The BUSKLAW Newsletter

There's baseball and there's inside baseball . The former brings to mind Detroit Tigers baseball and the legendary Ernie Harwell . In the early 60s, my father and I would camp out on our porch during the summer months and listen to Ernie's play-by-play over the recently-invented portable transistor radio. Late games were punctuated by euphonious crickets and frogs, some of whom resided in or around our cement-pond swimming pool. This chorus - combined with Ernie's sonorous narrative - often sent me off to dreamland.  But "inside baseball" is different. The term implies knowing something that is beyond ordinary understanding. Esoteric even. More effort is required to grasp "inside baseball" information, but the payoff is greater: you become smarter! So bear with me. This blog has often cited business cases decided by Kent County (MI) Circuit Court Judge Christopher Yates . Judge Yates not only writes opinions with brevity and wit; he's a mo...

In last month's newsletter , we discussed the importance of auditing your business contracts and pointed to five potentially troublesome provisions: identification of the parties, agreement term, payment, intellectual property rights, and confidentiality . But there are additional provisions that deserve careful scrutiny: > Indemnification. To understand this concept, start with three players: the parties to the contract (call them Able and Baker) and a third player who isn't  a contracting party (call him Charlie). Let's say Able manufactures widgets, Baker sells them in its retail stores, and Charlie is a customer who purchases an Able-produced widget from Baker. The widget injures Charlie. Charlie's lawyer sues Able and Baker because Able produced the widget and Baker sold it to Charlie. Baker's only involvement was selling the widget, so he tells Able to take care of it, i.e., defend him in the lawsuit and pay the settlement or the court judgment if the c...

If you are a business person working with contracts, you probably already know that lawsuits - regardless of their outcome - are expensive and time-consuming. And "alternative" dispute resolution procedures such as arbitration don't fare much better if standard arbitration clauses are used. (I use a unique arbitration clause that streamlines the process.) It's better to avoid litigation or arbitration altogether; the best way to do that is to have a contract with provisions that discourage one party from filing suit - or an arbitration petition - against the other party.  What might these anti-litigation, anti-arbitration contractual provisions be? Several come to mind: 1.  A provision that in any lawsuit or arbitration between the parties, the losing party must pay the winning party's attorney fees and court costs. As Attorney Stephen Hulst points out in his Michigan Business Court Blog (9/1/2015) , "It's a good piece of leverage to have, to be ab...