Hearsay and Foundation Objections

At trial, technical rules dictate what evidence is admissible and what evidence is not. Not only does this require lawyers to do a lot of work before trial to make sure their evidence is admitted, but it could baffle some people about why some great evidence wasn’t included.

Arbitration

There are several reasons why parties may choose arbitration over litigation. One reason is efficiency: arbitrations tend to move faster than court proceedings. This is because arbitrators often have lighter caseloads than judges and because they have the flexibility to skip various formalities. Also arbitration usually does not permit appeals, which saves the parties the costs of an appeal.

Cross Examination at Trial

Sometimes during cross-examination, things don’t go as planned. The witness may give a bad answer or the judge may cut off a line of questioning even though the lawyer really wanted to continue it. In those events, a lawyer is usually best served by remaining calm. Acting like these are huge losses may communicate to others that even the lawyer thinks their case is in bad shape. And while those losses are scary in the moment, a trial often has numerous opportunities for each side to make its case.

Serving the Summons

Corporate defendants may automatically designate the state government its agent for service of process (or may affirmatively designate some third party to be an agent). In those cases, plaintiffs often may properly serve a defendant by delivering or mailing a complaint to the agent instead of to the company itself.

Representations and Warranties

Many contracts have “indemnification” provisions, that state exactly what a defendant needs to do if a representation is false. For example, the provision may state that the defendant is only responsible for a certain amount of damages or that the plaintiff needs to follow a specific procedure before it can bring a lawsuit.

The Convention on the International Sale of Goods

Parties can determine whether the CISG is helpful for them or not based on whether they prefer its terms over the ones found in another applicable law. But putting those substantive differences aside, I believe that there is a significant benefit to the CISG, and a significant drawback.

Trial Exhibit Lists

The process for making an exhibit list often begins several weeks before a “pretrial conference” with the judge to discuss the trial. Often the judge’s rules or the court’s rules will instruct the parties to exchange proposed lists of exhibits. By exchanging these lists before the conference, the parties can identify the subjects of agreement ahead of time and then present their disagreements to the judge at the conference.

I Don’t Know

The focus of a litigator’s practice is often not to advise clients how to comply with the law in the future, but whether an action in the past violated a legal obligation. And in many situations, virtually no litigator can say with confidence how the law applies to a dispute without a detailed study of various contracts and laws that govern the relationships between the relevant parties.

Settlement Agreements

A defendant may be additionally concerned that someone may argue that the plaintiff’s allegations must be true since it agreed to pay money because of them. This is why many settlement agreements contain a statement that the defendant is not admitting liability, but is only settling with the plaintiff to avoid further litigation.

Direct Examination at Trial

According to an old adage, in cross examination the lawyer is the star, but in direct examination, the witness is the star. And so lawyers often draft questions so that the questions are short but the answers are long. Not only does this allow the judge or jury to focus more on the witness with firsthand knowledge than on the lawyer, but it also complies with a rule against “leading questions.”

Bench Trials and Jury Trials

Commercial dispute plaintiffs in the United States often get to decide whether to have their claims decided at trial by judge or by a jury. Plaintiffs often select juries, because juries may be sympathetic to their claims. But there are also compelling reasons for a plaintiff to have a “bench trial,” in which the judge decides the facts of a case.

Mediation

Although mediation is generally considered to be less expensive than litigation, this assumes that the mediation is successful. An unsuccessful mediation can be pretty costly and then fail to save any litigation costs. Mediation can be expensive because the parties often need to pay for the mediator’s time in reviewing the mediation statements, preparing for the mediation, and attending the mediation. And parties also need to pay for the costs of their attorneys to draft the mediation statements, and prepare and attend the mediation.