COMMITMENTS MADE; COMMITMENTS FORGOTTEN
August 06, 2007
In-house counsel often complain to each other about what they are not getting from their law firms as promised during the proposal and romancing phase. And although outside counsel may be providing services "as usual", and don't challenge themselves to review their promises to new clients, the insiders should hold their feet to the fire. What commitments did the law firm make to you and what do you need to do to remind them that'
The Leasing Hotline
July 31, 2007
Highlights of the latest commercial leasing cases from around the country.
Making the Work Letter Work
July 31, 2007
Part One of this series described six considerations to address in a work letter where the landlord performs the work at its own expense. The conclusion addresses work letters in which the work is done at the tenant's expense by either the landlord or the tenant.
In the Spotlight: Be the Quarterback
July 31, 2007
Most real estate transactions involve not only a lease or purchase of property, but construction and/or development of the property as well. Transactions commonly require the participation of several people, forming a team of experts, to bring the transaction successfully from concept to fruition. Team members may include the real estate broker (or in-house real estate manager), construction manager, architect, site development manager, civil engineer, surveyor, land use/entitlement attorney, environmental attorney, title company, and real estate attorney, as well as paralegals. The entire team needs a central point for the coordination and dissemination of information coming from each team member's particular area of expertise. The large majority of such information will make its way into the contract being drafted and negotiated by the real estate attorney and necessitates that the real estate attorney take the lead (<i>i.e.</i>, be the quarterback) to coordinate, gather, and disseminate information from and to the team members.
Is a Tenant's Option to Purchase Assignable?
July 31, 2007
Last year, a Missouri appellate court affirmed a lower court's holding that where a lease prohibited a tenant from assigning its interest in the lease without the landlord's consent, the tenant also could not assign an option to purchase the real property the tenant was leasing from the landlord, without the landlord's consent. That court held that a tenant's rights under an option to purchase were a covenant that ran with the land, and that the tenant could not assign those rights without the landlord's consent because the lease limited assignment of the lease generally. <i>Megargel Willbrand & Co., LLC v. Fampat Limited Partnership</i>, No. ED 86570, 2006WL956963 (Mo. Ct. App. Apr. 11, 2006)
Movers & Shakers
July 31, 2007
News about lawyers and law fims in the product liability field.
Case Notes
July 31, 2007
Highlights of the latest product liability cases from around the country.
Walking the Line: Sharing Work Product with Testifying Witnesses
July 31, 2007
Attorneys have an ethical obligation to represent their clients zealously. Deposition preparation is key to that obligation. Preparing testifying witnesses educates and focuses them on important issues and facts of a case. This aside, the law regarding disclosure of work product provided to testifying witnesses is not well settled, and 'there is considerable room within which thoughtful judges can reach different conclusions.' <i>Intermedics, Inc. v. Ventritex, Inc.</i>, 139 F.R.D. 384, 387 (N.D. Cal. 1991). Zealous representation, therefore, requires counsel to walk a line between witness preparation on one side and work product disclosure on the other. In so doing, counsel must also remain mindful of the line that exists between acceptable witness preparation and impermissible influencing of a witness. <i>State v. Earp</i>, 571 A.2d 1227, 1235 (Md. 1990). One misstep may lead to disclosure of counsel's mental impressions and strategy and, possibly, to serious sanctions.
Designer Liability: A Trap for the Unsuspecting Manufacturer Or Former Manufacturer
July 31, 2007
In order to hold a defendant liable in a product liability case, tort law traditionally has required an injured plaintiff to show that the named defendant manufactured, sold, or distributed the product that allegedly caused the plaintiff's injury. Over the years, however, courts have established exceptions to this general rule. <i>See, e.g., Thomas v. Mallett</i>, 701 N.W.2d 523 (Wis. 2005) (lead paint manufacturers held liable under a market share liability theory even though the plaintiff could not prove which defendant manufactured injury-causing product). Recently, several courts have further eased plaintiffs' burden of proof by using theories of designer liability to hold companies responsible for injuries to consumers, even though the plaintiff could not show that the defendant manufactured, sold, or distributed the product that caused the plaintiff's injuries.
Practice Tip: One Trick Against Getting Stuck in 'Magic Jurisdictions'
July 31, 2007
South Florida. Rio Grand Valley and Gulf Coast, TX. West Virginia. Cook County, Madison County, and St. Clair County, IL. Ask most Americans what the connection is between those disparate places and you will probably get quizzical looks. Ask most product liability defense attorneys (or their multinational clients), however, and you may get looks of frustration, anger, possibly even apprehension. According to a 2006 report by the American Tort Reform Foundation, those jurisdictions are so-called 'Judicial Hellholes',' which are 'places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil litigations.' <i>See www.atra.org/reports/hellholes</i> at 1.
