Saturday, September 26, 2009


We are in the pre-suit phase of an upstairs-downstairs dispute between neighbors that was touched off by a cat in the upstairs unit raising the lever-action faucet in the kitchen sink when no one was home. Water damage to the unit below was the result.

Getting to yes on a settlement has been a challenge because our opposing counsel and the occupants he represents appear to have an agenda. So when the facts and the law collide with his assumptions, he ignores the facts and the law and clings to assumptions.

His "proofs" of damage appear to have been "manufactured" to serve an agenda that preceded the proofs, and his assumption that the upstairs neighbor was negligent is contrary to law.

His error is obvious. He has forgotten the basic rule on this subject that is drilled into first-year law students: Every dog gets one bite. True, there is no dog in this fight, and no bite, for that matter. But there is a question of notice.

Under the common law, the owner or keeper of a dog was liable if the dog bit someone only if he was on notice that the dog was prone to bite people. So the first bite was "free," if you will. The first bite put the owner on notice of the dog's viciousness. A statute that has since been enacted imposes strict liability: If an unprovoked dog bites someone, the owner is liable, without regard to notice or carefulness.

Common law negligence governs the case at hand. Our opponents seem to know this but to have forgotten the notice element of the negligence case. They must plead and prove that the owner or keeper of the cat was on notice that the cat was capable of turning on the faucet.

Sunday, September 13, 2009


We went to trial against a first-time homebuilder and got a judgment that required him to refund the full purchase price to our client ($280,000.00) and take back a deed to the house. The defendant asserted that he was a "casual seller" on the grounds that he had lived in the house after he built, and therefore he was liable, if at all, only for damages (e.g., costs of repair).

Cross examination of him at the end of trial showed that he was a "builder-vendor" and as such liable to take back the house and refund the purchase price. A snapshot of the house and its front lawn clearly showed a "for sale" sign from one of the national real estate agencies. Under it was a little white sign that could not be read with the naked eye. But a magnifying glass showed that the sign said the house had been built by the defendant's home-building company.

The snapshot was shown to the defendant, who said the white sign was too small to read. The magnifying glass was pulled out and handed to him. "Try this." The defendant pushed aside the glass and the photo, looked the judge in the eye, and told him the sign said the house had been built by his company.

Result: Instead of a judgment for damages, which would have meant that our client had to keep the house, there was a judgment for rescission: The defendant took back the house and refunded the purchase price.

Tuesday, September 8, 2009


Books I've been reading and recommend:

Anonymous Lawyer by Jeremy Blachman
Right-on description of the insanity of large firm law practice.

Team of Rivals by Doris Kearns Goodwin
Best Christmas present I received this past year. Thanks to my wonderful wife I enjoyed hours of insight into one of Illinois' best lawyers.

Miles Gone By: a literary autobiography by William F. Buckley, Jr. and from his son, Christopher Buckley, Losing Mum and Pup. Father and son were two very different people.

American Lion by Jon Meachem
A great birthday present. I'm a quarter of the way through. So far, so good.

Saturday, September 5, 2009


by David McCarthy

Enforceable covenants not to compete are, like giant pandas, few and far between.

Because they are restraints on trade.

The law abhors restraints on trade, and therefore covenants not to compete will be scrutinized with care to ascertain whether they do or do not prevent competition per se. One object of this scrutiny is an element that is always indispensable to formation of a contract but usually a matter of indifference: consideration, or what might be more easily understood as quid pro quo, though the scholars cringe when the terms are used interchangeably. Consideration is the "great divide" of contracts, the element which separates promises that will be enforced from those that will not.

When the contract under examination is a covenant not to compete, the law will take pains to examine consideration for its presence and for its adequacy.

Often enough the consideration for a covenant not to compete is cast in terms of continued employment. Is that consideration? Yes but only when the employment continues for a "substantial" period of time following formation of the agreement. What is a "substantial" period of time? There are decisions holding that employment for more than two years following formation of the agreement qualifies as "substantial."

One way to eliminate the uncertainty as to whether the continued employment is or is not "substantial" is to offer a different form of consideration, namely, a definite and substantial sum of money that is over and above what would otherwise be the employee's due, e.g., $250.00.

Consideration is a necessary but not sufficient condition. Its absence is fatal to the existence of a contract but its presence does not, in and of itself, make the agreement enforceable. There would be further scrutiny to ascertain whether a legitimate and protectible business interest of the plaintiff-employer is at stake and whether the restrictions in the agreement in question exceed what is reasonably required to protect those business interests.