A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
Plaintiffs get to pick who represent them, but a defendant may ask the court to disqualify their lawyer anyway. Ordinarily they do this when there is a conflict of interest, such as when the plaintiff’s lawyer also represents the defendant. But defendants may make this motion in other situations as well.
Read MoreA fraud case often requires an explicit false statement and the plaintiff’s justifiable reliance on the statement. A case based on the failure to disclose the truth, instead of an outright lie, is harder. And a judge may dismiss a fraud claim entirely if the plaintiff knew the truth the whole time.
Read MoreIn a recent case, New York’s highest court held that the publisher of a book of landlord tenant laws was not deceptive when it published a volume that omitted numerous relevant laws that long predated its publication. The majority held that the book expressly stated that it did not represent its accuracy and the very fact that laws can change means that no one should rely upon it to be perfectly accurate.
Read MoreOne way in which courts have the power to enforce their orders is by holding disobedient parties in contempt. When a party is in contempt, they could be forced to pay fines or even put in jail. Although I have never personally seen a party in a commercial case put in jail for contempt, I have read a few cases where courts have awarded fines.
Read MoreA party in litigation may give an adversary a series of statements to which they must admit or deny. For example, one may say “Admit you were an employee of X Corp. on January 5, 2017.” These are called “notices to admit.” But courts have held that their use has limits.
Read MoreTo survive a motion for summary judgment, a plaintiff usually needs to submit some evidence that could support an eventual win at trial. Though they can do this by submitting a sworn statement, a court often will disregard a witness statement if it contradicts his deposition testimony. This prevents lawyers from “fixing” a bad statement at deposition by writing up a better answer later.
Read MoreThis month, the American Bar Association Magazine published two of my articles about recent decisions. One was a federal appellate decision about employment discrimination and the other was a Texas Supreme Court case about the transfer of liability in asset purchases.
Read MoreParties frequently expect more from contractors than what their contract explicitly requires. Often they believe that the contract is a formality and the real agreement comes from their pre-contract discussions or common sense. This is not always the case.
Read MorePeople frequently sign non-disclosure agreements, promising to keep certain information confidential. Those agreements may not, however, prohibit a signatory from using that confidential information in a lawsuit. But to do so, the signatory may have to ask a judge’s permission to disclose the information privately to the court.
Read MoreNew York courts generally dismiss cases when the parties have agreed to arbitrate their disputes. But an exception may exist where the parties have litigated their dispute in court for awhile and then one party belatedly invokes an arbitration agreement.
Read MoreA major issue that I see frequently is the confusion between contract claims and fraud claims. It is normal for a party to a breach of contract action to feel defrauded when another party does not perform. But New York courts generally dismiss fraud claims when they arise out of a broken promise of future conduct instead of a false statement of present fact.
Read MorePlaintiffs often allege fraud when really their complaint is for breach of contract. People naturally feel like they were the victim of a fraud when they perform an agreement but their counterparty does not. But New York courts distinguish between a failure to live up to a future promise and a false statement of fact.
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