§ 28. Unclutter the text by moving citations into footnotes.

Exercises

Basic

Look up at least three cases listed below, all of which put citations in footnotes. Identify the stylistic differences you notice between these cases and other cases (in the same volume) having citations in the text.

• Alizadeh v. Safeway Stores, Inc., 802 F.2d 111 (5th Cir. 1986).
• Alamo Rent A Car, Inc. v. Schulman, 897 P.2d 405 (Wash. Ct. App. 1995).
• Warden v. Hoar Constr. Co., 507 S.E.2d 428 (Ga. 1998).
• KPMG Peat Marwick v. Harrison County Fin. Corp., 988 S.W.2d 746 (Tex. 1999).
• M.P.M. Enters. v. Gilbert, 731 A.2d 790 (Del. 1999).
• Aleck v. Delvo Plastics, Inc., 972 P.2d 988 (Alaska 1999).
• State v. Martin, 975 P.2d 1020 (Wash. 1999) (en banc).
• In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999).
• Williams v. Kimes, 996 S.W.2d 43 (Mo. 1999) (en banc).
• United States v. Parsee, 178 F.3d 374 (5th Cir. 1999).
• McGray Constr. Co. v. Office of Workers Compensation Programs, 181 F.3d 1008 (9th Cir. 1999).
• Minneapolis Public Housing Auth. v. Lor, 591 N.W.2d 700 (Minn. 1999).

Intermediate

Rewrite the following passages to put all citations in footnotes and otherwise improve the style:

• Having initially remanded the question of attorney's fees to the Circuit Court following its decision in Greenwald Cassell Assocs., Inc. v. Department of Commerce, 15 Va. App. 236, 421 S.E.2d 903 (1992), the Court of Appeals' subsequent review of that remand in Greenwald Cassell Assocs., Inc. v. Guffey, No. 2190-93-4, 1994 Va. App. LEXIS 649 (Va. Ct. App. Nov. 8, 1994), provides an ample basis to determine the appropriateness and thoroughness of the appellate review conducted.
• In certain narrow exceptions, a court may consider patents and publications issued after the filing date. In re Koller, 613 F.2d 819, 824 (C.C.P.A. 1980). For example, in deciding an appeal from the denial of an application, the Federal Circuit relied upon an article published in 1988, five years after an application's filing date, to conclude that the level of skill in the art in 1983 was not sufficiently developed to enable a scientist to practice the invention claimed. In re Wright, 999 F.2d 1557, 1562 (Fed. Cir. 1993). Similarly, in Gould v. Quigg, 822 F.2d 1074 (Fed. Cir. 1987), the same court upheld a decision to permit the testimony of an expert who relied on a subsequent publication to opine on the state of the art as of the applicant's filing date. Id. at 1079. The publication was not offered to supplement the knowledge of one skilled in the art at the time to render it enabling. Id. In addition, later publications have been used by the Court of Customs and Patent Appeals numerous times as evidence that, as of the filing date, a parameter absent from the claims was or was not critical, Application of Rainer, 305 F.2d 505, 507 n.3 (C.C.P.A. 1962), that a specification was inaccurate, Application of Marzocchi, 439 F.2d 220, 223 n.4 (C.C.P.A. 1971), that the invention was inoperative or lacked utility, Application of Langer, 503 F.2d 1380, 1391 (C.C.P.A. 1974), that a claim was indefinite, Application of Glass, 492 F.2d 1228, 1232 n.6 (C.C.P.A. 1974), and that characteristics of prior-art products were known, Application of Wilson, 311 F.2d 266 (C.C.P.A. 1962). Nonetheless, none of these exceptions "established a precedent for permitting use of a later existing state of the art in determining enablement under 35 U.S.C. § 112." Koller, 613 F.2d at 824 n.5.

Advanced

Rewrite the following passage, putting all citations in footnotes. Improve the flow of the text. Decide what case names you might want to weave into your narrative--and how you can best accomplish this.

III. Attorney's Fees

         In reality, Ohio law is in conflict as to whether attorney fees may be claimed as compensatory damages (which would provide the foundation for punitive damages). Of course, Ohio law has long permitted recovery of attorney fees, even in the absence of statutory authorization, where punitive damages are proper and first awarded. Roberts v. Mason, 10 Ohio St. 277 (1859); Columbus Finance v. Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975); Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552, 558, 644 N.E.2d 397, 402 (1994). However, the important question for our purposes is whether obtaining punitive damages is the only way in which to recover attorney fees, or if attorney fees can be recovered "before" punitive damages and used as the requisite compensatory foundation (actual damages) necessary for recovery of punitive damages.

Several cases hold that attorney fees cannot be recovered unless punitive damages are first awarded. See Olbrich v. Shelby Mut. Ins. Co., 469 N.E.2d 892 (Ohio App. 1983); Ali v. Jefferson Ins. Co., 5 Ohio App. 3d 105, 449 N.E.2d 495 (1982); Stuart v. Nat'l Indemn. Co., 7 Ohio App. 3d 63, 454 N.E.2d 158 (1982); Convention Center Inn v. Dow Chemical Co., 484 N.E.2d 764 (Ohio. Com. Pl. 1984). However, a close reading of the Ohio Supreme Court's decision in Zoppo suggests that such a requirement might not be necessary:

Attorney Fees may be awarded as an element of compensatory damages where the jury finds that punitive damages are warranted. Columbus Finance, Inc. v. Howard, 42 Ohio St. 2d 178, 183, 327 N.E.2d 654, 658 (1975).

Zoppo, 71 Ohio St. 3d at 558.

Furthermore, in the earlier decisions of Spadafore v. Blue Shield, 21 Ohio App. 3d 21 (1985), an Ohio appellate court held that damages "flowing from" bad faith conduct may include:

lost time at work and . . . mileage and other travel costs due to the additional [testimonial] examination which was held out of town . . . . An obvious loss to [the plaintiff] was the cost of the lawsuit to enable recovery of his claim . . . .

Id. Other courts have alluded to the possibility of litigation expenses and/or attorney fees as compensatory damages. See, e.g., LeForge v. Nationwide Mut. Ins. Co., 82 Ohio App. 3d 692 (1992) ("reasonable compensation for the . . . inconvenience caused by the denial of the insurance benefits"); Eastham v. Nationwide Mut. Ins. Co., 66 Ohio App. 3d 843 (1990) ("evidence of . . . costs in this case, including expenses incurred in collecting (on the coverage) attorney fees, lost interest . . ."); Motorists Mut. Ins. Co. v. Said, 63 Ohio St. 3d 690, 703<n>04 (1992) (Douglas, J., dissenting) ("litigation expenses are primary compensatory damages in bad faith claim") (overruled in part by the Zoppo decision).

Moreover, in Motorists Mut. Ins. Co. v. Brandenburg, 72 Ohio St. 3d 157, 648 N.E.2d 488 (1995), the Ohio Supreme Court upheld a trial court's award of attorney fees to the insureds who were forced to defend their right to coverage (against the insurance company) in a declaratory judgment action. The court acknowledged the "anomalous result" that might arise when an insured is required to defend his/her right to recover under an insurance policy, but cannot recover the damages incurred thereby. Brandenburg, 72 Ohio St. 3d at 160.

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