DOCSLIB.ORG

Burdens of Proof Or Burdens on Truth?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Burdens of Proof Or Burdens on Truth? the evidence, the defendant wins.” But if you think those rules are driven by truth- finding or fairness, they’re not. Rather, On Reconsideration they seem to exist for the sake of having a common framework on which every BURDENS OF PROOF stakeholder in the dispute can rely as pro- viding the terms of engagement. OR BURDENS ON TRUTH? Let’s look at this more carefully. Burden of Proof Why do we have a burden of proof? Why KENNETH R. BERMAN does it belong to the party on the left side The author is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing of the v? Is this a good thing? Is there a Witness Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018). better way to do it? These questions are easy to answer on the criminal side. On the civil side, not so much. In a criminal case, the burden of proof is on the government, and it’s a heavy one. The government might have a strong case and great evidence to support it, but if the government fails to foreclose a simple doubt, that doubt, if reasonable, will al- low a defendant who committed a crime Two young siblings approach a parent. Only one can be telling the truth, but the to go free. “Tracy took my hairbrush,” says Alex. truth cannot be discerned from a mere This serves an important policy: “I did not. It’s not her hairbrush. It’s accusation and denial. Depriving a person of liberty is so destruc- mine. She took it out of my room, so I took Actually, there isn’t a single accuser. tive to the defendant’s humanity and po- it back.” Each child is an accuser, accusing the tentially so harmful to the community’s The parent must resolve the dispute. other of having taken something of theirs. conscience that we need ample protec- Who has the burden of proof? And each is a denier, denying having done tion against mistaken outcomes. We also Under our justice system, that’s easy anything wrong. need this protection to curb zealots within to answer. Alex does. Alex claims own- Of course, only one child has posses- the government from using the levers of ership. Tracy has possession. Alex has sion, and a convenient maxim says that a prosecution to terrorize those who are accused Tracy of a tort: conversion. In possession is nine-tenths of the law. But innocent but disliked. So we guarantee our system, the accuser has the burden why should that matter? If Tracy had defendants a lawyer, a trial, the right to of proof, and the opposing party’s pos- come to the parent while the brush was confront and interrogate their accusers, session is presumed to be rightful until still in Alex’s room, their roles would be the right to remain silent, the right not proven otherwise. reversed. Tracy would be claiming theft, to be convicted by improperly obtained But who should have the burden of Alex would be in possession, and Tracy evidence, and the right to have their guilt proof? That’s not so easy to answer, at least would have the burden of proof. or innocence determined by a neutral jury. not on the civil side of the justice system. Does Tracy’s entering Alex’s room and And on top of that, we give the govern- Not having heard any evidence, the taking the hairbrush justify shifting the ment the burden of proving the case be- parent has no basis to give even the burden of proof to Alex? yond a reasonable doubt, something ap- slightest benefit of the doubt to either It seems that our civil justice system proaching a moral certainty. sibling. Two children are arguing over has developed procedural rules of con- These safeguards no doubt allow some ownership of a hairbrush. Each makes venience, rules like “the plaintiff has the criminals to walk. But we tolerate some the same claim: “I am the true owner. My burden of proof” and “if the plaintiff fails mistaken acquittals for the sake of avoid- sibling is falsely claiming that I am not.” to persuade you by a preponderance of ing mistaken convictions. A wrongful Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be 1 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. conviction is an offense against morality. it revealed the strong maternal bond on made the most sense and to rule for that Not so for a wrongful acquittal. which Solomon could make the right party. They would say to weigh the evi- That explains why the government has decision. dence, weighing whatever evidence fa- the burden of proof in a criminal case and Assigning a burden of proof would vored a proposition against the evidence why the burden is so high. But it doesn’t have had no relationship to discovering that opposed it, without reference to a explain why, in a civil case, the burden of the truth. Not then. And not today. burden of proof. Jurors would decide the proof belongs to the plaintiff. For reasons unrelated to truth-finding, case by crediting whatever evidence they Let’s look at one of the oldest and most the burden of proof advantages one side at found the most believable, pretty much famous legal disputes. When two women the expense of the other. It tilts the play- like the Solomonic model. went to King Solomon, each claiming to ing field against the party who has it. If Today though, as the law has evolved, be the mother of the same baby, it would that party fails to persuade the fact find- the burden of proof belongs to the accus- have been terribly unfair had Solomon er that the party’s contention is true, that er. That favors the accused, the defendant. assigned the burden of proof to either of party loses, even if the contention is true. The accuser may have the truth on her side, them. To whom should he have assigned The party without the burden of proof but if she can’t persuade the adjudicator it? To the first woman who approached gets the benefit of the doubt. to believe her, then the accused, without him, claiming to be the true mother? To This isn’t to say that burdens of having to prove anything, will escape any the woman who happened to be holding proof are necessarily bad. It’s only to consequence and justice won’t be done. the baby when the claim was made? say they’re unnatural. They’re a human Had there been burdens of proof back invention, not driven by truth-finding. then as we now know them, Solomon They serve other purposes. For reasons unrelated might have said to the first woman: You’re As we’ve seen, in criminal cases claiming to be the true mother and that they’re meant to keep innocent people to truth-finding, the other woman is not. So you have the out of jail. But what purpose do they burden of proof. If you fail to persuade serve in civil cases? the burden of proof me that your claim is true, or if I find the Sometimes, a statute or common-law evidence evenly balanced, then you’ll lose, rule will assign issue-specific burdens of advantages one side and I’ll declare the other woman to be the proof for policy reasons. For example, to true mother. benefit accident victims, a statute might at the expense of the But that would have been arbitrary. make the vehicle owner vicariously lia- Were the evidence inconclusive, the wom- ble for the driver’s negligence, unless the other. an would have lost simply for coming for- owner proves that the driver was not op- ward first. And had Solomon given the bur- erating the vehicle for the owner’s benefit. So how did we move from the evenly den of proof to the other woman, it would Or to protect individuals from undeserved balanced instructions of the early 18th cen- have been equally arbitrary, with an equal reputational harm, a party asserting fraud, tury to the tilted instructions we use today? chance of an unjust outcome. After all, whether as a claim or defense, must prove Some procedural rules are codified in what hung in the balance was the awesome it with clear and convincing evidence. the Federal Rules of Civil Procedure and responsibility of uniting the child with the But aside from specially created bur- its state analogues. But they don’t mention true mother. Should such an outcome turn dens of proof on specific issues, what the burden of proof. on how the burden of proof is assigned? truth-seeking, justice-promoting ends Other procedural rules are nested in Solomon didn’t think so. Determined to are served by placing a general burden of case law. Those rules evolve. They mu- get his decision right, he neither needed proof on plaintiffs? tate. They creep into a case through skill- nor wanted a burden of proof. Applying a ful advocacy. That case then becomes a burden of proof would have risked pro- precedent, and a precedent often repeated ducing an outcome dependent on process. The Evolution of Burden of becomes a norm.
Load more

Recommended publications
  • Lesson Plan Overview
    Participant Workbook Lesson Plan Overview Course Asylum Officer Basic Training Lesson Asylum Eligibility Part IV: Burden of Proof, Standards of Proof, and Evidence Rev. Date September 14, 2006 Lesson Description This lesson describes the various standards of proof that are required in adjudicating affirmative asylum and credible fear cases. The lesson also explains the operation of the burden of proof in the affirmative asylum process. Field Performance Given a request for asylum to adjudicate, the asylum officer will Objective correctly apply the law to determine eligibility for asylum in the United States. Academy Training Given written and roleplay scenarios, trainees will correctly identify Performance Objectives which party bears the burden of proof and what standard of proof is required, and apply the law appropriately to determine eligibility for asylum in the United States. Interim (Training) 1. Distinguish the applicant’s burden of proof from the standards of Performance Objectives proof necessary to establish eligibility for asylum. 2. Identify the applicant’s burden of proof to establish eligibility to apply for asylum. 3. Identify applicant’s burden of proof to establish eligibility for asylum. 4. Identify types of evidence that may establish eligibility for asylum. 5. Identify DHS’s burden of proof in asylum adjudication. Instructional Methods Lecture, Discussion Student References Participant Workbook Method of Evaluation Observed Lab exercise with critique from evaluator, practical exercise exam, Written test US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION ASYLUM OFFICER BASIC TRAINING COURSE SEPTEMBER 14, 2006 ELIGIBILITY PART IV: BURDEN OF PROOF, STANDARDS OF PROOF, AND EVIDENCE AILA Doc. No. 19110711. (Posted 11/7/19) 1 Participant Workbook CRITICAL TASKS SOURCE: Asylum Officer Validation of Basic Training Final Report (Phase One), Oct.
    [Show full text]
  • The Respective Burdens of Proof in Title VII Cases: Price Waterhouse V
    The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals July 2015 The Respective Burdens of Proof in Title VII Cases: Price Waterhouse v. Hopkins Confuses the Issue Gregory T. Rossi Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Civil Rights and Discrimination Commons, Labor and Employment Law Commons, and the Law and Gender Commons Recommended Citation Rossi, Gregory T. (1990) "The Respective Burdens of Proof in Title VII Cases: Price Waterhouse v. Hopkins Confuses the Issue," Akron Law Review: Vol. 23 : Iss. 2 , Article 9. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol23/iss2/9 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Rossi: Burdens of Proof in Title VII Cases THE RESPECTIVE BURDENS OF PROOF IN TITLE VII CASES: PRICE WATERHOUSE v. HOPKINS CONFUSES THE ISSUE In August, 1982, a prestigious public accounting firm, Price Waterhouse, ("PW")1 nominated 88 candidates for partnership. Only one candidate was a woman. Her name is Ann Hopkins. This Note focuses on her employment discrimination action against PW, which the United States Supreme Court decided on May 1, 1989.
    [Show full text]
  • Trial Process in Virginia
    te Trial Process In Virginia A Litigation Boutique THE TRIAL PROCESS IN VIRGINIA table of contents Overview . .3 Significant .MOtiOnS .in .virginia . .4 . Plea .in .Bar . .4 . DeMurrer. .5 . craving .Oyer . .5 Voir .Dire . anD .Jury .SelectiOn .in .virginia . .6 OPening .StateMent . .8 the .receiPt .Of .e viDence . .10 MOtiOnS .tO .Strike . the .eviDence . .12 crOSS-exaMinatiOn . .14 clOSing .arguMent. .15 Jury .inStructiOnS . .17 Making .a .recOrD .fOr .aPP eal . .17 tiMe .liMitS .fOr .nO ting .anD .Perfecting . an .aPPeal . .18 key .tiMe .liMit S .fOr . the .SuPreMe .cOurt .Of .virginia . .19 THE TRIAL PROCESS IN VIRGINIA overview The trial of a civil case in Virginia takes most of its central features from the English court system that was introduced into the “Virginia Colony” in the early 1600s. The core principles of confrontation, the right to a trial by one’s peers, hearsay principles and many other doctrines had already been originated, extensively debated and refined in English courts and Inns of Court long before the first gavel fell in a Virginia case. It is clearly a privilege to practice law in the historically important court system of the Commonwealth of Virginia, and everyone who “passes the bar” and earns the right to sit inside the well of the court literally follows in the footsteps of such groundbreaking pioneers as Thomas Jefferson, George Mason, George Wythe, John Marshall, Lewis Powell and Oliver Hill. However, this booklet is not designed to address either the history or the policy of the law, or to discuss the contributions of these and other legal giants whose legacy is the living system that we enjoy today as professional attorneys.
    [Show full text]
  • Script for Pro Se (Non-Represented) Defendants
    A SCRIPT FOR PRO SE (NON-REPRESENTED) DEFENDANTS NOTE: IF YOU PLAN ON ADMITTING ELECTRONIC EVIDENCE (CD’S, DVD’S, THUMB DRIVES, ETC) YOU MUST CONTACT THE COURT AT LEAST ONE WEEK PRIOR TO YOUR TRIAL DATE. Call 385-6441 Introduction Court begins when the judge comes in. The Clerk says, “Please rise. Division … is now in session. The Honorable … presiding.” After the judge sits, the Clerk will ask everyone to sit down. Exhibits Before court, if you have any pictures or drawings or any other evidence you want to show at the trial, you should give them to the court clerk before the judge comes in so she can mark your exhibits. You should then show them to the prosecutor. During the course of the trial, if you want to refer to your exhibits and have the judge consider them in the evidence, you will ask the judge to admit them as evidence. The Prosecutor may argue whether they are admissible, but it will be up to the judge to decide if they can be considered. When it is your turn for trial, the judge will call your name and ask you to sit at the Defense table. The judge will make some preliminary Preliminaries statements and give you a general overview of how the trial will proceed. The judge will ask the Prosecutor, who is a City Attorney if he wishes to make an Opening Statement .The Prosecutor’s Opening Statement Opening Statements will explain what the charge is, and how his evidence will support that charge. The judge will then ask if you, the Defendant, wish to make an Opening Statement.
    [Show full text]
  • Law, Economics, and the Burden(S) of Proof
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2012 Law, Economics, and the Burden(s) of Proof Eric L. Talley Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, Law and Economics Commons, and the Torts Commons Recommended Citation Eric L. Talley, Law, Economics, and the Burden(s) of Proof, RESEARCH HANDBOOK ON THE ECONOMICS OF TORTS, JENNIFER ARLEN, ED., EDWARD ELGAR, 2013; UC BERKELEY PUBLIC LAW RESEARCH PAPER NO. 2170469 (2012). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1768 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Law, Economics, and the Burden(s) of Proof Eric L. Talley1 Forthcoming in Research Handbook on the Economic Analysis of Tort Law (J. Arlen Ed, 2013) Version 2.4, November 5, 2012 (Original version: March, 2012) Contents 1. Introduction ............................................................................................................................................... 3 2. Definitional Dark Matter ........................................................................................................................... 6 3. Law and Economics Analysis of the Burden of Proof ...........................................................................
    [Show full text]
  • Rape Shield Statute This Outline Has Several Objectives
    APAAC 2014 Seminar: Rape Shield Statute This outline has several objectives: (1) providing the reader with an overview of the historical development of the rape-shield doctrine in Arizona; (2) summarizing how Arizona courts have resolved certain federal and state constitutional challenges to the preclusion of evidence pursuant to A.R.S. § 13-1421 and its common-law antecedents; (3) identifying the current state of the law; and (4) offering practical advice about how to minimize the likelihood of reversal when evidence is precluded pursuant to Arizona’s rape-shield statute for not falling within one of the five exceptions set forth in Section 13-1421(A)(1)-(5). Historical development. 1. Several years before promulgating the Arizona Rules of Evidence, the Arizona Supreme Court “affirmatively established a rape shield that prohibits admission of a victim’s sexual history as evidence of bad character or consent except in highly particularized situations.” State v. Lujan, 192 Ariz. 448, 452, ¶ 14, 967 P.2d 123, 127 (1998) (citing Pope v. Superior Court, 113 Ariz. 22, 28–29, 545 P.2d 946, 952– 53 (1976)). 2. The event that triggered the adoption of the rape-shield doctrine in our state was the necessity of repudiating the following rule of law, which had allowed rape defendants to offer evidence of the victim’s prior sexual activity in order to establish consent to the charged act of intercourse: “If consent be a defense to the charge, then certainly any evidence which reasonably tends to show consent is relevant and material, and common experience teaches us that the woman who has once departed from the paths of virtue is far more apt to consent to another lapse than is the one who has never stepped aside from that path.” State v.
    [Show full text]
  • Second Circuit Clarifies Scope of Proffer Agreement Waivers
    G THE B IN EN V C R H E S A N 8 8 D 8 B 1 AR SINCE WWW. NYLJ.COM VOLUME 256—NO. 103 TUESDAY, NOVEMBER 29, 2016 Outside Counsel Expert Analysis Second Circuit Clarifies Scope Of Proffer Agreement Waivers lthough securing a coopera- both to white-collar criminal defense tion agreement after proffer- practitioners and to those who prac- ing to the government can tice in the gang-related context in which lead to enormous benefits for Rosemond arose. those who successfully navi- By And Proffer Agreements Agate the process, the negative conse- Harry Helen P. quences of a failed proffer are profound. Sandick O’Reilly The standard proffer agreements in Assessing the risks of whether to proffer the Southern and Eastern Districts of and enter into a proffer agreement is an Mezzanatto, 513 U.S. 196 (1995) that New York typically protect the defen- important part of federal criminal prac- the protections afforded under Rule dant from the government’s use of tice. These written agreements between 410 can be waived in proffer agree- factual assertions made during plea federal prosecutors and a subject of a ments, thereby opening the door for agreements. This is necessary because criminal investigation set the ground the factual assertions made in the proffer rules for the future use by the govern- are inevitably inculpatory: The point of ment of a defendant’s statements made The Second Circuit clarified a proffer is for a defendant to admit his during a proffer session. how and when certain defense participation in the crime and to explain The agreements typically involve a tactics at trial can open the who else was involved in committing the partial waiver of the protections pro- door to the introduction of the crime.
    [Show full text]
  • Supreme Court Narrows Reach of ADEA
    June 2009 Supreme Court Narrows Reach of ADEA BY NEAL D. MOLLEN, KENNETH W. GAGE AND DEREK BOTTCHER In a surprisingly broad ruling beneficial to and may target others. For so long as the employers, the Supreme Court held last week decision remains good law, however, the that an age discrimination plaintiff bringing a decision is good news for employers defending disparate-treatment claim must prove that age age discrimination lawsuits. was the “but-for” cause of the challenged employment action, rather than simply one of Question In the Lower Courts: What several motivating factors. Gross v. FBL Financial Constitutes a “Mixed Motives” Case of Services, Inc., 557 U.S. ___ (2009). Adopting Age Discrimination? this substantially greater causation threshold for Gross filed suit against his employer, FBL cases under the Age Discrimination in Financial Services, Inc., alleging that he was Employment Act of 1967 (“ADEA”), the Court demoted because of his age in violation of the rejected the burden-shifting approach that is ADEA. At trial, the district court instructed the available to Title VII plaintiffs in “mixed motive” jury that Gross would be entitled to a verdict in cases. It does not suffice, the Court held, for an his favor if he could prove, by a preponderance age discrimination plaintiff simply to show that of the evidence, that his age was a “motivating his or her age was one consideration among factor” behind FBL’s decision to demote him, i.e., many in the challenged adverse employment if age “played a part” in FBL’s decision. action; the plaintiff must show that the adverse Conversely, the district court instructed the jury decision would not have been made had the that even if age played a role in the decision, it employer not considered the plaintiff’s age.
    [Show full text]
  • A Pragmatic Approach to the Burden of Proof and Corroborating Evidence in Asylum Proceedings
    ARTICLES IN RE L-A-C-: A PRAGMATIC APPROACH TO THE BURDEN OF PROOF AND CORROBORATING EVIDENCE IN ASYLUM PROCEEDINGS PATRICK J. GLEN* TABLE OF CONTENTS INTRODUCTION ......................................... 2 I. THE BURDEN-OF-PROOF AND CORROBORATION REQUIREMENTS BEFORE THE REAL ID ACT OF 2005 ...................... 5 A. The Statutory and Regulatory Framework Governing Asylum Eligibility .............................. 6 B. The Board of Immigration Appeals' Approach to the Burden of Proof and Corroborating Evidence . 8 C. Corroboration in the Courts of Appeals . 11 II. THE REAL ID ACT OF 2005 ........................... 16 III. INTERPRETING THE REAL ID ACT CORROBORATION PROVISION . 19 A. Initial Decisions: Competing Conceptions of Plain Meaning 19 B. In re L-A-C-: Ambiguity and a Pragmatic Approach to Corroboration ................................ 23 * Adjunct Professor, Georgetown University Law Center; Senior Litigation Counsel, Of®ce of Immigration Litigation, Civil Division, United States Department of Justice. The views and opinions expressed in this Article are the author's own and do not necessarily represent the views of the Department of Justice or any component thereof. © 2021, Patrick J. Glen. 1 2 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:1 C. To Defer, or not to Defer? In re L-A-C- in the Courts of Appeals ..................................... 25 D. Assessing the Con¯ict ........................... 28 IV. ASSESSING IN RE L-A-C- UNDER CHEVRON . 31 A. Plain Meaning or Ambiguous? .................... 31 B. The Board's Pragmatic
    [Show full text]
  • Military Rules of Evidence
    PART III MILITARY RULES OF EVIDENCE SECTION I GENERAL PROVISIONS Rule 101. Scope the error materially prejudices a substantial right of (a) Scope. These rules apply to courts-martial the party and: proceedings to the extent and with the exceptions (1) if the ruling admits evidence, a party, on the stated in Mil. R. Evid. 1101. record: (b) Sources of Law. In the absence of guidance in (A) timely objects or moves to strike; and this Manual or these rules, courts-martial will apply: (B) states the specific ground, unless it was (1) First, the Federal Rules of Evidence and the apparent from the context; or case law interpreting them; and (2) if the ruling excludes evidence, a party in- (2) Second, when not inconsistent with subdivi- forms the military judge of its substance by an offer of proof, unless the substance was apparent from the sion (b)(1), the rules of evidence at common law. context. (c) Rule of Construction. Except as otherwise pro- (b) Not Needing to Renew an Objection or Offer of vided in these rules, the term “military judge” in- Proof. Once the military judge rules definitively on cludes the president of a special court-martial the record admitting or excluding evidence, either without a military judge and a summary court-mar- before or at trial, a party need not renew an objec- tial officer. tion or offer of proof to preserve a claim of error for appeal. Discussion (c) Review of Constitutional Error. The standard Discussion was added to these Rules in 2013. The Discussion provided in subdivision (a)(2) does not apply to er- itself does not have the force of law, even though it may describe rors implicating the United States Constitution as it legal requirements derived from other sources.
    [Show full text]
  • Parsons Brooks, Pierce, Mclendon, Humphrey & Leonard, LLP Suite 1700, 150 Fayetteville St
    PRIVILEGE, WORK PRODUCT, AND RELATED ETHICAL ISSUES FOR INSIDE COUNSEL IN LITIGATION AND INVESTIGATION Gary S. Parsons Brooks, Pierce, McLendon, Humphrey & Leonard, LLP Suite 1700, 150 Fayetteville St. Raleigh, NC 27601 919.573.6241 [email protected] I. Attorney-Client Privilege A. The Rationale A generation ago, the United States Supreme Court acknowledged that “the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citations omitted). The leading commentator on federal evidence summarized the rationale aptly: The privilege was, and continues to be, premised on the theory that the public benefit in encouraging clients to fully communicate with their attorneys in order to enable the attorney to act most effectively, justly and expeditiously in providing sound legal advice, outweighs the harm caused the loss of relevant information. Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence Manual § 18.03[1] (Joseph M. McLaughlin ed., Matthew Bender 2014). B. The General Rule – Federal Although not adopted as part of the Federal Rules of Evidence, Supreme Court Standard 503 is frequently cited by the federal courts and “is a powerful and complete summary of black-letter principles of lawyer-client privilege.” Id. The general rule, summarized in Standard 503(b), is: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer’s representative, or (2) between his lawyer and the lawyer’s representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a -1- representative of the client, or (5) between lawyers representing the client.
    [Show full text]
  • Anticipating Litigation in Contract Design
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2005 Anticipating Litigation in Contract Design Robert E. Scott Columbia Law School, [email protected] George G. Triantis Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons, and the Litigation Commons Recommended Citation Robert E. Scott & George G. Triantis, Anticipating Litigation in Contract Design, 115 YALE L. J. 814 (2005). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/316 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. ROBERT E. SCOTT AND GEORGE G. TRIANTIS Anticipating Litigation in Contract Design ABSTRACT. Contract theory does not address the question of how parties design contracts under the existing adversarial system, which relies on the parties to establish relevant facts indirectly by the use of evidentiary proxies. In this Article, we advance a theory of contract design in a world of costly litigation. We examine the efficiency of investment at the front end and back end of the contracting process, where we focus on litigation as the back-end stage. In deciding whether to express their obligations in precise or vague terms, contracting parties implicitly allocate costs between the front and back end. When the parties agree to vague terms (or standards), such as "best efforts" or "commercial reasonableness," they delegate to the back end the task of selecting proxies: For example, the court selects market indicators that serve as benchmarks for performance.
    [Show full text]