Attorneys & Lawyers & Counselors, Litigation of Business | Business of Litigation

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MKT

Lawyer agrees to disbarment for abdicating law firm to nonlawyersLaw_Firm_Image

A San Diego lawyer has agreed to be disbarred for allowing a nonlawyer to open and operate a law firm in his name that offered credit-repair services. Ernest George Georggin, 68, agreed to give up his law license and to pay $90,000 in restitution, plus interest, to 25 former clients of the law firm who filed complaints, according to a California State Bar press release, U-T San Diego and the Metropolitan News-Enterprise. According to a stipulation of facts, Georggin formed Georggin Law with nonlawyer Eric . . .

. . . keep reading here via Lawyer agrees to disbarment for abdicating law firm to nonlawyers.

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Attorneys & Lawyers & Counselors

Federal courts are open, but some stays have been granted

Come on, Baby! Let’s stay us some civil actions between private litigants, Baby!  Come on . . .  Got a brief due Thursday, so let’s get us some blanket stays going on . . . Baby!

Why lawyers are not lyricists.

MKT

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The federal courts may be open for business during the government shutdown, but business there is anything but routine. Criminal litigation continues without interruption, Third Branch News reports. But the Justice Department has asked PDF U.S. Attorneys across the country to curtail or postpone civil litigation that is not absolutely necessary. As a result, federal prosecutors are filing motions for stays of litigation on a case-by-case basis. And judges’ responses to such requests have varied greatly. Chief Judge Loretta A. Preska has issued an order PDF staying all civil cases in the Southern District of New York except for civil forfeiture cases in which federal prosecutors have appeared as counsel. The stay will be lifted the first day after the president signs a budget appropriation into law. Preska was apparently responding to a letter from Preet Bharara, the U.S. Attorney . . .

via Federal courts are open, but some stays have been granted.

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Appealing Appeals Applied, Attorneys & Lawyers & Counselors

Practice Tip for Aspiring Appellate Attorneys

courthouse-1330873-mIf you want a successful win/loss record* as an appellate attorney, always remember to only represent the Respondent when a case goes up on appeal.

In 2012, US federal courts of appeal granted the Appellants reversals in only around 12% of all civil cases appealed out from federal district courts, considered federal trial courts.

Nationwide in 2008 (most recent data I found), the combined rate for US state intermediate appellate courts  (e.g., usually state “courts of appeal”) that reversed lower court decisions averaged out at only 15%.

Also nationwide in 2008, in cases appealed to a state court of last resort (e.g., usually a state “supreme court”) the cases affirmed outnumbered reversals more than two-to-one. While nationwide the same year, cases affirmed by state intermediate appellate courts outnumbered reversals at a rate of four-to-one.

Finally in 2008, leaving my local courts last, but certainly not considering them least, in deciding 147 civil and criminal appeals combined, the Supreme Court of Minnesota only issued reversals in about 14% of all appeals. Meanwhile, in Minnesota’s intermediate appellate court, the Court of Appeals decided 2,046 criminal and civil cases, with the Appellants doing slightly better by obtaining reversals about 16% of the time.

The numbers don ‘t lie. If you want to have the best possible win/loss record for your appellate practice, the odds are much higher if you only represent the party that prevailed at trial court level: The Respondent.

If your practice allows you to pick and choose cases on this basis, please leave a detailed comment below explaining for me how it’s done, because I sure don’t enjoy that luxury in my practice!

* Other outcomes may be considered a “win” or a “loss” as well, but are not incorporated in the above discussion in order to keep the definition of a “win” as clean, clear and indisputable as possible. The outcomes left out that could be considered either a “win” or a “loss,” depending on the interpretation of each particular case’s final result, can include cases where an appellate decision is issued that modifies a lower court’s decision (one way or the other), cases when an order is issued dismissing an appeal (for any number of reasons), cases when an Appellant voluntarily agrees to dismiss the appeal (usually with undisclosed reasons), along with many other potential outcomes that are never so neatly and distinctly defined that they fit in a classical “win” column or “loss “column.

MKT–MKT Law–Appellate Practice Information

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Attorneys & Lawyers & Counselors

Lawyer agrees to five-year suspension for advising client to clean up his Facebook photos

Don’t you think that maybe he should of advised his client to dump the Facebook page before starting the litigation?  Just sayin’ …… MKT

 

A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension. Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2. Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car. Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can . . .

via Lawyer agrees to five-year suspension for advising client to clean up his Facebook photos.

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Attorneys & Lawyers & Counselors

IMPORTANT LEGAL NOTICE–PLEASE READ!

I have been reminded that I must have one of those fancy legal disclaimers on this blog so that no one thinks I am offering or providing legal advice over the intertubes. So please click on the following link to review my new legal disclaimer page and help me to comply with this mandatory request (my legal disclaimer is also prominently linked to on the menu located above). Thank you.

LEGAL DISCLAIMER

 

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Attorneys & Lawyers & Counselors, Contractually Bound, Litigation of Business | Business of Litigation

I Personally Guarantee It!

1-satisfactionOver the past few months, I have had a few different cases where my client, an incorporated small business, either needed help with drafting (landlords) or negotiating (tenants)  a commercial lease agreement. In each case I try to impose, or conversely prohibit, a personal guarantee being a condition in the lease.   It is so standard to see a personal guarantee included in a lease that I am always amazed when it is absent. The exception, rather than the rule.

Most personal guarantees in commercial leases are the result of the landlord trying to minimize the inherent risks involved in renting property to a small business.  Since most small businesses have few, if any, liquid assets, the personal guarantee creates an extra level of protection for the landlord and helps assure that the lease will be fulfilled. Quite simply, the landlord is trying to make the agreement as secure as possible.

When a personal guarantee is agreed to it makes the individual signing the guarantee personally liable under the lease. This is prudent for a landlord just in case the tenant goes out of business, files for bankruptcy or otherwise can’t meet its financial obligations.  It is also a slick way to sidestep the personal liability shield that would otherwise insulate the owners of an incorporated business from this liability.

A savvy tenant, with something  to offer (even services or labor) can sometimes negotiate its way out of the requisite personal guarantee. But a sophisticated landlord will insist upon something else of value be put at stake instead. You can use UCC filings that cover a tenant’s business equipment, other assets, or even personal  property, and designate the landlord as the secured party. It is also possible to successfully omit personal guarantees under the right conditions. These situations may exist where the rental property is unique, yet fit for a tenant’s particular use, when the tenant has previously honored a lease with the same landlord and, of course, when the landlord has no concerns about the tenant’s solvency.

After all is said and done, a personal guarantee won’t be worth more than the paper it is printed on unless the guarantor is financially viable.  This brings me to the “moral of the story” got from an article I read today. It demonstrated a perfect example of a landlord doing everything possible, albeit somewhat after the fact, to try to make sure he would be able to collect the losses allegedly suffered from a default in a commercial lease. This applicable law in the case is technically distinct from a personal guarantee and is due to the particularities of partnership law (and demonstrates a darn good reason to operate as a corporation or LLC rather than as a partnership).

So, yesterday, the Am Law Daily reported on a case where a landlord is currently suing 450 attorneys, who were formerly partners at a large Manhattan law firm. In the lawsuit, the landlord alleges all of the partners are personally liable for the default in a commercial lease involving six floors of a high-rise office tower.

The lease runs through 2020 and, at one point in time, the landlord believed the default resulted in a loss of more than $45.45 million. Although the landlord only claims about $1.6 million damages now, there is still a lesson to be learned. That lesson is that you can never go overboard when trying to tie people personally to a lease in order to secure it.

You can read more the whole article here:  http://www.americanlawyer.com/PubArticleALD.jsp?id=1202621080749&Deweys_New_York_Landlord_Sues_450_Former_Partners#ixzz2g9PTUBqJ

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Attorneys & Lawyers & Counselors, Litigation of Business | Business of Litigation

So you’ve been served, huh?

I get a lot of calls that start off something like this, “Someone banged on my door last night and then handed me a legal-looking letter. The court file number is blank so I can ignore it, right?” I usually then ask them if it is two documents with the words “SUMMONS” and “COMPLAINT on them. Once they say yes, I tell the caller they just got served with a lawsuit and that it would be best to not ignore it.

In Minnesota, unlike most other states, an attorney can start a lawsuit without going to the courthouse and filing it there first.

As a result,court-pix there will not be a court file number on the  initial legal documents they got (pleadings)–YET.  Nonetheless, and as long as it is a typical civil state court action, the caller (now a “Defendant“) must serve a written answer to the allegations in the Complaint within 20 days. If they don’t, the person or business suing them can obtain a default judgment from the Court for the full amount of money requested in the Complaint. This is not good and can result in garnishment of wages, seizure of non-exempt property and levying on personal bank accounts.

After the caller/Defendant calms down, I usually ask them to e-mail or fax me a copy of the Complaint so I can see what the case is about.  Depending on the nature of the case, I then usually say they want to contact their insurance companies right away and see if the insurer will provide coverage for the claim, and perhaps more importantly, provide them with an attorney to defend the case.  If not, I am more than happy to help.

Some of the most important things I tell the Defendant (hopefully my new client) to do right away is to not talk about the case to anyone until they can meet with me first. If we do meet, initially we will discuss the details the case so I gauge how much, if any, potential liability they may be facing and what options may be available to us for resolving the case.

I always ask that the client gather up all documents that in may relate to the allegations in the Complaint and the whole case, to get me copies of the documents ASAP and to not throw anything away.  I also ask the client to get me copies of any e-mails related to the case and stress that it is extremely important that they do not delete any e-mails or other electronic information on their computers. I always explain that if any related computer files are deleted or modified (even if done for completely innocent reasons), it could be very harmful to the case. In these situations it is not unusual for the Plaintiff’s lawyer to find out and inform the Court about it. If that is the case, the Court could  wind up seeing the deletion of computer data (or any other evidence) in a negative light and hold the client responsible for destroying evidence.

If I am hired to defend the case, I am always completely honest about the risks and costs potentially involved and I insist that my new client be fully honest with me too. After all, I can not do my job and properly defend the case unless I know everything that went on before they were sued. Litigation can be grueling and, more often than not, any secrets that are not disclosed to me about the case at the beginning can come back to haunt the client before their case is over.

So basically, the most important things to remember if you get sued are to act quickly in contacting  your insurer and/or finding a lawyer to defend you. Remember to keep your mouth shut about the case and gather up and preserve all documents (whether on paper or in your computer) related to the case. And always be completely honest with your attorney and tell them everything that led up to the lawsuit.

Getting sued won’t be the end of the world, and if you take these simple first steps, the case will go much smoother for you. Keep in mind there are many ways to resolve a legitimate case through settlement, mediation and other ways. Likewise, cases that are not legitimate may be subject to dismissal.

No matter what your case is about, you are entitled to a vigorous,  strong and aggressive defense. Since the Plaintiff started the litigation, I make sure they have to prove it. If you are sued, please keep me in mind if you need an attorney that will protect your rights with zeal and compassion, while always trying to find the most favorable way to get the case over with.

MKT

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