Some Recent Practice Tips

Although belatedly, I read the July 2008 edition of Litigation News, a publication of the Section of Litigation within the American Bar Association this weekend. In the July 2008 edition, I found a few very significant practice tips worthy of mention.

Foremost, an attorney representing a defendant in litigation or a party who fears they may find themselves becoming a defendant for whatever reason must inquire of the client’s available insurance policies. The failure to make such an inquiry could lead to malpractice and exposure. See Diemer, Mary S. “Section Program Highlights Insurance Traps for Litigators,” p. 3, Litigation News, July 2008.

I recommend that an engagement letter include a specific paragraph discussing insurance policies and their potential application to the client’s representation and defense. Additionally, it may be worthwhile to supplement the engagement letter with a specific document that highlights and reaffirms aspects of an actual conversation with the client about discussing the applicability of insurance policies in their representation. I recently read a similar rider with respect to preservation of evidence used by a colleague’s firm.

The Diemer article also recommends requesting all insurance policies from the client.

As cited in the article, additional information is available at:

I also read an article that recommended against using the auto-complete function for email addresses available in email clients. I believe this sound advice. See Teeters, Jeffrey R. “Making Technology Work for You,” p. 5, Litigation News, July 2008.

One should also be careful about using copyrighted works in litigation. Shell v. DeVries, 2007 U.S. App. LEXIS 28317 (10th Cir. Dec. 6, 2007). It should not be presumed that the use of copyrighted materials in litigation automatically obtains fair use protection. DeVries holds that the use should be analyzed on a case-by-case basis.

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