Defamation is a very difficult, amorphous claim. Most potential defamation claims are not pursued because it can be very difficult to prove damages. A “plaintiff must prove actual damages in all defamation cases.” Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 313 (Mo. 1993) . Stated differently, “[p]roof of actual reputational harm is an absolute…
Daubert Challenges
A “Daubert Challenge” generally means a request to exclude a potential expert’s testimony. In most courts, an expert is one who possesses knowledge, skill, experience, training, or education and testifies in the form of an opinion about scientific, technical, or other specialized knowledge. There are five important considerations. First, the evidence must be scientific, technical,…
Real Party in Interest
Missouri Civil Procedure Rule 52.01 requires that “every civil action shall be prosecuted by the real party in interest.” But who or what is a “real party in interest”? The real party in interest is a party having a “justiciable interest susceptible of protection through litigation.” Perkinson v. v. Burford, 623 S.W.2d 30, 34 (Mo….
Preserving Error, Appeals
When appealing a judgment in Missouri, the appealing part must demonstrate that he or she raised the relevant issues before the trial court. Indeed, “[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review.” State v. Davis, 348 S.W.3d 768, 770 (Mo. 2011). The reasoning for this…
Comity
Sounding similar to “comedy,” comity comes up when there are multiple similar lawsuits pending. In an intrastate context, there are specific rules, like ademption or the pending action doctrine, which deal with how successive, similar lawsuits may be addressed. Comity, however, usually comes up in an interstate context. Comity is where one state court defers…
Strict Construction and Interpretation
“Strict construction” is a method of interpreting language in a legal document. It can also apply to statutes. Strict construction “presumes nothing that is not expressed.” Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010). It means that the language “shall not be extended by implication beyond the literal meaning of the terms…
Anticipatory Breach by Repudation
A breach of contract occurs when a party fails to adhere to the requirements of a contract. Missouri recognizes the concept of anticipatory breach of contract by repudiation. An anticipatory breach is the equivalent of an actual breach of contract. TDV Transp., Inc. v. Keel, 966 S.W.2d 347, 349 (Mo. App. E.D. 1998). Generally, to establish…
Trustee Abuse of Discretion Factors
Increasingly, trust instruments grant trustees “discretion” to do certain acts. Drafters include this language to account for unanticipated circumstances and make a trustee’s life easier. But even where a trustee has discretion, they can act improperly. “A grant of absolute discretion to a trustee is not a roving commission – the trustee must be guided…
Unfair Prejudice, Evidence
Evidence is inadmissible if it is “unfairly prejudicial.” Stated differently, if the “prejudicial effect substantially outweighs the probative value, the evidence is unfairly prejudicial…and must be excluded.” Shallow v. Follwell, 554 S.W.3d 878, 885 (Mo. 2018). When is evidence “prejudicial”? “Evidence is prejudicial if it tends to lead the jury to decide the case on some basis…
Avoidances: Affirmative Defense to an Affirmative Defense
In civil litigation, defendants often plead affirmative defenses. An affirmative defenses is an additional fact which, if true, defeats a plaintiff’s claim. For example, the statute of limitations is an affirmative defense. A plaintiff may allege, then, that because plaintiff’s claim is untimely the lawsuit fails. The most meritorious claim in the world will be…