Taking Assignments of Equipment Leases: An Analysis of an Acceptable Documentation Package
December 01, 2003
Like many financial products, equipment leases can be bought and sold. The lease assignment market has become increasingly active and complex in recent years, despite the economic downturn of the early 21st century. This article highlights the type of documentation that should generally be required when a broker or other originator of leases (the "Originator") assigns leases to a funding bank (the "Funder").
What To Do When 'Strict' Means 'Strict'
December 01, 2003
It is well known that the doctrine of strict liability imposes responsibility upon manufacturers without regard to their fault or the degree of care they may have exercised in designing their products. Yet, in some jurisdictions the law of strict liability is stricter than in others, and courts in these "strict-strict liability" jurisdictions may prohibit the employment of certain common defenses to product liability claims. Manufacturers that find themselves on the defense in such jurisdictions may face the unexpected and initially unpleasant news that the trial on the horizon really will be about the product, the whole product and nothing but the product, and that the sole question for the jury may be "can someone given 20/20 hindsight fathom a plausible way to make this product safer?" Such manufacturers will often find that what they were hoping to rely upon for the cornerstone of their defense — explaining who, what, where, when, why and how from the company's perspective — is not only irrelevant but also inadmissible at trial.
Analyzing Manufacturers' Duties with Respect to Post-Sale Safety Improvements
December 01, 2003
According to Professors Henderson and Twerksi, the Reporters for the Restatement (Third) of Torts: Products Liability, "... post-sale warnings are probably the most expansive area in the law of products liability." The authors go on to say that "[I]f you want to see people turn ashen white quickly, we recommend that you gather representatives from industry in a room and then flash the words 'post-sale warnings' on a screen." They further describe post-sale warnings as "timeless" and a "monster duty."
Case Notes
December 01, 2003
Highlights of the latest product liability cases from around the country.
Service Provides Useful Features for E-Discovery
December 01, 2003
Continuing the trend of informing readers about helpful online services (See October <i>PLLS</i> Online for a description of CourtLink and November <i>PLLS</i> Online for EDOCKET), this month's column describes an electronic discovery service that may be useful in complicated product liability litigation. We are not recommending the service; we merely inform our readers of its existence and its claims.
Practice Tip: Prepare for Cross and Direct Early and Often
December 01, 2003
The few months before trial of a complex products liability case is without a doubt the busiest time in the life cycle of the case. Typically this time is spent working with witnesses, drafting trial briefs and trial motions, preparing opening statements, jury questions, and demonstrative exhibits, and drafting direct and cross examinations of the witnesses you anticipate will testify. The latter of these critical pretrial preparations can take a substantial amount of time, especially when preparing cross or direct examination for expert witnesses where the science in support of — or in contravention of — the opinions expressed is complex. Although it's not wise to begin to prepare cross or direct in the frenzied days or weeks before trial, it is often difficult to focus on trial examination of a specific witness earlier in the litigation.
Sentencing Convicted Corporations
December 01, 2003
The Ad Hoc Advisory Group to the United States Sentencing Commission on the Organizational Sentencing Guidelines (OSG) has recommended significant changes, particularly in the seven criteria for an effective compliance program to prevent and detect violations of law that, if implemented by an organization, may qualify it for a reduced fine in the event of a conviction.
Bugs in the Office
December 01, 2003
Consider the following situation: An employee anticipates that his employment is about to be terminated, for what he believes to be discriminatory or otherwise unlawful reasons. After consulting with an attorney, he decides to tape-record conversations with his supervisors, in the hopes of recording a "smoking gun" comment. A short time later, the employee is terminated, and he later commences litigation in federal court against his employer.
Preparing a Parent for Trial
December 01, 2003
All family lawyers know that a custody trial is about what is best for the children. Parents may think they understand this, but often do not "own" the concept because they are so obsessed with their own problems. The hurt and anger over what has happened clouds their thinking. Facing the possibility of part-time parenting or substantially reduced parenting time, they have difficulty focusing on what is best for the children. This is not to imply that the parents do not care about their children's needs, but getting them to express their concerns for their children instead of using court time to vent, tattle, bicker and complain, is often a formidable task.
