25
Jul

Washington law makes a unilateral attorney-fee provision in a contract (i.e., awarding fees to one party) bilateral, such that the “prevailing party” in an action on the contract can recover fees.[1] For this reason, it’s often assumed that there’s no practical difference between bilateral and unilateral fee provisions. But that’s not always the case. Under the statute, fees are awarded to the “prevailing party” only in the event of a “final judgment.” In contrast, ...

06
May

In litigation, case schedules contain not just dates but deadlines that must be met—or they used to.  Among other things, the case schedule typically sets pre-trial discovery deadlines and requires parties to identify trial witnesses by a set date.  Witnesses not timely disclosed can be excluded from trial absent good cause shown by the disclosing party.[1]  The effect of such rules is to promote early identification of potential witnesses, ensure that discovery is completed on time, and avoid ...

17
Mar

Most corporate parties and all litigators know to avoid “spoliation,” but what it is required to do so is not always clear.  Some would be surprised to know that, even if they are following best practices by issuing litigation-hold instructions and following through on them, the deliberate acts of a rogue employee acting contrary to those instructions can result in sanctions against the employer in litigation. “Spoliation” is a legal term that all attorneys (especially litigators) know and fear.  In its ...

03
Mar

Federal Rule of Evidence 502 was enacted in 2008 in an effort to provide uniformity with regard to the treatment of privilege waivers resulting from the inadvertent disclosure of documents.  Subdivision (b) sets forth the default requirements governing such disclosures.  It calls for an inquiry into (1) whether the disclosure was inadvertent, (2) whether the holder of the privilege took reasonable steps to prevent the disclosure, and (3) whether the holder of the privilege took reasonable steps to rectify the error. Because ...

03
Feb

The strategic, financial, and practical impact of being forced to litigate in an inconvenient forum make it crucial that parties are aware of and consider the implications of forum selection clauses in the contracts they sign.[1]  This can be easier said than done, however, particularly where the contact is multi-layered, with different forum-selection clauses being agreed to at different times, or where forum-selection clauses are buried in click-through agreements, which many parties never discuss or even read.  A ...

10
Dec

Many employers rely on non-competition and non-solicitation Agreements with employees (collectively, “noncompetes”) to protect confidential or proprietary information and business relationships when the employee leaves.  Properly used, noncompetes can serve a valuable purpose—but only if they are enforceable.  In litigation over noncompetes, the first and potentially decisive battle concerns this legal issue. The enforceability of noncompetes is decided by state law, and while nearly all states agree that noncompetes are a disfavored restraint on trade, just how disfavored can vary greatly.  ...

17
Jun

For litigators, persuasion is the name of the game.  We’re constantly striving to persuade judges, juries, other lawyers, opponents, and sometimes clients of the correctness of our factual and legal analysis.  In doing so we often convince ourselves – not just that our arguments are substantively correct, but also that we’re making them in the best possible way. This can be problematic.  A large body of social science research confirms something obvious but easily overlooked as we go about trying cases ...