Legal Intelligencer Tag Archives

Legal Intelligencer: Bad Character, Good Evidence: Reclaiming Character Evidence for Strategic Use in Civil Litigation

August 7, 2025 | Edward T. Kang

In the August 7, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Bad Character, Good Evidence: Reclaiming Character Evidence for Strategic Use in Civil Litigation.”

Character evidence has a paradoxical position in the law of evidence: deeply relevant in many cases, yet presumptively inadmissible. Under Federal Rule of Evidence 404 and its state counterparts, parties are generally barred from introducing evidence of a person’s character or character trait to argue that they acted in keeping with that character on a particular occasion. This is the so-called “propensity rule,” a prohibition on suggesting that someone did something simply because they are the sort of person who would. Rule 404(a)(1) codifies this general exclusion, and Rule 403’s balancing test, typically used to weigh probative value against prejudicial effect, is preempted in these cases by the categorical nature of the prohibition in Rule 404. There are exceptions, however. Continue reading ›

Legal Intelligencer: Justice at Scale: Class Action Settlements Must Deliver

July 17, 2025 | Edward T. Kang

In the July 17, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Justice at Scale: Class Action Settlements Must Deliver.”

In June 2024, U.S. District Judge Margo Brodie in the Eastern District of New York denied preliminary approval of a proposed $30 billion swipe-fee settlement between merchants and credit card giants Visa and Mastercard. At the last moment, despite nearly two decades of litigation and what appeared to be a monumental compromise, the deal fell through. The court criticized the sufficiency of relief compared to trial-level damages and noted that the proposed settlement inequitably benefited smaller merchants at the expense of larger ones. The court’s decision exemplifies heightened judicial scrutiny over class action settlements in recent years. It underscores the central tension in such cases: while such settlements can deliver mass redress, they must offer the class real, equitable benefits, not just symbolic fixes or compensation for counsel.

Legal Intelligencer: Uniform Protections, Civil Consequences: Litigating Employer Duties to Servicemembers Under USERRA

July 3, 2025 | Edward T. Kang

In the July 3, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Uniform Protections, Civil Consequences: Litigating Employer Duties to Servicemembers Under USERRA.”

It is common to see businesses marking Veterans Day with social media posts thanking service members for their service and sacrifices. It is notably less common for the same businesses to understand or honor their legal obligations to employees who are current or former members of the military. Too often, businesses discriminate against their employees who spend time serving in the uniformed services, such as the National Guard. While it is understandable that the employees’ time away from work could cause disruption at work (e.g., an employee spending six months on overseas service), the businesses need to understand that these employees provide vital functions for the public.

Legal Intelligencer: Revisiting ‘Zubulake’ 20 Years Later

June 19, 2025 | Kelly Lavelle

In the June 19, 2025 edition of The Legal Intelligencer, Kelly Lavelle writes, “Revisiting ‘Zubulake’ 20 Years Later.”

Introduction

It has been 20 years since Judge Shira A. Scheindlin issued the landmark Zubulake decisions, a series of rulings that profoundly reshaped e-discovery practices in federal litigation. At a time when electronically stored information (ESI) was rapidly expanding and began to overwhelm traditional discovery practices, Zubulake addressed critical issues related to preservation, production, and cost-allocation. These decisions expanded the definition of ESI, established new standards for attorney oversight, and set a precedent for holding both parties and their attorneys accountable for failing to fulfill their e-discovery obligations. This article revisits Zubulake and explores its enduring impact on e-discovery standards and practices, as well as the significant developments that have occurred since these pivotal decisions.

Legal Intelligencer: Reading Between the Lines: Implied Covenant of Good Faith and Fair Dealing

May 22, 2025 | Edward T. Kang

In the May 22, 2025 edition of The Legal Intelligencer, Edward Kang writes, “Reading Between the Lines: Implied Covenant of Good Faith and Fair Dealing.”

It is not in boldface. It does not appear in the indemnity clause. And it is rarely the lead count in a complaint. But the implied covenant of good faith and fair dealing arises from a duty that is embedded in every contract, and a breach of the implied covenant claim can be a powerful tool in litigation. Too often, litigators make the mistake of tacking on a breach of implied covenant as a boilerplate claim or abandoning it in response to a motion to dismiss. Properly framed, a breach of the covenant claim is not just filler, but a remedy in cases where the contract is silent, ambiguous, or grants the opposing party discretion exercised for bad-faith advantage. In complex business disputes, especially those involving strategic behavior that may evade a literal breach, a well-pleaded covenant claim may be the best—or only—path forward. Continue reading ›

Legal Intelligencer: Where Do I Have to Go to Get a Decent Beer?—State of Taprooms in Pa. and NJ in 2025

May 12, 2025 | Aaron L. Peskin

In the May 12, 2025 edition of The Legal Intelligencer, Aaron Peskin writes, “Where Do I Have to Go to Get a Decent Beer? —State of Taprooms in Pa. and NJ in 2025.”

It is fair to say that the craft beer boom of the 2010s is largely over. The year 2024 saw the first decline in the overall number of craft breweries nationwide since 2005. There are a lot of factors that have led to this decline, including the rise of hard seltzers, RTD (ready to drink) cocktails, and even the rise of recreational cannabis. With all of that said, Pennsylvania has both recently either passed new laws or reinterpreted existing ones to be friendlier to those in the business of brewing beer.

Legal Intelligencer: Shifting the Balance: Use Offer of Judgment in Litigation

March 20, 2025 | Edward T. Kang

Offers of judgment encourage settlement by shifting litigation risks to the party that refuses a reasonable settlement offer, thus forcing the party to carefully assess whether proceeding to trial is worth the financial risk. Offers of judgment, if used properly, can provide strategic leverage in negotiations and serve as a decisive tool in bringing cases to a more efficient resolution.

In the March 20, 2025 edition of The Legal Intelligencer, Edward T. Kang writes, “Shifting the Balance: Use Offer of Judgment in Litigation.” Continue reading ›

Legal Intelligencer: Litigating the Written Word: Parol Evidence Rule and the Gist of the Action Doctrine in Fraud Claims

February 7, 2025 | Edward T. Kang

Two doctrines frequently arise in Pennsylvania jurisprudence when addressing disputes between the parties to a contract: the parol evidence rule and the gist of the action doctrine. While each serves a distinct purpose, their application often overlaps, especially in fraud cases between the parties to a contract. Understanding both rules is essential for practitioners to craft persuasive arguments.

In the January 17, 2025 edition of The Legal Intelligencer, Edward T. Kang writes, “Litigating the Written Word: Parol Evidence Rule and the Gist of the Action Doctrine in Fraud Claims.” Continue reading ›

Legal Intelligencer: The Importance of Federal Rule of Evidence 502 and Its Impact on Privilege

February 7, 2025 | Kelly Lavelle

Federal Rule of Evidence 502 governs the treatment of inadvertent disclosures of privileged attorney-client communications or work-product materials. While Rule 502 is an evidence rule, the cases interpreting and applying it focus on its impact on the scope of discovery. Enacted by Congress in 2008, it was designed to address the growing risks of inadvertent disclosure in the era of e-discovery. The rule acknowledges the practical challenges of privilege review and aims to reduce the associated costs and uncertainties.

In the January 30, 2025 edition of The Legal Intelligencer, Kelly Lavelle writes, “The Importance of Federal Rule of Evidence 502 and Its Impact on Privilege.” Continue reading ›

Legal Intelligencer: EB-5 Immigration Investor Program: a Win-Win Program, or Is It?

February 6, 2025 | Kyle T. Garabedian

Each country has its own business sensibilities, many of which are more focused on interpersonal relationships or norms that do not always line up with the United States’ more formalistic business practices.

In the February 6, 2025 edition of The Legal Intelligencer, Kyle Garabedian writes, “EB-5 Immigration Investor Program: a Win-Win Program, or Is It?” Continue reading ›