Quote of the Day - We are down about 10 to 12 people. People are getting older. Some are having hip replacements or knee operations, or other problems that keep them from doing what can be active, energetic work.
I Donít Make These Things Up - I Just Report ThemCiting the “last employer rule,” the Ninth Circuit Court of Appeals held today that even though a company employed a worker for just one day, that employer was responsible for injuries that occurred to the worker over the course of his 35 years of employment. Three judges in Washington made this ruling, even though the worker had previously scheduled his knee replacement surgery during the time he was working for a prior employer. See Metropolitan Stevedore v. Crescent Wharf
My Kind of Judge!It's not often that you get a judge willing to take a stand against foolishness in a case that's being litigated using scorched earth tactics. Check out this Microsoft opinion.
Strike a blow for LandlordsEvict or stay? The California Supreme Court cleared up the confusion between two statutes, and ruled in favor of allowing property owners to evict tenants. Under the law, tenants can claim that their landlords are trying to evict them in retaliation for complaining about the property.
Another competing law allows landlords to remove property from the marketplace for any reason whatsoever. This conundrum often created havoc for judges to resolve these competing claims when faced with an eviction case.
The Court ruled that the landlord-favorable law trumps the tenant-favorable law. For the full opinion, see Drouet v. Sup. Ct. So our State Supreme Court says tenants beware - instead of complaining about the property, vote with your feet. Move out!
Shark proofNo such thing exists in the water, or for that matter on the land. How can you try to make your company shark proof? In the archives of this weblog (the very first entry), we poked fun and told you how to get sued. Pretty simple stuff can avoid lawsuits.
In addition to doing the opposite of that “top-ten” list of no-nos in the archives, documentation is likely one of the strongest defenses. Lawyers search through the other side’s case looking for the infamous “smoking gun.” If you’ve kept your paperwork in order, you’ve probably got the means to overcome any “smoking gun” they may find.
Even if you don’t have the documentation, keep your insurance policies. Find them and lock them in a fireproof safe. That way, if the sharks start circling, you can turn a covered claim over to your insurance company to both defend you and pay any judgment that might come along.
One of my clients came to me with a large toxic contamination matter that went as far back as the late 1960's when insurance policies did not contain pollution exclusions. Unfortunately, his dad had all of his files stored in a garage, which had burned down two weeks earlier.
Memories of a More Innocent TimeIt seems like a long time has passed since September 11, 2001, and with time, so does the memory. Here's a site that is keeping the memory alive. Remember the Blood of Heroes.
How to Hire a Lawyer
Should you wait until you’re sued to hire a lawyer? At that point, the answer is obviously yes - but what if you haven’t been sued? Do you still need a lawyer? How do you find one?
The best way to hire a lawyer is like everything else - by referral. You more than likely know someone who has been sued. Ask them if they’re satisfied with their lawyer. When you’re asking for a referral, you will want to know the answers to several questions.
Does the lawyer communicate on a frequent basis? Do you get copies of all filings and letters? Does your friend or acquaintance have the lawyer’s home telephone number? Does the lawyer promptly return telephone calls? Does the lawyer send a bill each month? Does the lawyer tell you when hearings are scheduled to allow you to attend and watch the lawyer in action?
You should check to see if your lawyer is licensed. Go to: California State Bar. That site will also tell you whether the attorney has a public record of discipline. You can find more about your lawyer's background information at Martindale-Hubbell. Assuming all is well and you’re hearing the right responses to your questions, go ahead. But first, set up an appointment for a free consultation, and do your own face-to-face evaluation.
If you’re not engaged in a lawsuit, it’s an even better time to hire a lawyer. With the right advice, you can work to avoid being sued, and spending legal fees and costs to defend yourself.
A View From Behind the BenchThe view from behind the bench is decidedly different than from in front of it. Sitting as a pro tem judge (which I had the opportunity to do today) presents an interesting perspective - how a judge looks at both sides of a case. There’s quite a difference than advocating one side of a case.
As a judge, you look dispassionately at both sides of the case before forming an opinion about the possible outcome. As a lawyer, advocating one position requires you to counter and discount the other side’s argument. The judge's view is subtly different. As a judge, you have to evaluate which side is believable, which side has the more solid evidence, and what fairness dictates. You can, and must, ignore some of those things as a lawyer to advocate your client’s case.
Lawyers that can evaluate believability, evidence and fairness give their clients an edge, because they tend to look at the end result of the case. That lawyer can also give you better advice about the ultimate outcome of your case. Clients can accomplish the same thing by stepping back and listening - really listening - to the other lawyer. That’s what the judge and the jury have to do.
Trying a Case to Win ItWe generally win cases, and many have asked how it’s done. While this advice may appear to be directed to attorneys, it’s actually for our clients. Everyone gets emotionally involved in a case, and that’s one of the main reasons to hire a lawyer. Plus, lawyers know the Court’s procedures, and they can take the day-to-day worries of litigation off your hands. But every client, at one time or another, wants to do it on their own. In a nutshell, here’s how:
Framing the issue is perhaps the most important aspect of trying a case. Try not to accept the other party’s version of the lawsuit, and instead look at it not from your perspective, but the way the jury is going to look at it. Before we start a case, we pull the jury instructions we expect the judge to give. Since that’s what you have to prove at the end of the case at trial, that’s what guides us throughout the case - through discovery and depositions, motions and ultimately trying the case.
Match up the documents and testimony you have on your side of the case to the elements of proof in the jury instructions. Since jury instructions are written for everyday people to understand, there’s not a lot of “legal-ese” in them. Once you have your proof lined up, you’re ready to go to trial. Now, you have to learn the evidence rules. Matlock, LA Law and Perry Mason are not good guides for how it’s really done. Take a class or go to court and watch - the latter is the fastest way to learn, and while you won’t understand everything, you’ll see how the most common objections are handled and argued.
Finally, once you win your case, you’ve got to collect on your judgment. That’s the really hard part. Enforcing a judgment is a procedural nightmare. If you haven’t hired a lawyer yet, now’s the time. Unless you can get the other party to just write you a check, you’ll have lots of paperwork to fill out.
Of course, over 95% of all cases settle, so hopefully you won’t have to go though the trial and judgment collection portions of litigation. Remember, though, that settlements are compromises, and compromises means everyone goes away with less than they really wanted.