Newly Certified

Everyone:

The court systems like to keep us on our toes and, so, every few years, change the requirements for authorization to appear in front of them.  Not too long ago, the bankruptcy courts followed the federal district courts and switched over to paperless filing.  Along with that came a requirement that anyone who wanted to practice in front of the bankruptcy court had to be certified.  So- quick announcement: I took the course for bankruptcy certification and passed the practical test.  So, now I've got all the tools to serve you in bankruptcy court.

Tag! You're It!

Another weekend down and done. Back to work, everyone.

Doing what I do, I sometimes take for granted that everyone knows as much about the ins and outs of my job as I do. I got a reminder the other day that this is not the case. A client who understands a lot about a lot of things assumed that once I filed his lawsuit we were off to the races. Not so fast, friends.

Once I file a lawsuit- well, that's all I've done. Nothing happens after that unless I actually get the defendant involved. To do that, I have to have a copy of the papers I filed with the court delivered to someone authorized to serve court papers and then that person has to actually hand them to the defendant.

Sounds odd, doesn't it? I can't do it and the client can't do it. It has to be a neutral person appointed by the courts to serve papers. You've no doubt heard about process servers, but may not know the real reason for their being. They do this to ensure that the papers are, in fact, delivered to the defendant and, in some instances, it can be dangerous to deliver the complaint to the person you're suing. It's not really a stretch of the imagination to consider that the plaintiff and defendant might not be getting along.

Until the process server actually delivers the complaint and any other papers I filed to the defendant, my lawsuit just sits there getting older. If nothing happens for 120 days, my action gets dismissed. Once and if I do get the process server to deliver the papers to the defendant, then things get interesting. Now, the defendant has 20 days to respond to the complaint.

What's his or her response? Well, that's the subject of another entry. Have a great day, everyone.

We Audit, Too

As those of you who know me well enough to listen to me prattle on about my practice, I am trying to steer away from the days of highly specialized practices and focus on being able to render a full range of services to clients both near and far. Basically, I am going back in time to the days when people would say, "I need to have my lawyer look at this" instead of "I need to have my i.p. lawyer, business attorney and tax counsel look at this." Miami is just not the sort of place that needs to be rife with thousands of specialized practitioners.

Also, as those of you who know me well are aware, I have a lecture/presentation I put on about things you, the client, can do to save yourself a lot of potential exposure, litigation and attorneys' fees. By the way, I'm happy to come to your organization or place of business and put it on at any time (for free, of course). It's become my constantly repeated theme to clients: spend a little bit of money now to put your house in order and one of two things will happen. First, you will never need me again or, second, when things go wrong, you will save yourself a fortune.

With that idea in mind, a like-minded friend has suggested that I start conducting legal audits. Brilliant. For a free hour, I will come to you and we can review your business' legal seaworthiness. Are your contracts up to speed? Is your employee manual compliant with the current law? Do you have sufficient safeguards to protect confidential and customer list information? There's about a dozen more areas of exposure and liability we will cover. Once I have a picture of where and how things stand for you, we can devise a strategy to shore up weak defenses and bring things current.

Does this cost money? Yes. Do you hate paying lawyers? Absolutely. Will engaging in an ounce of prevention be exponentially cheaper than paying for a pound of cure when the litigation starts? No doubt.

You want an example? Ok. Not long ago, a company sued its former employee for "stealing" the company's customer list and taking it to the competition for just slightly better pay. The former employer sued for theft of trade secrets, arguing that the list was proprietary and confidential. This company knew that, without this list and the revenue generated by the sales to these customers, it's business was in big trouble. You can only imagine what it must have felt like for the company when the federal judge entered judgment in favor of the departing salesman. You could probably hear the air rushing out of the room.

Why did the salesman win? Well, he was free to work for whomever he liked whenever he wanted to? In a competitive field, this issue could have been addressed by having the salesman sign a non-compete and non-solicitation agreement. As for the customer list, the court found that it must not have been a trade secret or proprietary if the employer did not do any of the things the law regards as ordinary practices to protect proprietary information. By the way, this little venture cost the losing employer over $90,000.00 in attorneys' fees. Had he spent $4,000.00 to protect his interests at the beginning, he could have avoided all this and stayed in business.

The legal audit. It's not just for the IRS and accounting firms, anymore.

Not All Costs Are The Same

Frequently, clients are concerned about the costs of litigation. I am not referring to the overall expense of a lawsuit - time, attorneys' fees, loss of opportunities that could be exploited but for the fact that there is a pending lawsuit. I mean the actual costs - filing fees, court reporter appearances at hearings, fees for process servers, mediation fees, etc.

Almost every lawyer in the world requires clients to pay the hard costs associated with litigation. Even attorneys willing to take your case on a contingency basis are not always willing to front your costs.

But, here's some good news. If you win, you get to recover your costs from the losing party. Of course, with all of the news lawyers tend to bring, there is a drawback to this. You are only allowed to recover costs that the law considers to be "taxable." What in the world am I talking about? Taxable costs are those the court can tax to your opponent and there is a definite and finite list of these expenses. For instance, you are entitled to recover the fee for filing your lawsuit, serving the lawsuit on the other side and the cost of copies made for documents and exhibits used at any trial of your suit. In fact, there is a set guidelines governing what costs can be recovered- it's a statewide uniform guideline. So, wherever you go in Florida, the rules are the same.

Great, but what about the other expenses? Travel expenses, parking, faxes, overnight mailings, courier fees? I have a solution. You can insert a provision into your contractual arrangements that provides for the recovery of all costs- whether taxable or otherwise- in the event of litigation. I've noticed that this is becoming a more prevalent practice now that people's economic fortunes have changed and we are all becoming more cost conscious. Does this sound crazy? You can just agree? Crazy as it may be, the American legal system strongly values the power of people's freedom of contract. So long as what you are bargaining for is not illegal, people are allowed to make any arrangement they like.

I like the idea of such a provision and you should, too. It offers you an extra measure of protection and helps limit the possibility that you will be called upon to spend large sums of your own money to recover expenses that were only laid out because you had to sue.

Let's get this done, people.

Want To Save Some Money? Mediate

I hope everyone had a great weekend.

It's time to save money. Tax season is here. Half of everyone I know is out of work or had to suffer some kind of a cut back in time or compensation.

So, what about you? You own, run, operate or manage a business or some aspect of a business. Chances are, if you know me or read this blog regularly, you use (whether voluntarily or otherwise) attorneys. So, what can you use me for to help save you money? Sounds like the Buddhist question to enlightenment, right? What is the sound of one hand clapping?

It's actually a little easier than you think. Too often, clients come to me when the problem has already surfaced, when it's become fetid and the fighting has already started. By then, you've already resigned yourself to the fact that your money is about to become my money. If only there were a way to see this coming....

There is, sort of. You can never predict the future and you can never know exactly where things are going to go wrong. But you do know that, if you have to litigate over any situation, it's going to be expensive. Okay, it's going to be very, very expensive. So, knowing that, why not try to control the length, depth and expense of the dispute resolution mechanism?

Here's how to do it - have a pre-litigation mediation clause included as part of your contracts. Such a clause requires the disputing parties to go to mediation before anyone can file suit. Sounds stupid? Sounds like an extra step? The answer to the first questions - it is not. The answer to the second - it can be the only step, if done properly.

Well over 90% of all cases end up settling before trial. So, less than one in 10 suits will ever go to trial. In the business litigation world, that number is even smaller. In the end, business-minded people run cost/benefit analyses and figure out where and how to settle their disputes. It often comes down to dollars and practicality.

So, why not include a provision in your agreements that provides that everyone has to attend a sitdown before they start drawing guns? A double-digit percentage of cases resolve at mediation. So, why not skip the lawsuit, the fighting, the multiple meetings, the deposition and the document production and see if there isn't some way for everyone to come up with a business solution first instead of as the last resort?

Don't get me wrong, I like what I do and I like litigation. But there will always be lawsuits that presuit mediation cannot prevent. Hopefully, you will not have one of those situations. Try it. You might find that holding on to your money feels good.