I decided to take a slight break from my Construction 101 series to discuss this very relevant, common sense-like, issue which I am sure most people do not consider as they use the internet to connect with friends and family on a daily basis. From a recent ABAJournal Law News Now article published earlier today by Martha Neil, a recent New York case highlights the issue of whether your texts/emails/internet posts on Facebook, Twitter, Myspace, etc. may be accessed, even when such sites have privacy settings that limit who sees what.
The case dealt with a discovery challenge by the defendant to obtain material blocked by privacy settings after certain public settings showed inconsistent evidence into plaintiff's slip-and-fall injuries/damages claims.
In other words, be wary of what you post, and not just because you may be involved in a lawsuit. Employers, potential employers, insurance companies, clients ... anyone who has access to a computer can search for your name and eventually come up with information about you. Make sure that what you post is what you'd share with your employer, etc.
Have A Great Day!
September 29, 2010
September 28, 2010
Construction Work 101 - I Have To Pay What?!?
So, you've decided to remodel that kitchen after 15 years, and you've contacted a general contractor to come out and bid on the job. After he provides you with his card (and you have confirmed he is actively licensed by the CSLB - see prior post), he views your kitchen, speaks with you about customizing the materials, and writes you a bid. Wow, the bid is for $50,000.00! But, other bids show that $50,000 is actually within reason, so you call him back to agree to hire him. He provides you with a standard-looking contract that identifies the price as $50,000, to be paid in installments - $10,000 down, and $5,000 each week, with $5,000 held back until the job is complete. Wow, $10,000 down???
Actually, in California, a contractor is limited in what he can ask for the down payment: It must be 10% of the total price or $1,000, whichever is LESS! Don't get snookered into providing a down payment that is more than $1,000! Also, many contractors think there is a loophole so that they will ask you for $1,000 on signing, and then $10,000 in advance of demolition or for materials. I strongly recommend that the price be itemized out, at least generally, and preferably specifically. You do not want to get into a situation where the contractor asks for a bundle up front, but barely touches the property.
Related to this topic are change orders - I will discuss Change Orders in more detail next time. For now, be certain to sign off on each and every change requested or suggested or recommended by the contractor. Changes are required to be in writing, signed by the party to be charged. This is to protect the owner from unreasonable and surprise charges!
Have a Great Day!
Abe
Actually, in California, a contractor is limited in what he can ask for the down payment: It must be 10% of the total price or $1,000, whichever is LESS! Don't get snookered into providing a down payment that is more than $1,000! Also, many contractors think there is a loophole so that they will ask you for $1,000 on signing, and then $10,000 in advance of demolition or for materials. I strongly recommend that the price be itemized out, at least generally, and preferably specifically. You do not want to get into a situation where the contractor asks for a bundle up front, but barely touches the property.
Related to this topic are change orders - I will discuss Change Orders in more detail next time. For now, be certain to sign off on each and every change requested or suggested or recommended by the contractor. Changes are required to be in writing, signed by the party to be charged. This is to protect the owner from unreasonable and surprise charges!
Have a Great Day!
Abe
September 24, 2010
Construction Work 101 - Licensed vs. Unlicensed
In California, contractors (and subcontractors) must be licensed by the Contractor's State Licensing Board (CSLB) if they wish to provide any construction work for the general public where such work is for $500 or more. (Bus & Prof Code Section 7031, et seq). How does the State punish those who violate the rule (and get caught)? By forcing them to pay back any money received for the unlicensed work. In fact, even if the work was perfect, the hirer can file a lawsuit for Violation of B&P Section 7031, and under the statutes that follow, will be entitled to, at a minimum, all money paid to the unlicensed contractor. It doesn't even matter if the hirer knew that the contractor was not licensed - makes no difference.
Similarly, insurance companies may have the right to expressly deny coverage of any claim against its insured where it discovers that the insured was not properly licensed. That can pose a major problem if the work performed ends up being shoddy, defective, or otherwise causes damage to the hirer's property.
How do you know whether a contractor is licensed? The first thing to do is ask for the contractor's license. Then, you can confirm whether the license is active, suspended, or non-existent by reviewing the CSLB website - www.cslb.ca.gov. A second way to determine whether a contractor is licensed is through their advertising material provided to you - letterhead, bid sheet, business card - these items are required by law to have the contractor's license on them in plain view. Thus, if you hire a plumber and his truck does not have a license number on it, chances are, he may not be licensed to perform the work.
The clear rationale for requiring contractors to be licensed is that you expect a higher degree of care to be used by a licensed contractor than by an unlicensed contractor. Similar to your physician, who is licensed by the state in which he practices medicine, or your attorney, or your accountant, or your real estate agent.
Consumer Beware! In Part II, I'll look at The Amount To Be Charged.
Have A Great Day!
Similarly, insurance companies may have the right to expressly deny coverage of any claim against its insured where it discovers that the insured was not properly licensed. That can pose a major problem if the work performed ends up being shoddy, defective, or otherwise causes damage to the hirer's property.
How do you know whether a contractor is licensed? The first thing to do is ask for the contractor's license. Then, you can confirm whether the license is active, suspended, or non-existent by reviewing the CSLB website - www.cslb.ca.gov. A second way to determine whether a contractor is licensed is through their advertising material provided to you - letterhead, bid sheet, business card - these items are required by law to have the contractor's license on them in plain view. Thus, if you hire a plumber and his truck does not have a license number on it, chances are, he may not be licensed to perform the work.
The clear rationale for requiring contractors to be licensed is that you expect a higher degree of care to be used by a licensed contractor than by an unlicensed contractor. Similar to your physician, who is licensed by the state in which he practices medicine, or your attorney, or your accountant, or your real estate agent.
Consumer Beware! In Part II, I'll look at The Amount To Be Charged.
Have A Great Day!
September 22, 2010
Would you please "HP" me a copy?"
Today I saw an "advertisement" - or plea - from Xerox which was used to request people not to use its name in vain. As most of us know, Xerox is a large international technology and research company which, for a time, was primarily known for its commercial copier machines. As such, when workers went to copy documents, for a long period of time, the copies were made utilizing a Xerox machine. However, by the 1990's, and certainly today, there are numerous companies that offer commercial/business copiers - Toshiba, Hewlett-Packard/HP, Fuji, Brother, Epson, etc., to name only a few. Yet, the stereotype has been branded into our brain: Can you "xerox" me a copy of this document?
Xerox, of course, has a trademark for the use of its name in the context of copying documents, using copiers, or other technology-related services and products. Its fear, and I suppose it is real, is that its trademark registration will be terminated at some point once the usage of the term, 'xerox', becomes so commonplace that no one associates it with the company Xerox, but with the copying of a document.
Xerox, in its ad, notes that the term, zipper, was once a trademark for a Zipper brand name. However, over time, the trademark was lost, as all zipper-like products became known as zippers. To some degree, Coca Cola likely had a similar argument - how many times have you requested a Coke in a restaurant, only to be served a different cola - such as Pepsi? Cereal is like this as well - Frosted Flakes remind me of a colorful tiger who yells "Grreeat!" But, many restaurants and supermarkets carry Frosty Flakes or other similar sounding brands.
What other brands can you think of that have lost their trademarks to common usage? Do you think Xerox will be able to maintain its trademark? We'll find out in the months and years to come.
Have A Great Day!
Xerox, of course, has a trademark for the use of its name in the context of copying documents, using copiers, or other technology-related services and products. Its fear, and I suppose it is real, is that its trademark registration will be terminated at some point once the usage of the term, 'xerox', becomes so commonplace that no one associates it with the company Xerox, but with the copying of a document.
Xerox, in its ad, notes that the term, zipper, was once a trademark for a Zipper brand name. However, over time, the trademark was lost, as all zipper-like products became known as zippers. To some degree, Coca Cola likely had a similar argument - how many times have you requested a Coke in a restaurant, only to be served a different cola - such as Pepsi? Cereal is like this as well - Frosted Flakes remind me of a colorful tiger who yells "Grreeat!" But, many restaurants and supermarkets carry Frosty Flakes or other similar sounding brands.
What other brands can you think of that have lost their trademarks to common usage? Do you think Xerox will be able to maintain its trademark? We'll find out in the months and years to come.
Have A Great Day!
September 21, 2010
Pro Se Litigants and Ghost Lawyering
I recently read an article in the ABA Journal (Sept 2010) regarding the increase in pro se litigation - that is, in parties that represent themselves, either as a plaintiff or defendant. 1,000 state court judges throughout the US were polled regarding the judicial system in 2009. More than 60% set there was a rise in pro se litigation; 62% said that pro se litigants were on the short end of the stick more than their lawyer represented opponents. And, 90% said that pro se litigants "had a negative effect on the courts."
However, the article then discussed how many of these pro se litigants were utilizing lawyers to assist them with drafting court-filed documents - such as the initial pleadings, motions, and the like. This type of legal representation is generally known as "limited scope" representation. The general public refers to it as "ghost lawyering".
I, too, have seen a rise in this type of service, and welcome it. Whether the services are based on an hourly fee or some type of flat rate, the client feels satisfied in knowing that it is receiving legal services, but at a much lower charge than the norm. Further, it allows the client to better appreciate the cost of such services, and can thus, have a better expectation of the charges it will be required to pay until the outcome of the matter arrives.
The key point of the article was to stress that the courts are beginning to change long-standing opinions regarding "ghost" lawyers assisting pro se litigants - any assistance, in effect, leads to a "better prepared litigant, and thus, a more efficiently operated court." I concur, and would anticipate this trend to continue in light of the economic concerns that continue to affect persons and businesses throughout the US and here in California.
Have A Great Day!
However, the article then discussed how many of these pro se litigants were utilizing lawyers to assist them with drafting court-filed documents - such as the initial pleadings, motions, and the like. This type of legal representation is generally known as "limited scope" representation. The general public refers to it as "ghost lawyering".
I, too, have seen a rise in this type of service, and welcome it. Whether the services are based on an hourly fee or some type of flat rate, the client feels satisfied in knowing that it is receiving legal services, but at a much lower charge than the norm. Further, it allows the client to better appreciate the cost of such services, and can thus, have a better expectation of the charges it will be required to pay until the outcome of the matter arrives.
The key point of the article was to stress that the courts are beginning to change long-standing opinions regarding "ghost" lawyers assisting pro se litigants - any assistance, in effect, leads to a "better prepared litigant, and thus, a more efficiently operated court." I concur, and would anticipate this trend to continue in light of the economic concerns that continue to affect persons and businesses throughout the US and here in California.
Have A Great Day!
September 20, 2010
Prophylactic Legal Services
Prophylactics - Generally, we think of the term, "prophylactic" when we describe the prevention of sexually transmitted diseases or birth control. However, the term is actually defined as "acting to defend against or prevent; protective." The clear connotation is that a person utilizing a prophylactic device is trying to prevent something from happening - ie, getting pregnant or getting a sexually transmitted disease (STD). As with other areas, sexually-related prophylactic devices come in different forms and cost different amounts. Generally, the more costly the device, the better it works (not always, of course).
Also, as we know, if prophylactic devices are not utilized, the risk of failing rises. If failure results, the costs go up exponentially.
In the legal realm, protecting one's clients is paramount. Protecting one's clients in a cost effective manner is key. Prevention occurs prior to the event, not after. Unfortunately, a client often places his business at enormous risk in light of the cost of prophylactic legal services, tending instead to rely on less costly protective resources and, in many cases, decides simply that the risk is too remote. The vast majority of such cases arise from smaller businesses, sole proprietors, small partnerships, and local businesses, whose expenditures cannot be "wasted" on unnecessary costs.
Unfortunately, there is a saturation of litigation in today's world. One reason is because too many businesses rely on their own experiences in handling legal matters that directly affect the business bottom line. My simple and recurring line to most clients is that anything the attorney can do for you, you can handle on your own. That's right: you can file your own corporate documentation to start a business; you can draft your own contracts; set up your own employee guidelines; you can represent yourself in court, too. However, usually, it is only in the latter instance that a business retains legal counsel. By then, the damage is done, and the cost to fix such damage will be much more than the preventive services that could have negated or minimized the problem in the first place.
Protect your business: Use legal services to avoid the "legal" STD - litigation!
Have A Great Day!
Also, as we know, if prophylactic devices are not utilized, the risk of failing rises. If failure results, the costs go up exponentially.
In the legal realm, protecting one's clients is paramount. Protecting one's clients in a cost effective manner is key. Prevention occurs prior to the event, not after. Unfortunately, a client often places his business at enormous risk in light of the cost of prophylactic legal services, tending instead to rely on less costly protective resources and, in many cases, decides simply that the risk is too remote. The vast majority of such cases arise from smaller businesses, sole proprietors, small partnerships, and local businesses, whose expenditures cannot be "wasted" on unnecessary costs.
Unfortunately, there is a saturation of litigation in today's world. One reason is because too many businesses rely on their own experiences in handling legal matters that directly affect the business bottom line. My simple and recurring line to most clients is that anything the attorney can do for you, you can handle on your own. That's right: you can file your own corporate documentation to start a business; you can draft your own contracts; set up your own employee guidelines; you can represent yourself in court, too. However, usually, it is only in the latter instance that a business retains legal counsel. By then, the damage is done, and the cost to fix such damage will be much more than the preventive services that could have negated or minimized the problem in the first place.
Protect your business: Use legal services to avoid the "legal" STD - litigation!
Have A Great Day!
September 17, 2010
ADR - Win/Win or Lose/Lose?
Have you ever had a disagreement with someone? I'm sure you have - in our personal life, those disagreements likely began at an early age, with our siblings and our parents. We thereafter branched out, and began disagreeing with friends, boyfriends/girlfriends, teachers, bosses, co-workers, and eventually, spouses, your own children, and perhaps law enforcement (hopefully not too much of the latter). How you resolved those disagreements likely shaped who you have become, to some degree.
As we get older, these disagreements can become more difficult to quietly resolve; indeed, some get quite ugly - just look at the McCourt divorce (the extreme). Best friends have partnered to start businesses, only to separate a few years later, and no longer friends. The extent of the disagreement, however, can influence how the parties come away from such disputes. True, filing a lawsuit is perhaps the easiest method to force a resolution (other than giving in to the other's demands, perhaps). But it is the lawsuit which creates a course of action with a statutory end - trial. The problem, as those experienced in litigation can tell you, is that litigation costs $$$. More than that, however, it costs your time away from whatever you could be doing - like running your business. It's stressful, as well. You could end up losing. You could end up fighting in litigation for several months, and even years, before a final determination is made.
How can disputing parties resolve their differences without the cost and headaches associated in litigation? Through well planned alternative dispute resolution or "ADR". The concept is certainly not new, and indeed, ADR is strongly encouraged by the court system to reduce its large quantity of litigation. Several industries in the business world have addressed ADR through specific contractual language, such as requiring mediation and then waiving the right to court litigation in favor of binding arbitration. There are numerous different ADR companies - the American Arbitration Association ("AAA") may be one of the more well known, but there are others: JAMS-Endispute, Judicate West, ARC, and a whole litany of private ADR professionals waiting to assist angry sides resolve their differences.
Generally, ADR is less expensive than full-fledged court litigation, though not always. The huge factor in certain arbitration cases is that the matter is binding - thus, once a decision is finalized, neither side can appeal the arbitrator's ruling (yes, there are exceptions). In such case, a matter is often decided within a year or so of the date the demand was originally served. Still, binding arbitration remains similar to a "bench" (no jury) trial, and can extend on for several days, depending on the amount of evidence to be introduced by each side.
Mediation, a non-binding form of ADR, is a great way for sides to resolve differences prior to the final battle (binding arbitration or trial). Though non-binding, the two+ sides choose a neutral - usually a retired judge or a private attorney with several years experience - to listen to each side's primary case, and then to work each side into a compromised position - both sides give up something to reach an accord. In this case, giving up something ends up being a win/win since the time and cost of continuing to do battle cease should a settlement be reached.
It is important to note, however, that there are times when ADR is not beneficial to a particular case. Those times, as rare as they are, do exist. However, in most instances, ADR is an important tool utilized by disputing parties to keep costs down and time disputing minimized to a degree.
More on ADR to come ...
Have A Great Day!
As we get older, these disagreements can become more difficult to quietly resolve; indeed, some get quite ugly - just look at the McCourt divorce (the extreme). Best friends have partnered to start businesses, only to separate a few years later, and no longer friends. The extent of the disagreement, however, can influence how the parties come away from such disputes. True, filing a lawsuit is perhaps the easiest method to force a resolution (other than giving in to the other's demands, perhaps). But it is the lawsuit which creates a course of action with a statutory end - trial. The problem, as those experienced in litigation can tell you, is that litigation costs $$$. More than that, however, it costs your time away from whatever you could be doing - like running your business. It's stressful, as well. You could end up losing. You could end up fighting in litigation for several months, and even years, before a final determination is made.
How can disputing parties resolve their differences without the cost and headaches associated in litigation? Through well planned alternative dispute resolution or "ADR". The concept is certainly not new, and indeed, ADR is strongly encouraged by the court system to reduce its large quantity of litigation. Several industries in the business world have addressed ADR through specific contractual language, such as requiring mediation and then waiving the right to court litigation in favor of binding arbitration. There are numerous different ADR companies - the American Arbitration Association ("AAA") may be one of the more well known, but there are others: JAMS-Endispute, Judicate West, ARC, and a whole litany of private ADR professionals waiting to assist angry sides resolve their differences.
Generally, ADR is less expensive than full-fledged court litigation, though not always. The huge factor in certain arbitration cases is that the matter is binding - thus, once a decision is finalized, neither side can appeal the arbitrator's ruling (yes, there are exceptions). In such case, a matter is often decided within a year or so of the date the demand was originally served. Still, binding arbitration remains similar to a "bench" (no jury) trial, and can extend on for several days, depending on the amount of evidence to be introduced by each side.
Mediation, a non-binding form of ADR, is a great way for sides to resolve differences prior to the final battle (binding arbitration or trial). Though non-binding, the two+ sides choose a neutral - usually a retired judge or a private attorney with several years experience - to listen to each side's primary case, and then to work each side into a compromised position - both sides give up something to reach an accord. In this case, giving up something ends up being a win/win since the time and cost of continuing to do battle cease should a settlement be reached.
It is important to note, however, that there are times when ADR is not beneficial to a particular case. Those times, as rare as they are, do exist. However, in most instances, ADR is an important tool utilized by disputing parties to keep costs down and time disputing minimized to a degree.
More on ADR to come ...
Have A Great Day!
September 16, 2010
Business 101 - Happy 'New' Year and Taking Stock.
Last night, I attended a local networking mixer and listened to the substituted-at-the-last-minute speaker. The mixer, at a local synagogue, is supported by the Rabbi, who, frankly, provided one of the best business lectures I've listened to over the past several years. Here is a synopsis of what I heard last night and my take on it:
For those in the know, we celebrate more than one new year in the world; there is the modern New Year (January 1st); but there are also cultural/religious New Years based on different calendars. The Jewish New Year, or Rosh Hashanah, is based on the Gregorian calendar, and began year 5771 on September 8th at sundown. As the Rabbi explained last night, before we end the prior year, many of us "take stock" of our lives and give resolutions as to how we hope to improve our respective lives as we proceed through the next year, making it "new" for our souls.
Businesses and other organizations do very similar things - at the end of its fiscal year, a business looks at its books to determine whether it was a "profitable" year or not. True, businesses tend to "take stock" multiple times throughout the year (and should), but it is at the end of the fiscal year, and the beginning of its new fiscal year that a business evaluates its business practices to determine what worked and what didn't, so a new plan of attack can be created to make the next fiscal year better than the last.
Making time to "take stock" is critical for a business's survival. From a legal context, it is a great time to review the business entity structure - is it working? Is the tax appropriate? Are the legal requirements being maintained? At the same time, is the employee handbook up-to-date? Have any new laws been enacted that would impact the business? Are contracts working? Have there been any customer relation issues? Employment concerns? Vendor issues? Is a merger, sale, or purchase possible that could benefit the owners and the business? Would outsourcing be beneficial or not? Are prices set accordingly? Is marketing working? Are advertisements appropriate?
And, although it is customary to review these items at the close of the fiscal year (or calendar year or whatever year you follow), the better practice is to always be taking stock of the different aspects that make up your business. Take a few minutes to set aside a time in the near future, and "Take Stock". Happy New Year!
Have A Great Day!
For those in the know, we celebrate more than one new year in the world; there is the modern New Year (January 1st); but there are also cultural/religious New Years based on different calendars. The Jewish New Year, or Rosh Hashanah, is based on the Gregorian calendar, and began year 5771 on September 8th at sundown. As the Rabbi explained last night, before we end the prior year, many of us "take stock" of our lives and give resolutions as to how we hope to improve our respective lives as we proceed through the next year, making it "new" for our souls.
Businesses and other organizations do very similar things - at the end of its fiscal year, a business looks at its books to determine whether it was a "profitable" year or not. True, businesses tend to "take stock" multiple times throughout the year (and should), but it is at the end of the fiscal year, and the beginning of its new fiscal year that a business evaluates its business practices to determine what worked and what didn't, so a new plan of attack can be created to make the next fiscal year better than the last.
Making time to "take stock" is critical for a business's survival. From a legal context, it is a great time to review the business entity structure - is it working? Is the tax appropriate? Are the legal requirements being maintained? At the same time, is the employee handbook up-to-date? Have any new laws been enacted that would impact the business? Are contracts working? Have there been any customer relation issues? Employment concerns? Vendor issues? Is a merger, sale, or purchase possible that could benefit the owners and the business? Would outsourcing be beneficial or not? Are prices set accordingly? Is marketing working? Are advertisements appropriate?
And, although it is customary to review these items at the close of the fiscal year (or calendar year or whatever year you follow), the better practice is to always be taking stock of the different aspects that make up your business. Take a few minutes to set aside a time in the near future, and "Take Stock". Happy New Year!
Have A Great Day!
September 15, 2010
Legally Correct vs. Morally Correct vs. Politically Correct?
Should the NY Mosque be built within the close proximity to Ground Zero? Should women be allowed to wear religious head wraps to work? Should women be allowed into professional male athletes' locker rooms to conduct interviews? Should college athletes be paid for their athletic services or otherwise be entitled to receive gifts/etc while at school?
Interestingly, what is legally right or politically correct does not always jive with what is morally or ethically correct, given particular circumstances. Our founding forefathers believed that property rights were sacred; that while the government could impose certain taxes to secure government revenue, a person's property was sacred and that person could use the property for his quiet enjoyment. Now, of course there were/remain exceptions, such as when the enjoyment is not quiet - which means, simply, that the use of a particular property disrupts the use of someone else's property. I don't think, on its own, the construction of a mosque does anything to disrupt any other person's use of his or her property. In other words, the current owner of the property has the legal right to build the mosque at that location. But, should he in light of the circumstances? I believe that the owner should not build the mosque at that location due to the obvious facts surrounding that location, at least not at this time.
Should women or men be allowed to wear religious head wraps at work? This time, there is a political right - the right of religious freedom - to do so. However, our society has limited such right when it interferes with the job's duties. A woman would likely not be able to wear a wrap and perform firefighting duties, but could perform legal duties as an attorney. What if the President of the US wore a head wrap because of his religious views? I cannot imagine anyone having any rational dispute with this. So, in this case, I do not see a moral issue, but rather an employer concern over how a job is performed, and whether the religious requirements would hinder the performance of that job.
Should a woman be refused entry into a male locker room? Should a man be refused entry into a female locker room? Legally, if one gender is allowed into the locker room, then the other gender should have equal access. This turns on the ability to obtain stories/interviews equally. It is both legal and politically correct. Morally however, I think there is an issue. Locker rooms are often hallowed ground ... at least they used to be. More and more, there are press rooms off to the side, but cameras have infiltrated the locker room area in most sports. The question is whether this places the interviewer or the player(s) at a disadvantage that could create a question as to whether conduct was appropriate. If a player drops his towel, showing his birth beauty, does that create an issue if a reporter is in the room? I don't know. I do know this, however: most news agencies place a male in a male locker room, a female in a female locker room; not always, but often. The rationale is that improprieties between genders are more likely to occur than between persons of the same gender (a Pittsburgh quarterback comes to mind). Prevention before reaction.
Finally, should a college athlete be entitled to accept gifts for his play? Legally, the answer is no. College sports have always been deemed amateur sporting events; thus, there is a prohibition against a player's receiving anything of value in exchange for his continued services. However, is a "reward" for those services or a gift resulting from those services considered compensation??? Compensation is value received in consideration of the promise to perform services. It is earned upon the completion of the services. However, if it is not promised in exchange of those services, it is a gift. Should gifts be allowed? A gift is something that is given without consideration provided by the receiver. The receiver need not perform anything to receive the gift. So, if an agent gives a college athlete a car for his family's use during his school years, without the promise by that athlete that he will utilize that agent's services upon completion of school, that is a gift.
Is the gift legal? I think it should be, though presently it is not. More on this to come soon.
In the meantime, ... Have a Great Day!
Interestingly, what is legally right or politically correct does not always jive with what is morally or ethically correct, given particular circumstances. Our founding forefathers believed that property rights were sacred; that while the government could impose certain taxes to secure government revenue, a person's property was sacred and that person could use the property for his quiet enjoyment. Now, of course there were/remain exceptions, such as when the enjoyment is not quiet - which means, simply, that the use of a particular property disrupts the use of someone else's property. I don't think, on its own, the construction of a mosque does anything to disrupt any other person's use of his or her property. In other words, the current owner of the property has the legal right to build the mosque at that location. But, should he in light of the circumstances? I believe that the owner should not build the mosque at that location due to the obvious facts surrounding that location, at least not at this time.
Should women or men be allowed to wear religious head wraps at work? This time, there is a political right - the right of religious freedom - to do so. However, our society has limited such right when it interferes with the job's duties. A woman would likely not be able to wear a wrap and perform firefighting duties, but could perform legal duties as an attorney. What if the President of the US wore a head wrap because of his religious views? I cannot imagine anyone having any rational dispute with this. So, in this case, I do not see a moral issue, but rather an employer concern over how a job is performed, and whether the religious requirements would hinder the performance of that job.
Should a woman be refused entry into a male locker room? Should a man be refused entry into a female locker room? Legally, if one gender is allowed into the locker room, then the other gender should have equal access. This turns on the ability to obtain stories/interviews equally. It is both legal and politically correct. Morally however, I think there is an issue. Locker rooms are often hallowed ground ... at least they used to be. More and more, there are press rooms off to the side, but cameras have infiltrated the locker room area in most sports. The question is whether this places the interviewer or the player(s) at a disadvantage that could create a question as to whether conduct was appropriate. If a player drops his towel, showing his birth beauty, does that create an issue if a reporter is in the room? I don't know. I do know this, however: most news agencies place a male in a male locker room, a female in a female locker room; not always, but often. The rationale is that improprieties between genders are more likely to occur than between persons of the same gender (a Pittsburgh quarterback comes to mind). Prevention before reaction.
Finally, should a college athlete be entitled to accept gifts for his play? Legally, the answer is no. College sports have always been deemed amateur sporting events; thus, there is a prohibition against a player's receiving anything of value in exchange for his continued services. However, is a "reward" for those services or a gift resulting from those services considered compensation??? Compensation is value received in consideration of the promise to perform services. It is earned upon the completion of the services. However, if it is not promised in exchange of those services, it is a gift. Should gifts be allowed? A gift is something that is given without consideration provided by the receiver. The receiver need not perform anything to receive the gift. So, if an agent gives a college athlete a car for his family's use during his school years, without the promise by that athlete that he will utilize that agent's services upon completion of school, that is a gift.
Is the gift legal? I think it should be, though presently it is not. More on this to come soon.
In the meantime, ... Have a Great Day!
September 14, 2010
Calif SB 183 - Carbon Monoxide Detectors To Be Req'd
For years, there has been an intense debate as to whether to require homeowners to install carbon monoxide detectors in their homes. In May 2010, the California Legislature enacted SB 183, which will require all existing homeowners to install carbon monoxide detectors in their homes or face a fine, currently $200.00. The law, which technically takes effect on July 1, 2011, is great news for the health and safety of homeowners and their families/guests. Carbon monoxide is a silent killer, odorless, yet very deadly.
I strongly urge all homeowners in California (or anywhere for that matter) to install such a monitor now, even before the July 1, 2011, deadline. Note, however, that unless there is actually an emergency at the home, or the home is set for sale, this law will not be strictly enforced (in other words, "Big Brother" won't be making spot checks that I'm aware of). However, all real estate brokers/agents/etc. should be put on notice that a new disclosure will be required by sellers beginning July 1, 2011.
Have a great day!
I strongly urge all homeowners in California (or anywhere for that matter) to install such a monitor now, even before the July 1, 2011, deadline. Note, however, that unless there is actually an emergency at the home, or the home is set for sale, this law will not be strictly enforced (in other words, "Big Brother" won't be making spot checks that I'm aware of). However, all real estate brokers/agents/etc. should be put on notice that a new disclosure will be required by sellers beginning July 1, 2011.
Have a great day!
Labor Contracts - Which Side Is Held Hostage?
As you will quickly come to learn from reading my posts, I am both a legal nut as well as a sports nut. My law practice is primarily focused on business and real estate law, with an "eye" for contractual matters. Sports law and the related entertainment law are two niches within the business realm.
If you, like me, are a baseball fan, you may recall a player named Rickey Henderson. Mr. Henderson, a recently inducted Hall of Fame player, was one of the standout speed demons of the 80's, a lead off batter who, once on base, was pretty much a lock to score because he could get to 2nd base on his own. He also had surprising power and could occasionally hit a long ball and drive in runs. The Oakland Athletics signed him to what was at the time (early 80's) a nice multiple year contract. At some point, Mr. Henderson's notoriety for stealing bases drew to him a large fan base, which, in turn, inflated Mr. Henderson's ego even more than it already was. He decided to hold out if the team did not renegotiate his contract. Thus, in the sports age, we entered a new phase, a new chapter in labor, a new beginning to contractual enforcement.
What would happen if you walked into a Honda dealership, negotiated a final price of $30,000 for a Honda, and, after purchasing the car, driving off the lot, and spending a year or two with the car, received a call from Honda claiming that the car's popularity required that they renegotiate the price? What if the dealer held the pink slip because you had financed the car through its finance department?
In the real estate field, homeowners seek refinances of their mortgages all the time. However, the refi is a different animal since both parties agree. Think about it, the news is ripe with homeowners pleading with the banks for loan modifications, refinances, or approvals for short sales. In each of the foregoing instances, the homeowner is seeking lender approval to modify the contractual terms previously agreed to. The lender, as we have also seen over the past 2-3 years, may not be inclined to accept the new terms. If the new terms are NOT agreed to, the homeowner will either continue to pay the old monthly amount, or more likely, be forced into foreclosure. In California, a homeowner may walk away from the contract (and the house), but the lender is limited in its ability to seek further $$ from the homeowner, except in certain instances, because California is a non-recourse state - the amount owed is secured by real property, which is the lender's sole recovery tool (again, exceptions abound).
The ability to hold out is a key component of sports player negotiations - several players held out or threatened to do so prior to the start of the 2010-2011 NFL season. But, should the parties have a mechanism to nip such actions in the bud? If you execute a 3 year contract, and after year 1 want to revise the contract to get more $$ or else you won't play, can the team demand the return of already earned $$? I guess it would depend on how the contract was written? Is the compensation yearly based or is it contract term based?
Importantly, and as you will soon learn by reading my daily posts, I am a prolific believer in "preventive" law - that is, in making certain that your contract takes into account as many potential liabilities as possible, and making certain that you are protected in the event of unforeseen circumstances that may arise down the road.
Have a great day!
If you, like me, are a baseball fan, you may recall a player named Rickey Henderson. Mr. Henderson, a recently inducted Hall of Fame player, was one of the standout speed demons of the 80's, a lead off batter who, once on base, was pretty much a lock to score because he could get to 2nd base on his own. He also had surprising power and could occasionally hit a long ball and drive in runs. The Oakland Athletics signed him to what was at the time (early 80's) a nice multiple year contract. At some point, Mr. Henderson's notoriety for stealing bases drew to him a large fan base, which, in turn, inflated Mr. Henderson's ego even more than it already was. He decided to hold out if the team did not renegotiate his contract. Thus, in the sports age, we entered a new phase, a new chapter in labor, a new beginning to contractual enforcement.
What would happen if you walked into a Honda dealership, negotiated a final price of $30,000 for a Honda, and, after purchasing the car, driving off the lot, and spending a year or two with the car, received a call from Honda claiming that the car's popularity required that they renegotiate the price? What if the dealer held the pink slip because you had financed the car through its finance department?
In the real estate field, homeowners seek refinances of their mortgages all the time. However, the refi is a different animal since both parties agree. Think about it, the news is ripe with homeowners pleading with the banks for loan modifications, refinances, or approvals for short sales. In each of the foregoing instances, the homeowner is seeking lender approval to modify the contractual terms previously agreed to. The lender, as we have also seen over the past 2-3 years, may not be inclined to accept the new terms. If the new terms are NOT agreed to, the homeowner will either continue to pay the old monthly amount, or more likely, be forced into foreclosure. In California, a homeowner may walk away from the contract (and the house), but the lender is limited in its ability to seek further $$ from the homeowner, except in certain instances, because California is a non-recourse state - the amount owed is secured by real property, which is the lender's sole recovery tool (again, exceptions abound).
The ability to hold out is a key component of sports player negotiations - several players held out or threatened to do so prior to the start of the 2010-2011 NFL season. But, should the parties have a mechanism to nip such actions in the bud? If you execute a 3 year contract, and after year 1 want to revise the contract to get more $$ or else you won't play, can the team demand the return of already earned $$? I guess it would depend on how the contract was written? Is the compensation yearly based or is it contract term based?
Importantly, and as you will soon learn by reading my daily posts, I am a prolific believer in "preventive" law - that is, in making certain that your contract takes into account as many potential liabilities as possible, and making certain that you are protected in the event of unforeseen circumstances that may arise down the road.
Have a great day!
September 13, 2010
My 1st Blog
Today I discovered Google Blogger. I'm trying several different avenues to blog, so please bear with me while I work out the kinks in this process. First off, a bit about me - I'm a 14+ year attorney "practicing" law in sunny Southern California, in the bedroom community known affectionately as South Orange County. I've been married for more than 18 years, have 3 wonderful kids, and have had my own law practice for the past 3 years or so. My law practice is concentrated in 2 broad areas: business and real estate. I handle transactional matters as well as litigation matters, and have appeared in courts throughout California. I have represented start-up businesses and on-going businesses, sole proprietors, homeowners, sellers, buyers, brokers/agents, and construction entities in a wide (wide) array of issues.
My hope in presenting this blog is to provide readers with some legal knowledge, news, history, and a certain amount of entertainment.
So, ... onward and upward!
My hope in presenting this blog is to provide readers with some legal knowledge, news, history, and a certain amount of entertainment.
So, ... onward and upward!
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