The following can be used by employers to help protect themselves, minimize expenses and headaches, and smooth employee relationships and terminations. The writings need not be lengthy or complex. In fact short and sweet is best.
1. Employment Agreement. Confirms in writing the essential terms of employment such as start and end date, pay, vacation and sick time, duties, discipline etc. Even though Colorado (and most states) are employment "at will," a written employment agreement can prevent problems including minimizing ambiguities.
2. Independent Contractor Agreement. Establishes in writing the relationship (duties, expectations and responsibilities) between the employer and a person or entity acting as an independent contractor rather than an employee. This agreement is key in heading off problems with taxing authorities.
3. Relocation Agreement. Sets forth the terms and conditions of an employee's move to a new residence as part of the job. Too frequently in such situations otherwise a question arises about who pays for what and when.
4. Consent Agreement. Used to obtain and verify employee authorizations for the employer to take actions, seek or disclose information, or maintain records that otherwise might be considered invasions of privacy or "none of the employer's business."
5. Non-compete Agreement. Restricts an employee from taking a job with a competitor. These generally are more enforceable if limited in time and geographically.
6. Confidentiality Agreement. Prohibits disclosure of information to third parties and competitors and may be necessary in view of HIPAA for example.
7. Non-solicitation/non-interference Agreement. Prohibits an employee who may be leaving from trying to take clients or consumers.
8. Arbitration Agreement. Requires an employee to arbitrate rather than litigate in court disputes with the employer. Generally arbitration is faster, cheaper, and confidential, and does not provide for trial by jury.
9. Last Chance Agreement. Used in disciplinary or questionable performance situations where the employee admits misconduct or various shortcomings and is given one last chance to make right or face immediate termination.
10. Separation, Waiver and Release, and Non-Disparagement Agreement. Confirms the terms and conditions of an employee's departure and typically contains a (sometimes mutual) waiver and/or release of potential claims and agreement not to speak poorly of the other side.
Of course other written agreements may be appropriate depending on circumstances. Call Sanderson Law, P.C., 303-444-8846, if you or someone you know might need help.
Monday, February 27, 2017
Tuesday, November 8, 2016
How Does a Criminal Trial Work?
Most criminal cases - "more than 97%" according to the Nat'l Assoc. of Criminal Defense Lawyers - don't make it to trial; they plea bargain, which means the defendant gives up the right to trial in exchange for concessions from the prosecution. When they do go to trial, it is most often to a jury (six jurors in misdemeanor cases and 12 in felonies). Trials to a judge, called bench trials, are rare since a conviction requires that all the fact finders agree and as a defendant on trial it is better to require 12 people to decide you are guilty versus one person.
The trial day begins with preliminary matters such as witness and exhibit discussions, evidence questions, and pre-trial motions. Next comes jury selection, where the prosecution and defense spend time under judge supervision vetting potential jurors. This usually takes a couple hours, resulting in the jury being empanelled. In most instances by noon the case is ready to go.
Opening statements follow. These are non-evidentiary outlines to the jury by each side, telling them what they might expect the evidence - witnesses, exhibits - to show. Throughout trial the prosecution carries the burden of proving the case and therefore goes first. Opening statements typically are limited by the judge to 15 or 20 minutes each.
Then come the prosecution witnesses, first for direct examination, then cross examination by the defense lawyer, and followed up as needed with what is called redirect examination. Exhibits may be introduced into evidence for jury consideration later. In some cases the jurors themselves may submit written questions through the judge.
When the prosecution is finished, the defense has the chance to make various motions to the judge challenging the sufficiency of the evidence to that point. These usually are denied.
Then comes the defendant's turn. The defense can make its opening statement at that point if it hasn't already. Because the defendant may remain silent and otherwise is not required to introduce any evidence (and the jury repeatedly is instructed about this by the judge), defense witnesses etc. may or may not follow, subject to the same evidence rules and objections as the prosecution. The defense then rests.
The prosecution now has the chance to rebut the defense case with additional witnesses or other evidence, as it feels necessary. Ultimately the prosecution too rests.
Next the parties discuss and argue before the judge over jury instructions - lengthy written instructions from the court about how jurors should deliberate, treat evidence, what they may or need to consider, burdens of proof, etc. This might take an hour or so. Once the instructions are finalized (including objections noted for possible appellate review later), the judge reads them to the jury.
Finally, the lawyers make closing arguments to the jury, again lasting 15-20 minutes each with the prosecution allowed to go first and last with a rebuttal closing. The jury then goes to a separate room for deliberations, questions and verdict.
Most misdemeanor cases take at least a day and a half to conclude. Of course they can take days longer. Felony cases can last a week or more.
Trials are risky business and require a great deal of preparation and strategizing. Call Sanderson Law, P.C., 303-444-8846, if you or someone you know needs experienced legal representation.
The trial day begins with preliminary matters such as witness and exhibit discussions, evidence questions, and pre-trial motions. Next comes jury selection, where the prosecution and defense spend time under judge supervision vetting potential jurors. This usually takes a couple hours, resulting in the jury being empanelled. In most instances by noon the case is ready to go.
Opening statements follow. These are non-evidentiary outlines to the jury by each side, telling them what they might expect the evidence - witnesses, exhibits - to show. Throughout trial the prosecution carries the burden of proving the case and therefore goes first. Opening statements typically are limited by the judge to 15 or 20 minutes each.
Then come the prosecution witnesses, first for direct examination, then cross examination by the defense lawyer, and followed up as needed with what is called redirect examination. Exhibits may be introduced into evidence for jury consideration later. In some cases the jurors themselves may submit written questions through the judge.
When the prosecution is finished, the defense has the chance to make various motions to the judge challenging the sufficiency of the evidence to that point. These usually are denied.
Then comes the defendant's turn. The defense can make its opening statement at that point if it hasn't already. Because the defendant may remain silent and otherwise is not required to introduce any evidence (and the jury repeatedly is instructed about this by the judge), defense witnesses etc. may or may not follow, subject to the same evidence rules and objections as the prosecution. The defense then rests.
The prosecution now has the chance to rebut the defense case with additional witnesses or other evidence, as it feels necessary. Ultimately the prosecution too rests.
Next the parties discuss and argue before the judge over jury instructions - lengthy written instructions from the court about how jurors should deliberate, treat evidence, what they may or need to consider, burdens of proof, etc. This might take an hour or so. Once the instructions are finalized (including objections noted for possible appellate review later), the judge reads them to the jury.
Finally, the lawyers make closing arguments to the jury, again lasting 15-20 minutes each with the prosecution allowed to go first and last with a rebuttal closing. The jury then goes to a separate room for deliberations, questions and verdict.
Most misdemeanor cases take at least a day and a half to conclude. Of course they can take days longer. Felony cases can last a week or more.
Trials are risky business and require a great deal of preparation and strategizing. Call Sanderson Law, P.C., 303-444-8846, if you or someone you know needs experienced legal representation.
Friday, September 16, 2016
Attorney Liens - 10 Real World Tips
As valuable service providers attorneys too have the right to get paid. Liens are a way to enforce that right. In the real world, attorney liens sound better than they work, and they are fraught with risk. Here are some tips to minimize trouble:
1. Although it is customary to assert both, it usually is the charging lien that matters most. A lien is a “claim or charge on property for payment of some debt, obligation or duty.” Black’s Law Dictionary (West 1979), p. 832. Most state statutes provide for two kinds - a charging lien and a retaining lien. For example in Colorado, see CRS 12-5-119 and 12-5-120. A charging lien is one "on any money, property ... claims and demands ..., on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client." The retaining lien is "for a general balance of compensation upon any papers of his client which have come into his possession ... and upon money due to his client in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party."
2. Accurate written notice of lien duly must be given, and filed in court as appropriate. The lawyer can enforce the lien via motion in the context of the court case he or she handled (or is handling) for the client, or via a separate civil action. The enforcement procedure otherwise is not well delineated or prescribed. Generally it resembles a motion for summary judgment and should be handled accordingly. At the outset, move to seal the file or at least limit public access.
3. The lien is only as good as the underlying fee agreement and to that extent arguably subject to the rules that govern them. If the lawyer has withdrawn from a court case giving rise to the lien, such withdrawal must have been justified (and approved by the court) and otherwise be completely consistent with the fee agreement.
4. It is customary for the lien to generate all kinds of boundless and timeless scrutiny, counterclaims, accusations and grievances - valid or not. Proceed accordingly including making sure the file supports the lien and the potential recovery is worth the brain damage. Consider having an experienced lawyer outside the firm look over the file before pursuing the lien.
5. Once the lien is pending, alternative dispute resolution should be considered (and likely will be required by the court anyway). Non-binding mediation is preferred as it is quick, inexpensive, confidential and gentler on the parties. A bad settlement may be better than a good judgment.
6. Consider requesting the appointment of a special master if the underlying case involves particular areas of legal expertise. For example, not all judges are versed in the nuances of a personal injury practice.
7. It can take a year to resolve the lien (i.e. to determine its validity, amount, and enforcement), more of course if the judge overseeing the matter is slow to rule or there are appeals. Expect at least one evidentiary hearing.
8. The lawyer's (and staff) time spent on the underlying case will have huge influence on the validity and amount of the lien. Accurate time records must be available. Contemporaneous records are better than not, and non-contemporaneous records are better than none. Bundling of time - the grouping of services reflected in a single time measurement - is not preferred but is acceptable (although it may carry less weight with the judge).
9. The case file of course must be tight, consistent and supportive before commencing the process, but don't expect the judge to read through every page. Consider using affidavits to summarize services provided, time spent, costs incurred, client difficulties encountered, etc.
10. Expert evidence (most likely affidavits) may be necessary to support the lien (and counter it), but remember the lawyer who handled the case and client is the best expert and should assert him or herself as such throughout the process.
Attorney liens are tricky. Experience counts. Call Sanderson Law, P.C., 303-444-8846, if you are considering one.
1. Although it is customary to assert both, it usually is the charging lien that matters most. A lien is a “claim or charge on property for payment of some debt, obligation or duty.” Black’s Law Dictionary (West 1979), p. 832. Most state statutes provide for two kinds - a charging lien and a retaining lien. For example in Colorado, see CRS 12-5-119 and 12-5-120. A charging lien is one "on any money, property ... claims and demands ..., on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client." The retaining lien is "for a general balance of compensation upon any papers of his client which have come into his possession ... and upon money due to his client in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party."
2. Accurate written notice of lien duly must be given, and filed in court as appropriate. The lawyer can enforce the lien via motion in the context of the court case he or she handled (or is handling) for the client, or via a separate civil action. The enforcement procedure otherwise is not well delineated or prescribed. Generally it resembles a motion for summary judgment and should be handled accordingly. At the outset, move to seal the file or at least limit public access.
3. The lien is only as good as the underlying fee agreement and to that extent arguably subject to the rules that govern them. If the lawyer has withdrawn from a court case giving rise to the lien, such withdrawal must have been justified (and approved by the court) and otherwise be completely consistent with the fee agreement.
4. It is customary for the lien to generate all kinds of boundless and timeless scrutiny, counterclaims, accusations and grievances - valid or not. Proceed accordingly including making sure the file supports the lien and the potential recovery is worth the brain damage. Consider having an experienced lawyer outside the firm look over the file before pursuing the lien.
5. Once the lien is pending, alternative dispute resolution should be considered (and likely will be required by the court anyway). Non-binding mediation is preferred as it is quick, inexpensive, confidential and gentler on the parties. A bad settlement may be better than a good judgment.
6. Consider requesting the appointment of a special master if the underlying case involves particular areas of legal expertise. For example, not all judges are versed in the nuances of a personal injury practice.
7. It can take a year to resolve the lien (i.e. to determine its validity, amount, and enforcement), more of course if the judge overseeing the matter is slow to rule or there are appeals. Expect at least one evidentiary hearing.
8. The lawyer's (and staff) time spent on the underlying case will have huge influence on the validity and amount of the lien. Accurate time records must be available. Contemporaneous records are better than not, and non-contemporaneous records are better than none. Bundling of time - the grouping of services reflected in a single time measurement - is not preferred but is acceptable (although it may carry less weight with the judge).
9. The case file of course must be tight, consistent and supportive before commencing the process, but don't expect the judge to read through every page. Consider using affidavits to summarize services provided, time spent, costs incurred, client difficulties encountered, etc.
10. Expert evidence (most likely affidavits) may be necessary to support the lien (and counter it), but remember the lawyer who handled the case and client is the best expert and should assert him or herself as such throughout the process.
Attorney liens are tricky. Experience counts. Call Sanderson Law, P.C., 303-444-8846, if you are considering one.
Wednesday, August 10, 2016
Discontinuing Sex Offender Registration
Periodic and regular address registration with law enforcement is mandated by the harsh and broadly applied "sex offender" sentencing laws here in Colorado and most states. This can have long-lasting hurt on the person's ability to find housing and employment, among other things.
Recognizing this, Colorado and other states allow the person to ask (petition) a court to discontinue registration for many such offenses. Generally three factors must be shown via a form petition. First, that a certain period of time has passed (10 years for example). Second, that the person has not re-offended and has been in compliance otherwise. Third, that notices required by the applicable statute (to the victim, law enforcement etc.) duly have been given.
The Colorado statute is CRS 16-22-113. It requires the court to hold a hearing once the petition is filed and served, but is silent on what - presumably in addition to the information in the petition - must be shown or proven. Appellate courts have decided the judge at the hearing has broad discretion to grant or deny the petition even if, so to speak, all the boxes on the form petition are checked. Factors considered may include objection by the victim, other offenses by the petitioner, lack of compliance with other sentence terms and conditions, and the like. We suggest having supporting witnesses testify on these factors at the hearing, and to opine on the person's likelihood of not re-offending in the future.
Like all things sex offense related, assume the judge and prosecution will not be sympathetic and will look for ways to deny the petition. Prepare accordingly. Better yet, call us here at Sanderson Law, P.C., to help. 303-444-8846.
Recognizing this, Colorado and other states allow the person to ask (petition) a court to discontinue registration for many such offenses. Generally three factors must be shown via a form petition. First, that a certain period of time has passed (10 years for example). Second, that the person has not re-offended and has been in compliance otherwise. Third, that notices required by the applicable statute (to the victim, law enforcement etc.) duly have been given.
The Colorado statute is CRS 16-22-113. It requires the court to hold a hearing once the petition is filed and served, but is silent on what - presumably in addition to the information in the petition - must be shown or proven. Appellate courts have decided the judge at the hearing has broad discretion to grant or deny the petition even if, so to speak, all the boxes on the form petition are checked. Factors considered may include objection by the victim, other offenses by the petitioner, lack of compliance with other sentence terms and conditions, and the like. We suggest having supporting witnesses testify on these factors at the hearing, and to opine on the person's likelihood of not re-offending in the future.
Like all things sex offense related, assume the judge and prosecution will not be sympathetic and will look for ways to deny the petition. Prepare accordingly. Better yet, call us here at Sanderson Law, P.C., to help. 303-444-8846.
Wednesday, July 27, 2016
How does a civil lawsuit work?
A civil lawsuit is where the plaintiff - the party starting the action by filing with the court a written complaint - must
prove claims against the defendant or defendants usually by a "preponderance of evidence" (as opposed to "beyond a
reasonable doubt" in criminal matters).
Here a preponderance means more evidence than not. A jury may be requested, otherwise the matter is tried to a
judge. Most cases settle before trial.
Discovery
is the process that begins soon after, whereby both sides may obtain information from the other - via
depositions, written questions (called interrogatories), document requests, requests that matters
be admitted or denied, and related procedures.
This process can take many months. Mediation or another form of "alternative dispute resolution" typically is ordered or agreed to
take place soon after to afford the parties a less formal opportunity to resolve
the case or claims sooner than later.
Motions - written requests by the lawyers to the judge to rule on various issues - may be undertaken during the case, including for example to seek pre-trial dismissal of parties or claims, limit evidence, decide legal questions, and the like. Sometimes hearings - some with testifying witnesses - are held by the court in connection with motions. Motions typically involve procedural and substantive legal issues that may profoundly impact the case.
In
the event of trial, the parties are given opportunity to state their
case via witnesses and tangible evidence (usually documents), and
have the jury or judge decide. An appeal to a
higher court is available.
As
can be seen this all takes time. It is
not unusual for a non-settling civil case to take
two or three years to resolve, sometimes longer. An appeal or appeals can add years.
Civil lawsuits are serious business. Experience counts. Call Sanderson Law, P.C., 303-444-8846, if you need help.
Thursday, May 12, 2016
Criminal record seals in Colorado
Generally, absent an outright dismissal of all charges, the possibility of quickly sealing one's criminal record in Colorado is low.
The good news is that politicians increasingly recognize the lasting harm that criminal records have on people who have "done their time" and almost every year legislation to liberalize record seals is considered. Recently for example most drug crimes can be sealed once a variety of hurdles have been cleared.
An attempt to seal a record starts with the filing of a petition for same in the appropriate court, notices to various law enforcement agencies and prosecutors, and finally may involve a hearing. The matter is considered civil not criminal and lesser due process rules apply accordingly.
Most law firms charge a "flat fee" for the time and effort involved. Filing fees and other court costs are required.
If you are thinking about having a Colorado criminal record sealed, call us here at Sanderson Law, P.C., 303-444-8846, or email us, to see if you are eligible.
The good news is that politicians increasingly recognize the lasting harm that criminal records have on people who have "done their time" and almost every year legislation to liberalize record seals is considered. Recently for example most drug crimes can be sealed once a variety of hurdles have been cleared.
An attempt to seal a record starts with the filing of a petition for same in the appropriate court, notices to various law enforcement agencies and prosecutors, and finally may involve a hearing. The matter is considered civil not criminal and lesser due process rules apply accordingly.
Most law firms charge a "flat fee" for the time and effort involved. Filing fees and other court costs are required.
If you are thinking about having a Colorado criminal record sealed, call us here at Sanderson Law, P.C., 303-444-8846, or email us, to see if you are eligible.
Friday, March 25, 2016
10 Rules for Writing Emails
Emails are great for communicating, especially in business. They can be composed and sent anytime - no dealing with voice messages, call backs, phone tag, on hold, bad connections, etc. One communication can be emailed to many people at once. They automatically memorialize the substance of the communication (for better or worse). They can be saved, printed, and reviewed or referenced later. Of course there are times when a phone conversation is better, but generally emails increasingly are used because they are more efficient.
To get the most out of emails, and avoid problems, follow these simple rules:
1. "Picture it on the front page of the New York Times." So said my old boss about everything you put in writing. Emails are no different. Emails generally are not private, protected, confidential, or otherwise exempt from having to be turned over to the other side in matters of litigation for example.
2. Punctuation, language and good grammar count. Taking care - and the time - to draft, craft and proof read emails as you would a letter make them more readable, intelligent and compelling, and help prevent sending them off too hastily. Number individual points or issues to increase the chances of receiving a response to each.
3. Like phone calls, respond to emails as needed within 24 hours if possible, even if it is just to say Thank You.
4. Insert attachments first, before you write the email itself. Insert the recipient's name/address last. This helps prevent sending emails without the attachment, and also sending them off too hastily.
5. If in doubt, don't send it out - use the phone instead.
6. Don't assume others will read the entire string. If it is important enough, summarize the communications in your last email in the string. Especially important emails should "stand alone" and not require looking back at (or for) other emails.
7. Avoid train-of-thought bantering and conversation via email. This becomes confusing and potentially dangerous (see number 1 above). If it looks like its going to be a verbal tennis match, or something amounting to chit chat, use the phone or text messaging. Phone for conversation; email for communication.
8. Wait 24 hours before sending a sensitive, reactionary, or nasty email. You're probably better off not sending it then either.
9. Rarely is "reply all" appropriate. Avoid it as much as possible.
10. Use the "subject" line and do so wisely. Be brief, consistent and informative. It will help stay on point and organized, and is good for searching back later.
To get the most out of emails, and avoid problems, follow these simple rules:
1. "Picture it on the front page of the New York Times." So said my old boss about everything you put in writing. Emails are no different. Emails generally are not private, protected, confidential, or otherwise exempt from having to be turned over to the other side in matters of litigation for example.
2. Punctuation, language and good grammar count. Taking care - and the time - to draft, craft and proof read emails as you would a letter make them more readable, intelligent and compelling, and help prevent sending them off too hastily. Number individual points or issues to increase the chances of receiving a response to each.
3. Like phone calls, respond to emails as needed within 24 hours if possible, even if it is just to say Thank You.
4. Insert attachments first, before you write the email itself. Insert the recipient's name/address last. This helps prevent sending emails without the attachment, and also sending them off too hastily.
5. If in doubt, don't send it out - use the phone instead.
6. Don't assume others will read the entire string. If it is important enough, summarize the communications in your last email in the string. Especially important emails should "stand alone" and not require looking back at (or for) other emails.
7. Avoid train-of-thought bantering and conversation via email. This becomes confusing and potentially dangerous (see number 1 above). If it looks like its going to be a verbal tennis match, or something amounting to chit chat, use the phone or text messaging. Phone for conversation; email for communication.
8. Wait 24 hours before sending a sensitive, reactionary, or nasty email. You're probably better off not sending it then either.
9. Rarely is "reply all" appropriate. Avoid it as much as possible.
10. Use the "subject" line and do so wisely. Be brief, consistent and informative. It will help stay on point and organized, and is good for searching back later.
-David S. Sanderson, Lawyer, Boulder, Colorado
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