Author: Luci Prosapio
SOURCES OF LEGAL INFORMATION
South Carolina Bar
950 Taylor Street
Columbia, SC 29202
Tel: (803) 799-6653
Fax: (803) 799-4118
South Carolina Centers for Equal Justice
P.O. Box 10706 FS
Greenville, SC 29603
North Carolina Bar Association
8000 Weston Parkway
Cary, NC 27513
Tel: (919) 677-0561
Fax: (919) 677-0761
Please be aware that all states have bar associations, legal aid organizations, consumer organizations and other sources of legal assistance. Most law schools also have clinic programs which offer free legal advice and representation to the public.
National Consumer Law Centers, Inc.
Many people realize that certain words used in a legal context may mean something different than they would in everyday usage. However, few realize how important it is to understand legal terms when they are used in a contract or other documents that affect their rights, duties, and legal interests.
I strongly suggest that everyone purchase a dictionary of legal terms or use one at a library or on the internet. Such a reference defines every legal term you are likely to encounter and also provides quotes from cases that help explain the legal context of the words.
Examples of words that have different everyday usage meanings and legal definitions include:
- Assault — Normal usage: a violent attack, either physical or verbal. Legal definition: an unlawful attempt or threat to injure another physically.
- Binder — Normal usage: a notebook with rings or clamps for holding sheets of paper. Legal definition: a payment or written agreement legally binding the parties to an agreement until the completion of a formal written contract.
- Complaint — Normal usage: an expression of pain, dissatisfaction, or resentment. Legal definition: the written document filed by the plaintiff in a civil action, setting forth the claim on which relief is sought.
- Battery — Normal usage: a device for storing electric current energy. Legal definition: the unlawful use of force to injure another person.
Do you find after looking over these examples that your understanding of these terms has changed a little, or a lot? If so, you have the perfect illustration of my point that using a law dictionary can be critical to safe passage through a legal minefield.
This is the Introduction to my book, Never Lose Again, to be published soon. Please contact me or go to www.joelyles.com for more information on ordering your own copy of this valuable resource.
Blessed are the peacemakers…
Everybody loves a winner. At least that is what popular culture would have us believe. Tiger Woods…Michael Jordan…Julia Roberts…Donald Trump…Warren Buffet…Oprah Winfrey…Bill Gates. The media loves these winners. Judging by the amount of media coverage these superstars receive, you would think that the rest of the world is made of worthless losers.
But what about the losers? Where is the media coverage for losers? We don’t want to hear about them. It’s not that we don’t sympathize with losers, it’s just that the stories about losers don’t hold our attention. (Pat Conroy makes this point in his recent autobiographical book, My Losing Season.)
Young people are indoctrinated to believe that they should strive hard to win and that they should not compromise. History books are filled with battles won, but rarely mention battles avoided. Quiet compromises that move a country forward, peacefully, are quickly forgotten.
It seems that compromise is a dirty word in America. Although it should be if you are talking about compromising your ethics, here I am talking about compromising conflicts, businesses or gambles. Most of us accept, although begrudgingly, that compromise is a key part of the political process; that legislation which passes and becomes law is the result of compromise between competing factions. But few people realize that compromise is the reality of life and is the vital oil that keeps the wheels of our civilization turning. Without compromise our government, businesses, commerce, healthcare system and educational institutions would grind to a halt. Without compromise friends would fight, spouses would divorce, families would disintegrate and even armies would fall into chaos. Why? Because compromise leads to agreement and people working together accomplish much more than people working at odds with one another.
Of course, every agreement is preceded by negotiations. If you properly prepare for those negotiations you will get most of what you want from them. The art of negotiating is explained in many books (See Appendix G); however, this book will show you not only how, but also why and when, you should negotiate compromises.
The key to never losing is to plan for a compromise that gets you what you want most, whether it is a sale, a job, a monetary settlement or just a weekend away from home. With proper planning you can develop a strategy that allows you to “give in” on issues that are not as important as your primary goal. With this strategy of negotiating over things you are willing to trade away, you can enter the negotiation process with confidence.
There is a vast number of books, articles, seminars, and videos on how to be a winner. They will tell you how to win at investment, gambling, chess, business, sports, romance and just about any other endeavor. This book is for those who are wise enough to want to avoid losing. This book is about the value of compromise; not compromise in matters of integrity, but compromise in matters of conflict or chance. You will learn how never to lose again, even if you compromise. So read on and prepare never to lose again.
If you file a lawsuit, then you have the burden of proof. That means you must present enough testimony in court to convince the jury or judge that you should win. Exactly what you have to prove varies with the type of case. In a negligence case you must prove three points to win your case: (1) an injury, (2) that it was directly or proximately caused by the other side’s conduct, and (3) that conduct causing the injury was negligent (wrongful).
In a civil lawsuit, the definition of wrongful conduct is different than that in a criminal case. Conduct is wrongful in a civil case if it constitutes a breach of duty owed to someone else. In other words, conduct is wrongful if it invades another’s rights.
One type of wrongful conduct is what is known as “negligence.” Negligence is often called carelessness. For example, a careless automobile driver who runs through a stop sign or red light is guilty of negligence because he breached the duty to stop. If that breach causes an injury to another, then he will be liable to that victim for damages.
The burden of proof is often said to be higher or heavier in a criminal case than in a civil case. In a criminal case, the prosecution must prove its case beyond a reasonable doubt. However, in a civil case, the side bringing the suit to court (the plaintiff) must prove its case by the greater weight of evidence (also called the preponderance of the evidence). The plaintiff’s case must be more convincing than the other side’s case. This is considered a lower burden of proof.
Regardless of the burden of proof, you must persuade the jury to believe that you should win. If the jury doesn’t like you or your claim for some reason, you will lose. Generally, jurors don’t like lawsuits that seem unfair or frivolous. Jurors also tend to dislike people who seem to be getting something for nothing or who seem to be making a mountain out of a mole hill.
To win your case in court, you must have incurred significant damages. You are not going to win if you do not seem to be damaged or injured in any way and if you are unable to prove that the other side is responsible for your losses.
You should discuss your case in detail with your lawyer before you have him or her file a lawsuit for you. Talk about what you will be required to prove in order to win; how likely you are to win; how much in damages you are likely to win; what costs you will incur trying to win; what problems you face in proving your case; what evidence you will need to present in court; what witnesses you will use and how your lawsuit will proceed from start to finish.
No one can predict what a jury is going to do on any particular case. A jury trial is hard work. It causes stress on all involved and can be very time consuming. Don’t file for a jury trial unless you are certain you are willing to pay the costs, both financially and emotionally.
There are three basic types of attorneys’ fees that typically are charged for professional legal services:
- Hourly fees
- Set fees
- Contingency fees
An hourly fee is just what it sounds like, a fee charged for services performed, measured at an hourly rate. Hourly rates vary by type of legal services provided, skill and reputation of the attorney, and region. Rates generally range from $75 per hour up to $400 per hour (the higher rates are normally charged in the larger urban areas).
A set fee is a total fee quoted for the entire representation. It may be paid all at once up-front or, if the attorney agrees, in partial payments over time. Criminal case fees are generally paid up front in one payment. Occasionally, criminal fees may be stretched out over several months, but for obvious reasons, a criminal case client is usually required to finish paying his or her fees before the attorney will appear in court on the case. The attorney knows that a client who is incarcerated is highly unlikely to finish paying his fees, and the attorney would have a difficult time enforcing collection as well.
A contingency fee is one in which the payment is contingent upon the attorney making a successful recovery of money damages. Contingency fees are most commonly used in personal injury cases. While the percentage varies, the standard contingency fee is one-third of the recovery.
Typically, the attorney also advances costs in a contingency-fee case that are later subtracted from the proceeds recovered.
A retainer is simply a deposit of hourly fees that an attorney typically receives from the client and deposits into his trust account then periodically withdraws payment of his fees from as he earns them. In years past, some attorneys would charge non-refundable retainer fees, but the modern trend is for retainer fees to be refunded.
People involved in legal disputes often want to make the opposing side pay their attorney’s fees. However, the general rule is that each party must pay its own attorney’s fees. The exception to this rule is where a contract or statute provides for it; for example, when a judge awards the winning side in a domestic case attorney’s fees from the losing side.
Large businesses usually include an attorney’s fees provision in their contracts. For example, banks and financing companies typically include a provision in their contracts that allows them to recover attorney’s fees for having to pursue collection of the loans. Many of the statutes that give wronged parties the right to sue for civil damages will also provide for recovery of attorneys’ fees. For example, most consumers’-rights statutes allow wronged consumers to recover attorneys’ fees if they prevail.
You should have any fee agreements with an attorney in writing. If you are being charged at an hourly rate, then you should request regular statements of your account so you are not surprised at the end of your case by a large bill. Ultimately, what everyone should want is to get competent representation for a fair fee. Neither party should receive a benefit that it is not entitled to receive.
The best lawyer I ever knew, Ernest J. Howard, said, “Don’t buy your legal services the same way you buy your toilet paper.” What he was referring to were lawyers who advertise on television. While lawyer advertising may seem distasteful to some people, it is here to stay. However, do not simply pick the lawyer who has the most impressive advertisement. It’s advisable to do some research instead.
Ernest J. Howard also used to say, “When you need an operation, you don’t try to do it yourself, you go to a professional, a surgeon.” When you have a legal problem, you should do the same thing: “go to a professional.”
Lawyers, like other professionals, come in all shapes and sizes. There are general practitioners and there are specialists, just as in the medical profession. Also, as in the medical world, a good general practitioner will know when to call in, or send you to, a specialist. In general, a practicing attorney has a good working knowledge of what other local attorneys’ abilities are. For example, an attorney will know who is good at a specialty like labor law and who is good at estate planning, which is why you should cultivate a good relationship with a general practitioner. Your attorney will be invaluable at referring you to a specialist, if and when you need such a referral. On the other hand, there are many legal problems that are easily and efficiently handled by a general practitioner.
One of the biggest and most important variables in legal representation is motivation. No matter how bright and experienced an attorney is, if his heart is not in a case, he will not likely do a good job. Conversely, the annals of legal history are filled with examples of highly motivated but inexperienced attorneys winning big, important cases.
Of course, the ideal lawyer is one who is motivated to help you and intelligent and experienced enough to know the best way to do so. But remember that no matter the talents, energy, or experience of the attorney, if the facts and law are against him or her, the case will likely be lost.
In addition, because legal cases can often drag on for years, you must be able to tolerate your lawyer’s personality. No matter what, an attorney is human and has his own quirks. You will have to divulge personal information to your lawyer if you want him to fully understand your case. And to a lesser or greater extent, you will have to rely on your attorney’s judgment. So choose someone with whom you are comfortable and able to communicate. Don’t be shy about investigating your potential legal representative before you retain him or her. Here are some questions you may want answered:
- How long ago did you graduate from law school?
- What legal experience have you had since then?
- What is your experience with my particular type of case?
- How much experience do you have at jury trials?
- Tell me about the last case you tried before a jury.
- Do you consider yourself a specialist? If so, in what area or field?
- What special training or education have you had in that area?
- What type of work comprises the majority of your practice?
- How will your fees be calculated? Will there be separate charges for your paralegal’s time?
- What are the primary costs you anticipate that I will incur?
If you have a weak case or a case that involves a small amount of money or if your ability to pay is severely limited and your case is not going to produce a fund out of which your attorney can be paid, your choices of attorneys will be limited.
Additionally, if you are unable to afford to hire an attorney and don’t have a contingency fee type of case, you can often obtain representation from a legal services corporation attorney or a pro bono (serving at no cost to the client) attorney. A legal services corporation is an organization, which usually gets some government funding and some private charitable funding, with the purpose of providing free or low-priced representation to indigent clients. Unfortunately, the federal budget cutbacks of the 1980s and ’90s have severely limited the legal services corporations’ ability to represent indigent people, and their attorneys are very selective in what cases they will take.
Most state lawyers’ groups (called Bar Associations) have programs that match indigent clients with attorneys who will represent them pro bono.
From the Business of Business section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).
Samuel owned a small trucking company and was persuaded by a salesman to sign up for uniform rental services. These services included a regular pick-up of his employees’ dirty uniforms and a drop-off of laundered uniforms. Samuel’s wife, who functioned as his personal secretary, signed the paperwork. She indicated “Secretary” where the form contract called for a title, even though she was not the official Secretary of the corporation. The contract was typical in that it was almost completely skewed in the favor of the rental company, and it had a term of five years.
After a year or two, Samuel became dissatisfied with the quality of the uniforms that were being supplied to him, so he discussed the problem with the salesman. The salesman convinced Samuel to prepare a written letter that claimed he was satisfied with the service but simply wished to discontinue using it. Samuel simply wrote the letter as a favor to the salesman.
What he failed to realize was that the form contract contained a clause that required a dissatisfied customer to send a written letter that explained his complaints or the customer could not cancel the contract for the reason that the quality of the uniforms or the service was not acceptable.
Samuel later tried to cancel the contract on those very grounds. The uniform rental company insisted that the contract continue.
Samuel stopped making the monthly payment he had agreed to in the contract and was sued for the full amount of the remaining payments that the rental company was entitled to under the terms of the contract.
Samuel had a weak case because the uniform company could easily argue that the contract was validly signed by someone with apparent authority. Almost all corporations, and even many unincorporated companies, have an officer called “Secretary”. My client’s argument that the company Secretary didn’t have authority to sign the contract was weak, especially since the company had ratified the contract was weak, especially since the company had ratified the contract by accepting the uniforms and paying the contractual monthly payment for over a year.
The Lesson: Read a contract before you sign it and when you are considering cancelling it, and don’t expect to get out of a contract on a technicality.
From the Business of Business section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).
A pair of businessmen retained my services to prepare a standard commercial lease. They were friends. Bill owned land and was paying to construct a metal building that Fred, his friend, was going to lease to house his machine shop. They were both experienced in business and had already decided on the basic terms.
However, a few weeks after the lease was prepared and signed, Bill called me with a problem. It seemed that he had expected Fred, the tenant, to remain in the building for at least 10 years, but now Fred was claiming he could and would leave in two years.
I explained that the lease term they agreed upon was in fact written as two years. He said he understood that but he expected his friend to stay much longer so he could be assured of repaying the loan he received to finance the building. I had not been told of this understanding prior to drafting the contract. Consequently, I had to explain that he should have put that expectation in the contract and not relied upon his understanding of his tenant’s plans, even if the tenant was a friend.
The Lesson: This case demonstrates why it is dangerous to go into business with friends. Friends tend to overlook important details, especially those relating to money. But when loss of money becomes a real possibility, a business partner often puts his economic concerns ahead of the friendship.
From the Business of Business section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).
Dave, who was an immigrant with limited formal education, bought a taco stand from a woman who made oral representations that the business was very profitable. She used an attorney to draw up a purchase contract that detailed the series of payments Dave would have to make, but failed to include any representations about either the profitability of the business or other essential terms such as access to parking. And, unfortunately, Dave failed to have an attorney review the contract. He also failed to have an accountant look at the books for the business.
As it turned out, the business had no rights to parking. Without parking, Dave had few customers and could not attract more. In addition to the money Dave paid up front for the business, he spent a great deal of money on operating the business for several months. The business was not making any profits and he soon had to close it. Dave lost everything he paid for the business, plus the initial startup money he invested.
To add insult to injury, Dave was sued by the business seller for the remainder of the payments under the contract.
The Lesson: Be sure to include all important aspects of the deal in any written contract. If it is such a good deal, then both sides should be willing to put all the important promises and representations about it in writing. Also, keep a hard copy of the contract because electronic copies may be corrupted or destroyed.