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!
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