The Cognitive Coffee Cup: Opening Argument in the Complex Commercial Trial
by Andrew Flake
In reviewing developments in week one of the Elizabeth Holmes/Theranos trial, a prosecution expected to last for over four months, I immediately thought of the preparation necessary on both sides to deliver their opening statements. Trials like...
Appellate Advocacy in the Zoom Era
by Andrew Flake
What has changed, in this time of virtual cat-filters and huge daily dollops of professional screen time, about good appellate advocacy? Instead of standing behind a podium, in a quiet and majestic appellate courtroom, ...
“And If You Didn’t Hear Us the Last Time”: More Emphasis on Arbitral Award Finality
by Andrew Flake
A just-issued Georgia Court of Appeals opinion underscores a message the state's appellate courts have been sending for some time: Arbitration awards are not subject to automatic appeal. They are supposed to be, and are presumed...
Location, Location, Location: Forum-Selection in International Litigation
by Andrew Flake
I once spent a week arbitrating a technology dispute in Helsinki, Finland, walking through the city center to our hearing each day in gusting snow. We were there because the parties' contract specified a Finnish seat,...
Phased ADR Clauses, Redux
by Andrew Flake
Having discussed phased dispute resolution, a process in our contracts that moves from more informal modes of discussion to binding ones, like arbitration, let's add some caveats. These provisions are not off-the-rack suits, to be draped...
Delivering a Compelling Closing in the Complex Business Dispute
by Andrew Flake
In complex litigation, we are continually distilling the simple from the complex, assessing multiple and often nuanced legal arguments, assessing hundreds of exhibits, sifting through the details of company work. With...
Supreme Court Grants Cert in Servotronics Dispute; Likely to Resolve Circuit Split On Key International Arbitration Question
by Andrew Flake
On March 22, the Supreme Court granted cert in the ongoing Servotronics litigation, presenting the likely opportunity for the justices to decide an ongoing and important important question for parties to international commercial arbitrations: whether or not...
Sweeping for Mines: The Injunctive Relief Carve-out in Arbitration
by Andrew Flake
The "injunctive relief" carve-out, which lies quietly in various forms in many arbitration agreements, is a too-often overlooked landmine. Its most frequent purpose, allowing parties to go to court for emergency relief while preserving their right to...
“Absolutely Incensed”: A Foreign Law Twist on Equitable Estoppel in Arbitration
by Andrew Flake
A Ninth Circuit battle between two Indian incense makers over whether their case should be arbitrated has still not burned out. After one correction and remand from the U.S. Supreme Court, the Ninth Circuit considered...
What We Can Learn from the First All-Virtual Patent Jury Trial
by Andrew Flake
After a week-long patent infringement trial in federal district court in Seattle, a civil jury hit gaming company Valve Corporation with a $4 million verdict for patent infringement....