A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Litigation
The distinction between “representations” and “warranties” may be academic, as they both are promises about the truth of certain facts, but generally a representation is a promise about the present, and a warranty is a promise about the future. For example, a product seller may represent that they are not aware of any defects in a product, but they may warrant that, if defects are found, the seller will repair or replace the product in the future.
Read MoreDepositions instead are usually dull. If you're not asking or answering the questions, it can be easy to nod off. So to make movies of them necessarily requires some dramatic license.
Read MoreParties can determine whether the CISG is helpful for them 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.
Read MoreThe 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.
Read MoreSome Antitrust conduct is illegal “per se,” which means it is always illegal. Agreeing to fix prices or refusing to sell to certain consumers fits this definition. But other conduct can still violate the law. Courts apply what they call the “rule of reason” to determine whether the defendants conduct is so unreasonably anticompetitive, given the particular circumstances, that it violates the law.
Read MoreEven though I still do not know for sure what will happen in any given case, clients pay lawyers, in part, for our guidance. So it is not enough to just tell a client that I have no idea how their case will go. Part of the work of a litigator is to tell the client about our past experiences and their case’s possible outcomes. This includes discussing the likelihood of each outcome. This conversation grounds the client in reality, while at the same time acknowledging that we face unpredictability.
Read MoreAt the conclusion of bankruptcy proceedings, the bankruptcy court can release her from her debts and contract claims. Creditors, however, may challenge some debts as being non-dischargeable, arguing that the debt should continue, even after the debtor declares bankruptcy. Student loan debts, for example, are usually non-dischargeable, as are debts arising from the debtor’s own fraudulent conduct.
Read MoreA defendant may be concerned that someone may argue that the plaintiff’s allegations must be true since the defendant agreed to pay money. 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.
Read MoreMany people write a will before they die (few after) that identifies who should receive their property after they are gone. An executor may read these instructions and then distribute property accordingly. Sometimes heirs fight and claim that the executor is not interpreting the will correctly or following its instructions. … Some people want to avoid having a will and, instead, set up a trust. There are many benefits to a trust. It could have better tax consequences. It can avoid procedures in court since the trust holds property and, after the decedent dies, the property stays in the possession of the trust and does not need to be distributed. And it can allow for long-term actions under the guidance of a trustee, as opposed to one big distribution upon a decedent's death.
Read MorePeople often craft a direct examination as if it were just a script on a page. They forget that these questions and answers are a conversation in a courtroom. As a result, those direct examinations sound awkward, repetitive, dull. Better lawyers picture how the examination will play out in court.
Read MoreOften, construction projects run over budget and there are shortfalls. At the scale of a large project, these shortfalls can be huge, leading a development company created for that project to declare bankruptcy. In those cases, litigation helps assign blame. The court can determine where the funds will come from to get people paid while attempting to put the property into the hands of someone who can afford to finish developing it.
Read MoreAlthough mediation is generally considered to be less expensive than a full trial, this assumes the mediation is successful. An unsuccessful mediation can be costly and still fail to save any litigation costs. In a mediation, the parties pay for the mediator’s time in reviewing statements, preparing for the mediation, and attending it. Parties also need to calculate their own lost time and pay for the costs of their attorneys to draft the mediation statements and attend the mediation. Accordingly, for litigants on a budget, mediation has definite costs but uncertain benefits.
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