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.