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Extrinsic Evidence and Conditional Reform
In coverage litigation, insurers often treat extrinsic evidence as if it were radioactive material, and there is some justification for this instinct. Generally, consideration of extrinsic evidence connotes an ambiguity in policy language, and there are several reasons why insurers seek to avoid arguing, or even intimating, that the language at issue in an insurance policy is ambiguous. Most obvious, if consideration of extrinsic evidence cannot resolve the ambiguity, a finding of ambiguity sometimes leads courts to the doctrine of contra proferentum, the canon of contract construction that construes ambiguities in certain contracts against the drafter. See, e.g., St. Paul Fire & Marine Ins. Co. v. Pryseski, 438 A.2d 282, 288 (Md. 1980). While not an inevitable result, application of the doctrine of contra proferentum most often inures to the insurer's detriment.
In addition, the notion of a potential ambiguity in contract language can lead to burdensome and expensive discovery into extrinsic evidence of intent, with much of the extrinsic 'evidence' sought in coverage litigation more noteworthy for its invasiveness than its actual or potential probative nature. Finally, as repeat players in coverage litigation, insurers must be wary of how an assertion or intimation that policy language is ambiguous will impact coverage disputes involving identical or similar language, even if the collateral effect of such an argument in the existing coverage dispute is insignificant. All of these considerations tend to make insurers reluctant to urge a court to consider extrinsic evidence in coverage litigation or to suggest that the policy language at issue is ambiguous.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
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.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.