No Lawyer Required – Small Claims Court

Your best friend, or someone you thought of as a friend, asked you for a loan of $2,500.00. You had the money, and you liked the guy, so you said okay. Two months have passed, and he bought a new house. You know he’s not hurting. You called him after you heard about the house and asked when he was going to pay you back. He said he had huge expenses now because of the new house. He said soon. Two weeks later you called again. Again he said soon. You just put the phone down. You’re tired of calling. He said soon again. What to do next?

This situation sounds like a case for small claims court. Here’s what you need to do:

1. Letter

Write your friend a letter. Tell him that he has two weeks to pay you back. Tell him you want to resolve his payment to you in a friendly manner, but if you do not receive a check within two weeks, you will see him in small claims court.

We’re hoping that the letter resolves the non-payment problem. If it does not, you’ll have to continue to step two.

2. File a claim

Go to your local small claims court and complete the forms. You can probably download the forms from your county’s small claims website. Submit the forms to the small claims court. The court will schedule a hearing.

3. Service of process

Your friend has become the defendant. He must be served at least 15 days before the hearing date if the defendant lives in San Francisco county. If the defendant does not live in the county, s/he must be served at least 20 days before the hearing date. A capable adult must serve a true copy of the claim. You cannot serve the defendant.

4. Evidence

You next gather all evidence to submit at the hearing. Evidence would include a copy of the cancelled check that you gave your friend and dates and notes of all phone calls that you made to him. You may want to take a photo of his new house.

5. At the hearing

Small claims courts are generally much more informal that other courts. The judge will ask you questions, and then s/he’ll ask your friend, the defendant, questions.

If you have presented the situation with evidence, the judge will probably rule in your favor.

You’ve won your case, and your friend is now going to pay you back, but suppose he doesn’t. Suppose he is a real jerk and has decided that he wants you to have to work just a little harder to get your money back.

6. Collecting a judgment

You have to collect the judgment. The defendant may pay the amount directly to the court. If the defendant does not have the money, the defendant may have to pay installments.

If your friend refuses to pay, you can complete an Application and Order for Appearance and Examination which would require your friend to appear in small claims court to have his income and resources examined.

You could also consider wage garnishment by completing a Writ of Execution. This writ could also levy your friend’s checking or other bank account.

If your friend has a business with a cash register, a sheriff can go to the business for a till tap. The sheriff can take enough money from the cash register to pay the judgment debt. The typical sheriff’s fee for a till tap is $85.00. We hope your friend doesn’t put you in this situation, but if you are ever in this situation, the purpose of small claims courts is to resolve small problems without the expense of an attorney. This is the do it yourself legal remedy.

Disclaimer: This article is not to be considered legal advice. If you need legal advice, seek out a licensed attorney. Remember that small claims courts do not require an attorney. If, however, the losing defendant appeals the small claims court’s decision, the new venue is a superior court. In a superior court, you will need an attorney.

Persuasive Techniques That Smart Lawyers Use in Court

Being a good lawyer requires a wide range of skills from having a comprehensive knowledge of the law, to being able to speak and perform well in front of an audience. They need to come up with a great strategy that weaves together the most useful facts and relevant laws and they need to be great at working with people and easing the concerns of a range of different clients.

Ultimately though, the main goal of any criminal lawyer is to persuade – to persuade the judge as well as the jury that their client is innocent. This means using the facts well, but it also means using subtle psychological techniques that can help to win over their audience – much the same as marketers and pickup artists might. Here are a few of the most powerful persuasive tools that lawyers can use.

Repetition

The human brain responds well to repetition as it sounds confident and confirms something we’ve already heard as true. In one study it was found that waiters who repeated the orders they took to their customers would on average receive a 10% better tip. Lawyers can use this effect by repeating key points in their case, or by repeating what their witnesses and clients say in order to give it more authority.

Bodylanguage

When we communicate, the vocabulary we use is really on part of the story and unconsciously we will be paying a huge amount of attention to more subtle body language cues. This includes a range of little signs that can make someone seem more truthful – for instance when someone nods their head as they talk. If a lawyer wants to make their case more convincing then, simply using a subtle nod of the head as they emphasise could help to do just that.

Asking Questions

Aristotle was a great philosopher and the mentor of Plato. He had several ideas that helped him to achieve his historical status, but one of the most popular is the ‘Aristotle technique’ which basically means using questions to avoid directly answering awkward questions. For instance then, if someone says ‘where were you at 3pm?’, answering using the Aristotle technique could mean saying ‘why does it matter?’ or ‘what are you implying?’. Of course when used in defence this needs to be done subtly as it can otherwise be spotted by astute lawyers and prosecutors.

Leading Questions and Assumptions

Likewise savvy lawyers can also use leading questions and assumptions to stack the decks in their favour. A classic study in psychology involves showing participants a video of a car crash and then asking them to estimate how fast the other car was going in two conditions. In the first condition the experimenter will ask ‘how fast was the red car going when it bumped into the blue car?’ while in the second they ask ‘how fast was the red car going when it smashed into the blue car?’. Surprise, surprise the participants in the second group would estimate the speed as being significantly higher than those in the first group.

How Lawyers Can Help You To Apply Corporate Law

Corporate law is one of the dominant fields of law in the modern business environments. It focuses on legal matters relating to business corporations, their management structures, compliance with legal requirements and regulations governing corporations. It also extends to regulating the interaction between the company and its stakeholders on the basis of the corporation rules.

Companies require law attorneys specializing in this area to interpret the laws governing corporations and advise on several issues that require legal frameworks. When picking a lawyer or law firm to represent your company, take into consideration the individual’s reputation, rate and representation. The suitability and expertise of the lawyer will affect the company. The lawyer may be an employee of a company if it has an established legal department.

The lawyer assists the company to apply the laws in various occasions as required by the laws as well as in running company legal affairs. The lawyer’s major role is advisory. He examines the legality of decision taken by the company and advises accordingly. He also lays down the procedure for implementing the new decision.

A company requires the services of a lawyer right from its inception. The law has set out a concrete procedure to be followed in incorporating a company. The lawyer assists in drafting the articles of incorporation and other legal documents required by the registrar for the registration of a company.

The lawyer helps the client to execute the requirements as per the provisions of the law. He interprets to the client what the law demand regarding the naming of companies and the minimum and maximum number of partners. He helps in setting up the management structure of the company in line with the law and the company regulations.

The law recognizes a company as a legal entity that can get into transaction with other entities. He assists in drafting of contracts and agreements and ensures proper documentation in the execution of the transaction. The lawyer advises the company on the rights and liabilities regarding each transaction the client company is involved in. He also ensures that the transaction is within the compliant with the law and its legality.

The lawyer represents the company in court in all cases filed against the company. He prepares the defense and appears physically on behalf of the company. He argues out the legality of the company’s decisions and advices on the right approach to a case.

The company lawyer can advice his client on the proposed business or investment. He understands the legal undertakings regarding particular businesses and can advice accordingly. There are many types of corporations and the lawyer can help a client to evaluate the suitability of each type. He can also guide the client on legal restrictions that would affect the business.

The company relies on the lawyer for primary advice on laws regarding contracts, tax laws, bankruptcy and insurance laws. Clients will seek his direction on legal issues that fall outside corporate law. The lawyer should therefore be conversant with other laws in his state.

Factors to Consider Before Hiring a Work Injury Lawyer

A workplace accident can happen when one least expects it, which is why employers impose safety precautions that must be adhered to at all times. Even when safety measures are strictly followed, however, an employee can be injured or become ill while on the job. There are times when injuries occur due to the negligence of the injured employee, and there are others caused by the failure of the employer to provide a safe working environment or the negligence of another employee. Being injured at work is devastating, and most often, injured employees do not know what to do after the accident.

All workplace accidents are different. Injuries can be caused by a variety of factors, including the following: slips, trips and falls; falls from elevated areas or ladders; back injuries from carrying heavy objects; cave-ins; electrocution; or being struck by heavy equipment or machinery. Work injuries can result in expensive medical bills, physical pain, emotional trauma, loss of present and future income, and loss of ability to perform daily activities and hobbies. In addition, the injured employee may not be able to perform the same work in the future.

If you are injured at work, you should seek legal help from an attorney familiar with workers’ compensation cases. An experienced attorney will help ensure that you receive the benefits you are entitled to and are given the ample time to recover from your injuries. Looking for a lawyer requires intensive research to make sure you get the best. Do not just select one just because you recognize the name from television. Instead, research firms on the internet to come up with names of reputable attorneys in your area. Here are a few things to consider before hiring a work injury lawyer:

How many years of experience does the attorney have? Is he a specialist in work-related injuries, or just a generalist? What is his standing in the Bar examination?

What is the attorney’s legal educational background?

What is the lawyer’s track record in work injury cases? If possible, read testimonials from previous clients.

How much does the lawyer charge? Most lawyers operate on a contingent fee basis, which means that you do not pay a legal fee unless you receive compensation in your case.

Once you have narrowed down your list to only four or five names, you need to start contacting each law firm to schedule an initial consultation.

So Your Business Has a Legal Problem – 8 Useful Tips on What to Expect From Your Lawyer

As a business owner, you are usually run off your feet with the challenges of operating your business. The last thing you need to worry about is a legal problem. Many business people put off dealing with a legal problem because they don’t know where to turn, don’t have the time, or most often, are afraid of how much it will cost and how much time it will take.

Legal issues come in many forms:

· A customer failed to pay an account despite many promises. · You just received a letter from a government agency. · You just found out that your former manager has set up a competing business and has stolen your best customer and one of your key employees. · You have just been sued for $100,000. · Someone told you that one of your standard form contracts won’t stand up in court and you are worried about it. · You have a dispute with your landlord. · You have a problem with a US or European customer. · Your business has been defamed on the internet. · You just found that your warehouse manager has been sexually harassing a female employee. · An employee is damaging your business but threatens to sue if you fire him. You are not sure how to handle it. · You are involved with a Workplace Safety Insurance claim.

These examples are just the tip of the iceberg of the kinds of legal issues business people run into frequently.

Tip #1 – Seek out legal help at the first sign of a problem

Suppose a competitor has been passing off its business under your name and it’s costing you customers and sales but it’s hard to estimate the amount. Unless you act promptly, it may be too late to seek an injunction from the Court. If you think you have a claim against another party under a contract, a limitation period begins to run from the time the contract is breached and usually expires two years later. It’s not a good idea to leave the claim to the last minute.

If you have an issue with an employee who is working unacceptably, it’s important to develop a legal strategy as early as possible. The longer you wait, the more it may cost your business.

The short point here is that it is important to seek advice as soon you detect a problem and before anything has been done to make it worse. Crisis management is always more expensive and time-consuming than early response.

Tip #2 – Have a team of lawyers to call on when you need them.

Every business should have a team of on-call lawyers. This is less expensive or complicated than it sounds. All you need are the telephone numbers and email addresses of trusted corporate, employment law and litigation lawyers. Depending on the nature of your business, you may also need an intellectual property lawyer, who deals with trademarks, patents and copyright. You may even need a tax lawyer because not all tax issues can be solved by an accountant.

If the amount of your legal dispute is very small, such as a claim or complaint by a customer for $1,000 or less, it will be uneconomic to hire a lawyer. Fortunately, there are other helpful resources. The BBB has a dispute resolution process which permits BBB businesses and their customers to resolve disputes by arbitration or mediation. You don’t need a lawyer and the only cost is a small administration fee. More information about this process is available on the BBB website.

If your case is in the Small Claims Court ($10,000 or less), you might need a paralegal who specializes in these kinds of cases. Paralegals are now regulated by the Law Society but they are not lawyers and they are not a substitute for an experienced lawyer.

Tip #3 – Learn what to expect when a dispute arises.

As a business person, you have learned that success is often the result of building relationships. The relationships you build with your lawyers can be just as important to your business success as the ones you have with your customers, suppliers, banker and insurance broker. A relationship with your lawyer built on mutual trust and respect will save you many sleepless nights over the years and probably make or save you a lot of money.

There are several ways to find good lawyers for your business:

  • Ask business associates or relatives if they have someone to recommend. If you get a recommendation, find out more about the firm and the lawyer by using some of the research methods below. · The internet is a very useful resource for finding a lawyer but you have to be careful. Any lawyer can list with various online legal directories. Anyone can have a flashy website. You have to move past the flash to find the substance.
  • When looking for a lawyer on the internet, look for someone who has experience in the field you require. The first name on a Google search may not be the best choice. Some lawyers have written extensively about the law. This is a useful indicator of expertise and standing in the legal community.
  • Some lawyers list cases they have been involved in on their websites. Broad litigation experience in complex business matters over many years is a good indicator of competence.
  • The Law Society of Upper Canada (Ontario, Canada) has a lawyers’ referral service. The service provides a name but you have to check the details out yourself. · The Law Society certifies specialists in several areas of practice. Certification as a specialist signals that the lawyer has achieved a higher standard of experience in his/her area but certification isn’t mandatory. Many competent lawyers have long experience in a field without applying for certification. You have to decide if this is important to you.
  • · If your problem is outside Ontario, find a local lawyer first. Many firms have networks with lawyers globally and are able to refer to lawyers in the USA or other countries. Refers between colleagues are often more effective.

When you call, don’t expect the lawyer to solve your business problem over the telephone. The first discussion is for the lawyer to identify whether s/he can represent you and for you to assess whether the lawyer appears to have the skills to deal with your problem. If you have a legal problem the lawyer believes his/her firm can resolve, an office meeting will be arranged.

In business matters, lawyers customarily charge a consultation fee for the first office meeting. At the meeting, the lawyer will give preliminary or urgent advice and develop a go-forward strategy. The lawyer may be able to give a partial fee estimate and will ask for a retainer to cover some of the work. No lawyer can guarantee the outcome. At this early stage, there are usually a lot of unknown matters. While the lawyer may be able to give you a partial fee estimate in a litigation matter, it’s impossible to say with accuracy how much it will cost. It depends on too many unknown factors.

It will be then up to you to decide whether or not to hire the lawyer to represent you further. The decision you make will depend on your sense of confidence in the lawyer. Has the lawyer listened to you? Have your questions been answered? Does the lawyer appear to understand your problem? Has the lawyer presented the risks and downsides of your case? Every case has risks and costs. Beware of a lawyer who tells you only what you want to hear without assessing the strengths of the opposing party’s case.

Some lawyers will accept a monthly or annual retainer which entitles the client to telephone advice a few times a month. More complicated issues require separate engagements.

Tip #4 – The least expensive lawyer is unlikely to be the best person to handle your legal problem

Consider this scenario: you are looking for a lawyer for a complicated lawsuit. You call Mr. Jones, who answers on the first ring. You tell your story, which has many facts the opposite party disputes. Mr. Jones says, “You have a great case. I’m sure you’re going to win.” When you ask how much it will cost, Mr. Jones says “Don’t worry, you won’t have to pay me anything unless you win. Just come on down to my office and we’ll get started.”

Beware of any lawyer who tells you this. While Ontario lawyers are permitted to charge their fees based on contingency, i.e. a percentage of the result, this type of fee arrangement is only rarely applicable in business cases. It never occurs when facts are in dispute, recovery is uncertain or if the amount is small.

When you retain a lawyer, you need a trustworthy advisor, who will point out the weaknesses of your case as well as the strengths. A litigation lawyer who is waiting by the phone for your call and tells you exactly what you are hoping to hear may be too hungry or too inexperienced to manage your case. He may be in over his head and will bail out as soon as your case takes a negative turn. By then, your legal situation may have worsened. It will be more expensive and perhaps impossible to repair it.

Even worthwhile cases require careful analysis and risk assessment. An experienced litigation lawyer will typically do his by for fees on an hourly basis plus GST and any out-of-pocket expenses necessary for your case.

Good litigation lawyers are often in court, at mediation or other litigation procedures, at meetings or discovery. However, good litigation lawyers always call or respond by email within 24 hours. In case of urgency or vacation, the lawyer will arrange for someone in the office to contact you.

Tip #5 – Prevention is better and much less expensive than litigation.

Legal problems are like computer crashes — they are bound to occur, it’s just a matter of time. Unlike computer crashes, some lawsuits can be avoided. Often, businesses owners deal with legal matters only when a crisis arises. They look for the least expensive lawyer to draft their leases, contracts, corporate and employment agreements without regard to skill, competence and experience.

Sometimes, business owners avoid legal steps like failing to make a shareholder agreement, failing to file a trademark application or failing to prepare a non-competition and non-solicitation agreement with a key employee. When served with a lawsuit, they ignore or tear the papers up in anger. These business owners will be caught short when the inevitable occurs. While litigation or arbitration may still occur when there are written agreements in place, you will be in a far more secure position if you have taken precautionary steps before the dispute occurs. If you respond to correspondence and legal papers promptly, you will be better protected than if you ignore them.

Competent legal advice is available for matters such as corporate organization, leases, the wording contracts and other documents you use in your business, partnership and shareholder agreements, your relationships with your employees, your company’s trade names, logos and website, your regulatory compliance, your risk management and litigation prevention techniques. It’s all important to arrange legal affairs to ensure that your personal liability is limited in the case of a claim against your business.

Ensure that the legal issues affecting your business are in good order. This is likely to save you a lot of money and grief in the future. You might even consider having a legal audit or a “business legal checkup”. We plan to write about this topic in a future article in this newsletter. Preventative legal advice may be expensive but it is just as important as fire insurance.

Tip #6 — Don’t assume that ‘going to court’ means ‘going to trial’

If you haven’t been involved in litigation before, you may not appreciate that more than 90% of cases settle before trial. While a trial (or even an appeal) is not always avoidable, lawyers use techniques to try to resolve cases at earlier stages. Business people are looking for certainty and to limit expense and exposure.

It’s never a bad idea to negotiate a settlement with the opposing party but the timing and approach will depend on the case. It is best to negotiate from a position of strength. This may mean holding off negotiations until enough facts and documents have been disclosed to favour your position.

Mediation is another technique lawyers use to achieve settlement before trial. Mediation involves a neutral mediator, who is usually an experienced lawyer, acceptable to all parties. The parties and the lawyers prepare briefs to explain their positions to the mediator. On the mediation date, after an opening session, the parties retire to separate rooms. The mediator will “shuttle” between the parties until an agreement is worked out or an impasse is declared. This process produces a high rate of settlement even in very complicated cases.

Tip #7 – Understand the risks of the litigation process: Why do lawyers emphasize settlement?

Even if you have an airtight case, your lawyer will still recommend settlement. Lawyers assess risk every day. Even the most airtight case could have problems at trial. The judge may prefer the evidence of the opposing party over yours. The other party’s expert witness may be more persuasive than yours. These are just two of many possibilities. A trial is always a last resort.

Another good reason to settle is that even if you win at trial, the case may not be over because

  • The legal costs awarded by the court to a successful party are only a partial recovery of the legal costs payable to your lawyer. · If you lose at trial or if the opposing party does better in court than their settlement offer, you will have to pay a portion of their legal costs. · There may be an appeal which could delay payment for two years or longer.
  • Until a final judgment is granted, a defendant is rarely prevented from dealing with his property – unless the property is the subject of the lawsuit (or some other exceptional situations).
  • The judgment may be unenforceable. The opposing party may be insolvent or go bankrupt. You might not collect anything. · The defendant may conceal his assets or transfer them to family members to make the debt difficult to collect. A separate lawsuit may be necessary to find the defendant’s assets or to declare the fraudulent transfer void.
  • The defendant may have assets outside Ontario. A lawyer in the jurisdiction where defendant’s assets are located may have to be retained to collect the judgment.

A settlement involves a resolution both parties can live with. If the case involves the payment of money, there won’t be a settlement unless payment is made.

Even with these concerns, some cases can’t be settled. The positions of the parties may be so far apart that a trial is necessary. As the case progresses, you and your lawyer will have to revise and update your strategy and estimate the legal cost and risk of each stage of the case. Keep in mind that the opposing party is dealing with similar risk assessment and cost issues as you are.

Tip #8 — Be a good client.

From a lawyer’s perspective, a good client is a business person who does the following:

  • Presents all the facts of the case fairly without exaggeration or deception. Tell your lawyer everything; not just the facts that help you. The rest of the story always comes out and usually with adverse consequences. · Considers the lawyer as a trusted advisor and advocate.
  • Has a well-organized set of relevant documents.
  • Provides other documents and information promptly when requested.
  • Accepts that every case has weaknesses and works with the lawyer to develop a strategy to minimize the weaknesses.
  • Recognizes that the lawyer cannot guarantee the outcome but can only provide effective advocacy to produce the best result, often as a result of negotiation or mediation.
  • If an examination for discovery or trial is required, takes the time to prepare to testify.
  • Asks for clarification on all matters that are unclear.
  • Understands that in litigation matters, it is impossible to predict the fees accurately but that the lawyer will gladly provide estimates of imminent steps in the case.
  • Pays retainers when asked and settles interim accounts promptly when rendered.
  • Considers the lawyer’s recommendations carefully and provides reasonable instructions.

One of our firm’s clients is a technology business which started as a family operation and has grown to the point that its brand is now accepted and recognized globally. Our client’s president knows hows to get the most out of his professional advisors. He is always respectful, trusting of professionalism, intelligence, experience and competence. He is prompt in responding to requests for information, appreciative of good advice and excellent service. He works hard but he usually has a happy and cheerful attitude.

Our client expects is professional advisors to have the same enthusiasm for their work as he does for the operations of his business. And another small matter: our client pays every professional account within 48 hours of receipt. He believes that if he had to challenge his lawyer or accountant’s bill, the professional relationship is not a healthy as it should be. Our client expects fair treatment, excellent service, sound advice, creative strategy, experienced advocacy and determined, no-nonsense negotiations. And he gets all of them in spades! A lot of business people who are dissatisfied with their professional advisors could learn a lot from him.

These tips offer no assurance that your legal matter will turn out exactly as you expect. However, by following our suggestions, the resolution of your business dispute is likely to be a less expensive, less time-consuming and less stressful experience and possibly more successful. Keeping your business legal affairs in good order permits you more time to focus on making your business flourish.