Put it in writing.

As one of my former bosses used to say, If it ain't in writing, it ain't.  Many times I've been asked about the need to put understandings or agreements with partners, fellow shareholders, employees, customers etc. into writing.  While for the most part verbal agreements have the same legal force and effect as written ones, they are much tougher to prove and therefore, to enforce.

Put it in writing.  Fancy legal terms are not required (but may certainly help).  Ask yourself, What is it we are agreeing to, and in the simplest, clearest language put it into a confirming letter, memorandum signed by the parties, even an email is better than nothing.  In my view, email has been a boon to the extent it compels people to organize their thoughts, be concise and informative, and put things in written form that can be saved, reviewed later, etc.

Depending on what's at stake, and to be on the safest side, ask an experienced lawyer to review the writing before you send it.  Ask if you can email it to him/her in draft form.  An ounce of prevention is worth a pound of cure.  As time goes by, memories fade, disagreements arise, you'll be glad you took a few moments to "put it in writing."

Ongoing Lance Armstrong Lawsuit Could Be Trouble for Cheating Athletes Everywhere

Today's newspapers report a Texas judge has refused Armstrong's request to dismiss an insurance company's lawsuit seeking the return of bonus money it paid him from 1999 to 2001.  Depositions (questioning the cyclist under oath) and other information gathering discovery are sure to follow.  As I've written before on this blog, fraud-based civil lawsuits against doping athletes and their enablers seeking return of monies paid would be a huge deterrent against such cheating.  Look for more cases soon, including against some equally high-profile players.

Jury Trial - a poem

Jury Trial

In the shadow of the Capitol

By the sunlight of the day

In the hushed and musty courtroom

The witness has her say.

The judge who’ll soon retire

The parties who’ve lost their fire

The jury in facts mired

The lawyers anxious and tired.

If eyes could answer what we seek

If silence spoke what one won’t speak

If what’s kept out is what seeps in

There’d be no need for trials then.

 

Entranced by legal ritual

In stiff and creaking chairs

What’s fair and what is just

Lies behind the jurors’ stares.

 

-Dave Sanderson, 5/16/05, during a trial in Denver District Court, copyrighted 2005

Depositions: How They Work and Some Do's and Don'ts

     In a deposition, you, the deponent, answer under oath questions asked of you by a lawyer, the examiner, usually relating to a pending civil lawsuit.  For example, maybe you witnessed a car accident, or worked with someone suing an employer, or have knowledge about a business dispute.  You may be required to share what you know with one side or the other in a related lawsuit.  Same goes if you are a party to a lawsuit.  Depositions can last hours or days., depending on the issues.  How does it work?

     An officially recognized court reporter is present at the office or conference room to record your answers and upon request (and payment of a fee) produce a written transcript of your testimony for use by others later in the case including at trial.  Most often deposition transcripts are used at trial to try to show you are fabricating or mistaken about your testimony, even if neither is the case.  They are used in pre-trial matters like motions to help argue for or against a point of fact or law.  Accordingly, the goal of the deponent should be truthfully to answer questions (without giving unnecessary information).  Here are some things you should and should not do:

You should:

- answer truthfully

- speak slowly and clearly

- leave room for nervous omissions, mistakes or faulty memory where appropriate, such as "at this time," "right now," "as I recall," "off the top of my head," "I do not remember all the details right now," and the like (especially with questions asking you to list or detail something)

- answer verbally (so the reporter can hear and take down your answer)

- let the examiner finish his/her question before answering

- repeat the question in your mind before answering

- answer "I don't recall," "I don't remember," or "I don't know" if that is the case, and leave it at that

- take a break (while a question is not pending) if you wish to use the restroom, compose your thoughts, talk to your lawyer, etc.

- review interrogatory and other sworn or recorded responses or statements already provided by you before the deposition.

You should not:

- repeat yourself

- explain an answer unless asked to do so

- fill in “awkward silences” with unnecessary testimony

-volunteer anything, or offer to get or look for anything or talk to any person.  Do not refer to or mention anything or any person you do not wish to produce or identify unless required

- bring anything to the deposition unless you clear it with your lawyer first

- anticipate the question, or what you think might be the "real" question

- give non-verbal cues (fidgeting, frowns, grimaces, smiles)

- talk about anything you and your lawyer have discussed

- ramble on or add unnecessary afterthoughts  (and most are)

- argue, be cute or tricky, use profanity or sarcasm

- answer a "yes" or "no" question any other way

- apologize for an honest answer.  The truth never changes, so stick to it.

* * *

Same Sex Divorce - Top Ten Issues

Now that gay marriage has gotten the green light from the U.S. Supreme Court (and various states) - wags might say its about time the right to suffer was enjoyed by all - its only a matter of time before more and more divorce courts across the country will be asked to address same-sex couple breakups.  The primary governing rules, processes and procedures already in place, and issues to be determined, include those listed below.  Whether you should involve attorneys (versus say mediating without them) depends on the usual issues of what and how much is at stake and how acrimonious are the parties' dealings.

 

- TOP TEN DIVORCE ISSUES-

1.         Commencement, timing, venue (where should the case be heard)

 

2.         mediation (non-binding discussions) v. litigation (hearings, trial, court enforced deadlines)

3.         marital v. separate property.  Generally, the former includes anything acquired during the marriage.

4.         property distribution (who gets what)

5.         debt allocation (who pays what)

6.         maintenance (fka alimony) and imputed income (how much could your spouse be earning)

7.         child custody (who has the children) and parenting time (when does the other spouse get to see them)

8.         child support (determined by number of overnights and relative incomes)

9.         tax issues (deductions, joint returns, refunds, etc.)

 

10.       attorneys’ fees and costs (should one side pay the other's).

Seven Steps to Effective Plea Bargaining

From nearly 25 years defending the accused in state and federal courts, here's what makes a lawyer a good plea negotiator:

1.  Prepare the case for trial.  Nothing convinces a prosecutor like knowing the defense is ready, willing and able to go to trial (and appeals) and possibly prevail.
2.  Try/appeal cases.  Trying cases keeps lawyers sharp.  It confirms to prosecutors you can and will try cases.  Appealing if and when you lose does the same (and often results in favorable decisions).
3.  Charge hourly.  A lawyer should get paid for the work she does on a case.  Charging on an hourly basis is usually fairest, and helps spread any financial burden over time.  Saavy prosecutors suspect that defendants may be reluctant or unable to come up with a larger so-called trial fee under typical "flat fee" arrangements. 
4.  Put it in writing.  Memorialize discussions with prosecutors via email or letters to them (copy to client).  If it ain't in writing; it ain't.
5.  Criminal defense is a stud poker game; play accordingly.  "Winning" is less about the cards you're dealt (which cannot be changed) than in when you play them, how, with whom, and what is at stake.
6.  Carefully consider every communication.  Everything that is said or written, when and how, affects the outcome.
7.  Keep the client well informed.  It is their case, and their future.  They deserve to know what is going on.  Their perspective and input are invaluable.

By far most criminal cases are plea bargained.  The lawyer who gets a good plea for his client - quietly, efficiently, effectively - is a winner.

A Step Towards Ending Cheating in Sports

In follow-up to the 9/13/12 post about how to end cheating in sports by suing offending athletes and their enablers, a news report today describes an intriguing lawsuit: 

Apparently an Australian sportswear company called Skins is suing cycling's governing body for $2 million, claiming its brand has been harmed by backing the sport of cycling as the Lance Armstrong so-called doping scandal unraveled (Longmont Times-Call at p. B2).  The lawsuit in effect seemingly alleges that cycling officials knew (or should have known) of Mr. Armstrong's ongoing cheating and/or did nothing to stop it, thereby damaging Skins' reputation.

Question whether Skins did (or will) sue Mr. Armstrong himself, and whether the governing body has a claim against him for any liability it may have.