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Category: Civil Litigation, Real Estate

Medical Testimony, Experts

Depending on the nature of the case (e.g., medical malpractice, trust/will challenges for lack of capacity or undue influence, etc.), medical testimony is often crucial. The qualification of a physician as an expert is generally within the trial court’s substantial discretion. Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo.Ct.App.1978). Generally, a practicing physician, even when […]

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Best Evidence Rule, Original Documentation

The best evidence rule generally requires that only original documentation may be admitted as evidence at trial to show the terms of the document/writing. A duplicate is not admissible under the best evidence rule. Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481,, 484 (Mo. Ct. App. 1995). It is a narrow rule and only applies […]

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Law of the Case Doctrine, Re-litigation

There are numerous legal theories and arguments which prohibit the re-litigation of certain issues that were previously decided (e.g, collateral estoppel, res judicata). One such theory — the “law-of-the-case doctrine” — dictates that a previous holding or finding in a case constitutes the law of the case and precludes re-litigation of the issue on remand […]

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Mary Carter Agreements, Litigation Settlements

In multi-party litigation, sometimes some but not all parties will reach a settlement agreement. These are broadly referred to as “Mary Carter Agreements.” They can be signed for any number of reasons strategically. The Missouri Supreme Court has found that a typical Mary Carter agreement has the following features: 1) The liability of the settling […]

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Timely Notification, Insurance Policy

To claim benefits under an insurance policy, you generally must comply with all of the obligations under the policy on your end. This includes timely notification of a claim. What is considered “timely notice”? It will depend on the language of the insurance policy, but, without any more clear deadline, the insured must provide prompt […]

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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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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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Preserving a Motion for JNOV

A motion for judgement notwithstanding the verdict (“JNOV”) is an after trial motion where a party asks the Court to overturn the jury’s verdict. The issue with a JNOV focuses on whether a plaintiff made a submissible case — that is, one which presents substantial evidence for every fact essential to liability. Payne v. Cornhusker […]

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