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Comments on Recent Cases: January 2025

A defendant in litigation may argue that the plaintiff sued in the wrong court. For example, a California defendant may claim that they should not need to participate in a lawsuit in a New York court. And while judges often decide these issues before the parties need to exchange evidence, sometimes courts require a limited exchange of evidence to decide whether the plaintiff chose the right court.
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Comments on Recent Cases: December 2024

An important part of litigation is the motion for summary judgment. It is a litigant’s opportunity to avoid a trial on the grounds that the opponent has no evidence that can support her claims or defenses. But to prevail, a movant needs good evidence herself.
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Comments on Recent Cases: November 2024

A principal question a lawyer must ask before commencing litigation is who the correct plaintiff should be. Not every plaintiff has standing to bring a lawsuit, and making the wrong choice may not be easy to fix. In some cases this is an easy question, but in others it can be more difficult.
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Comments on Recent Cases: October 2024

A party to litigation has a duty to preserve relevant evidence. They can’t just shred everything to leave their adversary without evidence at trial. But parties may disagree about the extent they need to preserve. If a judge decides one side did not preserve enough, she may decide to tell a jury to assume the missing evidence was bad for the party who did not preserve it.
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Comments on Recent Cases: September 2024

I wrote a cover story in the most recent issue of Litigation News, a publication of the ABA Section of Litigation. It is about a challenge that journalists made to a Texas law that restricts the use of drones. And while the court ultimately refused to strike down the law, it considered whether the federal government even permits states to regulate the use of airspace and the balance between the right of journalists to take photographs and the ability of the government to restrict certain locations from interference.
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Comments on Recent Cases: August 2024

Many lawsuits arise from allegations that the defendant did something terrible. And, consistent with the plaintiff’s claim that the defendant’s conduct was awful, many complaints allege that the defendant intentionally inflicted emotional distress on the plaintiff. But not all misconduct gives rise to an “IIED” claim.
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Comments on Recent Cases: July 2024

A major issue that arises in defamation litigation is whether the statement at issue is a fact that can be proven true or false or whether it is an opinion. Only a false statement of fact can be the basis of a damages claim, and so a judge must decide whether the statement is a fact before the question of falsity can go before a jury. And the legal definition of a fact may differ from how many people understand it from generally using the word.
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Comments on Recent Cases: June 2024

Litigants often argue to the court that a trial is not necessary because the claims fail as a matter of law or because all of the evidence in the case can only support one side. But there are some kinds of claims that are difficult to dismiss before a trial because the evidence is almost always imprecise and requires a judge or jury to evaluate credibility. Employment discrimination claims, for example, often involve competing statements by witnesses, and so it usually cannot be said that all of the evidence supports only one side.
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More Commentary

Litigation Practice

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2025 Document Review Strategies

Companies often compile spreadsheets or other documents that are helpful to better understand the facts of the case or to evaluate claims made by witnesses. I try to keep an eye out for documents like employee directories, monthly financial statements, and organization charts.
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Securities Fraud Claims

The basis for many securities fraud claims is a Securities and Exchange Commission rule called Rule 10b-5. That rule essentially prohibits anyone from lying in connection with securities. Often this is in connection with the sale and promotion of securities, but the rule also applies to statements made by a publicly traded company to the marketplace in general.
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Taking a Deposition

The deposition should start by following the script of questions that the lawyer prepared. But witnesses will frequently give unexpected answers. This is why I keep an eye on the transcript (I usually pay extra for the “Real Time” screen that lets me see the transcription of what was just said) and, if the answer leads to more questions or if the answer is unclear or unresponsive, I follow up until I get a clear answer.
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More Thoughts on Temporary Restraining Orders

Temporary Restraining Orders frequently arise in disputes arising from the use of confidential material or intellectual property. This may be because it is difficult to quantify the damage arising from improper use of confidential material and so a money judgment may not properly compensate a plaintiff.
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More Thoughts on Releases

In a settlement negotiation, the defendant's main objective is to get a release from the plaintiff. A defendant usually offers the plaintiff money in exchange for a promise by the plaintiff not to sue and to end any existing litigation. But the defendant usually also wants a release from the plaintiff because it legally ends the threat of any future litigation by the plaintiff on the subject of the dispute.
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More Thoughts on Confidentiality

Lawyers are not public relations specialists, and so they may not consider how a particular argument could be viewed in the court of public opinion or how a statement could be viewed out of context.
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Litigating From Home

When I worked in an office, I almost always bought lunch at local lunch places. In midtown Manhattan, that would cost millions of dollars each week. Now, I make sandwiches, eat leftovers, or make other quick meals.
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Deadlines

Unlike the deadline to answer an initial demand or pleading, the deadline to file an appeal is often strict. A good appeal, filed late, may be dismissed for the lateness alone. As a result, litigants have to be vigilant to make sure they file their notices of appeal on time.
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More Litigation Practice

Interviews

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Litigation in Belgium

In Brussels there are Dutch and French speaking courts. I plead before both of them or other courts in Wallonia in French. We have a small German speaking territory (a leftover feom WWI) and I have had the chance to plead before the local court in German a few times.
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Litigation in Slovenia

Slovenia is a civil law country, so we don’t need to state the law as much as in common law. As a result, 10-20 pages for an initial complaint is average, but it depends on complexity. The complaints in simple cases could be shorter.
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Litigation in Botswana

The way that customary law works, it applies to people who live in tribal communities where the value of claim is usually very small. So when you deal with commercial disputes, the amount at stake is higher and so civil law applies.
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Litigation in South Korea

Korean courts are efficient, with specialized judges who have strong expertise in commercial law, making them effective at handling complex disputes. Their focus on written submissions ensures clarity and thorough consideration of the issues.
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Litigation in Luxembourg

Despite several e-justice projects in the pipeline or on their way to be adopted, Luxembourg is still in the early stages of electronic filing. Everything is still done on paper. This mass of paperwork leads me to say that our law firms have, in their secretariats, a real in-house print shop.
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Personal Injury Litigation

It is very tiring and cumbersome dealing with an entrenched insurance industry that controls the court system and the legislature. The New York State court system is barely functional. Cases that should settle within 1 year often take 5 years. The insurance industry has figured out how to get the court system to work for them, rather than for the people.
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Litigation in Ireland

The first step in a personal injury case is for a plaintiff to go to a personal injuries board, which is designed to take pressure off of the courts. The board sends the plaintiff to its own doctors. The board then sends a proposed settlement figure to the parties and, if both parties accept the figure, they can avoid court. This process can take nearly a year and a half.
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Litigation Historically in Mormon Courts

By 1847, Mormons settled in Utah, Southern Idaho, Nevada, and Arizona. They were isolated and far from the center of the federal government. Although there was a territorial government, where they were, ecclesiastical institutions were more vibrant and powerful. Therefore, the Church court system was the dominant way to resolve disputes in pioneer Utah throughout the 19th century.
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