HOW AGGRESSIVE SHOULD YOUR LAWYER BE?

Most people looking for a lawyer, because a fight is brewing, have never had any prior involvement with a lawyer. You would be surprised how many of these new litigants come in with impressions formed from movies and TV. But the media depiction of lawyers is about as accurate as the media’s depiction of everybody else . . . not very accurate.

So what should you be looking for when you think you might need a lawyer.

Many think they should be looking for the most “aggressive” lawyer they can find. After all, “litigation is war”, right? And you need a ferocious warrior. At some point, litigation does become war, so it is true you need someone who is capable of taking the gloves off when that time comes.

But it is well into litigation before the process becomes war-like, and very few cases get very far into that stage of the process. For the most part, litigation is more about relationships than it is about war, and your lawyer, if he/she is going to be effective, must be capable in that area as well.

So take a look at the relationships in your life. What works and what does not? Do you vibe to people who are extremely knowledgeable, able to talk at length about any subject, and always sounds right? Or do you gravitate to the person who listens to what you have to say and then speaks to what you have to say rather than just his/her own thoughts? If your lawyer cannot hear you, and feel your situation, get away, even if that person is “impressive”.

And when confrontation arises in life, what seems to work? If you want someone to do something for you, does it work better to pin that person in a corner and browbeat them? Or is it more effective to stand by your position but back off enough for the other person to have the freedom to make his/her own choice about what you want? Not many – or any – people respond well to being cornered. It is the same in law: unless your goal is simply to get your rocks off, you’re far more likely to get the result you want by respecting the other person’s point of view as well. Good lawyers know this.

Law is a people business. Both between attorneys and their clients, and between opposing parties. Pick your lawyer like you pick the people you want to keep around you in life.

When the service you need gets switched from one provider to another

Occasionally, I will get a call from someone who has purchased a service from one provider and is then told that another provider has taken over the contract.  Might be a pool service, or a security system provider, or a marketer, or a lawyer.  I don’t get more calls because a lot of people don’t care.  But the ones who call are the ones who do care. 

They usually want to know how to get away from the new provider.  Maybe the new provider does not have a great record.  Maybe the new provider starts deemphasizing or taking away aspects of the service that the customer liked. 

My answer usually contains three parts . . .

First, what does the contract say about “assignment” from one provider to another?  If it says nothing, you can just leave.  If it gives the provider the right to assign his interests, you are stuck. .

Second, . . . unless the new provider breaches the contract in some way.  Those services the new provider is cutting back on?  Check the contract.  If those services are provided for in the contract, refusing to provide them constitutes a breach, and the customer can walk away.

Third, do not sign a contract in the first place without first at least skimming that fine print to see if there is an assignment section giving the provider the right to assign the contract. 

And, of course, I will always recommend that you spend the few dollars needed to get a consultation with a lawyer who does contract litigation, because every situation is different, and sometimes the difference matters.

EMPLOYER-EMPLOYEE: THINGS YOU DIDN’T KNOW WHICH MIGHT KEEP YOU OUT OF COURT – PART II

This is the second blog offering five points which most employers and employees do not know which might keep them out of the court if they do.

“In my interviewing, as long as I’m asking the same questions of the white guy and the black guy and the Asian guy, it does not matter what I ask about.”  Wrong.  The general rule of thumb should be “If you don’t need to know, don’t ask.”  For instance, if you ask about present or past illnesses or disabilities, you may be engaging in disability discrimination.

“I know that if I fire an employee, I have to pay her what I owe her in 3 days.”  Not anymore.  If she was fired, you have 7 days to pay her.  If she quit, you can wait until her next paycheck.  But remember that the pay must include any non-discretionary benefits (like vacation or bonuses, as long as they were expected by the employee and not discretionary to the owner).

“Under the Constitution, what I have on my work computer is my business, not the employer’s.”  Wrong.  All communications and stored matter on and through your computer belong to the employer, not the employee, not matter how sensitive and personal.

“If an employee needs to care for a family member, I have no choice but to give them unpaid leave under the Family Medical Leave Act.”  Not true.  First, it is not just any family member: cannot be an in-law or even a step parent.  Also, the FMLA only applies to your company under certain situations, including over 50 employees.  The Act also applies to employees only under certain circumstances, including the requirement that the employee have worked 1250 hours of actual time (i.e., not PTO) during a prior 12-month period.  And the employer can require medical documentation of the condition’s seriousness before granting the leave.

I don’t have to put up with an employee who is constantly complaining outside of the company about discrimination.”  Think hard before letting that person go.  Both Arizona and federal law make retaliation against a whistleblower illegal.  For instance, the EEOC reports that almost 40% of its cases are brought against employers who retaliated against their whistleblowing employees.