This is when somebody sues the company and also wants to make the owner(s) personally liable. But a corporation (S Corp., C corp. or LLC) is specifically designed to prevent that. So they have to “pierce” the protection. Different states have different standards for what you have to do to pierce the protection offered by the corporation (or LLC) form of business. So check carefully.
It will come as no surprise to attorneys, but may to many lay readers, that the Rules of Procedure used in State and Federal courts are different. Some of these differences can really reach out and hurt you. For example, in many states and Federal Courts, Summary Judgment (a procedure used when there is no disagreement about the key material facts) is allowed. But in Virginia, for example, it is not.
Another example is the famous “Motion to Reconsider” which is frequently used in state courts when you think the Judge make a mistake and hope that he will fix it once you call it to his attention. In some states, you have to ask the Judge to reconsider before you can file an appeal. But in Federal Courts, the right to ask the Judge to reconsider is severely limited: you must show newly discovered evidence or a new court case which makes law on your side. Otherwise, your only recourse is to appeal.
Similarly, Rules of Evidence can vary tremendously. Some states will allow testimony by affidavit (especially for Summary Judgment), others will not (like Virginia). Some states follow the Federal Rules on expert witnesses and the role of the judge, others do not.
So what’s the bottom line for the lay person? Just because it can be done in one court does not mean it can be done in another court, in another jurisdiction.
Well, it certainly slows things down doesn’t it. But what else should you do? It depends. (Don’t you hate it when lawyers say that?) But really it does. Is the problem email or that they won’t put anything in writing? If the former, just use snail mail and fax. It’s slow but it does work.
If they won’t put anything in writing, you have a different problem–a credibility and trustworthiness problem. If you cannot trust the other lawyer, costs and difficulty rises exponentially.
Now let me be a devil’s advocate here for a minute and explain why some do not use email in litigation.
1. Knee-jerk responses happen much more easily via email and can haunt you forever.
2. Email can easily be intercepted by parties who shouldn’t have access to them.
3. Emails are very easy to modify/manipulate/change. Unless you know a great deal about computers and go in and check coded headings, an unethical person can easily turn an email into something it wasn’t originally.
4. Nothing like good old solid paper with a real signature to make both the sender and recipient sit up and take notice.
If the other side is representing herself, well, I only use paper and snail mail. It’s more expensive but worth it.
This is embarrassing.
Over a year ago, this story appeared and I didn’t post about it. I should have.
All Ciavarella juvie convictions vacated
By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
HARRISBURG – Seeking to remedy what it deemed a “travesty of justice,” the state Supreme
Court on Thursday vacated the convictions of all juveniles who appeared before former Judge Mark
Ciavarella from 2003 to 2008 and barred retrials in all but a small portion of those cases.
The story goes on. For those who want to follow it up here’s the link:
http://www.timesleader.com/news/All_Ciavarella_juvie_convictions_vacated_10-30-2009.html
This is also embarrassing for the justice system. I have clients to tell me that “the Judge was
bought” or “the Judge hated me” and I usually tell them that’s not true. But sometimes it is. As
attorneys we just have to be careful of it. I wish it weren’t true, even once.
I get calls like this one all too often:
(Potential Client) PC: “My business partner has apparently been siphoning away business by creating
a new business entity with a similar name to the business we own together. Then he has our clients
make their checks payable to the new entity. I think he’s taken hundreds of thousands of dollars.
What do I do? I want him to pay!”
So the caller has a choice. But which is more important? Which is faster? Which will give more
satisfaction? It’s hard to know. But careful questioning can help the PC figure it out.
But keep in mind:
1. once prosecutors get involved neither you nor your get to control how the case proceeds
anymore.
2. The combination of civil lawsuits plus a criminal indictment is attractive because each can
feed off the other. Especially if the civil lawsuit goes first because of discovery rules. (Then
package what you learn & send it to the prosecutor.) Sometimes a criminal case will result in
a plea deal with restitution as part of the package.
3. If PC starts raising the criminal issue in depositions (or just casual talk) he could
a. destroy his eviscerate his case –the other side might plead the 5th Amendment.
Worse, if the local gendarme do take the case, the “partner” could delay the lawsuit
until after the criminal case is over.
b. Worse, depending on local state laws, PC could herself, be guilty of extortion
(threatening criminal prosecution to gain an advantage in civil litigation).
4. Here in the DMV (D.C., Md., and Va.) police and local prosecutors might not be all that
interested in the case, they could easily see it for what it is–a business dispute. But if there is
no victimization of the general public or a stranger, well …. They may not care very much.
If you are the client, it’s easy: “You are fired. Here’s a check for what I owe you. Give me my file.”
If you are the lawyer, it’s a little more difficult.
• do it in writing, FedEx or Certified, Return receipt requested
• use a neutral reason like “I can no longer meet my ethical obligation to zealously represent you.”
• prepare a letter for the client to sign terminating the relationship
• have the client sign the letter
• file papers with the Court withdrawing from the case and attaching the signed letter from the client;
• wait for the court to agree.
• return any unearned money from your trust account, if there is none send a final bill (and pray it gets paid) and
• turn over the file to the client after getting a receipt.
Sometimes the attorney-client relationship just doesn’t work. It can be personality issues,
financial issues, control issues or almost any other issue. But what’s the best way to end the
relationship? This is especially true when you are in the middle of litigation.
Key warning signs that it won’t work for the attorney:
• shouting/screaming/whining or crying
• threatening not to pay
• refusing to pay
• threatening a bar complaint
• refusing to take the lawyer’s advice
• (if there are multiple clients) in-fighting among the clients
• not cooperating with the lawyer’s requests for information
• calling late at night or on weekends for “emergencies”
• constantly challenging the lawyer and/or acting like you don’t trust her.
Key warning signs that it won’t work for you, the client:
• lawyer doesn’t communicate with you
• you don’t trust the lawyer
• you don’t think the lawyer is doing the job correctly
• you don’t think the lawyer understands what you want done
• you think the lawyer is overcharging you
I found this spreadsheet on the web at http://jhische.com/workforfree.html
It lays out pretty well when I will work for free.
In essence, when requested, if you do not deny a fact within a specified time period (it varies between 10 and 30 days depending on your jurisdiction) it is automatically deemed admitted. But what does “deemed admitted” actually mean and how should you get the Court to do this?
It seems that you should not have to do anything more if the other side does nothing. But some judges and courts disagree. So the lawyer may choose to file a Motion to have the Admissions recognized by the Court. This can, however, tip off the other lawyers and the judge may give them more time to Answer. Under the Rules, as I am familiar with them, judges shouldn’t do this. But they do. Generally, what I do is make the Motion to the Judge. That way, if I encounter a judge who asks did I seek a court order that they be admitted (which absolutely should NOT be required per the Rule, but which nonetheless has happened) I have an answer. You need to do a risk-reward analysis on this, though, to decide which way to go.
If the lawyer for the other side has failed to answer Interrogatories or respond to Document Requests, (or the responses are inadequate) one way to get things admitted is to include the request in a motion to compel. This provides a little cover, hopefully downplaying a bit the significance of what you’re requesting as to the Requests to Admit.
Sometimes you have to send a Certified Letter to someone who refuses to sign for them. Usually it’s to prove that you complied with the requirement that you make a “demand” to avoid litigation. Well, there are several ways to do this:
a. The first way is to send it by FedEx. Very few people will refuse to sign for a FedEx envelope. And FedEx keeps excellent records that can be produced in Court as needed.
Sometimes you have to send a certified letter to purchase generic cialis. This email confirms that you want to purchase this anti-impotence medicine.
b. Another way is to send the letter Certified, Return Receipt Requested, and at the same time and from the same post office, send the identical letter with Delivery Confirmation. Delivery Confirmation in where the Mail Carrier certifies that s/he delivered the letter to the stated address. So if the letter with Delivery Confirmation does not come back, but the Certified, RRR, letter does, you still have proof you sent and they received the letter.
