As promised, we would discuss the standards of review commonly exercised by appellate courts, state and federal, when reviewing cases. The standard is sometimes said to represent a measure of “how wrong” the lower court’s decision must be to justify reversal. The standards of review can be summarized into three categories: (1) De Novo, (2) Manifest Weight of the Evidence and (3) Abuse of Discretion.  Here, we will discuss the second standard: Manifest Weight of the Evidence. 2.  Manifest Weight of the Evidence:  Under this standard, the appellate court is looking to fa ..read more

Our firm has prepared hundreds, probably thousands, of contracts over the last 30 years.  Boilerplate is a critical element in those contracts.  But why do lawyers use boilerplate when it gets a bad rap?  Here is a summary of what the contract scholars say. Agreements contain pages of “fine print,” buzz words or stock phrases commonly known as “boilerplate” (Snyder & Marabito, 2019). If a clause receives favorable treatment and is found enforceable by courts, there is a positive reinforcement that promotes use of that boilerplate (Williams, 2021; Kahan & Klausner, 1996 ..read more

In the recent judgment against the Trump organization, People of the State of New York v. Trump et al., Case No. 452564/2022 (“Judgment”), the New York judge decided the state had proven its case by the preponderance of the evidence, noting “the legislators expressly contemplated and intended for a preponderance of the evidence standard to apply.”   (Judgement, p. 75) In so ruling, the court rejected applying the “clear and convincing standard,” stating that “defendants [Trump et al.] have provided no legal authority for their contention that the higher ‘clear and convincin ..read more

Tom Stilp JD, MBA/MM, LLM, MSC In the recent criminal case of Michigan vs. Crumbley, an important incriminating document used against the mother of the school shooter was a drawing by her son, with a picture of a gun and the words: “Blood everywhere,” “The thoughts won’t stop Help me” and “The world is dead.”  The mother did not create the document.  But the document was admitted into evidence against the mother.  From an evidentiary standpoint, how? Documents are hearsay.  Hearsay is a statement or writing made by someone other than the witness.  Here, the witnes ..read more

Why do we have boilerplate in agreements if no one reads it?  Less than 1/10th of 1% (.001) of people actually click on “Terms & Conditions” to even glance at an on-line agreement (Synder, F. and Mirabito, A., “Boilerplate: What consumers actually think about it,” 52 Indiana Law Review 431 (2019)). Boilerplate is a term to describe stock language found in agreements.  Boilerplate consists of buzz words that are used over and over with little change, even though the boilerplate itself may be used in different agreements. According to one legal scholar, boilerplate is a trick (Boar ..read more

Tom Stilp JD, MBA/MM, LLM, MSC The topic of appeals has been in the news recently and, therefore, this edition of In the Loop will discuss the four types of appeals. The most common type of appeal is an appeal from a final order or judgment.  As an appeal as of right, the appellate court must accept a timely filed appeal to review the decision of the lower court.  The party against whom the judgment is entered must post an appeal bond, usually one and a half times the amount of the judgment, to stop enforcement of the judgment while the appeal is ongoing. In cases of large ..read more

Tom Stilp JD, MBA/MM, LLM, MSC Robert De Niro’s company, Canal Productions, recently lost a case involving a former employee, Graham Robinson, who successfully claimed gender discrimination.  In a Manhattan federal court, Ms. Robinson proved she was assigned “stereotypical female” job responsibilities.  From a legal standpoint, this is yet another example of a problem that could’ve been easily avoided. Ms. Robinson had the title of vice president of production and finance, although previously she was Mr. De Niro’s personal assistant.   Ms. Robinson made arrangements for Mr. Scor ..read more

Tom Stilp JD, MBA/MM, LLM, MSC Litigation is costly and time-consuming.  But if the facts of a case could be established at the beginning, the case would be resolved sooner and with less cost. Actually, there is a simple process that allows a party to establish facts early in the case.  The document is known as a Request to Admit Facts.  Under the Rules, the Request is served on the other party, who must respond within 28-days.  If the party fails to respond, all the facts are considered “admitted” by the court.  “Admitted” means the court will deem the facts prov ..read more

Tom Stilp JD, MBA/MM, LLM, MSC We offer three similar cases in which the employer lost each case, although in each case, the courts recognized the employee had been terminated for poor performance. In the first case, the employer offered a “minimum term of employment for 24 months.”  After 14 months, the employer terminated the employee “for cause” based on poor performance in failing to ensure timely shipments, control the plant’s costs, and otherwise attain performance benchmarks.  The problem was that poor performance was not a valid basis for termination when (1) performance benc ..read more

Tom Stilp JD, MBA/MM, LLM, MSC Will Rogers said, “Buy land!  They ain’t making any more of it.”  During this country’s worst depression, President Franklin Delano Roosevelt advised, “Real estate cannot be lost or stolen, nor can it be carried away.  Managed with reasonable care, it is about the safest investment in the world.” No doubt about it — Real estate can be an attractive investment, providing cash flow, appreciation and tax benefits.  (See Stilp, T. Making Money Going Into the Deal: The Art & Science of Real Estate, available on Amazon). But if a real ..read more