It’s not just happenstance that this weekly round up section of my blog is called “Five Favorites for Friday.” It’s in honor of Elmo, who did not rap about the number four, or nine, but the number five. Thus, “Five Favorites for Friday.”

And so let’s get right to it, as there is a lot of ground to cover. As is the case most weeks, I could have listed many more items beyond just these five, but that’s not how Elmo rolled.

1. In my day job as a bad faith lawyer, I have, over the past thirty years, litigated, including trying, the bad faith and coverage cases that inevitably follow on the heels of a nuclear verdict or other unusually large or unexpected jury verdict.  There are commonalities in the cases that give rise to such verdicts, and it is also fair to say that they don’t occur in a vacuum.  Moreover, it’s also not generally fair to just attribute nuclear verdicts to emotion on the part of a jury, because if, as I have done on many occasions, you closely review the record in such cases, you will see that there are always other issues in play. Is this story of the Massachusetts Supreme Judicial Court examining the standards governing punitive damages awards after a $1 billion (yes, that’s right, billion with a “b”) punitive damages award the story of a nuclear verdict? Of course it is. But it may also have been the right number for the jury to grant under the controlling standards, depending on what the evidence was in the case.  And thus the real question may be whether numbers have grown so big, both in terms of the revenue of defendants from whom punis are sought and in the amount that applicable standards allow to be awarded as punitive damages, that it is now necessary to impose additional standards that limit the amount of a punitive damages award to one that doesn’t, as the $1 billion award does, stop readers in their tracks.  But that’s a question of how much we think is the most that a jury should be able to punish a party.  Thought about this way, this case and the issues it raises concern a policy decision as to how much in punitive damages is too much, or in other words whether there should be a cap on recovery, an issue that perhaps more properly belongs to the Massachusetts legislature to decide. It’s not, when thought about that way, really a question about the competency or emotions of those who sit in a jury box and who, in my view, often get an unfair rap in arguments over nuclear verdicts.  In my study of unexpectedly large verdicts, they don’t come about simply because the jury got mad, but because there were elements in the case that made them mad, and which could have been predicted to have had that impact.
2. As long as you have the Massachusetts Lawyers Weekly open to the article on $1 billion verdicts, take a look at the article surveying in-house counsel on the cost savings to them of having their outside counsel be AI competent. As I have discussed in a number of places, including in this blog post, this article and this article, lawyers in private practice should be becoming more efficient and effective by means of AI tools. I know I am, and can give you hard firm examples of it happening. One real life example was the elimination of time that would have been invested by junior associates in helping me prepare for an oral argument because, instead of asking for a memo on a particular subject while I worked on other aspects of my argument, I could instead sufficiently satisfy myself on the issue by doing my own AI assisted research when I had an open couple of hours late at night (and yes, I did read the cases it came up with, just as I would have read the cases in a memo prepared by a junior associate before I would have walked into an appellate court and cited them). But as this article in the Massachusetts Lawyers Weekly points out, in-house lawyers – otherwise known as clients – don’t believe they are seeing the benefit of that in the bills they are receiving from their lawyers. I have argued before that technological advances in providing legal services lead to bigger and richer law firms, rather than lower bills – and personally, I hope we are not seeing that same dynamic occur with AI. Time will tell, I suppose.
3. Two things I really like are football and arbitration. One thing they have in common is that an awful lot of freedom of decision is granted to the decisionmaker, i.e., the ref in the former and the arbitrator in the latter. Another thing they have in common is that anyone who has watched a lot of football, and any lawyer who like me, has arbitrated a lot of cases, knows that on the ground and in real time, the outcome of either type of contest can be a little, well, unfair and even arbitrary. This article about overreach in the context of arbitration by the NFL, written by noted reinsurance arbitrator Robert Hall, really illustrates the extent to which arbitration can simply be a tool for the more powerful party in a given transaction to assert itself unfairly, in ways that probably would not be possible in a courtroom under the rules of evidence and the control of a judge. It’s also a story of how the courts themselves occasionally step in to fix that problem. It’s not a long read, but kind of fun – and it gave me an excuse to write this extended metaphor (now mercifully concluded) comparing football and arbitration.
4. Two of my favorite founders, Jack Newton of Clio and Kevin O’Keefe of LexBlog, in a podcast. What more do I have to say? It’s only twenty minutes so give it a listen. You can watch and listen here.
5. Finally for this week’s edition, they say that inside every lawyer is a frustrated novelist. (I prefer to say that inside every lawyer is a novelist who got waylaid by familial and societal expectations on his way to the publishing house, or didn’t want to live off of barista wages for years while writing a first novel, but maybe that’s just me). If that’s true, then inside executive compensation lawyers with their endless obsession with minute contractual terms must be novelists who favor a lot of details, like in a Russian novel. That’s a long way of saying my partner, long time executive compensation lawyer Mark Poerio, has just published his first novel, set in Italy and woven around the history of an order of monks. You can find it here.