Trial lawyers really have little choice; they must adapt to the changing technology environment or fall behind. But recent court guidance reveals that in important areas, old rules still apply to new challenges posed by using artificial intelligence, even if the adequacy of old rules is debatable.  So far, courts are not creating a special AI privilege; instead, they are applying old doctrines to new tools. The practical lesson is that courts are applying ordinary privilege and discovery rules and common confidentiality and privacy protections rather than creating special AI rules.

Privilege and Attorney Work Product Issues

The two most…
Continue Reading Generative AI: Practical Advice for Trial Lawyers

What the Martin v. Layman Decision Adds

Illinois’ Fourth District Appellate Court’s decision in Martin v. Layman[1] continues a line of Illinois cases that closely examine whether hospital consent forms effectively disclaim apparent agency in emergency care settings. Relying in part on the First District’s reasoning in Brayboy v. Advocate Health & Hospitals Corp.,[2] the court held that the existence of a signed consent form did not resolve the issue as a matter of law when questions remained regarding the language and structure of the form, the patient’s neurological condition, the timing of the disclosure, and whether the…
Continue Reading Beyond the Signature: Context, Timing, and Continued Judicial Scrutiny of Hospital Consent Forms in Apparent Agency Claims

The Case

Wilkinson v. Farmers Holding Companies involved a dispute under a Missouri statute about an employee’s post-termination rights to a “service letter” stating the nature and duration of his service. The Circuit Court granted summary judgment for the company based on the company’s argument that it was not the actual employer. The Supreme Court’s decision addressed only the procedural law regarding summary judgment and plaintiff’s failure to abide by the procedures of Rule 74.04 in responding to summary judgment.

In particular, the Court noted that although the Plaintiff’s “point relied on” argued that summary judgment is an extreme and…
Continue Reading ITT at 33: Granting Summary Judgment in Missouri is Still Not “Extreme or Drastic”

Using Deposition Testimony to Secure Summary Judgment

In asbestos products liability matters, motions for summary judgment are a standard part of case workup. Although summary judgment is an extreme measure that’s rarely granted, a recent Cook County case (Paul Enright, Special Administrator of the Estate of Susan Enright v. A.O. Smith Corp., et al.) demonstrates it is possible.

Summary judgment motions focus on case-specific facts and often rely on deposition testimony from the plaintiff and fact witnesses. In its Motion for Summary Judgment, the defense in Enright argued that plaintiff had not met her evidentiary burden and thus the case…
Continue Reading Building the Record: How Depositions Shape Summary Judgment Orders