Do You Have a Case for That?

The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in the Wisconsin Lawyer, Vol. 88 No. 11 December 1, 2015:  

The willingness to question authorities makes lawyers a dynamic and powerful profession and force.

Have you ever been in a debate with a colleague about a legal issue and, after a lengthy discussion in which you feel as though you have articulated several good reasons for your position, your colleague ends the exchange with, “Do you have a case for that?” I hate that. I think it is a cop-out.

PRACTICE 101: STRATEGY FOR ANSWERING A CIVIL COMPLAINT

The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in Young Lawyer Division News, State Bar of Wisconsin, June 2014, Vol. No. 17, Issue No. 3:

For the majority of the nine years since I graduated law school, I have been primarily a civil ligation attorney.  I have handled CERCLA Superfund litigation, complex civil matters, commercial litigation, construction litigation, real estate disputes, trust and estate matters and various other matters.  I have appeared in federal courts, circuit courts, probate courts and district courts in Michigan and Wisconsin.  There are basically three different ways I have seen complaints be answered and I use all three approaches for different reasons.

The Ethics of Marijuana Business Law – Better Call Saul

I love the show Better Call Saul.  Jimmy McGill aka Saul Goodman does an excellent job portraying the struggles so many young lawyers face finding their place in the legal business.  The business of law fascinates me.  I was discussing Jimmy’s latest case the other morning – a suit against a fraudster nursing home – when one of my partners commented in jest, “You’re always looking for a get rich quick scheme.”  He has a point.  I love talking about ways you could make money in the legal business.  But I usually only act on those thoughts in areas of law that truly interest me.  A suit against a nursing home would not be that much of a stretch for me.  The focus of my practice is litigation.  Now I just need a client who’s getting ripped off by someone with a deep pocket.

Do As I Say Not As I Do?

“Evans a partner in law firm” was the title of an article in The Mining Journal earlier this year.  That’s not true.  I am not a partner, and none of my “partners” are partners either.  Mistakes by newspapers are one thing, but this common error has legal ramifications when committed by so-called “partners”.

Professionalism & Professional Courtesy: The Court Never Should Have Had to Decide Booher v. Sheeram

The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in Young Lawyer Division News, State Bar of Wisconsin, January 2014, Vol. No. 17, Issue No. 1:

A recent article on Above The Law (AboveTheLaw.com) entitled, “Always Follow The Rules” discusses a 2011 Indiana Court of Appeals decision that, in my mind, nicely sets the stage for a discussion about professionalism and professional courtesy. 

In Michigan, Some Parol Evidence should be Barred when a Contract is Partially Integrated and Some Parol Evidence should not be Barred when a Contract is Partially Integrated

The parol evidence rule generally provides that oral evidence cannot be admitted to vary the written terms of an unambiguous contract. Goodwin, Inc. v. Coe, 392 Mich. 195, 204, 220 N.W.2d 664, 668 (1974).  Key questions are whether the proffered oral evidence is inconsistent with the written agreement; see Union Oil Co. of California v. Newton, 397 Mich. 486, 488, 245 N.W.2d 11, 12 (1976); and whether the parties intended the issues raised by the parol evidence to be conclusively determined by the written agreement. See NAG enterprises, Inc. v. All State Industries, Inc., 407 Mich. 407, 410, 285 N.W.2d 770, 771 (1979).  

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Seven: The Supreme Court Restored the Distinctions Between Contribution and Cost Recovery

This is the seventh and final blog entry in a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will summarize the entire overarching argument of this series of blog entries that cost recovery and contribution were distinct remedies prior to SARA, then the Circuit Courts blurred the distinctions between these two remedies, and now, starting primarily with Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), the Supreme Court and other courts have begun restoring those distinctions that existed prior to SARA.

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Six: The Overlap Between Cost Recovery and Contribution

This is the sixth of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will discuss how the Supreme Court restored the overlap between the cost recovery and contribution remedies.

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Five: Atlantic Research and Burlington Northern Implications for Contribution

This is the fifth of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will discuss discussed how U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007), Burlington Northern & Santa Fe Ry. v. United States, 129 S.Ct. 1870 (2009), and other cases have continued to restore the nature of a contribution action to the way it was before SARA was enacted. 

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Four: Atlantic Research Implications for Cost Recovery

This is the fourth of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims. It will discuss how U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007), and other cases have begun restoring the nature of a cost recovery action to the way it was before SARA was enacted. 

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Three: Cooper Industries Implications for Contribution

This is the third of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will discuss how Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), and other cases have begun restoring the nature of a contribution action to the way it was before SARA was enacted. 

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part Two: the Circuit Courts Blurred the Distinctions Between Cost Recovery and Contribution After SARA

This is the second of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will show how circuit courts blurred the distinctions between cost recovery and contribution after SARA was enacted.  These distinctions were discussed in my first blog entry to this series, which discussed the pre SARA decisions cited in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161-62 (2004).  The overarching argument of this series of blog entries is that cost recovery and contribution were distinct remedies prior to SARA, then the Circuit Courts blurred the distinctions between these two remedies, and now, starting primarily with Cooper Industries, the Supreme Court and other courts have begun restoring those distinctions that existed prior to SARA.

CERCLA 107 COST RECOVERY v 113 CONTRIBUTION: Part One: Cost Recovery and Contribution Were Distinct Remedies Prior to SARA

This is the first of a series of blog entries regarding the evolution of CERCLA §107 cost recovery claims and CERCLA §113 contribution claims.  It will show that prior to SARA cost recovery and contribution were distinct legal remedies by discussing the Pre-SARA cases the Supreme Court cited in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 161-62 (2004).  The discussion is limited to these cases cited by the Supreme Court because, by citing these decisions, the Supreme Court was foreshadowing where the case law was likely to return.  The overarching argument of this series of blog entries is that cost recovery and contribution were distinct remedies prior to SARA, then the Circuit Courts blurred the distinctions between these two remedies, and now, starting primarily with Cooper Industries, the Supreme Court and other courts have begun restoring those distinctions that existed prior to SARA.   

Understanding Akzo Coatings, Inc. v. Aigner Corp.

Decisions regarding whether a suit is one for cost recovery, under CERCLA §107, or one for contribution, under CERCLA §113, as the Seventh Circuit recognized, “have not been notable for their clarity.” Rumpke of Indiana, Inc. v. Cummins Engine Co., Inc., 107 F.3d 1235, 1240 (7th Cir., 1997).  This is particular so for the Seventh Circuit’s own decision three years earlier in Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir., 1994).  This blog entry will argue that Akzo was decided from a time period when the Seventh Circuit did not view divisibility as negating joint and several liability.

A Court Cannot Exercise Equitable Discretion on Summary Judgment

The Seventh Circuit’s 1953 opinion in Seaboard Surety Co. v. Racine Screw Co., 203 F.2d 532, “has been little cited, and criticized when it has.” Reliance Ins. Co. v. Zeigler, 938 F.2d 781, 783, n.2 (7^th Cir., 1991).  However, it is still good law in the Seventh Circuit and it has major implications in CERCLA contribution, and other equitable, actions.  This blog entry will argue that Seaboard Surety correctly held that a court cannot properly exercise equitable discretion on summary judgment. 203 F.2d at 534.   

Anatomy of a Mortgage Loan Flip

       This entry to my blog is about scam I learned about five years ago while working for a title company in Wisconsin.  I will refer to it as a mortgage loan flip.  Brokers utilize it to generate additional commissions for themselves, which costs borrowers and investors thousands of dollars.  To demonstrate how the scam works consider the following rate sheet:

The Cost of a “No Closing Costs” Mortgage

About five years ago I worked for a title company in Wisconsin and frequently closed residential real estate mortgage transactions.  This included both new loans for home purchases and the refinancing of existing loans.  Often times the borrowers would get what was referred to as a “No Closing Costs” loan.  This article will explain the cost of a “No Closing Costs” mortgage loan at that time.  Additionally, I hope that in the comments readers will let me know if this is still how it works in the mortgage industry.