A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
I 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 MoreLitigants are generally given only one chance to litigate their claims. Once a court issues a final judgment on a matter, restrictions limit the litigant’s ability to argue the case again in another court. One such restriction is in the U.S. Constitution, which requires each state to give “full faith and credit” to the judgments other state’s courts. This restriction, however, has limits.
Read MoreLitigation News published an article I recently wrote about the process of fighting an arbitration award in court. Although courts generally do not second guess the decisions of arbitrators or give litigants a second chance to present their case, there are limited circumstances when a court will refuse to issue a litigation judgment based on an arbitration.
Read MoreParties to a contract often go to court when they have different interpretations of what an agreement means. Litigation, however, is expensive and burdensome, and so many litigants ask the court to decide the issue of contract interpretation at the start of a lawsuit, before going through discovery. But at an initial stage, courts may decline to decide how to interpret an agreement.
Read MoreCourts often interpret insurance contracts in a very sympathetic light to policyholders and harshly to insurance companies. This is likely because they recognize the tremendous power imbalance between the two parties: insurance companies can write the policies and policyholders have very little say into the terms.
Read MoreWhen a defendant seeks summary judgment, she is often telling the court that the plaintiff has no evidence to present at trial that could support his case. Summary judgment motions are difficult to win because, often, plaintiffs in litigation have some evidence. But even so, a defendant can prevail by explaining that the plaintiff’s evidence does not support his case.
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