“Judicial Notice” is a process which may be used to have certain matters accepted at trial as established, without the necessity of formal proof. It comes in two forms: (1) judicial notice of facts; and (2) judicial notice of law. See generally, Guide to NY Evidence, Article 2; Federal Rule of Evidence 201. Judicial Notice…
Read More Judicial Notice in New York PracticeIn New York practice, the “Bill of Particulars” is a widely-used device to obtain more detail – “particulars” – about a legal claim (either a plaintiff’s affirmative claims, or a defendant’s affirmative defense(s)). Technically, even though the Bill of Particulars (referred to as a “BP” by New York litigation regulars) is not a “discovery” device,…
Read More The “Bill of Particulars” in New York PracticeSome say that relatively new generative AI technology is set to disrupt one or more industries – including law. In light of a recent development, I’d say that’s a bit of an overstatement. In a recent case, Mata v. Avianca, Inc., pending in the U.S. District Court for the Southern District of New York, Civil…
Read More An Excellent Reason Not to Rely on Chat GPT For Legal ResearchIn civil litigation, the trial is the end of a long journey, beginning with the filing of a complaint, continuing through and completing discovery, and, often, motion practice. In New York state court, the filing of the Note of Issue will result in the placement of the case on the trial calendar. Before the matter…
Read More Anatomy of a Lawsuit, Part 6: TrialAfter the plaintiff has filed and served the complaint, received the answer (or overcome a motion to dismiss), and conducted and completed discovery, we reach a point where a party may seek a remedy called “summary judgment.” (While technically a party may move for summary judgment before the close of discovery, it typically occurs after…
Read More Anatomy of a Lawsuit, Part 5: Summary JudgmentPlaintiff has filed and served their Complaint, and the Defendant has either filed their Answer, or made a motion to dismiss which the Court has denied. At this point, we enter the most involved, costly, and time-consuming stage of litigation: Discovery (“Disclosure” in New York practice). (If this were a cross-country road trip from New…
Read More Anatomy of a Lawsuit, Part 4: Discovery / DisclosureNow that the papers have been appropriately served, the ball shifts to the defendant(s), who have several options. Generally, this boils down to 3 options: (1) default; (2) submit an answer; or (3) make a motion to dismiss. Default Where a defendant defaults – i.e., fails to submit an answer or responsive pleading , the…
Read More Anatomy of a Lawsuit, Part 3: Defendant’s Move – Default, Answer, Motion to DismissNow that the plaintiff has filed the Summons and Complaint (or, if in federal court, filed the Complaint and received the Summons issued by the court), they must “serve” these documents on the defendant(s). There are highly detailed and technical rules governing this process (see, e.g., FRCP 4; CPLR Article 3) which is beyond the…
Read More Anatomy of a Lawsuit, Part 2: Service of ProcessEvery war begins with a first shot. In the context of litigation, that first shot is the timely filing of a complaint in an appropriate court – i.e., one that has both “subject matter jurisdiction” over the dispute and “personal jurisdiction” over the defendant(s). The one doing the filing is the “plaintiff” (who is comPLAINing…
Read More Anatomy of a Lawsuit, Part 1: The Summons & ComplaintIn Bush v. Alliant Content, LLC, 2022 NY Slip Op 22199 (NY Sup. Ct. Westchester Cty. July 5, 2022), the court ruled on an issue that became particularly relevant during the COVID pandemic, namely, whether a deposition – a proceeding, part of the “discovery” process in civil litigation, comprising the interposition of real-time questions to…
Read More Unvaccinated Cancer Survivor Must Appear For In-Person Deposition, Court Rules