Negotiating Alignment, Not Agreement: A Guide to Effective Tenant Negotiations
December 02, 2005
What do negotiators fear most? Failure, being manipulated and being second-guessed. Why do negotiators fail and why are they manipulated or second-guessed? Often, it's lack of adequate preparation and disregard for the issues, purposes and concerns of the other side. A lack of internal alignment can lead to confusion and that dreaded second-guessing. A well-prepared negotiator can be manipulation proof, avoid the second-guessing and achieve valuable results.
The Law of Custom and Usage Evidence in Insurance and Reinsurance Contracts
December 01, 2005
Reinsurance and insurance contracts would be thousands of pages long if they explicitly defined every possible term, however mundane, or if they anticipated every possible contingency, however remote. Fortunately, (or perhaps unfortunately) for the drafters of these contracts, the U.S. legal system typically employs a more streamlined model. That is, parties commit to an agreement with the understanding that courts and other adjudicatory bodies may play a role in filling in contractual "gaps" and giving meaning to indefinite or indeterminate contractual terms. <i>Cf. Phelps Dodge Corp. v. Schumacher Elec. Corp.</i>, 2005 U.S. App. LEXIS 14318 (7th Cir. 2005). Although there are a number of methods by which a court can interpret a contract, the importation of custom and usage evidence plays a special role in illuminating insurance and reinsurance contracts. This article explores whether and when courts will admit such evidence, and it divides into three sections: First, the article explains the rules that courts will employ when they determine whether and when to admit custom and usage evidence; second, it considers the effect of integration clauses on the possible importation of custom and usage evidence; and, third, it provides several practical suggestions for a party seeking to import custom and usage evidence.
Challenging Insurers' Efforts to Obtain Insureds' Privileged Communications
December 01, 2005
Insureds embroiled in litigation with underlying claimants frequently are confronted with demands from their insurers that can place their litigation position at risk. One issue that often arises is whether an insured must and should provide requested privileged materials to its insurer in connection with the insurer's coverage investigation or in coverage litigation. Where the insurer has accepted the insured's defense of litigation and thus its interests appear to be aligned with the insured in a successful resolution of the underlying matter, the insured may have difficulty in refusing to provide certain materials. However, as is often the case, 1) an insurer will reserve rights and then seek all information relevant to the underlying matter, regardless of its privileged status, or 2) deny coverage and seek that information in the context of coverage litigation. Insureds should be aware of possible risks that can be created if they comply with requests for privileged information, and that despite the insurers' claims of a "common interest" or that the privileged information is "at issue," significant case law protects these materials from production.
Implied Waiver of the Attorney-Client Privilege: Another Consequence of Bad Faith Claims
December 01, 2005
To outsiders of the legal community, no rule is more familiar than the attorney-client privilege. In simple terms, what a client tells his attorney is supposed to stay between the client and his attorney. It is this covenant of secrecy that prompts some (but certainly not all) clients to be honest and forthcoming with the facts underlying a particular claim. In turn, it allows the attorney to provide the most effective representation to his/her client. Yet, in the world of bad faith claims, courts have proved willing to find that an insurance company has impliedly waived the attorney-client privilege even in cases when the insurer has not argued that it relied upon the advice of counsel in denying the claim. <i>See</i> Steven Plitt, <i>The Elastic Contours of the Attorney-Client Privilege and Waiver in the Context of Insurance Company Bad Faith: There's a Chill in the Air</i>, 34 Seton Hall L. Rev. 513 (2004).
Case Briefs
December 01, 2005
Highlights of the latest insurance cases from around the country.
The MLF 50: Highlights
November 30, 2005
The MLF 50 ' The Top 50 Law Firms in Marketing and Communications appeared in a special September/October issue of MLF. Here are some of the highlights of that issue, including mention of the top five firms.
The Best of MLF 2005: Looking Back at the 'Benchmark' Year
November 30, 2005
Well, it's been an exciting year here at <i>Marketing the Law Firm</i>. As with past practice, this month's issue will be a look back at the year that was. In this issue we will present February (the January issue recaps part of 2004) through July.
Using Client Profiles for Future Case Management
November 30, 2005
After a rigorous search, which involved input from key firm personnel including our IT director, paralegals, attorneys, senior managing partners, and the Chief Operating Officer, we selected Client Profiles as our case management solution. Since the selection, we have been able to revolutionize the way our users access, share and update information related to all cases and matters; have seen firm-wide adoption of 100%, and are realizing numerous technology-related cost savings and productivity enhancements.
