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Technology has emerged as a critical trial advocacy tool in product cases. In an electronic world where information is delivered in 30-second sound bites, 1-minute commercials, and 12-minute programming segments, technology can be used to convey complex information about product design and use in the bite-sized pieces needed to connect with today's jurors.
The first part of this article discussed the split in the circuit courts on the issue of whether a party must produce all communications and materials that were supplied by the party's attorney to a testifying expert, even if these communications (oral or written) would otherwise be protected as attorney work product. The majority of federal courts have adopted a "bright-line rule" that all information shared with a testifying expert must be produced, even if it includes "core" attorney work product, namely the attorney's mental impressions, conclusions, opinions or legal theories. A minority, however, has declined to follow this bright-line rule and instead has held that providing attorney work product materials to a testifying expert does not waive the attorney work product protection. The conclusion of this series will discuss the minority view and compare the two views.
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Although not a part of every product liability case, if the product manufacturer makes "subsequent remedial measures" after the injury-causing event, a motion in limine seeking to exclude this evidence at trial is a must. There is a tremendous risk that the jury will irrationally assume that a product was defective when sold, and that the manufacturer was negligent for supplying such a product, simply because the manufacturer made changes to the product after the accident.
Much ink, thought, and aggravation have gone into crafting carve-outs to a tenant's obligation to pay its proportionate share of operating expenses. Depending on the relative leverage of the parties in the deal, the tenant may get significant concessions from the landlord, including carve-outs for capital items and other potentially costly expenditures.
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Whether you work for a national retail chain or a local retail tenant, you should consider periodically performing lease audits to determine what type of short-term and long-term strategies to implement in an effort to keep your business viable. A lease audit that reviews and identifies risks and liabilities will assist you in developing and/or fine-tuning a business strategy that benefits your company.
Highlights of the latest commercial leasing cases from around the country.
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Parties to commercial leases often have opportunities to exercise rights that they have bargained for in the lease negotiation process. Those rights may be held by both the landlord or the tenant and may relate to the termination of the lease, the renewal or extension of the lease term, the right to expand or contract the premises, the right to reduce rent, the right to relocate the tenant to other premises or whatever the needs and creativity of the parties may have caused them to negotiate. Typically, these rights are important to the operation of the business of the landlord or the tenant, and the lease document requires that a right be exercised by giving notice in a certain manner and by a certain date. If the notice is not timely and properly given, the right may be lost.
Aside from payroll, real estate costs are a large law firm's most significant expense. Even under the best circumstances, such expenditures — sometimes called occupancy costs — consume 8% to 10% of the typical large firm's annual revenue. These costs are not confined to rent; many firms finance millions of dollars worth of expenses associated with the construction of their space.
