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Tag Archives: Advocate’s View

Advocate’s View: Litigation issues in transactional documents: arbitration clauses, merger clauses and attorney’s fee provisions

“An ounce of prevention is worth a pound of cure.” The words of Benjamin Franklin perfectly describe the transactional attorney’s ideal role in the negotiation and drafting of contracts. In practice, complex agreements are routinely negotiated and signed within days ...

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Advocate’s View: Responding to applications for pre-action disclosure CPLR 3201 (c)

Most discovery skirmishes arise after commencement of an action. On occasion, the battle is waged before an action is commenced, which brings into play CPLR §3201 (c). Pre-action discovery is available to aid in bringing an action, to preserve information ...

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Advocate’s View: Restrictive covenants and employee manuals can make a bad combination

I have recently observed a trend in employment litigation: employers attempting to enforce covenants not to compete or solicit clients (“restrictive covenants”) that are contained in employee manuals, as opposed to discrete contracts. Employers should reconsider this practice if they ...

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Advocate’s View: The fallacy of privacy: discovery of ‘private’ social media content in the wake of Forman v. Henkin

Introduction There is something about social media that causes people to instinctively share, post and tweet whatever is on their mind (ask Donald Trump). As a result, social media accounts are a potential evidentiary goldmine for litigation attorneys (ask Robert ...

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Advocate’s View: Removing to federal court: a deadline you can’t miss

When I last wrote about unmissable deadlines, I described CPLR and NYCRR provisions setting deadlines that normally can’t be forgiven. If you’re defending a state court action, there’s another deadline you must remember: the 30-day deadline to remove an action ...

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Advocate’s View: Flood insurance basics

With rising water levels in Lake Ontario damaging homes and businesses locally, and the active hurricane season of 2017 impacting properties across the country, many people and business are asking about flood insurance. Who offers flood insurance? Generally, flood insurance ...

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Advocate’s View: Expert affidavits do not always defeat summary judgment

In certain personal injury cases, plaintiffs rely upon expert witnesses to prove that a defendant created a dangerous condition. For example, in a trip-and-fall case, a plaintiff may retain an engineering expert to opine that a roadway was improperly constructed, ...

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Advocate’s View: Assessing the transfer of risk and payments in personal injury and property damage claims

In construction disputes or other personal injury or property damage matters, counsel is often asked if the payment of alleged damages can be passed along to another entity or person. The typical legal avenues for passing along risk are contribution, ...

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Advocate’s View: The use of social media to learn about jurors and juror misconduct

The availability and lure of social media to quickly find information about individuals involved in the legal system, and in particular prospective or sitting jurors, can overshadow the need to be aware of the ethical considerations imposed by the New ...

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