A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
Once a lawsuit is over, a plaintiff may face obstacles in trying their same lawsuit again. Courts respect the principle of res judicata, which means that once a case is decided, the decision is binding in future lawsuits. But still, some litigants test the limits of what that means.
Read MoreCommunications between clients and lawyers are generally protected from use by opponents in litigation. But the privilege may also protect communications among non-lawyers in response to a question posed by counsel, even if those communications are disclosed in litigation. This is because a privilege that protects trial preparation materials may protect those communications.
Read MoreI wrote the cover story in the most recent issue of Litigation News, a publication of the ABA Section of Litigation. It is about a split among the federal appellate courts concerning whether laws that prohibit gender affirming medical care to minors are constitutional. And it considers how different framings of the same law result in different levels of scrutiny that courts apply.
Read MoreThe preservation of emails and other electronic documents is important in litigation. The deletion of files, even for benign reasons, can result in punishment in litigation. But a judge has wide discretion in imposing that punishment, and the penalties are not automatic.
Read MoreParties in a commercial dispute have to follow laws and contractual obligations. But they must also act reasonably, even if there are no specific rules governing a particular act. This is because judges often find ways to punish litigants for unreasonable conduct.
Read MoreI have seen several cases in which a plaintiff sues defendant for the acts of a third party. Often, the defendant argues that the third party is to blame, but this argument may not work if the defendant signed a guarantee on behalf of the wrongdoer.
Read MoreIn addition to awarding the amount due on a contract in litigation, a court can award interest that runs from the date the amount was due. In many jurisdictions, the interest rate can be high. In New York, for example, it is nine percent. In Massachusetts, it is twelve percent. Not only does this provide an incentive for defendants to avoid breaching contracts, but it also provides an incentive to resolve litigation quickly.
Read MoreLate last month, I argued an appeal. It was a classic debate over the extent to which an out-of-state defendant is subject to personal jurisdiction in another state. Just as lawyers learn in their first year of law school, the court must consider the contacts between the defendant and the forum state. And a defendant must explain why the case is similar to previous cases that decided against jurisdiction, and different from those that held otherwise.
Read MoreContractors who perform different projects often have a master services agreement and then specific statements of work for each specific project. This format allows parties to negotiate overall terms in one agreement and then focus on specific details when discussing specific work without the need to redo basic terms or fret about consistency of their obligations. But it is not always clear when a master services agreement applies to a statement of work.
Read MoreMost cases settle, but lawyers generally read about cases that proceeded far enough through litigation that a judge wrote a decision. And the decisions that form binding legal precedent usually reflect cases that were not only litigated, but also appealed. Still, there is a lot to learn from the stories of cases that settle.
Read MoreParties often negotiate settlement agreements over email. And while a settlement agreement may become official once both sides sign the formal contract the lawyers prepare, it is possible for the emails themselves to become an operative agreement subject to litigation.
Read MoreCourts are often reluctant to second guess an arbitrator’s decision (although they do on rare occasions). So when people arbitrate their claims, there may not be a chance to ask a court for a do-over. This may be true even when there are conflicts of interest.
Read More
