A blog about the work lawyers do to win commercial disputes by Will Newman
Filtered by Category: Commentary
Litigants are generally given only one chance to litigate their claims. Once a court issues a final judgment on a matter, restrictions limit the litigant’s ability to argue the case again in another court. One such restriction is in the U.S. Constitution, which requires each state to give “full faith and credit” to the judgments other state’s courts. This restriction, however, has limits.
Read MoreLitigation News published an article I recently wrote about the process of fighting an arbitration award in court. Although courts generally do not second guess the decisions of arbitrators or give litigants a second chance to present their case, there are limited circumstances when a court will refuse to issue a litigation judgment based on an arbitration.
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 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 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.
Read MoreMany states have consumer protection statutes that make it easier to sue companies that use deception in selling consumer goods. While the language of these statutes may be broad, courts sometimes interpret them narrowly in litigation.
Read MoreA contract provision may seem clear to someone, but a court may not always see it the same way. Frequently, litigation arises because another party reads the contract differently. And a court may interpret a contract provision differently than its plain language because of what that language may mean in light of the other provisions of the agreement.
Read MoreNew York recently adopted a law called the Freelance Isn’t Free Act (“FIFA”). It enables freelancers to sue customers that do not pay and recover double what they were owed, plus attorney’s fees. The purpose of the law is to discourage customers from not paying and to enable freelancers to afford litigation. But the law does not apply in every case; just when the plaintiff is a freelancer that works by his or herself.
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 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 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 MoreAlthough it is rare for a negligence plaintiff to win a case on summary judgment in litigation, it happens sometimes. It is rare because a defendant will often present some evidence that he acted reasonably. But when a defendant fails to present such an explanation, he may lose before trial.
Read More
