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Last Rev. 10/29/16 10:50am

Useful Legal Doctrines

  1. Default Judgment. If you are dealing with a default judgment, here are some quick rules for you to follow: (1) act immediately; any further delay could cause you to lose any opportunity you have at this moment to open up the default judgment and defend the action; (2) get legal help right away - no delay - because there are tricks to opening up a default after the initial barrier that you failed to act promptly; (3) you must file a motion in the court where the default judgment was rendered for an order vacating or opening up the default judgment and permitting you to offer a defense; this motion requires 3 things: (i) that you act promptly after learning about the default; (ii) that you set forth an acceptable excuse for the default - and you need legal advice on what constitutes "excusable neglect" or whatever other standard may apply; and, most importantly, (iii) that you make an evidentiary showing through an affidavit of a witness who could testify at trial (and not an attorney's affidavit) that you have a meritorious defense, spelling out what that defense is so the court knows what you are going to allege as your defense if your motion is granted. All of these points are important and you will probably lose your motion if you fail on any of the above points.

  2. Spoliation of Evidence. An important legal doctrine for you to learn and remember right away is that you could lose the case that brings you to my office if you destroy documents that relate to the lawsuit you have in mind. This is the consequences of falling within the concept of "spoliation of evidence". The person who knowingly destroys evidence that would have been of possible use to the opposing side of an actual or threatened lawsuit runs a grave risk that the other side (a) will find out about the missing and destroyed files, and (b) will receive a motion requesting that you or your company be punished for such document destruction by an order precluding you from offering evidence to prove your side of any of the issues that the destroyed documents related to. The judge does have the authority to provide a less drastic remedy, but the judge could also rule that you are in default and award a final judgment to the other side, in some instances of truly outrageous document destruction. So, please be careful and make sure that from now on you take charge of document destruction and eliminate the automatic document destruction that keeps you in compliance with the tax laws for example. There is no exemption under the spoliation rule for destruction of documents under other laws or rules. You have to stop the planned destruction and put this matter on your calendar for repeated review and investigation to make sure that you don't lose an important case because of accidental or wilful document destruction.

  3. Summary Judgment. Summary judgment can be viewed as the antithesis to the doctrine that a litigant has a Constitutional right to a jury trial. In fact, a litigant does not even have a right to a trial of any kind, if the judge on the case decides that one party (generally, the defendant) is entitled to a "summary judgment" disposing of all issues in the case. A "partial summary judgment" is one in which one or more, but not all, issues in the case are decided by the judge without trial, the judge holding that there are no issues to be tried (because the party opposing the summary judgment motion failed to offer any or any sufficient evidence to overcome the facts proven by the party seeking summary judgment). The summary judgment motion generally comes at the end of discovery, when all the facts are known. Defendants will put off making summary judgment until discovery is over to eliminate the plaintiff's argument (and cross motion) that the plaintiff has not had the opportunity to obtain affidavits to oppose the summary judgment motion and seeks discovery or additional discovery (to be described) in order to be able to successfullly oppose the motion. Summary judgment motions are granted in many cases where judges could disagree. There is a doctrine that especially in antitrust conspiracy cases judges should be reluctant to grant summary judgment; on the other hand, there is also the doctrine that summary judgment should be granted when there is no meritorious opposing case. Judges will disagree as to what constitutes a meritorious case in opposition. Because of this ever-present possibility that a summary judgment motion, if made, could be granted, for whatever reason, a defendant in major commercial litigation will generally want to make such a motion and hope that for whatever reason the judge will grant the motion. Nothing ventured, nothing gained, except the huge expense of putting the motion together.

  4. Motion to Dismiss. A motion to dismiss a complaint, or one or more parts of a complaint, is made at the outset of a case, but not in all types of cases. Generally, the motion is not made in negligence lawsuits, but is almost always made in antitrust and other types of major commercial litigation. The various doctrines of law applicable to the case are fought out at this stage, and the pleadings that are essential to make in the complaint and prove down the road. It is not uncommon in major commercial litigation for a plaintiff to have an amended complaint (which in federal court can be filed as of right provided there has been no responsive pleading filed by any of the defendants, in which case the first amendment would have to be with the consent of the parties or the judge. Also, it is often the case that a second amended and even third amended complaint will be filed, to eliminate parts of the pleading that the judge has found wanting and add new language to make the pleading confirm to the announced requirements of the judge. After the pleadings have been finalized (by an answer to the nth amended complaint), the case will then start the discovery phase, which is the most costly part of the litigation, and typically precedes any motions for summary judgment.

    Unjust Enrichment. This is a useful doctrine to remember. It is a claim or "cause of action" that can be alleged, when appropriate. The classic instance of unjust enrichment (learned in law school by most law students) is the owner of a boat during a storm that ties his/her boat to a dock to save the boat, but which causes substantial injury to the dock. An analysis of this problem is that the owner of the boat is unjustly enriched at the expense of the owner of the dock and should pay the owner for such damages (possibly not to exceed the value of the saved vessel). When analyzing your own matter, you may come across inequities that are an adequate basis for claiming unjust enrichment. Look for someone profiting at your expense in some unjust way.

    Venue. You may hear a lot about "venue" at the beginning of an action, even before you learn about any motion to dismiss for insufficient pleadings (i.e., an insufficiently pleaded complaint). Venue is the plaintiff's choice of court, such as the federal court in the Southern District of New York, or the Supreme Court in Albany, New York. Venue is inappropriate, arguably or actually, if none of the plaintiffs and none of the defendants resides or has a place of business in the geographic area serviced by the court in question. Or, perhaps, if 99 plaintiffs come from Akron, Ohio and 1 plaintiff comes from Huntingon, Long Island, New York, and the action is brought in the federal court in Long Island, New York. Although technically the action could be brought where any one defendant has its principal place of business, the court might find improper venue, or a basis for change of venue, by reason of these facts. Venue is an important consideration after the case is brought because a change of venue would upset the obvious plans of the plaintiff(s), but would also inconvenience and cause a possible loss of business and add higher costs to the representation for the defendant if in order to inconvenience the plaintiffs or plaintiffs' lawyer the defendant also inconveniences itself. There is also the problem of making a venue motion if the single judge appointed to the case at the filing is wholly satisfactory to the defendants and the defendants' lawyers, but would obviously be changed if the venue motion were made and granted.