Legal funders operate in close observation of various areas of the law, both its substantive content and its mechanics. A deeper understanding of the law and the ability to keep pace with changes and developments may provide a legal funder with a competitive edge in the industry.
Treatises offer one way to build this edge and can be viewed as the CliffsNotes of the legal world, and have aided many law school students through difficult courses as well as provided guidance to many legal practitioners. Available in nearly every area of the law, treatises can serve as desk references for legal funders.
I discuss some areas of the law most relevant to legal funding below and provide suggestions as to some of the most widely-used treatises that you can keep on-hand in the office, ready-to-use to increase your knowledge base or brush up on particular legal doctrine.
Regardless of the area of the law, legal funders may utilize legal treatises as a way to refresh their knowledge of a particular area, inform an investment and assess an investment once placed.
Pair this with 8 Book Recommendations for Legal Funders
The cornerstone of legal funding, torts are any civil wrong committed by a tortfeasor (one that has a duty to observe the safety of another) that causes harm to that person. As legal funders are well aware, torts can range from false imprisonment to trespass, personal injury, medical malpractice, motor vehicle accidents and product liability.
Legal funders are most commonly exposed to two types of torts: negligence and strict liability. Because plaintiffs in this area of the law have often suffered serious physical or other injuries, and because of the lengthy duration of tort litigation, they (the plaintiffs) may seek out legal funders while their case winds its way through the court system.
While tort law varies from state to state, its basic principles do not. The seminal treatise in torts is Prosser and Keeton on the Law of Torts by William L. Prosser and Page Keeton, which, although no longer being updated, is still a staple on many tort attorney shelves, as it provides a broad overview of tort doctrine.
A newer treatise in this area of the law is Law of Torts by Dan Dobbs. In addition to serving as a primer for the relevant subject, treatises identify the leading cases in a jurisdiction that further develop the doctrine in the law at issue. Legal funders can the research these cases to use them as a guide for informing their investments.
A carefully drafted contract is essential between a legal funder, plaintiff, and their attorney.
Simply knowing the basic elements of a contract (offer, acceptance, and consideration, i.e. an exchanged benefit) is not enough, and legal funders can benefit from a deeper understanding of contract law through the use of a treatise.
A classic treatise in this area of the law is Farnsworth on Contracts by E. Allan Farnsworth, which can help you parse through applicable case law, depending on the jurisdiction in question, to get to the meat of an issue or topic.
Civil procedure—the mechanics that drive the court system—is just as important for legal funders as the substantive law governing a tort.
Civil procedure sets the ground rules for litigation in each jurisdiction, and a failure to abide by the law can be disastrous to a legal claim, regardless of the merits. Civil procedure determines things such as how to serve court papers, how parties may conduct discovery and under what circumstances a case can be dismissed.
Civil procedure knowledge is vital in pre-settlement funding matters because it dictates how long a plaintiff has to bring a court action before waiving the right to do so.
Legal funders looking for an overview of civil procedure may want to read Civil Procedure in a Nutshell by Mary Kay Kane. There are also hugely popular, jurisdiction-specific options, such as New York Practice, 5th by David Siegel. It would be difficult to find a litigator in New York without an ear-marked copy of that treatise.
When the code of civil procedure in a particular jurisdiction is unclear, a civil procedure treatise will both explain the law and its elements, as well as discuss important cases illustrating how the law operates in practice.
Some of the most high-profile cases in the media involve civil rights violations, such as sexual harassment, wrongful arrest, and racial discrimination, sometimes resulting in large awards for plaintiffs. In the realm of employment law, these matters often involve the loss of a job or even a career, and plaintiffs may utilize legal funding opportunities to enable themselves to withstand lengthy negotiations or litigation.
A treatise on constitutional law may be especially useful for legal funders involved with civil rights cases, and among the most well-known is Constitutional Law by Erwin Chemerinsky.
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