I had the pleasure of discussing the Jewish holiday, Rosh Hashanah, New Year for Jews around the globe, with my children this morning. The celebration of the entry of another year, and our hope that it brings us much joy and happiness; that we taste the sweetness that life brings to us. Good times! It was nice to see that they were appreciative of the holiday and the joy surrounding it.
From another perspective, it is interesting that Jews celebrate the New Year before observing the Day of Atonement about 10 days later, Yom Kippur. Some would think that we should atone for the sins of the prior year before the beginning of the new year - to begin the year with a clean slate. Yet, to some degree, it serves as a reminder that, sin or no sin, life moves forward. New beginnings and new opportunities will arise, and we must strive to create those opportunities based on our past experiences, good or bad. Thus, the new year arrives, and with it, the sense of better results ahead. Yet, as we proceed down this different, and hopefully better course of action, God reminds us that we must look to the past to better understand how we intend to go forward.
So, HAPPY NEW YEAR! Let us celebrate good times and the hope that we may experience better roads ahead. And, as Yom Kippur arrives late next weekend, let us further recall what has shaped us to this point, good or bad, and learn from those experiences, to better our Year!
What are you looking forward to in this New Year?
September 29, 2011
August 25, 2011
JUST WHEN YOU THINK YOU KNOW IT ALL ...
Do you realize how much the education system in this country (and elsewhere, I presume) prepares you for 'life'? Today is Orientation Day for my oldest child, who enters middle school shortly after Labor Day. I'm sure most of us can look back (way back) to that day and recall the anxiety we faced. Suddenly, class sizes grew, the entire grade's population grew, and importantly, rather than being part of the top grade in elementary school, we were thrust into the lowest rung at a new school.
Thankfully, the year progressed, and soon we were the top rung (or at least, no longer the 'newby' on the block, as it were). We figured out changing classes, locker combinations, and how to take very quick showers after Phys. Ed. Heck, I even learned how to square dance which, while I have not had the opportunity to participate in since then, I'm sure would be just like riding a bike if I ever had the chance to participate in such dancing again.
But, the creme de la creme only lasts so long, right? In just 1-2 years we were thrust back to the lowest rung again, this time in high school - and, of course, it took longer to climb back to the top in high school; or at least it felt that way.
Ah, 12th grade ... graduation from high school and you're on top of the world, right? But, whether you head off to college, a trade school, the military, or simply a starting position at some job, you get thrust right back down to the bottom rung. And, depending on which path you decided to take, that rung may have seemed much further down than the last time.
In time, again, we learn, we experience, and we climb the ladder of life. What the education system does, is it lessens our psychological "defeat", if you will, to the repeating "slam" back to the lower rungs. Because, of course, that is how life treats us. We graduate college or serve our four years in the military or perhaps our company goes out of business, and then we must pick ourselves up and go look for another opportunity. And, our background gives us the experience to understand that we can do it. We can achieve our goals, even if we get knocked around every so often.
I know, nothing really on the legal front in this blog, but I thought the issue presented was timely.
Have a Great Day!
Thankfully, the year progressed, and soon we were the top rung (or at least, no longer the 'newby' on the block, as it were). We figured out changing classes, locker combinations, and how to take very quick showers after Phys. Ed. Heck, I even learned how to square dance which, while I have not had the opportunity to participate in since then, I'm sure would be just like riding a bike if I ever had the chance to participate in such dancing again.
But, the creme de la creme only lasts so long, right? In just 1-2 years we were thrust back to the lowest rung again, this time in high school - and, of course, it took longer to climb back to the top in high school; or at least it felt that way.
Ah, 12th grade ... graduation from high school and you're on top of the world, right? But, whether you head off to college, a trade school, the military, or simply a starting position at some job, you get thrust right back down to the bottom rung. And, depending on which path you decided to take, that rung may have seemed much further down than the last time.
In time, again, we learn, we experience, and we climb the ladder of life. What the education system does, is it lessens our psychological "defeat", if you will, to the repeating "slam" back to the lower rungs. Because, of course, that is how life treats us. We graduate college or serve our four years in the military or perhaps our company goes out of business, and then we must pick ourselves up and go look for another opportunity. And, our background gives us the experience to understand that we can do it. We can achieve our goals, even if we get knocked around every so often.
I know, nothing really on the legal front in this blog, but I thought the issue presented was timely.
Have a Great Day!
July 6, 2011
OUR JURY SYSTEM - TIME FOR THE SCRAP PILE?
Not Guilty!
We, as a society, have learned to expect shocking verdicts after well publicized criminal trials. The recent "not guilty" verdict in the Casey Anthony trial is just the most recent example. Whenever I counsel clients with respect to potential civil lawsuits, I almost always reference the fact that, assuming the case will be tried by a jury (or by the court - judge), there is a chance, a good chance, that the case will result in an incorrect verdict - my "OJ Factor". There are simply times when a jury does not interpret the facts with the correct "interpretation" or understanding of the law that guides them.
Our jury system, at least in the criminal court, is based on the constitutional right to a trial by our peers. Who ends up being in that "peer" description, however, is often a toss up. Our system generally requires a unanimous "guilty" verdict. As most juries are comprised of between 9-12 jurors, that can seem daunting, especially considering that one can only be found guilty if the jury finds that person responsible for the crime "beyond a reasonable doubt".
Beyond a reasonable doubt ... the description of this phrase can take up 3-4 weeks of intense discussion in law school; yet, layperson (non-lawyer) jurors are often required to understand its meaning in hours after being handed the case upon completion of closing arguments. Or at least, they are supposed to understand the terminology after receiving the case and determining the facts in light of such law (among others).
I recall vividly my criminal law and criminal procedure classes in law school because both occurred around the time that OJ was tried and found innocent - much to the dismay of LA DA, who I recall, adamantly confirmed that Mr. Simpson was guilty (prior to any criminal court proceedings). The elements of various crimes appear straight forward, and yet, the specificity of the various elements is critical in understanding how those elements either exist or not in any particular set of facts. Again, each of these courses was an entire semester. We expect our juries to understand the nuances of the law and how to interpret the facts in light of such nuances.
After once again observing a case that, frankly, should have resulted in a "guilty" verdict, be absolutely muddled by the jury, I renew my opinion that a jury should not be of one's peers, but should be a group of professional jurors, with the knowledge and, importantly experience, to handle the often intricate issues surrounding criminal law. We already allow civil matters to be heard by a judge; other countries have done away with the jury system (Israel, for instance). Some states have grand jury systems which stay "in session" for one year. The issue is not a new one.
What are your thoughts? I will provide more of my own in the near term.
We, as a society, have learned to expect shocking verdicts after well publicized criminal trials. The recent "not guilty" verdict in the Casey Anthony trial is just the most recent example. Whenever I counsel clients with respect to potential civil lawsuits, I almost always reference the fact that, assuming the case will be tried by a jury (or by the court - judge), there is a chance, a good chance, that the case will result in an incorrect verdict - my "OJ Factor". There are simply times when a jury does not interpret the facts with the correct "interpretation" or understanding of the law that guides them.
Our jury system, at least in the criminal court, is based on the constitutional right to a trial by our peers. Who ends up being in that "peer" description, however, is often a toss up. Our system generally requires a unanimous "guilty" verdict. As most juries are comprised of between 9-12 jurors, that can seem daunting, especially considering that one can only be found guilty if the jury finds that person responsible for the crime "beyond a reasonable doubt".
Beyond a reasonable doubt ... the description of this phrase can take up 3-4 weeks of intense discussion in law school; yet, layperson (non-lawyer) jurors are often required to understand its meaning in hours after being handed the case upon completion of closing arguments. Or at least, they are supposed to understand the terminology after receiving the case and determining the facts in light of such law (among others).
I recall vividly my criminal law and criminal procedure classes in law school because both occurred around the time that OJ was tried and found innocent - much to the dismay of LA DA, who I recall, adamantly confirmed that Mr. Simpson was guilty (prior to any criminal court proceedings). The elements of various crimes appear straight forward, and yet, the specificity of the various elements is critical in understanding how those elements either exist or not in any particular set of facts. Again, each of these courses was an entire semester. We expect our juries to understand the nuances of the law and how to interpret the facts in light of such nuances.
After once again observing a case that, frankly, should have resulted in a "guilty" verdict, be absolutely muddled by the jury, I renew my opinion that a jury should not be of one's peers, but should be a group of professional jurors, with the knowledge and, importantly experience, to handle the often intricate issues surrounding criminal law. We already allow civil matters to be heard by a judge; other countries have done away with the jury system (Israel, for instance). Some states have grand jury systems which stay "in session" for one year. The issue is not a new one.
What are your thoughts? I will provide more of my own in the near term.
June 28, 2011
POLITICS - WHEN LOBBYING GOES TOO FAR
As I am sure you are aware, former Illinois Governor Rod Blagojevich was convicted yesterday on 17 of 20 felony counts stemming from his illegal use of his power as governor to influence (or attempt to) political outcomes - such as the selection of a replacement for now President Obama's former Illinois Senate seat. In summary, Mr. Blagojevich apparently felt he could sell the seat to the highest bidder, or otherwise obtain some form of compensation, whether through monetary gain or otherwise, as consideration for his appointment to the Senate seat.
Let's back up - lobbying in politics is as old as politics itself. Lobbyists are an important function within a democratic system whereby constituents elect representatives to their government to create and enforce laws that affect those very constituents. Lobbyists are individuals or groups of individuals that represent various specific positions relating to those laws/affects, and who attempt to influence politicians so that those politicians will support those positions in the formation and enforcement of such laws. How lobbyists "influence" the voting is key and has long been a source of concern for the government.
The US Federal Government has long attempted to restrict lobbying from being viewed as having an undue influence or "backdoor" political favoritism, which is of course, looked down upon by constituents. In 2007, Congress passed a major modification to the Lobbying Disclosure Act of 1995 - the revised law became known as the "Honest Leadership and Open Government Act of 2007." The primary mission of the law was to "provide greater transparency in the Legislative process." In summary, the law attempts to regulate lobbying by requiring several different stages of disclosure for those in the lobby business. It also restricts former legislators and senators from certain activities upon their departure from Congress.
In short, the effect is to minimize the ability of lobbyists to have an undue influence over politicians through the use of favors, gifts, bribes, jobs, etc. Why? Because politicians should be elected (or in the rare cases appointed) based upon skill, experience, knowledge, and their ability to provide for their constituents based objectively on various factors, not bought to serve those in powerful positions.
Politics have long been looked down upon because of these very virtues - the fact that if you rub my back, I'll have yours down the road. But, while certain tit for tat is normal, when the parties up the ante by suggesting that an interested person need only pay someone else, then it becomes more than favoritism - it becomes bribery, extortion, or simply fraud of the system.
Former Governor Blagojevich thankfully has a big mouth, as well as the underlying belief that he was too powerful to get caught. The latter belief is quite common with white collar criminals, and organized crime comes to mind. Unfortunately, it is also quite common that politicians believe that they have the ability to trade their use of politics to favor individuals, groups, or organizations over others in exchange for monetary gain. Governor Blagojevich is not the first to be caught, and he certainly will not be the last. Indeed, in California, there are several recent incidents of local governing officials being indicted for similar conduct.
Hopefully, Governor Blagojevich will be sentenced to a long prison sentence; unfortunately, I do not believe that the sentence will deter future conduct, because governmental power - the feeling of being above the law - is too great of a drug.
What are your thoughts?
Let's back up - lobbying in politics is as old as politics itself. Lobbyists are an important function within a democratic system whereby constituents elect representatives to their government to create and enforce laws that affect those very constituents. Lobbyists are individuals or groups of individuals that represent various specific positions relating to those laws/affects, and who attempt to influence politicians so that those politicians will support those positions in the formation and enforcement of such laws. How lobbyists "influence" the voting is key and has long been a source of concern for the government.
The US Federal Government has long attempted to restrict lobbying from being viewed as having an undue influence or "backdoor" political favoritism, which is of course, looked down upon by constituents. In 2007, Congress passed a major modification to the Lobbying Disclosure Act of 1995 - the revised law became known as the "Honest Leadership and Open Government Act of 2007." The primary mission of the law was to "provide greater transparency in the Legislative process." In summary, the law attempts to regulate lobbying by requiring several different stages of disclosure for those in the lobby business. It also restricts former legislators and senators from certain activities upon their departure from Congress.
In short, the effect is to minimize the ability of lobbyists to have an undue influence over politicians through the use of favors, gifts, bribes, jobs, etc. Why? Because politicians should be elected (or in the rare cases appointed) based upon skill, experience, knowledge, and their ability to provide for their constituents based objectively on various factors, not bought to serve those in powerful positions.
Politics have long been looked down upon because of these very virtues - the fact that if you rub my back, I'll have yours down the road. But, while certain tit for tat is normal, when the parties up the ante by suggesting that an interested person need only pay someone else, then it becomes more than favoritism - it becomes bribery, extortion, or simply fraud of the system.
Former Governor Blagojevich thankfully has a big mouth, as well as the underlying belief that he was too powerful to get caught. The latter belief is quite common with white collar criminals, and organized crime comes to mind. Unfortunately, it is also quite common that politicians believe that they have the ability to trade their use of politics to favor individuals, groups, or organizations over others in exchange for monetary gain. Governor Blagojevich is not the first to be caught, and he certainly will not be the last. Indeed, in California, there are several recent incidents of local governing officials being indicted for similar conduct.
Hopefully, Governor Blagojevich will be sentenced to a long prison sentence; unfortunately, I do not believe that the sentence will deter future conduct, because governmental power - the feeling of being above the law - is too great of a drug.
What are your thoughts?
June 15, 2011
DO I NEED TO FILE A LAWSUIT TO REMOVE A DEADBEAT?
Landlords often find that the law is not necessarily in their favor when it comes to removing a tenant who fails to perform under the terms of the lease agreement - ie, fails to pay the rent. In most cases, a landlord will be required to serve the tenant with a 3 day Notice to Pay/Cure or Quit; thereafter, should the tenant still fail to pay/cure, the landlord will be required to file a lawsuit, known in California (and most other states) as an Unlawful Detainer. While the civil procedure requirements are special, and such cases proceed much more quickly than the usual civil lawsuit, it still takes time before the landlord ultimately receives an order to kick the tenant out - most times, it takes at least 3-6 weeks, depending on various factors, though I have seen it take up to 3 months in the past.
However, there is an instance where a lawsuit is not required, where the landlord may be able to evict the tenant/lodger without court action. Civil Code section 1946.5 states, in pertinent part, as follows:
"(a) The hiring of a room by a lodger on a periodic basis within a dwelling unit occupied by the owner may be terminated by either party giving written notice to the other of his or her intention to terminate the hiring, at least as long before the expiration of the term of the hiring ... The notice shall be given in a manner prescribed in Section 1162 of the Code of Civil Procedure or by certified or registered mail; ...
(b) Upon expiration of the notice period provided in the notice of termination given ... any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger's removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law.
(c) ... "lodger" means a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit.
(d) This section applies only to owner occupied dwellings where a single lodger resides. ..."
Thus, where an owner of a residence (not a tenant) resides at that residence and allows a lodger/tenant (a single lodger/tenant) to occupy a portion of that residence, the landlord has special rights which, as long as the requirements of Section 1146.5 are complied with, allows the landlord to treat the terminated tenant/lodger as a trespasser, and may remove the person without a court order - by simply contacting the police.
An example would be if you let your "friend" who recently moved out of his parents' house, crash on your couch for a few days or weeks until he finds a suitable place to live. If you become tired of your friend, and cannot otherwise get him to leave, you could resort to formally dispatching his person via Section 1946.5.
Have a great day!
However, there is an instance where a lawsuit is not required, where the landlord may be able to evict the tenant/lodger without court action. Civil Code section 1946.5 states, in pertinent part, as follows:
"(a) The hiring of a room by a lodger on a periodic basis within a dwelling unit occupied by the owner may be terminated by either party giving written notice to the other of his or her intention to terminate the hiring, at least as long before the expiration of the term of the hiring ... The notice shall be given in a manner prescribed in Section 1162 of the Code of Civil Procedure or by certified or registered mail; ...
(b) Upon expiration of the notice period provided in the notice of termination given ... any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger's removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law.
(c) ... "lodger" means a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit.
(d) This section applies only to owner occupied dwellings where a single lodger resides. ..."
Thus, where an owner of a residence (not a tenant) resides at that residence and allows a lodger/tenant (a single lodger/tenant) to occupy a portion of that residence, the landlord has special rights which, as long as the requirements of Section 1146.5 are complied with, allows the landlord to treat the terminated tenant/lodger as a trespasser, and may remove the person without a court order - by simply contacting the police.
An example would be if you let your "friend" who recently moved out of his parents' house, crash on your couch for a few days or weeks until he finds a suitable place to live. If you become tired of your friend, and cannot otherwise get him to leave, you could resort to formally dispatching his person via Section 1946.5.
Have a great day!
June 9, 2011
PREVENTION - THE WRITTEN CONTRACT
How often do we make contracts in life? Quite often, actually. In fact, most all of us make daily contracts with so many different people, it is hardly difficult to think of your last one.
Let's take an average day. You get up in the morning, head out the door, and go get that first cup of Joe. $2-$3 at the local coffee shop. In reality, that's a contract, right? The coffee shop offers a cup of good coffee for $2; you agree to pay that price, hand over your $2, and wait while the coffee clerk makes your steaming cup o'Joe. When you receive your cup, the deal is fully performed. You go about your day. If you take the bus/train/toll road, you pay $$ to use that type of transportation and, in return, the city, county, state, etc. allows you to use the bus, train, toll road. You turn on the TV in the evening to watch the latest Fake Housewives show, and guess what, you get cable TV because you and the cable company previously agreed that, in exchange for $$, you get the shows. Thus, we make contracts all day long, usually without thinking seriously about the terms of the contract.
Sometimes, there is "fine print" or other written verbage that defines the terms. Usually, however, we simply agree to pay a price in consideration of receiving the goods or services sold, without thinking too heavily about conditions on the agreement.
Sometimes, however, an agreement must be in writing, with specific terms outlined in writing, and signed by the parties to the agreement. Public policy outlines many of these types of writings: Promissory notes, real property transactions, and purchases of goods worth more than $500 are the most common. The rationale is that a written agreement provides proof, more than just testimony/memory, but actual written terms for the parties to follow. Should something not go according to plan, you can take the writing into court and the court can interpret the meaning of the contract. Think of a dispute as a tornado. Think of insurance as the written contract that existed prior to the dispute. Your life will be turned upside down by the tornado's impact; but, you will be able to get through it with the insurance. Same with a dispute between parties to an agreement. With the written contract, you will have a much better chance of righting the ship than if you risked a dispute without such written agreement.
If you do business, you need to review your written contracts at least annually to insure that they comply with laws, are simple to understand, and specifically, protect your interests should a dispute over that agreement arise.
Have a Great Day!
Let's take an average day. You get up in the morning, head out the door, and go get that first cup of Joe. $2-$3 at the local coffee shop. In reality, that's a contract, right? The coffee shop offers a cup of good coffee for $2; you agree to pay that price, hand over your $2, and wait while the coffee clerk makes your steaming cup o'Joe. When you receive your cup, the deal is fully performed. You go about your day. If you take the bus/train/toll road, you pay $$ to use that type of transportation and, in return, the city, county, state, etc. allows you to use the bus, train, toll road. You turn on the TV in the evening to watch the latest Fake Housewives show, and guess what, you get cable TV because you and the cable company previously agreed that, in exchange for $$, you get the shows. Thus, we make contracts all day long, usually without thinking seriously about the terms of the contract.
Sometimes, there is "fine print" or other written verbage that defines the terms. Usually, however, we simply agree to pay a price in consideration of receiving the goods or services sold, without thinking too heavily about conditions on the agreement.
Sometimes, however, an agreement must be in writing, with specific terms outlined in writing, and signed by the parties to the agreement. Public policy outlines many of these types of writings: Promissory notes, real property transactions, and purchases of goods worth more than $500 are the most common. The rationale is that a written agreement provides proof, more than just testimony/memory, but actual written terms for the parties to follow. Should something not go according to plan, you can take the writing into court and the court can interpret the meaning of the contract. Think of a dispute as a tornado. Think of insurance as the written contract that existed prior to the dispute. Your life will be turned upside down by the tornado's impact; but, you will be able to get through it with the insurance. Same with a dispute between parties to an agreement. With the written contract, you will have a much better chance of righting the ship than if you risked a dispute without such written agreement.
If you do business, you need to review your written contracts at least annually to insure that they comply with laws, are simple to understand, and specifically, protect your interests should a dispute over that agreement arise.
Have a Great Day!
June 2, 2011
RIP FRIEND
This morning, I learned about the tragic death of a friend, Justin. Apparently, he was a passenger in a small aircraft making a business trip with 2 others and the pilot when, while trying to land at an airport near the Utah/Nevada border, the plane lost altitude and quickly nosed into the ground, killing all passengers and the pilot. We met because we lived in the same local community and his children and mine were classmates together at the local school. While not close friends, we had the opportunity to share many events together, and we even spoke about potential business relations.
No, this is not your typical legal blog. I simply am writing it as a tribute to someone who took life by the horns and directed his life to the fullest extent. A devout Christian, he put his family first, treated his friends as though they were extended family members, and participated in life's daily cycle with a positive glow. Whenever I met with him, whether briefly in passing or for an extended time, he ALWAYS was in a positive mood, and showed respect and sincere appreciation for whatever the day brought to him.
I know his family and friends grieve at this time, especially since his life was cut short so early (he was 36). But, in thinking about the common saying, "live life to the fullest!" Justin did just that, and welcomed all of us to share in such action.
REST IN PEACE, FRIEND. BLESSINGS TO YOU AND YOUR FAMILY.
YOUR FRIEND, ABE
No, this is not your typical legal blog. I simply am writing it as a tribute to someone who took life by the horns and directed his life to the fullest extent. A devout Christian, he put his family first, treated his friends as though they were extended family members, and participated in life's daily cycle with a positive glow. Whenever I met with him, whether briefly in passing or for an extended time, he ALWAYS was in a positive mood, and showed respect and sincere appreciation for whatever the day brought to him.
I know his family and friends grieve at this time, especially since his life was cut short so early (he was 36). But, in thinking about the common saying, "live life to the fullest!" Justin did just that, and welcomed all of us to share in such action.
REST IN PEACE, FRIEND. BLESSINGS TO YOU AND YOUR FAMILY.
YOUR FRIEND, ABE
May 2, 2011
OSAMA BIN LADEN IS DEAD - ONE DOWN, MORE TO GO
Last night, as my wife and I waited for "The Amazing Race" to air, we learned that President Obama would be speaking to the nation in 10 minutes (about the time the show would start). We immediately changed the channel to CNN and learned that high level sources were confirming that Osama bin Laden was dead. In the 30-45 minutes that followed, we learned that bin Laden had been killed by US Operatives in Pakistan, that his body had been recovered and confirmed to be bin Laden's. We listened to President Obama describe the events leading up to bin Laden's death, and then watched as several hundred people staged an impromptu celebration in front of the White House. The latter gave me chills when the supporters began singing The Star Spangled Banner and God Bless America, as had been done on 9/11 by the entire Congress (I had chills then too).
Justice was finally served with respect to bin Laden. But, as is with all bits of satisfying news information, we must stand vigilant to the continued threat of terrorist attacks, from within and from abroad. Our nation is built on many freedoms - many which we take for granted, and which others around the world both envy and despise. Bin Laden was only one of many terrorist leaders who have come and now gone. Unfortunately, so long as there are human beings in this world who believe that their way is mightier or that others must bow to their opinions, there will be others similar to bin Laden.
And, importantly, especially after reading so many "tweets" and "comments" via social media over the course of the day, we must not politicize the death of bin Laden. The work of many political groups, Democratic, Republican, and others, were all responsible for bringing about the capture/death of bin Laden. No, I am not a fan of President Obama, but his administration certainly deserves much credit for continuing the efforts already being made from prior administrations (and not just the Bush administration, but Clinton, elder Bush, Reagan, and beyond) to seek out and destroy terrorist campaigns which have threatened US citizens here and around the world. I applaud President Obama for the courage to continue such campaign, even though many others repeatedly tried in vain to limit such efforts.
Today, the news of bin Laden's death brings continued hope and optimism that freedom and peace will someday prevail here and around the world. Will it? Only time and continued perseverance will tell.
Justice was finally served with respect to bin Laden. But, as is with all bits of satisfying news information, we must stand vigilant to the continued threat of terrorist attacks, from within and from abroad. Our nation is built on many freedoms - many which we take for granted, and which others around the world both envy and despise. Bin Laden was only one of many terrorist leaders who have come and now gone. Unfortunately, so long as there are human beings in this world who believe that their way is mightier or that others must bow to their opinions, there will be others similar to bin Laden.
And, importantly, especially after reading so many "tweets" and "comments" via social media over the course of the day, we must not politicize the death of bin Laden. The work of many political groups, Democratic, Republican, and others, were all responsible for bringing about the capture/death of bin Laden. No, I am not a fan of President Obama, but his administration certainly deserves much credit for continuing the efforts already being made from prior administrations (and not just the Bush administration, but Clinton, elder Bush, Reagan, and beyond) to seek out and destroy terrorist campaigns which have threatened US citizens here and around the world. I applaud President Obama for the courage to continue such campaign, even though many others repeatedly tried in vain to limit such efforts.
Today, the news of bin Laden's death brings continued hope and optimism that freedom and peace will someday prevail here and around the world. Will it? Only time and continued perseverance will tell.
April 21, 2011
CORPORATION FORMATION - RELATIVELY SIMPLE PROCESS WITH STICKY DETAILS
Many times I have learned of current businesses operating as corporations, only to discover that the owners have not taken further steps to solidify the legality of their corporate entity. What do I mean by this? To start-up as a new corporation, the process is actually fairly easy if you have a bit of time.
In most states (and again, my specific comments are limited to the State of California, as I am licensed here), as in California, the process begins with checking to confirm that the name you wish to utilize is not taken. In California, you have two basic options: either "wing it" by looking at the Secretary of State's website and making your own determination whether the name is available or not, or send a letter to the Secretary of State specifically requesting a response that the name is available (or not), and reserving the name. This process is simple, and can be done within 1 hour - 10-15 days (depending on whether you go with the "wing it" option or reserve option).
Once you confirm the name, you prepare and file a document known as the corporation's Articles of Incorporation. In California, there is a $100 filing fee if by mail, an additional $15 "over-the-counter" filing fee - which means that if you wish to walk your Articles into the Secretary of State's office, you'll pay an additional $15, but save 2-3 weeks off the filing date confirmation. In California, you may also file through a service known as "Expedited Filing", pay an additional $250-$750, and obtain confirmation that your Articles were filed (or rejected) within 1 day - 1 week. If you skip the Expedited Filing service, you'll hear back about the filing within 3-4 weeks, sometimes longer.
The Articles document is a simple 1-2 page document that gives basic information about the type of business you are incorporating - name, address, agent for service of process, number of shares, etc. It can, of course, be more specific and detailed, but most small businesses do not require such specificity. In addition, California has samples posted on its website, so the process is very straight forward.
Once you have filed the Articles, and get confirmation of same, your business is "active" in the eyes of the Secretary of State. However, the business requires further documentation before it is "legal". First, the corporation must have its own Bylaws. While most bylaws are similarly drafted, each corporation is different, and thus, bylaws should be drafted only by an experienced attorney. Think of bylaws as the instruction manual for your business' legal operation as a corporation. The bylaws identify the type of business, the purpose, the process of appointing directors, officers, and how much power each shall have. The bylaws do not usually provide information pertaining to how shareholders can sell their respective shares to someone else, however. Thus, other documentation (a stockholder agreement or buy-sell) should be considered.
The next item of business is usually the filing for a Tax Identification Number (TIN). The TIN will allow the corporation to open a bank account in its name, hire employees, file tax returns, etc. The IRS website is fantastic in walking through new business owners in the TIN application process, which can be completed online through its website, with confirmation immediately. Finally, within 90 days of filing, the new corporation must file a Statement of Information with the Secretary of State, basically showing that the new corporation is active and functioning as a business, and identifying the initial directors and primary officers of the business.
Most corporations that I see which were formed without the assistance of legal counsel have successfully filed the Articles, have a simple "canned" set of Bylaws, and have obtained the TIN. Unfortunately, many of these corporations, especially small 1-10 owner corporations, do not follow through with the remaining requirements for operating a corporation: namely, the annual holding of both shareholder and director meetings, and the drafting of annual minutes of such meetings.
Whether you decide to form a corporation or any other legal business entity, my strong recommendation would be to speak with an attorney before proceeding, as each corporation is different. I will discuss maintaining the corporate entity soon.
What are your thoughts? Have a great day!
In most states (and again, my specific comments are limited to the State of California, as I am licensed here), as in California, the process begins with checking to confirm that the name you wish to utilize is not taken. In California, you have two basic options: either "wing it" by looking at the Secretary of State's website and making your own determination whether the name is available or not, or send a letter to the Secretary of State specifically requesting a response that the name is available (or not), and reserving the name. This process is simple, and can be done within 1 hour - 10-15 days (depending on whether you go with the "wing it" option or reserve option).
Once you confirm the name, you prepare and file a document known as the corporation's Articles of Incorporation. In California, there is a $100 filing fee if by mail, an additional $15 "over-the-counter" filing fee - which means that if you wish to walk your Articles into the Secretary of State's office, you'll pay an additional $15, but save 2-3 weeks off the filing date confirmation. In California, you may also file through a service known as "Expedited Filing", pay an additional $250-$750, and obtain confirmation that your Articles were filed (or rejected) within 1 day - 1 week. If you skip the Expedited Filing service, you'll hear back about the filing within 3-4 weeks, sometimes longer.
The Articles document is a simple 1-2 page document that gives basic information about the type of business you are incorporating - name, address, agent for service of process, number of shares, etc. It can, of course, be more specific and detailed, but most small businesses do not require such specificity. In addition, California has samples posted on its website, so the process is very straight forward.
Once you have filed the Articles, and get confirmation of same, your business is "active" in the eyes of the Secretary of State. However, the business requires further documentation before it is "legal". First, the corporation must have its own Bylaws. While most bylaws are similarly drafted, each corporation is different, and thus, bylaws should be drafted only by an experienced attorney. Think of bylaws as the instruction manual for your business' legal operation as a corporation. The bylaws identify the type of business, the purpose, the process of appointing directors, officers, and how much power each shall have. The bylaws do not usually provide information pertaining to how shareholders can sell their respective shares to someone else, however. Thus, other documentation (a stockholder agreement or buy-sell) should be considered.
The next item of business is usually the filing for a Tax Identification Number (TIN). The TIN will allow the corporation to open a bank account in its name, hire employees, file tax returns, etc. The IRS website is fantastic in walking through new business owners in the TIN application process, which can be completed online through its website, with confirmation immediately. Finally, within 90 days of filing, the new corporation must file a Statement of Information with the Secretary of State, basically showing that the new corporation is active and functioning as a business, and identifying the initial directors and primary officers of the business.
Most corporations that I see which were formed without the assistance of legal counsel have successfully filed the Articles, have a simple "canned" set of Bylaws, and have obtained the TIN. Unfortunately, many of these corporations, especially small 1-10 owner corporations, do not follow through with the remaining requirements for operating a corporation: namely, the annual holding of both shareholder and director meetings, and the drafting of annual minutes of such meetings.
Whether you decide to form a corporation or any other legal business entity, my strong recommendation would be to speak with an attorney before proceeding, as each corporation is different. I will discuss maintaining the corporate entity soon.
What are your thoughts? Have a great day!
March 10, 2011
LEGAL JARGON - FRAUD (JIM TRESSEL, YOU READING THIS?)
Fraud is defined as a misrepresentation (more on this in a second), which is either known to be not true or which the person making the statement has no reason to believe it is true, to another party, with the intent that the receiving party rely on that statement to its detriment, and that the receiving party suffers damage. Barron's Legal Dictionary defines "fraud" as "intentional deception resulting in the injury to another."
Fraud takes two basic forms - either the misrepresentation is done intentionally - the person knows it is not true, but makes the representation anyway; or, the person has no idea whether it is true or not, but makes the representation anyway. A misrepresentation can be either an affirmative statement of fact or it can be the affirmative omission of a fact. For instance, in the real estate arena, if a seller fails to disclose known defective conditions to a house at the time of sale, the seller has misrepresented known facts.
Normally, a party misrepresents a factual circumstance with the intent to induce another party to rely on such factual misrepresentation. In the example above, the seller hopes that the buyer will purchase the property for the price agreed upon. If the fact were truly represented, the buyer would likely not pay that price or not purchase the home.
For fraud to be actionable (that is, a defrauded party gets monetary damages in a civil court), the defrauded party must be injured. Thus, in the example above, if the defective condition was a hole in the roof, but the buyer had the intent to buy the house and replace the roof, then the buyer would not have sustained any damage (unless he later discovered water damage/etc. resultant from the hole in the roof).
In the sports' world we just learned that the Ohio State University football coach knew of NCAA violations of some of his players prior to the start of the 2010 season, but that he failed to disclose what he knew in a Certificate of NCAA Compliance to the school on September 13, 2010. Why did he fail to disclose this information? Because it would have had a severe result - the loss of several players for the entire 2010 season. Nevertheless, he kept this information to himself until at least early February 2011 (after the season had ended). OSU learned of the matter from the US Attorney's office, and subsequently fined the coach and suspended him for the first two games of 2011. But, should the punishment have been harsher?
Interestingly, in Mr. Tressel's media conference statement a couple of days ago, he basically said he had no idea to whom he needed to report this information - really? What is Mr. Tressel's understanding as to what the Certificate of NCAA Compliance is? In any other employment scenario, irrespective of the qualifications, experience, or success of the employee, Mr. Tressel's conduct would be subject to immediate expulsion.
That OSU has not taken this issue seriously - a 2 game suspension of non-conference games and a $250,000 fine - should be a cue for the NCAA to seriously sanction OSU for the coach's and his players' conduct. If the NCAA is serious about keeping itself untarnished, it must be forceful in this case.
Fraud - if done intentionally - is subject to an award of punitive damages to those injured. The NCAA has been seriously injured. Do what is right, NCAA (and OSU)!
What are your thoughts?
Fraud takes two basic forms - either the misrepresentation is done intentionally - the person knows it is not true, but makes the representation anyway; or, the person has no idea whether it is true or not, but makes the representation anyway. A misrepresentation can be either an affirmative statement of fact or it can be the affirmative omission of a fact. For instance, in the real estate arena, if a seller fails to disclose known defective conditions to a house at the time of sale, the seller has misrepresented known facts.
Normally, a party misrepresents a factual circumstance with the intent to induce another party to rely on such factual misrepresentation. In the example above, the seller hopes that the buyer will purchase the property for the price agreed upon. If the fact were truly represented, the buyer would likely not pay that price or not purchase the home.
For fraud to be actionable (that is, a defrauded party gets monetary damages in a civil court), the defrauded party must be injured. Thus, in the example above, if the defective condition was a hole in the roof, but the buyer had the intent to buy the house and replace the roof, then the buyer would not have sustained any damage (unless he later discovered water damage/etc. resultant from the hole in the roof).
In the sports' world we just learned that the Ohio State University football coach knew of NCAA violations of some of his players prior to the start of the 2010 season, but that he failed to disclose what he knew in a Certificate of NCAA Compliance to the school on September 13, 2010. Why did he fail to disclose this information? Because it would have had a severe result - the loss of several players for the entire 2010 season. Nevertheless, he kept this information to himself until at least early February 2011 (after the season had ended). OSU learned of the matter from the US Attorney's office, and subsequently fined the coach and suspended him for the first two games of 2011. But, should the punishment have been harsher?
Interestingly, in Mr. Tressel's media conference statement a couple of days ago, he basically said he had no idea to whom he needed to report this information - really? What is Mr. Tressel's understanding as to what the Certificate of NCAA Compliance is? In any other employment scenario, irrespective of the qualifications, experience, or success of the employee, Mr. Tressel's conduct would be subject to immediate expulsion.
That OSU has not taken this issue seriously - a 2 game suspension of non-conference games and a $250,000 fine - should be a cue for the NCAA to seriously sanction OSU for the coach's and his players' conduct. If the NCAA is serious about keeping itself untarnished, it must be forceful in this case.
Fraud - if done intentionally - is subject to an award of punitive damages to those injured. The NCAA has been seriously injured. Do what is right, NCAA (and OSU)!
What are your thoughts?
March 8, 2011
MLB - YOUTUBE VIDEO CRACKDOWN
You may or may not have heard, but the Major League has been cracking down on the proliferation of video streams uploaded onto the computer over the past several months. Much of the uploads are pieces of or snippets of longer broadcasts, sometimes taken from video equipment; other times taken straight off the TV; and, still other times, from cell phones or other equipment at the games themselves. What many fans do not realize, however, is that the MLB has extensive intellectual property rights to this footage, at least to the extent that such footage is actually taken from its broadcasts. Similar to movies/TV snippets, copyright laws are strictly construed in favor of the entity holding the copyright registration.
As the ABA Journal recently noted in its March 2011 edition, however, the extent of such claims is "gray". I am certain that, as social media continues to expand to wider audiences, this issue will get much more publicity than merely in legal journals. For now, it remains a wait-and-see issue, mostly because YouTube and other websites have not wanted to get into a legal battle (ie, costly/expensive/$$$$$) with the MLB on the issue.
Interestingly, however, other leagues welcome such uploads as free publicity for their respective sport. The NHL clearly wants people to tune into www.hockeyfights.com and other websites to view the latest and greatest the sport of hockey has to offer at a national level. My opinion is that, at some point, a lawyer will find a loophole that gets around such arguments.
What are your thoughts?
As the ABA Journal recently noted in its March 2011 edition, however, the extent of such claims is "gray". I am certain that, as social media continues to expand to wider audiences, this issue will get much more publicity than merely in legal journals. For now, it remains a wait-and-see issue, mostly because YouTube and other websites have not wanted to get into a legal battle (ie, costly/expensive/$$$$$) with the MLB on the issue.
Interestingly, however, other leagues welcome such uploads as free publicity for their respective sport. The NHL clearly wants people to tune into www.hockeyfights.com and other websites to view the latest and greatest the sport of hockey has to offer at a national level. My opinion is that, at some point, a lawyer will find a loophole that gets around such arguments.
What are your thoughts?
March 2, 2011
"FREEDOM OF SPEECH" - THE GOOD BAD & UGLY
Today we were educated in the First Amendment's right of Freedom of Speech. It is sometimes amazing to think that this was the "First" Amendment and is so strongly rooted in our history; and yet, the Amendment is tested often. Earlier today, the US Supreme Court held that this freedom remains paramount to the liberties created by our forefathers more than 200 years ago.
The case, Snyder v. Phelps, et al (2011) 580 F.3d 206, affirmed the lower court's ruling and was decided by an 8-1 majority. In summary, defendants Phelps and the Westboro Baptist Church had a long history (20 years) of demonstrating at funerals of US soldiers to show solidarity in the belief that the US Military and the US have sinned against God by allowing homosexuals in the military. The demonstrators otherwise complied with public protest laws, but held signs saying things like: "Thank God for Dead Soldiers", "America Is Doomed", and "F--s Doom Nations".
The opinion (as summarized in the Court Syllabus) basically held the following:
The primary focus as to whether speech is public, is on the content. In this case, the Court clearly discerned that the content of the speech (the language on the signs) was public - the content dealt with defendants' opinions related to how the US and its military dealt with the issue of homosexuality in the military. Importantly, the Court noted that defendants in this case took great strides to remain peaceful and otherwise comply with all regulations then in effect with respect to picketing/demonstrating. The Court held it irrelevant that the content expressed was found by the jury to be "outrageous".
Thus, the freedom to speak against politicians you disagree with, the right to vehemently disagree with public officials, call them names, etc., is generally protected. The burning of the US flag has been upheld as being protected by the First Amendment. These freedoms are sometimes questioned, but the premise behind the freedom is that minority opinions are just as protected as majority opinions - this was the primary rationale for the Bill of Rights in the first place.
What are your thoughts?
The case, Snyder v. Phelps, et al (2011) 580 F.3d 206, affirmed the lower court's ruling and was decided by an 8-1 majority. In summary, defendants Phelps and the Westboro Baptist Church had a long history (20 years) of demonstrating at funerals of US soldiers to show solidarity in the belief that the US Military and the US have sinned against God by allowing homosexuals in the military. The demonstrators otherwise complied with public protest laws, but held signs saying things like: "Thank God for Dead Soldiers", "America Is Doomed", and "F--s Doom Nations".
The opinion (as summarized in the Court Syllabus) basically held the following:
The Free Speech Clause of the First Amendment can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v. Falwell , 485 U. S. 46 . Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers , 461 U. S. 138 . Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., San Diego v. Roe , 543 U. S. 77 . A statement’s arguably “inappropriate or controversial character … is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson , 483 U. S. 378 . Pp. 5–7.
The primary focus as to whether speech is public, is on the content. In this case, the Court clearly discerned that the content of the speech (the language on the signs) was public - the content dealt with defendants' opinions related to how the US and its military dealt with the issue of homosexuality in the military. Importantly, the Court noted that defendants in this case took great strides to remain peaceful and otherwise comply with all regulations then in effect with respect to picketing/demonstrating. The Court held it irrelevant that the content expressed was found by the jury to be "outrageous".
Thus, the freedom to speak against politicians you disagree with, the right to vehemently disagree with public officials, call them names, etc., is generally protected. The burning of the US flag has been upheld as being protected by the First Amendment. These freedoms are sometimes questioned, but the premise behind the freedom is that minority opinions are just as protected as majority opinions - this was the primary rationale for the Bill of Rights in the first place.
What are your thoughts?
February 18, 2011
ARBITRATION CLAUSES - NOT ALWAYS THE BEST THING
Back in September (2010), I wrote about my opinion that often, ADR methods can be quite beneficial in resolving disputes - beneficial from both a cost perspective as well as time. I mentioned how effective forum choice should be discussed in contractual relations from the outset, either by requiring disputes over the interpretation or operation of an agreement to first try to be resolved via mediation (non-binding), and then possibly include a binding arbitration clause in the agreement as well.
Arbitration clauses in business contracts are quite common. However, as recently discussed with a client of mine, arbitration is not always the better course, especially in situations where multiple parties are involved in the relationship.
Example:
Widget Company (WidgetCo) makes widgets. In an effort to save money, it retains the use of independent contractors who consult with WidgetCo on the design of these widgets (Designer) as well as manufacture of said widgets. WidgetCo then outsources the distribution to another consultant (Distributor). WidgetCo has separate, but similar written independent contractor agreements with both Designer and Distributor. In each agreement, any disputes between the parties must be placed into mediation, and if no settlement is reached, the parties agree to waive trial and go to binding arbitration.
Distributor sells widgets to Pain and Panic (P&P), an auto repair shop that uses the widgets in repairing cars. One of P&P's customers drives away after getting her repairs completed, loses control of her car, crashes, and sustains injuries. Customer sues P&P, who in turn, sues Distributor and WidgetCo. Customer amends her complaint and names Distributor and WidgetCo as Doe defendants. Can Distributor, WidgetCo, or P&P go after Designer as well?
1. Customer, P&P, and Distributor can sue Designer in court.
2. WidgetCo can sue P&P in court.
3. Designer, upon being brought into the lawsuit, may be able to sue P&P and Distributor.
4. However, WidgetCo will not be able to seek indemnity via the court system from either Distributor or Designer, and Distributor cannot go after WidgetCo directly (nor can Designer) due to the mediation/arbitration provisions in their respective IC agreements.
In practice, the IC parties would likely "waive" their right to arbitrate, and allow court action to reduce the cost/time to fight in a different forum. However, parties do not always agree to waive such action. What happens then?
Alternative Dispute Resolution provisions are quite valuable. However, be mindful that scenarios should be approached on a case-by-case basis, and carefully analyzed to determine if ADR is right for the particular circumstance.
Please, Share Your Thoughts!
Arbitration clauses in business contracts are quite common. However, as recently discussed with a client of mine, arbitration is not always the better course, especially in situations where multiple parties are involved in the relationship.
Example:
Widget Company (WidgetCo) makes widgets. In an effort to save money, it retains the use of independent contractors who consult with WidgetCo on the design of these widgets (Designer) as well as manufacture of said widgets. WidgetCo then outsources the distribution to another consultant (Distributor). WidgetCo has separate, but similar written independent contractor agreements with both Designer and Distributor. In each agreement, any disputes between the parties must be placed into mediation, and if no settlement is reached, the parties agree to waive trial and go to binding arbitration.
Distributor sells widgets to Pain and Panic (P&P), an auto repair shop that uses the widgets in repairing cars. One of P&P's customers drives away after getting her repairs completed, loses control of her car, crashes, and sustains injuries. Customer sues P&P, who in turn, sues Distributor and WidgetCo. Customer amends her complaint and names Distributor and WidgetCo as Doe defendants. Can Distributor, WidgetCo, or P&P go after Designer as well?
1. Customer, P&P, and Distributor can sue Designer in court.
2. WidgetCo can sue P&P in court.
3. Designer, upon being brought into the lawsuit, may be able to sue P&P and Distributor.
4. However, WidgetCo will not be able to seek indemnity via the court system from either Distributor or Designer, and Distributor cannot go after WidgetCo directly (nor can Designer) due to the mediation/arbitration provisions in their respective IC agreements.
In practice, the IC parties would likely "waive" their right to arbitrate, and allow court action to reduce the cost/time to fight in a different forum. However, parties do not always agree to waive such action. What happens then?
Alternative Dispute Resolution provisions are quite valuable. However, be mindful that scenarios should be approached on a case-by-case basis, and carefully analyzed to determine if ADR is right for the particular circumstance.
Please, Share Your Thoughts!
February 7, 2011
POLITICS & THE LAW - DEMOCRATIC RULE?
Most of us (I hope) have watched with intrigue and fascination the mass and, mostly, peaceful demonstrations taking place in Egypt over the past several days. While the mass political push to remove their "President" from office is based on numerous issues, the primary rationale appears to be the call for a more democratic government. Interesting for an Arab nation, as most are authoritarian (Syria), a monarchy (Saudi Arabia, Jordan), or Religious authoritarianism (Iran); a few boast "democratic" rule (Lebanon, Iraq, and Egypt), but even in these countries, there are factions that run the government with minimal contribution from the masses.
Back to Egypt ... calls have gone out for the immediate resignation of President Mubarak. Even the US President, Obama, has called for the Egyptian leader to "do what is right" ... and yet, I find this deliberate attempt to, once again, push on American ideals to another culture to be a bit hypocritical. To think that, if we didn't like how our President and/or government was leading the nation, we could simply remove the President with mass demonstrations ... such conduct goes against the very morals our Founding Fathers envisioned more than 200 years ago. There are many in the US who dislike the current Administration's focus and agenda. These dissenters, if you will, have the ability to rise up and, after a single 4 year term, vote out the President, and elect someone else.
However, the US does not allow dissenters the opportunity to remove a leader early, except through processes codified by law ... ie, impeachment. No US President has ever been removed from office early via this process. And, only two Presidents have ever been impeached - Andrew Johnson and Bill Clinton. Neither was removed from office, however. Only one President has ever resigned from office - Richard Nixon, and Nixon did so on his own, rather than face the public humiliation of the impeachment process. Whether Nixon would have been impeached is up for debate, as is whether there would have been enough time to remove Nixon before the end of his 2nd term.
Importantly, however, Presidents are impeached only when their conduct warrants such action; such action is not authorized simply because the President's leadership agenda is not how the population believes it should be. In such cases, the only method for removing an unpopular president, is to elect someone else 4 years down the road.
It amazed me to see our President suggesting that Egypt's President, "Do the right thing." What did that mean? To some degree, President Mubarak did ... he agreed not to seek another term in the fall of 2011. This gives notice that there will be a new leader, and that anyone who seeks such position should gear up for the political process ahead. But, "do the right thing?" Did President Obama suggest that the Egyptian leader step down? And, hasn't President Mubarak been one of stronger allies in the region, with a mostly peaceful legacy and better ties with Israel? For more than 3 decades, Israel has not been required to defend against a southern enemy (other than Hamas/Palestinian uprisings).
The US is, indeed, a great nation! We, I believe, have the best governmental system in the world, allowing great freedoms (sometimes, too much, perhaps). Yet, to call for the removal of a leader in a different culture, one that has seen authoritarian rule for hundreds of years, when such leadership has borne such peaceful results in an otherwise agitated arena in the World, is uncalled for.
What are your thoughts? Would love to hear them!
Have a great Monday!
Back to Egypt ... calls have gone out for the immediate resignation of President Mubarak. Even the US President, Obama, has called for the Egyptian leader to "do what is right" ... and yet, I find this deliberate attempt to, once again, push on American ideals to another culture to be a bit hypocritical. To think that, if we didn't like how our President and/or government was leading the nation, we could simply remove the President with mass demonstrations ... such conduct goes against the very morals our Founding Fathers envisioned more than 200 years ago. There are many in the US who dislike the current Administration's focus and agenda. These dissenters, if you will, have the ability to rise up and, after a single 4 year term, vote out the President, and elect someone else.
However, the US does not allow dissenters the opportunity to remove a leader early, except through processes codified by law ... ie, impeachment. No US President has ever been removed from office early via this process. And, only two Presidents have ever been impeached - Andrew Johnson and Bill Clinton. Neither was removed from office, however. Only one President has ever resigned from office - Richard Nixon, and Nixon did so on his own, rather than face the public humiliation of the impeachment process. Whether Nixon would have been impeached is up for debate, as is whether there would have been enough time to remove Nixon before the end of his 2nd term.
Importantly, however, Presidents are impeached only when their conduct warrants such action; such action is not authorized simply because the President's leadership agenda is not how the population believes it should be. In such cases, the only method for removing an unpopular president, is to elect someone else 4 years down the road.
It amazed me to see our President suggesting that Egypt's President, "Do the right thing." What did that mean? To some degree, President Mubarak did ... he agreed not to seek another term in the fall of 2011. This gives notice that there will be a new leader, and that anyone who seeks such position should gear up for the political process ahead. But, "do the right thing?" Did President Obama suggest that the Egyptian leader step down? And, hasn't President Mubarak been one of stronger allies in the region, with a mostly peaceful legacy and better ties with Israel? For more than 3 decades, Israel has not been required to defend against a southern enemy (other than Hamas/Palestinian uprisings).
The US is, indeed, a great nation! We, I believe, have the best governmental system in the world, allowing great freedoms (sometimes, too much, perhaps). Yet, to call for the removal of a leader in a different culture, one that has seen authoritarian rule for hundreds of years, when such leadership has borne such peaceful results in an otherwise agitated arena in the World, is uncalled for.
What are your thoughts? Would love to hear them!
Have a great Monday!
February 4, 2011
LEGAL JARGON 101 - Request for Admissions
You've been served with a formal Request for Admissions ... what does that mean? Can I object to the form of the question? How do I respond? What is the affect on my case if I fail to respond or otherwise respond with an admission? What if I deny the Request?
Requests for Admissions are very powerful discovery tools. Code of Civil Procedure section 2033.010, et seq., describe what this type of discovery is, and the subsequent sections respond to the issues identified above.
What it is: "Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties."
CCP section 2033.020 provides when requests for admissions may be made - by defendants, at any time without leave of court; by plaintiff(s) as soon as 10 days after service of the summons (5 days after service of summons in unlawful detainer cases).
CCP section 2033.030 - There is a 35 request limit, though this may be exceeded with proper declarations.
CCP sections 2033.210, et seq. deal with responses. You may admit, deny in whole, or deny in part, any request for admission. In addition, you may object to the request and either provide a response or not. For instance, the form of the request may provide insufficient factual information for the responding party to either admit or deny the response. In that case, the common response is, "There is insufficient facts for Responding party to either admit or deny, and on that basis alone, denies this request." Hopefully, the parties thereafter "meet and confer" so that the request is clarified enough for the responding party to either admit or deny.
A great discovery tactic is to utilize Form Interrogatory No. 17.1 concurrently with a Request for Admissions. Form Interrogatory No. 17.1 requires that the responding party provide all facts, identify witnesses, and describe documentation that supports any denial of a request for admission. Since requests may be utilized even to examine direct controversies between the parties, an opposing party can delve into the "beef" of a party's case.
Also, if a party responds with an admission to a particular set of facts, then the Requesting party may use that admission at trial. Also, if a party fails to respond to a request for admissions, the court may deem all requests as being admitted. It is a serious consequence with serious repercussions.
I hope this provides further insight into litigation discovery tactics! Have a great weekend!
Requests for Admissions are very powerful discovery tools. Code of Civil Procedure section 2033.010, et seq., describe what this type of discovery is, and the subsequent sections respond to the issues identified above.
What it is: "Any party may obtain discovery ... by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties."
CCP section 2033.020 provides when requests for admissions may be made - by defendants, at any time without leave of court; by plaintiff(s) as soon as 10 days after service of the summons (5 days after service of summons in unlawful detainer cases).
CCP section 2033.030 - There is a 35 request limit, though this may be exceeded with proper declarations.
CCP sections 2033.210, et seq. deal with responses. You may admit, deny in whole, or deny in part, any request for admission. In addition, you may object to the request and either provide a response or not. For instance, the form of the request may provide insufficient factual information for the responding party to either admit or deny the response. In that case, the common response is, "There is insufficient facts for Responding party to either admit or deny, and on that basis alone, denies this request." Hopefully, the parties thereafter "meet and confer" so that the request is clarified enough for the responding party to either admit or deny.
A great discovery tactic is to utilize Form Interrogatory No. 17.1 concurrently with a Request for Admissions. Form Interrogatory No. 17.1 requires that the responding party provide all facts, identify witnesses, and describe documentation that supports any denial of a request for admission. Since requests may be utilized even to examine direct controversies between the parties, an opposing party can delve into the "beef" of a party's case.
Also, if a party responds with an admission to a particular set of facts, then the Requesting party may use that admission at trial. Also, if a party fails to respond to a request for admissions, the court may deem all requests as being admitted. It is a serious consequence with serious repercussions.
I hope this provides further insight into litigation discovery tactics! Have a great weekend!
January 24, 2011
GET IT IN WRITING ... SIMPLE, RIGHT?
Have you ever purchased something without getting a receipt? Have you ever promised someone that you're "good for it", and shook the other's hand? Have you ever agreed to help someone do something, but not put the arrangement down in writing? My bet is that most of us have. The reason we have is that, in most instances, the arrangement is finalized or completed without problem. There are times, however, when such an arrangement fails or is completed with resulting problems. This can cause lots of headaches, heartaches, and financial dilemmas. In fact, sometimes, the issue is simply that the parties making the deal were not detail-oriented, and had not thought of the issue until it became one.
Solution - GET IT IN WRITING! In California, taking after the Common Law principle known as the "Statute of Frauds", certain agreements must be in writing. Civil Code section 1624 identifies many such agreements:
1. An agreement that by its terms cannot be completed in 1 year from the making of the contract (An employment contract where the employee signs on for a 1+ year term, for instance);
2. A special promise to answer for the debt, default, or miscarriage of another (ie, a personal guaranty);
3. An agreement for the leasing for a period more than 1 year (similar to #1 - a residential lease for 1 year or more);
4. An agreement retaining someone to sell/buy real estate on promisor's behalf (a listing agreement) or to procure a lease of more than 1 year;
5. An agreement that, by its terms, is not to be performed during the promisor's lifetime. (a will - which is an agreement by the executor to transfer property pursuant to the wishes of the promisor/dead person);
6. An agreement by the purchaser of real property to pay an indebtedness secured by a mortage or deed of trust ... (the mortgage);
7. A contract/agreement to lend money in excess of $100,000 for a purpose not principally deemed for personal, household, or family purposes by someone in the business of lending. (A business loan).
There are a few other well recognized agreements that must be in writing as well: for instance, an agreement to purchase goods (tangible property) for $500.00+. Most real estate transactions require that disclosures be in writing.
But, there are also many instances where there is no formal written agreement. A simple example is employment. Most of us who have jobs, are employed "at-will". Usually, such "at-will" employment (meaning either side can terminate the relationship without reason at any time) is made without a formal written agreement in place. There may be an employment handbook that provides the employee with the policies of the particular employer; but, there is nothing in writing that is signed by the employee that guarantees that employee a job with the employer.
Partnerships result from at least two parties deciding to go into some form of business together. Partnership agreements need not be in writing ... but they should be!
Corporations are bound by an agreement known as the "Bylaws" of the corporation; the "Bylaws" must be in writing; however, many corporations, especially small corporations, fail to maintain buy-sell agreements (shareholder agreements), and otherwise fail to keep explicit minutes (records) of annual board meetings.
My suggestion is that, to the extent you have promised to do something for another (or with another), you set forth the arrangement in writing, dated and signed by the parties to the arrangement. The more specific and detailed, the better. Better yet, retain legal counsel early in the process to guide you.
What are your thoughts?
Solution - GET IT IN WRITING! In California, taking after the Common Law principle known as the "Statute of Frauds", certain agreements must be in writing. Civil Code section 1624 identifies many such agreements:
1. An agreement that by its terms cannot be completed in 1 year from the making of the contract (An employment contract where the employee signs on for a 1+ year term, for instance);
2. A special promise to answer for the debt, default, or miscarriage of another (ie, a personal guaranty);
3. An agreement for the leasing for a period more than 1 year (similar to #1 - a residential lease for 1 year or more);
4. An agreement retaining someone to sell/buy real estate on promisor's behalf (a listing agreement) or to procure a lease of more than 1 year;
5. An agreement that, by its terms, is not to be performed during the promisor's lifetime. (a will - which is an agreement by the executor to transfer property pursuant to the wishes of the promisor/dead person);
6. An agreement by the purchaser of real property to pay an indebtedness secured by a mortage or deed of trust ... (the mortgage);
7. A contract/agreement to lend money in excess of $100,000 for a purpose not principally deemed for personal, household, or family purposes by someone in the business of lending. (A business loan).
There are a few other well recognized agreements that must be in writing as well: for instance, an agreement to purchase goods (tangible property) for $500.00+. Most real estate transactions require that disclosures be in writing.
But, there are also many instances where there is no formal written agreement. A simple example is employment. Most of us who have jobs, are employed "at-will". Usually, such "at-will" employment (meaning either side can terminate the relationship without reason at any time) is made without a formal written agreement in place. There may be an employment handbook that provides the employee with the policies of the particular employer; but, there is nothing in writing that is signed by the employee that guarantees that employee a job with the employer.
Partnerships result from at least two parties deciding to go into some form of business together. Partnership agreements need not be in writing ... but they should be!
Corporations are bound by an agreement known as the "Bylaws" of the corporation; the "Bylaws" must be in writing; however, many corporations, especially small corporations, fail to maintain buy-sell agreements (shareholder agreements), and otherwise fail to keep explicit minutes (records) of annual board meetings.
My suggestion is that, to the extent you have promised to do something for another (or with another), you set forth the arrangement in writing, dated and signed by the parties to the arrangement. The more specific and detailed, the better. Better yet, retain legal counsel early in the process to guide you.
What are your thoughts?
January 11, 2011
LEGAL JARGON 101 - Interrogatories
Happy New Year!
Continuing my collection of tidbits related to the litigation process, I thought I would delve into a topic that I am certain is confusing to many people ... legal jargon. For instance, during discovery, there are a number of different methods of collecting information to assist you in proving your case.
One such method is by asking your opponent (whether plaintiff or defendant) written questions or requests about facts. Written questions or requests seeking written responses are also known as "interrogatories". For instance:
"Identify all writings from 2009-2010 that show communication between YOU and Company."
"State all facts that support YOUR allegations in YOUR complaint that Defendant harmed YOU."
"How long have YOU been licensed to drive a tractor trailer in the State of California?"
"Are YOU a corporation?" "Are You a Joint Venture?"
In California, Code of Civil Procedure Sections 2030.010, et seq., pertain specifically to Written Interrogatories. There are two types of written interrogatories: "Form" and "Special". "Form" interrogatories are official universal questions that the California Judicial Council puts out - the questions are numbered and are the same for everyone. You don't have to use "Form" interrogatories, but such questions get some of the simple/common fact questions out of the way.
"Special" interrogatories are not universal, but drafted by the person requesting the information. In California, a party asking "Special" interrogatories is limited to 35 such questions/requests, unless a declaration accompanies the set of interrogatories indicating why more than 35 questions/requests are necessary in this case. (CCP Section 2030.030.)
Written interrogatories may be used pretty much at any time by one party seeking written responses from any other party. They may not be used to obtain documents, physical evidence, or to obtain responses from a non-party (such as a witness).
Responses must be verified by the answering party, and must generally be provided not more than 30-35 days after being served with the interrogatories. There are plenty of objections available to protect the responding party's interests that I will not go into here.
I often utilize interrogatories to obtain facts relevant to other sources of evidence: "Identify all documents ..." Then you can send out a request for documents requesting all identified documents responsive to that interrogatory. Or, "Are you a Corporation?" You can then seek information specific to the corporation, or learn who the management of the corporation is/was.
I am often explaining the meaning of certain terms to clients. "Request for Documents" may be easy to understand; "Form Interrogatories" can be confusing. I hope you found this information helpful!
More to Come!
Continuing my collection of tidbits related to the litigation process, I thought I would delve into a topic that I am certain is confusing to many people ... legal jargon. For instance, during discovery, there are a number of different methods of collecting information to assist you in proving your case.
One such method is by asking your opponent (whether plaintiff or defendant) written questions or requests about facts. Written questions or requests seeking written responses are also known as "interrogatories". For instance:
"Identify all writings from 2009-2010 that show communication between YOU and Company."
"State all facts that support YOUR allegations in YOUR complaint that Defendant harmed YOU."
"How long have YOU been licensed to drive a tractor trailer in the State of California?"
"Are YOU a corporation?" "Are You a Joint Venture?"
In California, Code of Civil Procedure Sections 2030.010, et seq., pertain specifically to Written Interrogatories. There are two types of written interrogatories: "Form" and "Special". "Form" interrogatories are official universal questions that the California Judicial Council puts out - the questions are numbered and are the same for everyone. You don't have to use "Form" interrogatories, but such questions get some of the simple/common fact questions out of the way.
"Special" interrogatories are not universal, but drafted by the person requesting the information. In California, a party asking "Special" interrogatories is limited to 35 such questions/requests, unless a declaration accompanies the set of interrogatories indicating why more than 35 questions/requests are necessary in this case. (CCP Section 2030.030.)
Written interrogatories may be used pretty much at any time by one party seeking written responses from any other party. They may not be used to obtain documents, physical evidence, or to obtain responses from a non-party (such as a witness).
Responses must be verified by the answering party, and must generally be provided not more than 30-35 days after being served with the interrogatories. There are plenty of objections available to protect the responding party's interests that I will not go into here.
I often utilize interrogatories to obtain facts relevant to other sources of evidence: "Identify all documents ..." Then you can send out a request for documents requesting all identified documents responsive to that interrogatory. Or, "Are you a Corporation?" You can then seek information specific to the corporation, or learn who the management of the corporation is/was.
I am often explaining the meaning of certain terms to clients. "Request for Documents" may be easy to understand; "Form Interrogatories" can be confusing. I hope you found this information helpful!
More to Come!
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