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.

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!

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.

No Post Today

Hi all.  I had been planning to go ahead and do a post today, but recovering from the holidays seems it's going to need to take priority, so I'll see you all again next week!

"If You Cannot Afford an Attorney..." - Court Appointed vs. Pro Bono Attorneys

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

Note:  This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.

Introduction

It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot.  Within the legal profession, the distinctions are fairly clear.  It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.

The fact is there are two completely different kinds of "free" attorneys.  The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate).  The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client.  A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney.  A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney.  Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.

Right to Be Provided an Attorney vs. Right to Have an Attorney

So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney?  Well, let me explain what I mean first.  The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office).  The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.

So, first of all note that the former is a subset of the latter.  In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono.  The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.

While there are exceptions, you virtually always have the right to have an attorney.  In any legal predicament you are in, you can consult an attorney if you wish.  You also always have the right to have an attorney if you are in front of a court.  If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.

Of course, the big question this leaves is, when do you have a right to be provided an attorney?  Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney.  Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.

The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail.  In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence.  You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example).  That's really it - unless you are in those situations, you do not get a court-appointed attorney.

Guardians ad Litem

There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem.  I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case.  They are worth mentioning briefly, however.  A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself.  It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants.  While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case.  Note, however, that the last category is very hard to get a guardian ad litem appointed for.  I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!

How to Get a Pro Bono Attorney

So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys.  The answer, unfortunately, is not simple - and can often take a good bit of searching.  Most areas have a local legal aid organization.  If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look.  Beyond that, it can be a crap shoot.  If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them.  I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.

Conclusion

There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you.  If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you.  If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.

Sitting at Home Collecting Checks - Vocational Experts and Support Payments

As always, before reading 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.

Introduction

After nearly a month of doing landlord/tenant blog posts, I decided today I would break off and get back to other areas of law.  For today's topic I've chosen an issue that comes up with a great deal of frequency in the family law field.  What happens if someone asking for support, or paying support, knows that their income will affect what they pay or what they get, and so they decide to either quit their job, take a lower paying job than they should, or not pursue increased income opportunities that they reasonably should pursue?  The fact is, if you believe the other party in your case is doing this, you do have a way to either force them to take higher paying work, or get the court to treat them as though they are paid more.

The Law of Underemployment and Support

In a case involving child support, spousal support, or both, if either party is unemployed, or accused of being underemployed, it is that party's burden to prove that they are not.  That is - it is that party's burden to prove that their unemployment or underemployment is through no fault of their own.  There are many reasons that someone could be unemployed or underemployed through no fault of their own - they were laid off and have not had enough time to find a new job, they were a stay-at-home parent for 15 years by agreement of the parties and now have been out of the job market too long to get a new job, they are disabled, etc.  Nonetheless, it is frequently very challenging to prove to a court that your unemployment or underemployment is involuntary.  If you were fired for cause, if there are jobs that you can still do despite your disability, if you have not been applying for jobs frequently enough, etc., the court may very well find you voluntarily unemployed or underemployed.

So, what happens if the court does find that someone is voluntarily unemployed or underemployed?  In that case, the court has the right to "impute" income to the person.  What this means is that the court for calculating support will treat that person as though he or she earns more money than they actually do.  That, however, is where the simplicity ends.  This is because while it is the burden of the person who is under or unemployed to prove that this is involuntary, once the court finds it voluntary, it is the burden of the other party to prove what the voluntarily under or unemployed person should be earning.  If your ex is found to be voluntarily unemployed, but you cannot convince a judge of what he should be making instead, the judge will still treat him as though he earns nothing.

Simple Proofs of Earning Capacity

Sometimes there are easy ways to prove what a voluntarily under or unemployed person should be making.  For example if someone was fired for cause or quit without good reason just a couple months earlier, a judge will likely accept the person's prior income.  Similarly, if the person turned down higher paying jobs without a good reason for doing so, the court will likely accept that income.  But what happens when you don't have that situation?  What happens when someone was fired for cause five years ago, and has simply refused to look for new work ever since?  A judge certainly is not going to impute five year old income, so where do you go from there?

Vocational Experts

What may surprise people to know is that there is an entire class of expert witnesses out there who can speak to this exact issue.  These people are known as vocational experts, or vocational rehabilitation specialists.  These individuals have spent their adult lives studying job markets, job skills, etc. and are able to calculate earning capacity, along with the availability of jobs at that earning capacity.  A vocational expert will interview the allegedly involuntarily under or unemployed person, investigate their work history, and put together a report indicating whether the person is employable, and if so, what they should be making and how many jobs are available at that income level.

There are a very small number of these experts in any given area, so it is likely that your judge will know your expert.  Evidence presented by vocational experts is frequently accepted by judges and used to impute income.  Best of all, in the grand scheme of legal expenses, vocational experts are not all that expensive, running around $3,000 to $5,000 if they have to testify in court (considering the amount you could save on support or increase you could get in receiving support, the expert really pays for herself).

What If My Ex Doesn't Cooperate?

So, you will note that the vocational expert's work includes an interview with the person.  So, what if your ex simply refuses to be interviewed?  Fortunately, the General Assembly has recognized how important a part of the support process a vocational expert is, and in 2010 it adopted Virginia Code Section 20-108.1(H) which allows you to file to get a court order requiring your ex to cooperate with the vocational expert's evaluation.  Moreover, this provision allows you to seek the costs and fees associated with this process - a useful tool to hold on to in order to encourage cooperation.  As a result, your ex refusing to submit to the interview could result in a finding of contempt of court, which will only help your case.

Conclusion

If you are involved in a spousal or child support situation and your ex is voluntarily under or unemployed, the burden is on you to prove what he or she should be making.  Fortunately, vocational experts exist to help guide you through this process and come out with a number a court is highly likely to accept.  If you are in a support situation involving voluntary under or unemployment, 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!

Avoiding Tenant "Self-Help" Part 3 - Ordinary Lawsuit

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

Introduction

As you know, I have been conducting a multi-part series on options tenants have when their landlord is in violation of their lease that can allow the tenants to avoid the pitfalls of self-help.  In part 1 I discussed use of a "Tenant's Assertion" and in part 2 I talked about what I call "notice termination."  Today's post, which I anticipate will be the last in the series, discusses what may at once seem the most obvious approach, but also one that most people don't desire for a number of reasons.  That approach is, of course, an ordinary lawsuit.

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers of my blog should be well-trained by now to know that the first question you always need to ask in a landlord/tenant matter is if it matters whether you are dealing with a lease covered by the Virginia Residential Landlord and Tenant Act, or one that is not.  In the past two parts, I have mentioned that really the only difference is that in a non-VRLTA lease it is possible (though not guaranteed) that a lease could waive the tenant's rights to use that process, while VRLTA leases could not.  Today, the difference is, well, different.  First, I do not believe a non-VRLTA lease can waive a tenant's right to file a lawsuit for damages unless that lease preserves at least one other method for a tenant to assert his or her rights.  This is because courts frown upon contracts that prevent one party from suing for a breach but allow the other party to do so.  While nothing is a guarantee, I would expect a clause waiving a tenant's right to sue for breach of contract - the remedy I am discussing today - would be found invalid in court.  That being said, much of the caselaw on this point is now outdated because prior to 2011 a lawsuit like this was the only remedy available to non-VRLTA tenants.  Now that the Tenant's Assertion and notice termination rights exist for non-VRLTA tenants, a clause waiving the tenant's right to sue but preserving the tenant's right to engage in those two actions will probably survive.

On the other hand, there is one important other distinction between the VRLTA and non-VRLTA leases for tenant lawsuits.  The VRLTA contains Virginia Code Section 55-248.40 which allows any person adversely affected by the landlord's breach of the VRLTA (note this is only for breaches of the VRLTA, not breaches of the lease that are not also VRLTA breaches) to file suit and recover damages.  A lawsuit in a non-VRLTA lease can only be filed by one or more tenants if the person filing suit is a party to the lease.  Under the code section I just mentioned, however, for a VRLTA lease, authorized occupants, guests, and anyone else who may be affected but did not sign the lease has a remedy available to them as well.

What Can I Actually Sue For?

So, saying you can file an ordinary lawsuit sounds simple enough, but the follow up question should be what kind of lawsuit can you file?  Well, as you might guess, the lawsuit you can file is one for breach of contract.  Note, however, that this is pretty much the only type of lawsuit you can file.  If, for example, a landlord's failure to maintain the pipes in your rental causes a hot water pipe to burst which scalds you, you cannot sue for personal injury.  There is a long-standing common law rule that states that a lease does not create tort liability (liability other than just plain breach of contract) by a landlord, and the courts have recently held that this rule still applies even to VRLTA leases.  As a result, your only lawsuit available is breach of contract.

Now, for your breach of contract lawsuit, you can receive as compensation any damages that someone would ordinarily expect their breach of contract to cause.  This includes property damage (unless your non-VRLTA lease waived this right), costs incurred by you due to the breach (for example, if you had to stay in a hotel, if you paid to do the repair yourself because your landlord wouldn't, etc.), and loss of use damages.  The last one usually makes up the bulk of such lawsuits.  If, for example, your rental becomes uninhabitable, you should be entitled to a refund of your rent during that time frame.  If only part of the house becomes uninhabitable, then you should get a partial refund.

Now, the final question is attorneys' fees.  I have successfully argued in the past that the attorneys' fee provision of Virginia Code Section 55-225.13 and Virginia Code Section 55-248.21 (the notice termination statutes) apply to regular lawsuits for damages, too, but there's no guarantee that this will always work.  As a result, whether you are entitled to fees is a bit of a toss-up.

As a final note, for VRLTA leases, the aforementioned Code Section 55-248.40 gives you the right to also sue for an injunction requiring the landlord to cease his or her breach of the VRLTA.

What Situations Warrant a Lawsuit?

To me, an after the fact lawsuit is usually the least desirable of the big three tenant options.  This is because you do not have a guaranteed pool of money from which to collect a judgment (such as the escrow account you have in a Tenant's Assertion) and you don't get to potentially avoid court altogether (as you do with a notice termination).  However, a lawsuit is warranted, in my opinion, in the following circumstances:

• The breach of the lease is not "material," does not create a "condition" on the property (so, for example, the landlord's failure to return a security deposit, or to reimburse you for a repair you already did, or to abate your rent for the portion of property use you have lost due to a fire or flood), and/or the "condition" caused by the landlord's breach has already been repaired.  In this situation, neither a tenant's assertion nor a notice termination is possible.
• You conducted a notice termination, but you do want to also be reimbursed your damages.
• A tenant's assertion is possible, but you fear retaliatory conduct if you engage in one and want to wait until your lease ends to recover your damages.
• For a VRLTA lease, the potential plaintiff is not a party to the lease, and the conduct is also a violation of the VRLTA itself.

That's about it.  This does, however, actually encompass a decent number of situations.

When to File Lawsuit

With the exception of a VRLTA lawsuit under Section 55-248.40 seeking an injunction, a lawsuit needs to be filed after the fact.  Failure to wait until after the fact could open you to a whole range of defenses from the landlord, and end up being a big waste of time and money for you.  Worse, it may limit the amount you can recover (you can only sue for damages you've suffered as of the date of filing - if those damages continue to accrue, you may be out of luck).

Conclusion

An after the fact lawsuit is the last of what I consider to be the big three remedies tenants have for breach of a lease by a landlord that allow the tenants to avoid self-help.  If you are trying to figure out what remedy is best for you, or you want to file a lawsuit against your current or former landlord, 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!