Photo of Lawyers for the Profession® Cassidy E. Chivers
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Ms. Chivers focuses her practice on professional liability and complex insurance coverage litigation in state and federal courts. Her …

Showing 3 posts by Cassidy E. Chivers.

Is the American Rule dead in New Jersey?

Ok, so maybe "dead" is a bit hyperbolic, but the New Jersey Supreme Court's decision in Innes v. Marzano-Lesnevich, No. 074291, ___ N.J. _____ (N.J. Apr. 26, 2016) has raised serious questions about just how far the New Jersey Court may be willing to bend the American Rule that litigants must bear the cost of their own attorneys' fees.   More ›

The Anti-SLAPP Battleground and Davis v. Cox, Part II

Davis may spark a wave of similar constitutional challenges in other states, but whether they will be as successful is a different question. Davis should be viewed as one court's anomalous attempt at maintaining constitutional equilibrium, rather than as a new trend in restricting public debate and government participation. Most state anti-SLAPP laws do not impose the "clear and convincing" evidentiary burden, and are typically interpreted under a summary judgment standard. Indeed, over fifteen years ago, the California Supreme Court rejected the suggestion that its anti-SLAPP law unduly burdened access to the courts, noting that "the potential deprivation of jury trial . . . might result were [the law] construed to require the plaintiff first to prove the specified claim to the trial court, but that is not the case. The courts must determine only if the plaintiff has stated and substantiated a legally sufficient claim, similar to a demurrer or summary judgment motion 'in reverse.'"  Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123; see also, Moore v. Shaw (2004) 116 Cal.App.4th 182, 193: “Section 425.16 does not impair the right to a trial by jury because the trial court does not weigh the evidence in ruling on the motion, but merely determines whether a prima facie showing has been made which would warrant the claim going forward." Moreover, as a general principle, litigants that contest a law on constitutional grounds must overcome the presumption of constitutionality under the constitutional-avoidance doctrine.  Under this rule, a court must first ascertain whether a constitutional construction of the challenged law is "fairly possible." If so, the court "avoids" the question of unconstitutionality.  Crowell v. Benson (1932) 285 U.S. 22. The anti-SLAPP statutes that can be fairly construed to impose a summary judgment standard, as in California, should pass constitutional muster.     More ›

The Anti-SLAPP Battleground and Davis v. Cox, Part I

A typical Strategic Lawsuit Against Public Participation, or “SLAPP,” is retaliatory: its goal is to punish the free exercise of speech and government petition, and deter the future exercise of such rights. Anti-SLAPP laws attempt to strike a balance between the right to have the SLAPP adjudicated through the judicial process and the right of public participation, both of which are equally fundamental liberties afforded under the First Amendment.  Given this tension, it is not surprising that courts and state legislatures continue to struggle to maintain equilibrium some twenty-five years after the concept of a SLAPP was first introduced into our political and legal consciousness. See, generally, George W. Pring & Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPs”): An Introduction for Bench, Bar and Bystanders, 12 U. Bridgeport L. Rev. 937, 938). More ›

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