Defense Counsel Journal articles from January 1995

Defense Counsel Journal archives from January 1995

Malpractice claims by primary and excess insurers: is the honeymoon over?
January 1, 1995... THE elements of legal malpractice are the same as for any other type of negligence action--duty, breach, causation and damages. "An attorney who fails in his duty, causing actual loss to the client, is liable for the damages sustained." The duty...

Are constitutional challenges to punitive damages still available?
January 1, 1995... I join the Court's opinion on the understanding that it leaves the door open for a holding that the due process clause constrains the imposition of punitive damages in civil cases brought by private parties. -- Justice Brennan, concurring...

Admitting computer animations: more caution and new approach are needed.
January 1, 1995... COMPUTER-generated evidence has been admitted as both substantive and demonstrative evidence. Computer simulations are admitted under high standards because they draw new conclusions for a jury. Computer animations, on the other hand, are...

Indoor environment: regulatory developments and emerging standards of care.
January 1, 1995... AVERAGE Americans spend 90 percent of their lives indoors, so the air quality of the indoor environment has enormous health, economic and legal implications.(1) Often indoor air quality is significantly worse than the air outside. A five-year...

Enforceability of non-competition clauses affecting lawyers.
January 1, 1995... AS MORE law firms break up and lawyers change firms more frequently, there is an emerging interest in the enforceability of noncompete clauses as used by lawyers in the law firm setting. To begin, Rule 5.6 of the American Bar Association...

Liability insurance coverage for the tort of conversion.
January 1, 1995... THE TORT of conversion, or the wrongful withholding of property, has received little attention from the standpoint of liability insurance coverage issues. Prosser called it the "forgotten tort."(1) Apparently it is not well understood and...

Damages recoverable on tort theories in construction cases.
January 1, 1995... DEFENSE COUNSEL cringe at the thought of damages--whether tort, contract or statutory. After all, clients are not supposed to lose on liability, so why should they have to think about damages? But our clients occasionally do lose. As few...

"Restored recollections": claims based on repressed memories of abuse.
January 1, 1995... AS LAWYERS, we are familiar with the term "refreshed recollection." Witnesses do not have perfect memories, and their credibility depends, in large part, on their ability to remember critical facts. Under the Federal Rules of Evidence,...

Waiver of subrogation and allocation of risk in construction contracts.
January 1, 1995... SUPPOSE an insurer issues a policy to an owner or general contractor covering a building under construction and subsequently pays the insured under the policy for damages caused by the alleged negligent acts of a contractor, or a subcontractor or...

Annual survey of fidelity and surety law, 1994. (part 1)
January 1, 1995... I. PUBLIC CONSTRUCTION BONDS A. Miller Act Bonds 1. Procedural Issues Ordinary contract issues not otherwise preempted by the Miller Act are to be resolved by applying state law, including formation of contract and...

A sexual harassment rating scale for emotional distress.
January 1, 1995... WHILE the number of sexual harassment lawsuits is increasing, a consensus regarding what behavior constitutes that harassment is yet to be achieved. Inasmuch as perception plays a pivotal role in judgments of sexual harassment, how people view...