On Nov 12, 8:44 am, Johnny <J0hn_2...@rock.com> wrote:
> As (pro-se) defendant, I have submitted interrogatories, request for
> admission of facts and request for production to plaintiff. At the
> time of this writing the response from plaintiff is now nearly a week
> over due. How should I react to this situation? Would this be grounds
> for requesting a dismissal or what?
As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
If you insist on representing yourself instead of letting a professional do it, read the rules of civil procedure applicable in your court so you know at least a little bit about what you're doing. In most jurisdictions the rules are listed in a logical sequence corresponding to the stages of a suit, beginning from general principles applicable to all actions, to filing a complaint, motion, answer, cross-claim or counterclaim, to identifying the parties, and when or if joinder of parties is either required or permitted, through the discovery phase (depositions, interrogatories, requests to produce documents for inspection and copying) through trial, not to mention post-trial motions and appeals. Before you go any farther, you need to read and understand _at_least_ all the way through the conclusion of a trial, to know the framework for what will or can happen in your case. Don't know what set of rules are applicable in your case? Ask the court clerk, or a local law librarian. Your courthouse probably has a law library open to the public for research, and your local public library may even have copies of the local court rules. If you don't understand the rules, or even if you do, read some of the reported case opinions (cited in the annotations that appear in most printed volumes of procedure rules) that interpret those rules, to find out how courts in your state really apply them. (The annotations just contain the name and volume/page reference citation for the case and sometimes a very brief capsule summary of its holding. Find and read the actual case, since the capsule descriptions are not always right-on.)
That said, your rules will tell you what your options are when an opponent has failed to provide requested discovery. In many states you have a choice of filing a motion to compel answers (which is what you're likely to get in any case), or filing a motion for immediate sanctions in certain failures of discovery (complete failure to answer a set of interrogatories is usually one of those circumstances that will allow this). However, a court is not likely to throw your plaintiff;s case out of court just because he is a week late in answering. The judge is likely to just order him to respond within a certain additional time -- if trial is looming, that could make a difference, but you didn't say that was a factor. Then, if he still doesn't answer after being specifically ordered to do so by the court, you are more likely to have some success if you file another motion for sanctions based on his violation of the court's order compelling discovery. Sanctions typically can include dismissal, but that is rarely the first choice judges will reach for, because the law prefers that cases be heard on their merits, not won or lost by some procedural mistake. Instead, the judge is more likely to rule that plaintiff be barred from producing certain evidence if he didn't reveal it to you in discovery, or rule that certain contentions of yours be taken as established if plaintiff failed to come up with evidence contradicting them in discovery, and so on.
Anyway, good luck. If you're pro se, you'll need it. But I suppose if the plaintiff is pro se too, you'll both need it.
--
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Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tuesday, August 21, 2012
Can you sue in small claims on a federal statute?
On Nov 9, 6:58 am, "johnmoli...@yahoo.com" <johnmoli...@yahoo.com> wrote:
> Recently in my state's small claims court, a man won a judgment
> against a telemarketing company. Based on the federal statutes
<snip>
> and the judge ruled in his favor and ordered the company to pay $x to
> the plaintiff based on the maximum fine per violation of the federal
> statute.
>
> Is such a lawsuit possible? Can you sue in state court based on a
> federal statute?
Yes. Some federal statutes -- this may be one of them, but I didn't look it up -- even provide specifically that any remedy they grant to claimants can be pursued _only_ in state court.
Don't confuse the issues of "subject matter jursidiction" and "applicable law". State courts, if they have _personal_ jurisdiction over the person of the defendant and subject matter jurisdiction over the type of claim (e.g. a suit at law for damages, or a suit in equity for some other kind of relief) can hear claims regardless of the source of the law on which they are based (although each state may provide that some courts hear certain types of cases, and other courts hear others - but somewhere, a state forum is available for every type of claim). Federal courts are courts of "limited" subject matter jurisdiction, meaning that they can only hear cases for which a specific grant of authorization to hear that type of claim was made by Congress pursuant to the Constitution. The complaint in a Federal case has to recite the jurisdictional basis of the claim, that is, cite the statute that provides a grant of subject matter jurisdiction. If a statute specifically provides that it does not confer Federal jurisdiction, then obviously it cannot be relied upon to bing a Federal case. The only way such a claim could be brought into Federal court is under the so called "diversity" statute allowing the Federal courts to adjudicate disputes arising between citizens of different states, IF the amount in controversy exceeds a certain amount (currently $70,000). Obviously, this wouldn't work for a small-claims type case.
Where an independent statutory basis for Federal jurisdiction exists, the amount in controversy doesn't matter legally, although it certainly does practically. I once was forced* to sue in Federal court (under the Federal Tort Claims Act) on a property-damage-only car crash case worth only $600, because the Air Force van driver who clipped my client's car in front of the PX at Andrews AFB refused to settle the claim. Needless to say I would have much preferred to bring that suit in state small claims court, but the FTCA requires that suit be brought _only_ in Federal court. The Federal District Judge who heard the case was not happy to be spending his valuable time on a $600 case and made short shrift of it, but we didn't have a choice.
* You may ask, why was I "forced" to accept this client with so many factors working against us? If I were on my own, as I am now, I wouldn't, since it's not worth _my_ time either. But I was a brand new lawyer, working for a large firm, and I was assigned the case by my supervising partner, representing one of their major insurance company clients on a "subrogation" case (the insurer had already paid the damages to their insured, and was trying to collect from the responsible party). The firm had a standing arrangement with the insurer to handle all their subrogation work in MD, and the partner was not about to turn down any case the insurance adjuster asked him to handle, for fear they would take their subrogation business (and their far more lucrative insurance defense business) somewhere else. It was my first case, getting me into Federal court less than a month after I was admitted to the bar. The case made no economic sense to the firm either, except as (a) good PR to keep a good client happy (the old "no case is too big or too small" slogan) and as (b) a training ground for a new lawyer where it didn't matter much to anyone if I screwed it up.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Recently in my state's small claims court, a man won a judgment
> against a telemarketing company. Based on the federal statutes
<snip>
> and the judge ruled in his favor and ordered the company to pay $x to
> the plaintiff based on the maximum fine per violation of the federal
> statute.
>
> Is such a lawsuit possible? Can you sue in state court based on a
> federal statute?
Yes. Some federal statutes -- this may be one of them, but I didn't look it up -- even provide specifically that any remedy they grant to claimants can be pursued _only_ in state court.
Don't confuse the issues of "subject matter jursidiction" and "applicable law". State courts, if they have _personal_ jurisdiction over the person of the defendant and subject matter jurisdiction over the type of claim (e.g. a suit at law for damages, or a suit in equity for some other kind of relief) can hear claims regardless of the source of the law on which they are based (although each state may provide that some courts hear certain types of cases, and other courts hear others - but somewhere, a state forum is available for every type of claim). Federal courts are courts of "limited" subject matter jurisdiction, meaning that they can only hear cases for which a specific grant of authorization to hear that type of claim was made by Congress pursuant to the Constitution. The complaint in a Federal case has to recite the jurisdictional basis of the claim, that is, cite the statute that provides a grant of subject matter jurisdiction. If a statute specifically provides that it does not confer Federal jurisdiction, then obviously it cannot be relied upon to bing a Federal case. The only way such a claim could be brought into Federal court is under the so called "diversity" statute allowing the Federal courts to adjudicate disputes arising between citizens of different states, IF the amount in controversy exceeds a certain amount (currently $70,000). Obviously, this wouldn't work for a small-claims type case.
Where an independent statutory basis for Federal jurisdiction exists, the amount in controversy doesn't matter legally, although it certainly does practically. I once was forced* to sue in Federal court (under the Federal Tort Claims Act) on a property-damage-only car crash case worth only $600, because the Air Force van driver who clipped my client's car in front of the PX at Andrews AFB refused to settle the claim. Needless to say I would have much preferred to bring that suit in state small claims court, but the FTCA requires that suit be brought _only_ in Federal court. The Federal District Judge who heard the case was not happy to be spending his valuable time on a $600 case and made short shrift of it, but we didn't have a choice.
* You may ask, why was I "forced" to accept this client with so many factors working against us? If I were on my own, as I am now, I wouldn't, since it's not worth _my_ time either. But I was a brand new lawyer, working for a large firm, and I was assigned the case by my supervising partner, representing one of their major insurance company clients on a "subrogation" case (the insurer had already paid the damages to their insured, and was trying to collect from the responsible party). The firm had a standing arrangement with the insurer to handle all their subrogation work in MD, and the partner was not about to turn down any case the insurance adjuster asked him to handle, for fear they would take their subrogation business (and their far more lucrative insurance defense business) somewhere else. It was my first case, getting me into Federal court less than a month after I was admitted to the bar. The case made no economic sense to the firm either, except as (a) good PR to keep a good client happy (the old "no case is too big or too small" slogan) and as (b) a training ground for a new lawyer where it didn't matter much to anyone if I screwed it up.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California community property divorce
On Nov 5, 9:45 am, "nomail1...@hotmail.com" <nomail1...@hotmail.com> wrote:
> I was curious (just idle curiosity, BTW) about how community
> property is divided in a Calif divorce.
I am not a CA lawyer but I noticed no one else responded to your post yet, so I offer my own idly curious comments in the same vein as your query.
> In particular, I wondered
> if is just a matter of divided assets so that the total net value
> is divided 50-50 (generally), or if each asset must be divided
> 50-50.
I doubt very much that the CA courts require the parties to use a chainsaw to cut their BMW down the middle, as it were. What generally happens everywhere, and probably in CA too, is that the parties come to some agreement as to the value of the various assets (aided, if necessary, by a formal appraisal) and also come to some agreement as to how those assets are to be divided (he gets the Ferrari, she gets the Jaguar, he gets the beach house, she gets the ski chalet, and so on), with cash being used to make up the difference where the tangible assets or realty each party retains after the marriage ends do not come to exactly the same value (as, statistically, they rarely would).
If the parties are unable to agree amicably, then I suppose ultimately the court will have to order that all assets be sold, converted to cash, and then the cash be split 50-50. But that would happen only if the parties cannot otherwise agree on how to divide the tangibles.
> I vaguely recall some "recent" court decisions (where "recent"
> means: in the last 2-3 years) that affected the way assets
> must be divided in a (Calif?) divorce in order to ensure that one
> spouse does not get "stuck" with assets that are more likely
> to depreciate in value. But I'm not sure.
About that, I have no idea. However, if the risk of depreciation is known and is part of what is taken into consideration when the agreed evaluation and division of property is made, ISTM the parties ought to be bound by their agreement after it is approved by the judge. But in CA, stranger things have happened.
> Generally, the web page states that: "[T]he law does not
> require an 'in kind' division of the community property. All
> that the law requires is that the net value of the assets
> received by each spouse must be equal".
>
> That should answer my question dispositively.
Yes, it should. That makes sense and is pretty much what other states say too.
> But it goes on to say: "Thus, it is not uncommon for one
> spouse to be awarded the family residence, with the other
> spouse receiving the family business and investment real
> estate".
>
> That appears to say that the residence can be awarded to
> one spouse only when there are other business interests
> and real estate properties persumably of equal value.
No it doesn't. That is just an example of how different assets can be retained by different parties and do not have to be sold in order to make it "come out even". If there is no family business, but there are, frex, savings or other investments worth as much as the house, one party can get the cash and the other party can get the house. There are myriad ways this can work out, all very fact-specific to the particular couple, their assets, and their desires.
> Is that right?! Or can the (current appraised) value of the
> house be balanced by the net value of other assets, for
> example stocks and bond holdings and other personal
> property of value?
Of course it can. It amazes me that you would take a mere example as expressing a binding limitation on how things can be done.
> Moreover, later it states (emphasis added): "Where minor
> children are involved, it is common for the custodial parent
> to be allowed to live in the residence with the children for a
> specified period of time after the Dissolution of Marriage is
> finalized. [....] The house MUST BE sold when: there are
> no children living at the property, the youngest child attains
> the age of majority, or any date as otherwise agreed by the
> parties or specified by the court".
>
> Is it trying to say that the residence "must be" sold only in
> the case where it was awarded to the custodial parent while
> minor children are still living there, AND such an award
> results in a lopsided net value of community property going
> to one spouse? (OR perhaps also when such an award
> "forces" the custodial spouse to take his/her share of
> community property in real estate against his/her
> preferences?)
First of all, this is going to be very fact-specific, as noted above. Secondly, you elide part of the quote so we have no idea if you have taken out needed context to fully and correctly understand it. Thirdly, putting that aside, I read the quoted example as referring only to cases where the couple has NO substantial assets other than the house, meaning that the community property CANNOT be equitably divided yet without selling the house, so the court delays final resolution of that issue to permit the custodial parent to continue living in the family residence until the minor children are grown, and THEN the house, which is the only major community asset the parties hold, "must" be sold, because that is the only way its value can be divided. In all other cases, if there are sufficient assets to make the division earlier and still allow a custodial parent to keep the family home as part of his or her share, ISTM there is no reason that cannot be done earlier, and this exception would not be called upon to delay final settlement.
> Or is it truly saying that the residence always "must be"
> sold as part of the dissolution; the sale is simply deferred
> until there are no minor children living there?
ISTM it "must be" sold if, and ONLY if, it is the only way an equitable division of property can be made.
That does NOT mean that, in each and every case regardless of the parties' wishes, it "must be" sold to make all divorces fit the same Procrustean bed.
And, in but ONLY in those cases where the house "must be" sold, the court is empowered to defer sale until after the minor children are grown, so that the custodial parent can continue to live in it to raise the children in the home they already know, to minimize the disruption of the children's lives.
I'm ignoring the rest of your post as, in your words, idle speculations that you can probably already answer yourself if you take the above concepts into account. Have fun,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I was curious (just idle curiosity, BTW) about how community
> property is divided in a Calif divorce.
I am not a CA lawyer but I noticed no one else responded to your post yet, so I offer my own idly curious comments in the same vein as your query.
> In particular, I wondered
> if is just a matter of divided assets so that the total net value
> is divided 50-50 (generally), or if each asset must be divided
> 50-50.
I doubt very much that the CA courts require the parties to use a chainsaw to cut their BMW down the middle, as it were. What generally happens everywhere, and probably in CA too, is that the parties come to some agreement as to the value of the various assets (aided, if necessary, by a formal appraisal) and also come to some agreement as to how those assets are to be divided (he gets the Ferrari, she gets the Jaguar, he gets the beach house, she gets the ski chalet, and so on), with cash being used to make up the difference where the tangible assets or realty each party retains after the marriage ends do not come to exactly the same value (as, statistically, they rarely would).
If the parties are unable to agree amicably, then I suppose ultimately the court will have to order that all assets be sold, converted to cash, and then the cash be split 50-50. But that would happen only if the parties cannot otherwise agree on how to divide the tangibles.
> I vaguely recall some "recent" court decisions (where "recent"
> means: in the last 2-3 years) that affected the way assets
> must be divided in a (Calif?) divorce in order to ensure that one
> spouse does not get "stuck" with assets that are more likely
> to depreciate in value. But I'm not sure.
About that, I have no idea. However, if the risk of depreciation is known and is part of what is taken into consideration when the agreed evaluation and division of property is made, ISTM the parties ought to be bound by their agreement after it is approved by the judge. But in CA, stranger things have happened.
> Generally, the web page states that: "[T]he law does not
> require an 'in kind' division of the community property. All
> that the law requires is that the net value of the assets
> received by each spouse must be equal".
>
> That should answer my question dispositively.
Yes, it should. That makes sense and is pretty much what other states say too.
> But it goes on to say: "Thus, it is not uncommon for one
> spouse to be awarded the family residence, with the other
> spouse receiving the family business and investment real
> estate".
>
> That appears to say that the residence can be awarded to
> one spouse only when there are other business interests
> and real estate properties persumably of equal value.
No it doesn't. That is just an example of how different assets can be retained by different parties and do not have to be sold in order to make it "come out even". If there is no family business, but there are, frex, savings or other investments worth as much as the house, one party can get the cash and the other party can get the house. There are myriad ways this can work out, all very fact-specific to the particular couple, their assets, and their desires.
> Is that right?! Or can the (current appraised) value of the
> house be balanced by the net value of other assets, for
> example stocks and bond holdings and other personal
> property of value?
Of course it can. It amazes me that you would take a mere example as expressing a binding limitation on how things can be done.
> Moreover, later it states (emphasis added): "Where minor
> children are involved, it is common for the custodial parent
> to be allowed to live in the residence with the children for a
> specified period of time after the Dissolution of Marriage is
> finalized. [....] The house MUST BE sold when: there are
> no children living at the property, the youngest child attains
> the age of majority, or any date as otherwise agreed by the
> parties or specified by the court".
>
> Is it trying to say that the residence "must be" sold only in
> the case where it was awarded to the custodial parent while
> minor children are still living there, AND such an award
> results in a lopsided net value of community property going
> to one spouse? (OR perhaps also when such an award
> "forces" the custodial spouse to take his/her share of
> community property in real estate against his/her
> preferences?)
First of all, this is going to be very fact-specific, as noted above. Secondly, you elide part of the quote so we have no idea if you have taken out needed context to fully and correctly understand it. Thirdly, putting that aside, I read the quoted example as referring only to cases where the couple has NO substantial assets other than the house, meaning that the community property CANNOT be equitably divided yet without selling the house, so the court delays final resolution of that issue to permit the custodial parent to continue living in the family residence until the minor children are grown, and THEN the house, which is the only major community asset the parties hold, "must" be sold, because that is the only way its value can be divided. In all other cases, if there are sufficient assets to make the division earlier and still allow a custodial parent to keep the family home as part of his or her share, ISTM there is no reason that cannot be done earlier, and this exception would not be called upon to delay final settlement.
> Or is it truly saying that the residence always "must be"
> sold as part of the dissolution; the sale is simply deferred
> until there are no minor children living there?
ISTM it "must be" sold if, and ONLY if, it is the only way an equitable division of property can be made.
That does NOT mean that, in each and every case regardless of the parties' wishes, it "must be" sold to make all divorces fit the same Procrustean bed.
And, in but ONLY in those cases where the house "must be" sold, the court is empowered to defer sale until after the minor children are grown, so that the custodial parent can continue to live in it to raise the children in the home they already know, to minimize the disruption of the children's lives.
I'm ignoring the rest of your post as, in your words, idle speculations that you can probably already answer yourself if you take the above concepts into account. Have fun,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Pakistani lawyers protest court shutdown
On Nov 7, 7:12 am, Jonathan Sachs <js070...@sbcglobal.net> wrote:
> I was struck by a photograph in today's paper (the Chicago Tribune)
> whose caption describes the image as well as I could: "Amid tear gas,
> a Pakistani lawyer flees after hurling a rock at police Monday in
> Lahore..."
>
> First, all honor to the lawyers of Pakistan for risking their lives,
> as well as their livelihoods to defend their nation's constitution. I
> am grateful that in America, our civil liberties are not so imminently
> threatened that we must contemplate this type of behavior. I wonder
> how many of us would be up to it if they were.
Jonathan, you almost took the words right out of my mouth. I couldn't agree more, after seeing (probably) the same picture in the Washington Post. What also came to me was the parallel to the conduct of the Founders of the USA -- many of whom were lawyers -- who pledged their "lives, fortunes, and sacred honor" in signing the Declaration of Independence, whose ringing words may be part of what inspired the Pakistani protesters. As IIRC Ben Franklin said, "We must all hang together or we shall all hang separately."
> But the thing that struck me about this picture is that the lawyer is
> dressed in a suit and tie. That's what virtually all of the pictures
> in the media seem to show: lawyers demonstrating, lawyers being beaten
> by police, lawyers fighting back, all in business suits.
This happened at the courthouse, which had been closed down by Musharraf's emergency order; he saw the judiciary as a political opponent because it had consistently ruled against his dictatorial policies. I'm guessing the lawyers dressed in suit and tie the way they do every day when they go to work, and went to their workplace even though it was not open for business, there to do whatever they could do to get it opened again and to restore the normal workings of the law. But if they gave it any thought, as lawyers often do when considering the image they want to project, it would make sense for them to consciously decide to dress that way to show their status as lawyers, and their respect for the rule of law.
> I wonder what's behind that. Did the lawyers of Pakistan get together
> and decide that formal dress would make the protest look more
> legitimate? Or, is wearing a suit and tie ground so deeply into their
> psyches that they can't imagine going out of doors any other way?
It is a striking picture. But if something like that were to happen here, I'd probably put on my suit and tie too, and go down to the courthouse, and see if I could do anything about it. I wouldn't wear jeans and a T-shirt; I would wear the uniform of my profession. Although attenuated in the modern world compared to traditional societies, it is still true that clothing serves as a potent symbol of identity, privilege, rank, and power; if the protesters in Myanmar/Burma had worn Bermuda shorts and polo shirts instead of the saffron robes of Buddhist monks, their voice would not have been nearly so powerful IMO. The fact that the photo of the protesting Pakistani lawyers in suits is so visually striking just proves that point as well.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I was struck by a photograph in today's paper (the Chicago Tribune)
> whose caption describes the image as well as I could: "Amid tear gas,
> a Pakistani lawyer flees after hurling a rock at police Monday in
> Lahore..."
>
> First, all honor to the lawyers of Pakistan for risking their lives,
> as well as their livelihoods to defend their nation's constitution. I
> am grateful that in America, our civil liberties are not so imminently
> threatened that we must contemplate this type of behavior. I wonder
> how many of us would be up to it if they were.
Jonathan, you almost took the words right out of my mouth. I couldn't agree more, after seeing (probably) the same picture in the Washington Post. What also came to me was the parallel to the conduct of the Founders of the USA -- many of whom were lawyers -- who pledged their "lives, fortunes, and sacred honor" in signing the Declaration of Independence, whose ringing words may be part of what inspired the Pakistani protesters. As IIRC Ben Franklin said, "We must all hang together or we shall all hang separately."
> But the thing that struck me about this picture is that the lawyer is
> dressed in a suit and tie. That's what virtually all of the pictures
> in the media seem to show: lawyers demonstrating, lawyers being beaten
> by police, lawyers fighting back, all in business suits.
This happened at the courthouse, which had been closed down by Musharraf's emergency order; he saw the judiciary as a political opponent because it had consistently ruled against his dictatorial policies. I'm guessing the lawyers dressed in suit and tie the way they do every day when they go to work, and went to their workplace even though it was not open for business, there to do whatever they could do to get it opened again and to restore the normal workings of the law. But if they gave it any thought, as lawyers often do when considering the image they want to project, it would make sense for them to consciously decide to dress that way to show their status as lawyers, and their respect for the rule of law.
> I wonder what's behind that. Did the lawyers of Pakistan get together
> and decide that formal dress would make the protest look more
> legitimate? Or, is wearing a suit and tie ground so deeply into their
> psyches that they can't imagine going out of doors any other way?
It is a striking picture. But if something like that were to happen here, I'd probably put on my suit and tie too, and go down to the courthouse, and see if I could do anything about it. I wouldn't wear jeans and a T-shirt; I would wear the uniform of my profession. Although attenuated in the modern world compared to traditional societies, it is still true that clothing serves as a potent symbol of identity, privilege, rank, and power; if the protesters in Myanmar/Burma had worn Bermuda shorts and polo shirts instead of the saffron robes of Buddhist monks, their voice would not have been nearly so powerful IMO. The fact that the photo of the protesting Pakistani lawyers in suits is so visually striking just proves that point as well.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Carpet clause in apartment lease
On Nov 5, 9:45 am, sunil <sunilsreenivas2...@yahoo.com> wrote:
> I live in a rented apartment in jersey city, new jersey
I am not a NJ lawyer and don't know any specific NJ law. These are general comments for discussion purposes.
> I read the lease and saw following sentence:
> Quote " During his occupancy, the TENANT, if required by LANDLORD,
> will keep covered atleast 80% of the living quarters with carpeting
> or other floor covering.
<snip>
> My question is:
> a)Legally do you guys think above statement means I should pay from
> my pocket for carpeting.
Yes. Buy cheap throw rugs at a yard sale, or remnants from a carpet store, or Tatami mats, or a fine Persian original, your choice. But you are obligated to keep some kind of fabric covering on 80% of your bare wood floors if the landlord asks you to.
> b)Is there any NJ law that states how to deal with this?
If so, it probably agrees with the landlord (who, as you say, runs a mega-complex of apts. and surely vetted their lease language with their lawyers to make sure it complies with local law)
> c)I obviously dont want to spend lot of money in place where I am
> going to stay for 1-2 yrs atmost.
So do it cheaply.
> I definitely dont want to do proper carpeting
It doesn't say you should install wall-to-wall. In fact the landlord MAY NOT WANT you to do that. They want you to put down _portable_ carpets or rugs or mats that you will then take with you when you move. The landlord wants you to do this to muffle the sounds of your feet moving over your bare wood floor, not to enhance your decor.
> but lets say I want to be good tenant and will buy some
> area rugs, do you think thats a good choice....
Buy any kind of floor covering you want and can afford. Get something that agrees with your decor, if that matters to you, or just buy carpet scraps from a carpet store (they may even give you some for free) if your idea of decorating is brick-and-board bookcases, a tower of beer cans in the corner and pizza boxes artfully arranged on the footlocker you're using for a coffee table.
<snip>
> d)Can apt mgmt throw me out for this reason?
Yes.
> even after we do c)(We
> will try our best to keep noise level minimum but still the people
> below may continue to feel inconvenient, also they bought the apt
> below and are feeling like they are royalty and the guy told me he
> will threaten to undo buying of the apartment on this grounds, which
> obviously our apt mgmt will try to stop)
If you are in compliance with the lease they can't throw you out for breaching that term of the lease. But that doesn't guarantee they won't find some other basis to throw you out, if they are determined to do so. ISTM you don't have to cross that bridge yet; just get some floor covering for Pete's sake and quit worrying about what "might" happen.
> I just think this is a problem even we face from the people above us
In that case, you should complain and make sure the landlord checks that the people above _you_ have complied with the lease re: floor covering.
> and I dont think its a uncommon/nuisance kind of things.
You're comparing apples and oranges. First, it is in fact quite common for leases of multistory apts. with bare wood floors to include a clause requiring the tenant to furnish some floor coverings. And it doesn't matter whether having uncovered floors is legally a "nuisance" or not; your lease specifically requires you to do this, so you have to comply with the terms you contractually agreed to follow or else you are in breach of your lease.
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I am not your lawyer, and you are not my client in any specific legal matter.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I live in a rented apartment in jersey city, new jersey
I am not a NJ lawyer and don't know any specific NJ law. These are general comments for discussion purposes.
> I read the lease and saw following sentence:
> Quote " During his occupancy, the TENANT, if required by LANDLORD,
> will keep covered atleast 80% of the living quarters with carpeting
> or other floor covering.
<snip>
> My question is:
> a)Legally do you guys think above statement means I should pay from
> my pocket for carpeting.
Yes. Buy cheap throw rugs at a yard sale, or remnants from a carpet store, or Tatami mats, or a fine Persian original, your choice. But you are obligated to keep some kind of fabric covering on 80% of your bare wood floors if the landlord asks you to.
> b)Is there any NJ law that states how to deal with this?
If so, it probably agrees with the landlord (who, as you say, runs a mega-complex of apts. and surely vetted their lease language with their lawyers to make sure it complies with local law)
> c)I obviously dont want to spend lot of money in place where I am
> going to stay for 1-2 yrs atmost.
So do it cheaply.
> I definitely dont want to do proper carpeting
It doesn't say you should install wall-to-wall. In fact the landlord MAY NOT WANT you to do that. They want you to put down _portable_ carpets or rugs or mats that you will then take with you when you move. The landlord wants you to do this to muffle the sounds of your feet moving over your bare wood floor, not to enhance your decor.
> but lets say I want to be good tenant and will buy some
> area rugs, do you think thats a good choice....
Buy any kind of floor covering you want and can afford. Get something that agrees with your decor, if that matters to you, or just buy carpet scraps from a carpet store (they may even give you some for free) if your idea of decorating is brick-and-board bookcases, a tower of beer cans in the corner and pizza boxes artfully arranged on the footlocker you're using for a coffee table.
<snip>
> d)Can apt mgmt throw me out for this reason?
Yes.
> even after we do c)(We
> will try our best to keep noise level minimum but still the people
> below may continue to feel inconvenient, also they bought the apt
> below and are feeling like they are royalty and the guy told me he
> will threaten to undo buying of the apartment on this grounds, which
> obviously our apt mgmt will try to stop)
If you are in compliance with the lease they can't throw you out for breaching that term of the lease. But that doesn't guarantee they won't find some other basis to throw you out, if they are determined to do so. ISTM you don't have to cross that bridge yet; just get some floor covering for Pete's sake and quit worrying about what "might" happen.
> I just think this is a problem even we face from the people above us
In that case, you should complain and make sure the landlord checks that the people above _you_ have complied with the lease re: floor covering.
> and I dont think its a uncommon/nuisance kind of things.
You're comparing apples and oranges. First, it is in fact quite common for leases of multistory apts. with bare wood floors to include a clause requiring the tenant to furnish some floor coverings. And it doesn't matter whether having uncovered floors is legally a "nuisance" or not; your lease specifically requires you to do this, so you have to comply with the terms you contractually agreed to follow or else you are in breach of your lease.
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I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Plagiarism, or copyright violation?
On Nov 6, 6:34 am, henri <he...@nowhere.com> wrote:
> The level of copying required for plagiarism is minimal. In fact,
> it is possible to plagiarize using material which is not even copyrighted.
> Use which would qualify as fair is often sufficient to sustain ethics
> charges concerning plagiarism.
>
> Plagiarism is not a category of copyright infringement, and copyright
> infringement is not a category of plagiarism.
Agreed. I've always understood plagiarism, in an academic, literary or scientific context, to mean passing off someone else's words, ideas, or research, as one's own. If you take a poem, frex, that may be public domain (either because it was written by "anonymous", or is an old writing whose copyright has expired), and submit it to your English teacher as your own work, that is plagiarism -- whether you change a few words around, or leave it as-is. If you copy someone else's scientific data (a mere compilation, and hence not amenable to copyright protection) and pass it off as your own, that too is plagiarism. As is inserting a snappy turn of phrase in your news article, without attribution of a source for the quote and hence making it seem to be the reporter's own choice of words, or stealing the plot of someone else's novel as a basis for your own without acknowledgement or attribution (ideas, per se, are not copyrightable - but may be subject to other kinds of intellectual property protection in some states, such as legal protection for a commercially valuable dramatic or literary character's name and appearance).
Plagiarism per se is AFAIK not legally actionable in any USA state. It is a violation of academic, scientific or journalistic ethics and can be punished as such within its context, but is not a crime.
An act of plagiarism can, however, also happen to be an act of copyright infringement if the plagiarist uses copyrighted material in a manner that is not fair use, and passes it off as his own; the two concepts can overlap. Perhaps that is where much of the confusion arises.
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Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The level of copying required for plagiarism is minimal. In fact,
> it is possible to plagiarize using material which is not even copyrighted.
> Use which would qualify as fair is often sufficient to sustain ethics
> charges concerning plagiarism.
>
> Plagiarism is not a category of copyright infringement, and copyright
> infringement is not a category of plagiarism.
Agreed. I've always understood plagiarism, in an academic, literary or scientific context, to mean passing off someone else's words, ideas, or research, as one's own. If you take a poem, frex, that may be public domain (either because it was written by "anonymous", or is an old writing whose copyright has expired), and submit it to your English teacher as your own work, that is plagiarism -- whether you change a few words around, or leave it as-is. If you copy someone else's scientific data (a mere compilation, and hence not amenable to copyright protection) and pass it off as your own, that too is plagiarism. As is inserting a snappy turn of phrase in your news article, without attribution of a source for the quote and hence making it seem to be the reporter's own choice of words, or stealing the plot of someone else's novel as a basis for your own without acknowledgement or attribution (ideas, per se, are not copyrightable - but may be subject to other kinds of intellectual property protection in some states, such as legal protection for a commercially valuable dramatic or literary character's name and appearance).
Plagiarism per se is AFAIK not legally actionable in any USA state. It is a violation of academic, scientific or journalistic ethics and can be punished as such within its context, but is not a crime.
An act of plagiarism can, however, also happen to be an act of copyright infringement if the plagiarist uses copyrighted material in a manner that is not fair use, and passes it off as his own; the two concepts can overlap. Perhaps that is where much of the confusion arises.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Contingent bequest in a Will
On Nov 6, 6:34 am, jo <phillysle...@verizon.net> wrote:
> The lawyer who drew up my will told me that the specific
> guidelines I suggest/desire for the care of
> companion animals be attached in a separate document to the
> will and it should not be typed.
The purpose of a Will is to specify the distribution of decedent's property after he dies. Although sometimes a testator, through his Will, attemts to control behavior of the legatees by making the distribution contingent on certain conditions being met by the beneficiary before he gets the money (perhaps this is done more often in fiction than in real life), that is an aftereffect of specifying a certain distribution, not something the Will can do directly. The Will cannot say, "My daughter Suzy must marry that nice young doctor I've been trying to set her up with instead of that hoodlum she hangs around with" but it _can_ say, "I bequeath to my beloved daughter, Suzy, 10 gazillion dollars on the condition that she marry Dr. Nice within 1 year after my death and remain married to him at least 2 years."
So, if you're going to leave someone money to care for your animals, or put it in trust for that purpose, you're not intending to void that bequest if they don't do it _exactly_ the way you specify, are you? That's what would happen if you put it in your Will. You're better off having a separate protocol that tells the trustee of your animal care fund what your priorities are, and what your wishes are re: how to care for them.
Similarly, you might want to leave an amount in trust for a minor child or grandchild of yours, with separate directions to the trustee along the lines of, "I would like little Joey to attend Exeter like I did, then Harvard" but you're not going to cut him off if he instead goes to Andover and Yale, or PS 108 and State U. Such a bequest in trust may specify that it be used for education, but you don't have to get that specific in the Will itself. In your case, I assume you made a bequest either to an individual, or to a trust, contingent on its being used for care of your animals. Same deal - don't get too specific in the Will or you may risk cutting off the bequest if not complied with exactly.
> I suspect he would
> suggest the same approach for the disposal of a small
> genealogical collection on my family, but am not 100% sure.
Why would you assume that? Either approach would work, since this is exactly what a Will is for, specifying the distribution of your property. But if it's something you may change your mind about frequently, perhaps a separate protocol is the better approach so you don't have to constantly revise the Will itself.
> Is any/all of this standard operating procedure, given the
> circumstances or is this a questionable approach to these
> issues?
Since you were in a hurry to get the will signed and had not yet decided what you wanted to do exactly re: care of the animals, what choice did he have? But yes, it sounds like a reasonable approach.
--
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Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The lawyer who drew up my will told me that the specific
> guidelines I suggest/desire for the care of
> companion animals be attached in a separate document to the
> will and it should not be typed.
The purpose of a Will is to specify the distribution of decedent's property after he dies. Although sometimes a testator, through his Will, attemts to control behavior of the legatees by making the distribution contingent on certain conditions being met by the beneficiary before he gets the money (perhaps this is done more often in fiction than in real life), that is an aftereffect of specifying a certain distribution, not something the Will can do directly. The Will cannot say, "My daughter Suzy must marry that nice young doctor I've been trying to set her up with instead of that hoodlum she hangs around with" but it _can_ say, "I bequeath to my beloved daughter, Suzy, 10 gazillion dollars on the condition that she marry Dr. Nice within 1 year after my death and remain married to him at least 2 years."
So, if you're going to leave someone money to care for your animals, or put it in trust for that purpose, you're not intending to void that bequest if they don't do it _exactly_ the way you specify, are you? That's what would happen if you put it in your Will. You're better off having a separate protocol that tells the trustee of your animal care fund what your priorities are, and what your wishes are re: how to care for them.
Similarly, you might want to leave an amount in trust for a minor child or grandchild of yours, with separate directions to the trustee along the lines of, "I would like little Joey to attend Exeter like I did, then Harvard" but you're not going to cut him off if he instead goes to Andover and Yale, or PS 108 and State U. Such a bequest in trust may specify that it be used for education, but you don't have to get that specific in the Will itself. In your case, I assume you made a bequest either to an individual, or to a trust, contingent on its being used for care of your animals. Same deal - don't get too specific in the Will or you may risk cutting off the bequest if not complied with exactly.
> I suspect he would
> suggest the same approach for the disposal of a small
> genealogical collection on my family, but am not 100% sure.
Why would you assume that? Either approach would work, since this is exactly what a Will is for, specifying the distribution of your property. But if it's something you may change your mind about frequently, perhaps a separate protocol is the better approach so you don't have to constantly revise the Will itself.
> Is any/all of this standard operating procedure, given the
> circumstances or is this a questionable approach to these
> issues?
Since you were in a hurry to get the will signed and had not yet decided what you wanted to do exactly re: care of the animals, what choice did he have? But yes, it sounds like a reasonable approach.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance setoff when both drivers are injured?
On Nov 5, 9:44 am, henri <he...@nowhere.com> wrote:
> I'm having difficulty figuring out exactly to what extent the parties are harmed
> and the insurance companies enriched [by applying a mandatory setoff where both parties who sue each other are insured].
Which part don't you get? One of the injured parties got nothing, even though he should have won a judgment and the other party's insurance should have paid it. So that party was harmed, and the opponent's insurance company was enriched. And the other party's judgment got reduced by the amount of the first party's judgment, so that party also got harmed and the first party's insurer also was enriched by getting off the hook for part of the amount they should have paid. The reason the court's ruling makes sense is that even though the law requires you to sue (and obtain a judgment against) the party who hit you, it is not the other driver but his insurance company that actually pays the bill. So you've got 2 injured parties, 2 insurers happily collecting premium payments, and zero (or reduced) payout by the insurers if they are allowed to claim a setoff against each other.
Setoffs work fine if it's really the 2 parties suing each other who would have to pay out of their own pockets; the concept of setoff avoids the necessity of a kindergarten-like transaction of "I'll pay you $1, then you pay me back the same $1" which winds up being the same thing as if the 2 parties just call it even and fugeddaboudit. But if it's the insurers who would have to pay, all that happens is the insurers get to keep the money they otherwise would have paid to the OTHER person who was injured by their insured, and that injured person winds up being denied all or part of the recovery he was awarded.
Here's a simplified example:
Dick and Jane collide.
Dick and Jane both have liability insurance, Dick with Allstate and Jane with Nationwide.
The law of the state where the crash happened applies "comparative" negligence, so that Dick and Jane can each successfully sue anyone else whose negligence contributed to causing their injuries, even if the injured plaintiff is also partly at fault for causing his or her own injuries. The law will simply reduce the plaintiff's recovery by the percentage of his own negligence that contributed to his own injury, but will still award him a money judgment against the other negligent parties.
Dick sues Jane for negligently injuring him.
Jane sues Dick for negligently injuring her.
The 2 cases are consolidated for trial (or one party's injury claim is initially brought as a counterclaim in the suit originated by the first party to file, which is practically the same thing).
At trial of Dick's claim, the jury determines that Dick has injuries worth $30,000 to which Jane's negligence was a contributing cause (and thus, for which Jane is liable), but also finds that Dick is 50% at fault for causing the crash and, hence, for causing his own injuries. So, Dick is awarded a judgment against Jane, for her negligence that injured him, in the amount of $15,000 (50% of the value of HIS injury). Jane's insurer, Nationwide, promptly pays $15,000 to Dick.
The same jury also tries Jane's claim, and finds that Jane has injuries worth $20,000, that Dick is liable for negligence that contributed to causing those injuries, and that Jane is also 50% responsible for her own injuries. So, Jane is awarded a judgment against Dick in the amount of $10,000 (50% of the value of HER injury), Dick's insurer, Allstate, promptly pays $10,000 to Jane.
Or, before the insurers have to pay, should the judge throw together the 2 jury verdicts ($15,000 to one, $10,000 to the other) and apply them as a setoff to each other, entering a single judgment in Dick's favor for the difference, i.e. $5,000 against Jane? No, he shouldn't.
Is that result the same as if Dick and Jane had no insurance? No, it isn't. The idea of setoff arose because if Jane simply handed Dick $15,000 and then Dick gave her back $10,000 of that money, that would be the same as Jane handing Dick $5,000 in the first place. That's what a setoff is, avoiding the need for the actual exchange of money where it's a wash or a partial wash. But applying setoff to Dick and Jane's actual case means that Dick gets $10,000 less than he should have, Jane gets nothing where she should have gotten $10,000, and Allstate and Nationwide both get to keep the premiums they charged to Dick and Jane but walk away $10,000 richer each than they would have been if there had been no setoff.
Clear now? .
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I'm having difficulty figuring out exactly to what extent the parties are harmed
> and the insurance companies enriched [by applying a mandatory setoff where both parties who sue each other are insured].
Which part don't you get? One of the injured parties got nothing, even though he should have won a judgment and the other party's insurance should have paid it. So that party was harmed, and the opponent's insurance company was enriched. And the other party's judgment got reduced by the amount of the first party's judgment, so that party also got harmed and the first party's insurer also was enriched by getting off the hook for part of the amount they should have paid. The reason the court's ruling makes sense is that even though the law requires you to sue (and obtain a judgment against) the party who hit you, it is not the other driver but his insurance company that actually pays the bill. So you've got 2 injured parties, 2 insurers happily collecting premium payments, and zero (or reduced) payout by the insurers if they are allowed to claim a setoff against each other.
Setoffs work fine if it's really the 2 parties suing each other who would have to pay out of their own pockets; the concept of setoff avoids the necessity of a kindergarten-like transaction of "I'll pay you $1, then you pay me back the same $1" which winds up being the same thing as if the 2 parties just call it even and fugeddaboudit. But if it's the insurers who would have to pay, all that happens is the insurers get to keep the money they otherwise would have paid to the OTHER person who was injured by their insured, and that injured person winds up being denied all or part of the recovery he was awarded.
Here's a simplified example:
Dick and Jane collide.
Dick and Jane both have liability insurance, Dick with Allstate and Jane with Nationwide.
The law of the state where the crash happened applies "comparative" negligence, so that Dick and Jane can each successfully sue anyone else whose negligence contributed to causing their injuries, even if the injured plaintiff is also partly at fault for causing his or her own injuries. The law will simply reduce the plaintiff's recovery by the percentage of his own negligence that contributed to his own injury, but will still award him a money judgment against the other negligent parties.
Dick sues Jane for negligently injuring him.
Jane sues Dick for negligently injuring her.
The 2 cases are consolidated for trial (or one party's injury claim is initially brought as a counterclaim in the suit originated by the first party to file, which is practically the same thing).
At trial of Dick's claim, the jury determines that Dick has injuries worth $30,000 to which Jane's negligence was a contributing cause (and thus, for which Jane is liable), but also finds that Dick is 50% at fault for causing the crash and, hence, for causing his own injuries. So, Dick is awarded a judgment against Jane, for her negligence that injured him, in the amount of $15,000 (50% of the value of HIS injury). Jane's insurer, Nationwide, promptly pays $15,000 to Dick.
The same jury also tries Jane's claim, and finds that Jane has injuries worth $20,000, that Dick is liable for negligence that contributed to causing those injuries, and that Jane is also 50% responsible for her own injuries. So, Jane is awarded a judgment against Dick in the amount of $10,000 (50% of the value of HER injury), Dick's insurer, Allstate, promptly pays $10,000 to Jane.
Or, before the insurers have to pay, should the judge throw together the 2 jury verdicts ($15,000 to one, $10,000 to the other) and apply them as a setoff to each other, entering a single judgment in Dick's favor for the difference, i.e. $5,000 against Jane? No, he shouldn't.
Is that result the same as if Dick and Jane had no insurance? No, it isn't. The idea of setoff arose because if Jane simply handed Dick $15,000 and then Dick gave her back $10,000 of that money, that would be the same as Jane handing Dick $5,000 in the first place. That's what a setoff is, avoiding the need for the actual exchange of money where it's a wash or a partial wash. But applying setoff to Dick and Jane's actual case means that Dick gets $10,000 less than he should have, Jane gets nothing where she should have gotten $10,000, and Allstate and Nationwide both get to keep the premiums they charged to Dick and Jane but walk away $10,000 richer each than they would have been if there had been no setoff.
Clear now? .
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
CPA expert and prvilege, part 2
On Nov 3, 8:23 am, "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
> Assuming your friend was employed by the wife's attorney, she should
> talk to that person about it, and follow his directions.
Nothing wrong with that advice, generally speaking. But she should not follow his advice if he tells her to jump off a bridge, literally or figuratively. If she has the slightest inkling she may be getting set up as the fall guy if this little hide-the-pea shell game breaks open, she should consult her own independent attorney and follow _his_ advice.
> She has to give the deposition.
Agreed. Assuming she was an expert witness who was retained and named to the other side as someone the wife intended to have testify at trial, if the matter were to go that far.
If she was instead what is called a "consulting" expert, one whose only role is to advise the attorney and his client behind the scenes and who is _not_ expected to testify, the result may be different; in MD, such a purely consulting expert does not even have to be named to the other side, much less made available for deposition. But if so, her knowledge would be shielded by the "attorney work product" privilege, which is NOT the same as "attorney-client privilege".
The reason I doubt that this particular CPA is such a mere "consulting" expert in this case, is that OP (Dick Adams) relates that her figures and conclusions were presented to the other side as part of the evidence the wife intended to rely upon to support her position in the divorce matter, and the opposing attorney knew of her existence by name so he could note her deposition -- which probably means she was identified to him as a testifying expert. That makes the opinions the CPA expressed, and the factual basis for them, fair game for deposition and cross-examination in advance of trial.
> And she might well claim attorney-client
> privilege, if the lawyer recommends that she do so.
The privilege, if any exists, is not hers to claim. She should not go out on a limb and try to play advocate; she is supposed to be an independent, dispassionate expert. If she is asked a particular question at deposition which the wife's attorney believes is covered by any applicable privilege, the attorney will object AND will instruct her not to answer. Then it is the attorney's bad faith, not hers, that may come to light later on.
Although, I must say that if the CPA knew about the hidden assets and would normally have taken them into account in reaching her conclusions, but purposely failed to include them in her reported opinion, she may be in violation of CPA ethics whether or not the wife's attorney claims privilege. To me, such a deception by silence, if she knows her inadequate and incomplete figures are being presented to the other side as complete, negates the whole purpose of having a supposedly independent audit of a person's financial status by a CPA, if the CPA fudges the figures to deceive an opponent.
> But of the husband
> has an attorney who is half way decent, I suspect they'll find out the
> information anyway, one way or another.
Agreed. Which is why, even if the wife's attorney plans to instruct the CPA not to answer on the basis of privilege, the CPA would be taking a huge risk if she allowed her report based on only partial truth to be presented to the other side as complete and said nothing to contradict it. IMO the CPA should tell the wife's lawyer that either he has to let her tell the truth about what she found out or she will withdraw from being the wife's expert.
As you might have guessed, I have very little tolerance for either weasel lawyers, or weasel experts. But let's be clear. An attorney who legitimately keeps the other side completely in the dark about a consulting expert, or about harmful facts that the client revealed to the attorney in confidence, is NOT being a weasel IMO, he is protecting his client. There is no duty to do the other side's investigative work for them by sharing attorney work product that is _not_ intended to be introduced in evidence, or to reveal a client's confidences. But an attorney who tries to get the best of both worlds, keeping the harmful facts secret while presenting an expert opinion to the other side as being one based on _all_ the applicable facts, is cheating the system by affirmatively deceiving the opponent and the court. Serious sanctions apply to such conduct.
And as for the expert, any expert of any kind who is willing to "bend" her opinion beyond the fairly limited bounds of reasonable and truthful "spin" (which consists of choosing her words carefully to show the true facts in the light most favorable to the client's case, but not fudging the underlying facts) has forfeited all credibility and shot herself in the foot as far as ever getting such an assignment again, if her deception comes to light. The members of the bar _do_ talk to each other, and they keep track of experts who have embraced such a Faustian bargain, and more than one of them has been driven out of the witness business.
I would love to debate, on this newsgroup, anyone who may feel differently.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Assuming your friend was employed by the wife's attorney, she should
> talk to that person about it, and follow his directions.
Nothing wrong with that advice, generally speaking. But she should not follow his advice if he tells her to jump off a bridge, literally or figuratively. If she has the slightest inkling she may be getting set up as the fall guy if this little hide-the-pea shell game breaks open, she should consult her own independent attorney and follow _his_ advice.
> She has to give the deposition.
Agreed. Assuming she was an expert witness who was retained and named to the other side as someone the wife intended to have testify at trial, if the matter were to go that far.
If she was instead what is called a "consulting" expert, one whose only role is to advise the attorney and his client behind the scenes and who is _not_ expected to testify, the result may be different; in MD, such a purely consulting expert does not even have to be named to the other side, much less made available for deposition. But if so, her knowledge would be shielded by the "attorney work product" privilege, which is NOT the same as "attorney-client privilege".
The reason I doubt that this particular CPA is such a mere "consulting" expert in this case, is that OP (Dick Adams) relates that her figures and conclusions were presented to the other side as part of the evidence the wife intended to rely upon to support her position in the divorce matter, and the opposing attorney knew of her existence by name so he could note her deposition -- which probably means she was identified to him as a testifying expert. That makes the opinions the CPA expressed, and the factual basis for them, fair game for deposition and cross-examination in advance of trial.
> And she might well claim attorney-client
> privilege, if the lawyer recommends that she do so.
The privilege, if any exists, is not hers to claim. She should not go out on a limb and try to play advocate; she is supposed to be an independent, dispassionate expert. If she is asked a particular question at deposition which the wife's attorney believes is covered by any applicable privilege, the attorney will object AND will instruct her not to answer. Then it is the attorney's bad faith, not hers, that may come to light later on.
Although, I must say that if the CPA knew about the hidden assets and would normally have taken them into account in reaching her conclusions, but purposely failed to include them in her reported opinion, she may be in violation of CPA ethics whether or not the wife's attorney claims privilege. To me, such a deception by silence, if she knows her inadequate and incomplete figures are being presented to the other side as complete, negates the whole purpose of having a supposedly independent audit of a person's financial status by a CPA, if the CPA fudges the figures to deceive an opponent.
> But of the husband
> has an attorney who is half way decent, I suspect they'll find out the
> information anyway, one way or another.
Agreed. Which is why, even if the wife's attorney plans to instruct the CPA not to answer on the basis of privilege, the CPA would be taking a huge risk if she allowed her report based on only partial truth to be presented to the other side as complete and said nothing to contradict it. IMO the CPA should tell the wife's lawyer that either he has to let her tell the truth about what she found out or she will withdraw from being the wife's expert.
As you might have guessed, I have very little tolerance for either weasel lawyers, or weasel experts. But let's be clear. An attorney who legitimately keeps the other side completely in the dark about a consulting expert, or about harmful facts that the client revealed to the attorney in confidence, is NOT being a weasel IMO, he is protecting his client. There is no duty to do the other side's investigative work for them by sharing attorney work product that is _not_ intended to be introduced in evidence, or to reveal a client's confidences. But an attorney who tries to get the best of both worlds, keeping the harmful facts secret while presenting an expert opinion to the other side as being one based on _all_ the applicable facts, is cheating the system by affirmatively deceiving the opponent and the court. Serious sanctions apply to such conduct.
And as for the expert, any expert of any kind who is willing to "bend" her opinion beyond the fairly limited bounds of reasonable and truthful "spin" (which consists of choosing her words carefully to show the true facts in the light most favorable to the client's case, but not fudging the underlying facts) has forfeited all credibility and shot herself in the foot as far as ever getting such an assignment again, if her deception comes to light. The members of the bar _do_ talk to each other, and they keep track of experts who have embraced such a Faustian bargain, and more than one of them has been driven out of the witness business.
I would love to debate, on this newsgroup, anyone who may feel differently.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
CPA expert and attorney-client privilege
On Nov 2, 2:57 pm, Dick Adams <rdad...@panix.com> wrote:
> A CPA in the course of doing forensic accounting for an
> attorney in a divorce settlement obtained financial
> information detrimental to client's position on the
> property settlement.
The CPA is a hired expert witness in this situation. No privilege applies to any information shown to her.
<snip>
> The problem is that the husband's attorney wants to
> depose my colleague on how she arrived at her numbers
Sounds reasonable. Most attorneys want to depose the opposing witnesses, especially hired experts, before trial to find out what they are going to say, and also to dig for material that might be useful on cross-exam.
> and she does not want to do that.
It's not her choice. She's been identified in discovery as a hired expert witness, and the opposing attorney can depose her if he chooses.
> When I suggested the
> attorney-client privilege extended to her, she replied
> she wasn't use to giving ambiguous/half-truth answers.
As well she shouldn't. Don't want to get the CPA code of ethics brought down on her, much less a conviction for perjury.
> I suggested she have her partner handle the deposition.
Is her partner the one who's going to testify? If not, what's the point of deposing the partner?
> Her problem is she has a partner in name only - they
> have an LLC for the purposes of sharing office overhead.
That doesn't matter if the point is to inquire into the various individuals' knowledge of facts. It does matter if CPA #1 is the one wife hired as her forensic accounting expert, and if partner #2 had nothing to do with that and therefore no knowledge of the situation, why would anyone want to depose the partner?.
> Shouldn't the privilge extend to her partner regardless?
No. The whole point of revealing facts to an expert witness is to provide a basis for the expert's opinion. If the expert were to be given partial and inaccurate information by the wife's attorney, that would open her up for cross-exam regarding the flimsiness of the basis for her opinion, but the CPA witness would not actually be lying if she said that, based on the information known to her, wife's net worth was $X. However, since the CPA expert was in fact given full access to wife's records, and does in fact know about the hidden assets, she would be lying if she testified (at trial, OR at deposition) that wife's net worth was $X if she knew that the real figure was several million higher than $X. Aside from the unpleasant prospect of having to keep Martha Stewart company after a conviction for perjury, perhaps an even more compelling reason for the CPA to tell the truth is that she could be debarred and de-certified from the CPA profession, or what might even be worse for her if forensic work is a major part of her practice, she could be barred from testifying by the court, and as a result (since every other potential client OR opponent would know about her lack of candor, and other courts would likely follow suit) her whole forensic practice would go down the toilet. An expert who has been shown to have no honesty or integrity is worthless.
> This is in Maryland.
IMO the same rationale applies everywhere, but experts are not entitled to claim attorney-client privilege in MD.
Perhaps this is a good time for a BRIEF review of the A-C privilege in general. The privilege does NOT mean that an attorney can counsel his client to lie, or that the attorney can hide factual information made known to the attorney by the client if those facts are relevant and discoverable the pending suit, are asked for in discovery, and are known to the attorney.
The only thing the A-C privilege protects against is, discovery of the content of the actual COMMUNICATIONS between the client and the attorney where those communications are for the purpose of giving or obtaining legal advice. IOW, it is not proper to ask a witness (wife) in discovery, :What did you tell your lawyer about what investments you have an interest in and what they are worth?" However, it is perfectly proper, and must be answered truthfully, to ask, "What investments do you have an interest in and what are they worth?" If either the lawyer, or the wife, lies in answering that proper question, serious consequences could ensue (assuming, of course, that they are eventually found out; which happens more often than you might think). For virtually any lawyer who is not already so crooked that disbarment is just a matter of time, it is NOT worth getting his ticket punched to save a few bucks for one measly client by lying to the court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> A CPA in the course of doing forensic accounting for an
> attorney in a divorce settlement obtained financial
> information detrimental to client's position on the
> property settlement.
The CPA is a hired expert witness in this situation. No privilege applies to any information shown to her.
<snip>
> The problem is that the husband's attorney wants to
> depose my colleague on how she arrived at her numbers
Sounds reasonable. Most attorneys want to depose the opposing witnesses, especially hired experts, before trial to find out what they are going to say, and also to dig for material that might be useful on cross-exam.
> and she does not want to do that.
It's not her choice. She's been identified in discovery as a hired expert witness, and the opposing attorney can depose her if he chooses.
> When I suggested the
> attorney-client privilege extended to her, she replied
> she wasn't use to giving ambiguous/half-truth answers.
As well she shouldn't. Don't want to get the CPA code of ethics brought down on her, much less a conviction for perjury.
> I suggested she have her partner handle the deposition.
Is her partner the one who's going to testify? If not, what's the point of deposing the partner?
> Her problem is she has a partner in name only - they
> have an LLC for the purposes of sharing office overhead.
That doesn't matter if the point is to inquire into the various individuals' knowledge of facts. It does matter if CPA #1 is the one wife hired as her forensic accounting expert, and if partner #2 had nothing to do with that and therefore no knowledge of the situation, why would anyone want to depose the partner?.
> Shouldn't the privilge extend to her partner regardless?
No. The whole point of revealing facts to an expert witness is to provide a basis for the expert's opinion. If the expert were to be given partial and inaccurate information by the wife's attorney, that would open her up for cross-exam regarding the flimsiness of the basis for her opinion, but the CPA witness would not actually be lying if she said that, based on the information known to her, wife's net worth was $X. However, since the CPA expert was in fact given full access to wife's records, and does in fact know about the hidden assets, she would be lying if she testified (at trial, OR at deposition) that wife's net worth was $X if she knew that the real figure was several million higher than $X. Aside from the unpleasant prospect of having to keep Martha Stewart company after a conviction for perjury, perhaps an even more compelling reason for the CPA to tell the truth is that she could be debarred and de-certified from the CPA profession, or what might even be worse for her if forensic work is a major part of her practice, she could be barred from testifying by the court, and as a result (since every other potential client OR opponent would know about her lack of candor, and other courts would likely follow suit) her whole forensic practice would go down the toilet. An expert who has been shown to have no honesty or integrity is worthless.
> This is in Maryland.
IMO the same rationale applies everywhere, but experts are not entitled to claim attorney-client privilege in MD.
Perhaps this is a good time for a BRIEF review of the A-C privilege in general. The privilege does NOT mean that an attorney can counsel his client to lie, or that the attorney can hide factual information made known to the attorney by the client if those facts are relevant and discoverable the pending suit, are asked for in discovery, and are known to the attorney.
The only thing the A-C privilege protects against is, discovery of the content of the actual COMMUNICATIONS between the client and the attorney where those communications are for the purpose of giving or obtaining legal advice. IOW, it is not proper to ask a witness (wife) in discovery, :What did you tell your lawyer about what investments you have an interest in and what they are worth?" However, it is perfectly proper, and must be answered truthfully, to ask, "What investments do you have an interest in and what are they worth?" If either the lawyer, or the wife, lies in answering that proper question, serious consequences could ensue (assuming, of course, that they are eventually found out; which happens more often than you might think). For virtually any lawyer who is not already so crooked that disbarment is just a matter of time, it is NOT worth getting his ticket punched to save a few bucks for one measly client by lying to the court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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