It is an old maxim of barristers that you should not ask a witness a question in court to which you do not already know the answer. We are also told that we are our own worst lawyers. Both principles proved to be very true in the following record of a U.S. criminal case, much to the loss of the accused: United States Court of Appeals District ofColumbia Circuit. Joseph NANCE, Appellant,v.UNITED STATES of America, Appellee. Defendant was convicted of robbery. From the judgment of the United States District Court for the District of Columbia, Edward A. Tamm, J., the defendant appealed. The Court of Appeals, Bastian, Circuit Judge, held that evidence that the accusedasked a witness at the preliminary hearing how the witness knew it was the accused when he had a handkerchief over his face was properly admitted at the trial as an admission, since there was no compulsion to ask the question, even though the accused was not a lawyer and may have been in unfamiliar surroundings, and that the evidence sustained the conviction. Evidence that at preliminary hearing accused asked witness “How do you know it was me when I had a handkerchief over my face?” was properly admitted at trial for robbery as evidence and an admission of guilt. 299 F.2d 122, 112 U.S.App.D.C....

In the recent case of Edmond de Rothschild Securities (UK) Ltd v Exillon Energy Plc in the Queen’s Bench Division (Commercial Court) [2014] EWHC 2165 (Comm) the court had to deal with the interpretation (construction) of contract language for the purpose of deciding when a “success fee” was due. The court held in this case that the correct construction of a contract for the provision of corporate advisory and strategy services meant that the service provider’s right to a success fee was not dependent upon the service provider being an effective cause of the “success” as defined in the contract. As long as the “success” was achieved, the service provider was entitled to the success fee. The crucial clause read as follows:  “In consideration for the services set out herein, the Company agrees to pay to [Rothschild] a fee payable as follows:a) a retainer of $50,000 per month… b) a success fee of $500,000, net of the retainers paid under (a) if a resolution to the issues posed by Worldview’s requisition has been achieved, such achievement being assessed because one or more of the following has occurred:    i. Worldview has indicated a willingness to cease hostilities;    ii. the prospect of future Worldview action is agreed between the Board and [Rothschild] to be remote;    iii. Worldview has reduced its shareholding in the Company to below 5%;    iv. a strategy has been developed that will be/can be implemented such that the negative impact of future Worldview action is agreed between the Board and [Rothschild] to be negligible; and    v. The Company has been able to successfully launch its proposed bond issue; …” The court decided that the above did not mean that the claimant had to be the effective cause of the listed events. This interpretation was supported by two main considerations. Firstly, it would have been very difficult, if not impossible, for the claimant to prove that its work was an effective cause of the sale of shares. Secondly, the reason for the sale did not matter to the other party: all that mattered was that the shares had been sold. The above was not regarded by the court as forming a contract of agency. In any event, the general principle that an agent’s right to commission is dependent on its being an effective cause of the success is subject to any special terms or other indications in the contract. The above construction, it was held, did not provide the claimant with an unfair “windfall” and it was not contrary to business common sense. Nor was there anything contrary to business common sense in entitling the claimant to a success fee in the circumstances. Thus, the court leaves open the...

It is a common device (and incentive) in the business world to provide for success fees in the event of certain results occurring. But does the performing party have to demonstrably cause such events? Could we claim a success fee for the sun rising in the morning? A recent English High Court case approaches this matter as a question of contract interpretation in a business context. Miscellaneous: Lawyers ask questions all the time. That is often what they get paid for. But the skill is in asking the right questions at the right time and knowing when not to ask a question at all. A convicted criminal in the United States finds this out the hard way on page 2. Stuart...

Last month we had UK “dog law”, so I thought we could balance it out by crossing the Atlantic Ocean and look at the “lemon law” website of what would appear to be a legal advocate for the Californian citrus industry.   But if you were to know that so-called lemon laws in the U.S. relate to defective products (originally automobiles cf. German Montagsauto ), then perhaps the website makes a bit more sense: For more than 15 years, lawyer Elizabeth Agmon Gayle has been one of California’s premier Lemon Law legal advocates. As a highly experienced California lemon law attorney and former counsel for a major auto manufacturer, Ms. Gayle has extensive knowledge of both sides of the California Lemon Law. As a client-focused attorney, she has seen countless cases to successful conclusion for many consumers, both those owning or leasing high-end foreign cars and those with moderately priced domestic vehicles.Ms. Gayle works directly with consumers to dispute cases with both auto manufacturers and dealerships.What is The Lemon Law?Lemon Law is the common term used to describe a body of consumer protection laws in California outlined in the Song-Beverly Consumer Warranty Act. It got its nickname because people have traditionally referred to troublesome vehicles as “lemons.”The Song-Beverly Consumer Warranty Act requires the manufacturer of a new or used vehicle sold or leased with a manufacturer’s written warranty to buy back or replace a vehicle that hasn’t been repaired within a reasonable number of repair attempts. The California Lemon Law covers various vehicle types, including cars, trucks, vans, SUVs, motorcycles, motor homes as well as boats....

It is not unusual in daily business situations to have an oral (parol) contract or collateral agreement. But the perils of this situation are widely reported especially in terms of proving the existence and exact conditions of such agreements. It was therefore rather refreshing to see the courts supporting a “happy end” (for at least one party) in such a situation. This case also provides an interesting insight into the day-to-day practicalities of the rules of interpretation and the burden of proof for implied contracts and terms. In the case of Kucukkoylu v Ozcan (30 June 2014 [2014] EWHC 1972 (QB)) the trial court was required to settle a dispute between the claimant (C) and the defendant (D) regarding their entitlement to lottery winnings. D was employed by C. He had had a dream that he was holding a large bundle of cash with C standing in front of him. D was a strong believer in the power of dreams and interpreted it to mean that he and C would win the lottery. On January 30, 2012 a ticket was bought for the EuroMillions lottery which won the raffle prize of £1 million, which C claimed. It was D’s case that he and C had agreed, either explicitly or impliedly, to jointly purchase the ticket and that he was entitled to one half of the proceeds of the win in accordance with their agreement. It was C’s case that there had been no discussion or agreement as to sharing the ticket. Judgment was entered by the court accordingly. For D to succeed he would effectively have to prove that a contract existed with C for the purchase of a lottery ticket jointly and that the terms of the contract gave rise either expressly or impliedly to an equal share of the beneficial interest, in the form of the prize money. On the balance of probability, D had had a dream which involved him and C and a large sum of money. D had then pestered C into playing the lottery with him. D suggested and C agreed that they would play the game “50/50” or “half and half” or words to that effect. They both contributed equally to the purchase price of the ticket. D went to the shop to play the lottery and gave C the tickets. D retained the receipt and the play slips. C later discovered that he had won and D challenged him about the ticket. C became angry and threatening and swore at D. Subsequently, through intermediaries, C attempted to persuade D to drop his claim. The effect of those conversations was that C and D had entered into a contract to jointly play...

Contracts should not be a lottery. Get it signed and in writing: this is not only a rule of common sense but also a fundamental principle for commercial contracts and indeed, any agreement. Although they may help you with luck at the lottery (as we see in one of this month’s cases), dreams and parol contracts are not a good foundation for doing business. In contrast, on page 2 you will discover how working with the law can be a very bitter experience. 🙂 Stuart...