In almost any lawsuit, after the initial pleadings are filed, and before the trial, the parties engage in an extended period known as “discovery,” where each side demands and receives information about the other side and its case. In business cases parties typically ask for all of the contracts, communications and financial information that pertain to the issues in dispute. Businesses are generally quite reluctant to share internal business information with any third party, especially a litigation opponent. However, the law favors broad pretrial disclosure of information that has any potential relevance, and thus the volume of information exchanged in the discovery process could be great. read more
This article, like most others covering a topic as dull as pre-judgment interest, doesn’t make for the most exciting reading. That excitement usually occurs after a business trial, during the conversation between a client and his lawyer who failed to properly consider how to handle a potential award of pre-judgment interest – the interest that accrues on an alleged obligation from a time prior to trial to the date of entry of judgment.
In a business case, it is not unusual for the disputed events to occur at least a year, if not several years, before trial. Pre-judgment interest may therefore constitute a significant portion of the award sought at trial. read more
“What Business Lawyers Need to Know About Arbitration” was the topic of a December 16, 2014, lunch seminar Jay Spillane delivered to the San Fernando Valley LLP ProVisors affinity group. In the presentation, Jay suggested business lawyers take another look at the “old-school” arbitration clause lawyers have included in contracts for years: “Any disputes arising under or related to this agreement will be resolved by binding arbitration before the American Arbitration Association.” Instead, Jay urged, business lawyers should consider a host of other matters that have been litigated since that now outdated language first came into use. Those issues include the following:
• Scope of matters submitted to arbitration
• Arbitral society to adjudicate claims
• Forum and choice of law
• Single neutral or panel
• Discovery rights
• Timing and conduct of hearing
• Available remedies
• Basis for decision
• Appellate rights
For more information about best practices for business arbitration clauses, see below: read more
I recently read that the greatest obstacle to clear persuasive writing is for the author to forget what s/he knows, and write for the eyes of the reader, who likely has no prior knowledge about the subject.
A similar process must be undertaken when evaluating with a client how a jury is likely to see the conduct of the parties at trial.
I often have clients ask me whether, at trial, the jury or judge will see the “truth” as they know it. The clients have lived the underlying controversy. They have packed into their memories many more conversations, thoughts and writings than could ever be admitted into evidence at trial. read more