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General / Litigation

Quick Checklist for Any Contract

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Did you enter into a contract to later feel duped? You agreed to the terms yet feel you were pressured by the other party? If you signed of your own free will, it will be difficult to claim duress. Most courts will not find coercion simply because you now regret the deal or believe the other party “pushed” you into a bargain that wasn’t in your best interest. Duress typically includes the use of threats and/or harassment.

This post is about contracts that don’t come on standard forms and applies where you have the opportunity to make modifications to the contract. We won’t address consumer contracts that are sometimes found to be contracts of adhesion e.g. leases, deeds, insurance policies, credit agreements etc.

Checklist For Your Contract

  1. Who? What? When? Where? This one is self-explanatory.
  2. Is time of the essence? If so, specify the expected delivery date(s).
  3. Is particular quality or materials required? Provide specifications.
  4. What are the due dates for payments? Specify amounts and due dates.
  5. What’s the break-even point? Turn a profit or bargain if desired.
  6. Plan for unknowns? Delays, hidden costs, third parties, change requests etc.
  7. What are minimum acceptable terms? Time, money, quantity, quality etc.
  8. Is the final agreement in writing? Clear, detailed, and signed by all parties.

If you keep a checklist like the one above, you can enter into simple contracts knowing that you’ve covered your bases. If a deal doesn’t feel right, WALK, or stick to your lowest acceptable terms!

What is it Worth to You?

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What is a glass of water worth? $1? $100? It depends on whether I’m in the desert or in the city. Lawyers are often asked to quote “the price” for a case.

Most lawyers are unable to quote an absolute price since not all pieces are within the lawyer’s control – unknown facts, the client, opposing party, opposing counsel, judges, jury etc. In limited circumstances, lawyers will quote an ultimate price.

Some criteria that lawyers (and service providers) use for pricing:

  1. Value added (benefit gained, negative consequence avoided)
  2. Labor (time and effort devoted)
  3. Materials (document production, expert reports, court transcripts)
  4. Difficulty / Complexity (requires expertise)
  5. Speed of Delivery (time constraint imposed by client or other parties)
  6. Ultimate Result/Outcome (finesse, quality of work done)

Next time you’re quoted a price, weigh what each item above is worth to you. You can then be confident that you’re making the best-informed decision for you.

 

 

 

How to Sabotage Your Case

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My house catches on fire. Firefighters arrive on the scene. I begin arguing with them as they instruct me on how to get out. Am I being reasonable? Am I overcome by panic? Know about fires so I doubt the advice?

Clients hire attorneys to provide guidance. Yet, some will constantly question, challenge, and generally resist the attorney’s advice. At best, creates a difficult relationship. At worst, the attorney is unable to work the case effectively. Continued resistance may be due to:

  1. Bad hiring decision.
  2. Personality clash that seriously impairs communication.
  3. Poorly managed anxiety regarding the legal matter.
  4. General distrust of the particular profession/ trade.

If you know more about the law than your attorney, or simply can’t bring yourself to trust the attorney, you ought to change attorneys. If there is a major personality clash, the client should fire the attorney or vice versa. Otherwise, manage any situational anxiety and unearned distrust, and avoid self-sabotage (paying someone to do a job yet refusing to let the person do the job).

Risky Business – Co-signing a Loan

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Just say no. If you can avoid it, don’t. If you must, then you deserve to be fully versed on all the risks. This is one where there is barely any advantage and a lot of exposure.

PROs

  1. Can potentially help build your credit if payments are made timely.
  2. Credit profile will likely improve if the debt is successfully paid off.

CONs

  1. If primary borrower dies, you are still on the hook for the balance owed.
  2. In case of a default, you are 100% responsible for repayment.
  3. Late payments by primary borrower will hurt your credit.
  4. Non-payment by primary borrower may expose you to lawsuits/ foreclosure.
  5. Your debt-to-income ratio may affect your ability to obtain new credit.
  6. You may be unable to qualify for a second mortgage / home loan.

To sum it up, if you must co-sign, make sure it is for an amount you can afford to pay off, know the terms of the loan (especially duration), and instruct the lender to notify you of late payments.

Bracing Yourself for Litigation

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Many enjoy the shenanigans of TV character Saul Goodman (S’all Good Man). He is infamous for encouraging litigation with wisdom such as Who can you sue?; Sue ‘Em Now!”  So, someone has heeded Saul’s advice, or perhaps litigation is unavoidable. How do you brace yourself for what’s coming?

Truth is, litigation is more stressful than pleasurable. Here are four ways to prepare for the mental, emotional and financial demands of a lawsuit:

  1. Budget Money: Get a rough estimate for attorney fees and court costs, then double it. Lawyers can’t always anticipate the level of resistance, rigidity, or hostility that you and/or the other party will put up. The more resistance, rigidity and hostility, the higher the costs.
  2. Budget Time: Schedule time off well in advance for consultations, court hearings, mediation, depositions, etc. Remember to engage the help of babysitters, co-workers, and bosses ahead of time.
  3. Gather Information: Ask your lawyer for a checklist of needed documents. Start early. You may need to complete questionnaires, help gather documents from banks, vendors, insurer, funds managers etc.
  4. Plan R & R: You can expect higher than normal stress levels and periods of heightened anxiety. Rest, relaxation and hobbies will help. A visit with a therapist is not a bad idea either, especially in family law litigation.

Do a cost-benefit analysis for tasks that you will handle yourself rather than delegate, and figure out the opportunity cost. Lastly, keep in mind that constantly discussing the case with family and friends may cause added anxiety and stress.

Keep Calm & Stay Sane During Litigation

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Let’s examine some Don’ts for keeping cool, calm and collected during a legal battle. These are true whether you have a lawyer or not. If you have a lawyer, the primary objective is to get out of the lawyer’s way! It is to your advantage that your lawyer isn’t hindered in any way and is able to effectively advocate your position.

To keep sane while your case is ongoing, here are some Don’ts:

  1. DON’T withhold hard facts from your lawyer. The truth comes out at the most inconvenient of times. Avoidable surprises are a no-no.
  2. DON’T make your ultimate goal a continuously shifting target. You will come across scattered and tentative to the court and opposing side.
  3. DON’T share details of your case strategy with the opposing side (including via friends or social media). Refer questions to your attorney.
  4. DON’T make promises or offers relating to your case without first consulting your attorney. Your lawyer is there to help check blind spots.
  5. DON’T micromanage your lawyer. If you don’t have faith in the lawyer you hired, find another one pronto!These tips should help reduce the stress and anxiety that comes with litigation. You will also be proactive by doing your part to avoid hurting your case. Remember, anything you say or do is indeed often used against you in the court of law.

Keep Calm & Let The Attorney Handle It

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Easier said than done right? Well, you can at least keep sane and let the attorney handle it. You’ve somehow found yourself in court – maybe you sued someone, maybe someone sued you. Either way, it’s seldom a pleasant experience. You can still stay sane while doing all you can to help your case. If you’ve hired an attorney, then take advantage of being able to outsource your worries. A good attorney will provide some reassurance or at least let you know the things that are actually within your control. No use worrying about the things outside of your control right?

To keep sane while your case is ongoing, here are some Dos:

  1. DO check your facts and write up a timeline/ account of events complete with names, dates, etc.
  2. DO gather and organize helpful documents and correspondence.
  3. DO set clear goals for a desired outcome and prioritize those goals.
  4. DO make a clear plan of action while keeping flexible depending on goals.

If you have an attorney to walk you through these steps, great! If not, the steps still work to reduce your stress. Next time, we’ll talk about Don’ts for keeping your sanity. Remember, keep calm.

Common Questions Regarding Custody, Support and Divorce

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This post is designed to shed some light on common questions we get asked regarding divorce, custody, and child support. Read on…

1. Does Adultery Affect Who Gets Custody?

No. The court doesn’t see any automatic connection between being unfaithful to one’s spouse and being a good parent, unless it can be proven that the unfaithful spouse’s conduct had a direct negative effect on the child’s physical, psychological or emotional well-being.

2. Can The Kids Choose Which Parent They Want To Live With?

Yes and No. The court will consider a child’s wish if the child is 12 or older. However, the judge is not required to follow the child’s preferences. What a child wants is only one of several criteria the court considers. Children can be impressionable, are sometimes coached by a parent, go through phases, and often prefer the parent who disciplines them the least. The court is aware of all these tendencies.

3. Are Overtime, Bonuses, and Commissions Included in Calculating Child Support?

Yes. Child support is based on net income from ALL sources. This includes, overtime, bonuses etc., but does not include deductions like taxes and amounts the non-custodial parent is paying for the child’s medical insurance. The non-custodial parent will also get a break if paying child support for a different child under other child support orders.

4. Must I Still Pay Child Support When Being Denied Access To My Child?

Yes. Child support is for the child, not the other parent. The child must continue to get this support regardless of the custodial parent’s actions. A lawsuit to set court orders on visitation, or a motion for enforcement of existing court orders can be used to address the denial of access.

5. Does Child Support Include Day Care, Extracurricular, or Activity Expenses?

No. Unless the parties agree, these are not normally included. There are statutory guidelines for calculating the reasonable amount of child support. Medical support is also required to be provided. Payments toward school incidentals, soccer, karate, music lessons, etc., are discretionary and in addition to statutory child support.

6. Do We Have To Be Separated Before We Can File for Divorce?

No. Texas doesn’t even have specific provisions for legal separation. Either party can file for divorce anytime and for any reason.

7. Does Someone Have to Move Out Once the Divorce is Filed?

No. Unless the parties agree, or a court order grants exclusive possession of the home to one spouse, no move out is necessary. Even if title to the house is in one spouse’s name, both parties have the same marital right to live in the house.

8. Do I Lose Health Insurance Coverage After the Divorce?

Yes and No. If one spouse is covered under the other spouse’s health insurance coverage, the terms of the insurance policy require the coverage to terminate upon divorce. The ex-spouse has the option to obtain an extension of the coverage under COBRA (federal law) for up to 3 years.

Hope you found these questions and answers informative. Feel free to submit your questions to us via email and we will feature those questions in our future Q & A blog posts.

 

Going Pro Se – So You Are Representing Yourself?

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My advice is that you try to get a lawyer if there is more than $1000 at stake, or if child custody or real property is at stake. At the very least, you should consult a lawyer first.  A lot of attorneys waive the initial consultation fee or offer a reduced rate for the initial consultation.

Some attorneys will even provide limited scope representation such as reviewing court drafts and court documents and providing guidance for procedural rules without your having to put down a hefty retainer.

So, you have reviewed all of the above and have decided that you must represent yourself. Here are some cool things to know when representing yourself in court…

Think in terms of twos – 2 x 2 x 2:

  1. Two Issues/ Defenses:  list the two main issues that bring you to court, or two main defenses (if you are the defendant.)
  2. Two Supporting Documents: locate the two most important documents you can use to support your facts – contracts, receipts, bills, exhibits, affidavits, photos, letters, emails etc.
  3. Two Requests: list two things you want the court or judge to do. Example: dismiss the case and order you to pay nothing, rule in your favor and grant you a certain amount in judgment, rule in your favor and order the opposing party to return your property etc.

If you can put this 2 x 2 x 2 together before your court hearing, your thoughts and presentation will be clearer and more organized. The more organized and clear you are, the better the chance of the judge/ court ruling in your favor.

4 Questions to Ask:

  • In what court, and what time is my hearing and what is the hearing about?
  • What are the rules for getting my evidence in front of the judge/court?
  • Are there any deadlines or notice rules that I must know about?
  • Are there any court forms that I can use?

BONUS TIPS: Dress comfortably, but  appropriately. Be respectful and polite. Relax – remember, an overly aggressive attitude only gets results in TV courtrooms!

 

 

 

Resolutions and Resignations

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“Many years ago I resolved never to bother with New Year’s resolutions, and I’ve stuck with it ever since.” ~Dave Beard. Not being too fond of new year’s resolutions myself, in 2013, I have decided to work on mini projects throughout the year instead. Chances are you made one or more new year’s resolutions for 2012 and like most people, got to the end of yet another year without having accomplished them.

 

Nip Legal Issues in the Bud this Year

Legal issues can be time-sensitive. There is nothing worse than finding out that a small issue that could have been handled with little emotional and financial stress has now snowballed into a monster.  You don’t need to have a clear plan of execution for the whole year, just for what needs to be done TODAY. Take the initial steps to reaching your goals. If more action is needed, you will have the strength, wisdom, financial resources and guidance to take the next steps.

New Year's Resolution - 1 Day Countdown

  Four Legal Resolutions for 2013

1. Get your criminal record(s) cleared. The state of Texas has a statute that permits eligible individuals to expunge or seal their records. Find out if you are eligible and get this done as soon as possible because these records will haunt you. Criminal records can have a devastating effect on your chances for employment, renting, immigration, admission into law school, professional licenses and so on. Shocking? Yes. I agree it isn’t fair, but that is where clearing your record comes in. It can be done. I know this because I particularly enjoy helping people leave the past behind and get a clean record in order to level the playing field.

2. Know your credit score and improve it. According to LendingTree.com the average credit score out there is 678. Chances are your score could be improved. Don’t delay, talk to a professional that can analyze your credit reports and guide you in what actions to take to start improving your score. Did you know that your score affects all aspects of your life such as interest rates, credit limit, renting, insurance quotes, employment etc? Again, this may not always be fair, but this is the way the system works. Until we can change the system, we must make it work for us. Most credit reports have errors in them that can be fixed to boost your score. I not only know this from personal experience and from analyzing reports, but also from the statistics out there. You owe it to yourself to at least get expert eyes to look at your reports to see what you can do proactively to improve your score.

3. Get a Will drafted. We all need one of these – no ifs or buts. When we are feeling young, healthy and invincible, the idea of a Will seems ridiculous and even a little morbid. You may say; “Nah, I am too young”; or “Nah, I don’t own any assets that can be put in a will.” The truth is that if you have brought a child into this world, you do need a Will. You owe it to your child and loved ones. A basic will provides for expenses, lists an executor or personal administrator, and provides for specific distribution of real and personal property. It will also appoint a guardian for minor children. People over age 21 with no children may need one too, at least to appoint a power of attorney for medical/ incapacitation reasons. It always makes it easier for loved ones left behind to sort things out. Please consult an attorney for more information on getting a Will drafted in 2013.

4. Get child support. Quite a number of parents are entitled to child support by virtue of a court order, or by default due to the law. However, quite a few don’t do anything about it for years, probably because they find the process daunting. My advice is that you talk to an attorney that can guide you on what needs to be done. You deserve to get financial assistance from the other parent. It is hard enough if you are not getting their emotional support. You can at times get the Attorney General to help you with the process, or, you can talk to a private attorney that handles family law matters. Don’t delay on the issue of child support, give yourself a break.