A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
Many lawsuits arise from allegations that the defendant did something terrible. And, consistent with the plaintiff’s claim that the defendant’s conduct was awful, many complaints allege that the defendant intentionally inflicted emotional distress on the plaintiff. But not all misconduct gives rise to an “IIED” claim.
Read MoreA major issue that arises in defamation litigation is whether the statement at issue is a fact that can be proven true or false or whether it is an opinion. Only a false statement of fact can be the basis of a damages claim, and so a judge must decide whether the statement is a fact before the question of falsity can go before a jury. And the legal definition of a fact may differ from how many people understand it from generally using the word.
Read MoreLitigants often argue to the court that a trial is not necessary because the claims fail as a matter of law or because all of the evidence in the case can only support one side. But there are some kinds of claims that are difficult to dismiss before a trial because the evidence is almost always imprecise and requires a judge or jury to evaluate credibility. Employment discrimination claims, for example, often involve competing statements by witnesses, and so it usually cannot be said that all of the evidence supports only one side.
Read MoreNew York courts allow a plaintiff to sue someone who receives an invoice without objecting to it. Unlike a traditional breach of contract action, an “account stated” action just is limited to whether the invoice was delivered and whether the defendant objected.
Read MoreSince litigation is expensive, many people rely on their insurance carriers to assume the costs of a lawsuit. But insurance often contains exceptions to coverage, there are often lawsuits to determine whether the insurer is obligated to defend.
Read MoreOnce 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.
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