, the high cost of popcorn,
candy and soda.
A man in Michigan decided he’s had enough and filed a class
action against AMC Theaters, the
second largest theater chain in the U.S., alleging that high
concession prices amount to price
gouging — something a law in his home state, the Michigan
Consumer Protection Act
was designed to prevent.

Joshua Thompson, an avid moviegoer, said he used to bring his
own snacks to the movies but
recently came upon a new sign instructing customers that they
were no longer allowed to do so.
That lead him to bring the price-gouging lawsuit, which seeks
refunds on behalf of
moviegoers who were overcharged. AMC told the L.A. Times
that it had no comment on the
pending litigation.
Movie theaters make a lot of money from the concession stand,
with some estimates putting their
profit margin at 85%. A $30 bag of raw popcorn could be worth
as much as $3,000 to movie
theaters . . . .
. . . .
The suit against AMC will be based on a Michigan statute,
which prohibits “charging consumers
a price that is grossly in excess of the price at which similar
property or services are sold.”
The movie industry has cause to be worried, given that theaters
make most of their money from
concession sales, not from tickets. The majority of money from
ticket sales goes to the studios
(rather than to the theaters), particularly during the first weeks
of a new release,
(when the studios take as much as 90% of box office profits.)
If Thompson’s suit is successful, it could spur copycat suits
across the country. Add into the
equation that movie attendance in 2011 was at its lowest level
in 16 years, and you can see why
even the threat of a suit like this would make theater people
squirm.
There is actually a theory that the high price of movie
concessions is a benefit to (most of the
movie- going) public. A study from Stanford Graduate School
of Business and University of

California Santa Cruz found that high concession prices help
keep ticket prices low, so
that more customers in general come to the theater, with the
smaller segment of that group who
buy concessions adding to the theater's profit and subsidizing
the cost of seeing a movie for
those who don't buy the food and drink.
Alright: Here come the actual questions. Please provide a short
answer for each of qusetion 4A,
4 B, and 4C below.
QUESTION 4A. If you were a Michigan judge, would you
"certify" a class of Michigan movie
concession stand customers for the purpose of bringing this
lawsuit against AMC? Why or why
not? (Assume that the class certification standards used in
Michigan state courts are the same as
those used in federal courts.)
QUESTION 4B. If you were a member of Maryland's
legislature, would you vote for or against
a proposed Maryland law that would make it illegal "to charge a
consumer a price that is grossly
in excess of the price at which similar property or services are
sold?” Why or why not?
QUESTION 4C. Do you think the consumer “price gouging”
suit Thompson wants to bring
against AMC Theaters is most appropriate for resolution
through litigation, arbitration or
mediation? Please briefly support your answer.
PART TWO: TORT LAW

For questions 1 through 4: Identify the intentional tort
committed by the defendant in each
scenario. You should not choose intentional infliction of
emotional distress (“iied”) as your
answer unless whatever emotional distress the plaintiff might
have experienced was what the
defendant intended to happen, rather than only a side effect. In
other words, don’t choose iied as
your answer if there is another tort that fits the description.
1. Defendant joined friends in toilet papering the house of high
school teacher as a Halloween
prank.
_____________________________________________________
___________
2. Defendant, a male office worker, deliberately pressed his
body up against a female colleague’s
breasts while the two were riding together in a crowded
elevator.
_____________________________________________________
____________
3. Defendant, who was a private security guard for a retailer,
locked the doors to a crowded
store so that he could find a shoplifter hiding inside.
____________________
4. Defendant, a paid bill collector, called a debtor who had
already filed for bankruptcy
protection and threatened to have her arrested for theft if she
did not pay his client’s bill

immediately.
_____________________________________________________
______
FOR QUESTIONS 5 through 7, name the intentional tort
defense that applies.
5. Defendant is a parent who spanked his child. The other parent
(who is divorced from the
defendant) has filed a suit on the child’s behalf for battery. The
defendant's best affirmative
defense is _________________
6. Defendant, a single father, took canned food, bottled water,
diapers and baby formula from a
deserted store after a hurricane decimated his city. He was
caught on video tape and has been
sued for the tort of conversion. The defendant's best affirmative
defense is _______________
_______
7. Defendant is a football player who tackled and seriously
injured another player. The tackle
was not malicious, was part of the game, and was consistent
with the rules. The defendant's best
defense is _________________________
For questions 8 through 10, choose the best answer (by circling
the letter next to your choice)
and briefly explain the principle of law involved.
8. Which of the following defendants is most likely to be able to

use the proximate cause
doctrine to limit his liability for negligence? (Recall that the
proximate cause doctrine is what
allowed the Long Island Railroad to avoid paying Mrs. Palsgraf,
after the accident we saw re-
created with Lego figures). Circle your choice of Defendant A
or Defendant B
a. Defendant A carelessly leaked an embarrassing and untrue
story about Plaintiff to his local
town newspaper. As it was a slow news day, the item was
picked up and published by several
other newspapers in the state. Plaintiff sued for the resulting
widespread damage to his
reputation.
or
b. Defendant B's negligent operation of its airline caused
plaintiff to miss a connecting flight.
Defendant agreed to provide plaintiff with overnight hotel
accommodations. An arsonist set the
hotel on fire that night. Plaintiff sued the defendant airline for
his resulting injuries.
Please explain why you chose a or b.
EXPLANATION:
9. Plaintiff is a life-long smoker who sued the manufacturer of
his favorite brand of cigarettes
after he developed lung cancer. The defendant manufacturer can
use proof that plaintiff's work
involved exposure to asbestos, which can also trigger lung
cancer, in order to prove which of the
following: (circle your choice: a,b,c or d)
a. plaintiff’s contributory negligence in choosing to smoke
b. plaintiff’s inability to prove that the cigarettes were the legal
cause of his injury
c. lack of duty

d. lack of foreseeability
Please provide a brief explanation for your choice of answer
below.
EXPLANATION:
10. Plaintiff is a life long smoker who sued the manufacturer of
his favorite brand of cigarettes
after he developed lung cancer. The defendant manufacturer can
use proof that plaintiff saw and
read the warning printed on each package of cigarettes to prove
which of the following: (Please
circle your choice: a, b, c or d)
a. lack of logical or actual cause
b. lack of proximate cause
c. assumption of risk
d. lack of duty
Please provide a brief explanation for your choice of answer
below.
EXPLANATION:
PART III: HYPOTHETICAL PROBLEMS
PROBLEM ONE: LEHIGH UNIVERSITY AND LEARNED
HAND
In the early 1990s, a college student was murdered by an
intruder who found his way into her
dorm room. The college was located in a small, peaceful, rural
community: one with a very low
crime rate and no history, at all, of any violent crime. The

college had provided a guard and a
check in system at the front door of the student’s dorm, but did
nothing to secure the back door: a
fire escape that students regularly kept propped open for easy
access by friends and pizza
delivery workers. The murderer entered through the open back
door. There was no available
evidence about who had left the door open on that particular
day.
A. Assume that you are representing the parents of the murdered
student, in a wrongful death
action against the college. How could you use the Hand formula
(the one involving B and pL) to
convince a jury that the college was negligent? In other words,
what Burden would you suggest
that the college should reasonably have undertaken here?
B. Assume that you are defending the College from the parents’
claim of negligence. How could
you use the Hand formula (the one involving B and pL) to argue
to the jury that the College was
not negligent in this case? Please defend your own client’s
actions and decisions here, and find a
way to use one of the elements of the Hand formula. Do not
attempt to shift responsibility to
someone else. Assume that would only make the judge mad!
C. Assume (only for this part - part C) that there was evidence
to establish that the murdered
student had kindly opened the back door for the intruder, and
had then allowed him to follow her
back to her dorm room. This evidence could be used to establish
the affirmative defense
of ____________________. (Choose the affirmative defense to

negligence that fits best, and
write the name of that affirmative defense in the blank
provided.)
D. Assume (only for this part – part D) that the College had
printed the following language on its
housing contracts and also posted it inside each dorm:
prominently, in red letters, and in several
different languages. “The College accepts no responsibility for
the personal safety of students
who choose to live in its dorms. Residents must look out for
themselves. We are not doing that
for you!” If such language had been used, the College would not
have many fewer residential
students, but would also be able to mount an affirmative defense
called
__________________________. (Again, choose the affirmative
defense to negligence that fits
best, and write the name of that affirmative defense in the blank
provided.)
PROBLEM TWO: PRODUCT LIABILITY
Please choose a consumer product from your home (or look at
an ad for a consumer product in a
magazine, on television, or on line). Look at the product’s
instructions and packaging. Note
below those features that seem, to you, to be designed to satisfy
the requirements of product
liability law (in other words, those intended to make sure the
product is not defective or
unreasonably dangerous). Do you think the protections are
adequate? If you were counsel for the
company, would you recommend any changes?
I have provided a sample answer, based on a bottle of St.
Joseph’s low does aspirin, so that you
can see, generally, the type of answer I am looking for. You

should use some other product
(anything but baby or low dose aspirin) as the basis for your
answer.
Here is the space where you should write your answer:
Name of your product:
Current protections you observe:
Your suggestions for making this product safer (or at least more
litigation proof)
Here is a Sample Answer
Name of your Product: St. Joseph’s Low Dose Aspirin
Current Protections You Observe: The product is enclosed in a
tamper proof plastic bottle: one
with both a foil inner seal and a plastic neck wrap. The bottle is
enclosed in a tamper proof,
sealed box: one with a warning directing consumers not to use
the product if the box, the neck
seal or the foil appear to have been opened or broken.
The active ingredient, dosage and directions are clearly marked.
Use is specifically restricted to “
persons over the age of 12.”
The replaceable top is designed to be difficult for children to
open. The bottle contains a specific
warning about keeping the product away from children, along
with the phone number for a
poison control center and directions about what to do if a child
accidentally ingests these pills.
The product contains specific warnings aimed at people with
stomach problems or allergies;
people who drink more than 3 ounces of alcohol per day; people
who may have been exposed to

Chicken Pox or flu; the risk of Reyes syndrome should the
product be taken by a child who has
had the flu; and women who are pregnant or breast feeding.
Your suggestions for making the product safer (or at least more
litigation proof): This product is
deliberately packaged in the old fashioned, creamy orange
container once associated with “baby
aspirin.” The packaging, in itself, could potentially mislead a
consumer into buying the product
and giving it to a baby or Toddler exhibiting flu symptoms:
something that raised the risk of
Reyes Syndrome. A jury might find that, given the history of
marketing of this over the counter
product, the packaging, in itself, undoes all of the well-intended
and explicit warnings about not
giving the product to children.

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