Legal Articles, Lawsuit & Dispute

In a perfect world, groups of potential business partners would sit down before they started their new ventures to hash out the details of their relationship. They would work in close consultation with one or more attorneys to produce detailed subscription, operating and loan agreements documenting their arrangements and clearly delineating responsibilities. In the real world, the birth of closely-held businesses is sometimes far messier. There are a variety of ways to prove or disprove that a person is an equity holder in the absence of membership certificates, stock ledgers or written operating agreements. A perennial favorite, however, is using an entity’s tax returns, specifically, the Schedule K-1.

Some attorneys treat defending a deposition as an opportunity to be a jerk. Speaking objections, witness coaching and bogus instructions not to answer are all arrows in the quiver of the “Rambo” litigator. The Federal Rules of Civil Procedure, their state equivalents and the rules of professional conduct generally prohibit this conduct. The Federal Rules, for example, expressly authorize district courts to impose sanctions for this type of behavior. Indeed, since Rule 30 was amended in 1993 to add an express prohibition on this conduct, federal courts throughout the country have demonstrated a willingness to crack down on these tactics.

Little mistakes; big consequences. The possibility of catastrophic consequences from the inadvertent disclosure of confidential or privileged documents makes litigators cringe. The proliferation of large e-discovery productions that make manual review unfeasible increases the risks of a misstep.

Confidentiality agreements have become a ubiquitous feature of commercial litigation. This is due, in part, to the expansion of e-discovery and the exchange of ever-increasing numbers of documents. Pre-production review of the thousands or tens of thousands of emails involved in the average commercial case create significant challenges, both in terms of cost to the client and the tight discovery deadlines frequently imposed by courts. A confidentiality agreement, embodied in a stipulated order, can be a convenient way to expedite initial production of documents. It can reduce concerns about the risks of inadvertent disclosure of sensitive information potentially allowing pre-production review to proceed more quickly. The frequent use of these agreements and their benefits can lead to complacency among counsel. Many agreements are lightly negotiated and quickly implemented early in the litigation without full consideration of their potential impact on the attorney-client relationship and the discovery process. They are worth a thoughtful approach.

A motion to bifurcate is often the first line of defense in a litigated first-party insurance claim. The Defendant carrier contends bifurcation streamlines discovery and disposes of “extra-contractual” issues without having to use the court’s time and resources. In truth, however, by moving to bifurcate, the first-party insurance is trying to accomplish two major goals: 1) prevent discovery of harmful and/or “proprietary” business and/or claims file information that the insurance company knows will support an insured’s bad faith and extra-contractual claims; and 2) delay addressing the extra contractual claims by creating another hurdle for the insured to clear, i.e. a discovery and trial on the damages before allowing a discovery or trial on the merits of the extra-contractual first-party claims. The individual facts and circumstances of the case that warrant non-bifurcation should be emphasized with the court. Plaintiff should emphasize facts which could permit recovery on extracontractual claims regardless of whether or Plaintiff can prevail on the contractual claim. Plaintiff should emphasize arguments that the extra-contractual issues will have to be resolved regardless of the number of trials or the order of discovery, so in the interest of judicial efficiency, bifurcation would not be appropriate.

This article provides basic information about lis pendens, and when such notices may be properly recorded.

This article provides examples of writs (written judicial orders) issued by California courts.

This article provides a summary of various writs issued by California law to assist with recovery of tangible property.

This article provides an overview of what happens when a defendant in a civil action fails to respond to the complaint served on him/her.

SLAPP is an acronym for "strategic lawsuit against public participation." See, Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 732, fn. 1 (2003). Basically, a SLAPP is a lawsuit that has the effect to chill exercise of protected free speech.