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Litigation Conduct: Removing the 'Bad Faith' Trap
Pure self-interest seemingly motivates parties in the adversarial system; but insurance presents a twist on that common understanding when it comes to litigation over coverage. That is because courts have held that a coverage action does not terminate certain obligations existing between an insured and its insurer ' even with respect to the particular claim at issue in the coverage dispute. With increasing frequency, aggressive attorneys representing policyholders argue that, despite traditional common law or statutory litigation and settlement privileges and protections, an insurer's conduct during a coverage lawsuit should be scrutinized with the aim of identifying evidence of 'bad faith' that can be used against the insurer.
The law in this area is still developing, but a body of case law is being generated that presents a principled, 'bright-line' rule that distinguishes between an insurer's conduct as a litigant seeking a judicial declaration on coverage and the insurer's conduct purely as an insurer making a coverage decision. These cases recognize that a coverage dispute that is in litigation should not provide a springboard for policyholders to generate 'bad faith' allegations as a litigation strategy. These courts reason that when coverage is in dispute, an insurer has a right to bring or defend against a coverage action. They view evidence of post-litigation conduct as irrelevant or, if not, of limited probative value at best. These courts also recognize that procedural and ethical rules are the proper means to address inappropriate litigation conduct. As a result, insureds are not permitted to use even improper litigation behavior as evidence of 'bad faith.'
Law Firms are Reducing Redundant Real Estate by Bringing Support Services Back to the Office
A trend analysis of the benefits and challenges of bringing back administrative, word processing and billing services to law offices.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
Risks of “Baseball Arbitration” in Resolving Real Estate Disputes
“Baseball arbitration” refers to the process used in Major League Baseball in which if an eligible player's representative and the club ownership cannot reach a compensation agreement through negotiation, each party enters a final submission and during a formal hearing each side — player and management — presents its case and then the designated panel of arbitrators chooses one of the salary bids with no other result being allowed. This method has become increasingly popular even beyond the sport of baseball.
Disconnect Between In-House and Outside Counsel
'Disconnect Between In-House and Outside Counsel is a continuation of the discussion of client expectations and the disconnect that often occurs. And although the outside attorneys should be pursuing how inside-counsel actually think, inside counsel should make an effort to impart this information without waiting to be asked.