A blog about the work lawyers do to win commercial disputes by Will Newman
Successful plaintiffs often present testimony and evidence about the distress they suffered. This may include evidence that the plaintiff sought professional help for the emotional distress or the testimony of witnesses who observed a demonstrable change in behavior. Some present expert witnesses that can describe the suffering that a plaintiff may feel in a specific situation.
Read MoreContractors who perform different projects often have a master services agreement and then specific statements of work for each specific project. This format allows parties to negotiate overall terms in one agreement and then focus on specific details when discussing specific work without the need to redo basic terms or fret about consistency of their obligations. But it is not always clear when a master services agreement applies to a statement of work.
Read MoreAccording to an appeals court, the elements of a defamation claim in New York are: “a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and, it must either cause special harm or constitute defamation per se.”
Read MoreA lot of law firms represent clients because their clients bought an insurance policy and the insurer retains the lawyer to represent the policyholders. This makes the relationship between the law firm and the insurance company very valuable for the law firm, and as a result, the law firm may provide the insurance company favorable rates. The insurance company may have a “panel” of lawyers it refers matters to, and those lawyers are called “panel counsel.”
Read MoreThere are trials, but they do not look like American trials. In fact, canonical trials much more resemble continental European trials, especially in that canonical trials are largely document-based with little, often no, direct confrontation between sides and witnesses.
Read MoreMost cases settle, but lawyers generally read about cases that proceeded far enough through litigation that a judge wrote a decision. And the decisions that form binding legal precedent usually reflect cases that were not only litigated, but also appealed. Still, there is a lot to learn from the stories of cases that settle.
Read MoreA jury needs to be instructed on many different subjects, not just the elements of the claims at issue. For example, the law dictates what evidence is, what cannot be considered as evidence, how the jury should deliberate, what burden a plaintiff needs to carry to win, and how to calculate the amount of damages to award. In order to enable the jury to apply the law to these subjects, a judge must instruct them.
Read MoreThe first factor I’d recommend is reading the lawyer’s work. Is it easy to read? Does it sound logical? Does the lawyer even have work product for you to read? These are important questions, since a big part of a litigator’s job is to write clearly and intelligently. Even if you are a lay person, a good lawyer’s writing should be understandable. A bad lawyer’s writing may either be unintelligible or, as is often the case, bizarre, sloppy, or ranting.
Read MoreIn general, court hearings must be open to the public, which means that they must be accessible to the public and the media. However, in specific cases (to protect public health, morals, safety or other interests of the parties, persons close to the parties or witnesses), the public and the media may be excluded for all or part of the hearing.
Read MoreParties often negotiate settlement agreements over email. And while a settlement agreement may become official once both sides sign the formal contract the lawyers prepare, it is possible for the emails themselves to become an operative agreement subject to litigation.
Read MoreI find that people take lawyers more seriously when they stick to the facts. If a defendant failed to pay $1 million, just say that. I understand how serious that is and I can work with you to address the underlying issues. But by comparing the defendant to a monster or a criminal, the defendant is more likely to want to clear their name and thus not settle. And the defendant may view the plaintiff as unserious and thus view their claims with skepticism.
Read MoreOnce someone is a fiduciary and they breach a duty, that does not automatically mean that the plaintiff has a winning case. Fiduciaries owe duties to specific people and, if the plaintiff is not one of the people owed the duty, she may not be able to sue for the breach.
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