Mediation is the antidote to the uncertainty of trial and most often leads to the timely, cost-effective resolution of disputes. In mediation, the people with “skin in the game,” the litigants, not jurors, judges, or appellate court justices, decide how and when the conflict will end. On the other hand, litigants who proceed through trial … Continue reading Mediation: The Antidote to the Uncertainty of Trial
Benjamin Franklin’s ” Poor Richard’s Almanack” had it right: “An ounce of prevention is worth a pound of cure.” This was true for farmers in 1739 and it is true for lawyers and their clients in 2011. Not that Ben held farmers and lawyers in equal esteem,as you may notice when reading the following Franklin … Continue reading Indemnity Contracts and the Duty to Defend: You mean I have to pay even if I was not negligent?
Trial advocacy is often dramatized in movies and television. We see persuasive lawyers depicted in emotional closing argument scenes and intense lawyers in those “gotcha” moments of searing cross-examination. But truly great trial lawyers have a skill not seen in the courtroom, let alone on the silver screen: the ability to predict the outcome of … Continue reading Predicting Risk is the Essence of Good Lawyering
In construction defect cases there is often a dispute within the dispute: should the case be prosecuted in a court of law or proceed under the terms and conditions of an arbitration provision? There are rational reasons for selecting arbitration over a court or jury trial. Many believe that arbitrations are more cost effective than … Continue reading The Perfect Recipe for Improving Negotiating Skills and Settling Lawsuits
Among the legal risks that must be analyzed in any litigation is the possibility of having to pay the other side’s attorney fees if one loses at trial. In many states, attorney fees are available to the prevailing party if there is a contract provision for attorney fees or when a statute provides for them. A new … Continue reading Payment Bonds and Attorneys Fees: Leveling the Playing Field
In construction defect cases there is often a dispute within the dispute: should the case be prosecuted in a court of law or proceed under the terms and conditions of an arbitration provision? There are rational reasons for selecting arbitration over a court or jury trial. Many believe that arbitrations are more cost effective than … Continue reading Resolving Construction Defect Cases: Are Arbitration Provisions in CC&R’s Enforceable?
Construction projects are littered with daily conflicts and some long term ones; sometimes they merge. Such is the case where there are oral field directives to proceed with changes that may increase the scope of the work. But what happens when the contract says that all change orders must be in writing? Certainly that is just legal mumbo … Continue reading A New Case On Oral Modifications Of Public Works Contracts
Appellate court opinions provide more than intrinsic precedential value; they are also useful reads in a “best practices” kind of way. Sometimes the lesson derived from them is “what not to do,” as illustrated in two recent cases from the California Court of Appeals. The first case is one of those “I did not expect … Continue reading Recent (Painful) Lessons from the California Court of Appeal
Back in the day, the late, great actor Karl Malden pitched American Express Travelers Cheques in television commercials that depicted vacationers being robbed of their cash, followed by Karl’s earnest exhortation, “American Express Travelers Cheques: don’t leave home without them!” The point was that people could protect their money if they would use travelers checks while … Continue reading California Evidence Code Section 1123: Don’t Leave The Mediation Without It
If you win your lawsuit, you can make the loser pay your attorney’s fees, right? In California (and in most states) the answer to that questions depends on whether there is a statute or a contract provision that provides something like, “The prevailing party is entitled to an award of attorney’s fees.” “Good,” you think … Continue reading Even if You Win at Trial You May Not be the Prevailing Party