A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Litigation
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 usually choose juries because they may be more sympathetic to the plaintiff’s 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.
Read MoreA landlord cannot simply kick out a tenant when she does not pay rent. Instead, there is a process to demand rent and, if need be, seek an eviction. But the tenant may be able to explain why she is not paying rent. Litigation may be how the parties ultimately resolve the dispute.
Read MoreLawyers need to make sure any potential documents are coded for privilege and redacted, even if the documents are not considered responsive to a document request. This is because a non-responsive document may be produced anyway if it is the family member of—attached to or embedded in—another document that is responsive to a request and thus subject to production.
Read MoreA plaintiff may not want to wait until the end of a lawsuit to get her property out of the hands of the defendant. Lawsuits could take years. And the defendant, who must not be a good person if she stole the plaintiff’s property, may take bad care of it, destroy it, get rid of it, or hide it.
Read MoreWhen determining whether to settle, it can be difficult for employees and employers to calculate an appropriate amount for the employer to pay. Unlike a contract dispute, where an agreement can set forth an amount due, there is no natural number that can compensate an employee for discrimination.
Read MoreOften, parties will make compromises in discovery to avoid the expense and uncertainty of going to court. For example, if a party believes it is entitled to all of a company’s financial records and the recipient believes it is entitled to none, the two may compromise and the recipient may agree to produce some specific financial records.
Read MoreInterrogatories may also be useful to define what an adversary’s claims or defenses are. To that end, a party may ask an opponent to identify each fact that supports its claims or each instance of misconduct that it alleges. Although a party may be able to ask the same questions to a party at a deposition, an interrogatory is more likely to get a useful response and less likely to get an “I don’t know offhand” or some other incomplete answer.
Read MoreIf a defendant does not voluntarily pay a judgment, the plaintiff must find assets that belong to the defendant and collect them. This process may be easy for some defendants if they have well-known assets or if details about their bank accounts were shared in discovery. But for others, plaintiffs may need to hire an investigator or use public records (like property records or vehicle registrations) to find assets.
Read MoreOne problem in trade secret cases is that plaintiffs want to keep trade secrets a secret, but court filings are public documents. And so plaintiffs have to weigh the publicity from a lawsuit against the need to enforce their trade secret protections.
Read MoreThe American legal system allows litigants to compel the production of far more evidence before trial than many other systems. And it does not limit this power to proceedings taking place within the United States. Instead, pursuant to statutes like 28 U.S.C. § 1782 or CPLR 3102(e), litigants can ask American courts to compel discovery for use in proceedings abroad.
Read MoreLawyers have a reputation for being self-important and rude. Members of the general public who litigate without lawyers have a reputation for being insane cranks. And clerks have to deal with a steady stream of both kinds of people every day. This can be frustrating.
Read MoreThe client may believe that, if her lawyer says “too bad” to an adversary who is about to go off on vacation and therefore cannot respond to a complaint, the lawyer may be doing justice by helping her win quickly and cheaply. But the truth is that the opposing counsel will likely be able to ask the court for an extension anyway and then be less willing to give extensions in return when the client’s counsel wants them. It’s a lose-lose situation.
Read More
