Here's one for the married people out there. Sure, you get taxed differently and you no longer own anything separate from one another, but there is a legal advantage that comes out of the deal (disclaimer: This blog is not intended to examine, explore or delve into the emotional, spiritual or personal value of any marriage or serve as a commentary thereon. As a less than amateur observer and attorney, my comments here are strictly legal and should not and are not intended to be a value based judgment of your relationship or that of anyone like you). You get to refuse to disclose any conversation had with your spouse.
It's right there in Florida's Evidence Code. There is a specific privilege that recognizes the sanctity and confidentiality of communications between husband and wife. It states:
"A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife."
The law here plainly acknowledges that spouses are likely to share and discuss the most sensitive of issues and in a way that delves into the merits of legal disputes, considers their value and even tactical decisions (at least, if your a good husband you will). The law does not want to impose a chilling effect on marriage by allowing the conversation you had with your wife about the auto accident you were just to be examined in a legal dispute. It's bad enough you didn't tell her about the fantasy football league your playing in again. Imagine if you couldn't discuss what went on in your day for fear that it would be used against you in court (instead of being used against you at home whenever). Not many marriages would survive that. So, the law has followed a larger and greater societal norm by enacting rules that protect the sanctity of marriage.
And you said the law was heartless.
Wednesday, June 30, 2010
Monday, June 28, 2010
It's All About Character
In this line of work, I often feel a little something like those movie characters called upon to kill and who do so with great reluctance. Not that I'm ever called upon to do anyone in - physically. But, it's not uncommon for clients to recruit me as a sort of character assassin. Yes, a lot of clients are more than happy to use a public forum to air their dirty laundry or at least air their adversary's.
It's a sad reality, but a reality all the same. Clients often want to make the other guy look bad almost as much as winning.
You should know that there are rules against this. Florida law does not really allow for the use of character evidence at the trial of any cause except for some pretty limited circumstances. As a general rule, then, the fact that Mr. Smith beats his dog and hates his kids is not really going to come into your lawsuit with him over the fact that his elm tree has grown over into your yard and damaged your house.
So, who cares - right? Well, some months back I warned you about putting your whole life out on internet. You remember - Facebook and My Space are fun tools but can be the gateway to a whole host of issues. Well, as it turns out, the same rules of evidence that regularly apply to character evidence can apply to your Facebook and MySpace accounts.
Just a few weeks back there was a case that ruled that information contained on a party's MySpace page was inadmissible character evidence and efforts to introduce it amounted to the character assassination I was lamenting above. This should give you some measure of comfort knowing that, while you may be ok with your most awful moments of all time being photographed and put up on Facebook, they won't likely be admissible to show that you were responsible for running over Mrs. Jones' cat.
It's a sad reality, but a reality all the same. Clients often want to make the other guy look bad almost as much as winning.
You should know that there are rules against this. Florida law does not really allow for the use of character evidence at the trial of any cause except for some pretty limited circumstances. As a general rule, then, the fact that Mr. Smith beats his dog and hates his kids is not really going to come into your lawsuit with him over the fact that his elm tree has grown over into your yard and damaged your house.
So, who cares - right? Well, some months back I warned you about putting your whole life out on internet. You remember - Facebook and My Space are fun tools but can be the gateway to a whole host of issues. Well, as it turns out, the same rules of evidence that regularly apply to character evidence can apply to your Facebook and MySpace accounts.
Just a few weeks back there was a case that ruled that information contained on a party's MySpace page was inadmissible character evidence and efforts to introduce it amounted to the character assassination I was lamenting above. This should give you some measure of comfort knowing that, while you may be ok with your most awful moments of all time being photographed and put up on Facebook, they won't likely be admissible to show that you were responsible for running over Mrs. Jones' cat.
With A Handshake And A Smile
Happy Monday, everyone. Last week, a client told me some fish story about putting together a contract for the purchase of a marina on the back of a napkin. No, I am not making this up and I am sure that you have heard stories just like this. They are usually told when: 1) bashing lawyers for being lawyers; or 2) people labor under the false belief that life used to be easier and less complicated (ask a guy from 1753 if he'd rather live in his own time or enjoy the modern amenities of soap, dental care, air conditioning and TIVO).
Now, for the moment, let's ignore that this story is about 500th time I've heard of a deal being put together on the back of a napkin (and who can tell, by the way, what's the front or the back?). Let's also ignore the fact that this client is in a world of legal trouble based upon improper documentation and failure to keep accurate and necessary records. The idea of napkin-based transaction is....well, stupid. It's like the handshake and a smile deal. "Aw, you should have been there. Bill was the kind of guy who didn't need any fancy contract. He just made deals and shook on it."
I wish I could recount the number of people I've heard this about. I also want to confirm for you that not a single one of these persons is still alive and the second part of the story always seems to be about their subsequent financial hardship or the mess they left behind when they died. There is not a mogul or millionaire out there who does business like this. Another client I have who made a fortune hates and despises lawyers to the core of his soul, but he employs an army of us to keep his money and his future safe.
Certainly, transactions can be simple. But nothing - and I repeat - nothing can be fully documented on the back of a napkin. The law says contracts HAVE to have certain terms to be complete. There has to be a price and consideration and, depending on the deal, quantity, quality and time for performance. I cannot describe to you how much trouble I have convincing people that "just agreeing" to something is not as easy as they want it to be. The maze of laws and regulations out there that complicate every great deal born in concept demands that you determine and agree to who will deal with what risk and what contingency. Oh, and let's not forget that certain contracts require certain other formalities, like witness signatures, documentary stamps, attestations or seals or certain "magic words."
By the way, if you're drafting your contract on a napkin, it's likely because you're at a bar and, logic would have it, you've been drinking. That's always a good time to negotiate a deal and commit it to writing. Really, what could possibly go wrong?
Now, for the moment, let's ignore that this story is about 500th time I've heard of a deal being put together on the back of a napkin (and who can tell, by the way, what's the front or the back?). Let's also ignore the fact that this client is in a world of legal trouble based upon improper documentation and failure to keep accurate and necessary records. The idea of napkin-based transaction is....well, stupid. It's like the handshake and a smile deal. "Aw, you should have been there. Bill was the kind of guy who didn't need any fancy contract. He just made deals and shook on it."
I wish I could recount the number of people I've heard this about. I also want to confirm for you that not a single one of these persons is still alive and the second part of the story always seems to be about their subsequent financial hardship or the mess they left behind when they died. There is not a mogul or millionaire out there who does business like this. Another client I have who made a fortune hates and despises lawyers to the core of his soul, but he employs an army of us to keep his money and his future safe.
Certainly, transactions can be simple. But nothing - and I repeat - nothing can be fully documented on the back of a napkin. The law says contracts HAVE to have certain terms to be complete. There has to be a price and consideration and, depending on the deal, quantity, quality and time for performance. I cannot describe to you how much trouble I have convincing people that "just agreeing" to something is not as easy as they want it to be. The maze of laws and regulations out there that complicate every great deal born in concept demands that you determine and agree to who will deal with what risk and what contingency. Oh, and let's not forget that certain contracts require certain other formalities, like witness signatures, documentary stamps, attestations or seals or certain "magic words."
By the way, if you're drafting your contract on a napkin, it's likely because you're at a bar and, logic would have it, you've been drinking. That's always a good time to negotiate a deal and commit it to writing. Really, what could possibly go wrong?
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