A blog about the work lawyers do to win commercial disputes by Will Newman
Through 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 MoreCounsel often make initial disclosures at the start of the case when they are the least familiar with the facts. After spending months studying the documents and interviewing witnesses, they commonly learn additional information about knowledgable witnesses and the location of information. Accordingly, they often update the disclosures by producing a supplement.
Read MoreBecause both sides need to agree on the stipulation, they are often drafted in a neutral, non-argumentative way. So instead of stating “The defendant wrongfully trespassed on the innocent plaintiff’s property,” as a complaint may say, the stipulation may instead say, “The defendant walked into the living room at 35 Main Street.”
Read MoreIn Nigeria, parties are required to file along with their pleadings, a list of witnesses they intend to call, together with their statements on oath as well as copies of all documents they intend to rely on at the trial. This concept is known locally as “frontloading.”
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 MoreIn some cases, the lawyer herself may be involved in the facts of the case and so have the need to testify as a fact witness. In those cases, she may be prohibited from serving as trial counsel through the “advocate witness rule.” This rule arises from the fear that a juror may believe a lawyer is more credible than a lay witness. This rule, however, ordinarily does not preclude the lawyer from representing her client in matters before the judge because courts are less concerned that judges will put undue credit on the testimony of a lawyer.
Read MoreA professional expert may seem less credible to a judge or jury; after all, their career depends upon providing favorable testimony to whoever pays them. But a professional expert may also be more knowledgeable about how to testify at depositions or at trial, or better able to prepare an expert report. And a professional expert may also be able to provide a list of previous cases in which other judges agreed that her testimony was persuasive, which may convince the next judge that she is reliable.
Read MoreThe Danish courts have been overwhelmed with cases the last few years. There is currently a focus on expediting cases concerning violence, weapons and sexual abuse. Thus, the civil cases are scheduled for hearing before a judge 15-24 months after the initial pleading/subpoena.
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 MoreSome people wait a long time before approaching a lawyer with a potential case. When something terrible happens, a long, expensive, exhausting process may not be a person’t priority. But when people do come to a lawyer, no matter how valid their claim may be, it may not be successful if they waited too long. This is because statutes of limitation cause claims to expire.
Read MoreMany court rules require a party who moves for summary judgment to submit a statement of undisputed facts. An example is Local Rule 56.1 in the Northern District of Illinois. This statement is usually separate from the memorandum of law and contains numbered paragraphs that state each fact that the movant states is not in dispute and therefore does not require a trial. After each statement, the movant should cite evidence to support the claim. And when drafting this statement, the movant should make sure that there is not evidence that disputes the claim.
Read MoreThe law of England & Wales only applies in England & Wales. There is no UK legal system as such. The Scottish legal system is quite different to that of England & Wales and of Northern Ireland, in that it is not based on common law principles, rather it is based on Roman law and is similar to the continental European systems. It has adopted certain aspects of the English system and is now a form of “hybrid” civil/common law system. It also has a split profession.
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