What Are You Implying?

If you've been reading along for the last few months, you have probably picked up on the fact that I am big on trying to get all of you to read, know, update and understand your contracts. More than that, you have undoubtedly figured out that I want you all to properly document all of your business transactions so that the law and predictability will be on your side.

But what if you have some business dealings and there is no written expression of the terms? What if there were some very specific circumstances where you had to disregard the things you've picked up here and had to fly without a net? Well, fret not, there is hope.

The law, in addition to protecting those who have express contracts, also protects those who don't. There are a number of theories and reasons behind each. I'll give you some details about each over the course of the next few days- just to keep you reading.

As a general rule, these various theories are known as implied contracts. Get ready, because you're going to hear all about unjust enrichment, quantum meruit, open account/account stated and oral contract. I bet that'll occupy your time much better than ESPN.com or TMZ.com. Stay tuned.

Supreme Influence

This entry applies mostly to those of you who do business overseas or are yourselves foreign nationals. Yesterday, the New York Times reported that the influence of the US Supreme Court overseas is waning. In the past, foreign courts looked to the US Supreme Court and its legal interpretation/analysis as guidance for their own decisions. The instances of this, however, have been cut in half in the last decade.

The reasons for this are the subject of debate and varied. Some say that the US' shift to the right politically is out of step with the constitutional advances made by other countries, particularly in the areas of privacy, human rights and advanced in gay rights. Others argue that the simple fact that we helped set up these constitutional courts in other countries have allowed them to develop their own model of constitutional jurisprudence and that these courts no longer need or want to rely on us. Yet others argue that the waning influence of American power and the unpopularity of the current presidential administration makes other courts hesitant to rely on American decisional law.

Whatever the cause, there is a lot of hard evidence to support the proposition that the highest courts in Canada and South Africa are making great headway in the international arena. Other countries are looking to the decisions from these tribunals as beacons in the areas of human rights, immigration and foreign trade. The European Court of Justice is also gaining significant ground in the areas it oversees.

So, my question to you, then, is this - Is this a good thing or a bad thing? Should American jurisprudence be the guidepost for other nations' constitutional matters or are they best served by interpreting their own laws according to their own legal standards and traditions? For what it's worth, the US does not typically cite to or rely on the decisions of other countries proceeding instead from the proposition that what goes on in other nations has nothing to do with what the Founding Fathers intended our Constitution to mean.

Look It Over

For whatever reason, I was unable to log into my blog site yesterday to send out my update. My apologies. I did not forget about you all.

For today, I have a reminder for all of you. Please look at your agreements and contracts to see if there is any provision in there that permits or the requires the payment of attorneys' fees in the event of litigation arising out of the agreement or contract. I know this sounds basic, but it is the cornerstone of any particular litigation.

Whether or not you have the right to recover fees or, conversely, could be responsible for the payment of someone else's fees if you lose is often the life or death distinction between filing suit and settling. I do not think it is news to any of you that lawsuits and lawyers cost big money. Worse, that big money becomes huge money if you end up on the hook for the other guy's fees.

So, before you start assessing your rights and dreaming of all the things you're going to do to the other guy for screwing up your contract, you want and need to see just how much it could cost you to realize your vision.

Please, please, please look it over.

You Have Immunity This Round

Any of you who watch reality television game shows are probably familiar with the title of this entry. Survivor, that design show on Bravo and no less than 340 shows on MTV all have immunity from disqualification for each round of the show.

For all of you frustrated reality tv wannabes, rejoice! You share something in common with the attention-mongers of your favorite programming - immunity. Yours, however, is a little different. You have immunity respecting statements you make about others or events in the course of a lawsuit as part of the proceedings.

Frequently, clients read or hear things in the course of a lawsuit that they think are outrageous and maliciously wrong. I (as do nearly all lawyers) get phone calls from incensed clients who want to know whether we can bring a claim for libel, slander, defamation, tortious interference, fraud and what have you for the horrific falsehoods made by the opponent.

You can imagine that the rage does not much subside when I tell them "no." As a matter of law, statements made as part of a legal proceeding have a qualified immunity from being actionable. Thus, statements that might open one up to some kind of slander, libel or invasion of privacy in the real world are not necessarily improper if made in the course of legal proceedings. Even if you win the lawsuit against the bad-mouther, you can't go after him or her after the case for the statement.

But, just like reality tv, there are limits and qualifications. You may have greater freedom to render opinions and personal thoughts in the course of a lawsuit without fear of legal consequence, but you cannot say things that subject you to perjury. You cannot lie. If you do, you don't have to worry about the tribe or Heidi Klum telling you you're out. You get to worry about the judge sending you to jail, where you might get to be on MSNBC's show about prison life, Lockup.

Guilt

Ok, so yesterday I was waffling on whether I should forego the usual legal discussion and let you know about organizations that are out there to help those whose lives and property were impacted by Hurricanes Gustav and Ike. Guess where I landed.....

MONETARY DONATIONS: JEWISH SOLIDARITY, a 501.C.3 not for profit organization with a license to secure donations for Cuba relief. You can send your donation check to: JEWISH SOLIDARITY, attention: Maricusa, 100 Beacon Boulevard, Miami, FL 33135. Check should be marked "humanitarian relief".
CATHOLIC CHARITIES/Caritas Cubanas, a not for profit agency of the Catholic Church who also holds a license to provide aid to Cuba. Checks should be made out to Catholic Relief Services and sent to Catholic Relief Services, P.O. Box 17090, Baltimore, MD 21203-7090. Checks should be marked: "For Cuba Gustav Relief".
Or you can click here to make a donation online, please specify "CRS Severe Weather Fund Cuba" in the space under "Do you have any additional requests for your contribution?" on the donation page.
ITEM DONATIONS: For those of you in the Miami area who would prefer to take food items in lieu of a check donation, you can do so by taking these to The Daughters of Charity at 500 NW 63 Avenue in Miami. They also have a license to send aid to Cuba and are sending two containers in the next few days. The organization has particularly identified the following high-need items: powdered milk, evaporated milk, canned little hot dogs, lentils in packages, black and red beans in packages.

Tomorrow, the lessons resume.

This Is Just Between Us

Everybody tired of worrying about Ike? Me, too. Now, we get to worry about whether all of our neighbors to the south will have clean water, food, medical care and shelter and otherwise if there will any kind of humanitarian aid to help them out. Anyway...I am not here to plead the causes of Caribbean nations in need. There are plenty of websites and blogs for that. We're apolitical here. That said, now I feel a need to check out some sources of help and maybe I'll pass them on to you.

For now, let's talk about one of the few bastions of confidentiality - the settlement communication. Just so you know, communications made by you and your attorney in an effort to avoid or settle a lawsuit or legal dispute are confidential. The communications themselves and their contents cannot be used against you as evidence.

Why? So that there is free exchange of information and ideas that allows the party to properly decide whether to settle and to identify the terms of such settlement. This is important because you want to be able to discuss the issues of a case, evaluate the evidence and even identify the shortcomings in your own case. A good and honest evaluation of a matter may be just the thing the parties need to get a case over and done with - and anything you can do to save on attorneys' fees is a good thing.

For instance, it can be useful to fess up to the other side that you know witness X will hurt your claim, but that proving it at trial will be costly and time consuming. You could never tell the other side that you think you're own witness is lousy if there was a chance that such communication could be used against you at trial. Imagine the opening statement that includes "Ladies and gentlemen of the jury, even the defendant's lawyer thinks witness X is not credible. He told me so himself." Case closed, malpractice insurance carrier notified.

So, tomorrow I'm either going to discuss qualified immunity as it relates to statements made as part of a legal proceeding or provide you with information about humanitarian aid. See what you've done?

I Don't Like Ike

It's been nearly a decade since there were four named storms in the Atlantic Ocean/Gulf of Mexico. Obviously, Gustav decided not to stop in, Hanna has a track commitment problem and Josephine seems content to wander in open water. It's Ike, the one with the explosive personality, we need to watch.

You are correct if you are thinking to yourself, "Hey, this is no weather blog." So, why am I pointing this out to you? Because you have homeowners insurance and every time a storm approaches I'll bet you calculate how much money you spent on premiums and even secretly revel in the fact that you should have protection in the event we get whacked by a category 4 hurricane that seems to know what a straight line looks like a whole lot better than his sister, Hanna.

Ok, so here's the legal part. As the insured person under the policy, you have some obligations you have to fulfill. First, READ the policy. Having litigated insurance matters now for nearly 10 years, I can tell you that people think the simple fact they own a policy means they have coverage for whatever may happen. WRONG. Insurance policies are full of limitations and exclusions that you need to be aware of. Also, pay attention to your deductible amount. I was horrified to see how high mine was. That's right, homeowners has a deductible and it's an amount of money way higher than the $500 deductible you probably have on your car insurance.

Second, keep your policy and insurance company contact information with you during a hurricane. Almost all policies require that your promptly notify the insurance company of any claim. What constitutes "promptly" is defined differently by different insurance policies, so check to make sure what your policy says. Your friends and neighbors may tell you one thing, but they may be insured by someone else and have different obligations.

Third, do whatever you can to minimize potential damage. I know this sounds obvious and basic, but you have a duty to mitigate your possible damages. You cannot, for instance, refuse to put up your hurricane shutters because you want the insurance company to pay to remodel your house. Put up the shutters if you have them. Bring in the plants and anything else that could be a projectile. Your chances of putting in a smooth-sailing claim will increase greatly.

Hopefully, all of this information is wasted space and the 2008 hurricane season will bypass us.