2025 Articles

Cert. Before Judgment—Is Justice Kavanaugh Right in Suggesting This Is an Idea Whose Time Has Come? By Vikram David Amar & Jason Mazzone September 2025 Cert. before judgment has been infrequently used in the past, but certain comments by Justice Kavanaugh could indicate the benefits of cert. before judgment in the future.

Finding an Expert Witness: Best Practices for Finding Credible Experts By Kim Beane September 2025 Learn more about resuorces to consult when trying to find your next expert witness.

Inherent Federal Court Sanctioning Authority By Jeffrey A. Parness January 2025 In Keyes Law Firm, LLC v. Napoli, (4th Cir. 2024), the court provided primers on the inherent sanctioning authority of federal courts for civil litigation misconduct and on the guidelines for determining related attorney fee awards. In doing so, it recognized that some problematic state court conduct could prompt federal court sanctions and that the fee award norms for such conduct should differ from those employed in many fee-shifting statutes.

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LAWPAC Needs You! May 2025 The Illinois Lawyers’ Political Action Committee (LAWPAC) needs your help to fulfill its mission to support the legislative goals of the ISBA and Illinois’ legal community.

Lists of People with Claims or Pertinent Knowledge: Work Product-Protected or Not?? By Thomas Spahn & McGuire Woods May 2025 In Civil Rights Dep’t v. Grimmway Enterprises, Inc., a California court addressed how the work product doctrine applies to lists of individuals in discovery. The court allowed the plaintiff agency to reference the defendant’s own business records (under Rule 33(d)) instead of providing a curated list of affected employees. It rejected the employer’s demand for a subjective list of key individuals, citing work product protection. The case illustrates that while litigants must identify people with relevant information, they aren’t required to reveal which individuals they view as most important to their case.

Mark Your Calendars: How Long Can a Dismissal “Without Prejudice” Loom in Federal Court? By Christian Ketter September 2025 Federal courts may dismiss an action under Rule 41 of the Federal Rules of Civil Procedure either with or without prejudice. Whether with or without prejudice, both parties must remain vigilant after a dismissal for any future actions.

Musings on the Supreme Court’s Handling of Its Emergency (“Shadow”) Docket, and Other, Related Procedural Shortcomings in the Court’s Work in the 2024-25 Term By Vikram David Amar August 2025 This article discusses the issues that may arise with the Supreme Court's "shadow docket" and regular term docket, including lack of reasoning in decisions, poorly crafted decisions, and overreaching when presented with issues of injunctions.

Ninth Circuit Upholds Mass Arbitration Consolidation By David M. Krueger, Meegan Brooks, & Carlo Lipson May 2025 The Ninth Circuit's decision in Jones v. Starz Entertainment, LLC (2025) marks a significant development in managing mass arbitration. The court upheld the consolidation of over 7,200 individual claims into a single arbitration under JAMS rules, saving Starz over $12 million in fees. The court ruled that consolidation is a procedural matter for arbitration providers—not courts—and found that Starz did not refuse to arbitrate by supporting consolidation. The decision distinguishes consolidated arbitration from class arbitration and confirms that mass arbitration procedures are enforceable if the underlying agreement permits them. This ruling provides critical guidance for businesses to craft enforceable and cost-effective arbitration agreements amid the rise of mass arbitration strategies.

Recent False Claims Act Cases Show Trump Administration’s Continued Focus on International Customs and Trade Fraud By Jay Schleppenbach July 2025 International trade has continually been in the news during President Trump’s second administration. From the imposition of tariffs on automobiles and their component parts to the broad reciprocal tariffs announced on Liberation Day and discussions of tariffs on foreign-made films, it is safe to say the landscape of international trade has continually shifted. Beyond these more dramatic moves on the international stage, however, there have been perhaps less visible but no less important signs that the Trump administration is prioritizing compliance with the nation’s customs and trade laws.

Reread All the Jury Instructions! By Michael Lied May 2025 In a false advertising case between Republic Technologies and BBK Tobacco (HBI), the Seventh Circuit upheld the trial court’s decision to refer the jury back to the original instructions rather than clarify a question about the term “consumer.” Republic argued this was misleading, but the appeals court found the original instructions were accurate and broad enough to cover the issue. The court emphasized that trial judges have discretion in handling jury questions and that supplemental instructions are not required if the existing ones correctly state the law.

Responding To Work-From-Home Accommodation Requests in a Post-Covid Environment By Josh Heidelman September 2025 In the wake of the pandemic, it may be more difficult for employers to argue remote work is not a reasonable accommodation. Learn more about developing case law on the topic and steps employers can take to strengthen their positions in court.

The Seventh Circuit Raises the Bar for Conditional Certification Under the FLSA and the ADEA By Gerald L. Maatman, Jr., Ryan T. Garippo, & George J. Schaller September 2025 A look at Richards v. Eli Lilly & Co. and its impacts on conditional certification of wage and hour collective actions under the Fair Labor Standards Act.

Substantive Elements in Special State Pleading Laws By Jeffrey A. Parness July 2025 In Berk, the issue is whether a Delaware affidavit of merit (AOM) statute governing “healthcare negligence” claims, 18 Delaware Code 6853 (a)(1-3), applied in a diversity case involving the treatment of a Florida citizen in Delaware that was prompted by a fall in a Delaware home. Upon examining the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and its progeny, the Third Circuit determined that there was no conflict involving federal civil procedure rules

“Three Strikes, You’re Out” for All Frivolous Pro Se Inmate Cases? The Prison Litigation Reform Act’s “Balls & Strikes” By Christian Ketter September 2025 The "three strikes" rule of the Prison Litigation Reform Act may only apply in certain circumstances. Some courts have held that the "three strikes" rule does not apply to removal from state court to federal court. Unless the Supreme Court speaks to this issue, this procedural loophole may allow a backdooring of cases that are otherwise malicious, frivolous, and fail to state a claim.

To Be or Not to Be…Discoverable: Third-Party Litigation Funders By Lee S. Brenner, Alicia Sharon, & Matthew Raber July 2025 This article explores under what circumstances can a court permit discovery of third-party litigation funding.

Too Much Litigation: “Frivolity” Results in Sanctions By Michael R. Lied August 2025 In Ruben Santoyo v. City of Chicago, the court of appeals upheld a sanction against a pro se plaintiff for filing frivolous litigation.

Without Further Ado: Third Circuit Limits Discovery on Motions to Compel Arbitration By Bassam F. Gergi January 2025 More than a decade after its seminal decision in Guidotti v. Legal Helpers Debt Resolution, L.L.C., the Third Circuit Court of Appeals has clarified that a plaintiff’s claims may be sent straight to arbitration, without any discovery, if there is no challenge to an arbitration agreement’s existence or validity.

Federal Civil Practice

2025 Articles