Most business cases settle prior to trial. For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions. This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath. Previously these were held in a law firm conference room; often now they occur as a videoconference. No judge or jury is present
I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused. Too many depositions are taken. Too many questions are asked. Too many documents introduced.
There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media. read more
Scarlett Johansson, who has repeatedly played Marvel’s Avenger character “Black Widow,” has sued Disney for breaching the promise in her contract to play in its new film, entitled “Black Widow,” that Disney would give the film a “wide theatrical release.” Johansson was promised generous box office bonuses. Instead, Disney released the film simultaneously in theaters and on its new streaming subscription service, Disney+.
The advent of studio-owned streaming opens a new front in a long history of litigation between talent and studios over how entertainment revenues are shared, particularly where the sharing is impacted by new technology and “vertical integration,” consolidation within major corporations of the means of bringing entertainment to consumers. read more
The legal news wires are “rocking” with headlines in music copyright infringement cases. The Ninth Circuit, sitting en banc, found for Led Zeppelin in the “Stairway to Heaven” litigation and euthanized the “inverse ratio rule.” In a connected world of nearly universal access to copyrighted works, a plaintiff must show real plagiarism, not merely plausible similarities.
Soon thereafter Judge Snyder threw out the jury’s verdict that Katy Perry’s “Dark Horse” copied a bass ostinato from Christian rapper Flame’s “Joyful Noise.”
For copyright lawyers this news creates the sort of excitement that NFL fans experience over a tie in the last two minutes of the Super Bowl. read more
On May 15,
2019 the Ninth Circuit Court of Appeals affirmed a Bankruptcy Appellate Panel
decision affirming a Judgment obtained by Spillane Law Group for California
Farms Investors, LLC for securities fraud.
Jay Spillane tried the underlying action, California Farms Investors, LLC v. James Roberts, in the United States Bankruptcy Court for the Central District of California. The defendant promoted an organic lettuce venture through false and misleading statements and without disclosing that the venture was not growing its own lettuce. California Farms Investors invested $825,000 in the form of secured notes. The venture purchased lettuce from vendors with rights under the Perishable Agricultural Commodities Act (“PACA”), including the right to hold insiders of entities purchasing agricultural product personally liable for the purchases. read more
Trying cases is a lost art in the business world. Supposedly 95% of business cases settle prior
to trial. That may be so, because I
consider 95% of my business law colleagues to be litigators, not trial lawyers:
those who exclusively use pleadings, discovery and motions to posture a case
for settlement and who have little to no trial experience.
If a reasonable settlement can be achieved, I advise my
clients to take it. Trying cases is
expensive and uncertain. But if you’re
not eager and able to try the case if necessary, how are you going to get the
best settlements? read more
statements,” or short opening statements to potential jurors before jury
selection (“voir dire”), are a little
understood but critical aspect of trial practice.
Parties are often
required to submit joint materials before the pretrial conference including a short
statement of the case. See LASC LR 3.25(f)(1). As a stipulated document, though, it will be
sanitized to the point of revealing little about the case other than
identification of the parties and claims.
On the day of jury selection, a “panel” or “venire” (“to come,” from the
jury summons) of thirty to forty potential jurors will enter the courtroom and
sit in the gallery. read more
attorneys have at most four opportunities to speak to a jury: 1) a brief
opening statement prior to jury selection (state only and on request); 2) jury
selection, or “voir dire” (“to see one
say”); 3) opening statement; and 4) closing argument. The first two are before the jury is
selected, and only in the second, jury selection, is one permitted to ask
potential jurors questions and hear their answers. This golden opportunity should not be
squandered through ill preparation.
civil practice the judge retains tight control over voir dire and need not allow attorneys to ask questions. read more
Jay Spillane, representing Intervenor Plaintiff Tommie Howard, together with Robert Levinson and Helen Kim Colindres, representing Defendant Meighan Howard, won a defense verdict on an 11-1 vote after a five-week elder abuse jury trial.
Dr. John Howard, represented by Keller Anderle, sued Meighan Howard, his daughter, claiming that a 2012 amended estate plan, which disinherited Meighan Howard’s brother and made valuable irrevocable gifts to Meighan, was procured through elder abuse, breach of fiduciary duty and constructive fraud. Dr. Howard pointed to evidence that Meighan Howard primarily communicated with estate counsel, exerted a high degree of management over her parents’ affairs and was the beneficiary of highly valuable gifts. read more
Spillane Law Group represented Claimants Kenneth Kilroy, Ross Kilroy and M&A Securities Group, Inc. in an arbitration against Respondent Adrienne Smith Worley, JAMS No. 1210033774, concerning an unpaid $3 million investment banking fee from the purchase and sale of Ms. Smith Worley’s shares in Young’s Market. On August 28, 2018 the Arbitrator rendered a Final Award in favor of Spillane’s clients for the full sum requested.
Ms. Smith Worley was the heir, through her mother Janet Smith, of significant shares in Young’s Market, a venerable closely held company currently focused on distribution of spirits. Upon her mother’s passing there was an appraisal of Ms. read more
I have tried numerous business cases with a fine record of success. Trials are, however, an uncertain process, and if one tries enough cases, the most skilled trial lawyer will eventually lose a jury verdict.
When a trial lawyer hears an adverse verdict in court, should s/he walk away, shoulders slumped, counting for vindication on the power of an appellate brief due many months hence? No. A trial lawyer’s efforts to reverse an adverse jury verdict begins while the jury is still standing in the jury box.
The first question one must ask, seconds after hearing an adverse verdict, is whether the verdict is ambiguous or contradictory. read more