Lawletter Vol 48 No. 3
The Utility of a Declaratory Judgment Action
Paul Ferrer—Senior Attorney
Most states, as well as the federal government, have enacted some form of declaratory judgment act, which authorizes courts to declare the rights and other legal relations among parties even though traditional remedies for
Civil Procedure
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ATTORNEY AND CLIENT—LEGAL ETHICS “Reply All” Only When You Mean It
Amy Gore, Senior Attorney, National Legal Research Group, Inc.
Like so many others in today’s society, lawyers are dependent upon electronic forms of communication, including email. The use of electronic communications has raised a plethora of ethical concerns for practitioners. Now, in addition to the previous ethical concerns, the…
Rule 60(b)(1) “Mistake” Includes a Judicial Error of Law
Paul Ferrer, Senior Attorney, National Legal Research Group, Inc.
Rule 60(b) of the Federal Rules of Civil Procedure authorizes a court to relieve a party from a final judgment, order, or proceeding for various reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). The U.S. Circuit Courts…
Fourth Circuit Reverses Course on Case-by-Case Approach to What Is a “Final Decision”
Paul Ferrer—Senior Attorney, National Legal Research Group
A question that has long vexed both litigants and courts alike is what constitutes a “final decision” triggering the right to file an appeal under 28 U.S.C. § 1291, which confers jurisdiction on the federal circuit courts of appeals over “appeals from all final decisions of…
ATTORNEY AND CLIENT: Ethical Considerations in a Virtual Practice
Amy Gore—Senior Attorney, National Legal Research Group
As the world’s efforts to combat COVID-19 continue, most practitioners have adapted their practice by virtual hearings and meetings. Virtual law practice was clearly contemplated before the pandemic, but health concerns and court closures have dragged many practitioners further into the future than may have been…
Damages Awarded for Pursuit of Divorce Case in Violation of Automatic Stay
April Wimberley—Senior Attorney, National Legal Research Group
A bankruptcy court recently awarded attorney’s fees, compensation for emotional distress, and punitive damages to a debtor whose ex-husband continued litigating their divorce case in violation of the automatic stay. In re Payne, No. 20-30524 (Bankr. E.D. Va. Mar. 22, 2021). On January 15, 2020,…
Successive Motions for Summary Judgment—When to Try for a “Second Bite at the Apple”
Lee Dunham—Senior Attorney, National Legal Research Group
Your motion for summary judgment was denied. Not long thereafter, the judge in your case retires and is replaced by a new judge who seems much more sympathetic to your client’s arguments. The deadline to file a motion to reconsider has expired. Can you simply…
Attorney's Fees as Damages for Breach of Covenant Not to Sue
Paul Ferrer—Senior Attorney, National Legal Research Group
The familiar “American rule” holds that a prevailing party generally cannot recover its attorney’s fees from the losing party in the absence of a statute or contract provision specifically authorizing an award of such fees. Jurisdictions are divided on the issue of whether a party can…
Responding Competently to Incompetently Drafted Pleadings
Lee Dunham—Senior Attorney, National Legal Research Group
As most seasoned practitioners are all too aware, it is often more time- consuming and frustrating to litigate a case against an incompetent pro se party or opposing counsel than it is to oppose a good lawyer. A litigant who is sloppy, mentally unwell, or who…
What Happens to a Derivative Action When the Company Settles a Parallel Lawsuit?
Charlene Hicks—Senior Attorney, National Legal Research Group
Corporate shareholders, individual members of a limited liability company, or residents of a homeowners’ association often file derivative complaints on behalf of the entity to assert rights that the entity itself has failed to raise against third parties. Sometimes these derivative actions prompt the entity to…