That is the politically correct way of wishing you a very Merry Christmas, Happy Kwanzaa, Happy New Year, and any other Joyful celebration you partake at this time of year!
Here's to a Safe, Healthy, and Peaceful Holiday, no matter how you choose to celebrate at this time of year and for whatever reason!
December 24, 2010
December 20, 2010
To Discover - Ah, The "Heart" of Litigation
So, you've gotten upset enough to file that lawsuit, pay the $395.00 in filing charges, and the other side has actually responded with an Answer. Now what? Well, you may have enough evidence to prove your case, but the other side will likely be asking you for that evidence in the form of "discovery" requests. The other side may also have denied all allegations in your complaint, and as a result, you may wish to educate yourself as to why the other side did not simply "cave" upon receiving your complaint - in other words, you may wish to conduct discovery as well to learn about the other side's case. How do you go about this?
In California, there are the following types of discovery: form interrogatories (official statutorily created questions that allow you to ask certain "common" questions with the check of a box); special interrogatories (you get to create your own questions that are in addition to the form interrogatories) - you get up to 35, but may be entitled to more (which is common); request for production of documents; and request for admissions (* - technically, not discovery, but has a similar effect). Now, there are also other methods, including depositions - oral and written; independent medical examinations (known as IME's), and property inspections.
In each of the foregoing types of discovery, there are pros and cons associated with each. Form Interrogatories are basic, simple, and universal. However, there is legal authority that limits the ability to obtain full responses, even to form interrogatories. The key to discovery is to have a plan of action early in your case. Discovery procedures can be both time consuming and costly, very costly. In addition, depending on the responses provided, the other side may object to the responses given, and demand that either more complete responses be provided or else a formal motion will be brought in court to compel such responses. Sometimes, a court will order sanctions against the responding party as well.
Discovery is a critical tool utilized in the litigation process to both acquire information in formulating your case (whether plaintiff or defendant) as well as to create work and expense to the parties in an effort to push one side or the other into possible early resolution.
I've only grazed this issue, and hope to elaborate on the specifics of discovery down the road.
Stay Dry!
In California, there are the following types of discovery: form interrogatories (official statutorily created questions that allow you to ask certain "common" questions with the check of a box); special interrogatories (you get to create your own questions that are in addition to the form interrogatories) - you get up to 35, but may be entitled to more (which is common); request for production of documents; and request for admissions (* - technically, not discovery, but has a similar effect). Now, there are also other methods, including depositions - oral and written; independent medical examinations (known as IME's), and property inspections.
In each of the foregoing types of discovery, there are pros and cons associated with each. Form Interrogatories are basic, simple, and universal. However, there is legal authority that limits the ability to obtain full responses, even to form interrogatories. The key to discovery is to have a plan of action early in your case. Discovery procedures can be both time consuming and costly, very costly. In addition, depending on the responses provided, the other side may object to the responses given, and demand that either more complete responses be provided or else a formal motion will be brought in court to compel such responses. Sometimes, a court will order sanctions against the responding party as well.
Discovery is a critical tool utilized in the litigation process to both acquire information in formulating your case (whether plaintiff or defendant) as well as to create work and expense to the parties in an effort to push one side or the other into possible early resolution.
I've only grazed this issue, and hope to elaborate on the specifics of discovery down the road.
Stay Dry!
December 10, 2010
Constitutional Issue of the Day: Discrimination
I just read a great article by the American Medical Association on the legal ability to curb smoking in the workplace ... and outside the workplace. Read it here: http://bit.ly/b0avVL
I also read an article earlier on Yahoo (sorry, I don't have the link) regarding a new business in Wisconsin whose owner put a sign on the window that said, "No Negro's Allowed" [spelling original.] The owner noted that, since it's his private business, he should be able to refuse service to anyone and, since he has had unfortunate incidents with colored persons in the past, his sign is simply providing notice before such persons enter the premises of his feelings. Who cares about Equal Protection these days? Oh, by the way, the business is a "strip/gentleman's club".
These issues fall right in line with the current debate on California's Proposition 8 - Marriage between same gender spouses. Actually, of the three issues, I think the first (anti-smoking) and the third (gay marriage) issues are more analogous than the second (race/color). The rationale for prohibiting smoking employees, whether they smoke during work or not, is that smoking is a clear health danger. The Surgeon General has repeatedly warned us about the ill-sided effects of smoking, both to ourselves as well as to others. The primary reason to an employer, then, is that his health-care premiums will increase with each smoking employee. Thus, from a cost standpoint, it is obviously better to prohibit smokers. Another reason, obviously, is that non-smokers tend to get sick less often than their smoking counter-parts. As the courts have held (see the AMA article above), while there is discrimination, such discrimination does not involve a paramount liberty and as long as there exists a rationale reason for the discrimination, the courts at present will not prohibit such conduct.
Same gender marriage can be coined in a similar rationale. While I personally do not have any problem with same gender marriages, and frankly believe that such marriage should be lawful, the issue that comes up most often is benefits paid out by pensions and the acquisition of insurance where spousal requirements are strictly enforced. How does one prove that a spousal relationship exists, especially with regard to same gender couples?
The issues are complex, and will continue to be debated for years to come, I am afraid. That said, the issue over whether a prejudiced person can prohibit some patrons from entering his private club, if open to the public, is a bit more straight forward. The Equal Protection Clause, as well as the 14th Amendment are pretty straight forward, I think ... if you want to invite the public into your establishment, you cannot discriminate on the basis of race, gender, etc. "Gay" bars are required to serve "straight" customers; gentleman's clubs must allow entry to women, men, and all races, religions, etc.
Have a Safe Weekend!
I also read an article earlier on Yahoo (sorry, I don't have the link) regarding a new business in Wisconsin whose owner put a sign on the window that said, "No Negro's Allowed" [spelling original.] The owner noted that, since it's his private business, he should be able to refuse service to anyone and, since he has had unfortunate incidents with colored persons in the past, his sign is simply providing notice before such persons enter the premises of his feelings. Who cares about Equal Protection these days? Oh, by the way, the business is a "strip/gentleman's club".
These issues fall right in line with the current debate on California's Proposition 8 - Marriage between same gender spouses. Actually, of the three issues, I think the first (anti-smoking) and the third (gay marriage) issues are more analogous than the second (race/color). The rationale for prohibiting smoking employees, whether they smoke during work or not, is that smoking is a clear health danger. The Surgeon General has repeatedly warned us about the ill-sided effects of smoking, both to ourselves as well as to others. The primary reason to an employer, then, is that his health-care premiums will increase with each smoking employee. Thus, from a cost standpoint, it is obviously better to prohibit smokers. Another reason, obviously, is that non-smokers tend to get sick less often than their smoking counter-parts. As the courts have held (see the AMA article above), while there is discrimination, such discrimination does not involve a paramount liberty and as long as there exists a rationale reason for the discrimination, the courts at present will not prohibit such conduct.
Same gender marriage can be coined in a similar rationale. While I personally do not have any problem with same gender marriages, and frankly believe that such marriage should be lawful, the issue that comes up most often is benefits paid out by pensions and the acquisition of insurance where spousal requirements are strictly enforced. How does one prove that a spousal relationship exists, especially with regard to same gender couples?
The issues are complex, and will continue to be debated for years to come, I am afraid. That said, the issue over whether a prejudiced person can prohibit some patrons from entering his private club, if open to the public, is a bit more straight forward. The Equal Protection Clause, as well as the 14th Amendment are pretty straight forward, I think ... if you want to invite the public into your establishment, you cannot discriminate on the basis of race, gender, etc. "Gay" bars are required to serve "straight" customers; gentleman's clubs must allow entry to women, men, and all races, religions, etc.
Have a Safe Weekend!
December 8, 2010
Unlicensed Contractors - Can BK save them?
In a previous entry back several weeks ago, I explained how unlicensed contractors in California are not allowed to keep any money paid to them for construction projects whether or not the job was completed in a reasonable workmanlike manner. California Bus. & Prof. Code Section 7031(b). This is based on strong public policy that prohibits unlicensed contractors from working in California on projects over $500.00 to protect owners of property from shoddy work.
To obtain his or her money, the owner must generally sue the unlicensed contractor in California state court. The causes of action that are often alleged include: Violation of Bus & Prof Code Section 7031(b), breach of contract, and fraud. However, the first two are much easier to assess damages: any money paid must be returned. Fraud, however, requires that the misrepresentation (assuming there was one) caused the owner damages. If the work was done in a reasonable workmanlike manner, then the owner received something of value in consideration of the payment, notwithstanding the statute violation. So, the court will not award more than what was paid (ie, the court will order that the owner's money be returned).
The issue that has arisen is whether an unlicensed contractor defendant, sued and found liable for the violation of Section 7031(b), may avoid payment to the owner by filing for bankruptcy protection. Generally, a judgment is simply an unsecured debt for which bankruptcy (except in certain exceptions) discharges. In the recent case of In Re Sabban (9th Cir. 2010) 600 F.3d 1219, the 9th Circuit Court of Appeals affirmed the lower bankruptcy court's ruling that, unless the debtor is found liable for actionable fraud - owner/plaintiff is awarded damages in excess of the restitution under Section 7031 - the debt (restitution under Section 7031(b)) will be discharged by the bankruptcy.
This case is important because it basically flies in the face of California's policy to protect the owner, and allows an "out" for the unlicensed contractor who violates a state law, but is absolved of such conduct. Potentially, Section 7031, et seq. also provides for public monetary penalties. It is unclear if the decision is meant to negate the defendant debtor's liability for the penalties as well. Anticipate more on this to come.
To obtain his or her money, the owner must generally sue the unlicensed contractor in California state court. The causes of action that are often alleged include: Violation of Bus & Prof Code Section 7031(b), breach of contract, and fraud. However, the first two are much easier to assess damages: any money paid must be returned. Fraud, however, requires that the misrepresentation (assuming there was one) caused the owner damages. If the work was done in a reasonable workmanlike manner, then the owner received something of value in consideration of the payment, notwithstanding the statute violation. So, the court will not award more than what was paid (ie, the court will order that the owner's money be returned).
The issue that has arisen is whether an unlicensed contractor defendant, sued and found liable for the violation of Section 7031(b), may avoid payment to the owner by filing for bankruptcy protection. Generally, a judgment is simply an unsecured debt for which bankruptcy (except in certain exceptions) discharges. In the recent case of In Re Sabban (9th Cir. 2010) 600 F.3d 1219, the 9th Circuit Court of Appeals affirmed the lower bankruptcy court's ruling that, unless the debtor is found liable for actionable fraud - owner/plaintiff is awarded damages in excess of the restitution under Section 7031 - the debt (restitution under Section 7031(b)) will be discharged by the bankruptcy.
This case is important because it basically flies in the face of California's policy to protect the owner, and allows an "out" for the unlicensed contractor who violates a state law, but is absolved of such conduct. Potentially, Section 7031, et seq. also provides for public monetary penalties. It is unclear if the decision is meant to negate the defendant debtor's liability for the penalties as well. Anticipate more on this to come.
December 6, 2010
The Cost of Legal Services - I have to pay what?!?
What would you rather shell out $1,000 for? A new computer, a new diamond ring, a new racing bicycle, 5 passports to Disneyland? What about a couple of crowns and fillings to alleviate your toothache? What about laser eye surgery so you can see better? What about drafting a simple partnership agreement so, should something ever occur to your new business partnership, you'll have a cost-effective exit strategy?
My bet is that the latter is low on the list. Why? Because legal services are often expensive, though invaluable down the road ... and, importantly, the thought most of us consider is, "Can't I just do this myself and save a few bucks?" Of course you can. I often meet with potential clients who wonder out loud during our consultation meeting what the benefit is of having an attorney draft business documents, incorporate a business, or even answer a complaint in court. I believe my fees are competitive, yet to a layperson, they are certainly costly in comparison to what else that money may buy. What is the fee charged and thereafter paid used for?
For starters, my practice of law is a business, just like anyone else's - my fees pay for the operation of that business - rent, supplies, employees, vendor services, and importantly insurance; it also pays my personal expenses in raising my family.
Specifically, however, the fee paid is charged for knowledge and experience in handling the matter covered as much as for the time in having to deal with the particular client's concerns. The client also gains that time spent by the attorney so that, instead of dealing directly with the issue, the client can concentrate on other pressing matters, such as the operation of the business, hiring employees, buying merchandise, and otherwise, dealing with necessary day-to-day issues affecting the client.
I've said it before - you can cook your own food, prepare your own taxes, mow your own lawn, repair your own car, handle your own travel plans, sew your own clothes, and handle your legal affairs. And, for much of life, we do ... whenever we purchase something, we usually read the "small print" ourselves and make the purchase without our attorney present; without calling our tax adviser every time we purchase or sell something; plant flowers without the licensed landscaper; put oil in our car without the mechanic standing over our shoulder. On the other hand, when various matters become too time consuming, remember that the fees charged go a long way to advance YOUR cause, whatever that may be.
Until next time!
My bet is that the latter is low on the list. Why? Because legal services are often expensive, though invaluable down the road ... and, importantly, the thought most of us consider is, "Can't I just do this myself and save a few bucks?" Of course you can. I often meet with potential clients who wonder out loud during our consultation meeting what the benefit is of having an attorney draft business documents, incorporate a business, or even answer a complaint in court. I believe my fees are competitive, yet to a layperson, they are certainly costly in comparison to what else that money may buy. What is the fee charged and thereafter paid used for?
For starters, my practice of law is a business, just like anyone else's - my fees pay for the operation of that business - rent, supplies, employees, vendor services, and importantly insurance; it also pays my personal expenses in raising my family.
Specifically, however, the fee paid is charged for knowledge and experience in handling the matter covered as much as for the time in having to deal with the particular client's concerns. The client also gains that time spent by the attorney so that, instead of dealing directly with the issue, the client can concentrate on other pressing matters, such as the operation of the business, hiring employees, buying merchandise, and otherwise, dealing with necessary day-to-day issues affecting the client.
I've said it before - you can cook your own food, prepare your own taxes, mow your own lawn, repair your own car, handle your own travel plans, sew your own clothes, and handle your legal affairs. And, for much of life, we do ... whenever we purchase something, we usually read the "small print" ourselves and make the purchase without our attorney present; without calling our tax adviser every time we purchase or sell something; plant flowers without the licensed landscaper; put oil in our car without the mechanic standing over our shoulder. On the other hand, when various matters become too time consuming, remember that the fees charged go a long way to advance YOUR cause, whatever that may be.
Until next time!
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