Ask A Lawyer

Answers That Bounce Back

2010-08-19T22:40:00.003-04:00

One thing I've discovered about running this blog is that I get questions from all over, and from lots of people. As a result of the volume of questions from all these people and locations, combined with delays occasioned by "real life", what I have found happening is that answers I send out are bouncing back to me as undeliverable. For whatever reason, email addresses change, or email accounts are closed, or any number of things have happened to make my answers undeliverable. That is unfortunate, because I'm not certain if the people who took the time to pose a question will ever be able to see the answer.

For what it's worth, I'll post answers that come back as undeliverable here, in case the person asking the question happens by, and still needs a response and, in case their question and my answer contains information that may be helpful to anyone else, with a similar issue, happens to be passing by.

Educating The Grandchildren

2010-08-19T22:20:00.003-04:00

Q. My daughter divorced early this year and has custody of her 2 boys....Currently, since she commutes to her job, my 6-year-old grandson spends most of the weekdays with me. However, she comes almost every day to my home to see him after work, and takes him with her 1 or 2 evenings a week and brings him back at 6:00 AM the next day. (We have one of those old-fashioned arragenments in which the grandparents are involved in helping raising the kids along with both parents.)

We had to make this arrangement since the school the child is supposed to attend is far away from my area of residency and before/after school care is more expensive than a private school. Unfortunately, we can't afford the tuition of the private school he is currently enrolled near my home; and the public school in my area will not enroll him since I don't have legal custody of my grandson.

Is there a way that I could obtain documents to allow my grandchild to enroll in my area's school without affecting the custody/visitation/child support arragenments currently in place? We don't know what to do... My daughter and former son-in-law are great parents.

Thank you for your forthcoming response.

A. Well, first of all, it sounds like you, your daughter, and ex-son-in-law are handling things in a very mature way, which is surprisingly rare in matrimonial matters, so let me congratulate you.

Now, as to your issue, this doesn't really seem to be a legal question, exactly. It's a bit difficult to formulate an answer because I'm not entirely clear about the ages of both grandchildren, or on the current living situation, or even the custodial arrangements (it sounds as if your daughter has custody, but that at least one of the grandchildren is living with you at least part of the time). But let's give this a shot.

In my experience, some school boards are willing to make exceptions for out-of-town students, for a variety of reasons. The place to start is usually with the Superintendent's office. You and your daughter should set up an appointment to see the Superintendent and explain the situation. In some cases, the Superintendent may have the power and authority to give you permission to enroll your grandchild even though the child technically resides out of district. In other cases, you may have to petition the school board itself for permission. (Each district has its own rules, as you might expect. Start with the school board office; they should point you in the right direction.)

If you take the time to get your facts in order and go into your meeting prepared, you should be able to prevail upon the school board, or the Superintendent. But, just in case, you should also check out what the appeals process is, in case you don't prevail. Ordinarily, there is a process in place so that you can file an appeal from an adverse decision. Be aware, though, that this can be a time-consuming process and, if it gets to the point where you would need a lawyer to handle an appeal, it might be less expensive in the long run to enroll in that private school.

Good luck.

Can I Get The Landlord To Hurry Up?

2010-08-19T21:51:00.002-04:00

Q. A fire in the store above mine necessitated the closure of my dance studio due to water damage and the fact that it would take 4 to 6 months for building repairs. I notified the landlord that this cancels my lease (which was up in 2 more weeks) and I must seek space elsewhere. That was 2 weeks ago. He has not returned my $750 deposit plus interest I believe. How long must I wait ? Isn't there a statute as to how quickly he must return the money ?

A. Let's pump the brakes a little bit, my friend. You're telling me that two weeks ago, you told your landlord that, due to a fire above your place, you're leaving it two weeks early? And in that two weeks' time, you haven't gotten your security deposit back? I don't mean to be flippant, but really? This is your issue? That two weeks after a fire in your building, you don't have your security deposit back?

Okay, I know you're not looking for sarcasm, so here's an answer. In the case of a commercial lease, it is likely that the lease you signed contains all of the terms that apply to a situation like this, where an accident, or an Act of God, renders your portion of the commercial property unusable. Without seeing the lease, I am obviously in no position to tell you what it says, but I'm going to guess that it probably says that the landlord has 30 days to get your deposit back to you. It might also say the deposit must be returned "in a reasonable time."

As for your question about interest on your deposit, every State has different laws about what a landlord is supposed to do with a security. Since I don't know exactly where your business was located, I'm not sure which laws apply, but generally, landlords are required to deposit security deposits into interest bearing accounts, and to give you notice of the bank in which the account is located. (Again, this is different in every State.)

What I'm going to suggest is this: give the landlord another month. After all, there was just a fire in the building; he might have some things to attend to. If you haven't heard anything by then, send a nicely worded letter, by certified mail, following up on your request. I'm going to guess that, if you haven't had a response before then, you'll have a response after that.

Good luck, and be patient.

Can My Boss Say: "Here's Your Hat, What's Your Hurry?"

2010-08-18T01:16:00.002-04:00

Q. Can your boss order you to step down from a position if you have no write ups? Also if you are a supervisor and you are salary [sic] can your boss order you to punch the clock? I've been to my human resource office several times but nothing has happened. I'm now feeling like my boss is trying to force me to quit. He brought in a guy about two weeks ago and told other employees that the guy was my replacement. I brushed it off but now that he has come to me and asked me to step down or be without a job, I'm concern about what my rights are. Thanks.

A. Well, I don't mean to be blunt, but if your boss is introducing the new guy around as your replacement, it seems pretty clear what your boss's intentions are. But that's not really your question.

Your question, which comes up all of the time (here, for instance), appears to deal with what we call "at-will employment." Basically, an "at-will" employee (and that's pretty much anyone who's working without a contract) is an employee only as long as the employer wishes you to be one. (There are, of course, exceptions to the "at-will doctrine," but it doesn't appear that any apply here.)

Simply put, in the absence of a contract of employment, the answers to your questions are pretty straightforward: Yes, your boss can ask you to step down from your supervisory position for any reason, or no reason at all, as long as it's not for a discriminatory reason (race, gender or religion are the big three). Yes, your boss can make you start punching the time clock. And yes, your boss can make you feel so uncomfortable -- for instance, by bringing in a new supervisor -- that you feel like quitting. (But quitting has ramifications when it comes time to collect unemployment. so that's probably not the play to make.)

What's your solution? There really isn't one, unless there are other factors at play that you haven't told me about. Essentially, your answer is to suck it up and carry on. But in today's market, if they're letting you keep your job, that's a plus, because it's always better to look for a new job while you're working at your old job.

The thing is, sometimes, having a job stinks. But it doesn't stink as badly as not having any job.

Good luck.

What Happens When "Operation Repo" Arrives At My Door?

2010-08-13T16:32:00.001-04:00

Q. What happens if my car gets repossessed? Since you have experience, I was hoping you could give me some clues as to what you look out for. Please help me.

A. That's a rather cryptic question. What happens? They take your car. If you've ever seen that "reality" show on cable, that's what they do. Once you are in default on your loan (meaning late on your payments -- and even one is enough), it's generally accepted that the lender can come and take your car, any time and any where. Now, usually a creditor will work with you, but there's no guarantees that the creditor will. On top of that, once you get too far behind, they're not going to want to work with you at all.

Now, do you have any rights after they take the car? That depends on the laws in your state, and on your lender. The lender can either keep the car in satisfaction of your debt, or try to sell it (in what's called a "commercially reasonable manner") to offset what you owe. Then, if there's any difference, they can come after you for that amount. For example, if you owe $2500 and the lender sells the car for $1750, the lender can still come after you for $750, suing you in small claims court, for instance, for the balance. The lender is supposed to give you notice of what it's doing with the car, giving you the opportunity to buy it back, or to "redeem," which is, essentially, catching up on all your payments and covering the costs of the repossession.

The bottom line is, each case is different because each state, and each lender, is different.

Hope this is a hypothetical question.

"A Lawyer's Time And Advice Are His Stock In Trade"

2010-08-13T16:07:00.003-04:00

Q. How much does a lawyer charge to look at a lease? I am trying to figure out what is important. I was hoping you might be able to give me some insight. Please help.

A. The simple answer to your question is: whatever the lawyer wants to charge. But the reality is that there's no one answer. Who's the attorney? Your friend? A guy you saw on TV? Someone you found in the phonebook?

What are you asking the lawyer to do? Proof it? See if there are any "traps"? Asking the lawyer to build in protections for you, as either a landlord or tenant? Each of these tasks is different, and would require a different level of work from the attorney.

The thing you have to remember about lawyers and their fees was best summarized by Abraham Lincoln:

"A lawyer's time and advice are his stock in trade." That means all the lawyer has to sell you is time, and advice. There's no other product, really. So if you're asking a lawyer to take a "quick look" at something, a $100 fee might be appropriate. If you're asking the lawyer to draft a new lease to protect you from an unsavory landlord, it might cost 5 or 10 times that.

Hope this helps.

Can I Buy My Canadian Dream House?

2010-08-13T15:51:00.002-04:00

Q. I am in Quebec Canada so I hope you can just offer any advice that would be greatly appreciated.

I recently put in an offer on a house and my girlfriend and I have saved up money and we have not only our 5% down but we have our money for any and all of the costs to close the deal. Now here in Canada you need 20% or 25% to mortgage a house and because most people don’t have $30,000 or more there is an organization called cmhc/schl (Canadian Mortgage and Housing Corporation) which provides the rest of the money and then the bank can issue you the mortgage.

Now here is my predicament. I am on CSST (workers compensation) I had a bad accident at work and now have 2 herniated disks in my back. It has been almost a year I am on CSST and my specialist says it will take quite a bit of time to heal because first; when it comes to the spine nothing is simple and two; there is no operation for what I have.

Now the mortgage specialist I’m dealing with knew this in the beginning, I provided all my workers compensation paper and all the necessary papers. I ended up being denied because of the CSST so I was lucky enough to have another option offered by the bank. They asked for a co-signer AND a co-buyer which I was able to find in a family member. So now I have myself, my girlfriend and my co-signer/co-buyer and all the necessary money in the bank and so on, and guess what, we got denied again!?!

Now don't get me wrong, I am an extremely reasonable man but what I don’t get is with all that I have done in order to make them happy it was still not good enough, I understand they calculate risk and such but even though I still get 90% of my salary, I still make really good money. On top of that, CSST is always on time and can never go bankrupt and I know it's not an ideal source of income but I have no choice now. If I could I would work, but I have excruciating pain from the moment I wake up till I go to sleep. I cannot return to work anytime soon and I do not want to use the word discriminating but it sort of feels that way. The bank would not even put the amount of money I get on the paper work, they marked that I make a $1 a year! Heck people on social assistance get more money than that! I know you maybe thinking “well why not wait till you get better” but I cannot, first and foremost the law is changing in April and it will require people to have 10% for their down payment and second, I have no idea when I will be able to go back to work and I cannot stay in this bachelor apartment with my girlfriend for much longer.

Anyways I’m sorry for writing such a long letter but I needed to “talk” to someone, the stress is killing my back and I feel myself down spiraling into a depression keeping this all in and trying to put on a smile for my girlfriend. I just feel helpless right now and I would just like to have some advice and I really do appreciate the time you took to read this. Have yourself a good day and seriously I wish you happiness and health to you and your loved ones.

A. You’ve got a lot going on, and it’s not surprising that you’re feeling depressed and stressed out over everything. I’ll see if I can help.

As you point out, laws in Canada are often much different than they are in the United States, so you should take anything I say with a HUGE grain of salt. But it appears that you’ve been battling the discretion of a lender to decide to whom it wishes to lend money. Lenders are generally not required to give mortgages to just anyone (actually, part of the current world-wide financial crisis is a direct result of mortgage lenders disregarding common-sense lending practices, like ensuring that borrowers have the means to repay loans. But I digress.)

If your bank doesn’t believe that your workers’ compensation benefits are an adequate source of income (regardless of how regularly the payments are received), there is, most likely, nothing you can do about it. While I know that it would be wonderful to actually purchase a home, lenders like to see people who are gainfully employed, and likely to be so for the long-term. You being on disability – even though it’s not your fault – is not a positive factor when evaluating your loan application.

There are two things that occur to me. You could have your co-signer be the main person responsible for the loan (assuming that co-signer wants to take that responsibility) and you co-sign for that person, so that you are both on the mortgage, and on the title. Alternatively, you co-signor could purchase the house and then you can enter into a lease-purchase agreement with the co-signor (assuming that’s not contrary to Canadian law or your lender’s restrictions.) You might want to check with an attorney on this latter possibility.

I don’t believe that it’s impossible for you to get into that dream house of yours, but it will probably take some creative thinking on your part.

Good luck.

Can I Get My STBE Off My Business Lease?

2008-12-09T12:55:00.003-05:00

This post spawned the following question:

Q. I am currently renting space for my business. My soon to be ex girlfriend is on the lease as well. Is there any way for me to have her name removed from the lease and I will continue to pay the rent on my own as I have always done? Is is necessary to rename my business and have the landlord provide a new lease with the new name?

A. I'm assuming from what you write that your soon-to-be-ex (let's call her your STBE) is not a partner in the business or otherwise connected. If she's not, you shouldn't have to worry about the business -- unless she's going to litigate with you over use of the name, or who gets the business, or she claims she is a part of the business, or a million different other things....wow, it gets complicated, doesn't it? But, for the sake of argument, let's assume it's your business, and she has no claim to it.

You can get her off the lease by asking the landlord to give you a new lease, with you (or the business, depending on how the lease is drafted) as the sole leasor. However, the landlord might not be inclined to do that because, as I mentioned in the post that spawned your question, the landlord has both you and your STBE on the lease, so he can go after either of you for rent.

For example, if you were having trouble making rent one month, he could go after your STBE. Of course, then she'd come after you for your share, and could even sue you for your share (depending on how ugly things were between you -- which is why it pays to play nice). From a legal perspective, it's better for the landlord to have two folks on the lease; he can collect from either.

However, if you can convince your landlord that you'll make good on the rent, and that there won't be any problems in the future (and maybe offer him additional security on the lease), he might be willing to take her off the lease and leave only you on it.

Of course, the parts of this scenario I don't know can complicate things. For instance, if she actually does have a piece of the business, and the lease is in the business's name, you might have to buy her out to get her off the lease and out of the business. Or, she should claim to be part of the business, even if she's not, which could also lead to litigation.

You definitely should have a landlord/tenant lawyer take a look at the lease. It would be worth a few bucks for an initial consult if you've got a complicated business/social thing going on. Good luck.

Wow, the mail box is full

2008-12-09T12:50:00.002-05:00

Yeah, I know. I took a year off. But it's been a bad year. If you're interested, I'll explain my absence either here or here.

But you're not here for that personal crap. You've got questions. Let's see if we can get some answers for you.

The Wonderful World of Workers' Comp

2007-11-20T10:13:00.001-05:00

Q. On November 3, 2006, I was in an accident while riding a volunteer ambulance late in the evening. I went to the hospital, had an xray done. The appropriate workmans comp people were contacted, and claim filed. The case worker contacted me and had an appointment set up for an orthopedist in the "group" A week later, I arrived at my appointment. The doctor pulled the sling off me, told me I didn't need it, that I was "fine" and "go to PT". Then he gave me exercises to do at home which was "crawling up the wall with my hand". I explained that I can't lift my arm, I have intense pain. But he dismissed me. I went to PT for over a month with no results. The clinicians were baffled when I told them I had no tests, no MRI's, nothing since the xray from the emergency room. I called my case manager after the 2nd appointment where I had gotten ZERO treatment and then was told to take 1800 milligrams of Advil "because your fat enough, you can handle it". I couldn't take it anymore. I demanded another doctor, which I did finally get. He treated me with medication and 2 cortisone shots within the first 5 minutes of the appointment. this went on for another few months, due to the process of workmans comp, they can't just go into surgery. This new doctor took 2 MRIs and I ended up in surgery on May 11, 2007. The surgery ended up being a full open repair. I had a massive full thickness tear as well as a fracture. I lost time from work, I lost time teaching, that I NEED in order to keep my certification. I know this doctor is a quack. His lax approach and refusal to even help me or bother to see what was wrong has me wondering.. Do I have a case?

A. Ah, yes. Workers’ Compensation Law – a very interesting and unique field of practice that very rarely makes any sense to folks – including attorneys – who don’t practice in the field regularly. In order to answer your question, I have to give you a little background so that the answer might make a little sense.

Workers’ Comp was designed to eliminate personal injury claims by employees against employers for injuries suffered at work. The theory was (and remains) that workers get injured all the time and if employers had to pay for personal injury claims in civil court, they might eventually become bankrupt because of all the lawsuits they might face. So the legislatures in each state came up with the workers’ comp law. Work-related injuries are considered part of the cost of doing business. The legislatures designed charts and schedules that have set dollar amounts for specific types of injuries so that employers can better insure against them and afford them as part of their operating costs. That’s because a jury can look at a terrible injury and, because they feel bad for the plaintiff, give a huge award. In workers’ comp, each injury is worth only so much money, no matter how you became injured, and no matter how sympathetic you might be.

In addition, in some (but not all) states, the employers get to control treatment of work-related injuries. The employers will send injured employees to doctors that the employer selects in order to 1) get the employee back to work sooner, rather than later, and 2) keep costs down. That’s because your family doctor knows you, will likely sympathize with you, and has very little incentive to get you back to work if you don’t want to go. That’s not the case with comp doctors. Their incentive is to treat you as necessary, with an eye towards getting you back to work if possible and as soon as possible. I don’t mean to suggest that the comp doctors are not treating you properly, completely, or with your best interests at heart. It’s just that comp doctors don’t have the same kind of personal connection with you that your family doctor has, so their treatment may seem less “warm and fuzzy.”

When you have a comp claim, you are entitled to receive all reasonable and necessary treatment to cure and alleviate the effects of your injuries. That doesn’t mean all of the treatment you might want; it means whatever the doctors say you need. If you don’t agree with what the doctors are suggesting, you can ask for a second opinion. Generally, however, the employers do not have to get you one. If the employer doesn’t, and you still want one, you can either file a motion with the Compensation Court asking for one, or go to your family doctor and get one. The risk of going to your family doctor is that, unless the employer says it’s okay, you are receiving what’s considered “unauthorized” treatment. Any bills for “unauthorized” treatment will likely be your responsibility.

It sounds as if you eventually did get the treatment you feel you needed after this accident, which is good. It also sounds as if you are frustrated over what you perceive to be a lack of care by the original authorized doctor, which is understandable. However, I’m not sure what claim you are looking to assert against the doctor. Are you asking about malpractice? I don’t see any, based on what you’ve written. I see indications of a doctor who had one opinion as to what you needed, followed by a course of treatment with another doctor that was different from what you were getting with the first. Doctors disagree all of the time, and that fact alone is generally not enough for any kind of civil claim. If the doctor actually and actively committed some “bad” act which increased or otherwise worsened your condition, you might – and I emphasize “might” – have a claim. But I don’t see that anywhere in what you’re telling me. On top of that, as an authorized comp doctor, there is an argument that he would be protected from a malpractice suit because he was treating for a work-related comp injury. (The argument might not work, but it’s out there.)

You should know that you still may have remedies in your comp claim. If you missed time from work as a direct result of the injuries, you may be entitled to temporary disability benefits. As a result of the surgeries, you may very well be entitled to permanent partial disability benefits. These are things you should discuss with a workers’ compensation attorney. If you don’t already have one, you should get one, discuss the facts with him or her, and see what your options are.

Good luck.

David Kendall

How Long Is That Warrant Going To Be Outstanding?

2007-10-19T00:12:00.000-04:00

Q. I was wondering what the statute of limitations is on a Misdemeanor "writing a bad check" outstanding warrant from the state of New Jersey?

A. I just want to make sure I've got the question right. As I understand it, your question isn't about the statute on the offense of writing a bad check itself, but on a warrant issued for writing a bad check. By that, I assume you mean that you were either charged with or arrested for writing a bad check and failed to appear in court when they told you do. Needless to say, this is not a good thing. Judges tend to like it when you show up when you're supposed to, and they tend to get ticked off if you don't. As a result, when you decided not to show up, the judge probably issued a bench warrant for your arrest, and I'm guessing that this is what you're really asking me about.

As a general rule, a bench warrant does not expire. A judge ordinarily has to vacate it to make it go away. Once issued, the warrant get entered into the state's computers, and, usually, into the national database. That's what the cops are checking when they pull you over, by the way. Even before they step out of the car after they stop you, they've already run your license plate to see who owns the car and if the owner has any outstanding warrants. An outstanding warrant, even when you're pulled over for a traffic violation, by itself, is enough to hold you overnight until you can post bail on the warrant. Now, the court that issued the warrant will probably not try to actively enforce the warrant by looking for you, but it's in the system, and it's bound to catch up with you.

There's no way to know if the warrant will ever rise up and bite you in the butt. It might not show up, ever, or it could pop up when the police come to investigate the little fender-bender at the light, where someone hits you from behind. To me, it's not worth living with that kind of pressure hanging over your head.

You say it's a "misdemeanor" bad check. By that, I assume that you mean it is for a minimal amount, something under $200. Your best bet might be to contact the prosecutor in the town where the offense took place and work out a deal to pay the fine, pay off the check, and enter a plea in conjunction with vacating the warrant.

By the way, if you're really asking about when the statute expires for prosecuting the underlying charge for writing a bad check, your failure to appear essentially stops the clock from running on the time within which the State must prosecute you. Pretending it didn't happen doesn't make it go away; it just delays the inevitable.

Finally, if you have any doubts about your ability to handle this on your own, I urge you to contact an attorney and set out the facts for him or her. He or she may be able to help you resolve the matter with minimal exposure to fines and jail-time (depending on the amount of the check, and the length of time the
warrant has been outstanding.)

Good luck.

David Kendall

That "Million Dollar Suit" That Nobody Will Take

2007-10-12T21:55:00.000-04:00

Q. I work for the post office and I have a case of discrimination that in the private sector would be worth millions. Why can't I find any lawyer that would take this case without a very large retainer? This case, in my opinion, would be very easy to win.

A. Um....dude, you've got to give me a little more than that. I can come up with answers on just about any topic, but you've got to give me something to work with. Discrimination in the post office -- that's just not enough. Did they discriminate against you because you're black? White? Old? Young? A Woman? A Muslim? A member of the NRA? These little details matter.

And you say the lawyers won't take it without a retainer? So I'm guessing they will take it if you pay them a retainer. Let's think about that for a moment; you're wondering why an attorney, who's got nothing to sell but his time and advice, wants some money from you before he or she takes the case? (If you don't get it yet, read that last sentence again until you do. Seriously.)

In some cases, attorneys do take cases on a contingency basis. Those are usually personal injury cases, with documented, objective injuries that usually lead to guaranteed paydays. Discrimination cases are a different animal, no matter what kind of discrimination is alleged. You never know what can happen because juries are notoriously unpredictable; no one can truly predict what they are going to do. You can make an educated guess, but you can never know. That's why an attorney will ask for a retainer -- no one wants to spend a lot of time, effort, and money on a case that may or may not be a winner.

You may believe your case is a winner -- but an experienced attorney may have a better feel for how the case will play before a jury (or if it will play at all.) Without knowing anything more about your case than what you've told me, I'd trust the opinions of the attorneys you've already consulted: you may have a case, but it'll cost you a retainer to prosecute it.

Good luck.

David Kendall

Doctor, Doctor, Give Me The News...

2007-10-11T17:23:00.000-04:00

Q. I have hypothyroidism and take synthroid. In November I
refilled my Rx and have unknowingly been taking the wrong dose for 8 months. I have been back to my doc 3 times since Nov. complaining of hair loss, weight gain (40lbs!)fatigue, memory loss, facial swelling. He did not check my TSH level,instead put me on Prozac. Finally yesterday he had my TSH level done, it was 64.25 (norm 5.4) I am supposed to be on 0.20mg of synthroid but the pharmacist gave me 0.025mg. When confronted with this he said my Dr. wrote the Rx wrong and they do not make a dose of 0.20mg he said he called and my doc said to give me the 0.025 dose. My doc denies this because this is a significant difference in dosage. All I know is I feel terrible, have missed alot of work, lost alot of hair and have alot of weight to lose just because someone gave me the wrong dose of medicine! The long term effects could be liver damage but is not known yet. Do I need a lawyer?

A. Not yet, but maybe down the road. Right now, we're at the common-sense, "let's look into this" stage. Find out from the doctor exactly what he prescribed. Make sure you get all of the deatils about name of drug, size of dose, and so on. Then, get one of your prescription bottles and see what's written on it. Someone made a mistake; it should be correctable. (Obviously, there's a huge difference between .20 and .025 -- you've got to find out what the doctor originally prescribed as the actual dosage for the prescription -- and what should have been prescribed -- to determine where the mistake was.)

You might also consider seeking a second medical opinion, just to confirm what's going on, and what options you have. A full check up, and explanation from an independent second doctor might help clear things up in your mind and put you a little more at ease.

Either way, once you've figured out who was actually in the wrong (if anyone was), you've got to plan your next step. Figure out if there's some permanent damage or loss as a result of the mistake. For instance, if the pharmacy was at fault, and you're out of pocket several thousand dollars for the "wrong" prescription, ask them to reimburse you, or credit you. On the other hand, if there is no permanent damage or loss to you, you might consider asking for an apology for the error, and then letting by-gones be by-gones.

If it turns out that you can't reach a satisfactory resolution on your own, then you can consider bringing in a lawyer. You can get a referral from your local bar
association, or from the Martindale-Hubbel directory.

Good luck.

David Kendall

Family Feud -- No, Really

2007-10-11T16:43:00.000-04:00

Q. My family has been friends with another family now for many years. A family dispute sent the son of that family fleeing in our direction. Instead of leaving this 18 year old boy to live in his truck with everything that he owns, my father allowed him to stay here until his family worked things out. The day that he told his mother that he was leaving, his family went into an outrage and told my mother and father that they would pay for taking away their son and grandson. The next day they had their wills changed to take him off. Now they are threatening to sue my mother and father because we wouldn't allow this boy to live in his truck or on the streets until they had a chance to work things out. They say that we took him away and now we will pay. He is 18 and we were just being helpful until they worked out their family problems. Can they really do that?

A. Let me make sure I've got this straight. Your neighbors' 18-year-old son is now living with your parents (and you) in your parents' house, and the neighbors are upset. Well, the simple answer is this: Ain't nothing wrong with that. The son is 18. He can live on Mars, if he can get there and, as long as it's okay with your parents, there's nothing illegal, inequitable, immoral or . . . well, it's ok that he does that.

That doesn't mean there won't be complications. I'm assuming that this was just a normal family squabble between the neighbors and their son. If he's 18, he can move out of the house and pretty much do whatever he wants to do and they can't really stop him. (Of course, they can cut him off financially, put his stuff out on the curb, refuse to speak to him, change the locks, not invite him for Thanksgiving, and apply a heavy coating of parental guilt over everything, but that's an entirely different set of family issues.)

Then, there's the emotional devastation that accompanies this family fights. Those hard feelings may spill over into your family as well, and it seems that your neighbors intend to make sure that happens. Nevertheless, there really isn't a valid "cause of action" that I can think of that your neighbors could assert against your parents for putting their son up. Even if they filed something in court, they can't show how they have been damaged by your parents putting their son up and, in
order to win in a lawsuit, you've got to show some kind of monetary, physical, or property damage. Of course, having handled family matters in my time, I know that the emotions tend to run very high, and people sometimes do crazy things -- like file a frivolous lawsuit -- even if they cannot possibly win in the long run.

The biggest casualty of this will likely be the relationship between your parents and the neighbors. Families tend to make up; friends and neighbors don't always do that. If your parents are (or were) close with the neighbors, the neighbors may hold a grudge that they might never release, blaming your parents for "coming between them," even though your folks merely offered their son a safe harbor. As I said, people have crazy, irrational reactions when emotions are involved. I do commend your folks for taking the son in; I personally believe that you should always try to help out in situations like this. I'm hopeful the neighbors will appreciate this good deed somewhere down the road.

Good luck.

David Kendall

Can I Get A New Snowmobile Out of This?

2007-10-11T15:49:00.000-04:00

Q. About 2 and a half years ago, I (a small engine mechanic) was asked to find out why a snowmobile wouldn't run and to give an estimate of what it would take to fix it to running condition. After having done so, the owner of the snowmobile said he would get back to me. After 2.5 years and many phone calls (with MANY excuses) I still have the snowmobile and no payment for the work I performed. Do I legally own the snowmobile after all this time? Should I take him to small claims court to either get payment or the title to the snowmobile?

A. The short answer is, "No, you don't own the snowmobile, and yes, you should take him to small claims court." I could just leave it at that, but I figure you want a little more, so here's the explanation:

You state that you were originally asked to give an estimate as to what it would take to get the snowmobile running again. I'm guessing that you figured out what it was and then went ahead and fixed it. I'll also assume that you had authority from the owner to do the work, because if you didn't, my answers will change. After all, you can't go ahead and do work and charge someone for it if they didn't want it to begin with. But, assuming you had an agreement to do the work and to be paid for it, you can collect from your customer. Your local courthouse should be able to give you details about bringing your claim.

As to "owning" the snowmobile, the law doesn't work that way for personal property like this. You have what we lawyers like to call a "bailment." You are holding property for the true owner. Generally, you have to take care of it for a reasonable time and can't simply throw it away. In fact, most states have specific
statutes designed to deal with bailments and, depending on your state, it is possible (although unlikely) that, after two-and-one-half years, you may be able to assert some ownership rights. In addition, you can most likely assert a "mechanic's lien" on the snowmobile for at least the cost of the repairs and, in most cases, you are not obligated to release the snowmobile until your bill is paid.

Now, check this out. Here is how you may be able to assert an ownership interest in the snowmobile. I'm assuming you own a shop, and that you've stored the snowmobile for all this time. I'm betting you have a storage policy, right? $10 a day to store, or something like that? There's your answer. You could send a friendly reminder to the snowmobile owner (certified mail, to prove delivery), reminding him of your bill and your storage policy. State that you will have to file suit if he doesn't pay up. Then, if he doesn't pay, after you file suit in small claims court, and the judge gets involved, you could suggest that you'll take the snowmobile instead of any money for the repairs and storage charges that have accumulated. I wouldn't try this tactic on your own, without the judge being involved, but it certainly presents a possible resolution that may be workable for everyone.

Good luck.

Apologies and Explanations from Askalawyer

2007-05-01T18:00:00.000-04:00

It's been a very eventful eight months.

I won't bore you with details. Suffice it to say that, within a week of my August 2006 update, my father became quite ill. Unfortunately, he succumbed to his illness and died in November 2006. As you might expect, it has been a rather hectic and eventful period of time since then.

An unfortunate side effect of my dad's passing was the loss of the many, many emails folks had forwarded to me at askalawyer@email.com. Those questions were lost because, regretably, I did not check my emails for more than 60 days. As a result, www.mail.com purged my account and with it, all of your emails. (I say this only by way of explanation; mail.com did nothing wrong. I simply didn't check all of my email accounts in the aftermath of a rather devastating personal tragedy. I'm hopeful you understand my reasons why.)

I have reactivated that email account, and it is up and running once again. If you wish to Ask A Lawyer, please feel free to do so, at askalawyer@email.com. As always, I will do my best to get answers to you.

My apologies to those who were waiting, so patiently, for answers from me. Those questions you forwarded to my a now lost in cyberspace. If you wish to resend them, I will get to them as soon as I am able.

I appreciate your understanding, and all of the time that you folks have given me, by listening to my appearances on Rocky Allen's show, by emailing me your questions, and by visiting this blog. Thank you, and I hope you continue to visit.

David Kendall

Can I Still "Ask A Lawyer" and get a response?

2006-08-25T23:37:00.000-04:00

I know there's a number of folks who've been wondering whether I'm still answering questions since I haven't updated this blog since April.

The answer is YES! I do get a fair number of questions in at askalawyer@email.com, all of which I try to answer. Unfortunately, the time constraints imposed by my new job have limited my ability to update this blog as regularly as I've wanted to. Never fear, though; I'm going to get back to regular updates, and regular posts, now that I've more or less settled into a pretty good routine.

In the meantime, you can still email me your questions, and I'll email (and post) responses as quickly as I can.

And, of course, even if you don't have a question, you should still do two things regularly: 1) Check back at least once a week to see what's new here, and 2) Listen to The Rocky Allen Showgram everyday on WPLJ in New York every afternoon.

Thanks for stopping by.

If My Ex is Living With Someone, How Long Do I Have To Pay Her Alimony?

2006-04-11T23:56:00.000-04:00

Q. I signed a divorce agreement which states "alimony is paid until she remarries". We have been divorced for just over a year.

Since the divorce she had a child with another guy. The guy is currently living with her and their child. I believe she does not want to marry him because she will lose the remaining 3 years of alimony. Is there any legal recourse for me under the divorce laws [because] they're living together with a child birthed by them; would [that] be the same as being married?

A. As I understand it, your ex is living with a guy and the child they had together. You're paying alimony right now, which is supposed to continue for either four years, or until she remarries. You want to stop paying alimony because she's living with this guy.

The simple answer is: you can't.

Don't get me wrong. Your position makes a certain amount of sense. However, it's doubtful that you'll be able to avoid your alimony obligation on this ground alone. You agreed to pay for four years, or until she remarried. We're within four years, and she hasn't remarried. Under the divorce decree, your obligation continues. (Now, if you'd also included some language in the divorce decree about reducing your alimony obligation if she moves in with someone and shares living expenses, you might have an argument.)

That doesn't mean that you can't tell the court about this situation. Ordinarily, in most states, you have the opportunity to file a motion to ask the court to review your divorce decree based on "changed circumstances." You don't say what state you live in, and you don't tell me all of the circumstances of your situation (and you don't need to -- I'm just qualifying my answer here), but in most instances, if the monetary situation between you and your ex changes, you can ask the court to modify the terms of the divorce decree. For instance, if you lost your job, you could ask the court to review and revise your alimony obligation based on your reduced income. Now, that doesn't mean the court will agree with you, but you are allowed to ask.

Under the facts that you've presented me, you certainly have the basis for a motion. As the wise man said, you'll never know the answer if you don't ask the question.

Best of luck.

Do I Have A Claim For Inadvertent Underage Drinking?

2006-04-11T23:32:00.000-04:00

Q. On Mother's Day in May 2005 we went to Applebee's and my 11-year-old son got served an alcoholic drink, which was supposed to go to my husband. They were very similar because one was a raspberry lemonade and the other was the same (not sure of name), but with rum in it. The drink was given to my son, put in front of him. My son sucked it down because he was so thirsty. About 15 minutes later, we told the waitress that my husband did not receive his drink and she looked stunned and took my son's glass. About 5 minutes later, I saw people (workers) whispering and pointing from the bar. I realized what had happened and went up to them. I asked them was there or was there not alcohol in my son's drink. They said yes and got the manager. She came over and I told her the situation and she said she was going to get the district manager. A gentleman came over, who we thought was the district manager, and said he was sorry and he would like to give us dessert or a drink on the house. I said we'll think about it. Then another man comes over and apologized profusely, only to find out that the 2nd guy was a manager in training or something like that. He seemed like he was supposed to sugarcoat things. They took an incident report and paid for our dinner. My son fell asleep at the table, we took home his food, and he passed out on the couch when he got home only to wake up with a headache. I was so worried about my son that I did not enjoy my dinner at all. A person from their insurance company called me a day later to apologize and to see how my son was. I told her the situation and she said she would look into it further and would try to correct the problem. I never heard from anyone else from Applebee's and I felt it happens. Now I heard on the news that [another child] in [the city] was served an alcoholic drink also. I am appalled that this happens. So far there are two cases within a two-month period. Do I have a case with Applebee's? I really want to prove a point that this is going on and they should train their personnel and supervise their personnel better.

A. I get these kind of questions all of the time. Just recently, I answered a similar one here. I've started categorizing these questions as "mountain-out-of-molehill" questions because they tend to make much ado about nothing.

Here's the situation as I understand it. Applebees made a mistake by accidentally serving a drink containing alcohol in it to your son. After you pointed the mistake out to Applebees, they apologized and offered to pay for dessert or a drink. You said you'd think about it. You took your son home, he fell asleep on the couch, and woke up with a headache. Although you didn't say, I'm assuming he had no other ill effects.

Now, with those facts, where are we going with this case? As I've mentioned on the air, and elsewhere in my blog, the key component of any lawsuit (after proving some wrong was committed) is establishing your damages. What are your damages? So far, I don't see any. Frustration? Anger? Discomfort? You didn't enjoy your dinner? I mean, even accepting that you were upset back in May 2005, you've had plenty of time to get over it, and that's what just about any juror, and any insurance adjuster, would say upon examining these facts.

I don't mean to sound harsh, and I'm certainly going to give you the benefit of the doubt here, because I know that you love your son and you were very concerned at the time. Serving alcohol to an 11 year old is certainly something we'd like our restaraunts to avoid. But, you obviously detected the problem, and when you brought it to their attention, they offered to fix things for you. Are you happy with the way they handled things, or with what they offered to do? Obviously not, but they were probably concerned that you might be sue-happy, and wanted to be careful with how they handled things.

Here's my advice. I've said this many times before, and I'll say it again. First, you need to get over this. These kind of nuisance claims give lawyers and litigants a bad name. Sure, you could probably find some lawyer to write a strongly worded letter, and maybe even file a complaint on your behalf, but the most you'd get is some nuisance money. Even assuming that all you wanted to do was effect a change in the training policy at Applebees, a lawsuit on these facts is not the vehicle through which such changes will be made.

In my opinion, your best bet is to write a strongly worded letter, brief and to the point, to the Applebees where all this happened. You should express your dismay that your concerns remain unaddressed. You should demand from them what you're looking for -- a letter of apology from the Chairman, or a free dinner, or whatever it is that will make you feel as if your concerns have been addressed. Keep it brief and to the point, and send a copy to the corporate headquarters and the insurance company with which you spoke. You might get some relief this way, but I wouldn't expect much.

Can you file a lawsuit? As I've mentioned before, you can sue anyone for anything. Can you win? That's really the key question here. As I stated, you might possibly get some nuisance money, but that's only a possibility. (Just so you know, if I'm defending this case, I would make you go to trial and prove what damages you actually sustained. But that's just me.)

Anyway, I'm sorry if all this sounds kind of harsh. But I'm just trying to emphasize -- to you and to everyone -- that not every little inconvenience in life, and not every honest mistake, and not every slip in judgment, leads to an actionable claim.

Thanks again, and good luck.

What can I do about the dentist bill my ex stuck me with?

2006-04-11T19:03:00.000-04:00

Q. I will be taking my ex husband to small claims court next week. Our divorce was final in March - I did receive a settlement amount which was just for him buying me out of our house. I did not include any credit cards, separation of property or any of the nitty gritty. However, we did have a dentist bill of about $4,000.00. My dentist told me I am responsible for the entire amount of the bill, because all the work was done under my insurance. My divorce lawyer told me that was not true. I tried to get the money from him for this bill before the divorce papers were signed - but he and his lawyer told me they would not entertain the idea of giving me half of this money. My lawyer in return told me to sign the papers and take him to small claims court. I have an itemized bill from the dentist stating how much money my dental work was and how much his was. I am asking him to pay me back for the amount of money his dental work totaled. Do you think I have a chance of getting this money - it's about $2,600?

A. I'm going to try to break this down a couple of ways. First, if you -- just you -- go to the dentist, you owe him for work he does. That's true, whether you have insurance or not, and that's because, whether your insurance agrees to pay or not, someone's got to pay, and that someone is you, because you had the work done. Same for your husband. If he goes to the dentist, he owes for work done on his mouth. Second, if you -- as a married person -- go to the dentist, the same thing is true. However, in some circumstances, your spouse can be liable for debts jointly incurred (house, car, or an agreement to pay for your bills are examples of such situations.)

Now, in your case, it sounds like the dentist did work on you, and then did work on your husband. Simply put, you each owe for your own work. Now, if your insurance didn't pay, but should have, you may have a claim against them, but you each still owe for the services rendered for each of you.

Now, if you paid for your husband's work, you may have a claim against him, especially if you were divorced at the time. (If you were still married, it's possible that you could be considered jointly liable for some of his debts, depending on a number of things, including your dentist's payment agreement (that's one of those papers you filled out when you first became a patient) and your State's laws. But that's a separate question.)

This latter possibility explains why the dentist believed that you were liable for the bill. However, your husband still has an obligation to reimburse you for bills you paid on his behalf -- especially if you're now divorced. So, to answer your question, based on what you've told me, it seems like you should have a reasonable chance of success in court. However, a lot depends on when the work was done, what agreement you had with the dentist, and whether you have actually paid the amount due for your husband's work. Good luck.

Oh, by the way, off the top of my head, it does seem odd that this bill was not resolved as part of the divorce. The fact that it wasn't could depend on a number of things, including when it was incurred, the amount of the bill, the status of the marriage at the time of the dental work, and so on. However, if the bill is still not resolved, and it was incurred during the marriage, it may be possible to file a Motion in the family court to have the bill addressed. Of course, the cost of chasing after a $2,600 bill might be far more expensive that the amount you're looking for, so you'd want to consider that before making any such motion.

They fired me because they think I lied on my time sheets. What can I do?

2006-02-17T22:14:00.000-05:00

Q. I was fired from my job after working there 20 years. . . . Never had anything but positive reviews. This even happened one month after a cocktail party was given in my honor. Most employees, myself included, were very shocked by this. The reason given to me was that an employee brought allegations against me and they then did an investigation. They claimed that I was lying on my timesheet, which every week I had signed and one of my supervisors received weekly time reports and never had a problem with. They said my logging onto the computer and my car card for coming into and leaving the building parking lot didn't match my timesheet. Now first off my job didn't always require me being on the computer and I wasn't the only one who used my pass. They never showed me any documentation and didn't fire me right away, they sent me home and told me to call back in two days after I thought about it. My termination letter doesn't state the reason for my termination.

I can keep going but will not waste your time unless you contact me. I want to mention just two more things that might that might interest you. The only person that I reported to (I reported to many senior level people) that was consulted about this is going through a divorce (the reason we hear from his home town is that he was caught cheating) and the person who brought the allegations has not been seen since the day I was let go (people have been told she is out on "disability") and second a few days after I was let go this Senior Vice President and the head of HR (the person who let me go) had discussions with lawyers from our parent company (Marsh and McLennan) who came up to our offices. I feel there was a lot behind this and it wasn't that I was a bad employee, I have since gotten letters of recommendations from Senior Vice Presidents and others that I worked for. Please let me know if I have any sort of case against them, even if it is just getting some severance package.

A. It appears from what you've told me that the basis for your dismissal, from the company's perspective, is that you were lying on your timesheet, a fact apparently established by your computer log-on times and your car card times. These records apparently didn't coincide with what you put on your time sheet. Interestingly, you don't dispute your employer's claim that you lied on your time sheet. You only indicate that your supervisors "never had a problem with" your time sheets, that you didn't have to be on the computer all of the time, and that others had use of your car card.

These sound more like excuses than denials, and, reading between the lines, it may be that you weren't entirely straight forward on your time sheets. Only you know the answer to that question for sure, but if your former employer can establish by way of concrete evidence -- such as car cards and computer logs -- that you were not accurate with your time sheets, they had a basis for dismissing you. Unless you had a contract of employment, which included an exception for inaccuracies on time sheets, you are basically an "at will" employee and, for all intents and purposes, can be dismissed for any reason -- or no reason at all. (There are, of course, exceptions to the "at will" doctrine, but none appear applicable to your situaion.) The fact that your supervisor initially had "no problem" with your time sheets is irrelevant if a subsequent investigation establishes that you were dishonest when you entered information on them. In addition, the fact that you let others use your car card -- as you admit in your question -- may be a basis for dismissal in and of itself, as a misuse of company property.

As far as the additional information you provided regarding your supervisor and her divorce, and the person on disability, and the consultation with company lawyers, I'm not sure what inference you want me to draw. All of these facts seem totally irrelevant to the issue of whether or not you accurately report your hours on your time sheets. (By the way, if you did not, and you accepted pay for hours you did not work, that would constitute theft -- taking money from your employer for hours you didn't actually work. If they can make a case that this is what you did, then you don't have a basis for any claim against your employer for a dismissal and you're better off letting it drop.)

The thing is, even if you didn't lie on your time sheets, and even if you know that you can establish that you worked every hour that you claim you did (for instance by timestamps on computer files, and car card records), the fact remains that, without a contract, your employer can dismiss an "at will" employee, with or without cause. While you could file a claim against the employer, it's doubtful that you would prevail.

You did obtain a nice benefit, though. Those recommendation letters will be very helpful in your job search in the future. Make sure you list the authors of those letters as references on your resume. And, when you get your next job, make certain that you keep meticulously accurate time records.

Co-signing a loan? Be careful.....

2006-02-17T15:10:00.000-05:00

Q. I co-sgined for someone to buy a car and now they are defaulting on the payments. What recourse do I have so I don't lose my credit rating?

A. This co-signing thing can become a problem if the person you co-sign for stops paying. Unfortunately, when you co-sign on a loan (personal loan, car loan, mortgage, etc.), you are agreeing to be responsible for repaying the loan if the primary obligor on the loan (that is, the person who's taking the loan out) doesn't make their payments. If that's the case, it falls to the co-signer -- you --to make the payments. That's the danger of co-signing, and why you should be careful who you agree to co-sign for. If they don't pay, you have to.

What recourse do you have? Well, to make sure your credit isn't impaired, your easiest solution is to make the payments. Of course, the likelihood is that you're not in a position to make car payments for someone else; you've probably got your own payments to worry about. You could certainly contact the bank or finance company, advise them of the situation, and try to negotiate a better rate or reduced payments, but the likelihood is that you're locked into a standard financing agreement. Actually, your next best step is probably making a personal appeal to the person you co-signed for. If you haven't done so already, contact this person and try to prevail upon him or her to start making their payments. You can try to coax this person, or coerce him, or even threaten that you'll instruct the bank to repossess the car. Of course, even then, you still may be liable for any difference between what's owed and what the repossessed car sells for.

In addition, it's possible, although probably not likely, that there may be some clauses in the agreement you co-signed that might help you, or at least set out the terms under which you must pay as a co-signer. Read it carefully.

Finally, if you do make payments on the loan, the person who should be making them will be obligated to repay you. As a result, you can file a claim against him or her for payments you make that he or she should have made. Of course, if they're not making payments to the bank, it's not likely that they'll make payments to you, but at the very least, you could get a judgment against this person, docket it with the court, and then hold onto it until that person comes into money somewhere down the road.

Good luck.

Those Tricky Landlords....

2006-02-06T18:02:00.000-05:00

Q. I just discovered upon receiving my new lease - that my landlord raised my rent last year - slightly more than the 2.5% or whatever was allowed. What should I do to go about getting this fixed?

A. The terms of your new lease may be dictated by the terms of your old lease. It may be that the old lease has an automatic renewal clause in it, which provides for a 2.5% increase (or whatever amount your landlord charged you). If the new rent you're being charged is higher than allowed under the old lease, you should send a simple, friendly letter to the landlord before your next rent check is due, noting the incorrect amount you were charged, and advising the landlord that your rent check will reflect the correct amount of rent due. Keep a copy of the letter, which helps you document everything. The letter also lets you know if the landlord is going to be difficult.

If this is a new lease, and not based on terms in a previous lease, most, if not all, states have certain laws about the amount a landlord can increase rents in a residential apartment or house. If your landlord is in violation of your state's laws, you do have rights and you shouldn't be afraid to enforce them. Of course, you may want to pay an attorney to help you navigate the quagmire that is landlord/tenant law. It's probably in your best interest to run this by a landlord/tenant attorney in your area.

Finally, if this is a renewal, and you can't afford the new rent, you don't have to renew. Of course, you'll have to give appropriate notice under the lease if you plan to leave, and you'll have to find a new place to live as well. But you may have this option, depending on the precise terms of your expiring lease. Read it carefully before you act.

Good luck.

Usher, there are maggots in my chocolate!

2006-02-02T18:30:00.000-05:00

Q. My wife and I were out for a movie on Saturday night and we had major problem that occurred at the theater. During the movie, my wife ate some of her Butterfingers Bites and thought they tasted strange. She asked for me to go and get her a new box. When I got to the snack bar (back into the light), much to my horror, I saw that the box was full of maggots. When I approached the manager about it, he took the box, went into the back and returned with 8 free tickets for us. I told him that was ridiculous and had the security call an ambulance to take my wife to the emergency room to see if she needed her stomach pumped. When I asked for the box back (so I could make sure there was not something more dangerous in the box) he asked me "what box of chocolates?" After much screaming, he said he had thrown them away and had no way of locating them. You can imagine how upset I was getting. It took the insistence of the police and the EMT on the scene to eventually get the box back.

The manager emptied out the maggoty chocolate but could not shake all the bugs and nests out of the box. This was at a Loewes theater, not some little rinky dink place. My wife proceeded to have to spend about 2 hours in the emergency room and was given a medication similar to that given before a colonoscopy to clean her out. You can also imagine how pleasant her next 2 days were spent in our bathroom.

One of my biggest problems was the fact that I repeatedly told the manager at the theater that my complaint was not with them but Nestle and to just please help us and return our chocolates. He kept saying he didn't know where it was as my wife begged him through her tears for help. I have the box now, as well as pictures and videos of the maggots crawling out of it, I have the hospital record, and I am going to the police to get the official report from the night. Everyone who looked into the box was horrified, from the shift supervisor up to the head of the security company present.

Please let me know if I have a case here. I really feel someone has to be held responsible not only for the quality of the product but for the poor behavior of the manager on duty that night.

A. You want to know if you have a "case" here. Now, I'm sure you're a nice guy, but this whole things sounds like one of those potentially frivolous, get-rich-quick kind of claims that gives lawyers, and litigants, a bad name. (These are also the kind of claims that I detest, as is evidenced elsewhere in this blog.)

Don't get me wrong -- I'm sure your wife was shocked and disgusted to discover maggots in her chocolates. But let's be honest. After reaching into a box and hitting the first squirming Butterfinger Bite, any reasonable person would have at least stopped eating, and most folks would hold the box up to the light to examine it. Because of that, your histrionics about the box at the theater, and the trip to the ER appears (to be kind) excessive, at best. (And, by the way, there's an open question about what other "dangerous" things may have existed in the box that compelled you to insist on its return to you.)

In addition, with the prevalence of reality shows like Fear Factor and Survivor showing folks chowing down on everything from worms to duck embryos, you would be hard-pressed to convince any jury that there was any actual physical damage from an encounter with a couple of maggots. That, of course, is the key to any lawsuit. What are your damages? To succeed in a lawsuit, you have to have damages. The ER bill? Maybe, but that was probably covered by insurance (assuming the trip was necessary, which you'd also have to prove). The medication? Again, insurance. Some psychiatric claim? Well, is your wife receiving ongoing treatment? Medication since then? I mean, even if she's a bit squirmy about eating chocolate in the movies, I suspect she'll get over it, so I doubt there are any actual psychological or psychiatric damages.

I'll give you the benefit of the doubt here, and assume you've got some legitimate gripes. Stale, insect-riddled candy certainly stinks, especially at theater prices. But, they offered you at least 80 bucks in movie tickets on the spot, which ain't too bad, all things considered. Was the manager a jerk? Probably -- but he was probably concerned you were sue-happy, and didn't want to face a potential lawsuit (and it appears his fears will well-founded, no?)

You mentioned a claim against Nestle. Its defense will be that, once the candy is in the theater's hands, Nestle was no longer responsible. (And, once again, you have that sticky issue of proving actual damages.) If, for instance, the theater is bug-infested, how could Nestle be liable for that?

What can you do? First, suck it up and shake it off. In my opinion, your best bet is to write a nasty note to the theater and demand the free movie tickets, and a note to Nestle and request reimbursement for any out-of-pocket expenses you might have. You'll probably get the theater tickets. You might also get lucky and get some free chocolate from Nestle. I wouldn't expect much more.

Can you file a lawsuit? Sure. You can sue anyone for anything. The more important question, which is what you're really asking is: Can you win? The truth is, you might possibly get some nuisance money, but that's only a possibility. (If I'm defending this case, I make you prove your damages, but that's just me.) Me, personally, I'd write the letters, and move on.

What to do when your boyfriend's wife won't agree to divorce him.

2006-02-02T17:22:00.000-05:00

Q. My boyfriend is still married. He got married about 4 years ago and is now trying to get a divorce. He and his wife were married in [one state] but now she lives in [another state]. She will not agree to divorce him. They have no kids together. Is there a way of getting his divorce annd her not knowing about it or is it something that they both need to do together?

A. There are ways to get a divorce (and, in some states, dissolutions of marriages) without the other party being present. For instance, one party can allege something like "abandonment" and, after a set period of time (which is different in every state -- New Jersey is 18 months), the court will enter an order of divorce. Of course, issues like alimony, division of property, child custody, and that sort of thing, cannot be easily sorted out or resolved if both parties are not present. This could make things difficult if your married boyfriend wants to sell the marital home (or have you move in). If his wife objects, it could get ugly, because she has an interest in marital assets, like the home, cars, and other property, that she can exercise even if she doesn't consent to the divorce. The guy you're seeing will most definitely want to consult with a lawyer who specializes in family law in the state in which he's living so that he can explore his options.

One more thing, which is completely outside the legal issue you raised, but it did pop into my head. Now, you are obviously much more familiar with the situation than I am, so I won't presume to know the back story of your relationship. However, I would suggest that you assure yourself that the guy you're seeing is really actively interested in obtaining a divorce, and not just feeding you a line. Believe it or not, some guys actually claim that they wish their wives would consent to a divorce but she's just not willing to do so. This makes it easy for the guy to step out on his wife without having to lose the "security" of his family while at the same time giving the guy the chance to have a girlfriend on the side. Don't get me wrong. I'm not saying that's what this guy is doing; I'm just saying.

Best of luck to you.

Can an employee become a consultant?

2006-01-18T22:58:00.000-05:00

Q. I have been working for the last 1/2 year for a small company. I was getting paid like most normal businesses, with taxes taken directly out of my paycheck. We have now moved to a new location and have a new Business name, and to save $, my boss wants to pay me as a "consultant" and pay me my gross salary, of which I will have to pay my own taxes. He is willing to cover the extra social security taxes that a "consultant" normally has to pay. However, every accountant I have talked to has said that this is a bad idea and besides losing $, I could get in trouble with the IRS. Also, I will get no unemployment insurance, health, etc if I am a consultant. At first he gave me a choice and once I chose to not be a consultant, because of all of these reasons, he changed his mind and he basically said that I can either quit or accept this. I want to know, is what he is doing illegal, and can I sue him?

A. Your boss is doing what a lot of companies are doing -- eliminating the cost of providing benefits by either downsizing or outsourcing. For instance, some companies hire long-term temps from an agency, rather than hire a secretary, so that the company doesn't have to provide benefits, or worry about personnel (HR) issues. With a temp, and with a consultant, if you don't like the work, or if you don't need the worker, you simply terminate them, or elect not to renew the contract.

It's perfectly legal to do this, by the way. Generally, the accountants are right that it's not necessarily a financially beneficial to be a consultant, but I don't think you'll get in trouble with the IRS if you set yourself up correctly. I could be wrong, so you'll want to sit down with an accountant or tax attorney you trust to explain the pros and cons to you.

It's not always a disadvantage to the employee who turns consultant if you know how to protect yourself. First, as a consultant, rather than an employee, you'll be considered "self-employed" by the IRS, and will get a 1099 at the end of the year, rather than a W-2. As a result, you'll have to pay self-employment taxes in addition to regular income taxes. That's just one of the many tax issues you'll face. You definitely want to consult with an accountant or a tax attorney to sort through the issues you'll be facing. However, you can offset these costs by increasing your hourly consultant's rate to your former employer. Lock everything down a nice tight contract, which you'll title "Consulting Agreement." Set out your hourly rate, the number of hours you work, and even the specific hours you'll work. Hey, if your former boss is giving you lemons, may as well make lemonade. For instance, if he wants a consultant, rather than an employee, then consult on your terms, at hours that are more convenient for you while still getting the job done for your client/former boss.

As for health benefits and such, you'll have to shop around for a company that provides them to self-employed individuals. They're out there; you've just go to find them.

By the way, technically, what your former boss has done is, in essence, fired you and then offered to retain you as a consultant (assuming he's paying you as a consultant now). If he's still paying you as an employee, and then terminates you because you won't agree to be a consultant, you may be entitled to unemployment benefits. I'm not suggesting that you should pursue this option; you can probably get a better deal with a good consulting agreement. However, if the former boss doesn't agree, you might consider exploring these issues with the State.

The other thing you can do, depending on the nature of your job, is to farm your talents out to a temp agency. You may be able to find a long term temp assignment as a .... well, whatever it is you do. Many temp agencies provide benefits after you've worked a certain number of hours for them, and temp work also gives you the opportunity to try on different kinds of office settings.

Good luck. You can make the best of a bad situation if you put your mind to it.

To Co-Habitate, or not to co-habitate....

2006-01-15T17:54:00.000-05:00

Q. I have a question for you regarding Common Law Marriages....Here it goes.

I was involved with this man for 10 years. We lived together and had a wonderful live. We rented [together] and right after 9/11, he talked about buying a home. He said he thought we would have a better chance of getting the mortgage as my credit was bad many, many years back...He also said that his ex wife wouldn't be able to go after me for anything..He went thru a very ugly divorce right after we met.

I agreed to it as I always knew he would do right by me..Well in 2002, we bought the house. I contributed $1,200.00 each month towards the mortgage (excluding groceries, clothes, etc.)

Late last September right after I had back surgery he tells me he needs a break. He needs to know he can make it on his own...I could go on, but I'm sure you know the outcome.

Well, when I asked him to give me back what I put into the home for the last 2 years, he said NO, that it was his house and that he had contacted an attorney and I had no rights.

I moved out and left almost everything. When I tell you that, it's true..I left everything. I moved into an apartment. And here he is living large in this home which has now almost doubled in price.

I did contact an attorney . . . and he told me that I did not have any rights as common law is not considered legal in [my State]. He was a very nice and said I could spend thousands and thousands of dollars, but would lose. He asked, why I didn't sign a cohabitation agreement. I had never heard of it before.

I know nothing can be done, but I thought I'd ask anyway. [By the way], I think everyone should be made aware of this "cohabitation agreement."

A. I really hate these kind of situations because they are so unfair. It sounds as if you, in good faith, relied on a guy you thought you could rely on, but when he was done with you, he dumped you, without any consideration of your time together, the things you did for each other, or the things you did for him. Then, to add insult to injury, he acts like the last ten years was nothing more than a long date.

Unfortunately, that is the risk of getting heavily and deeply involved with someone without the benefit of marriage. With marriage, there are definite rules involved, and ways to divide property. This is not usually so with "live-in" relationships. However, some courts and some states have recognized the unfairness of the "live-in" situations after they end. A co-habitation agreement sounds like a good solution before the fact. For instances like yours that arise after the fact, I know that some states also recognize "palimony" suits. If I remember correctly, California first recognized that folks who lived together for a long period of time, and invested together in things like property, businesses, and stock, each have interests that should be recognized and divided between them once the relationship ends.

I do not know if your state recognizes palimony suits. However, I urge you to contact a family law attorney in your area and ask about a palimony suit, specifically. Make sure you give detail to the attorney when you explain the situation, because ten years is a long time to be living with someone, and investing in real estate, and leaving your personal belongings behind, for you to have to walk away with nothing. I suggest you consult with someone sooner, rather than later, because there may be a time period involved in bringing such an action, if they're recognized at all.

In addition, it's not entirely clear from your question who was on the deed, who was on the mortgage, and who was supposed to pay what to who. If there is some kind of writing to establish that you were paying $1,200 per month towards the mortgage (maybe you made a note on your checks that this was towards the mortgage?), and you paid something like $25,000 or $30,000 towards the mortgage over the past two years, you might be able to convince a judge that you have that much equity in the property and should get it out when the house is sold. This would involve a lawsuit in the equity (or chancery) division of the courts. Again, you'd have to find an attorney who would take the suit, but if someone would do it for a small retainer plus a percentage of your interest, it might be worth pursuing. Of course, you should consult with an attorney in your State about this issue before making any decisions. I could be all wrong under the law in your State, but it's certainly worth asking a question about.

Finally, if nothing else, if you left personal property in the house, and you can establish that it's yours (like photo albums with pictures of your parents, or your clothes, or other personal items that were clearly yours), you may be able to have that property returned to you. Of course, the more time that has gone by since you left the home, the less likely it is that the court will accept your claim about certain types of property, but that depends on the terms under which you left the home, and the property at issue. I mention it only because if you left family photos and heirlooms behind, you should be able to get them back.

Best of luck to you. I hope things work out.

What happens after The Repo Man leaves?

2006-01-15T17:19:00.000-05:00

Q. My boyfriend was a manager in a small inventory co with a couple of cars in their fleet. The company went bankrupt. My boyfriend took over thepayments on his car and gave them the info to repossess the other car. The bank is now coming after him for the balance. We thought if the car was repossesed, that would be the end of it. Can you help?

A. Your question highlights the hazard of trying to answer something without having enough information. Don't get me wrong; I'm not asking you to elaborate. It's just that there are so many possibilities based on the few facts you gave me that there's no single correct answer I can give you. But let's take a shot with some general information.

Ordinarily, if you buy a car and finance it, you have to make monthly payments to the bank that lent you the money. You can usually miss one, or even two payments before the bank gets irritated. However, if you miss too many payments, the bank will send the repo man out to your house and he'll come and snag your car.

You should understand that repossession is usually a remedy of last resort because, really, what is the bank going to do with your car? The bank doesn't drive, and its employees have their own cars. The bank would much rather have you making regular payments because that's how the bank makes its money. But, the bank isn't going to let you slide forever, which is why it has repo men to contact.

Once the repo man gets the car from you, you usually don't have to make any more payments to the bank for any upcoming payments. However, you do owe the bank for payments that you missed. Why? Well, you signed a contract saying you'd make them, and banks are notorious for enforcing those types of agreements. So the bank will come after you for those payments. In addition, after the bank gets the car back from the repo man, it will auction it off. If the bank doesn't get enough money from the sale of the car to pay off your loan, the bank will come after you for the difference between what the car sold for at auction and what you still owed to the bank. This, too, is usually spelled out in the financing agreement with the bank. So, whatever payments you missed, plus the difference between the sale price and the loan balance, equals the amount you would owe the bank. (That number could be negotiated if you could come up with a lump sum -- maybe the equivalent to 50 cents on the dollar -- that the bank would be willing to accept.)

How does all of that apply to your boyfriend's business? Well, that all depends on his involvement with the business. Was he simply an employee, or was he a part owner? Was the vehicle in his name, or in the company's name? Was the company a corporation, a partnership, or a sole proprietorship? If he was simply an employee, with no involvement in the repossessed vehicle except that he got to drive it as a company car, it's unlikely that the bank could legally pursue him personally for any balance due on the car. Of course, the bank would then be entitled to possession of both cars, including the one your boyfriend is driving. If, on the other hand, your boyfriend was a part owner of the company, or otherwise signed some sort of agreement under which he's personally liable for payments on both cars, then he's liable for missed payments and any shortages after the auction, as I explained above.

Your boyfriend should consider consulting an attorney to review all of the paperwork involved here, especially with the mixed bag of bankruptcy law, the repossession, and the bank's attempts to pursue your boyfriend personally.

Best of luck.

Can I get off that deed and mortgage?

2006-01-15T01:12:00.000-05:00

Q. My boyfriend is divorced and part of his divorce decree states that he has no financial obligation with regards to the house he and his ex-wife purchases will they were married.

The problem is his name is still on the deed and more importantly the mortgage. It's a big problem because now he's trying to get a mortgage to buy a house and he's having a hard time getting approved because his credit report shows that he's already has a $200K mortgage. Is there anything he can do to get his name off that mortgage? His ex-wife has been saying she's going to sell or refinance and get his name off of it for 3 years now and she still hasn't. What can he do?

A. This is one of those potentially ugly family law situations. I say "potentially," because it can be rationally and reasonably worked out, if everyone cooperates. I obviously don't know your boyfriend, or his ex, so you'll have to make the call with respect to how cooperative everyone will be. (Since the ex has not taken any action to resolve this for the past three years, I'm guessing that "cooperative" is not the adjective you'd use to describe her. But I digress.)

There are two separate issues here: the name on the deed is one; the name on the mortgage is the other. The deed question is not particularly complicated, and actually, it might have been covered in the final divorce decree. Often, if one party is no longer obligated to make payments on a house, and is not entitled to live there, the Court may order that the party retaining the property obtain a "new" deed, in his (or her) name only. Obtaining and recording (which means filing it with the County) a new deed is relatively straightforward, but your boyfriend should definitely consult with an attorney (presumably his divorce attorney) to sort through the details and to review his divorce decree in order to find out exactly what it says with respect to the property. (This is especially important in light of the fact that it appears that your boyfriend apparently has no obligations to contribute to the mortgage payments.)

The mortgage question is a little more complicated because your boyfriend and his ex are party a contract with the bank. That's what the mortgage, promissory note, and various other papers all amount to, and banks are usually pretty insistent on parties living up to their obligations under such contracts. They generally don't simply release a party from the contract because of a divorce, a business deal gone bad, or most any other excuse you might conjure up. (You can always ask; I'm just assuming that the present mortgage holder is not going to discharge your boyfriend's obligations under the present mortgage simply because he asks.)

One solution is pretty simply. Your boyfriend's ex, if she's reasonable, could agree to refinance the mortgage on the house on her own. She would then pay off the existing mortgage and obtain a discharge of that mortgage from that Bank. In that way, your boyfriend is off the hook.

If that doesn't look like it's going to work (or if there's heel-dragging), your boyfriend could file a motion with the Court to request relief. That takes time and money, but if that existing mortgage is preventing him from getting another mortgage on his own, he may have to go that way.

Given everything that's going on, I strongly recommend that your boyfriend sit down with his divorce attorney, or another attorney of his choosing, and get some good solid legal advice, especially if it looks like he'll have to ask a judge for relief.

By the way, here's an earlier question involving mortgages and deeds from someone else. You might find it interesting, if nothing else.

Best of luck.

My kingdom for a drivers' license

2006-01-15T00:39:00.000-05:00

Q. I have a question about my boyfriends driver's license. It has been suspended for a long time now due to unpaid tickets. How do you go about getting it back?

A. As in most cases, each state is different, so you'll want to check with your State's Department of Motor Vehicles (or its equivalent).
However, here's a general overview of what your boyfriend will probably have to do.

First, if the suspension is only because of unpaid tickets, he'll have to pay all of the tickets off, plus any court costs and fees that may be associated with them. The State isn't going to reinstate a license if fees are unpaid. If the suspension is the result of a court's sentence arising out of unpaid tickets, your boyfriend may have to go to that court as well to show proof of payment.

Second, the State will probably charge a reinstatement fee. That's exactly what it sounds like. Your boyfriend has to pay an extra fee for the state to re-activate is license. I know; that stinks, but that's the way they do things.

Third, I believe that some state's require either re-testing or a driver's education class before reinstating. Your boyfriend should check on these requirements when he contacts the DMV.

As you can see, it can be a complicated and expensive process. That's because the state's mantra is "Driving is a privilege, not a right." The state will make you pay for that privilege, which is why its best not to get any tickets at all.

Good luck. I hope things work out for your boyfriend.

Happy New Year! Now, back to work...

2006-01-12T00:04:00.000-05:00

Greetings, all, and thanks for checking in, as always. Hope the New Year has been treating you well.

As you can see, it's been a bit of time since I've updated here. The reasons are explained here, in my Musings and Observations. However, I'm back now, and better than ever, so it's time to get cracking with some more answers to your questions.

By the way, I want to thank Rocky Allen (and Blain Ensley, of course), who do afternoon drive on WPLJ in New York City. With their return to New York, they've revived the Ask A Lawyer segment on the show, and, as a result, I've got a whole bunch of new folks sending me their questions. I love doing this, so I'm happy to have the added traffic.

I want to remind everyone to read the rules before sending me their questions, just so we're on the same page. But then, feel free to email away, to askalawyer@email.com

Just one more thing. I've already gotten a few questions like this: "Can I sue (x) because (y) happened?" The answer to that question is always "yes, but." See, you can always sue someone. The question the person is really asking is, "Am I gonna score big bucks by suing?" In the vast majority of cases, that answer is usually no. The fact that you received the wrong order at your favorite restaurant, or you purchased an expired package of food from the store, or the cleaners shrunk your favorite shirt, or the neighbor's apples are dropping over the fence onto your yard, are all things that are technically claims you could assert, but why bother? In each of these cases, you would have to prove damages, and in each of these cases, the damages you could assert would be so minimal, it simply isn't worth talking about. I mean, really, how much damage did you suffer by having your shirt shrunk (even if it is your favorite)? Rather than sue, why not ask the cleaner to reimburse you the cost of the shirt? Really, just ask. You'd be surprised how often that works.

And, by the way, the "I want to prove a point," or "I want to send a message" as a justification for these nuisance law suits doesn't fly with me. Color me jaded, but I've seen too many folks fold up their tents as soon as they get the first four figure offer from an insurance company to believe the "send a message" claim anymore. You send a message by writing letters, organizing boycotts of services, hugging a tree, or giving your business to a competitor.

All that being said, I'll do my best to answer your questions, steer you in the right direction, and keep this spot as interesting and entertaining as possible.

Enjoy.

"Don't press charges, and I'll pay you what I owe you. . . ."

2005-11-10T00:32:00.000-05:00

Q. I am owed $330 by someone for a purchased plane ticket. This same person assaulted me and I originally decided not to press charges. I received a letter in the mail stating that I would recieve my money if I signed something saying I would never press charges. Is this legal? Is there a way to get my money without signing this?

A. You've got an interesting life going on here. You bought someone a plane ticket, who then assaulted you, and now will only pay you back if you agree not to press charges for assault. I'm thinking your first step is to get yourself some different friends. But that's not what you wrote me about.

About the $330. Assuming this other person (I can't call this person a "friend," because friends don't act like this) agreed to pay you for the ticket if you bought it, you relied on that agreement before buying the ticket, then you bought it and gave it to this person, you have a valid claim against this person for the amount agreed to. It's based on an oral contract. (I'm assuming it was an oral agreement; if you've got something in writing, so much the better.) You agree to pay $330 dollars for a ticket that this person agrees to reimburse you for. That's a contract. The dollar amount is obviously not huge, which is why your best bet is to file a claim in small claims court in your state. Your local courthouse can give you all the information you need and, the best part is, you usually don't need a lawyer on a case like this. (Of course, I should caution you that winning the case and actually collecting the money are two separate things, and it's not always easy to collect. But that's a separate issue.)

It may be that the other person will deny the contract, or say something like, "I only asked her to look into a ticket; I didn't actually agree to pay her," then the case gets harder. Any documentation you might have to back up the terms of the agreement would be very helpful in court.

Now, as to the the demand for a waiver of your right to press criminal charges before you get paid back. Don't. No need to. The contract is valid and enforceable (assuming, of course, that there was an actual agreement to begin with). Once that agreement was made, and you performed your part, the other person was legally obligated to perform their part -- namely, pay you back.

In fact, you may now have an additional charge on top of the assault. It's generally not legal for someone to make this kind of demand. Some call it "extortion." It would be a tough case to prove in the long run, but it might be a bargaining chip for the prosecutor. You should mention this scenario to the prosecutor when you sign your complaint against this other person for assault. Let me say, though, that if you're in a situation where this person might continue to try to cause you physical harm if you press charges, make sure you have a safe place to go, and a way to stay away from this person before filing a charge that might set someone off. I know that I'm probably overthinking this, but since I don't know anything about your situation, I prefer to err on the side of caution, and so should you.

On a personal note, no one should have to put up with someone assaulting them, for any reason. In my humble opinion, you shouldn't be wasting time with people who hurt you. Take care of yourself, and be careful. I truly hope everything works out for you.

Best of luck.

How long before I know if I got away with that little DUI?

2005-11-09T00:30:00.000-05:00

Q. I got a DUI in Illinois, I was just wondering if there was a statute of limitations for this and what it is, if any.

A. I understand that you got the DUI. But that doesn’t tell me quite enough, so I’ll try to answer this as best I can. (By the way, even before I answer, you should understand that I don’t condone any driving under the influence. There is too much tragedy surrounding drunk driving. If you’ve had too much to drink, or even think you might have had too much to drink, give your keys to a friend or the bartender, or throw them into the woods, lock yourself in your car, and sleep it off in the back seat. It’s not worth it to take a chance.)

That being said, let me start with a quick explanation, just to clarify. In criminal law, a “statute of limitations” is the statute that lists the amount of time within which the State must charge you with a crime. If you’re not charged in that time, the State usually cannot charge you after the statute lapses, or “expires.” (There are, however, saving provisions and exceptions that might apply.) Usually, every state has different periods of time for different kinds of crime. A motor vehicle offense -- like speeding -- might have a thirty day statute of limitations. If you speed on November 1 and don’t get charged until December 2, the statute of limitations would ordinarily prevent the state from ever charging you with that offense. A crime like burglary might have a two year statute. Murder usually doesn’t have a statute of limitations.

Now, as to your question. Is it safe to assume that you got charged with driving under the influence at the time you were doing so? By that, I mean, were you driving on Friday night and you got stopped by the police on Friday night and charged at that time? That’s usually how it happens and, if that’s the case, there’s no “statute of limitations” issue because they charged you when they caught you.

Were you involved in an accident and were unconscious when the police arrived at the scene? Did they take you to the hospital, draw some blood, and do a blood-alcohol content test? Under those facts, the state would have to bring any charge for driving under the influence within the time required by statute after it receives your blood results. I don’t have the Illinois statutes handy, but you (or preferably your lawyer -- and yes, you should consult one) can check the Illinois statutes to see if the charge was timely. If it’s not, there may be a basis for a dismissal. Of course, there may be exceptions to the statute (especially if you were unconscious or uncooperative), so I wouldn’t hang my hat on that hope just yet.

The other scenario that occurs to me is that you were properly charged, but the matter hasn’t come to trial yet. If that’s the case, you may have a speedy trial issue. However, if the matter has been adjourned several times, and everyone has agreed to the adjournments, then that issue is considered waived.

Your best bet is to take your case to a local attorney with all of the facts and get an opinion from him or her. Your local bar association can recommend someone experienced in the field.

Good luck, and next time, allow me to suggest a cab.

What happens when the repo man calls?

2005-11-08T23:27:00.000-05:00

Q. I'm actually asking this on behalf of my brother cause I know he'll never do it.

His truck was repossessed a year ago. The bank that held the title sold it and they're trying to collect the difference between what he owed and what they sold it for. They turned the case over to a collections law firm. He's been dodging their phone calls cause the difference is still several thousand dollars and he just doesn't have the money -- that's why the truck was repossessed in the first place.

What can he do to resolve this issue -- does he need to have a lawyer to act on his behalf, can I act on his behalf? I'm willing to discuss this with them and set up some kind of re-payment plan but I don't know where I stand legally cause I'm his sister not his wife.

A. You’ve got a couple of issues going on here. The first is your brother’s failure to pay for the truck. The second is your desire to act on his behalf (which, by the way, is really commendable. He’s lucky to have you on his side.) I’ll answer your second question first.

You can act on your brother’s behalf, BUT . . . (there’s always a but). The bank, or lending company, or collection agency may not talk to you because you are not on the account. With all of the privacy and confidentiality laws out there now, companies usually don’t have to (and usually don’t want to) talk to anyone but the debtor or the debtor’s legal representative. Part of that is privacy, and part of that is because you can’t commit your brother to do anything. You can promise the moon and the stars, but if the company relies on you, and then your brother says no, what have you accomplished?

You could have your brother give you “power of attorney” to conduct business on his behalf. He would have to sign a form (and usually debt collectors require a form that’s notarized) that gives you the authority to conduct business on his behalf. To protect yourself, it should be a limited power of attorney form that both limits the scope of what you can do, and protects you from actually becoming a target. (You want to act on your brother’s behalf; you don’t want to assume his debts.) You can, but certainly don’t have to, act on your brother’s behalf. But in the long run, it’s his responsibility.

As to the first part of your question, your brother’s obligations on the truck are usually defined by the financing agreement. Most of the time, the agreement explains what happens in the case of a repossession. Hypothetically, let’s say your the truck was worth $10,000 when new, and that’s the amount your brother financed. Let’s say your brother paid $2400 over two years before it was repossessed, leaving a $7600 balance. If the bank sold the truck for $5000, your brother could owe the difference of $2600 if that is what the financing agreement requires. (Of course, you should read the financing agreement carefully. Although it’s not likely, the agreement may provide that the bank’s only remedy is repossession and sale, without any provision for payment of the difference between the sale price and the amount still owing under the original agreement.)

If this is your brother’s situation, you can still negotiate, either by trying to reduce the total amount or by making monthly payments on it. Keep in mind that these collection firms usually get paid a percentage of what they collect (20% to 33% is the range I’ve seen), so they don’t have much incentive to reduce the total amount and take payments. They’ll usually do either/or (but it doesn’t hurt to ask if they’ll do both).

Your brother should come up with a realistic figure that he can honestly meet, either a discounted lump sum (like paying $2000 on a $2600 balance) or a monthly payment. Then, haggle. If they’re looking for $2600, and he can pay $2000 today, offer $1400 in order to eventually get to $2000. The same goes for monthly payments. If he can comfortably make $100 payments each month, he should offer $75 for however many months it takes to get the balance paid off, with the goal to be to settle at $100. Then, if the company takes $75 per month, he’s a little ahead of the game.

The only caution is that, if he makes an agreement, he’s got to abide by it. Otherwise, the agreement would likely be rendered void by his failure to abide by it, and the whole debt will become due.

Finally, he doesn’t necessarily need a lawyer to negotiate a settlement like this. However, if it looks like there are some clauses in the financing statement that might get him off the hook, or if there’s a large amount of money involved, your brother might consider taking it to a lawyer and getting an opinion about what his obligations and options are. Obviously, the amount he owes makes a difference here; if he owes $2000, it’ll probably be cheaper just to pay it. If he owes $22,000, it might make more sense to consult with a local attorney.

Good luck.

Can a husband change his alimony payments to his ex?

2005-11-07T12:23:00.000-05:00

Q. My husband pays alimony 28% of his salary to his ex-wife. His situation has drastically changed since the divorce. He has had a stroke and lost his job. We have 2 small children, all of his children with the ex-wife are over 20. He got a new job which pays 1/2 of the salary he had when the divorce was settled. We are thinking of going into the court and filing a modification to try to decrease the alimony to a lesser amount. My questions is - What is the minimum alimony payment in the state of Massachusetts? Someone said it's 25% is that true? We would like to pay nothing. This woman got 700,000 when properties were sold, and bought herself a piece of property outright. We're struggling to hold onto what we've got. From a paycheck of $992.00/wk, we have to send her $383.00, this leaves us $660 for 4 people to try to survive on. Please try to answer my question.

Thank you in advance for your time.

A. First of all, as to actual percentages and numbers, every state has different schedules and procedures for calculating amounts due for alimony and child support. You have to refer to Massachusetts law on the specifics of the numbers for your situation. You'll most likely need a Massachusetts attorney for that, and you should probably consult one.

However, as to the general concepts you raise, your husband can go to court and file a motion (sometimes called an “application,” and sometimes called a “petition,” depending on the state you live in) for a modification of the terms of the divorce based on changed circumstances. Ordinarily, the terms of the original divorce should address things like what happens when the children reach the age of 18 (or 21) or otherwise become emancipated. The divorce decree may also address what happens in the event or remarriage, loss of job, illness, and other ordinary events, so your husband should review it, just to cover his bases.

If the divorce decree doesn’t specifically address the issues you raise, I suggest that you consult a divorce attorney in your area. Family law is one of those specialized fields in which it helps tremendously to have a knowledgeable attorney on your side. Often, divorce attorneys will work with you on the fee. However, even if you cannot find one, you can still file a motion based on changed circumstances and then explain to the court what the problem is and what relief you are seeking. It’s not always easy, but it can be done.

Good luck.

You should be getting your workers' compensation benefits

2005-09-19T23:51:00.000-04:00

Q. I injured myself on the job and have been on workman's comp since April[.] The [doctor] said I could do light duty but my job said they had no light duty for me [and] to stay on workman's comp but this week I recieved no check and can't get anyone to talk to me[.] [A]ll I get is voice mail and no one ever calls. Can they just stop paying me? [A]nd if they can doesn't my job have to provide something for me? I can't go find a job as long as I'm on workman's comp and I can't afford to not work. [C]an you help me?

A. You’re correct in believing that you should eitherget light duty work from your employer, or you should continue to receive workers’ compensation benefits. You should most definitely consult with a workers’ compensation attorney in your State to pursue this because you do have rights under the workers’ compensation law.

In addition, I’m going to give you a little background that, with any luck, will help you decide what else you may want to do. Remember as you read this that each state has its own laws in this area, so some procedures and legal concepts may be applied differently. That’s why you should consult with a workers’ compensation attorney in your state.

If you’re hurt on the job, you’re entitled to workers’ compensation benefits, the theory being that employers are required to bear the cost of work-related injuries as a part of the cost of doing business. The workers’ compensation laws in this country are designed to protect employers from the cost and expense of defending negligence lawsuits filed by their employees for such claims while at the same time affording protection to employees by providing for relatively swift and sure compensation for their work-related injuries.

If you are temporarily, but totally, unable to work as a result of a work-related injury, you are entitled to temporary disability benefits under the workers’ compensation law. Once you are able to resume work, your right to those temporary disability benefits ends. Obviously, an employer is interested in getting you back to work as soon as possible so that it (or its insurance carrier) no longer has to pay those benefits. You, on the other hand, want to make sure you’re sufficiently healed that you can resume your work without risking any additional injury.

“Light duty” is a concept that has developed to get you back to work sooner, rather than later. A doctor will release you to “light duty” so that you can return to work, thereby ending the employer’s obligation to pay temporary disability benefits. In most cases, if the employer has “light duty” work available for you, you have to take it and return to work. If, on the other hand, the employer has no light duty work available, you should not return to work because the workers’ compensation law does not obligate you to attempt to do work that you are physically unable to do. In such cases, your temporary disability benefits should continue. (This sounds like your case.)

If you are only capable of performing light duty work, and your employer has no light duty work available, you should still receive temporary disability benefits until you are: 1) able to resume regular duty, 2) your employer makes light duty work available to you, or 3) it is determined that you are as healed as you are going to get (which is called “maximum medical recovery,” or some similar appelation). Once you reach either of these plateaus, your employer can then terminate your temporary disability benefits, even if you are not back to 100% of what you were before the injury.

If you’re as healed up as you’re going to get, and you’re not as good as you once were, then you can file a claim under the workers’ compensation law for permanent total, or permanent partial, disability, depending on how badly you are still injured. A permanent total disability is just what it says, and means you are unable to work. You would be entitled to the maximum benefits allowed under your state’s workers’ compensation law for a permanant total disability. On the other hand, a permanent partial disability means that whatever injury you have only partially affects your ability to work. Your state’s workers’ compensation system has a procedure under which the nature and extent of your permanent partial disability is assessed and, if appropriate, an award of some benefits is made to you.

In all of these cases, you would be well served to consult with a workers’ compensation attorney. He or she can fully advise you of your rights under your state’s compensation laws and prosecute a claim on your behalf, if one is warranted. Good luck.

Getting off the Lease with your pesky ex-boyfriend

2005-09-17T15:27:00.000-04:00

Q. I shared an apt with my boyfriend and I moved out. Both of our names were on the lease, but before I left the landlord checked the apt for damages, watched me turn over my set of keys to ex-boyfriend but refuses to remove my name from lease because as he quoted the ex-boyfriend has not had the electric turned back on. Can he do this?

A. I thought I knew where you were going with this, until the last two lines, but let’s see if I can sort it out.

You and your ex-boyfriend both signed the initial lease for the apartment. That makes you both liable for the rent on the apartment for the duration of the lease (which is a contract in which you agree to pay rent). As a result, the landlord is under no obligation to remove you from the lease, whether or not you still live there. Generally, since you both signed the lease, the landlord can come after either you, or your ex-boyfriend, or both, for any lease payments that are due for the duration of the lease, even if on or both of you move out.

To get your name off of the lease, when the end of the term is near, you should notify the landlord in writing that you will not be renewing the lease when it expires. Your lease should contain language about when you must give notice about non-renewal, so read it carefully. That should cover you for any payments after your lease expires.

As far as the issue about the electricity is concerned, I’m not certain what that has to do with the lease, or with the landlord. If the landlord is paying the utilities, and you’re reimbursing him for them, the electricity should be on and remain on during the duration of the lease. The landlord will then simply pay the electric bill out of each month’s rent. If, on the other hand, you and your ex-boyfriend had the utilities in one or both of your names, whoever is on the bill must pay for the utilities. I must confess that I’m at a loss as to what the electricity has to do with your name on the lease, so I’ll just say that you’ve got to pay for the electricity if your name is on the bill, and you don’t have to pay for the electricity if your name is not on the bill. If you’re on the bill by yourself and you’ve moved out, advise the utility and ask them to put the your boyfriend on in your place. They may ask for confirmation that he’s going to assume the bill, but you should be able to work that out.

Investigating things at work

2005-09-16T23:47:00.000-04:00

Q. I would like to know if an employer has the right to question the employees 'peers' concerning an unproved alleged act of misconduct based on hearsay that results in the employees' termination?

A. In a word, “yes.” If you, as the employer, feel the need to conduct an investigation of an employee based on the unconfirmed word of a co-woker, you should do so. In fact, depending on the circumstances, you might be found at fault if you didn’t. Suppose, for example, that Co-worker A told you that Co-worker B assaulted a customer in the parking lot. You have nothing to go on but the hearsay statement of Co-worker A. However, if you didn’t investigate the claim (by talking to other co-workers, to other customers, and to Co-workers B) and Co-worker B subsequently assaults a second customer, and the second customer finds out that you heard about the first assault and did nothing, the second customer could file a claim against you, asserting negligent employment, negligent supervision, and general negligence by keeping a suspected assailant on the payroll and doing nothing about it. Go ahead and investigate.

Getting a Power of Attorney Form

2005-09-16T23:43:00.000-04:00

Q. What steps are necessary to obtain a power of attorney for a disabled spouse?

A. It should not be difficult to obtain a power of attorney for your spouse, provided, of course, that when you say “disabled,” you mean something along the lines of “confined to a wheelchair” or “bedridden” and not “comatose” or “insane.” In the latter two instances, your spouse is not considered legally competent to execute a valid power of attorney form.

For your spouse to be legally competent, your spouse must be lucid, in charge of his or her mental faculties, and aware of the nature and quality of his or her acts. You can be bedridden and still be competent to execute a power of attorney form. Essentially, if your spouse is mentally capable of carrying on his or her own personal business affairs, your spouse is likely competent to execute the form.

If your spouse is competent, the only other thing you need to know is the type of power of attorney form your spouse wants to execute. For instance, if you’re trying to close the sale of a house you own jointly with your spouse, a limited power of attorney form is sufficient. If, on the other hand, your spouse wants you to take over running his or her business, you’d likely need a general power of attorney form. Finally, if your spouse is more concerned with health care questions, you’ll want to look into drafting a living will and a health care power of attorney. In any of these cases (particularly the last two), you should have no trouble finding a local attorney who will work with you, relatively inexpensively, in drafting a form that is appropriate for your specific needs.

When Teens of Divorce Play the "Other Parent" Card

2005-09-14T21:18:00.000-04:00

Q. I have had permanent care,custody and control of my 15 yrs old son [for eleven years]. My son wants to live with his father now. If I give the father custody, will I be required to pay child support to him? Would we have to go through the court system to do this? Or can we make our own agreement?

What are my rights and how much control do I have over this situation?

A. Let me answer your last question first. You have total control over the situation as far as deciding whether to give in to your son’s wishes, and whether you want to trust the father with caring for a teenager with whom it appears he has not lived for over a decade. That’s your call.

As a father myself, I’ve been through the teen years already (and they’re coming around again, too, with my second son), so I’m sure part of your question is the result of whatever teenage angst your son may be dealing with. As you probably know, teenagers often say things and do things simply to get a reaction out of you, or just to be contrary. My oldest threatened to move out several times, usually in a heated moment, until we told him that he could do so, provided that he left all of the stuff in the house that wasn’t his -- things like the DVD player, the TV, the fully-stocked fridge, the mother who did his laundry. He stopped making that particular threat after that. But I digress.

I’m guessing that your divorce decree spells out the particulars of child support, visitation, medical coverage, and all of the various issues that go with raising a child. Those are always subject to modification upon a “change in circumstance.” It can be done by making an application to the court and asking the court to sort it out. It can also be done by agreement between the parties, and then memorialized in a court order. It can also be done without having to go to court at all. However, depending on the relationship you have with your ex, at the very least, you most likely want to memorialize whatever modification you make to the custody arrangement in writing, and have that agreement witnessed and notarized, just so everything is clear.

As for “giving the father custody,” it may not be necessary (or prudent) to do that. You can modify the custody arrangement to be “joint,” and make the father the residential parent (meaning that’s where your son would live). Depending on how close you live to your ex, you could share residential custody, three days at his house and four days at your house. (For schooling purposes, this would probably only work effectively if you both live in the same town.) These are just possibilities; there are dozens of other permutations to custody arrangements.

Child support is a separate issue. If you are receiving it now and your son moves in with his father, you will no longer be entitled to receive it. If he stays with you part-time, the payments would likely be reduced. Child support payments are usually affected by each parent’s income, and each state usually has a system for computing the amount of child support due from the non-residential parent to the other based on income, need, and various other factors. Of course, if you both agree to payments that are different from your state’s guidelines, you can incorporate them into an agreement and the courts will generally defer to your wishes.

Finally, as to the wisdom of this move in general, I don’t know your personal situation, and I don’t know what kind of relationship you have with your ex, or he has with your son, so I can’t begin to tell you whether this would be a good move for you, or your son. As I mentioned above, I suspect that your son’s comments are as much a part of the contrariness that goes with being a teenager as with any actual desire to move in with his father. I am aware of many instances when a teenager expresses a desire to move in with the other parent, only to find that the non-residential parent doesn’t really want the child moving in with him or her. You may wish to spare your son this unique type of humiliation by discussing the matter with the father (if your relationship with him permits such discussions) so that he’s aware of the desire, and you’re both on the same page when you discuss it with your son.

As a final note, your son is 15. In less than three years, he’ll be able to do what he wants anyway. (In some states, he can already petition the court for a declaration of emancipation, if he wants to.) You can always use that carrot as a way to delay this particular decision, along the lines of, “You’re stuck with me until you’re 18. After that, you can do what you want.”

I know how hard it is dealing with a teen. I wish you well.

Revenge is a dish best served cold

2005-09-13T23:33:00.000-04:00

Q. Can a husband whose wife is leaving him for someone else and happens to be a therapist file a non founded claim of sleeping with a client go to the board of ethics to attemt to hurt her, and what will happen. [T]he client he said has never filed any complaint and dosent [sic] know their records were taken yet. [C]an he harm her if no complaint from anyone was ever filed against her[?]

A. Vengeful, much?

I can’t tell who’s writing this. It may be the husband, or it may be an acquaintance of the husband. I also cannot tell for sure who the players are. However, there’s enough ugliness in this question that I feel compelled to respond to it.

As a preliminary matter, I will never understand why one person, even if rejected by a spouse, finds it necessary to inflict harm (emotional or physical) on the rejecting spouse, simply for the sake of doing it. Life is too short to be consumed by such overriding hatred and bitterness. We’ve all been hurt, for goodness sake, and we’ve all been rejected (some of us more than others). We all get over it in our own time and, believe it or not, Husband here will too, without the necessity of lashing out for no particular reason except to be evil.

That said, let’s see if I’ve got this straight: Wife is a therapist and is leaving Husband for Other Man. Husband has, somehow or other, taken (or otherwise gained access to) the Wife/therapist’s client files and wants to assert a baseless claim in front of the ethics board, apparently in the name of one of the clients, that the Wife/therapist has been sleeping with that client. (It may be that the Other Man is also the client in question, but that’s not clear.) Husband now wants to know if that will hurt the Wife/therapist.

This is not a legal question, except for the legal ramifications that may arise as a result of Husband’s immature nastiness. I’ll get to those in a minute.

The answer to the question is: no. We already know the claim Husband wants to file is baseless. How will the assertion of a baseless claim hurt Wife? If the ethics board even bothers to investigate a baseless, unsubstantiated, and presumably anonymous claim, I cannot imagine the circumstances under which the ethics board would impose any sanctions on Wife.

I can, however, very easily imagine a scenario where Wife finds out what’s going on and presses criminal charges against Husband. Those charges would, of course, depend on the circumstances under which Husband came into the possession of Wife’s files. I’m thinking that if Husband broke into Wife’s office to get the client files, the prosecutor would be more than a little interested in investigation that particular breach of the law. I’m also thinking the clients whose privacy rights were violated might also consider filing civil claims against Husband. Nice how vengeance works, isn’t it?

More importantly, Wife’s divorce attorney will probably be salivating over this turn of events, once he or she discovers Husband’s nefarious conduct. Husband can say goodbye to any favorable inferences that any judge who hears his case might have drawn. It’s far better in a divorce action for Husband to assume the role of cuckolded spouse, thereby donning the mantle of “victim,” rather than take on the part of “crazy stalker” who breaks into Wife’s office, steals her files, asserts false claims against her, and generally tries to make her life miserable for no particular reason other than he’s a jerk. That’s all the explanation Wife would need for her decision to go with Other Man, and that’s all the judge would need to bury Husband under the courthouse. Figuratively speaking, of course.

Taking on the education system

2005-09-12T00:30:00.000-04:00

Q. My son is a bright articulate, eleven year old who was retained in the second grade after the newly out of college school psychologist deemed he had no learning disabilities, four years later, he is going to flunk again, despite him recently being diagnosed with ADD [Attention Deficit Disorder], (April of this year), and our family going through a terrible trauma that has been ongoing since January, and not to mention the effects his asthma medication has on his attention span. I was told pretty much, that if I didn't like it too bad, he's being held back, period. End of story. In all of this time, never once was a multifactor evaluation offered, nor was I told of an IEP [Independent Education Program] program, or the fact that he has asthma entitles him to both an IEP, but a tutor paid for at the expense of the school. None of these things were offered or explained to me the past four years, my basic question is this, can I fight his retention and win? If so, what are the best measures for me to take? Can a school legally retain a child more than once in their grade school years? If it helps, I live in the state of Ohio. Thank you.

A. Your question takes us to the somewhat shadowy realm of administrative bureaucracies, of which the state Department of Education may be the most difficult to navigate. First, let me give you a little background to set the stage.

The education of our children is usually in the hands of local school Boards of Education. The members of these boards are the citizens in your community and are usually elected by the town in which they live. They work in conjunction with the Superintendent of your school system, who is roughly analogous to the “president” of the schools. The Board is somewhat similar to the “congress” of your schools. Between them, they set policy, make and enforce rules, and determine such things as curriculum, teachers benefits, budgets, after school programs and, of course, retention policies. If, for instance, the Board determines that it is fitting, in appropriate circumstances, to hold-back a child twice, three times, or even ten times, in his or her academic carreer, it is within its power to do so.

You appear to be aware (even though you state that no one at the school told you about it) that there are programs available for kids with special needs, such as independent education programs and counseling and evaluations for special needs kids. Each school board has its own policies and procedures on how and when to offer these various programs to parents, which are often based on or directed by state statutes and regulations.

You, as a parent, do have a responsibility to investigate these programs, request them from the school if you believe that they are appropriate for your child, and follow-up on your investigations to make sure that what you want for your child is made available to the child.

Local school boards have a great deal of power in administering their schools because the theory is that local boards are more familiar with, and thus better suited to address, the particular needs of their respective communities. This power is not unbridled, nor is it absolute. You can appeal decisions of local school boards. However, those decisions are often difficult to overturn.

Each state has its own appeals process for decisions made by local boards, so I cannot give you a definitive answer on precisely what to do. However, generally, your first step is to raise your concerns directly with the school. Start with the teacher, then go to the principal. Make certain that you document everything that happens by writing a self-serving letter to follow-up, something like, “Dear so-and-so, This will confirm our conversation on such-and-such a date about thus-and-so, after which you refused to do what I asked.” Don’t get personal in your letters; you should avoid using phrases like “you mealy-mouthed little worm,” even though the phrase may be accurate. Just stick to the facts. Keep a copy of your letters for your files, because you will need them later on in your appeals process to show what’s been done (or not been done).

If the principal doesn’t give you satisfaction, you would then bring your issue to the school board (usually at a school board meeting). From their, you would appeal to the state’s Department of Labor and, if you still don’t get satisfaction, most states provide for an appeal either to an administrative law judge or to the law courts (depending on your State’s rules for such things). Ordinarily, you have to take each step in the process to pursue an appeal before you can raise an issue in a court of law. It’s a concept in the law called “exhaustion of remedies,” which simply means that you have to take all of the steps available to you before you can assert a claim in court.

Sounds like a hassle, right? It is. Having raised a few issues with my own local school board, I can tell you that the wheels of justice in this area grind eternally slow, and satisfaction is often very long in coming. There are, in fact, law firms that concentrate on education law because it can be a very specialized and time-consuming field.

To win this kind of case, you need to have documentation from your doctors of your son’s condition. A written report with specific recommendations by the doctor is extremely helpful (and essentially a requirement) to have any hope of getting the school to help you out.

You should be able to take the first few steps yourself. Take your reports, diagnoses and concerns to the teacher, then the principal, then the school board. Be calm, be cool, and most importantly, be persistent. The adage “the squeky wheel gets the grease” is particularly apt when it comes to school boards. They tend to address the problems that are immediately before them and of which they are made constantly aware.

If the school board doesn’t see things your way, you should then seriously consider consulting with a lawyer familiar with the educational laws of your state. That attorney can better evaluate your case and your chance of success on the merits. Good luck.

I Like Easy Questions

2005-09-10T22:27:00.000-04:00

Q. Can I appeal a restraining order issued against me?

A. Yes.

Who do I have to see about copies?

2005-09-10T22:23:00.000-04:00

Q. Thank you for your help! We're an art library, and we're trying to find this information for our own use:

An artist created paintings of "Stations of the Cross" and then gave them to a church as a gift. The pastor of the church (now deceased) gave a photographer verbal permission to photograph the paintings and to reproduce the photographs. Photographer now wants to let the photos be used in a commercial video. Does the photographer own copyright to the photos, or does the church, or artist?

For paintings and sculpture on display in a museum: After our photographer received permission to photograph art works of a LIVING artist, the photographer photographs the work and wants to reproduce the photos. Does the photographer own copyright to the photos, or the museum, or the artist? (For this same question, if artist is deceased, would photographer own copyright, or museum, or artist's heirs?)

A. Copyright law is yet another of those esoteric areas of the law in which it seems only a select few actually know what is really going on. As you might expect, there’s no simple answer to either of your questions. I mean, I could simply say “The photographer owns the copyright to his pictures,” as the answer to both parts of your query, and that might be enough, but the reality is that it’s probably a little more complicated than that. Let me give you some general information about copyrights. Then you can decide how much additional information you might want from a copyright attorney in your area.

First, you should understand that there are federal copyright laws, state copyright laws, and common law copyright principles. The federal laws generally govern, but can be modified by state laws to the extent that those laws do not contradict the federal.

As to the first part of your question, you say that the artist who painted the “Stations of the Cross” (and therefore owned the copyrights to them). The artist then “gave” the paintings to the church as a gift. You should make certain that the paintings were a “gift” as opposed to a “work for hire” that the artist completed at the church’s request. If the church commissioned the paintings, it owns the copyright. If, however, the artist painted the paintings on his own and then gave them to the church, the artist owns the copyrights ... unless he simply abandoned them. (See, it does get complicated.) Under the common law, there is a test of the artist’s intention, which might eliminate the copyright interests all together. Did the act of the artist demonstrate an interest either in abandoning his rights in the work or in dedicating the work to the public? If so, it could be argued that there are no longer any copyright interests attached to his paintings.

Anyway, regardless of who owns the copyright, under the Federal law, the copyright owner has the exclusive right to do or to authorize five basic uses of the copyrighted work: 1) reproduce the work, 2) prepare derivative works based on the work, 3) distribute copies to the public, 4) perform the work publicly, and 5) display the work publicly. The Federal law also recognizes that certain uses of copyrighted material, even without the copyright owner’s permission, are socially useful and “fair,” such as using the work for criticism, comment, news reporting, teaching, scholarship, or research. This is a fact specific question, and is the basis of many of the defenses to copyright infringement cases.

Assuming the church did obtain the copyrights to the paintings, when the church, through its pastor, gave permission to a photographer to take pictures of the paintings and reproduce the pictures, the church did not give up the copyrights to the the paintings; it simply authorized reproduction of them.

What does all of that have to do with the photographer’s copyrights to his pictures? Well, by taking photos of the paintings, the photographer arguably created a separate work of art to which he owns the copyrights. Except....the photographer’s copyright interests in his photos could interfere with the church’s copyright interests in the paintings. Now, this is where it gets really fun. If the church knew the photographer was going to publish the pictures for the world to see, it could be argued that the photographer has the continuing right to further display the pictures of the paintings in the form of a video tape without infringing on the church’s copyright interests. Of course, the nature and extent of the initial agreement between the church and the photographer would control. For instance, what, exactly, did the church give the photographer permission to do? Did the photographer pay any royalty fees for taking pictures of the paintings? If so, were any conditions placed on his use of his pictures? Ideally, the initial agreement between the photographer and the church would have covered all future uses of the photos of the paintings. If it didn’t . . . well, that’s why we have lawyers.

As for Part II of your question, the same principles apply. The artist who created the original work (or his estate) owns the copyright to that work. The photographer owns the copyrights to his photos, to the extent that his copyrights do not infringe on the artist’s copyrights. However, several important issues can impact on each person’s rights. For example, what are the circumstances under which the photographer took pictures of the artist’s work? Did he pay a royalty fee? Did the artist give him permission? Did the artist condone the use? Is the photographer submitting his photos to an art critic, or an author of an art text book, or is he simply taking pictures and hanging them in a gallery as part of an original show?

The best bet is to have an understanding or agreement between the owner of the copyright to the art and the photographer before the pictures are taken. That agreement should define the scope of the photographer’s use -- both present and future -- of the photos. In any case, if you’re facing issues about potential infringements to copyrights, you would be well advised to consult with a copyright attorney in your area.

What's the matter with kids these days? (Part II)

2005-08-27T01:09:00.000-04:00

Q. In the state of South Carolina, can a person be expunged for a felony? This involves 2 people one of which used a play gun to rob a cabbie of $8. My friend was charged with aggravated assault...he didn't use the play gun, just there distracting the cabbie so the other guy could rob him...public defender told him to plead guilty....i am trying to help him get this thing expunged...help.

A. Let me warn you up front that this whole question just ticks me off. I’ll explain why at the end, but let me get some preliminaries out of the way.

First off, this is a case of a little information being a dangerous thing. It appears that you have a misunderstanding of the word “expunged.” To “expunge” something, you obliterate it, erase it, or annihilate it. Generally, the law takes a dim view on expunging people, except in a few cases. (I know, I know. I’m sounding just a little snarky. I warned you, this question ticks me off. But I’ll try to be good.)

Anyway, in the law, the term “expunge” is used in connection with a criminal conviction. In many states, if you have one -- and only one -- criminal conviction on your record, you can petition the court to have that conviction expunged from your record, which means that it is erased. If you’ve had a conviction “expunged,” in most cases the law views you as having never been convicted of a crime. (However, the fact of your arrest may not be expunged, even though the conviction is. The laws of each state govern.)

Expungement wouldn’t apply in your friend’s situation because the case is still pending. It sounds like your friend is trying to figure out how to have the charges dismissed. A dismissal means that the state has decided to drop the case and will not prosecute for the crime. Unless the state has no witnesses, or a particularly bad case, or someone else confesses, it’s not very likely that the state will agree to dismiss against your friend.

Having both prosecuted and defended criminal cases, I can honestly tell you that your friend has some serious problems. I’m guessing the victim probably identified your friend. It may also be that his accomplice (the one holding the “play gun”) flipped on him in order to receive a lighter sentence. The quality of the state’s evidence against your friend is probably why the public defender is recommending a plea.

Now, I know you’re wondering why this question bothers me so much. It’s the way you so off-handedly refer to the “play gun” and the eight dollars that your friend and his accomplice stole from their victim as if the fact that the gun was “only” a toy, and that they “only” got eight dollars from the robbery somehow mitigates what they did. Are you kidding me? Your friend may have known it was a “play gun,” but I’m guessing he didn’t clue the victim into that fact.

Do you think the cabby felt good about things as this robbery went down? Do you think he was saying, “Oh, ho ho! These kids and their funny pranks -- look at that play gun! I’ll just give him the last eight dollars in my pocket as a way of playing along.” Or do you think the cabby’s life might have been flashing before his eyes as he wondered whether he’d ever see his wife again? Do you think that maybe he was wishing he had more than eight dollars in his pocket to give the two thugs who’d hopped into his cab, because he was afraid that eight dollars wasn’t enough to satisfy them and they’d blow him away just for the hell of it?

Oh, I’m sure your friend is regretful now -- now that he’s been caught. But let’s not minimize what happened here. He was involved in a robbery in which the cabby was led to believe that he was in fear for his life by the threat of the use of a firearm against him. You don’t actually have to hurt the guy for an aggravated assault to occur. In many states, if a firearm is involved -- even a “play gun” -- all you have to do is put the victim in fear for his life, or help someone else do that.

Here’s all you have to do to understand why your attitude bothers me so much: Imagine walking by yourself through the parking garage at your local mall at 9:30 at night when two strangers jump out from behind a pillar. No one else is around, and one guy is pointing something at you that sure as hell looks like a gun. The other one is "distracting" you by demanding all of the money in your wallet or they’ll shoot you dead. Your heart starts pounding like a drum in your chest, your mouth goes dry and your palms get all sweaty. Now, answer this: Are you going to take the time to find out if they’re holding a “play gun,” or are you going to pull out your wallet and empty it?

That’s what I thought.

What's the matter with kids these days?

2005-08-27T01:02:00.000-04:00

Q. I moved to Florida from Ohio in 1991. The winter of [19]92 my daughter called me asking for help as the furnace was broken and my grandkids were cold. I gave her my Sears Credit card and approved the purchase of a new one provided she missed no payments. I kept asking for my card to be returne[d] and finally in [19]96 I did get it back in very bad condition.

[In] 6/98, I applied for a small loan at my bank but was told I needed to come in to talk. [T]his has never happened before as I could just call and go in to sign for the [amount] I needed. This is when I discovered that I was being sued for almost $10,000 by Sears in Ohio.

They asked me if I knew who D[xxxx] was so I was sure that she had done something very bad. I called her to ask what was going on but was talked to like a dog. It turnes out that she went to Sears, using my identity and [credit card number], stating that she had "LOST" her card. The[y] approved two cards be reissued. One in her name and one in her husband’s name BUT with my account [number and] her address. I had no knowledge of any of this. She told me that the payments for the furnace were being met ok, and I never heard otherwise.

I called Sears’ law office to see what I should do and was told that she had already been served with legal charges having my name on them and that she was ignoring them. I then called a friend of mine in Ohio (a police officer ) and asked for the papers to file fraud charges on her. He sent them to me and I promptly sent them back. He later called me asking "if I was really ready to do that to D[xxxx]." I thought about this for a long time and decided that I didn't have the hate in me to have her jailed.

Somehow she was able to obtain a lawyer to defend her and she went to court, still signing my name as if she were me. I have all the court record papers to prove this also. She fully admitted all the blame and somehow was able to make a "satisfaction" payment arrangement.

My credit is now ruined after having never been late for anything in my entire 52 years on this earth. I have no way to clear myself from this bad debt on my record with the reporting agencys other than filing a civil suit against her putting the blame where it belongs. I[s] this true and how do I go about it[?] I also want to hold Sears responsible for allowing this to happen. I have all the charge slips that she and her husband occured all those years of living the good life on me. On some of them she signed her name, as he did also, and the rest of them, she (they ) signed my name.

I have tried to talk to other lawyers but I can't afford the outragious pay they ask for. It almost seems like they are afraid of Sears. I don't know where to turn to at this point and I am hopeful that I can get some advi[c]e as to what to do this way. I have los[t] hours and days away from work during all this. It's also putting a very bad strain on my marriage as he is not her father and wanted me to file the charges in the first place. I understand his point of view perfectly. but as you probably know, a child is always in your heart, even though we are not in theirs. I really do need help and if you would head me in the right direction I would be so very grateful.

A. You do have a mess, and that mess is compounded by the fact that your daughter is the cause of it. As you so aptly put, “A child is always in your heart, even though we are not in theirs.” Most parents cannot even imagine doing anything that would harm their child, or cause them discomfort or pain. As the parent of two, I completely understand the motivations that prompted you to lend her your Sears card and then not worry about getting it back for four years. We all know that, if you’d lent the card to your neighbor for an emergency purchase, you’d have been knocking on the door the next month and, if it wasn’t returned, you’d have been closing the account for good if you didn’t get it back in two. But having your daughter involved changes everything.

But, you didn’t ask for my philosophizing. You asked what to do. Essentially, you have been the victim of identity theft. Someone used your card and your account number to secure credit and buy things for themselves without your permission. Just because it was your daughter who did it doesn’t change the fact that your identity was stolen so that someone else could gain from your good credit.

There are several things that you can do. Let me warn you, though, that none of them is guaranteed to remedy your situation or cure any problems you have with your credit history. At most, the things I’ll suggest can help alleviate problems you will have in the future regarding your credit. Unfortunately, the likelihood is that you will continue to have problems down the road that will, eventually, diminish with time.

First, if you haven’t already done so, you should formally notify the credit card company -- Sears in this case -- that you’ve been a victim of identity theft. You should send them a letter, by certified mail, identifying yourself and your account number and briefly explain to them that your daughter used your credit card account to obtain cards for herself and her husband without your permission and then incurred charges that adversely impacted your credit history. (Sears probably already knows this based on the litigtaion you mentioned and the settlement your daughter reached.) Send the letter anyway, because it creates the beginning of a paper trail that will help you explain any problems in your credit history that you may face down the road. (You can whip out a copy of this letter in the future to establish that you’ve taken measures to repair your credit.) In your letter, you can ask Sears to close that account and issue you a new account number and card. You may also be able to have Sears list you as the only authorized user on the account and to require identification verification for all future charges on that account.

In addition, you are entitled to add a statement to your credit report with each credit reporting agency. There are three primary agencies. You can obtain information about them at www.mycreditreport.com. You should notify each agency that you will be adding a statement to your credit report about the fact that you’ve been the victim of identity theft, and then prepare a brief statement, 50 words or less, detailing the fact that you were the victim of identity theft, that the perpetrator was caught, that you did not incur the charges that were in dispute, and that you have closed the account that was the subject of the identity theft.

Finally, you can take steps to rebuild your credit. Take a small loan out from your bank or credit union for the shortest period they allow -- something like a $1000 loan for one year. Then, make monthly payments, but pay it off early -- in nine or ten months. Pay off any credit card balances you might have outstanding or, if you can’t pay them off, make more than the minimum payments for several months to reduce the principal. If you have a low interest credit card with a zero balance, charge 25 or 50 bucks a month for several months, and pay it off in full each month. All of this will help re-establish the credit worthiness that shows up in the reporting companies’ databases by showing a continuing ability to pay.

As for going after Sears for “letting this happen,” you would have a couple of problems making a case against them. First of all, it is clear that you gave your daughter the authority to use your card to make the initial furnace purchase back in 1992. Sears will take the position that you gave her authority to make other charges as well, and there is no way to prove that you didn’t. Second, even if you hadn’t actually given her authority to use the card, presumably you received statements at your home before she changed the address of the account to her home address. Therefore, Sears can argue that you were aware of the charges on the account from 1992 to 1996 and should have said something then. And, if you weren’t receiving statements from Sears because your daughter changed the address, Sears can argue that you should have been aware that you were not receiving statements and thus should have contacted Sears to find out what was going on. In any of these cases, Sears can make the argument that it conducted itself in good faith and simply did what it was supposed to do, which was to allow someone with the apparent authority to charge on your account to make charges on your account.

This is why you are having a tough time finding a lawyer to take the case. There really isn’t a case to take. If you came into my office, I’d tell you everything I just spelled out above, and then let you know that there’s really no legal claim you have on these facts (unless you want to go after your daughter, which you already said you don’t want to do.) Some lawyers don’t do what I do. Instead, some lawyers will quote you a ridiculous fee for a case they really don’t want to take, but if you’re willing to pay big bucks, there willing to spend a few hours chasing a loser case for you, provided you pay them up front.

One last thing. As I mentioned, and as you already know, you could file criminal charges against your daughter for fraud (and, in some states, there are new identity theft laws are on the books). You could also sue your daughter in civil court for any financial loses she’s caused you. We also both know that you’re not going to do that because it’s your daughter. I’m just throwing that out there now because, when the time comes, your daughter will ask you for help again in the future. When that happens, you can point to the fact that you didn’t sue her and didn’t file charges against her as evidence of the amount of help you’ve already given her. She is your daughter, but at some point, you are allowed to say no.

She's Been Too Darn Healthy

2005-08-27T00:58:00.000-04:00

Q. My girlfriend is leaving a job for another. Does the old employer have to pay her for her accumulated sick time??

A. The short answer is: generally, no. Of course, that’s based on the assumption that your girlfriend is what the law considers an “at-will” employee. “At will” simply means that she works for her employer at the will of the employer, until the employer no longer wants her. However, if your girlfriend is a civil servant, or under contract, or a member of a union, or part of a collective bargaining unit that may have an agreement that addresses this question, she may be entitled to pay for accumulated sick time. (It’s these latter types of employment that keep labor lawyers busy.) For instance, if she’s a teacher and a member of the teacher’s union, the union contract most likely covers this scenario. On the other hand, if your girlfriend is a cashier for Joe’s Bar and Grill and is not unionized, she would lose her accumulated sick time if she leaves Joe’s and would not be entitled to be compensated for it. (While it would be nice for Joe’s to offer to pay her for the time she lost, it would not be obligated to do so.)

The Kind of Question I Just Can't Answer

2005-08-27T00:54:00.000-04:00

Q. My dad died in 1993. My mom of course was his heir and the house they had and bank account went to her. Now 7 years later we find out that from a class action law suit he received a judgement of 69,000.00. There was never an estate opened before but now we need to appoint a personal representative and open an estate. When I went to the court house to get a letter of authority the clerk told me she didn't know if I need an unsupervised personal representative form or a supervised personal representative form . Can you tell me which form I need to fill out? I would like to do this today as my daughter has the day off and is taking me and my mom to the court house.

A. I’m throwing this question up on the board to illustrate the kind of question I can’t answer. (This is why I have all of the disclaimers and warnings all over the place.)

Believe me, it’s not that I don’t want to help you; I love throwing my ideas out there if you think it’ll help you. However, some questions are so fact specific and so time sensitive that it makes no sense to send the question to me. Here’s why this question breaks two of the guidelines I have to abide by.

First, as I mention in several places -- if you need an answer “today,” you shouldn’t be throwing questions my way. I’ve been receiving questions for almost six years now, and, as you might expect, I have not been able to answer all of them for a variety of reasons -- sheer volume of question, demands on my time outside of the website, or even the nature of the question. I answer those I can, when I can, but I cannot even speculate as to when, or even if, I’ll get to your particular question. The reality is that the demands of my “real” job and my family limit the time I can spend with you folks. If you need an answer today (or tomorrow, or even this month), you should consult with a local attorney or your local bar association.

Second, I’m answering general legal questions about general legal concepts. A fact-specific question, such as, “Do I need the ‘unsupervised personal representative form’ or a ‘supervised personal representative form’” is a question that I have no way of answering, especially if I don’t even know what state you’re writing from.

Don’t get me wrong. I love to hear from you and I want to help you if I can. But if you wonder why you haven’t received a response, it may be that I simply can’t answer the question you’ve asked.

Did Time Fly?

2005-06-07T23:46:00.000-04:00

Q. Is there a time frame for filing a claim against a store ? I fell in a store . . . [and I] thought I was alright; a few aches and pains that I thought would go away (I did not go to the hospital) but my arm has gotten worse and I am going to have it x-rayed. Is the store still responsible for medical bills or have I passed the time allowed? By the way, I was working at the time; they are aware of this accident.

A. Ahhhh. I love a simple question. Here's the simple answer. Yes, there is a time frame for filing a claim against a store. For a claim such as yours, which appears to be a "tort," most states have a two-year "statute of limitations." That's the period within which you can bring your "tort" claim. Other civil wrongs, such as claims on contracts, have longer periods of time, while still others, such as an intentional tort like assault, have a one-year limitation.

Yours is what we call a "slip-and-fall" case, which is a claim for negligence. Your claim is that you slipped and fell in the store because the store was negligent as a result of . . . . well, whatever the store did. For instance, if the floor was wet from snow and ice, the store had a duty to keep it dry. By not keeping the floor dry, the store was negligent, you were injured, and you suffered damages as a result of your injuries.

So, as long as you can prove that you were injured in the store as a result of the store's negligence (like failing to keep the floor dry), and as long as you can prove what your damages were (like medical bills and loss of motion in your arm), you can and should be compensated. But, and this is the point of your question, you must file that claim before your state's statute of limitations runs -- otherwise, your claim will be forever barred under the law.

One more thing. You mention that you were working at the time. If, by that, you mean that you were working at the store at the time and fell while you were working, then your claim is not a "tort" claim, but a workers' compensation claim. Workers' Compensation is a separate area of the law that deals specifically and exclusively with accidents to employees that arise out of and in the course of employment. These claims, too, have a finite time period for filing, which may or may not be the same as that for torts. In addition, certain things that occur after a work-related accident, such as payment of medical benefits, may extend the time for filing a claim. Also, benefits are different in workers' compensation cases, as are the proofs required and the type of hearing you may receive.

In either case, you should consult an attorney to determine when the time runs for filing your claim. Good luck.

Houses and "Significant Others"

2005-04-16T02:05:00.000-04:00

Q. My significant other and I live together in a home that our landlord has offered to sell to us at a very reasonable price. We would like to continue to live here so we are seriously considering buying. However, I have good credit; he does not. Because of his bad credit he does not want to go through the mortgage loan process so I would be the one actually buying the house. But, since we would be splitting the household expenses like we do now, he wants his name on the deed also.

Is this a good idea? Only my name on the mortgage but both of our names on the deed?

Thanks for your help.

A. You’re really asking me two questions. The first is, should you buy the house from your landlord. The second is, should you put your “significant other” (and isn’t that a loaded phrase?) on the deed, but not on the mortgage. They are two different questions, which (as you might expect) require two different answers.

The first question isn’t really a legal issue at all. Should you buy the house from your landlord? That’s really a question of practicality. You say it’s a good price. Just make sure that it is. Do a little research, contact some realtors, check the papers, and see what houses in your neighborhood, town, and county are selling for. Compare those prices with the price you’re being offered by your landlord. You might also consider having your house appraised (and not necessarily by a mortgage company, which will have an incentive to appraise the house for about the amount of the loan they want to give you). If it’s a good price, real estate is almost always a good investment. As my grandfather used to say, real estate is the one thing they ain’t making any more of.

The second question really isn’t a legal issue, either, although how you decide to act will have legal ramifications. As to the mortgage part of your question, one person with good credit and one person with bad credit often apply for mortgages together, with the person with the good credit being primary on the loan. (You should talk to a good banker, or mortgage lender, about the situation). Plus, the added benefit of two incomes on the application might offset any “bad credit” that your significant other might have. Remember, if you are the only one on the mortgage, you are the only one obligated to pay the mortgage, no matter who else is living in the house with you. If it’s only you on the loan, it’s only you the bank will come after if there are problems.

That being the case, it makes little sense to me to put your “significant other” on the deed for the house if he’s not also paying for the house. He would have all of the benefits of ownership of the house without any of the obligations of paying for it. “Splitting the household expenses” is hardly the same thing as splitting the mortgage payments.

And that brings me to the question you didn’t ask me. I’m certainly in no position to question your relationship with your “significant other.” But you have to question it if you are thinking of buying a house with him. (I’m assuming that, because he’s a “significant other,” he’s not a husband.) That being the case, you should know that there’s a big difference under the law between having a husband and wife on the same deed as opposed to having two “significant others” on the deed. Two significant others might just as well be two strangers in most States and in most instances. With spouses, there are things like “rights of survivorship” that are automatic, but that “significant others” don’t automatically enjoy. Plus, what happens if you and your “significant other” are no longer so significant to each other? If your relationship ends, but he’s on the deed, how easy will it be to get him off the deed and out of the house – especially if he’s not paying for it. When a marriage breaks up, the laws of the states usually help you take care of the division of property. Not so when a relationship breaks up. Depending on the State you’re living in, you might even have to file a lawsuit to get a court to decide who gets the house. As you might expect, that could get ugly.

As I said, whether you put him on the deed or not is not really a legal question. Whether you do or not may have legal ramifications down the road, depending on how your relationship goes, and only you can answer that question.

You didn’t ask for my relationship advice, but I’m going to throw it in anyway. If your significant other is not willing to obligate himself on the mortgage (bad credit or no), I’d think long and hard about sharing ownership of a house with him. I would suggest that such unwillingness to join in the house-buying process, coupled with his apparent comfort with “splitting the household expenses”(just like always), might be an indication of an inability to commit that won’t serve you well down the road.

Finally, I suppose that you could buy the house yourself, with only you on the mortgage and the deed. Then, if you ultimately get married, you could add him to the deed at a later time. (That’s pretty easy to do.) In the alternative, you could enter into a written contract with him in which he agrees to pay you a specific amount each month towards the mortgage payment. This way, you’d be protected. (Yes, I know, it’s not very romantic, but you didn’t ask me how to be romantic. That’s one of my other blogs.)

Good luck. I hope things work out.

Still Daytrading?

2005-03-23T23:28:00.000-05:00

Q. I am a daytrader. I trade stocks for a living. I recently had a problem with a trade and I reported it to the SEC. I trade with an on line broker. The broker closed my account. They did this without warning. In the agreement they state they can close my account at any time for any reason. But it does not say without a warning. I did nothing wrong except use about the only tool I have to complain - the SEC. I spoke with the broker but he said too bad nothing they will do about it. The SEC asked for a response but they say they can't do anything about it. In the meantime I have no income till I transfer which I have already got started.

Do you think I have a case? - Thanks.

A. The question "Do I have a case?" is always difficult to answer, especially when I am faced with limited facts. In this litigious age, it seems that everyone is happy to sue anyone for anything. The question really is do you have a case that has a reasonable chance of success (not that that question is any easier to answer).

You state that you had "problems" with a trade but do not tell me what kind of problems. Did the trade go through? Was it delayed? Was it placed incorrectly? Or were the problems more personal? You didn't like the way the broker talked to you, or the advice he gave you? There's a big difference in these types of "problems." If the broker violated some aspect of your user agreement by not placing the trade, or not placing it quickly enough, you may have the basis for a claim. On the other hand, if you and the broker had a clash of personalities, that's one of those "get over it and move on" moments that we, as functioning adults in a civilized society must learn to deal with.

You also state that you reported the problems to the SEC. That strikes me as a pretty big leap. Did you attempt to work it out with the company first? If not, why not? And what, precisely, did you report? I infer from your statement that you believe that the company, or the broker, violated some securities law. That's a pretty big charge, but if it's true, there may be a basis for a claim there as well.

I'm not trying to elicit additional information. I am, however, trying to frame some of the issues that any attorney will raise with you as you try to find out if you have "a case."

I am only speculating here, but if you didn't attempt to work out your problems with the broker, or allow them the opportunity to work it out for you, that may have been the basis for the termination of your account.

If the terms of your agreement permit termination of your account for any reason, or for no reason, it is likely that the agreement would also permit termination without notice as well.

Finally, there is the question of your damages. Even if you have the basis of a claim on some theoretical level, what damage was done to you? Did you lose money and, more importantly, can you document the amount you lost? Can you prove your damages? If you can't prove damage, what do you hope to recover?

Off the top of my head, and from the limited information you gave me, it appears that any claim you have would be shaky, at best. The broker was probably within its rights to terminate your account. I don't see any damages to you, based on what you're telling me. You're moving your account to another broker, and you don't indicate how you were damaged, if at all.

Nevertheless, it certainly wouldn't hurt to consult with an attorney experienced in SEC law, or commodities trading. Just make sure you've got answers to all these questions, and keep in mind the issues I mentioned above. You can get a referral to an appropriate attorney from your local bar association.

David Kendall

Splitting Lanes -- Do You Feel Lucky?

2005-03-23T22:40:00.000-05:00

Q. I'm a member of . . . a nationwide association of motorcycling entheusists [sic]. In recent weeks the topic of splitting lanes has come up. This is the practice of driving between two lanes of slow moving or stopped traffic on a highway. Our California membership claims that it is not illegal in their state and typically done by CHP officers. Members in FL, IL, AZ, NM, LA & OH also claim they haven't been cited for doing so, after many years of riding. Obviously, the tri-state membership is wondering if this practice is forbidden in our area. I've searched through the NJ Statutes and frankly can't find a definative [sic] answer. Please help.

Thank you.

A. Well, as your question suggests, each state makes its own laws regarding things like traffic offenses. What may be legal in one state can be illegal in another state. Speed limits are but one example. I know that I can drive from New Jersey to North Carolina and face at least 4 different speed limits.

The beauty of traffic laws is that they don't necessarily have to specifically define an offense to make it illegal. If your action violates some provision of an existing law, the statutes don't have to outlaw "splitting lanes" as well.

I'm 95% sure that there is no statute in New Jersey that uses the phrase "splitting lanes" to prohibit the conduct you're describing. However, I know that New Jersey (and many other states) do make it an offense if you "fail to maintain your lane." I betcha a police officer would also write you up for careless operation, and, if the officer was in a really foul mood, maybe even failure to obey a traffic control device (such as the lane markers).

There's another aspect of the practice of "splitting lanes" that you should consider as well. That's good ole common sense. I mean, don't you think it's inherently dangerous to drive between two lanes of traffic on the highway? Hello -- haven't you ever seen people switch lanes on a dime while sitting in traffic? Wouldn't that render you and your motorcycle so much scrap metal and burned flesh? Plus, in this era of "road rage," aren't you just asking for trouble? Can't you see some hot head watching you jump the line and, in a fit of anger, give you a little love tap at the next light?

Seriously, if you need to get there so quickly, maybe you should leave five minutes earlier.

Good luck, and let's be careful out there.

David Kendall

Can We Leave Yet?

2005-03-19T00:36:00.000-05:00

Q. My husband and I are good hard working people that happened to live in a slum. The neighbors are low life drug dealing psychopathic freaks. The managers are a young couple (21 and 23) and they thrive on intimidating people and having drunken screaming matches in front of my kid's bedroom window. We made the decision just last week to get the heck out of here, and have found a much nicer apartment without all the crap, and will be moving in on the first of November. We never signed a lease or month to month rental agreement for this year, nor have we exchanged any verbal agreements with the resident managers or the owners. We simply pay the rent. Are we obligated to give any amount of notice of our move?

A. Based on everything you're telling me, because you don't have a written lease, usually the law presumes that you have a month-to-month tenancy, which you can usually end on thirty-days' notice. (I say "usually" because every state is different, and Wisconsin may have slightly different rules about this. You might want to check this out, either in a local law library, or with an attorney from Legal Aid. Most states have them.) However, assuming Wisconsin is a "month-to-month" state, if you were planning on leaving on November 1, you would usually give notice on October 1.

Of course, I'm guessing your concern is what the managers' reaction will be, and what they might do. You can always give notice on November 1 for a December 1 end date, and then tell the landlord to apply your security deposit to the last month's rent. Sure, you're out your security deposit, but it may be that your piece of mind is worth that. (But note, just like with the month-to-month rules, Wisconsin may have rules about how you can use a security deposit when it comes to the last month's rent.)

Now, if you didn't post a security deposit, you can STILL move out on November 1, without giving any notice at all. Ordinarily, the most you would be liable for is the rent for the month of November (since you've only got a month-to-month lease). The landlord has a duty to mitigate (lessen) his damages, which means he can't just leave your apartment empty in the hope of collecting rent he claims you should have paid. He has to make an honest effort to rent the apartment out at the market rate. If the apartment is easily rentable, you'd probably only face one month's rental, at most (the month you didn't give him notice for [November]). (But, as above, you might want to raise all this questions with a local attorney, admitted to practice in Wisconsin [which I am not] to address these, and any related questions, you might have.)

One more thought occurred to me. If you have access to a video camera, do a walk-through of the apartment just before you leave, taping as you go. Make sure the date shows on the tape as you do. That way, you can document the condition of the apartment in case that ever becomes an issue. That technique has come in handy for friends and acquaintances over the years.

Best of luck to you, and I'm happy that you've got a nice opportunity in front of you!

Here’s the follow-up from the questioner, which is always nice to have:

Thanks so much for your speedy response - I imagine it is going to be an up-hill battle simply because there will be a total of 7 of 16 units open in this complex at the end of the month due to poor management. Three have been open over the course of the last 5 months, and they still haven't been able to fill them, and the only people that will be left after we leave are drug dealers and alcoholics. I have already kissed my security deposit goodbye simply because they will be desperate to keep as much $$ as they can. It's a mess. I will be sending them a letter, though it will be short notice, but I think I will also send a report from the police department for every call to this complex in the last 6 months. I doubt that will keep them from hauling me into small claims court, but with luck the judge will see my point. I will certainly contact an attorney as you suggested just to see what's up with Wisconsin law.

Thanks again.

The Rules, The Disclaimer, and other legalese

2005-03-17T23:29:00.000-05:00

Let’s get some rules out of the way to protect both you and me. As you can see, this is a public forum, and we’re all just hanging out here, shooting the breeze. My answers are for fun, information, and entertainment as I give you some general information that may, or may not, help you out.

Nothing in this blog, or my askalawyer website, is intended to be “legal advice.” Contacting me via email, post, message board, or other means that link you here does not create an attorney-client privilege or an attorney-client relationship.

Any question you send may be posted for the world to see and answered in my blog, on my website, or elsewhere. I won’t use names or addresses in any post, but your questions to me are not private, privileged, or confidential.

What all this mean is that I AM NOT your lawyer and you shouldn’t consider me your lawyer. By sending me an email and asking me a question, you acknowledge that you understand all of this, are agreeing with all of this, and are waiving the right to complain about any of this after the fact.

You shouldn’t use my answers as a substitute for your own lawyer. Under the guidelines set out by the various Bar Associations, and according to the ethical obligations imposed on attorneys (yes, we do have a few!), and mostly because I want you to know that you do not have a cause of action against me if you don't like my answers, I cannot, and am not intending to, advise you as in a "lawyer-client relationship."

I will apply general legal concepts to your questions, but remember, because the laws vary from state to state (and country to country -- this IS the Internet, after all) you should take what I say with a grain of salt.

Also remember that I'm not up there on the top shelves, pulling down the dusty law books and doing in-depth research to answer your questions. All I'm doing here is shooting from the hip with a quick answer that, with luck, will help you out a bit. Or not.

Warning: I cannot guarantee that I will be able to respond to your questions. I am ridiculously far behind in answering questions that people have been kind enough to send me over the years. My hope for this blog is that I will be able to catch up some. However, I get bunches of questions and it takes time to sift through them and get answers out. I have been trying to answer them all, but it ain't easy, folks, so bear with me. Hey, it's hard work being lawyer-like AND entertaining (which is half the fun of doing this)!

I used to believe that I would be able to personally answer all of your questions but experience tells me that that ain’t happening anytime soon, so just bear with me. I’ll try to answer your question as quickly as I can. If you don’t get an answer, it doesn’t mean that your question was bad, or I didn’t know the answer. All it means is I haven’t yet gotten to it. I will post some of the more entertaining questions and answers here for your reading enjoyment -- and to help folks with similar problems.

Finally, if you have an urgent matter (like you're sitting in a county lock-up somewhere, waiting for bail money, or you have a court date tomorrow), or if you already believe that you need a lawyer, do not waste time e-mailing questions to me and waiting for an answer! Go get your own lawyer! God only knows when I'll get through my e-mail to find your question, and you don't want to be stuck waiting for an answer here which may or may not help you. If you need action now, take action now.

All rights reserved.

Ask A Lawyer's New Home

2005-03-12T01:26:00.000-05:00

Well, once we get this up and running, I suspect that it will be much easier to run the Ask A Lawyer show from here. Keep your eyes peeled, and we'll get the postings going soon.