Court Filings That Are Not Decisions on the Merits

Strategically, parties deny most things in an answer and assert as many affirmative defenses as they can, because if they do not, they may lose the chance to do so later. So people may discuss a denial or defense in an answer as the defendant’s actual legal strategy or position when it may just be them preserving their rights.

The Business Record Exception to the Hearsay Rule

To understand why the business record exception exists, it is helpful to remember why trials generally exclude hearsay as evidence. It is because the most reliable testimony comes firsthand, from a witness who swears to tell the truth, who can be cross-examined, and whose credibility can be assessed by the judge or jury. The law considers evidence that lacks these characteristics to be less reliable.

Appeals

The appellant has to make sure her counsel is admitted to the court where the appeal will be heard, which may be a different court than the trial court. In New York, the Appellate Division and the trial courts are both part of the same court system. But in federal court, the District Courts are separate from the Courts of Appeals and require a separate admissions process.

Motions to Reargue

Judges make many decisions during a lawsuit. They set schedules, decide what parties need to disclose in discovery, dismiss claims, and direct the entry of judgments. And while many courts do not specify the limits for what decisions may get reargued, in practice, parties often ask judges to reconsider certain important decisions.

Motions to Dismiss

When a defendant moves to dismiss, she asks the court to dismiss the case (usually in its entirety, but sometimes just in part) generally for one of two reasons. The first reason is that the court cannot hear the claim, either because the defendant is not subject to jurisdiction in the court or because the claim belongs in a different kind of court. And the second reason is that the complaint does not contain the necessary allegations to support a claim.

A Million Questions

In American lawsuits, litigants usually have to search all of their email accounts and all of the physical spaces over which they exercise control. That’s a lot! It could include homes, offices, computers, external hard drives, USB hard drives, cloud email accounts, cell phones, storage spaces, and more. And for corporate litigants, it could apply not just to one clearly relevant employee, but to a whole list of possibly relevant employees.

Administrative Hearings

Municipalities, states, and the federal government pass laws that regulate certain conduct. And some of those laws state that an administrative agency is responsible for either investigating or hearing complaints about violations of those laws.

Defending a Deposition

Besides objecting on the grounds of the privilege, many courts have rules that limit the instances in which a lawyer can instruct a witness not to answer a question. The lawyer’s only recourse in those cases is to immediately end the deposition and make a motion in court for a protective order, preventing the questioning attorney from asking the question again in a future deposition.

Motions in Limine

Each side at trial usually only has a finite amount of time. For example, a judge may allocate 20 hours to each side. As a result, a lawyer may decide that it makes sense to allow one side to waste some of its time on irrelevant evidence or to bury its good evidence in a mountain of dull evidence. Similarly, if one side believes it has a great rebuttal to opposing evidence and that rebuttal will improve its case, it may consent to the admission of opposing evidence so that it can dramatically present its rebuttal.

Fraud Claims

Plaintiffs may still hold defendants accountable, even when they cannot prove the defendant knew she was lying or when she cannot identify an express false statement. They can do this through claims for fraudulent omission and through negligent misrepresentation. But proving these claims have specific requirements as well.

Going to Court

During the covid-19 pandemic, many court appearances have taken place over platforms like Zoom, Microsoft Teams, or a conference call by phone. In my practice, this has eliminated the calendar call, so I no longer bill clients for time I spend waiting in a courtroom. Instead, the court schedules a specific time for me to be available for a video chat.

Focusing on the Relevant Issues

To some extent, the job of a litigator is to tell the client’s story. A client approaches an attorney because they have a story to tell that, they believe, should persuade a judge or a jury or an adversary to give them some relief. And instead of telling the story themselves, the client believes the lawyer can articulate the story better.