Super Lawyers
William C. Altreuter

Friday, September 28, 2007

I'm late in getting to it, but back in June The New York Court of Appeals held, in Reynolds v. Amchem Products(pdf file) that when a High-Low agreement is made between the plaintiff and a party who remains in the action, the defendants who are not a party to the agreement must be advised of both the agreement and its terms. I've been on the wrong end of this sort of thing, and I don't think the decision goes far enough, frankly. The opinion, by Judge Pigott, applies only in circumstances when the agreeing defendant remains a party, not to circumstances where the agreeing party is carved out of the action by way of an agreement to arbitrate, or some similar arrangement.

I am coming to think that, on the civil side at least, there are a lot of exclusionary rules that should be rethought. Insurance, for example. Time was, if you were picking a jury and the word was even mentioned-- outside of the Judiciary Law permitted question about a prospective juror or family member being employed by or a shareholder in any company that issues casualty insurance-- was grounds for a mistrial. People got mistrials if insurance was inadvertently mentioned during the proof. Things have loosened up somewhat, but not to the extent that they should-- juries believe that there is insurance out there, and, I would submit, act accordingly. Why not inform them instead? If nothing else, it would allow a jury to act according to what exists or doesn't exist, rather than on assumptions that remain unexpressed. It probably makes a lot of sense to relax the hearsay rules, too. People are sophisticated enough to parse this sort of thing out, I think. Arbitrators are, so why wouldn't lay people be?

| Comments:

Post a Comment

<< Home

This page is powered by Blogger. Isn't yours?