Posts categorized as "Video"

New Contract Law Video on Condition Subsequent

I have a new video up on the condition subsequent in contract law.  I'll have some more posts soon but am tied down for a bit with other projects.  Feel free to get in touch though!

 

New Contract Law Video on Condition Precedent

I uploaded a video Contracts: What is a condition precedent?  I will follow up on this with some more on conditions and remedies under contract law.

 

Case of the Month: NML Capital v. Republic of Argentina

If you follow the news you may have seen news reports regarding a case in a New York federal court, NML Capital v. Republic of Argentina.   It's a useful case to study for US legal terms, the federal court system, and where politics and the law intersect.  Below is a simplified summary.

The background to the case is that Argentina issued bonds.  You're probably familiar with bonds:  bonds help companies and countries to raise money.  Basically, investors give money now in return for a promise to get paid back with interest later.  

Argentina has a history of defaulting - - failing to pay back investors.  To help encourage people to buy Argentina's bonds Argentina agreed that if there was a legal battle in connection with the bonds that Argentina would litigate in New York federal court.  The reason to litigate in New York is that New York would be perceived as a neutral place to settle any dispute.  Investors might be nervous about litigating against Argentina in Argentina's courts and would be less willing to buy Argentina's bonds.

 So investors bought the bonds but Argentina defaulted.  Argentina told bondholders that they could get back around 30 cents for every dollar.  Many bondholders agreed to this offer.  In the news you will see the bondholders who agreed to this deal called Exchange Bondholders.  Exchange Bondholders means the investors who agreed to accept Argentina's offer.

But not all the investors agreed to accept Argentina's offer.  Other bondholders wanted Argentina to pay what it owed on the bonds.  These bondholders sued in New York federal court (the case is captioned NML Capital Ltd. v. The Republic of Argentina).  Let's call the bondholders who did not accept the deal "plaintiffs".

The federal court ordered Argentina to not pay the Exchange Bondholders unless Argentina also agreed to make payments to the plaintiffs in the court case.  Argentina, among other things, argued that the US federal court could not tell Argentina what to do because Argentina is a sovereign country.

The judge found Argentina to be in contempt because Argentina failed to follow his orders.   The plaintiffs want the judge to impose a penalty of $50,000/day against Argentina.  This creates political friction between the United States and Argentina because it is unusual for a court in one country to impose a penalty against another country. Argentina has asked for support from the United States government (the executive branch) against what it believes to be improper actions by the court (the judicial branch).

Below is a video I uploaded:

 

 

What is a subpoena?

Subpoenas are legal orders to provide evidence.  There are two major types of subpoenas: (i) subpoenas that require someone to testify; and (ii) subpoenas that require someone to disclose evidence in their possession, such as documents.  These two types of subpoenas are often referred to as subpoenas (i) ad testificandum; and (ii) duces tecum.   

In the United States, judges and other court officers, including lawyers, may issue a subpoena.  If a lawyer issues a subpoena and the person subject to the subpoena fails to comply, the lawyer can ask a court to force the person to comply.

Subpoenas are especially useful for gathering evidence from third parties.  For example, let's say Patty sues David.  David is a party to the case and subject to the jurisdiction of the court so obtaining evidence from David should not be a problem for Patty.  But let's say Terry, a third-party who is not in the case, has critical evidence that Patty needs.  To obtain the evidence Patty's lawyer might rely on a subpoena, to try and compel Terry to turn over the evidence that Patty wants.  

I uploaded a video on subpoenas to YouTube:

 

 

 

 

Federalism video updated

Hi,

 

I updated my YouTube video on federalism a bit.  That video (and others) had some technical issues especially with sound and I hope this version is more pleasant to watch.

 

 

What is an implied private right of action?

First look at the phrase "private right of action".  Action here means a civil lawsuit.  Private right of action means a private person - - we're not referring to the state - - has the right to commence a lawsuit.  

When a legislature passes a law, the state can prosecute someone who violates the law.  For example, federal law prohibits people from defrauding others in connection with the sale and purchase of securities (securities = stocks etc.)  That means the state has the power to prosecute people who defraud others in connection with securities transactions.   But private persons also have the right to sue defendants they allege violated certain types of securities laws - - this is a private right of action.

 US law generally refers to two types of private rights of action - - (i) express and (ii) implied.  An express private right of action is where the legislature states in a statute that private persons have the right to sue if someone violates the law. For example, let's say Congress passes a law prohibiting people from participating in a criminal enterprise and expressly authorizes private persons to sue in federal court if they were victimized by the criminal enterprise.  Congress is granting people an express right of action based on the federal law.

But some private rights of action are implied.  The legislature might not expressly state that private persons have a right to sue but the courts conclude that the legislature intended to empower private persons to sue defendants who violated the law.  The court would say the statute creates an implied private right of action.

Also, courts have concluded that people have an implied right to sue based on certain types of Constitutional violations.  

For example, the United States Constitution does not say that private persons have the right to sue federal agents who violate their rights.  But the Supreme Court concluded that there is an implied private right of action to sue federal officials who violate a person's Constitutional rights (Bivens v. Six Unnamed Agents - - post on that is here).

Below is a video on private rights of action.

 

What is an expert witness?

There are two types of witnesses - - fact witnesses (sometimes called percipient witnesses or eyewitnesses) and expert witnesses.  

Most witnesses are so-called fact witnesses and can testify as to what they personally saw, heard, or experienced.   For example, a witness to a car accident can testify about what he personally saw.  But could he testify as to whether the car that was involved in the accident was properly designed?  Probably not.  Even if he has an opinion, a judge won't allow him to testify because his lay opinion will not help the jury.  

To testify about car design and many other topics that require specialized knowledge, one must be an expert.  Experts can provide opinion testimony about matters that ordinary people  cannot.  Think about television crime dramas where medical professionals testify about the time and cause of death even though they did not see the victim die.  

Before a witness can testify as an expert he has to satisfy several criteria.  If you look at Federal Rule of Evidence 702 you can see the standards in the federal courts for a witness to testify as an expert.  First, the judge will have to be satisfied that the witness is actually an expert based upon education, training, knowledge, or skill.  For example, a doctor or a medical researcher might have the appropriate education and training to testify about a new drug.

Second, the judge must be satisfied that the expert's testimony is based upon sufficient facts or data and that the expert applied the proper principles to the facts or data to reach his conclusion.  It's not enough for a doctor to say that he believes a certain type of medicine was inappropriate to treat a patient.  The  doctor must satisfy the judge that his analysis was sufficiently rigorous.

Finally, if the judge agrees that the witness is an expert, and that the expert applied the proper principles and methods to the facts and data to reach his conclusion, the witness will be allowed to testify if the judge believes that the expert's testimony will be helpful to  the jury.  

I uploaded a video to my Youtube page on expert witnesses:

 

What is a deposition?

A deposition is where a witness or a party must answer questions under oath before trial.  The deponent's answer are transcribed and today many depositions are videotaped.  Depositions typically take place in a conference room.  The judge is not present.  

Depositions are an important discovery device - - remember, discovery is how parties obtain and share information prior to trial in a civil litigation.   

Depositions are a useful way for lawyers to learn what witnesses will later say at trial.  A witness who contradicts his deposition testimony will come across as unbelievable at trial.   Based on deposition testimony and other evidence acquired during discovery, parties will often move for (and oppose) summary judgment.

Depositions usually take place after the parties exchange documents.  Lawyers can then ask deponents about the documents.  For example, in a business litigation, an executive might be questioned for hours or even days about emails that he sent and received.

 

 

 

What is remand? New Video.

Remand is where a court gives a case back to another court.  If you are studying US law you will typically see a court remand a case back to another court in two situations: (i) after an appeal; (ii) after a case is improperly removed to federal court.  I talked a bit about remand after improper removal in an earlier post.  You will also often see an appellate court remand a case back to a trial court.  For example, if an appellate court thinks that a trial court applies a law incorrectly, the appellate court can remand the case back to the trial court and instruct the court to apply the law correctly.

I uploaded a video on remand:

New Impleader Video

Back in May I posted a short entry on impleader.  Below is a video on impleader that I just uploaded.

 In the federal courts impleader is governed by Rule 14 of the Federal Rules of Civil Procedure.  States also allow impleader.  

Generally speaking, the Federal Rules (and state rules) favor resolving related disputes in a single case to promote efficiency.  Impleader allows a defendant to sue a third party based on the principle that if the defendant is liable to the plaintiff, then this third party is liable to the defendant.  The defendant is now also called a third party plaintiff.  The original plaintiff's lawsuit against the defendant/third party plaintiff and the defendant/third party plaintiff's lawsuit against the third party defendant are resolved in the same case.

Let's say A sues B.  B's insurance policy requires C to reimburse B if B owes money to A.  B can implead C into the case.  B sues C as a third party plaintiff arguing that if B owes any money to A, C must owe money to B.