There are two kinds of defamation: slander (verbal defamation) and libel (written defamation).  So what is “defamation?”

There are 2 types of defamation: defamation of a private person and defamation of a public person.  (I’m *really* leaving out a lot of subtleties here, subtleties that are incredibly important.)

For public persons as plaintiffs, the standard is “actual malice” — that the defendant knew what he communicated was false or exhibited ‘reckless disregard for the truth’ — i.e. didn’t even try to check it out. For private people, the standard is mere negligence.  Obviously, then, the public/private question becomes a threshold matter. If you’re found to be a public person (i.e. in cases where there’s actually some question as to whether someone is sufficiently well-known), you can pretty much kiss your case goodbye because actual malice is a really high hurdle.

If you are a private person, or a public person where your case can past the “actual malice” test, then defamation is

(1)        publication (i.e. communication to a third party — could be one person or a whole world full of people);

(2)        that the communication is about the plaintiff (i.e. s/he is identifiable. Even if the person’s name isn’t used, if s/he is sufficiently described that people can figure it out, that counts);

(3)        Plaintiff suffers actual financial (or other) damages which you must prove;

(4)        the communication must be FALSE (this is the element upon which many libel suits fail); and

(5)        the defendant must be at fault (intentional or negligent conduct).

This YouTube video will help.  (Amazing what you can do with Legos isn’t it?)

http://www.youtube.com/watch?v=xi5LESZ7_Kc

If you get a call saying that a law enforcement officer (or attorney) wants to talk with you, call an attorney right now.  Don’t say another word.  If you doubt the wisdom, go to you tube and watch this:

http://www.youtube.com/watch?v=i8z7NC5sgik

In my experience, investigators NEVER invite you in telling you that you are in trouble, or are suspect, it is ALWAYS to ‘clear up’ something.

Investigators rely on the good will of people, intimidation, and social expectations to wrestle people into hanging themselves.  Don’t do their jobs for them.  And don’t deliver your client to them.  If you think that you are a match for their psychobabble, I assure you that it is likely that even YOU as an attorney are no match for them one on one. The worst part is that often they aren’t so concerned about finding out the truth or finding justice in a matter, as they are concerned with making a charge stick long enough to get a plea or go to trial.  And with the feds, I promise you, with ten thousand felonies, how do you avoid them all?  A large percentage of the population has committed felonies they don’t even know about.

Well, generally it means that the deadlines in the contract to do (or not do) something must be adhered to.  If you don’t meet those deadlines, you have breached the contract and penalties apply. What kind of penalties?  That’s a different post.

But what if the contract doesn’t have any specific deadlines?  This is when it gets tricky.  Now it depends on what the contract is about?  Buying or Selling a home?  Obtaining a loan?  Making a delivery?  Each specific fact will affect the decision.  One thing that will affect the decision is whether or not a good faith effort has been made to meet the deadline you agreed to.

Seem confusing?  You are correct.  It can be hard to tell.

First, write and ask for convenient dates.  Make a record.  If you don’t get any convenient dates, or they don’t respond to you, then the answer depends on 1 question: Are you trying to take the deposition of a party to the lawsuit or a witness?

If you want to depose a party, just notice the deposition for a convenient date/time/place.  If they don’t like it, too bad.  Let them get a protective order if they can.  If they don’t show up, run (don’t walk) to the Court and demand an Order compelling testimony plus costs.

If you want to depose a witness, send a subpoena along with the usual notice for the deposition.  If you know the witness will not show up (or if the witness will assert some sort of privilege) document it and then Run to the Court for an Order compelling testimony.

In both cases, make the written record and give it to the judge along with your Motion.

When you file a lawsuit in DC against a DC corporation you have to serve the corporation or one of its officers.  You can do it by US Mail, Certified, Return Receipt Requested.  But if an unauthorized person signs for the letter with the legal documents, you have a problem: There is caselaw which specifically holds that, especially against the D.C. Government, notice of a lawsuit is improperly served unless the exact, specifically authorized person, signs.  I’ve known cases to be thrown out of court for this reason.  So what I do is *serve* by certified mail containing D.C. Form 4 (the Waiver of Service form).    If Form 4 and accompanying papers are used, you must wait 60 days (90 if the D.C. Gov’t).  If you don’t use Form 4, you need pay the money and use a process server.  Why use Form 4?  I always use the Waiver of Service Form & send it certified. Then they are liable for the costs of service if they don’t respond.

It’s who has to prove what in any lawsuit. For example, if you are sued for a credit card debt, even if you did have a credit card, they will have to prove the following:

• you used the specific credit card (number) account;
• they are the people who issued the credit card;
• if they are not the people who issued the credit card, that they have the right to collect on the account (if they bought the account, they have to prove each and every step of that transaction to prove their right to collect)
• the exact amount they say you owe, including each and every fee
• their right to interest, the amount of interest, their right to attorney’s fees
• the accuracy of the calculation of interest (annual, quarterly, daily compounding etc.)
• how much you paid on the account, when they gave you credit for those payments

As always when you ask a lawyer a question, the answer is “it depends.”  So what does it depend on?  No litigator ever wins every case and judges, lawyers, etc. understand that you don’t get to choose the facts of your case; someone is on the losing side of every case that goes to trial. That’s what makes settlement attractive and what makes litigation fun for me.

But after our first meeting I’ll try to give the client an assessment of the odds: 1 in 5 that we’ll win, 1 in 5 that we’ll lose, etc etc.  But judges and juries have minds of their own and you never know what new evidence will come to light.  There are inevitably other facts, facts the client doesn’t know or feels are irrelevant or not important, that will have a major impact on the case later on.

Still, if the client wants to pay me, and the case and arguments are not frivolous, and the client is not asking me to lie or breach any ethical rules, then I probably will take the case.  As long as I don’t make absurd arguments or do anything sanctionable, then there is nothing wrong with losing (as long as the case is not on a contingency).

Actually, this is fairly easy.  First, always, absolutely always follow the corporate forms your lawyer told you to do when you started the business. This means that you should hold annual meetings, take minutes, record votes by the Board of Directors, etc etc.  Do them all. Keep written records of them all. Even if there is only 1 shareholder, 1 member of the Board of Directors, 1 employee be sure to do them all.  If you don’t you will be in big trouble.  It also helps to keep the company’s finances separate from your personal finances.  That includes separate Taxpayer Identification numbers.  Be sure to file separate tax returns too.

If you are not sure what to do, check with a corporate lawyer.  Don’t ask your accountant–ask the lawyer who helped you set up the company.  Don’t have one because your accountant did it?  Find one.  They are very useful.