A blog about the work lawyers do to win commercial disputes by Will Newman
Many sanctions motions arise in the context of discovery. This is because the court system generally relies on the parties to trust each other in the conduct of discovery. There is no judge present for depositions and the parties usually supervise their own document gathering and production. Because of this freedom from direct oversight, there is a lot of opportunity for abuse. Accordingly, parties frequently allege other people violate the rules.
Read MoreLower-level courts often consult with the higher-level courts before trial to be assured that their judgments will not be appealed, which works quite well for simple disputes. But when it comes to complex disputes between large corporations, the lower-level courts cannot really issue an unappealable judgment.
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 MoreBeyond collaborating on documents, online storage is important to make sure important documents can be easily found in one place and are not vulnerable to destruction if a computer or disk is lost or destroyed. And I understand that online storage is very inexpensive right now.
Read MoreEvery negotiation is different and some employers may offer very different terms than others. Some big companies have a lot of money and are generous to outgoing employees. Some employers are less generous and offer very little. There are usually no requirements for the amount of a severance.
Read MoreCourts are often reluctant to enforce non-competition agreements. They recognize that workers need to be allowed to make a living and often do not have the same bargaining power as employers when entering into employment agreements. And so they will not just enforce any non-competition agreement they see. Instead, they only enforce ones with reasonable limits.
Read MoreA strength of the Kenyan courts is the use of mediation. In an effort to maintain relations, the court often sends parties to Court Annexed Mediation, since it’s a faster route to resolve disputes. Another strength is that the parties are given a limited timeline to exchange documents, which prevents parties from dragging the case along.
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 MoreThe implied covenant of good faith and fair dealing is a promise that state law declares is inherent in every contract unless the contract expressly disclaims it. The Uniform Commercial Code, for example, codifies it at UCC 1-304. It basically requires people who enter into contracts to act consistently with the object of the agreement. So, for example, if a sponsor of an apartment building agrees to sell apartments, that agreement contains an implied promise that the sponsor will not wait ten years to do so, making the finances of the building unsustainable.
Read MoreSome documents contain both privileged and non-privileged information. For those documents, an attorney redacts out the privileged portion, and produces a redacted version of the document that reveals the non-privileged portion. The attorney discloses details about the privileged portion on the privilege log. Redactions are a big task in document review and document production.
Read MoreLower-level courts often consult with the higher-level courts before trial to be assured that their judgments will not be appealed, which works quite well for simple disputes. But when it comes to complex disputes between large corporations, the lower-level courts cannot really issue an unappealable judgment.
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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