From recent cases described on this blog, here are three basic tips for business cases in 2014:
1. Plead like a mystery writer. Like a skilled crime novelist, the civil rights plaintiff in Jabaray v. City of Allen survived a Rule 12 motion by detailing motive and opportunity – the mayor’s alleged personal investment in the real estate at issue, and his role and involvement in the relevant city agencies. No. 12-41054 (Nov. 25, 2013, unpubl.)
2. Eyewitnesses help make fact issues. Plaintiff claimed a barge came loose during Hurricane Katrina and damaged a bridge. Defendant said that Plaintiff’s theory required the impossible – that the barge move upstream against hurricane-force wind. The Fifth Circuit found a fact issue from eyewitnesses who saw and heard things consistent with Plaintiff’s theory. “There is a great deal of testimony supporting Lafarge’s position, to be sure, and little to support the Parish’s, but we are mindful of the summary judgment standard.” St. Bernard Parish v. Lafarge North America, No. 13-30030 (Dec. 19, 2013, unpubl.) This reasoning could extend to admissible testimony about the commercial context of an agreement, or its course of performance.
3. Keep experts on Earth. The Court found that an expert in a toxic tort case made unsupported assumptions about (a) the plaintiff’s work hours, (b) what he did at work, (c) where he worked, and (d) whether the ventilation worked. ”To be sure, reliable expert testimony often involves estimation and reasonable inferences from a sometimes incomplete record. . . . Here, however, the universe of facts assumed by the expert differs frequently and substantially from the undisputed record evidence.” Moore v. International Paint LLC, No. 13-30281 (Nov. 15, 2013, unpubl.)