Litigation Strategy Category Archives

Division III Warns Potential Defendants: Denying a Clearly Valid Claim Could Mean You Owe Attorney’s Fees if You Get Sued

Since its adoption by the United States Supreme Court in 1796, the “American Rule” has been a bedrock principle of American law.1 The basis for the rule is the idea that it promotes access to the courts: potential litigants may be discouraged from pursuing their claims if losing would mean they had to pay the other side’s attorney’s fees. ...

Since its adoption by the United States Supreme Court in 1796, the “American Rule” has been a bedrock principle of American law.1 The basis for the rule is the idea ...

When is a Pandemic a Force Majeure? Part One of Two

In a prior post, this blog explored a range of defenses to contract claims brought in the wake of nonperformance caused by the ongoing novel coronavirus (COVID-19) pandemic.  This post examines one such defense in detail—the force majeure defense—and how the unique circumstances of the pandemic may impact attempts to assert or defeat such a defense. So-called “force majeure” ...

In a prior post, this blog explored a range of defenses to contract claims brought in the wake of nonperformance caused by the ongoing novel coronavirus (COVID-19) pandemic.  This post ...

A Force Majeure Clause is not the Only Defense when COVID-19 Interferes with Performance

The impact of the novel coronavirus disease 2019 (COVID-19) has been felt across all industries.  Government-ordered shutdowns of non-essential work closed many businesses.  Those that continue (and perhaps even grow) nonetheless suffer from COVID-19 related disruptions.  As a result, many companies and individuals are struggling or unable to fulfill their contractual obligations. Lawyers have written extensively about the force ...

The impact of the novel coronavirus disease 2019 (COVID-19) has been felt across all industries.  Government-ordered shutdowns of non-essential work closed many businesses.  Those that continue (and perhaps even grow) ...

The Western District of Washington’s Revised ESI Model Order: One Size Does not Fit All

The U.S. District Court for the Western District of Washington has revised its Local Civil Rules effective January 1, 2020.  The changes to the rules themselves are modest; perhaps more important to the Western District bar are the changes to the District’s Model Agreement Regarding Discovery of Electronically Stored Information and Proposed Order (the “Model Order”).  In many federal ...

The U.S. District Court for the Western District of Washington has revised its Local Civil Rules effective January 1, 2020.  The changes to the rules themselves are modest; perhaps more ...

Liquidated Damages Clauses – Are they worth it?

Ordinarily, in a dispute over the breach or performance of a contract where the aggrieved party is seeking a monetary award as compensation, the measure of those damages is the party’s “actual damages.”  Actual damages are just that—the measure of the aggrieved party’s actual loss, measured as the difference between the current circumstances and the circumstances that would have ...

Ordinarily, in a dispute over the breach or performance of a contract where the aggrieved party is seeking a monetary award as compensation, the measure of those damages is the ...

Tangible Ways Governments Can Minimize Liability When Responding to Natural Disasters

Part Two (read Part One here) (This is the second of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities.  Mr. Bruce is the co-founding partner of Savitt Bruce & Willey LLP and served as a Senior Assistant City Attorney for the City of Seattle.) As discussed in the prior ...

Part Two (read Part One here) (This is the second of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities.  Mr. ...

When Are Oral Contracts Enforceable in Washington?

A handshake and a promise may be an amicable and honorable way to make an agreement, but is it legally binding? In Washington, the answer is:  sometimes.  Whether an oral contract is enforceable in Washington depends upon the circumstances surrounding the terms of the agreement—most notably, whether the agreement falls under the provisions of the so-called “Statute of Frauds,” ...

A handshake and a promise may be an amicable and honorable way to make an agreement, but is it legally binding? In Washington, the answer is:  sometimes.  Whether an oral ...

Municipal Liability for Natural Disaster is Limited

Part One (This is the first of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities.  Mr. Bruce is the co-founding partner of Savitt Bruce & Willey LLP and served as a Senior Assistant City Attorney for the City of Seattle.) Landslides, floods, wildfires, earthquakes, volcanoes, hurricanes, tornadoes, tsunamis.  Natural ...

Part One (This is the first of two articles based on David Bruce’s presentation to the 2018 Annual Meeting of the League of California Cities.  Mr. Bruce is the co-founding ...

Think Before you Click: Good Email Habits to Help Keep Attorney-Client Communications Privileged

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. First, the purpose of the communication must be to seek or obtain legal advice.  Thus, for example, an email is not privileged merely because counsel is copied on an ...

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. ...

Responding the Right Way to a Lawsuit against Your Small Business

You just received a summons and complaint filed against your company by an employee, vendor or supplier, client, or customer.   What you do in immediate response may have a profound effect on what follows.  To position your company for the best possible outcome, here are five things to keep in mind in every case. 1.  Do Not Communicate or ...

You just received a summons and complaint filed against your company by an employee, vendor or supplier, client, or customer.   What you do in immediate response may have a profound ...