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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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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 Thoughts on Defaults

Judges do not just rubber stamp requests for default judgments. They often scrutinize a plaintiff’s request for one to make sure they served papers correctly and that they submitted adequate evidence to support their case.
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Bad News

Before delivering bad news, it helps to let a client know what to expect. This way, they will not be blindsided when an adverse event occurs. Doing this is tricky because, if a lawyer only shares worst case scenarios, the client may get too scared to proceed in situations where risks are low. They may also mistake a worst case scenario for a prediction of failure.
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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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