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May 2017

Almost all cases at trial require some form of expert testimony. Expert testimony is based, in part, by relying on literature, studies, and testing that supports the expert’s opinion. If you are using expert witness testimony to support your client’s case, chances are that the other party is too. If you try to exclude or limit the opposing counsel’s expert witness testimony, the other party will try to do the same with your expert witness.

May 2017

Oliver Wendell Holmes once wrote that “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”1 In contract law, this notion is embodied in the “surrounding circumstances” doctrine. The Texas Supreme Court gave an apt summary of this principle in City of Pinehurst v. Spooner Addition Water Co., writing that “Where a question relating to the construction of a contract is presented, as here, we are to take the wording of the instrument, consider the same in the light of the surrounding circumstances, and apply the pertinent rules of construction thereto and thus settle the meaning of the contract.”2

  • April 2017

    “I’m so confused.” So said one of the jurors in a legal-malpractice case we recently handled where the plaintiff asserted both a professional negligence claim and a breach of fiduciary duty claim. The juror was reacting to the trial court’s attempt to explain the fiduciary-breach claim in the verdict form. And that juror’s confusion is just one reason why “[c]ourts should resist the appeals of lawyers for [the] plaintiff-client to proliferate theories of recovery that merely overlap each other.” Charles W. Wolfram, A Cautionary Tale: Fiduciary Breach As Legal Malpractice, 34 Hofstra L. Rev. 689, 738 (2006). 

  • April 2017

    Spoliation of evidence, and the sanctions that can result from it, remain a significant potential concern in civil cases of all types. A spoliation sanction can turn a small case into a big one or a no-liability case into a clear-liability case. In addition, it is important to understand that even seemingly innocent conduct can result in spoliation sanctions, particularly under recent Georgia appellate case law; a party’s good faith, while a factor in whether and which sanctions should be imposed, is not dispositive. The only way that any company can truly protect itself against potential spoliation sanctions (against itself or its insured) is to put procedures in place to ensure that after any incident that could conceivably result in litigation, all relevant documents and things are preserved until any claim is resolved or the applicable statute(s) of limitations have expired.