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Monthly Archives: August 2018

Convictions, Cross-Examination, Impeachment

When a witness is being cross-examined, it is generally considered fair game to attempt to impeach or discredit the witness by asking about any criminal convictions. Section 491.050, RSMo provides in relevant part: “any prior criminal convictions may be proved to affect [witness] credibility in a civil or criminal case and, further, any prior pleas […]

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No-Contest Clauses, Validity

No-contest clauses are frequently used in trusts and wills to prevent lawsuits challenging the validity of a will or trust. They typically provide that if someone challenges the document that the challenger is automatically disinherited. No-contest clauses are strictly enforced without regard to any exception based upon the good faith and/or probable cause of the […]

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Trust Protector: Powers, Duties, Limitations

An increasingly common technique used in trusts is to designate a trust protector. A trust protector is different than the settlor, trustee and beneficiary. Because the trust protector concept is relatively new, there has been uncertainty regarding the trust protector’s authority in trust administration, litigation and breach of trust suits. To address this uncertainty, Missouri […]

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Cross-Examination, Credibility, Impeachment

Credibility is always critical at trial. If a judge or jury does not find you credible, then they do not have to believe your testimony or claims. For this reason, the credibility of a witness is always relevant in a lawsuit. Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. 2010). After a witness testifies on […]

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Misappropriation of Name or Likeness

Misappropriation of name or likeness is one of the four general invasion of privacy tort claims (the others being false light invasion of privacy, intrusion upon seclusion and publication of private facts). The interest protected by the misappropriation of name or likeness tort “is the interest of the individual in the exclusive use of his […]

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Contract Penalty Provisions and Clauses

Liquidated damage clauses in contracts are enforceable, while penalty clauses are not. Paragon Group, Inc. v. Ampleman, 878 S.W.2d 878, 880 (Mo. Ct. App. 1994). The reason for this is that the policy behind remedies in the event of a breach of contract is to effect compensation, not a penalty. Luna v. Smith, 861 S.W.2d […]

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