Wednesday, January 29, 2014

So You've Won a Lawsuit... Now What?

As always, before reading my post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Yesterday I was at the Fairfax County Courthouse to do some paper filing.  Getting in was a challenge because a local middle school's entire 8th grade was there for a Civics field trip.  Personally, despite the hallway traffic jams they create, I love these field trips.  Nothing makes me happier than to see young people learning how our legal system really works, away from the movies and TV shows.

After I did some filing, I bumped into a group that asked me if I was a lawyer.  I said yes, and, filled with curiosity, they asked me what I had just done.  I told them I had filed a garnishment.  The quizzical looks I got in response told me this was a new concept so I asked, "If you sue someone and win, how do you think you actually get them to pay you?"  The response I got was, "Well, won't they go to jail if they don't?"

This is not an entirely uncommon belief that I encounter.  Some people think you go to jail if you don't pay, others think your assets just start disappearing, others still think that nothing happens at all except maybe a ding on your credit.  Today's blog post, I will discuss how you make someone actually pay you after winning a lawsuit.

Judgment vs. Order of Payment

Back in September, I wrote a post that, in the context of contract law, explained the difference, to some degree, between equity and law cases, along with between judgments and injunctions.  This is important to understand.  The vast majority of lawsuits for money are common law cases, not equity cases, and as a result, they result in judgments.  A judgment is not an Order to pay someone, it is just a piece of paper saying that the court has found that you owe someone this amount of money.  This means it is not contempt of court to refuse to pay, and as such you cannot go to jail for failing to pay.

There is such a thing as an Order of Payment.  This is when, usually in an equity case, the court orders you to pay someone something.  In those cases, it is contempt to refuse to pay, and you can go to jail for that refusal.  The most common situation in which this arises is family law.  Child Support and Spousal Support orders are orders of payment.  Orders to reimburse the other party their attorneys' fees in an equity case are also orders of payment.  Again, these are distinct from judgments - this is not a court saying you owe someone money, it is a court ordering you to pay someone money.  The vast majority of civil lawsuits, however, do result in only judgments.

Agreement

The simplest way to collect on a judgment is to reach out to the judgment debtor (what we call the person who lost the lawsuit) and see if you can work out a payment plan.  Judgment debtors frequently are willing to work towards this for a number of reasons.  First, a judgment kills your credit rating, but the faster the judgment is "satisfied" (paid off), the faster it goes off your credit.  Second, an agreement gives the judgment debtor some control over how much is paid and when.  Finally, an agreement prevents assets from being frozen, which protects the judgment debtor from running afoul of other creditors.

Garnishment

By far the most common way to collect a judgment is a garnishment.  A garnishment is a process by which the court tells someone who owes money to the judgment debtor that they have to instead pay that money to the judgment creditor (what we call the person who won the lawsuit).  The person who owes the judgment debtor money and is thus ordered to pay that money to the judgment creditor is therefore called the garnishee.  The most common garnishees are employers and banks.  Employers have to pay a portion of the judgment debtor's paycheck to the judgment creditor (usually 25% of the take-home pay), while banks have to pay the entirety of any bank account held by the judgment debtor with that bank to the judgment creditor (unless, of course, the bank account holds more than the judgment - then they just need to pay the judgment amount).

A garnishment actually is an Order of Payment directed to the garnishee.  That being said, failure to comply with a garnishment by a garnishee does not result in jail time for the garnishee (which makes sense since most garnishees are companies, not people).  Instead, failure of a garnishee to comply with a garnishment can result in a judgment being entered against the garnishee for the full amount of the original judgment.  If that happens, the judgment creditor now has two judgment debtors against whom he can collect, and he is more likely to target the former garnishee since the garnishee will likely have more money available to pay.  The result of this rule is that garnishments, at least issued to companies, are rarely ignored, and barring issues raised by the judgment debtor, are usually successful.

Levy/Writ of Fieri Facias

A less common way to collect a judgment is through filing for a writ of fieri facias.  The writ of fieri facias is actually issued pretty much any time post-judgment collections is engaged in, and it orders the sheriff to seize any property of the judgment debtor the sheriff comes across to make good on the judgment.  However, in most cases the writ of fieri facias is largely meaningless, since the sheriff will not enter the judgment debtor's home if, for example, she is merely serving a garnishment.

If with your writ, however, you seek what's called a "levy," you are asking the sheriff's department to go and actually seize any personal property of the debtor they find to sell at an auction to try to get your judgment.  This is not a popular option because it is cumbersome (you need to identify the precise property to be seized in your filing), and expensive (there is a substantial bond you need to pay for this to be done in case anything turns out to be seized wrongfully).  Further, Sheriff's sales tend to bring in much less money than the seized property is worth.

The levy approach is usually only used when the judgment debtor has significant personal property while also having no job, a very low paying job, and minimal money in bank accounts.

Judicial Foreclosure

The vast majority of judgment debtors do not own real property.  To some degree this makes sense - if you don't have enough money to pay your debts, you probably don't have enough money to own a house.  If, however, you find yourself in the rare situation where the judgment debtor does own real property, and has equity in that property, you can try to engage in judicial foreclosure.  This is a very unpopular choice amongst judgment creditors, however, for reasons I will get to.

By law in Virginia a judgment serves as a lien against any real property owned by the judgment debtor.  That lien, however, does not attach (become effective) until the judgment is recorded in the land records of the circuit court for the jurisdiction where the property is located.  Judgments are usually automatically recorded if the judgment was won in the Circuit Court - but it behooves you to double-check (I know I found a judgment from several years past at one point that had not been recorded like it was supposed to and it could have caused major problems if I hadn't caught it).  If the judgment is from the General District Court, however, or is from a county or city other than the county or city where the judgment debtor's real property is located, you will need to obtain a "judgment abstract" (a document signed by a court official confirming that a judgment was entered in the amount stated) from the court where the judgment was entered and take it to the land records for the jurisdiction where the property is located to record.

Most judgment creditors do want to ensure that their judgment is recorded because if the judgment debtor happens to sell his or her property while the judgment has not been satisfied, the judgment creditor can likely get his money that way.  Moreover, it is the recordation of the judgment, not the issuance of the judgment itself, that causes a report to go to the credit bureaus and drives down the judgment debtor's credit - inspiring the judgment debtor to hopefully take action to pay off the judgment.

Enforcing the lien via judicial foreclosure, however, is another story.  First, the judgment creditor must prove that renting the house out for five years would not bring in enough money to satisfy the judgment.  If he does that, he still must prove that, if all higher priority creditors with liens on the property are paid first, there will still be equity left to go to the judgment creditor.  Finally, if the judgment creditor gets through those hoops, a special commissioner has to be found to conduct the sale, you get stuck with the special commissioner's bill which you probably cannot assess to the judgment debtor, and there's still no guarantee the sale will happen.

Debtor Interrogatories

So, say you want to do one of the above, but you don't know anything about the judgment debtor's assets.  You don't know where they work, where they have their bank account, what property they have, anything of the sort - what do you do?  Well, Virginia has a process called debtor interrogatories.  Debtor interrogatories are a legal process by which a judgment debtor is compelled to come to court and answer questions under penalty of contempt.  It is entirely appropriate to ask for the judgment debtor's social security number, employment information, banking information, etc., and the judgment debtor is required by law to tell you, and to tell you truthfully.  Failure by the judgment debtor to appear at the interrogatories is contempt of court and can result in the judgment debtor going to jail until he appears and answers your questions.

Statute of Limitations

In case you're thinking of just sitting on your judgment for a while, beware that there is a statute of limitations to taking any of the above actions.  No action can be taken to enforce a judgment (including any of the above options other than voluntary agreement) if the judgment is more than 20 years old.  Moreover, if the judgment was entered in the General District Court, that limit is 10 years, although it becomes 20 years if you do record the judgment in land records.  There is one out in that you can get one extension of another 20 years if you show the court "good cause" as to why it should be extended (such as the judgment debtor having hid out for years, an agreed payment plan being ongoing, etc.).  The catch, however, is that you must file your motion for that extension and get it granted before that original 20 year period expires.  Failure to collect within this statutory period essentially renders your judgment uncollectable.

Other Obstacles to Collection

There are a number of other obstacles to collection that are too numerous for me to explain in detail here.  Perhaps a future post.  Just note that your ability to collect might be delayed, partially eliminated, or completely eliminated if the judgment debtor were to file for bankruptcy, claim one of the myriad of state and federal exemptions, or to make claims that something about your paperwork was improper.

A Note About Insurance'

There are few things judgment creditors love more than a judgment debtor with liability insurance.  Specifically, when the judgment debtor has liability insurance, that insurance company is usually obligated to pay the full amount of the judgment (up to the coverage limits) pretty shortly after the judgment becomes final (which happens when all appeal and reconsideration periods have expired - usually 30-60 days after judgment).  If your judgment debtor has liability coverage, there is likely nothing you need to do to collect, but this is still not a guarantee.

Conclusion

Winning a lawsuit can provide an exhilarating sense of vindication for a judgment creditor.  The reality of collection, however, frequently settles in shortly thereafter.  The means of collection are challenging, but they are there, and if utilized properly, there's still a good chance you will get your money.  If you are looking to collect on a judgment you have already won, or defend against a post-judgment collection, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Thursday, January 23, 2014

Finding that Special Someone - Picking the Right Lawyer for You

As always, before reading this post please review my disclaimer by clicking the link at the top of this page or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Since starting this blog, I've spent a lot of time discussing the need for an attorney, when to hire an attorney, how to properly assess your attorney, and even how to hire an attorney.  What I have not discussed, however, is once you have decided you need an attorney, but before you hire the attorney, how you actually pick the attorney you plan to hire.  Today's post will attempt to rectify that by discussing the various factors to keep in mind when choosing your attorney so you hire an attorney who is right for you.

Before I begin, though, a note of caution.  I am clearly biased in this matter - I want you, if you have a legal issue, to hire me.  It is likely that this desire is going to influence how I write this post, though I will try not to let it do so.  Nonetheless, it is probably worth keeping that in mind when reading my post.

Shopping Around

I know this almost goes without saying, but I'm shocked at how many people hire the first attorney they talk to.  An attorney is generally a major investment.  Even if you don't end up spending a great deal in legal fees, you are still investing your legal rights with that attorney.  If an attorney is not a hire you "shop around" for, what will you shop around for?

I understand the appeal.  If you already have an attorney in another matter, asking that attorney to represent you in your new matter seems simple - but what if that attorney doesn't normally handle those matters?  Do you really want to be that attorney's guinea pig for that practice area?  Similarly, you might like your friend who has a friend he really likes who is an attorney, but does that automatically mean this person is a good attorney?

I strongly recommend you speak to at least three attorneys before hiring one.  To be clear, I mean three attorneys from three different firms.  You will likely find a range of experience, billing rates, and explanations of how your case will be handled.  This should give you an idea of where to go.

Billing Rates

Money is always a factor in a hiring decision, and this should be no different.  You will be foolish, however, if you make this the only factor.  If one lawyer costs $150 an hour and will lose while another costs $250 an hour and will win, the higher priced attorney may very well be the right way to go.  Beware, however, that billing rates do not necessarily equate to experience, skill, or quality of the attorney.  Many factors go into a billing rate.  For example, an attorney with two years of experience working at a five attorney law firm whose boss has 40 years of experience will likely bill more than a solo attorney with three years of experience.  Why?  The less experienced attorney not only has his own experience, but a law firm full of experience from which to draw free advice.  When you are hiring an attorney, to some extent you are hiring that attorney's whole firm.

Fundamentally, you need to figure out why an attorney's billing rate is so high or so low.  Some are high just out of the fact that the attorney sets their rate as high as they think they can get away with.  On the other hand, some rates are very low because that attorney handles cases like yours in bulk and will give your case minimal individualized attention (there are cases for which this is fine, though, if your case is extremely uncomplicated).  As a result, you need to know the comparative billing rates of your potential attorneys, but this should not be the only factor in your decision.

Experience

My personal opinion is that experience is a double-edged sword and somewhat overrated as a means of evaluating an attorney.  More experienced attorneys tend to charge more, spend less time preparing, give less attention to their individual cases, and be less "hungry" to win.  Moreover, laws change so frequently that sometimes that experience can be a detriment if the attorney missed a change in the law.  On the other hand, experienced attorneys are more likely to know the judges, make fewer technical errors, and be more confident in the advice they give you.

Really, you need to decide what you want.  As a relatively young attorney myself (disclosure:  I'm not turning 30 until 2015) I've always felt the advantages of a more inexperienced attorney are actually pretty great, especially when that attorney is in a law firm with more experienced attorneys to draw from.  Nonetheless, you have to decide what you are most comfortable with.

Ratings

The next way to evaluate your potential attorneys is to look into how they have been rated, either by other attorneys or by other clients.  While we cannot allow subjective statements about ourselves on our websites (or blogs), there are sites we do not control which do.  You can find law firm ratings on Yelp and you can find individual attorney ratings on Martindale-Hubbell (if you're interested, you can find our firm's Yelp rating here, and my personal Martindale-Hubbell rating here, but note that I do not endorse any of the statements made therein).  Those are my two favorites, personally.  There are other sites out there as well, however, such as ratemyattorney, Avvo, and similar metrics.

The danger of these sites, however, is two-fold.  First, anyone can post.  There is no guarantee that the rating is actually left by the person who claims to be leaving the rating.  Second, as I say in my disclaimer whenever I discuss case results, every case is different, so the experience of one client may not reflect the experience you will have.

Reputation

To me, the gold standard in evaluating an attorney is that attorney's reputation, both within and without the legal field.  Now, you might be thinking "how do I find out an attorney's reputation?"  I will admit, it's hard.  If you don't have word of mouth sources to go to, you may very well not be able to find out, but there are ways.  Once good way if you are interviewing multiple attorneys is to ask the attorney you are interviewing if they know of/about the other attorneys.  Remember, we are required to be truthful.  Just a couple months ago I had a landlord/tenant client who was having issues with her ex-husband.  I asked her who her divorce attorney was, about to make my pitch for why she should switch to us, but I stopped dead in my tracks when she told me who she had.  Instead, I had nothing to say but "well, if you can afford his billing rate, you won't do much better than him."  If the interviewee doesn't know the other attorney, I wouldn't hold that against the other attorney (there are many reasons we don't know the name of another attorney - I'm still learning about some very experienced, very good attorneys myself), but if they do, that attorney's opinion will be very valuable.

Putting it All Together

So, you've interviewed all of those potential attorneys, gathered their billing rates, experience levels, ratings and reputation, and now you have to combine it into a choice.  Ultimately, you have to decide based on your comfort level.  Ideally you'll have a reasonably experienced attorney with top-notch ratings, a super reputation, and all with a low billing rate which is low because he just doesn't like charging people money.  Realistically, that's not going to happen.  Decide your budget, how difficult you think your case is, how much individualized attention you want your case to get and go from there.  I cannot say much more than that in this paragraph because really, you have to choose the attorney that works for you, there is no simple formula.

Conclusion

Many factors should go into deciding what attorney you hire, and billing rate should not be the only (or even the primary) one.  If you are dealing with a legal issue that warrants the assistance of an attorney, I encourage you to consider giving us a try.  You can call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Wednesday, January 15, 2014

Objectionable Behavior - Courtroom Objection Decisions

As always, before reading this post please review my disclaimer by following the above link or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

ADDITIONAL DISCLAIMER:  THIS POST WILL DISCUSS AN ACTUAL CASE IN WHICH I WAS A LITIGATING ATTORNEY.  IT IS NOT MEANT TO CONVEY MY QUALITY AS AN ATTORNEY, BUT TO ILLUSTRATE THE POINT OF THIS POST.  THIS POST CANNOT CONVEY THE ENTIRE CONTEXT OF THE CASE, CASE RESULTS DEPEND ON A WIDE VARIETY OF FACTORS, AND RESULTS IN ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER.

Introduction

As I've already discussed several times now, last week I had a trial.  In addition to the other trials I observed providing the source material for last week's post, the trial itself had an important distinction.  Unless I mis-counted, it is my impression that during last week's trial I made in-trial objections more times than every other trial I have been in during my law career to date combined.  Now, that may make it seem like I made a lot of objections, and I did, but look at it another way.  This trial lasted just around an hour and a half.  In my career I've had trials as short as 30 minutes and as long as four days.  Even if I was objecting every minute or so (which I was not), that should tell you as well how rarely I generally make objections.

So, is the rarity of my objecting because my opponents are usually so good that they do not do anything objectionable?  Of course not.  Attorneys push the envelope on objectionable action all the time.  The difference, however, is that many attorneys, myself included, simply don't make objections that they feel are unnecessary.  While tons of objections might put on a good show for your client, they tend to bog down a case, tick off the judge, and not accomplish very much.  Even in my trial last week where I felt all of my objections were necessary I found myself essentially apologizing to the judge for the number I had made, and the judge found himself essentially apologizing to the other side for the number he had sustained.  In this post I will explain the difference between when you can object and when, in my opinion, you should object, and why my trial last week was such an outlier in my legal career.

Permissive vs. Required Objections

Most objections in trial are what I would call "permissive" objections.  These are objections to actions the other side has taken that are, in fact, in violation of the rules, but to which if you do not object they get heard anyways, and you waive your right to complain about them later in an appeal.  This means failure to make a permissive objection can put an attorney on the hook for malpractice if that failure turns out to affect the case.  This is why many attorneys err on the side of making objections.  I will admit that I, too, will object if I cannot see my way out of a malpractice suit, even if I do not think a particular objection is absolutely necessary.

Required objections are objectionable behaviors that, even if you do not object, the judge is expected to object to him or herself and not allow to continue.  These kinds of objections are extremely rare and limited to things like courtroom outbursts or improper use of confidential information.  If you are in court and see something objectionable, odds are it is permissive, and your attorney will need to act to stop it.

Necessary vs. Unnecessary Objections

So, now we get to the next inquiry.  If the other side does something objectionable, and it is a permissive objection, how do I decide whether or not to object?  While each attorney has their own internal system, mine asks a series of three questions:
  1. If I don't object, will this information/question/action/evidence hurt my client and/or my client's case?
  2. Is this information/question/action/evidence important enough that it could impact the outcome of this case?
  3. If I do object, will I either completely or substantially prevent this information/question/action/evidence from being considered at all?
If I answer yes to all three questions, then I'll object.  If I answer no to any of them, I probably will not.  So, let me give some examples:

Answer to number 1 is no:

[Lawsuit for personal injury from car crash]
Bob's attorney:  Is it true that Tom told you [Bob] that Kevin [other party] likes the color red?

Well, that's objectionable for hearsay and relevance, but what are you actually accomplishing by keeping it out?  Is the fact that Kevin likes red going to hurt his case somehow?  Seems doubtful.

Answer to number 1 is yes, but to number 2 is no:

[Same lawsuit as above]
Bob's attorney:  Is it true that Tom told you [Bob] that Kevin is a jerk?

Again, you have objections for hearsay and relevance, and while it may hurt Kevin to be called a jerk, it doesn't really affect the case (unless his being a jerk is somehow relevant).

Answer to numbers 1 and 2 are yes, but to number 3 is no:

[Lawsuit for Assault and Battery]
Plaintiff's Attorney:  So, is that when the defendant punched you in the face?
Defendant's Attorney:  Objection, leading question.
Judge:  Sustained.
Plaintiff's Attorney:  What did the defendant do at that time?
Plaintiff:  He punched me in the face.

So, there you have it.  The evidence was getting in whether you made that specific objection or not, all you've done is delay it a few seconds.  As a side note, I've never objected on the basis of a leading question in my career.  While I can foresee a situation in which I might, it's just so rarely necessary that I've just never done it.

Why Necessary Objections Are So Rare

So, why is it then that, in my opinion, necessary objections are so rare?  Well, most cases fundamentally turn on a fairly small number of facts.  Even in multi-day trials, much of what you are hearing is background to the key facts of a case.  Thus, the answer to number 2 will rarely be yes.  Moreover, most attorneys, and even most pro se parties, have at least enough avenues to get their evidence heard that the answer to number 3 will also rarely be yes.  For hearsay objections, for example, if the declarant is there to be a witness, then the hearsay will eventually get in.  I've already discussed my issue with leading question objections.  Really the only type of objection that I've encountered where the answer to number 3 is usually yes is when the other party attempts to discuss the content of settlement discussions.  Those can be very harmful to your case, but are also completely barred from being heard, meaning no number of witnesses or means of evidence presentation will allow settlement discussions to get in.

What Made This Trial Different

So what made my trial last week different?  Well, it was all about being prepared.  I knew several facts ahead of time.  My opponent was pro se, so I knew she didn't have an attorney preparing her for the issues her case had.  I knew my opponent's case rested largely on statements made to her by others who were not parties to the case.  I knew my opponent would not be calling any witnesses except herself.  Finally, I knew that if she did call any of my witnesses who were going to be there, they would testify to something different than what she was alleging they had said.  This meant that the hearsay in her case would all be yes to number 2, since that was basically the basis of her suit, and yes to number 3, since she had no way to get the hearsay evidence in otherwise.

In the end, that's exactly what happened.  It seemed like every other statement she made was hearsay, I objected, it was sustained, the evidence did not get in.  She tried to deflect by turning to what was discussed in settlement, I objected, it didn't get in.  She tried to introduce e-mails from non-parties claiming they were threats against her, I objected on relevance grounds, they didn't get in.  In the end, just about every objectionable action she took got a yes answer to all three of my questions, and as a result, I objected.

In the end, this approach did work.  Her lawsuit was dismissed on my motion to strike, and our counterclaim was ruled on in our favor.  This was in large part because she essentially never presented a case since all of her evidence was improper.  It was the four factors I discussed above, however (pro se litigant, case largely based on statements of others, no plan to call those others as witnesses, knowledge that our own witnesses would contradict opponent's case) that combined to make this case the unusual one where frequent objections were necessary.

Conclusion

While it may make court cases much less interesting, objections are not nearly as common in real life as they are on TV.  That's not because objectionable things rarely happen, but rather because objections are rarely worthwhile.  Certainly, they happen, and I think not counting my trial last week I still average about 1-2 per trial (I can only think of two trials in which I made none), but by and large they are few and far between.  You should not think less of your attorney because he or she is judicious with their objections, rather than wildly throwing them at everything.

Thursday, January 9, 2014

Lessons from the Courtroom - Beware of Your Employer's Contracts, Contributory Negligence, and Other Real Life Lessons

As always, before you read this post, please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Additional disclaimer:  This post will extensively discuss actual case results.  While none of them are my cases, you should nonetheless keep in mind that this blog post cannot convey the entire context of the case, case results depend on a wide variety of factors, and results in one case do not necessarily predict results in future cases.

Introduction

If you happened to stop by my blog last week, you would know that I've had two weeks in a row without posting.  I was determined to not let it be three, even though I had a trial yesterday, right in the middle of the week.  Fortunately, that trial provided me with good inspiration for a post.  Well, not exactly that trial.  I am going to have a post based somewhat on that trial, but that won't be until next week.  It's what happened before the trial that inspired today's post.

You see, what I love about having trials in the General District Court in Virginia (as opposed to the Circuit Court) is that your case is usually one of several being heard that day.  If your case goes last, as mine did yesterday, you get to sit through a number of other trials - oftentimes very interesting trials.  That being said, I felt the trials I sat through yesterday were more interesting than usual, and some of them raised very serious issues that I think many people simply don't think about.  So, I want to discuss those cases today (as is the case with nearly all trials in Virginia, these trials were held in public and are public record - nonetheless I will not use the names of the specific parties since I feel discomfort doing so - if you're that interested, there will probably be enough clues for you to go find out yourself).

Putting Yourself at Risk for your Employer

Perhaps the case that struck me most yesterday was also the one that made me the saddest.  I couldn't help but feel like the conduct of the plaintiff in this case was reprehensible, and that the result was wrong on an intellectual level, but I also couldn't help but agree that the result was correct legally.  In this case, a gentleman had worked for a brief period of time for a very small employer and was given the title of Vice-President.  From the sounds of the description of the employer, it was largely a meaningless title.  During his employment there, he signed four contracts on behalf of the company to advertise in some phone directories.  The company then defaulted on paying the bills for those advertisements, and the company later went out of business.  The now-former VP has not worked for that employer for many years.

The phone directory company did sue the employer, but as the employer was now defunct, they were unable to collect.  However, there was a clause on the back of the contract stating that the individual signing the contract was also jointly liable for it with the company, so the directory company sued the former VP.  His lawyer made very compelling arguments that the contract was unconscionable, and that there was a lack of consideration for the VP's personal guarantee, which this essentially was, but both arguments ultimately failed, and the VP is now personally on the hook for more than $24,000.

Perhaps the biggest takeaway from this, however, is that the contract was not some specially negotiated contract - it was the directory company's standard contract.  There are, in fact, thousands of companies out there whose contracts include personal guarantees by the person signing for the other company, yet how many of you thought if you signed something on behalf of your company that you yourself could be liable?  This is why it is so important that you always read any contract you sign, even if you're signing it on behalf of someone else, even if your boss has said that she has already read it thoroughly.  If there's a personal guarantee, make sure you are ok with it, and if not, ask if you can re-negotiate the contract.  Perhaps most importantly, if you cannot re-negotiate it, or if you are in a position where you need to sign contracts that include personal guarantees, I strongly recommend that you consider purchasing professional liability insurance.  Don't assume your employer's insurance covers you - take action to protect yourself so that if the worst happens, at least you're not spending years trying to get out of unexpected debt.

Understanding Contributory Negligence

Another case I observed yesterday involved a car accident.  A gentleman turned into a McDonald's, and the taxi driver behind him did as well.  For reasons that were disputed, the gentleman and the taxi came side-by-side, and the gentleman then side-swiped the taxi.  While there were disputes about who was where and where the accident was, the judge concluded, and I agreed, that the physical evidence indicated the gentleman had turned into the McDonald's too widely, causing him to go in the "out" lane, while the taxi turned in correctly, in the "in" lane, and that the gentleman's wide turn and then turn to a parking space caused the accident.  As such, that taxi company, which was the plaintiff, won.

The lesson here, however, is that in my opinion this was a case of a defendant's lawyer too focused on one argument, when he should have had a back-up - one I think would have been effective, and one he may have pursued if his client had the basic knowledge of Virginia law to suggest it (yes, the lawyer should have thought of it himself, but it always helps to have a client who has some basic knowledge of the law).  In most states, there is a rule called "comparative negligence" where, if the plaintiff is 15% at fault and the defendant is 85% at fault, the defendant will only be liable for 85% of the damages (this is a very basic summary).  Comparative negligence is still a relatively new concept, however, only being around for the past 50-75 years.  Virginia, on the other hand, still follows the old rule, called "contributory negligence."  Under contributory negligence, if the plaintiff is even 1% at fault, he is completely barred from recovery.  As in, he gets nothing.

This is actually one of the very basic negligence rules in Virginia.  It would have taken the defendant about 5 seconds on Google to find out about it, and may have saved him quite a bit of money.  Why?  Think about it, the taxi was behind this guy, yet at the very entrance to the McDonald's, he was next to him enough to be sideswiped.  He had overtaken this defendant in a matter of seconds - he was obviously driving and turning too fast, and not paying enough attention to where the defendant was.  Contributory negligence is an affirmative defense, however, and failure to raise it waives it.  So, the judge never got to consider this, and if he had, my personal opinion is that the defendant would have won.

You the Expert

Another fascinating case I observed also involved a car accident.  In this case, a gentleman was following a horse trailer, a piece of debris flew out of the horse trailer, the gentleman swerved to avoid it causing him to lose control of his car, and he crashed into a boat trailer.  The lawsuit was by the insurer for the boat trailer against the gentleman who swerved.  This case, however, had a twist.  The driver of the car with the boat trailer attached happened to be an employee of the National Highway Traffic Safety Administration, and basically had 20 years of experience in traffic safety and observation.

When the plaintiff's case began, the lawyer immediately began going into the driver's years of experience.  An objection came, however, and was sustained.  A material witness cannot also be an expert witness (to be an expert witness, you cannot have a showable bias in the case), and it is improper to try to conflate the two.  The plaintiff's attorney never recovered.  The driver gave some good testimony to show how the car that hit him acted improperly in response to the debris, but it wasn't great.  Gutted of his experience-based testimony, the plaintiff's case became immediately bland.  Perhaps worst of all, the plaintiff's lawyer was so distressed by the loss of his "expert," he completely missed the basically admitted (but not pointed out) fact that the driver who hit the boat trailer had actually been following too close to the horse trailer to begin with.

If the plaintiff's lawyer had not made this mistake, he likely could have focused on how closely the defendant's car was following the horse trailer.  He could have interviewed other drivers.  He could have taken many courses of action that he didn't - because he forgot a basic rule about material witnesses being experts.  So, all that the court was left with was a defendant claiming that a piece of debris came flying at his car and he reacted reasonably by trying to avoid it and a plaintiff basically just saying "no he didn't."  That's not enough, and a judgment was entered for the defendant.

Keeping Good Records

The last case I want to touch on involved a suit by an apartment complex against a former tenant.  The apartment complex claimed that the tenant had failed to pay some rent and some fees.  The tenant denied the claim, and brought to court a whole bunch of money orders to show it.

Here's the thing - it's a little known fact that when you are accused of breaching a contract and your breach is failure to pay something, you having paid is actually an affirmative defense, meaning it is on you to prove that you made the payments.  The problem with money orders is that having a copy does not prove that they were delivered, and you don't get cancelled money orders back.  Same with cash.

This is why it is critical that when you pay for services (especially higher priced services like rent) you keep a complete paper trail.  This means showing not only that you had the money and gave it, but also that it was received.  If you pay by check, cancelled checks will usually do this.  If you pay by credit card, credit card statements will usually do this.  If you pay by cash or money order, however, you absolutely need a receipt.  This tenant did not have receipts, and thus could not prove that these money orders were actually given when he says they were.  As a result, judgment was entered against him.  I cannot stress enough how many problems I encounter that would be resolved if people kept better records.

Conclusion

The above are just some of the lessons that are taught every day in our courtrooms.  If you live in Fairfax County and have some spare time, I would encourage you (especially if you have a teenage child you'd like to have see our system at work) to sit in on a civil trial every now and then.  Civil trials in the Fairfax County General District Court are held on Mondays through Fridays (although Fridays are reserved for eviction type cases) starting at 9:30 a.m. in the Fairfax County Courthouse Courtroom 2B.  If you'd like to discuss your legal rights in a given situation, especially if it involves leases or contracts, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Thursday, January 2, 2014

Once again no post this week

Having the holidays be mid-week is killing my posting!  Seriously, though, you try putting together a blog post after coming back to the inevitable mass of e-mails, client calls and just general work that comes with coming back from vacation.  Unfortunately, this means two weeks in a row with no blog post.  Unfortunately, next week I have a trial on Wednesday, so I may have trouble again.  Hopefully I'll work around it, though.

In the meantime, this is around the time of year that my family law work picks up for all the people who didn't want to split up during the holidays, so I guess it's a good time to remind you that if you spouse says get out, you can say no.