More Thoughts on 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 Again

Judges can strictly enforce rules, even if it means treating service as proper when the defendant did not physically receive the summons. If a defendant does not update her address in public records, it is possible she may not be able to say that service on an old address was insufficient. And if a defendant does not pay attention to the documents delivered to her home or office, her lack of diligence is no excuse.

The Audience

Most of the time I have seen courtrooms with full audiences are when a judge convenes a hearing for the same time (or close to the same time) as other hearings. As a result, many people are in the audience since they are waiting for their own case to be called. It can be smart to come early to see how the judge conducts business in other cases to help prepare to argue before the judge in your own case.

More Representations and Warranties

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.

Movies About Lawyers

Depositions 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.

More Thoughts on the Convention on Contracts for the International Sale of Goods

Parties 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.

More Thoughts on 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.

Antitrust Litigation

Some 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.

I Still Don’t Know

Even 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.

Bankruptcy Litigation

At 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.

More Thoughts on Settlement Agreements

A 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.

Trusts and Estates Litigation

Many 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.