Ten Things to Consider When Negotiating a Contract

1. Who are the contracting parties. If you are the payor (the person that is paying under the contract) it is best to avoid a personal guaranty. If you are the payee (the person receiving payment under the contract) it is best to get a personal guaranty.
2. What is the consideration. Typically, for contracts to be enforceable, there has to be consideration which, in laymen’s terms means, that one party needs to give something and the other party needs to get something.
3. The contract should be signed in front of a notary public. Signing in front of a notary reduces the possibility that one signatory may later claim that the signature on the contract does not belong to them.
4. Carefully proofread the contract. Typographical errors can obscure the meaning of the contract which may cause a Court to later determine that the contract is “ambiguous.”
5. Avoid constructions against the drafter. If you are the party drafting the contract, and the contract is being negotiated, you should include a clause that says that, in the event of an ambiguity, which is discovered later, the contract will not be construed against you. In other words, the ambiguity will not be held to be your fault; the fault will be shared equally.
6. Maintain your home turf by including a jurisdiction and venue provision. It is always better to litigate in your home state if litigation becomes necessary. For further evidence, ask the Golden State Warriors.
7. Be careful to use the correct draft. Circulating multiple redline drafts of a contract can be very efficient. It can also be fraught with peril if you use the wrong draft since a Court is likely to enforce the draft with the signatures on it regardless of whether it is the correct draft or not.
8. Make sure the person signing on the other side has the authority. Check to see if you need a board resolution if the contracting party is a corporation or other business entity. Not all corporate leaders are vested with the authority to sign large contracts. Read the company by-laws of the other contracting party if necessary.
9. Make sure the contract clearly spells out deadlines and required time periods and avoid vague language like “as soon as possible” or “promptly.” Instead, try this: “no later than thirty days from the execution of this agreement.” Its hard to argue with that language.
10. Verify and do not rely on oral statements. People make all sorts of claims when negotiating a contract. It is best to verify the truth of those statements through documents or financial statements. Don’t take anyone’s word for it.

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ROGER SLADE’S TEN THINGS TO DO WHEN YOU GET SUED

  1. When the process server comes to the door, with the complaint, make sure your name is on it before you accept it.
  2. Do not speak to the process server other than to say “thank you” (once you determine that your name, or your company name, is on the complaint)
  3. Accept service once you determine that it is you; avoiding service or running away from the process server also makes you look bad (think O.J. Simpson in the White Bronco).
  4. Call your lawyer and schedule an immediate appointment (generally, you only have to 20 days, absent an extension, to respond to a Complaint.)
  5. Retain the lawyer by signing his or her retainer agreement.
  6. Write down the date your response is due to the complaint.
  7. Download all of your relevant email and other documents and send it to your lawyer; do not destroy anything.
  8. Make a list of everyone that may corroborate your story and provide the list (names, addresses and telephone numbers) to your lawyer along with a description of everything these individuals may know.
  9. Explain to your employees (if applicable) what the lawsuit means and instruct them not to speak to anyone about it other than you and your lawyer.
  10. Shut up – don ‘t call your adversary, your friends, or your Mom to tell them about the case. It may come back to haunt you later.

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TEN REASONS TO SEND THAT CONTRACT ON YOUR DESK TO A LAWYER

  1. THE PERSON WHO DRAFTED THE CONTRACT IS COUNTING ON THE FACT THAT YOU WILL NOT SEND THE CONTRACT TO A LAWYER
  2.  THE CONTRACT IS LIKELY TO HAVE LANGUAGE THAT A LAY PERSON MAY NOT UNDERSTAND.
  3.  THE CONTRACT IS LIKELY TO HAVE BEEN DRAFTED BASED UPON PRIOR LITIGATED CASES WHICH A LAY PERSON COULD NOT POSSIBLY KNOW ABOUT IT.
  4.  THERE ARE PROBABLY AMBIGUITIES IN THE CONTRACT WHICH COULD HURT YOU LATER.
  5.  BECAUSE YOU ARE PROBABLY NOT THINKING ABOUT WHERE YOU COULD BE SUED IN THE EVENT THAT THINGS GO WRONG.
  6.  YOU MAY NOT HAVE CONSIDERED HOW TO END THE CONTRACT
  7.  YOU MAY NOT KNOW WHO IS SUPPOSED TO SIGN THE CONTRACT FROM THE OTHER SIDE.
  8. YOU NEED ADVICE ABOUT WHETHER HAVING AN ARBITRATION CLAUSE IS A GOOD IDEA.
  9.  YOU SHOULD UNDERSTAND WHAT A PREVAILING PARTY ATTORNEYS’ FEE PROVISION DOES.
  10.  YOU DON’T KNOW WHAT YOU DON’T KNOW.

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How to Communicate With Your Lawyer

Lawyers are supposed to be masters of communication. That is what they, supposedly, learned in law school. They learn how to write, crisp, clear sentences and are supposed to shape those sentences into cogent, well orchestrated paragraphs which are later supposed to be formed into persuasive arguments.

Lawyers learn oration in law school, so they can present their arguments to a Court and sometimes even to a panel of judges. These are the people who become politicians and stand up on the floor of the political convention waxing on about the future of America. So, how come it is that these same people seem to have so much trouble communicating with you, the client, about your case or matter ? The answer is that, despite all of that wonderful training, most often, no one has taught your lawyer how to communicate with you, the client.

In that event, therefore, it is likely that you that will have to communicate with them. There is often no sense in sitting around waiting for your lawyer to call you with an update or send you an unsolicited status report letter. Chances are, it is not coming. Accordingly, in order for the client to ensure that they communicate with their lawyers, it is often incumbent upon the client to initiate the dialogue.

And, what is the best way to do that you ask ? Here are some suggestions.

  1. Be Persistent.

Often lawyers are separated from their clients by receptionists, paralegals, associates, vacation schedules, court appearances, meetings and the often omnipresent automatic email response which tells you that your lawyer is “out of town” and will be checking email only “intermittently.”

Let’s start with the basics. When you receive the boilerplate email message response from your lawyer, telling you that your lawyer is unavailable, don’t believe it. Your lawyer is seldom, if ever, totally unavailable. Rare is the lawyer who travels to the Antarctic, in the middle of Winter, where there is no cell phone reception and no access to email. Lawyers are not permitted such travel. Law firms generally frown on lawyers who disappear entirely and become unavailable to clients. In reality, your lawyer is likely lying on a beach somewhere, looking at his email and his cell phone, and ignoring you while sipping his or her pina colada.

Your lawyer is likely reading your email even if he or she is not responding. Therefore, when you email your lawyer, demand a timely answer. The only excuse that a lawyer should have for failing to timely respond to emails is – death. And, in that unfortunate event, you should expect a prompt email from his Secretary advising you of his demise and informing you as to who at the firm has inherited your matter.

Get your lawyer’s cell phone number and use it. The best time to do this is at the beginning of the representation before you establish yourself as a pest and he does not want to give it to you. Lawyers should return telephone calls. While lawyers do go to Court, and attend trials, the average Court appearance lasts less than one hour. Demand a return call, therefore, the same day. Rare is the trial that lasts beyond 5:30 p.m. And why is that ? That is because the Judge knows that the lawyer has to return phone calls – your phone call.

Tell the lawyer’s receptionist when you need to hear back from him or her. Use words, if appropriate, like “urgent”, “important” or “time sensitive.” Don’t use words like “emergency” unless you really mean it. Some Courts define the term “emergency” as the imminent threat of death or bodily injury. Your lawyer will like you better if you use that definition and do not refer to emergencies that are really not emergencies.

  1. What to Say to Your Lawyer

Ask your lawyer to speak English to you. Is this really so much to ask after how much you have paid him or her ? Why should you have to have your law dictionary open just to understand what the guy is talking about. If you don’t understand what they are talking about, say so. “Dude, thanks for that 20 minute ‘explanation’ but that actually makes no sense to me.” Some lawyers, the good ones, may actually appreciate that. The bad lawyers will explain it again saying essentially the same incomprehensible thing they said the first time.

Ask about timing. “How long will this take ?” is one of my favorites. The reason that it is one of my favorites is because it almost always takes longer than anticipated. The reason for this is two fold – first, your lawyer likely has other things to do and, second, so does the Judge. You should consider whether you can live with the likely time schedule and how you may feel when the estimated completion date actually passes and the resolution of your matter ends up taking longer than planned. Can you handle the wait ? If the answer is no, you may want to consider alternative forms of Justice such as those recommended by Don Corleone in The Godfather[1]

Ask about the Cost. This is one of your lawyer’s least favorite questions. Why ? Because he or she likely has no real way to answer it. That, of course, does not prevent the average lawyer from trying. The problem with the question of “how much will this cost” is that, in order to answer this question properly you will have to be able to accurately predict what the other side (your adversary) will do. Nonetheless, you, the client, are entitled to an answer to this question, even it if is only an estimate subject to caveats.

Ask for your Bill. Smart clients ask to be billed at least every thirty days and, sometimes, even more often. The bill should tell you what is going on in your case. If it does not, don’t pay it. You should know and understand what you are paying for and why.

Ask for a case plan. Many lawyers really have no idea of how to resolve a case timely and efficiently. No, they did not learn that in law school. What we learned in law school was how to read cases and, then when were done reading cases, we read even more cases, and more cases, until it came time for the Bar Exam and we were then asked to regurgitate the “holdings” of those cases back at some invisible grader, in a far away city, that we never met before and will, in fact, never meet. That is how we become lawyers. Not one word about strategy. Not one class in case planning or billing or how to communicate with you.

The way lawyers learn these important tasks is on the job, when you, the client, ream us. And this, my dear client, is how we learn to be lawyers, not by reading the “holdings’ of piles of cases in law school.

One last thought. Lawyers are people too (I know that may seem hard to believe). We actually work better and harder for people that we like. So, be nice. It may benefit you in the long run.

 

 

 

 

[1] This is called satire and is not intended to be taken seriously so please do not tell my friends and relatives that I recommended that you take a “hit” out on your adversary.

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ARE YOUR CLIENT’S FLORIDA’S WAGES EXEMPT FROM INTERSTATE GARNISHMENT?

The Florida Litigator

Representing a debtor in a Florida collection action, in which your client is the head of his or her household, is usually fairly straightforward.  Your client resides in a debtor’s  haven.  In Florida, it is difficult for creditors to reach your client’s assets if she is the head of household.  In Florida, there is an exemption from garnishment statute that limits the ability of creditors to garnish the wages of someone who is determined to be a “head of household.”  F.S. §222.11 (2012).  In order to avoid the effect of this statute, a creditor must obtain from the debtor an explicit waiver.

Florida also frowns upon certain common collection devices used in other states known as “Confessions of Judgment.”   If you live in New York, for example, a creditor can have your client sign a Confession of Judgment and, in the event of a default on a loan, can march…

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PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

Source: PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

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PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

  • “All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.”

Sun Tzu, The Art of War

Many business people that come to our office for a litigation consultation utter a similar refrain: “how long will a litigation take, how much will it cost and when will this case be settled ?” These are all good questions for which there are, most often, no easy answers.

Typically, prior to the initial consultation, we have not been involved in the underlying dispute and, therefore, cannot reliably predict what stimuli will bring the other side to the settlement table. However, there are several universal truths, that are, or should be, self-evident.

  1. Very Few Wars End on the First Day

In a perfect world, we would file and serve a complaint, and the other side, either through counsel or on their own, will plead for a settlement conference or make an offer to resolve a pending lawsuit. The problem is that, the receipt of a summons and complaint most often does not inspire the receiving party to become more conciliatory. Usually, the initial reaction is for the other side to “go to the mattresses,” a phrase made famous in the G-dfather, which means to get ready for a long and contentious fight.

So, if the client’s objective is to settle quickly, then it would be reasonable to conclude that, if the other side begins to gear up for a long fight, that is a bad thing.

Right ?

Wrong.

  1. Sometimes Wars Need to Be Fought

How many business people come into our office, after having tried unsuccessfully, to settle a dispute, despite multiple efforts, which occur over an extended period of time. The distressed business person walks into the conference room, lays the settlement correspondence out on the conference room table, and justifies what is sometimes an extensive delay in bringing suit by stating:

“Look at how many letter and emails I sent. Look at how many times I spoke to my adversary on the phone. We had lunch. We had dinner. I offered them everything. I got nothing.”

This somewhat sad scenario is a regular occurrence in business. A client who offers everything and who gets nothing. To the battle tested litigator, the problem should be obvious; to the average business person and the neophyte, it is likely not. Here are some suggestions which will help the client, a prospective combatant, move from the “I offered everything approach and got nothing” to a place where maybe he or she will get a lot, maybe everything.

  1. Learn to Love the War

If you can accept the proposition that there is likely to be a war, you might as well win it. In order to do this, you must reconcile yourself to the fact that you might be involved in a prolonged conflict most often against your wishes. This happens when you have an adversary who simply will not cooperate. As we all know, there are people like this whom we encounter in business and in life. The trick is to learn how to convince them to move their position. The only way to effectively do this is to convince them that they will lose more by fighting than by settling.

When you learn to love the war, and see it as a means to an end, there is a greater likelihood that you will be able to convince your adversary that you will defeat him.   Therefore, rather than dreading the many hearings which are part of litigation, or the depositions, a business person would be wise to look forward to, and indeed, embrace those occasions.

Each circumstance, in which you and your lawyer are in the presence of your adversary, provides an opportunity for you to convince your adversary that he will lose more by fighting. This is often accomplished by persuasive and competent advocacy. This objective is also assisted by the demeanor of the client. It is the client who must be able to convince the adversary that he or she has the stamina, the will power and the funds to take the case to trial. If both the client and the lawyer or able to convince the adversary of this fact, whether true or not, it often causes the adversary to look at their checking account balance, assess the likelihood of prevailing, and take stock of their stomach for conflict.

Does your adversary really plan to take the case to trial? It is only by convincing your adversary that you plan to do this that you will ever know.

  1. Judges and Mediators Don’t Love War

Judges and mediators have a sentimental love for settlement. This is laudable. This sentiment exists because judges and mediators know that the court system can be unfair and, in some instances, a settlement which the parties negotiate on their own is often better than a trial decided by a Judge or a Jury.

Litigators most often welcome a Judge who encourages the parties to talk to one another, after a court hearing, or a mediator who tries valiantly to bridge the gap between the parties at mediation. The problem is that judges, and sometimes mediators, understandably have no idea of the prior efforts which have been made to settle the case and the timing of their request.

  1. Every Battle Presents an Opportunity

In any lawsuit, the concept of settlement never completely disappears. It can often be seen lurking, silently, beneath the surface. Depositions and court hearings often provide opportunities for the parties to reassess their settlement position.

Court hearings sometimes provide insight into what the Judge may think of the case. Reading the Judge’s mind is often a business that is fraught with peril; nonetheless, a concrete decision by the Court can often provide an excellent forecast for the long term outcome of the dispute.

Depositions are also wonderful tools for inspiring settlement. They can be far more effective than the client’s letter writing campaign or invitations to dinner. A deposition often reveals how a person’s testimony will play at trial. Will the adversary be a good witness or a bad witness ? Is the witness likely telling the truth ? Does either side’s story cohere ? Will it stand up to scrutiny and cross-examination ?

Unless you are willing to wage war, you and your client are likely to never know the answers to these and other questions about the long term prospects for success.

 

 

  1. In Litigation, as in War, Timing is Everything.

 

The person who wishes to win the war on the first day, and believes that he or she can do so, will surely lose. The reason that “scorched earth” litigators are often successful is because they are able to convince the opposing parties that, before a settlement can be achieved, he or she will burn down the village.

 

Will they actually burn down the village?

 

Who knows?

 

However, the old adage that perception is reality is useful in this context since it is only when your adversary believes that you will pursue the case to conclusion that you will be able to favorably resolve it.

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