Recently in Business Litigation Category

December 12, 2013

What to Do If You Are Served With a Subpoena

If you are served with legal papers it is important to determine what type of papers you received. Are you being sued or are you being called to court or a deposition as a witness. It is worth a call to a litigation attorney to help you determine what steps to take so that you do not find yourself embroiled in someone else's lawsuit.

What Is a Subpoena?

Thumbnail image for dreamstimeextrasmall_26645051.jpgFirst you must determine if you have been served with a summons or a subpoena. If you have been served with a summons it means you are being sued. Click on this link to see an example of a summons. A subpoena is a document that requires the attendance of a witness or the production of documents at a deposition, trial or hearing. Subpoenas can be served on parties and non-parties to a lawsuit or criminal case. An example of a subpoena can be seen by clicking on this link.

Types of Subpoenas

There are two main categories of subpoenas: deposition subpoenas and trial subpoenas. A deposition subpoena requires attendance and/or the production of documents or other things at a deposition. A deposition subpoena is necessary to compel a non-party witness to appear and give testimony or produce documents at a deposition. Subpoenas are not required to compel someone who is a party to an action to appear.

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August 12, 2013

How to Be Prepared for a Business Lawsuit

The time to prepare for a business lawsuit is before you have been sued or need to sue someone. Keep in mind that most business litigators charge by the hour so to the extent you can present your documents to your lawyer in a thorough organized manner, the more cost effectively your business attorney can represent you. Careful record keeping and document organization are the best ways to help your business litigation attorney. Here are some tips on how you can do this:

Chron.JPG Keep a Detailed Calendar. People do not realize how important it is to keep an accurate calendar of what they do and where they have been until they are embroiled in a lawsuit. A good calendar can prove where you have been and where you have not been. For example, in construction or breach of contract cases, it may be critical to prove how much work was performed and when it was performed. A good calendar entry which documents who you were with, what you did, when you did it, and where you were is invaluable to prove details you may not realize will be important at some time in the future. Similarly, in fraud actions a critical issue is sometimes what the plaintiff knew and when they discovered it. Cases will often turn on when certain information is conveyed by one party to another. A thorough record of meetings can also prove you were not around when information was provided because you can show you were somewhere else at the time. A good calendar can be in written form or on your computer; just make sure it is in a form that will not be lost or destroyed if it is needed. For purposes of determining statutes of limitations it is also critical to have a detailed and accurate calendaring system.

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February 12, 2013

Mediation: What You Should Know

Civil mediation in California (as opposed to mediation in family law or other cases) is a type of alternative dispute resolution that helps parties try to resolve their cases without having to face the time and expense of trial. Although many people have heard the term "mediation" they often do not know what to expect. There are a number of rules and procedures regarding mediation and understanding these procedures may help ease anxiety before mediation occurs.

13310195_s.jpgInitiating Mediation. Mediation may be initiated at any time. Sometimes the parties may agree to mediation prior to a lawsuit and other times mediation is scheduled after a complaint is filed. Mediation can be initiated by the court or the parties. The court may order mediation if it determines that the case is suitable and may be resolved before trial. The parties can initiate mediation by agreement, for example through a mandatory contract clause, or by a signed stipulation. If the parties agree to mediation by stipulation, the stipulation must be filed not later than 90 days before trial, unless the court permits otherwise.

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July 12, 2012

How to Avoid Being Sued For Improper Debt Collection Practices

Debt collection in California is tricky. It is never worthwhile to try to harass or embarrass a debtor into paying a debt. There are a myriad of laws protecting debtors and even though your debt is legitimate it is best to consult with a business lawyer to make sure your debt collection practices will not expose you to liability so that you wind up owing your debtors money. The laws that apply to debt collection in the business world apply equally to debt collection in the horse industry. While each case may vary, it is best to avoid these types of debt collection practices:

771882_money_trap1.jpgDiscussing a Debt with Third Parties. Generally speaking, it is best to discuss a debt only with the debtor or the debtor's lawyer. Under the Federal Fair Debt Collection Practices Act; and the Rosenthal Fair Debt Collection Practices Act communications with anyone but a debtor or a debtor's attorney is prohibited. The publication or posting of "deadbeat lists" not only can violate the California and Federal laws listed above but they can also give rise to an action called known as "Public Disclosure of Private Facts." (See California Civil Jury Instruction 1801). Similarly, comparing notes with other vendors, "black-listing" a client, or other public humiliation tactics expose you to the risk of suit if they result in damage to the debtor. Even mentioning the debt can be risky. Further, if the information you convey is not completely accurate you also face the possibility of being sued for defamation. You may not communicate with the debtor's employer or trainer or any horse show or horse association regarding the debt unless you are specifically authorized to do so by law or by a written waiver from the debtor. While you are not obligated to continue providing services, you do not owe anyone an explanation and a statement such as "they owed me money" can be enough to get you sued if you then caused the debtor damage. The best answer is "it is a private business matter" and leave it at that.

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July 2, 2012

What is Defamation? The Basic Elements of Slander and Libel.

Last week in United States v. Alvarez, the United States Supreme Court struck down the "Stolen Valor Act" which made it a crime to lie about receiving a military decoration or medal. The court recognized that a lie, in and of itself, is protected by the First Amendment unless it creates some "legally cognizable harm." One of the types of "legally cognizable harm" recognized by the court was defamation. In California, the rules on defamation change depending on whether the defamed individual is a public figure or a private figure and it also depends on whether the lie is about a matter of public concern or private concern. As a business law litigation attorney, most of the defamation cases I deal with involve private figures who are defamed about private matters. Most of our cases arise in a business context where two parties have a dispute and then tell others about their point of view.

Gossip.jpgThe elements of this type of defamation action can be found in the California Civil Jury Instructions. First, the statement had to be made to a person other than the Plaintiff. In other words, it is not defamation to tell someone a lie about themselves. If some one writes a letter addressed to you personally telling you that you cheated them on a real estate transaction, that alone is not defamation; the statement had to be made to someone else. However, let's say you are in a crowded elevator and someone loudly shouts defamatory statements to you. Since the statement was heard by others, that may satisfy this requirement.

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