Defending Fraud Cases with Particularity (Specificity)

  • October 11, 2016

Defending fraud cases – enforcing the requirement of pleading fraud with particularity (specificity).

We often observe that claims in business and real estate disputes include allegations of fraud. Fraud allegations can be both upsetting and costly to resolve.  Fraud claims often assert unethical or criminal conduct, knowingly perpetrated by person accused.  Fraud claims might also be phrased as a negligent misrepresentation, which is just slightly less inflammatory.

Defending fraud claims requires some special strategies. At the most basic level, if requested, courts will require detailed allegations of fraud in comparison to other kinds of claims.  Thus, while it might be sufficient to generally allege that a defendant failed to exercise due care and thus was negligent in operating a vehicle leading to a car accident, courts will typically require considerable factual detail in fraud allegations, including the date, time and place of the fraudulent communication and what exactly was fraudulent or dishonest.  We believe it is most effective to start pursuing this detailed information early in the case.

In our experience, in both business and real estate cases, the alleged
real-estate-listings-fraudfraudulent actions of various parties are often lumped together collectively and are not specifically pleaded. In a fraud case, being lumped together with others’ wrongful conduct is both upsetting and complicates each individual’s defense.  Using procedural rules that require specificity in fraud allegations, we have found that courts are receptive to granting pre-answer motions seeking more detailed fraud allegations so that our clients can identify exactly what is attributed to them as opposed to all of the defendants collectively.

If you have been sued for fraud in a business or real estate transaction, the best time to start seeking specificity is through a pre-answer motion to dismiss or a motion for a more definite statement.  By doing so, there is a good chance the court will require the plaintiff to plead their fraud allegations against you and any other defendants with great specificity (and individualized per each defendant), which will provide better clarity and efficiency in defending your position as the case unfolds.  Incline Law Group LLP has had recent successes in various cases pursuing this strategy to the ultimate benefit of our clients.

30th Anniversary of The U.S. Supreme Court’s Summary Judgment Trilogy (June 25, 1986)

  • June 24, 2016

To be effective lawyers, sometimes we have to be a little bit nerdy.  We have to read lots of statutes and cases to provide legal clarity and best represent our clients.US Supreme Court Reports - books

Thirty years ago, the United States Supreme Court handed down a trio of decisions that dramatically changed the way in which lawyers argue and judges decide motions for summary judgment in state and federal courts, including Nevada and California. The trio of decisions issued June 24, 1986, were the following:

 

  1. Celotex Corp. v. Catrett, 477 U.S. 317, 322-27 (6/25/1986) — established new burdens of production, persuasion, and proof for summary judgment motions, and held that a defendant moving for a summary judgment only needs to show that the plaintiff lacks evidence to support a required element of its case.

 

  1. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (6/25/1986) — authorized the use of a heightened evidentiary burden of proof which would be applicable at trial when ruling on a pre-trial motion for  summary judgment — for example, the burden of “clear and convincing evidence” to prove a defendant’s actual malice in a public figure libel case.

 

  1. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 596-98 (3/26/1986) – decided three months earlier — ruled that  the court may dismiss an inherently implausible antitrust claim based on an alleged conspiracy to fix predatory prices. “If the factual context renders respondents’ claims implausible, i.e., claims that make no economic sense, respondents must offer more persuasive evidence to support their claims than would otherwise be necessary.”

 

Perhaps we are nerds for celebrating the evolution of civil practice which has taken place in the wake of the summary judgment trilogy 30 years ago.  But these cases and the impact they have had on state and federal practice are critical to the way in which we plan litigation and assess the viability of pretrial motions designed to end cases as soon as possible. Before the trilogy of cases, there was a long history of state and federal court decisions which made summary judgment practice often ineffective except in the narrowest kinds of cases. Following the summary judgment trilogy, the use of summary judgment motions has attained its proper status as a viable tool to ensure the just and speedy resolution of all civil cases, consistent with rules of civil procedure.  These cases are a focal point of civil practice and the little lawyer nerds in us would like to share their importance with our readers.

 

Absolute Privilege in Commenting to the Media About Pending Litigation

  • March 19, 2015

In litigation, normally any statements made during the litigation process are considered to be absolutely privileged. That means such statements are not actionable as libel or slander (often referred to as defamation).

privilege

However, what if a litigant comments to a newspaper (or other media outlet) about the pending litigation or another party?

The Nevada Supreme Court recently held in Jacobs v. Adelson (325 P.3rd 1282, 130 Nev. Adv. Op. #44, May 2014) that a litigant’s comments to a newspaper about another party in the case are not absolutely privileged. The court allowed a claim for defamation to proceed against the party making statements to a newspaper that could be considered false or malicious.

The court adopted the majority rule that the absolute privilege does not apply to a “mere observer” (the newspaper). The privilege is only in place to protect and encourage free flowing communication during the litigation. The court distinguished between “bona fide litigation activities and a public relations campaign.”

The case suggests that comments made in social media are also not protected as privileged statements. Social media may be the ultimate “observer” of our day. So, be careful what you say or post.