A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
Although it is rare for a negligence plaintiff to win a case on summary judgment in litigation, it happens sometimes. It is rare because a defendant will often present some evidence that he acted reasonably. But when a defendant fails to present such an explanation, he may lose before trial.
Read MoreAfter the final decision in an arbitration, the losing party has one last recourse: it can ask a court to vacate the arbitration award. But because arbitration is meant to be a substitute for litigation, and not to duplicate it, courts are very reluctant to grant that relief.
Read MoreMany agreements are governed by the statute of frauds, a legal doctrine that requires certain agreements to be in writing. But a signed contract is not the only kind of agreement that satisfies this rule.
Read MoreCourts will dismiss litigation over out-of-state defendants where there is an insufficient connection between the state and the claims. Even if a defendant does business in the same state as the court, that alone may be insufficient to confer personal jurisdiction.
Read MoreThrough a doctrine called respondeat superior, an employer can be held civilly liable in litigation for the negligence of its employees. This often leads to defendants arguing they should not be liable because they are not technically the employer of the negligent person.
Read MoreThrough a doctrine called respondeat superior, an employer can be held civilly liable in litigation for the negligence of its employees. This often leads to defendants arguing they should not be liable because they are not technically the employer of the negligent person.
Read MorePlaintiffs 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.
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