A blog about the work lawyers do to win commercial disputes by Will Newman
There were no rules of evidence. Instead, each litigant at trial gave a speech and it was somewhat freeform, a little like Judge Judy. These speeches included matters that may not be technically relevant to the case, such as character attacks, their adversary’s past crimes, or their own altruistic work.
Read MoreIn negligence lawsuits, a plaintiff may prevail if she establishes that the defendant failed to act in a reasonable way. But litigants often debate what “reasonable” means. And in lawsuits arising from emergency situations, like car accidents, courts may be more permissive with that standard.
Read MoreLitigants often try to use the “procured by fraud” exception to try to re-litigate the merits of a case. They claim that the initial court was deceived by false evidence or testimony and the new court should therefore not domesticate the judgment. But while these arguments may complicate the proceedings, they rarely succeed.
Read MoreIn my experience, technology assisted review does not process the actual document requests that lawyers carefully draft and even litigate. It only processes how a lawyer coded a subset of documents. Therefore, the system may miss important categories of documents or nuances in the distinction between responsive and non-responsive documents.
Read MoreBluster often fails to work with opposing counsel. Most cases end in settlement. And so a lawyer has to get the other side to agree to a deal. But bullying opposing counsel will rarely make opposing counsel feel like the deal they are being pushed is a good one. If anything, the fact that a lawyer needs to be aggressive to push a deal likely communicates to opposing counsel that the deal is bad and should be rejected.
Read MoreSouth African courts cite UK contract law and UK’s rules for evidence. They do this because UK law offers a large body of precedent that courts can follow. They also do this because a lot of the laws and rules in South Africa come from the UK system, since those laws stayed entrenched in the country when it became independent from the UK.
Read MoreIn litigation, plaintiffs often seek compensation from any party that has the money to pay them. But they do not always articulate a sufficient reason why the defendant with money is the one responsible for their injuries and therefore needs to pay.
Read MoreStrategically, 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.
Read MoreThe true “expenses” of Roman litigation were in time and reputation. There were no filing fees and such. Advocates in Rome did not typically charge fees: advocacy was provided as part of a system of patronage, friendship, and professional ambition.
Read MoreTo 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.
Read MoreA party that wants to avoid litigation often seeks a release from someone they foresee suing them. And, generally, the release serves as a complete defense to a lawsuit. But that may not be the case if the release was procured through fraud or duress.
Read MoreThe 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.
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