A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
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.
Read MoreAn 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.
Read MoreA 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.
Read MoreA 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.
Read MoreI 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.
Read MoreMany 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.
Read MoreA 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.
Read MoreLitigants 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.
Read MoreNew York courts allow a plaintiff to sue someone who receives an invoice without objecting to it. Unlike a traditional breach of contract action, an “account stated” action just is limited to whether the invoice was delivered and whether the defendant objected.
Read MoreSince litigation is expensive, many people rely on their insurance carriers to assume the costs of a lawsuit. But insurance often contains exceptions to coverage, there are often lawsuits to determine whether the insurer is obligated to defend.
Read MoreOnce a lawsuit is over, a plaintiff may face obstacles in trying their same lawsuit again. Courts respect the principle of res judicata, which means that once a case is decided, the decision is binding in future lawsuits. But still, some litigants test the limits of what that means.
Read MoreCommunications between clients and lawyers are generally protected from use by opponents in litigation. But the privilege may also protect communications among non-lawyers in response to a question posed by counsel, even if those communications are disclosed in litigation. This is because a privilege that protects trial preparation materials may protect those communications.
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