Will Newman is a commercial litigation attorney at Fleischman Bonner & Rocco LLP. He represents clients in disputes involving contracts, employment issues, and products liability matters. He also regularly provides strategic advice to companies in advance of disputes, both to avoid the burdens of litigation and to protect their legal claims and defenses if litigation is inevitable. He is also a contributing editor of the American Bar Association publication, Litigation News, and the author of the commercial litigation blog, Unpredictable.
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At times, litigators need to persuade their clients, their adversaries, mediators, and juries. But one major audience they need to persuade is judges. These are the people who decide whether their arguments have legal merit, whether their claims can proceed, often whether their claims will succeed or the claims against their clients will be dismissed, and the ground rules for how the litigation will go.
Since judges are such an important part of commercial litigation, I thought I’d share some thoughts on working with judges.
I frequently tell people that litigation is expensive. As a result, many people only litigate disputes concerning large amounts of money, since smaller amounts are not worth the trouble or cost. But some disputes are important to people, even if the amount at stake is low. People care about being disrespected or scammed. And what may be a small amount of money to one person may be significant go another. Luckily, there is a forum for people to dispute small amounts because, in the alternative, people would take matters into their own hands. That forum is small claims court.
Following my interview with Prof. Ernest Metzger about litigation in Classical Rome, I wanted to go further back in time to learn about litigation in Ancient Athens. Unfortunately, there are no direct flights from New York to any year in the past, let alone ancient times. Plus, even if I arrived there, I wouldn’t understand any Ancient Greek and would panic without cell phone reception. So instead I spoke with Prof. Adriaan Lanni, a professor at Harvard Law School who studies the Ancient Greek legal system to learn about litigation in Ancient Athens.
Once a litigant wins a litigation, a court grants her a judgment that she may need to enforce. But that judgment may only be used to collect assets within the jurisdiction of the court. This presents an issue for a litigant who wants to use the judgment to collect assets that the judgment debtor keeps somewhere else. What good is a New York judgment if the defendant owns very little in New York, but owns a house in California and keeps a bank account in Florida? Courts address this issue by letting litigants obtain local judgments based on judgments in other courts without needing to re-litigate the entire case.
Computers and robots are replacing people at more and more jobs. Robots can build cars, sew clothes, and tend bar. But what about lawyers? Are computers coming to do litigation, too? I don’t know for sure what the future holds, but there are several ways in which computers are doing their work already and some ways in which they may do more.
A theme that appears in some legal advertisements is that the lawyer is tough or belligerent. For example, the blog Above the Law wrote about three different lawyers who each called themselves “The Hammer.” And I assume this theme is meant to address potential clients who may believe that the best kind of lawyer is forceful, combative, and obstinate. Potential clients, for example, like Roger Ailes, who had once said he wanted a “street fighter” as a lawyer instead of “white-shoe marshmallows.”
Lawyers that meet that description exist. But in my experience, however, lawyers who adopt a belligerent persona do not do the best job for their clients. Instead, I believe that this kind of aggressive behavior makes litigation unpleasant, more expensive, and less likely to sway a judge or settle on favorable terms.
I have already posted about litigation in Africa’s most populous country and its second most populous country. But what about its fifth most populous? Well, now I have. In search of knowledge on the subject, I spoke with Graham Girdwood, an attorney at Group 621 in Johannesburg, to learn about what litigation is like in South Africa.
Every month, I post on my blog about recent court decisions in commercial cases to illustrate how litigation works. I did it again this month and the link is below.
But I can’t discuss courts and the law in the United States right now without begging my fellow Americans to support senators who will take concrete steps to address the recent abhorrent decision Supreme Court decision and protect women’s rights.
News outlets frequently report on documents filed in court. But it is common for people to misunderstand what the court filings mean. This is especially true when the filing is not a decision by the judge on the merits of the case. So I thought it would be helpful to talk about some of these filings and what they do and do not mean in litigation.
I write a blog to let people know what it is really like to represent clients in commercial litigation today, and to update people on recent legal decisions. And nothing screams “today” and “recent” more to me than Ancient Rome.
So I recently spoke with Ernest Metzger, a professor at the University of Glasgow, about how Romans in its Classical period litigated their commercial disputes and the influence that system had on dispute resolution today.