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| The California courts are broke. The old saying “justice delayed is justice denied”is true and the cuts will affect divorce,child custody,child support,and personal injury,contract disputes,and employment law claims the most. Los Angeles and San Francisco and the other large counties are the ones that are hardest hit. The Judicial Council,the court’s governing body,which consists primarily of judges and court officials appointed by the chief justice of the California Supreme Court,approved cuts of $350 million from a statewide court budget of $1.5 billion. The cuts stem from decisions by the state Legislature and Gov. Jerry Brown to raid court construction funds and chop the court’s operational funds to close the state budget deficit. The courts have seen more than a 30% reduction in state general funds over the last three years. San Francisco County Presiding Judge Katherine Feinstein said her court has sent layoff notices to 41% of staff and plans to close 25 of 63 courtrooms. Until this year San Francisco had a adopted a head in the sand approach to the budget shortfall. It utilized furlough days and made no hard choices. In contrast the Los Angeles County court under former Presiding Judge Tim McCoy has for the past couple of years refrained from filling positions vacated by employees who retired or left of their own volition. Judge McCoy created dark days where certain civil court were closed one day a week. Almost all the Los Angeles County judges involved volunteered to work without pay or staff on those days. Last year,329 employees were laid off and more positions were left unfilled. The present Presiding Judge Lee Smalley Edmon told the LA Times on July 20th that the court was striving to reduce costs methodically,but “the sorts of dramatic cutbacks that other California courts are implementing may be felt here in Los Angeles as well.” Why Should You Care? Divorces,traffic tickets,civil lawsuits all face monstrous delays in the coming years. Imagine being in the middle of a marital dissolution proceeding that has been going on for six months and being told that even though you’re ready for trial the earliest available date is 10 months away? Consider having to wait up to five years for your day in court on a civil case such as a lawsuit against the contractor that made a hash of your bathroom remodel or a personal injury suit? Access to justice is critical to our society. Obviously due to the state’s economic situation all government services will be trimmed. But cutting $350 million from the budget of the state courts will prove to be a disaster for the people of California. The court’s financial woes are a boon for private litigation (commonly known as arbitration) where litigants hire an arbitrator and pay him or her to decide their dispute. I am not a fan and think arbitration should be avoided in most instances. One reason is that arbitration is incredibly expensive. It costs a relatively modest $395 to file a complaint in any California state court. Filing an arbitration is often a function of the value of the case and can cost thousands of dollars. The arbitrator’s time is also expensive–$570 per hour is the low end and $850 is common (and it can be more…a lot more). The expense of arbitration can favor the litigant with the deepest pocket. Another problem with arbitration is that for the most part the arbitrator’s decision is the final word. There can be no appeal to a higher court. This is true even if a litigant can show the arbitrator’s decision was clearly wrong according to the law! What Can You Do? I’d be lying if I said you could do much. But you should be cognizant of the dire financial situation of the courts and it should play an important factor in your decision on whether to file a lawsuit over a civil dispute. Despite my misgivings about arbitration I engage in it regularly and their are steps business persons can take to minimize the expense of arbitration and to attempt to include the costs in the arbitration award to the party that wins. In the context of divorce and child custody and support issues the best approach is to attempt to resolve the property division and custody/support issues without fighting and then use attorneys to present the agreement to the courts as a mutually agreed upon stipulated judgment of dissolution. That is not always possible,so it’s important to have a divorce lawyer familiar with the judges were your case is located. The reason is some family law judges move things along faster than others despite the budget woes,and an attorney familiar with the court will know the history of your judge. In what could be the first such case in the United States,a California State Bar panel is set to decide whether to deny an applicant a law license solely on the basis of his undocumented immigration status. Read about the case in the ABA Blog here. What do you think? 10 Key Things Your Contracts Must Contain  1. Put it in writing Many times oral agreements are legal and binding; however, they are usually more expensive and more difficult to enforce in court (in some situations, they aren’t enforceable at all). Most agreements should be in writing. And here is where the trouble starts. I have had clients use contracts from one business agreement in a second, different business situation with disastrous results. A written agreement is less risky than an oral agreement, but only if you have a document that clearly spells out each party’s rights and obligations in case of disagreement. Using form partnership agreements or contracts from online vendors can be as bad as reusing old agreements without carefully reviewing them. In one case I represented a partner in a partnership dispute. The parties had bought a partnership agreement online and the agreement specifically allowed the individual partners to compete with the partnership. While that clause is contrary to common sense, neither party read the agreement and caught it. Therefore it was enforceable to the great shock of one of the partners. 2. Keep your deal straight. Contrary to what many lawyers think, you don’t need a lot of legal “mumbo-jumbo” to make a contract enforceable. Instead, short, clear sentences with a simple, logical headings system which provides a roadmap to the reader to what’s in the paragraph is what is required. And yes, you can write your own contract if you put some effort into it. Just like you could change the oil on a modern car, or work on your bathroom tile. You have to weigh the cost in your time against the expense and the time saving benefit of using a lawyer. An experienced lawyer should be able to quote you a flat fee, upfront without obligation, so it doesn’t hurt to ask. 3. Deal with the person who can contract on behalf of the business. Don’t waste time negotiating a business agreement with a junior person who has to okay everything with someone above him (or her) in the business. If you’re not sure who has the authority to bind a business, ask. 4. Describe the parties with precision. Include the correct legal names of the parties to the contract. Make clear who is responsible for doing what. 5. Include the details in the written agreement. The agreement should state the rights and obligations of each party. Most lawyers include language in a contract that states the written agreement is the complete agreement between the parties. 6. Specify payment obligations. Obviously, most contracts arise from deals in which one party provides goods or services and the other pays for them. Specify when the payments must be made,and the conditions for making payments. If you’re going to pay in installments or only when work is completed to your satisfaction,say so and list dates,times,and requirements. Consider including the method of payment as well–check, a cashier’s check or credit card. 7. Agree on circumstances that terminate the contract. It makes sense to set out the circumstances under which the parties can terminate the contract. For instance,if one party misses too many important deadlines,the other party should have the right to terminate the contract without being on the hook legally for breaching (violating) the agreement. 8. Specify how disputes will be resolved and if the prevailing party will be awarded attorneys fees and costs. Write into your agreement what you and the other party will do if something goes wrong. I am not a fan of arbitration. Particularly in California it is a very expensive proposition with the retired judges who act as arbitrators commanding stupendous fees. Many judges openly admit that they retired from the bench to make more money as arbitrators. You also want to give careful consideration to whether the prevailing party in a legal dispute shall be awarded attorneys fees and the costs of the suit such as filing fees, deposition fees and the like. This can be a good idea if you might have to fight over a modest amount like $100,000.00 (I know,I know…Right now you’re thinking I have an unusual idea of modest!) The reality is that without an attorneys fees clause you could have a victory in name only as arbitrations and lawsuits are expensive. On the flip side if you’re more likely to breach the contract than the other side you may not want an attorneys fees/costs clause. 9. Pick a state law to govern the contract. If you and the other party are located in different states, you should choose only one of your state’s laws to apply to the contract to avoid sticky legal wrangling later, and I cannot think of any reason that you’d agree to litigate under the laws of a state other than California as I write this. In addition, you want to specify where you will mediate,arbitrate, or bring legal actions under the contract. This is an important thing to consider when presented with a contract by another party. For example if you desire to become a franchisee and you end up having a legal dispute you may have to pursue it thousands of miles away under state laws which differ greatly from California laws. 10. Keep it confidential. Often when one business hires another to perform a service, the other business will become privy to sensitive business information. Your agreement should contain mutual promises that each party will keep confidential any business information it learns of while performing the contract. This clause is very different from a non-competition clause. California laws on non-competition clauses are unique and the subject of another post. Read about non-competition and non-compete clauses here. If you need of an effective,accessible business lawyer call us toll free at 800.486.6814 today! We serve clients throughout Southern California including but not limited to Beverly Hills,Santa Monica,Hollywood,The San Fernando Valley,Orange County and Long BeachYou should hire a law firm that wants your business and will prioritize your matter. The bigger the firm,the less important you are to the firm. “Will Client Die After Mail Room Mix Up?” This was the heading of a recent article on the ABA Blog. Sullivan &Cromwell,an international law firm with thousands of lawyers and offices in many cities had taken a death row inmate’s appeal pro bono (without charge). The firm assigned two young associates to the case. The associates left the firm and not long after an Alabama court sent the firm copies of a ruling denying post-conviction relief,but addressed the correspondence to the departed lawyers. The mailroom returned the unopened mail to the court clerk along with a note,“Return to Sender—Left Firm.” The firm didn’t seem to have assigned new lawyers to the case as it failed to appeal the ruling within the 42 days the rules require. Now the Supreme Court will decide whether Sullivan &Cromwell’s error will preclude further appeals of Cory Maples and set his execution in motion. Wild story,huh? What happened here happens all the time. And there is a lesson in the story for you. A law firm is a business. The bigger the firm,the more it is run like a business. The attention your matter receives is related to its importance to the firm. Sullivan &Cromwell didn’t care if it won or lost the appeal. This giant firm assigned two newbie lawyers to handle the death penalty appeal,so the goal wasn’t to win. The goal was to be able to say that the firm does pro bono work on important matters. If they had cared then the case would have been handled by an experienced lawyer at the firm. Hiring the biggest firm you can sounds sensible,but you are unlikely to be its most important client. If you need a lawyer you should interview several. Discuss who will do the work on your case,and who is responsible for your file. You should hire a firm that makes your case a priority.  “The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already,but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already,without a shadow of doubt,what is laid before him.” These lines were written by Leo Tolstoy and I saw them in an email from Harry Plotkin,who is a jury consultant in Monrovia California.
Tolstoy’s words are applicable to all, but what’s important to us is how does his thinking influence our jury selection? How can we attempt to gain advantage during jury selecton? In his email Mr. Plotkin makes following pretty remarkable statement: I have consistently found that a juror’s level of education,intelligence level,and understanding of the case (measured by objective comprehension of the facts) has no significant impact on individual verdicts. I have never once found educational attainment to be a statistically significant factor in predicting verdict. What all jurors have in common is that they consistently impose their own values and ideas about right and wrong or fair and unfair on your case. In order to have the best chance at success you need to try to understand each potential juror. What are their values and whether they have life experience that makes them think (rightly or wrongly) that they understand your case. Why must you understand the jurors? Obviously,you want to remove jurors who are hostile to your client or case theme from the begining. But more importantly,you must understand each juror because you need totailor your message–the theme of your case–to these individuals. And you must find a way to convince the jurors that you,the attorney,are the truth teller. The person they can depend upon to explain the case in a way that fits with the convictions and feelings they bring to the jury. In October of 2010 the author obtained a $3 Million jury award after a thirty day jury trial. Experienced trial counsel can make the difference between success and failure in the courtroom. Call 800 486-6814 for a free consultation with Galen Gentry  The customer lists,business practices,business plans,and much of the information which one uses to run a business are all trade secrets. Keeping that information confidential and out of the eyes of a competitor or the public is legal.To protect trade secrets and other proprietary data companies may require all employees to sign confidentiality agreements,also known as non-disclosure agreements or “NDA’s.”These are agreements that should be signed on the first day of employment by every employee who has access to any proprietary data. A copy should also be included in an employee handbook.
In contrast in California,non-compete agreements are automatically void as a matter of law,except for a small set of specific situations expressly authorized by statute most commonly when equity stakeholders in businesses (that means persons with an “ownership interest”agree to non-competition clauses. (California Business and Professions Code Section 16600). Very few employees have ownership interests and therefore,non-competition agreements are void in California. If your business needs to protect its customer lists,business practices,business plans call for a free consultation. Or,if members of a business concern desire to ensure that none competes against the concern call us and we’ll explain your rights. Los Angeles business lawyers at the Law Offices of Galen Gentry Can Help T. 800486-6814  MISTAKE NO. 1 Failing to ensure the employee knows that she is employed at will.
Businesses employ most people at will which means the employer may terminate the employee at its discretion without cause as long as the employer has no illegal motivation. Employment at will gives the business owner maximum flexibility. Be careful what you say when you make a job offer. The statements you make about the nature of the position or the long term opportunities with the company may be construed as a promise that the job is secure for a certain period,or that you will not fire the employee with out good cause. Don’t expose yourself to claims of wrongful termination based on over promising. To protect yourself you can write an employment letter that states the title of the position,the date the job begins,the starting salary,reiterates the at will status of the employee,and explains and limits how the at will relationship can be altered in the future and ask the employee to sign it. Hint:The employment status should only be alterable via a writing signed by you. Employees,if the employer has promised you the job will last for a certain period or that you will not be terminated except for good cause,make sure that you do not sign any documents which negate such promises. Applications,for example often state that employment is at will. MISTAKE NO. 2 Defining at will employment in your offer letter or employee handbook. Doing so may actually limit its effectiveness. I suggest employers use the term at will to describe the employment status,but don’t further define it. The reason is defining at will employment may actually limit it,or give the employee,the labor commission,a judge or jury the chance to second guess you. MISTAKE NO. 3 Engaging in discriminatory hiring practices. It’s illegal and it makes no business sense. Anti-discrimination laws vary depending on the size of the employer and the state in which the business is operating,but for the most part state and federal laws prohibit all but the smallest firms from discriminating based upon race,color,gender,religious beliefs,national origin,disability,or age. Laws against discrimination apply to all stages of the employment process:preparing job descriptions,writing ads,settling salaries,deciding whom to hire,promote and discipline. MISTAKE NO. 4 Asking unlawful questions in the interview. Often inadvertent mistakes can be a big problem for employers. The U.S. Equal Employment Opportunity Commission sets out examples of questions employers may not ask on its website. Here is a partial list of general inquiries a potential employer cannot ask an applicant:birthplace,age (other than asking if the applicant is over 18),race,height,weight,gender,and “are you married?” The Americans with Disabilities Act prohibits pre-employment questions about a disability. You may ask about the ability of the applicant to perform specific job functions. You may not enquire into the nature or severity of a disability,ask about medical treatment,or require an exam. After you make a conditional offer and before an applicant starts work,you are free to gather more details. You can require a medical exam or ask health related questions as long as you require this for all candidates who receive conditional offers in the job category. MISTAKE NO. 5 Breaching the privacy rights of the applicant during pre-offer investigations. Inform the person beforehand and limit the investigation to pertinent information. Some individuals give incomplete information when they apply for a position. It is makes good business sense to do some background investigation. If a person lacks the requisite experience or a criminal record,your failure to diligently investigate the employee may be problematic. If you do investigate a potential employee seek only the information you need. Be sure you inform the applicant in writing if you will request information from schools,credit reporting agencies,former employers,etc. Employees,incomplete or inaccurate information can cost you a job offer. Make sure your application or resume contains up to date information. MISTAKE NO. 6 Violating the Fair Credit Reporting Act. Employers must notify the applicant beforehand and obtain written permission. A federal law imposes rules regarding obtaining and using consumer reports,credit reports,and background checks. The rules relate to any report prepared by a consumer reporting agency like TransUnion and Equifax. Employers must notify the applicant in writing before obtaining the report. Employers need the applicant’s written permission to obtain the report. If an employer obtains a report and intends not to hire an applicant due to the information it contains,the employer must first give the person a copy of the report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act which is available from Federal Trade Commission website,or from the entity that prepared the report. After a business has taken the adverse action the business must notify the applicant. Do it in writing. The notification must give the name,address and telephone number of the company that prepared the report. It must state the company that prepared the report did not make the decision to take the adverse action;state the person has the right to dispute the accuracy or completeness of the information furnished,and state the person may obtain an additional free report from the credit agency upon request within 60 days. MISTAKE NO. 7 Failing to fill out the paper work. Form I-9,IRS Form W-4,New Hire Report to the State—every employer must fill out the forms,retain copies and comply with the relevant regulations. If you are a new company,before you hire any employees you must have a Federal Employer Identification Number. To obtain one file form SS-4. An employer must also register with the California EDD after paying over $100 in total wages to one or more employees in a calendar quarter. Registration forms can be ordered on the EDD website or downloaded. Immigration laws prohibit employers from hiring persons who lack authorization to work in the United States. You and the employee must complete the Form I-9 Employment Eligibility Verification. This one page form is retained by the employer,and can be used to show that the employer complied with the law and took the steps required to determine the employee was eligible to work legally in the United States. For Employers Avoiding Hiring Errors Is Ethical and Productive . People are not machines. Every person has preconceptions and biases;however,state and federal laws provide broad protection for employees at all stages of the employment relationship. Employer compliance with the relevant laws pays obvious dividends in greater employee job satisfaction and decreased legal problems. Galen Gentry provides counsel on the everyday legal issues that can help businesses succeed and avoid costly litigation and legal fees in the future. Our firm focuses on transactions and disputes in commercial and employment law. Call 800 486 6814 for a free,no obligation consultation. David Lazarus writes in the LA Times about the threat to class action lawsuits posed by AT&T;read the article here. In a case before the U.S. Supreme Court At&T is arguing that any business that issues a contract to customers should be able to prevent them from joining class-action lawsuits,taking away arguably the most powerful legal tool available to consumers. A class action lawsuit is one in which a large group of people collectively bring a claim to court (or less common in which a class of defendants is being sued). For example suppose a telecommunications company like AT&T overcharges each customer a modest amount it might not be worth it for each of the thousands of customers to sue. But,with a class action the plaintiffs are allowed to band together in seeking compensation from the large business. The ability to ban class actions would potentially also apply to employment agreements such as union contracts. This would incentivize large employers to ignore labor laws on overtime and wage and hour issues. The case is AT&T Mobility vs. Concepcion. The basic question before the court is whether companies can bar class actions in the fine print of their take-it-or-leave-it contracts with customers and employees. The courts in California have ruled that class-action bans are unconscionable and contrary to public policy. Next week the Supreme Court decides whether the Federal Arbitration Act of 1925 preempts state courts from striking down class-action bans. The federal law requires both sides in a dispute to take their grievance to an arbitrator,rather than a court,if both sides have agreed in advance to do so. U.S. District Court for the Southern District of California ruled that a class-action ban violates state law and is not preempted by the federal law. The U.S. 9th Circuit Court of Appeals upheld the lower-court ruling last year. AT&T subsequently petitioned the Supreme Court to hear the case. The Supreme Court is generally pro-business and so consumers are likely to be disappointed by the Supreme Court’s decision. It’s no secret that times are tough. It is hard to find a job. Competition is fierce. Often there are only minor differences between the applicant that is hired and the ones that are not. Criminal convictions are never helpful. Under certain circumstances you can have your convictions expunged. If you successfully expunge your convictions you don’t have to list them on applications to private employers or discuss them at interviews. With respect to government jobs and professional licenses (like registered nurses) you do have to reveal the conviction but you should state on the application “YES-CONVICTION DISMISSED” The governing law in California is Penal Code Section 1203.4 If you want to determine whether you are eligible for expungment,and what must be done read this. Obtaining an order of expungment is kind of like performing certain repairs on a modern automobile. You can do it yourself if you are willing to devote the time;obtain the necessary tools,and education yourself on what needs to be done. And it might not work just right the first time,so you might have to try again. But,it is often worth the trouble if you have the time. On the other hand it may make sense to have have a professional do it. If you would like to discuss having our firm do it,call us at 800 486 6814 for a free,no obligation consultation. If you qualify we can do it for a modest fee,and we’ll do it right. In the case Muniz v. United Parcel Service Inc a jury awarded $27,280 to an United Parcel Service Inc. employee who alleged she was demoted because of her gender. In 2008,Kim Muniz,then a package division manager,claimed she was demoted two job grades on account of being a female. She further contended that she was treated differently than male UPS employees who were in the same or similar position as her. UPS argued that Muniz’s demotion was due to poor performance,including her failure to achieve the goals set in her performance improvement plan. Muniz currently remains employed by UPS as an operations manager at one job grade lower than she held prior to her demotion. Want to know what a person has to prove to win a discrimination lawsuit? Read this article. | |
