Belligerent Lawyers

Bluster often fails to work with opposing counsel. Most cases end in settlement. And so a lawyer has to get the other side to agree to a deal. But bullying opposing counsel will rarely make opposing counsel feel like the deal they are being pushed is a good one. If anything, the fact that a lawyer needs to be aggressive to push a deal likely communicates to opposing counsel that the deal is bad and should be rejected.

Litigation in South Africa

South African courts cite UK contract law and UK’s rules for evidence. They do this because UK law offers a large body of precedent that courts can follow. They also do this because a lot of the laws and rules in South Africa come from the UK system, since those laws stayed entrenched in the country when it became independent from the UK.

Comments on Recent Cases: June 2022

In litigation, plaintiffs often seek compensation from any party that has the money to pay them. But they do not always articulate a sufficient reason why the defendant with money is the one responsible for their injuries and therefore needs to pay.

Court Filings That Are Not Decisions on the Merits

Strategically, parties deny most things in an answer and assert as many affirmative defenses as they can, because if they do not, they may lose the chance to do so later. So people may discuss a denial or defense in an answer as the defendant’s actual legal strategy or position when it may just be them preserving their rights.

Litigation in Classical Rome

The true “expenses” of Roman litigation were in time and reputation. There were no filing fees and such. Advocates in Rome did not typically charge fees: advocacy was provided as part of a system of patronage, friendship, and professional ambition.

The Business Record Exception to the Hearsay Rule

To understand why the business record exception exists, it is helpful to remember why trials generally exclude hearsay as evidence. It is because the most reliable testimony comes firsthand, from a witness who swears to tell the truth, who can be cross-examined, and whose credibility can be assessed by the judge or jury. The law considers evidence that lacks these characteristics to be less reliable.

Comments on Recent Cases: May 2022

A party that wants to avoid litigation often seeks a release from someone they foresee suing them. And, generally, the release serves as a complete defense to a lawsuit. But that may not be the case if the release was procured through fraud or duress.

Appeals

The appellant has to make sure her counsel is admitted to the court where the appeal will be heard, which may be a different court than the trial court. In New York, the Appellate Division and the trial courts are both part of the same court system. But in federal court, the District Courts are separate from the Courts of Appeals and require a separate admissions process.

Motions to Reargue

Judges make many decisions during a lawsuit. They set schedules, decide what parties need to disclose in discovery, dismiss claims, and direct the entry of judgments. And while many courts do not specify the limits for what decisions may get reargued, in practice, parties often ask judges to reconsider certain important decisions.

Litigation in Poland

In Poland there is an unusual division between attorneys-at-law (in Polish: “radcowie prawni”) and advocates (in Polish: “adwokaci”). Currently, both professions have identical competences, including representing clients before all the courts, a path to the professions is similar and it is easy to change the profession between them. The reasons of this division have mainly historical character. From the client's point of view, it does not matter whether he or she cooperates with an attorney-at-law or with an advocate.

Motions to Dismiss

When a defendant moves to dismiss, she asks the court to dismiss the case (usually in its entirety, but sometimes just in part) generally for one of two reasons. The first reason is that the court cannot hear the claim, either because the defendant is not subject to jurisdiction in the court or because the claim belongs in a different kind of court. And the second reason is that the complaint does not contain the necessary allegations to support a claim.

Comments on Recent Cases: April 2022

Although it is rare for a negligence plaintiff to win a case on summary judgment in litigation, it happens sometimes. It is rare because a defendant will often present some evidence that he acted reasonably. But when a defendant fails to present such an explanation, he may lose before trial.