The first sentence in an appellate opinion can strike fear in the heart of any advocate. I should know. Nearly twenty years ago the California Court of Appeal began its opinion on a losing appeal of mine with this sentence: “This case presents a real doozy of a puzzle in mechanic’s lien law.” In a more recent case involving … Continue reading Draft Settlement Agreements with Care or You May Give Up More than You Bargained For
Ignore This Mediation Clause and Say Good-Bye to Your Attorney Fee Award
A recent opinion of the California Court of Appeal (click here to read) reversed a trial court’s decision to award attorney fees to the prevailing defendant homeowners in a real estate non-disclosure case. The reason: the standard California purchase agreement that included an attorney fee provision also required that the parties participate in mediation or forfeit the … Continue reading Ignore This Mediation Clause and Say Good-Bye to Your Attorney Fee Award
Three Yards and a Cloud of Dust: More X’s and O’s from the Competitive World of Litigation
I like to read and report on appellate court cases that illustrate the benefits of self-determination in the mediation process as opposed to court-imposed adjudication in the civil trial process. It may involve a little “Monday morning quarterbacking,” but I don’t consider it to be second quessing anybody but more like watching game film to … Continue reading Three Yards and a Cloud of Dust: More X’s and O’s from the Competitive World of Litigation
Don’t Ignore the Impact of Judicial Discretion on the Outcome and Cost of Trial
Discretion is the better part of valor, a phrase that can be traced to a 15th Century English writer named Caxton, became part of the English vernacular after the publication of William Shakespeare’s ‘King Henry the Fourth’ in the 16th Century. The phrase came into the American lexicon in the 18th Century courtesy of Benjamin Franklin’s ‘Poor Richard’s Almanac’. But what … Continue reading Don’t Ignore the Impact of Judicial Discretion on the Outcome and Cost of Trial
Calculating Settlement Value Like a Super Bowl Champion
The New York Giants are playing the New England Patriots in the Super Bowl, again. What would happen if the Patriots prepared for the game by focusing exclusively on their strengths and the Giants’ weaknesses while ignoring their own weaknesses and the Giants’ strengths? That would be ridiculous, right? Bill Belichick, Tom Brady? Forget about … Continue reading Calculating Settlement Value Like a Super Bowl Champion
Even if You Win at Trial You May Not be the Prevailing Party
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