When attorney-client and work product privilege issues are litigated, the disputes usually involve the applicability of the privilege, whether any exceptions apply or whether the privilege has been waived. This month’s blog deals with a different spin on the law of privileges, namely, do those privileges ever cease to exist? Here is how that question may arise.
There is a notion under Michigan...
Last month, we discussed the Michigan Supreme Court’s decision in Madugula v. Taub, 2014 Mich. LEXIS 1281 (July 15, 2014), in which the Court held that shareholder oppression claims, including those seeking damages, can only be tried before judges sitting as courts of equity. This month, we focus on one of the strategic implications of that decision: does Madugula apply to limited liability...
When lender and borrower relationships break down – especially where the borrower defaults in payments owed to the lender – the borrower often feels (and perhaps justifiably so) that the lender is treating them unfairly or is acting contrary to certain oral promises that may have been made at an earlier time. For instance, at the beginning of a lending relationship, the lender may tell the...
The Court of Appeals recently upheld the dismissal of malpractice and fiduciary duty claims alleging that an accountant failed to “keep an eye” on the company’s controller who later engaged in a two year long embezzlement scheme, stealing over $400,000. Banker & Brisebois, Co. v Maddox, et al., unpublished per curiam opinion of the Court of Appeals, No. 310993 (April 29, 2014).
The...
For those of you who thought shareholder oppression cases could be tried to a jury, think again. It is true that the Michigan shareholder oppression statute, MCL 450.1489(f) of the Business Corporation Act, states that “if the shareholder establishes grounds for relief, the circuit court may make an order or grant relief as it considers appropriate, including, without limitation, an order...
Whether or not you are on Facebook or are a devoted user of social media apps, as a litigator you have to be, at the very least, aware of how technology affects discovery and can potentially lead to a gold mine of information. Moreover, some knowledge of how technology affects litigation is essentially mandatory now. Comment 8 to Rule 1.1 of ABA Model Rule regarding competent representation...
When attorneys stride into court to argue the merits of a request for a preliminary injunction, they are usually focused on arguing the merits of the plaintiff’s claims. Convincing the judge that the plaintiff either does or does not have a likelihood of succeeding on the merits is obviously important. However, frequently the main battleground at the hearing will be the irreparable harm...
The Michigan Court of Appeals recently issued an opinion providing that a law firm that represents itself in an action for non-payment of attorney fees is entitled to obtain case evaluation sanctions and be compensated for its own fees incurred in bringing the fee action when the former client fails to accept case evaluation pursuant to MCR 2.403(O). Fraser Trebilcock Davis & Dunlap, PC v...
We all know that the default burden of proof standard in civil cases is the “preponderance of evidence” standard. In explaining this standard to a jury, many of us resort to the proverbial tipping of Lady Justice’s scales. We also know that fraud claims require proof by the higher “clear and convincing” standard. Imitations of Lady Justice do not work as well with this standard, but we still...
As more practitioners file cases in the Business Courts, it is predictable that they will have to grapple with jurisdictional issues involving multiple claims. One issue that litigators should be aware of is that business courts have ‘supplemental’ jurisdiction over claims that are not themselves business court claims, but that are related to business court claims.
Under MCL...
