Litigation: the Boxing Match That Never Ends

Litigation can often be a boxing match that never ends. Imagine a scenario where you are a professional boxer in a boxing match. You start the match feeling very confident. You throw a straight punch followed by a hook, and then you pull a haymaker and a mixture of other punches that have other names of an unknown origin. To your surprise, however, your opponent pulls a Bolo punch, and you find yourself on the floor. Ready to throw in the towel, you do so, and the referee ends the match.

That’s the end of it, right? Well, no. Your opponent continues to hammer you, relentlessly. Refusing to acknowledge your surrender.  What would you say about such a scenario? What if you were to be told that such scenarios often occur in the world of litigation?

In the event you get sued, you have two options: litigate the case or settle it. You may decide to litigate, but in this scenario you settle, at which point, you enter into a settlement agreement.

You do your part and abide by the terms of the settlement. To your astonishment, however, your opponent does not discontinue the case, despite your compliance and the settlement agreement. How would that make you feel? That is exactly what transpired in the case of Martin v Harrington, 2016 NY Slip Op 04027 [2d Dept May 25, 2016].

In the Martin case, neighbors had a property line dispute. Martin claimed that due to improvements made by Harrington on his property, which included an asphalt driveway, Harrington encroached and trespassed on her property.

The neighbors fought it out in court for about six months. The parties finally agreed to settle the case. The proposition to settle was initiated by Martin’s counsel. The attorney for Martin sent a letter to Harrington proposing to settle the matter; Martin would discontinue the case if Harrington were to satisfy certain conditions. Harrington agreed and satisfied the conditions including removal of the encroachment, which cost him over $5,500.00.

About three years later, Martin complained to Harrington that he is still encroaching upon her property. Harrington’s position was that he satisfied the conditions as agreed upon. To Harrington’s surprise, Martin did not discontinue the case despite complying with the conditions.

It is parallel to our analogy with the boxer; you tap out, but your opponent is still throwing punches at you. Harrington moved the court to enforce the settlement agreement and dismiss the case as settled. Martin (who wants to have her cake and eat it too) claimed that the settlement agreement is not binding.

New York Civil Practice Law and Rules defines what constitutes a binding settlement agreement. An agreement is binding upon a party if it is in writing and signed by the party or the party’s attorney. Furthermore, the settlement agreement must contain all the material terms and must be clear that there is a mutual accord between the parties.

In the Martin case, the material terms were contained in the letter that was sent from Martin’s attorney to Harrington’s attorney. Based upon the correspondence between the attorneys, Harrington performed the tasks set forth within the settlement. Martin never objected to the settlement or to Harrington’s compliance with the conditions. The court in the Martin case therefore concluded that the settlement agreement is indeed enforceable and confirmed the dismissal of the action.

The lesson to be learned here is to make sure that your attorney is careful to ensure that the settlement agreement is absolutely binding, and then to follow-up and verify that the case is discontinued upon satisfaction of the settlement terms. You do not want to be in the position of the boxer that is being pummeled while down.

Michael B. Schulman Procures Copyright for Client’s New Game

Michael B. Schulman and Associates have recently helped a client procure the copyright for a new game titled, ‘How To Play Dicetown, A Totally Player Friendly Game’.

This is just one of the many specialties of what we do as a firm. Business law, even in the sense of intellectual property or copyrighting can be complex. Relying on someone with a wealth of experience to handle all of the nuances to specialty law cases is vital to successfully helping a client.

In this case, a local Long Island business from Bayshore, New York, Dicetown Gaming Technologies, Inc., has benefited from the protection of a copyright.

Copyrighting games can be tricky, in and of itself, and the US Copyright Office gives a great breakdown of some of the myriad variables:

Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form.

Material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game or the pictorial matter appearing on the gameboard or container may be registrable.

If your game includes any written element, such as instructions or directions, the Copyright Office recommends that you apply to register it as a literary work. Doing so will allow you to register all copyrightable parts of the game, including any pictorial elements. When the copyrightable elements of the game consist predominantly of pictorial matter, you should apply to register it as a work of the visual arts.

The deposit requirements for copyright registration will vary, depending on whether the work has been published at the time of registration. If the game is published, the proper deposit is one complete copy of the work. If, however, the game is published in a box larger than 12″ x 24″ x 6″ (or a total of 1,728 cubic inches) then identifying material must be submitted in lieu of the entire game. (See “identifying material” below.) If the game is published and contains fewer than three three-dimensional elements, then identifying material for those parts must be submitted in lieu of those parts. If the game is unpublished, either one copy of the game or identifying material should be deposited.

Identifying material deposited to represent the game or its three-dimensional parts usually consists of photographs, photostats, slides, drawings, or other two-dimensional representations of the work. The identifying material should include as many pieces as necessary to show the entire copyrightable content of the work, including the copyright notice if it appears on the work. All pieces of identifying material other than transparencies must be no less than 3″ x 3″ in size, and not more than 9″ x 12″, but preferably 8″ x 10″. At least one piece of identifying material must, on its front, back, or mount, indicate the title of the work and an exact measurement of one or more dimensions of the work.

 

“Michael B. Schulman Procures Copyright for Client’s New Game” was written by Michael B. Schulman, Managing Attorney

Reaching a Verdict: Your Part in the Jury Process

Arriving home you find a Jury Summons in the mail, and immediately there is an image that comes to mind of sitting in a big room waiting to be called as part of a jury panel to start the selection process; for the jury, process is the operative word.  You are called, hopefully on the first day of your jury requirement, and you are now selected to sit on a jury.

The judge gives you the opening instructions to keep an open mind and to listen to the testimony and the other evidence.  All the while you are sitting in a chair within the juror box, listening to lawyers, witnesses, and a judge conduct a trial like actors in a play or a TV show.

But sitting through a trial as a juror is only part of the process.  After the trial is over, the judge now gives you the charge.  This is the law that you MUST apply to the facts to reach your verdict. You, as a juror, do not have the option of whether or not to apply the law.

The jury retires to render a verdict based upon all the evidence presented throughout the trial and the law as given to them by the judge.  The verdict phase may be complicated.

For anyone that is to sit on a jury, the discussion below will shed light upon the path of reaching a verdict.

One thing that you must do is weigh the credibility of the testimony of the witnesses that were called during the trial.  “Falsus in Uno” is a very important principal of law that may be applied by the jury in weighing the evidence. “Falsus in Uno” states that if a witness willfully testifies falsely to an important matter, then the jury may disregard the entire testimony of that witness. The rational underlying the above principal is that if a person lies about an important fact, then he/she is likely to lie about everything else. The jury may however still sift through the testimony of the lying witness and decide which parts are not to be believed as being truthful.  What to believe and how much of a witness’s testimony is credible is SOLELY within the purview of the jury, as the trier of fact.

The jury must also be instructed about the burdens of proof.  In civil litigation, the plaintiff has the burden of proof.

What does that mean?

The burden of proof requires that the plaintiff establish, by preponderance of credible evidence, that the plaintiff’s claim is true. Credible evidence is defined as the testimony and exhibits what the jury deems believable. Preponderance of credible evidence means that the greater weight of the evidence leans in favor of a party’s position.

What matters in “balancing the evidence” is not the number of witnesses or exhibits, but the quality of the evidence. The more convincing and believable a given testimony or exhibit is, the greater the quality of that evidence.  Therefore, if the evidence in support of plaintiff’s claim appears more likely to indicate what transpired than the evidence opposing the plaintiff, then the jury must find in favor of the plaintiff. The above finding is considered by preponderance of credible the evidence.

If the jury finds the supporting evidence to be even with the opposing evidence or tilting in favor of the defendant, even slightly, then the jury must find in favor of the defendant.

However, in order to return to the court with an acceptable verdict, five-six of the jurors should be in agreement. The jury will continue deliberation until five-six of the jurors agree. In the event that the jurors cannot come to an agreement, the jury may be discharged as long as they deliberated for a reasonable time. At that point the courtmay direct a new trial.

There are instances where both the plaintiff and the defendants have the burden of proof.

For example, in a case involving an accident, the plaintiff may claim that the defendant caused the accident and the defendant may claim either that the plaintiff was the sole cause of the accident or that the defendant is not the sole cause, but rather the plaintiff is also at cause. In response to defendant’s claim of co-liability, the plaintiff may claim that the defendant’s action is the substantial factor causing the liability. The plaintiff has the burden of proving that the defendant is negligent and a substantial factor in causing the accident. The defendant has the burden of proving that the plaintiff was negligent and a substantial factor in causing the accident.

The following scenario may arise in an automobile accident.

The defendant who is the owner of a car involved in an accident may claim that the driver was driving the car without his/her permission. However, there is a legal presumption that the driver drove the car with the permission of the defendant-owner. The plaintiff has the burden of proving that the defendant is the owner. Once the plaintiff met his/her initial burden, the presumption is triggered and the defendant-owner then has the burden of overcoming the above presumption. The defendant-owner is not typically held responsible for the acts of another person who drove the car without his/her permission. If the defendant-owner is able to overcome the presumption, then the plaintiff has the burden of proving that the driver had the permission of the defendant-owner to drive the car.

In certain cases, the jury must find that the plaintiff has met his/her burden of proof by clear and convincing evidence in order to return a favorable verdict. The standard of clear and convincing evidence is a higher burden than by preponderance of the evidence. Clear and convincing evidence means that there is sufficient evidence demonstrating a high probability that the incident occurred as claimed by the plaintiff. The standard of clear and convincing evidence is a higher burden than by preponderance of the evidence.

Examples of claims that require a burden of proof by clear and convincing evidence are:  fraud, malice, contracts between plaintiff and a deceased, incompetence, terminating life support for terminally ill patient, implied easement, title by adverse possession, contract reformation, appointment of temporary receiver, and paternity.

In deciding upon a verdict, sympathy for any of the parties is not to dictate their decision. The jury is not to take into account public reaction to their verdict. Whether or not their verdict will be viewed as popular is irrelevant. The above instruction goes to the principle that the only consideration to be taken into account while deliberating is the evidence presented during trial.

There are instances where a trial is split into two phases, the liability phase and the damages phase.  In the liability phase, the jurors will answer the question of who is responsible for the incident being litigated, i.e who is at fault and to what extent each party is at fault. The jurors do not consider the extent of the damages sustained during this liability phase. Any testimony regarding injury is not relevant and therefore must be disregarded by the jurors.

There are also unique situations where the jurors must be given special instructions. The jurors may be sitting in on a retrial. A retrial is where the case has been tried before, and for whatever reason, the case must be tried again. The jurors are not to draw any inferences from the fact that the case is being retried and the reasons for retrial.

The above is a snapshot of what is involved in rendering a verdict in numerous circumstances. Serving as a juror may seem overwhelming, especially when a person’s property and pursuit of happiness is being litigated, but sticking to the instructions that the judge gives and following the trial closely will greatly help the call for justice.

 

“Reaching a Verdict: Your Part in the Jury Process” was written by Posted by Michael B Schulman, Managing Attorney