So I wanted to replace my 30 year old deck.  And expand/redesign it to be more ergonomic.  I looked around and noticed that Home Depot here in Northern Virginia was advertising that it had people to do deck design/installation.  Great.  I’ll talk to them.  So I did.  Several times.  Finally we got a design I liked at a price I liked.  But I was never shown the actual contract even though I kept asking for it.  Finally, we had a deal and the sales guy started filling out the contract.  “No need to read it.  It just sets out the terms.”  Right.  I’ve done so many different contractor litigation cases (for homeowners and for contractors and subcontractors) that these words were a complete red flag. So I read the contract.  Wasn’t hard to read the front page:  50% up front payment on signing the contract and the other 50% due before installation.  WHAT?  What about a punch list hold back?  What about performance guarantees?  So I read the 2^nd page of the contract.  NO commitments from Home Depot.  Turns out the Home Depot guys are independent contractors.  Home Depot won’t stand behind their work. All Home Depot will do is “assist” me if there is a dispute.  No provision for payment only upon completion.  No provision about mechanics liens (if you don’t know what they are, ask BEFORE you start a home improvement project).  So I asked questions. The Home Depot sales guy couldn’t answer them.  So I asked to talk to a supervisor   He said is that Home Depot would stand by me and not leave the project until I was fully satisified. But the contract says verbal promises don’t count.  The HD supervisor told me that the contractors “would not be allowed” to file mechanics liens.  HUH?  How’s that going to happen?  Again, verbal promises are not enforceable under the contract.  So, what exactly are my rights under the HD contract?  I don’t know.

O, I asked to talk to one of the HD lawyers to discuss these issues and how to resolve them.  HD supervisor promised to get someone to call me.  That was 6/27.  It’s 6/30 now and counting.  Don’t hold your breath.  I’m not. And HD is out.  I won’t do business with them  now that I understand what they think of as customer service.

(Photo credit: Wikipedia)

Sometimes, good cases to attorneys are like a fighter ahead on points in the last round (or two).  After a while you just kick, jab, dodge and run.  You are trying to hold your lead.  But THAT’S when you don’t see the knockout coming and you lose.  Just like a fighter, if you are trying to hold your lead in the case, that’s usually when the case unravels.

Do you ever wonder why lawyers always look at the calendar?  It’s because you, the client, can lose your rights if you don’t move quickly enough.  That is called the “statute of limitations” and it kicks in to prevent old claims from going active.  Each state and each type of action is different.  Fraud claims expire after 1 period, contract claims a different period, defamation claims a third period.  And each state has it’s own deadlines.  So lawyers, especially when writing to a potential (or ex-)client will always tell you when your next deadline is.  Sometimes, though, we aren’t sure when the deadline is because we don’t know enough. That’s when we send a letter saying, in effect, I won’t represent you any longer but “you should immediately consult another attorney because you (may lose all your rights)(must file an appeal)(must file a lawsuit) by _______ or you will lose your rights.”  If you get a letter like this, do NOT waste any time.  You don’t have any time to waste. Find another attorney and consult with them about your next step immediately.

What if a person is illiterate in English?  If they only speak Spanish or Yiddish or Russian?  They can read and write in their own language but not in English.  Is the contract still valid?  Generally, assuming the person is mentally competent, they have a responsibility to learn what they are signing.  That means that it is their responsibility to get someone to translate the contract.  But in a retail setting the illiterate may have an argument that the contract is unconscionable.  A great deal will depend on the facts however and exactly what the contract was for.    It will also depend on who did the translating.  Advice for the businessperson:  have the contract translated if you can.  If not, have them bring a translator because you, the business owner, don’t want to be in the position of “Well, he told me that it was OK before I signed the contract.”

Please don’t send me emails saying “be more aggressive,” “fight harder,” “whose lawyer are you?,” or “whose side are you on?”.

I understand that litigation is not something anyone but another trial lawyer enjoys.  Many lawyers who don’t do trials don’t fully appreciate the process.  So non-lawyers can certainly get confused and irritated by the delays and compromises.  So it seems to me that emails like the ones I listed above are not really about me and who I represent, they are about the fact that you, the client, are feeling uninformed, confused and frustrated.  So call me and make an appointment.

When you come to the appointment bring a list of things to talk about.  Put on the list

• what you are feeling and why,

• what you are worried about and why, and

• what I’m doing that has you concerned and why.

Please be as specific as you can be.  I’ll listen.  I promise.  Then we can discuss each and every one of your concerns.  I’ll explain. I tell you why I’m doing things.  I’ll try to show you why what I’m doing is in your best interest.  Then we’ll discuss some more.

Maybe I misunderstood your goals.  Maybe your goals have changed.  Maybe I assumed something I shouldn’t have.  These things happen and these meetings are necessary to stay on course as a team. Regardless, if you have issues I need to know about them.  Otherwise how can I properly represent you?  The answer is obvious: I cannot.

So let’s meet and talk.  Eventually we will reach agreement on what to do next.

Sometimes things just aren’t worth fighting about.  Sometimes they are.  Sometimes lawyers fighting for you works, sometimes it doesn’t.  Only you–the Client–can decide. But before jumping in to “Sue The B@$t@rds” take a deep breath and think about things.

Let me illustrate with a simple story of how something can get blown out of proportion: The story as I hear it:

I.            You are moving so you ask a relative to take your pet;

II.          Then, once your move is over, you want your beloved pet back.

III.        They won’t give it back.

IV.         You want your rights!

What are your options: Well, if you sue you might have claims for breach of contract.  Client: Will you hold fluffy for a week until my move is over (benefit conferred) and then give her back (consideration)?  Relative:  OK.  (Acceptance).  Then the pet goes to relative.  (Part performance).  There is a contract.  You might also have a claim for conversion (theft) o9r fraud (if the pet was given and there was never any intent to return it).  There may be individual state laws that could apply.

All of these claims are expensive to prove.  Is the pet worth it?  A case like this can cost thousands of dollars and hours and hours of time.  Only you-the client- can answer that question. Worse, since it’s a relative who now has the pet, what about family relationships?  How will they be damaged?  Is all this worth it?  I don’t want to discourage anyone from pursuing their rights but sometimes “I’ll see you in court!” is not the best way to get the best solution.

If you aren’t sure, call me and we’ll talk about it.

And do negotiate with full knowledge of your rights.  Case in point (names and descriptions are modified to protect the guilty):

A friend of mine named “Nancy” who is a lawyer, was contacted by “Joe” because Joe’s blind father was forced to walk without his guide dog and cane through an airport thanks to some “funny” security people.  He had huge trouble, banging into things and people until some nice person helped him.  Nancy was going to advise Joe to insist on retraining and counseling the security people and maybe get a free trip or two from the airline in charge. But then Nancy had a bright idea:  she contacted other lawyers who work with airlines all the time.  That’s when she realized that Joe’s civil right to access to a public facility.  There are also Americans with Disability Act issues and Air Carrier Access Act issues.  So what is the point I am making?  Simple:  things are not necessarily as simple as they may seem and you may be entitled to much more than you thought.  When your rights are violated never aim low and always check  with the experts.

The answer to this is yes.  Unconditionally.  It’s one of the few times it’s absolutely unconditional.  You can always fire your attorney. But you may need to pay them to get all or part of your file.  That’s called a “lien” on the client file.  It’s entirely too complicated to explain in a blog post, but each state (and the ABA) has a different rule about exactly what the client can get from the attorney if they fire the attorney and what the attorney can hold on to until they are paid .  It can also depend on what has already been provided to the client.  In every case, however, the lawyer is entitled to keep a copy of the file for her records.

What do we do here at Kaufman Law Group?  The client gets a copy of every letter and document that we receive or send.  That way our clients are fully informed of the progress of the case and what we are doing for them.  It also helps us avoid errors and confusion.

I don’t do divorce law but I have a lot of friends who do.  And more friends who are caught up in divorce(s).  So, here are some divorce survival tips:

Pre-marriage:

GET A PRE-NUP!

Post-marriage:

If you are getting a divorce, even if you are an attorney,

1.    Get a lawyer

2.    Get a counselor you trust

3.    Get an accountant

4.    Make a list of all financial accounts and passwords

5.    Get copies of all financial statements

6.    Know you will survive this

7.    Know it will feel sometimes that you will not survive this (and you will be wrong)

8.    Never stop loving your children

9.    Talk to your children calmly about what is going on

10.   Do not bad mouth the other side—it will only come back at you

11.   Do not lose touch with your children

12.   Your children are not “leverage” over your spouse

13.   Child support is not “leverage” over your spouse

14.   Visitation is not “leverage” over your spouse

15.   Everyone feels guilty.  Nobody really is.

16.   Time wounds all heels.

17.   Friends are important

18.   Eat well

19.   Exercise controls stress

20.   Stay off the internet—you are not as anonymous as you think you are

21.   Change passwords to all accounts (email, bank, bar association, etc.)

22.   Change your passwords to anything that is on your home computer or that you have accessed from home

23.   Update your will/check beneficiaries on insurance policies, pension plans, etc.  Check with your lawyer about this as they may have implications for your case

24.   If you are locked out, who pays for what?

25.   Don’t lose your temper.

26.   Don’t take your children and leave the state—it opens you up to kidnapping charges

27.   Until there is a court order, BOTH parents have equal rights to the children.

What, if any, liability do you have for writing a blog?  What liability do you have for the comments on your blog?  What about the blog host?  Are they liable?

The last question may be the easiest.  Congress made a specific public policy choice for online publications.  In 47 USC 230(c)(1): Congress said that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  Nor can state or local law be used against an internet provider.  47 USC 230(e)(3).

(3)  State law

Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

What about the blogger?  Some are liable, some aren’t.  It depends on how much like a newsperson they are.  Then it will depend on what local and state law on defamation says.

What about the comments?  Who is liable for them?  If the people making the comments are unaffiliated with the blogger and the Internet provider, then there is no liability to anyone except the idiots who posted their own comments.