Week 10 EOC: Lawyer Jokes

Hear about the terrorist that hijacked a 747 full of lawyers?  He threatened to release one every hour if his demands weren't met.



It is St. Patrick's day, and as luck would have it, Kevin comes across a leprechaun.  He pounces on the leprechaun and asks to be granted his wish.

"What might your wish be?" the leprechaun asks.

Kevin pulls out a map of the world and points out a wide swarth of North America.  "That's what I want," he declares.

"That's a rather tall order," the leprechaun says.  "And to be honest, I'm not all that experienced yet in granting wishes.  Is there something else I can do for you instead?"

Kevin ponders this for a while.  "I guess I'll settle for the name of an honest lawyer."

The leprechaun rolls his eyes.  "Let me see that map again."

 

 

Question: Why did the state bar association make it unethical for lawyers to have sex with their clients?

Answer: It wanted to prevent lawyers from billing twice for the same service.

Week 9 EOC: Used Cars

1.       Smoking in a non-smoking area

2.       Assault and Battery

Your Own Argument and Opinions

For the most part, I agreed with everything Mr. Winter explained to me. I didn't really have enough legal clout to immediately debate or confirm, but after looking through the book, it seems that he definitely was correct about the things said. Again, he made sure to tell me multiple times during the interview that law is very vague, and that in law school, they teach you to never paint yourself into a corner. They want you to look at all angles and also both sides, because  only then you can get a clearer picture. You will be able to present an argument better by being a few steps ahead of the other party. For example, you must be aware of all the legalities in hiring employees if you are going to run your own business. Things can get complicated, and sometimes personal. According to labor laws, the book says, “Employers must make reasonable accommodation for a worker's religious beliefs unless the request would cause undue hardship for the business.”(Beatty, J.F. & Samuelson, pg. 341). But what if your employee wants every Sunday off and it is one of the busiest days? You have no choice; it is against the law to not give them the day off. But would you hire them in the first place? Well, that turns into a discrimination case, but only if someone were to find out you were. An employer can just claim their “availability” was not “compatible” with the business’ schedule. See how murky things can become?

It is important to understand how to navigate your way through legal matters, and to be aware. This is because at the end of the day, legally, you can’t feign ignorance. You are legally responsible for every action you take. This is called “negligence.” The book states, “Things go wrong all the time, and people are hurt in large ways and small. Society needs a means of analyzing negligence cases consistently and fairly. We cannot have each court that hears such a lawsuit extend or limit liability based on an emotional response to the facts.” (Beatty, J.F. & Samuelson, pg. 93). When starting my business, it would behoove me to remember the things I have read and learned during this course, and also to refer back to this assignment when need be. Also, this assignment allowed me to befriend a lawyer, whom I can call and talk to concerning legal matters. That is a very beneficial thing, indeed.

Rule of law

There are many complicated laws concerning contracts and hiring of employees, none being simply black or white. He recommended an LLC, as far as a business goes. Most people who do not know much about business might automatically think that a sole proprietorship is the way to go. But that is the quickest way to lose everything if your business goes under. As quoted in the book, “If an individual runs a business without taking any formal steps to create an organization, she automatically has a sole proprietorship. It is, if you will, the default option. She is not required to hire a lawyer or register with the government. The company is not even required to file a separate tax return—all profits and losses flow through to the owner and are reported on her personal return.” (Beatty, J.F. & Samuelson, pg. 373). That means if you run into financial trouble, the debtors can come after your personal belongings to settle the debt, including your house, car, and any other valuables.

But is it always better to go with an LLC instead of an S corporation? The book explains, “When starting a business, which form makes the most sense—LLC or corporation? The tax status of an LLC is a major advantage over a corporation. Although an S Corporation has the same tax status as an LLC, it also has all the annoying rules about classes of stock and number of shareholders. Once an LLC is established, it does not have as many housekeeping rules as corporations—for example, it does not have to make annual filings or hold annual meetings. However, the LLC is not right for everyone. If done properly, an LLC is more expensive to set up than a corporation because it needs to have a thoughtfully crafted operating agreement. Also, venture capitalists almost always refuse to invest in LLCs, preferring C corporations instead. There are four reasons for this preference:

• Complex tax issues,
• C corporations are easier to merge, sell, or take public,
• Corporations can issue stock options, and
• The general legal uncertainty involving LLCs." (Beatty, J.F. & Samuelson, pg. 381).

As far as the drug testing for employees, I had seen a quote from the book stating, “The federal government and most states permit private employers to administer alcohol and drug tests, and a substantial number do. However, the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing federal employment laws, prohibits testing for prescription drugs unless a worker seems impaired.” (Beatty, J.F. & Samuelson, pg.329). So it seems as if the only way to get out of drug testing is if you are a federal employee.

Reasoning of the Law

It seems that the main point that Mr. Winter was attempting to get me to realize is that all things are subjective, especially concerning the law. The thing he kept saying the most throughout the interview was, “It depends.” He went on to explain that law is never simply “black or white.” Everything is very gray, and you have to keep that in mind. A quote that made me think about this point from the book was, “Businesspeople sometimes deliberately choose vagueness. They do not want the terms of the contract to be clear. It may be that they are not sure what they can get from the other side, or in some cases, even what they really want. So they try to form a contract that leaves their options open. However: vagueness is your enemy.” (Beatty, J.F. & Samuelson, pg. 209). It basically is good to keep an open mind and to examine both sides of the law, but at the same time, not to be too wishy-washy, and have to firm description of what you want to accomplish. He is a Real Estate lawyer, so he emphasized to get any and all contract dealing in writing.

The Questions

The questions I formulated for this project had to due mainly with the issues of contracts and the process of hiring people. This is because I might decide to go into business for myself after I graduate from school, so I wanted to make sure I am remaining on the ethical side of the law. According to our book, Introduction to Business Law by Jeffrey F. Beatty, Susan S. Samuelson, and Dean A. Bredeson, “Profitability is generally not what motivates managers to care about ethics. Managers want to feel good about themselves and the decisions they have made; they want to sleep at night. Their decisions—whether to lay off employees, install safety devices in cars, burn a cleaner fuel—affect peoples' lives. When two researchers asked businesspeople why they cared about ethics, the answers had little to do with profitability:

‘The businesspeople we interviewed set great store on the regard of their family, friends, and the community at large. They valued their reputations, not for some nebulous financial gain but because they took pride in their good names.’” (Pg. 20).

Here are the questions and answers from Mr. Winter:

 

1.      When a executor bilateral contract is made verbally, will it hold up in court? Or must you have something in writing? What makes it voidable?

It depends what it is about. Real estate, for example, is all about having it in writing. Certain things don’t have to be in writing to technically be considered a contract.

2.      Often times a job will require new hires to sign a waiver form releasing any and all rights to sue the company in court, instead having to go to mitigation. Are you required by law to sign that form, and if you chose not to, can they legally refuse to hire you?

The place hiring you is allowed to deny you employment. They set the terms, because Nevada is an “at will” state. It is not unreasonable. But, if the case is more serious, like a wage dispute, then it is allowed to be taken to court.

3.      What is the best way to formulate or draw up a contract?

Write it down! Have both parties sign it. It does not need to be notarized. Make sure you show it to someone who is knowledgeable and can help you, like a lawyer. If possible, include an exit/dissolution plan, for when things go wrong. Make sure someone is able to be bought out.

4.      If I own a business and a shipment of merchandise arrives late more than once, can I sue for missed profits?

Maybe. If the contract says so, expectation damages can be collected. But the one who is late delivering is not liable unless it has been written into a contract you both have.

5.      During a job interview, if the employer tells the person being interviewed that they will not be hired based on appearance (hair color, weight, etc.) or body modifications (piercings or tattoos), is it technically discrimination?

Yes, technically it is. But certain types of discrimination have protection in the US under various laws. A place of employment can discriminate based on looks, and it is not illegal. It is not legal to discriminate based on things like skin color or religion.

6.      When is it better to have partners in your business, rather than having a sole proprietorship? What about a partnership?

A partnership can be good in a business, because the reason you form one in the first place is because each party has some skill the other one doesn’t, and they need each other. So if it is advantageous for you to have this person, then yes. Otherwise, you don’t want to do into business with someone else.

7.      When hiring potential employees, how far can you go when choosing to look up personal information, and when can you ask for drug testing?

You can look up someone’s personal information, but only run a person’s credit report if they sign off to it. Drug testing is not illegal, per say. But that does not mean you are overstepping boundaries by doing it. Much of the companies doing drug testing are being forced to do so by insurance. Insurance companies control much of how a business can run.

8.      Is it illegal to hire unauthorized workers, yet it seems to happen all the time. Are laws becoming more lax due to increasing numbers of illegals residing in this country?

With the increase in illegal residents, yes, it is often ignored. But it is not because of lax laws, it is about money. Employers are able to pay illegal people under the table, and can avoid paying taxes, workman’s compensation, and other fees.

9.      When opening your own business with outside investor capital, is it best to go with an LLC or an S corporation (assuming you are not using any “angel investors”)?

It depends on the organizational structure, because there are no tax differences. In general, with an S corporation, you have to worry about control. Each entity is taxed on equal ownership. There is more flexibility in an LLC. You have the ability to say, “I own 1% of the business, but I get 99% profit.”

10.  In the instance of libel, how far can you take a defamation case? Is it even worth perusing legal action against someone who is defaming you say, on a popular internet website?

It depends. How many hundreds or thousands of dollars are you willing to put out verses what you can recover? It may not be worth it to pay a lawyer to take someone to court over a libel case, especially since you more likely than not, won’t win much. Some people don’t care, and will lose money to sue, because they want to teach the other person a lesson.  If it is online, there are 3^rd party laws that protect them from most lawsuits.

After reading the answers to the questions, I thought of this quote from the book, “Businesspeople are optimists—they believe that they have negotiated a great deal and everything is going to go well—sales will boom, the company will prosper. Lawyers have a different perspective—their primary goal is to protect their clients by avoiding litigation, now and in the future. For this reason, lawyers are trained to be pessimists—they try to foresee and protect against everything that can possibly go wrong. Businesspeople sometimes view this lawyering as a waste of time and a potential deal-killer, but it may just save them from some dire failure.” (Beatty, J.F. & Samuelson, pg. 208). Not that it is a bad thing, it is just that lawyers are making sure that you are not being overly optimistic, and missing the important things.

Legal Authority

      In order to find the legal authority I needed to answer the questions I had developed, I first looked to my immediate family. My father has an attorney he works with, and I figured it would be the perfect way to have an “in” as far as not having to search for one. That was the main thing I wanted to avoid during this project; having proverbial doors slammed in my face over the phone. I knew it might discourage me from wanting to go forward, so I really wanted to concentrate my efforts on reaching out to a lawyer that would already be open to taking my call.

 

      After contacting my father multiple times and pretty much getting nowhere, I realized I had to get this ball rolling in some other fashion. The next best thing was the guy I am a personal assistant for, named Jimmy Dague. He is a real estate agent, and guided me to an attorney he had worked with in the past. His name was David Winter, and he had a JD. His concentration was mainly on Real Estate law, and I assume this was how he and Jimmy had become acquainted. Jimmy had told me that David was a very nice guy, and that the work he had done for him was really good. And to quote someone I know, “find a good lawyer” was my goal. It seems as if I had. I was given the number, and called David. He picked up on the first try.

Week 8 EOC: Questions

Questions:

1.       When a executor bilateral contract is made verbally, will it hold up in court? Or must you have something in writing? What makes it voidable?

2.       Often times a job will require new hires to sign a waiver form releasing any and all rights to sue the company in court, instead having to go to mitigation. Are you required by law to sign that form, and if you chose not to, can they legally refuse to hire you?

3.       What is the best way to formulate or draw up a contract?

4.       If I own a business and a shipment of merchandise arrives late more than once, can I sue for missed profits?

5.       During a job interview, if the employer tells the person being interviewed that they will not be hired based on appearance (hair color, weight, etc.) or body modifications (piercings or tattoos), is it technically discrimination?

6.       When is it better to have partners in your business, rather than having a sole proprietorship? What about a partnership?

7.       When hiring potential employees, how far can you go when choosing to look up personal information, and when can you ask for drug testing?

8.       Is it illegal to hire unauthorized workers, yet it seems to happen all the time. Are laws becoming more lax due to increasing numbers of illegals residing in this country?

9.       When opening your own business with outside investor capital, is it best to go with an LLC or an S corporation (assuming you are not using any “angel investors”)?

10.   In the instance of libel, how far can you take a defamation case? Is it even worth perusing legal action against someone who is defaming you say, on a popular internet website?

Week 8 EOC: Bratz Brawl

The company MGA has been involved in a legal battle with Mattel, the company who created and owns the rights to Barbie. It all revolved around someone named Carter Bryant, who was employed at Mattel during the time he created the Bratz dolls. It seems so cut and dry. If this guy was working at Mattel during the time he created the dolls, then he must have stole information, ideas, and other things while creating them, right? Money should go to Mattel. Not so fast. Bryant claims that it was all his idea, and that he owns the rights to the “gig eyes, pouty lips” look of the dolls. As quoted from an article by Tasmin McMahon from Maclean's (http://www2.macleans.ca/2012/03/14/at-long-last-a-doll-detente/) “With their Angelina Jolie lips, bedroom eyes and killer wardrobes, Bratz dolls have shaken up the toy industry, capturing about 35 per cent of the fashion doll market since their debut in 2001. Barbie’s share, meanwhile, has fallen from a virtual monopoly to just over half.” Losing market share is a quick way for a company to go under. Also, Mattel is very strict about licensing their name, and stolen intellectual property. Plus, they were probably just pissed off about the fact that one of their employees “turned” on them, and instead of going through Mattel to promote his new product, he branched out on his own in an attempt to make more money.

After the initial trial, Mattel was awarded money. But MGA had the case overturned and counter-sued. They won, and were awarded $309 million, including $137 million in legal fees. Adding in Mattel's legal fees it paid to fight MGA, the total was nearly $700 million. Naturally, Mattel was not going to take that kind of loss lying down. A Los Angeles Daily News article by Muhammed El-Hasan (http://www.dailynews.com/business/20130124/bratz-mattel-both-claim-legal-wins) states, “Mattel won a partial victory Thursday when a federal appeals court tossed out $172 million in damages the toy giant had been ordered to pay to the maker of Bratz dolls.

The 9th Circuit U.S. Court of Appeals vacated an April 2011 jury verdict that favored MGA Entertainment in a counter-suit claiming that El Segundo-based Mattel Inc. stole trade secrets."

Thursday's appeals court decision was based on a technicality, that Van Nuys-based MGA's trade-secrets counter-suit should not have been tried by the jury because it was not sufficiently relevant to Mattel's suit.” So both parties have pretty much lost out, because neither one has really even won anything, right? Well, according to an article on Tech Dirt by Tim Cushing (http://www.techdirt.com/articles/20121019/17344420768/its-finally-over-8-years-mattel-vs-bratz-no-ones-getting-paid-lawyers.shtml ) “But MGA gets the last laugh. The Ninth Circuit left untouched $137 million in attorney fees and costs awarded to MGA for defending against Mattel's copyright claims.”

Week 7 EOC: Lawyers

Melissa L. Waite-3800 Howard Hughes Parkway, Suite 1600 Las Vegas, NV 89169. 702-699-750

Yvette R. Freedman- 830 Las Vegas Boulevard South, Las Vegas, NV 89101-6723 702-475-3437

Anthony Ciulla- 720 S. Fourth Street, Suite 300 Las Vegas, NV 89101 702-382-6911

Airene Williamson-1060 Wigwam Parkway, Henderson, NV 89074 702-823-3311

P. Sterling Kerr- 2450 Saint Rose Parkway, Suite 250, Henderson, NV 89074 702-608-0835

Adam McMillen-10000 West Charleston Blvd., Suite 240 Las Vegas, NV 89135 775-324-4100

Kelly G. Watson- 10000 West Charleston Blvd., Suite 240 Las Vegas, NV 89135  775-324-4100

W. West Allen-3993 Howard Hughes Pkwy, Suite 600, Las Vegas, NV 89169 702-949-8200

Peter H. Ajemian- 3773 Howard Hughes Parkway, Suite 400N Las Vegas, NV 89169 702-792-3773

Jennifer Ko Craft- 3960 Howard Hughes Parkway, 9th Floor Las Vegas, NV 89169 702-796-5555

Week 6 EOC: Supreme Court Prayer

To be required to sit through a prayer in order to be allowed to attend a Town Board meeting in Greece, New York is something that seems out of the past. There has been prior controversy over this issue, just in different settings. There has been some difficulty along the way as far as how to work something like prayer into political/public settings. To take a snippet from an online New York Times article (http://www.latimes.com/nation/la-na-court-prayer-20131107,0,4489674.story#axzz2jzGHdCpZ), “The justices have struggled for decades to come up with a coherent set of rules for prayers conducted at government forums. Past decisions have allowed public bodies, including Congress, state legislatures and city councils, to open their meetings with prayers, but the justices have also ruled that public officials may not take actions that appear to endorse a specific set of religious beliefs.” This is a very volatile topic, and a sensitive one as well. People get very emotional when dealing with belief. Forcing people to have to pray to a religion or God they do not believe in can ostracize, and created a “bully” type of environment. An article from CNN Politics (http://www.cnn.com/2013/11/06/us/supreme-court-board-meeting-prayers/) stated, “...But Justice Sonia Sotomayor worried about the effect on local citizens who choose not to stand and bow their heads when asked during a public prayer. 'You think any of those people wouldn't feel coerced to stand?'”

Oddly enough, most would think, “there is no way that our government or party in power would ever support this!” But you would be wrong. It had been decided a while ago that prayer is what our very country was founded on. To quote an ABC News article

(http://abcnews.go.com/Politics/wireStory/supreme-court-hears-case-legislative-prayer-20799734),

“Greece is being backed by the Obama administration and many social and religious conservative groups in arguing that the court settled this issue 30 years ago when it held that an opening prayer is part of the nation's fabric and not a violation of the First Amendment.”

Do I personally believe in mixing religion and state? No, not really. I think there is nothing wrong with having a “moment” if you will, before an official meeting or a class, if the situation is appropriate or calls for it. But I am sure there are ways in which something could be written that can apply to every belief system out there. Something that would not offend anyone, and still relates back to an emphasis on coming together out of respect for this country, not one particular faith.

Week 5 EOC: Legal Issues Surrounding The Internet

There are many issues surrounding the invention of the internet we have to be aware of after its invention, and now, explosive expansion. The legal issues I have decided to discuss are domain name issues, free speech, and spam.

As far as domain name issues are concerned, many issues arise from something called cybersquatting.

According to the World Intellectual Property Organization or WIPO (http://www.wipo.int/about-ip/en/studies/publications/domain_names.htm), “...which involves the per-emptive registration of trademarks by third parties as domain names. Cybersquatters exploit the first-come, first-served nature of the domain name registration system to register names of trademarks, famous people or businesses with which they have no connection.... As the holders of these registrations, cybersquatters often then put the domain names up for auction, or offer them for sale directly to the company or person involved, at prices far beyond the cost of registration. Alternatively, they often keep the registration and use the good name of the person or business associated with that domain name to attract business for their own sites.” This is deemed an unfair practice, and there have been many disputes over this. That is why WIPO created the Uniform Domain Name Dispute Resolution Policy, which permits complainants to file a case with a resolution service provider.

The issue of free speech has been brought up a few times in class. The most prominent example that sticks out in my mind being “First Monday In October.” But that had to do with porn on a film basis. This example has to do with it on the internet. The first case addressing the issue was Reno vs. American Civil Liberties Union. This attempt by Janet Reno to go against the ACLU in an attempt to protect minors from pornographic material. On a website for Berkeley Students (http://courses.ischool.berkeley.edu/i206/f97/GroupH/privacy.html), it states that, “The Supreme Court found the Communications Decency Act to be unconstitutional because the expressions "

'transmissions' and 'patently offensive display' were so vague as to abridge First Amendment freedom of speech guarantees. Striking about the decision is the fact that the entire court found the statute unconstitutional; only O'Connor and Rhenquist did not join the majority opinion, yet wrote a concurring opinion. The Court did not agree with the Justice Department's argument that the Communications Decency Act was needed in order to attract more people to the Internet (and thereby enhance Internet commerce) because there is no indication that pornography on the Internet is driving away potential users.” It was struck down by the Supreme Court, but resulted in Title V of the Telecommunications Act of 1996 to effect the internet.

And for the last issue, spam. Everyone hates spam. But some people do actually purchase items from spam, which motivates the spammers to keep at it. As stated on the website for the Washington State Office of the Attorney General (http://www.atg.wa.gov/internetsafety/spam.aspx#.UnW58vlJOAg), “The Federal Trade Commission, the agency with jurisdiction to receive and investigate spam email complaints, reports receiving over 130,000 complaints a day. Almost 45 percent of all email is now spam and that number is growing each year. Nearly three trillion spam messages are sent each year — 13 times the total snail mail delivered by the U.S. Postal service. The average wired American is hit with nearly 2,200 spam messages annually — this after most ISPs have filtered 80-90 percent of the junk messages. Some reports indicate that these numbers could increase by five times in the near future. Junk email is an issue not only reserved for individuals — it is estimated that spam costs legitimate businesses $9 billion dollars a year.” It looks as if spam is here to stay, because it is too difficult to attempt to catch and regulate all illegal spam. The best way to protect yourself is to do things like use your spam filter, don't put your email address out on a public site, and just plain ignoring spam and not replying to it.

Week 4 EOC: Copyrights

The definition of a copyright from Merriam-Webster says, “The exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).” People use copyrights to protect their intellectual property from being stolen and used by others. Upon copyright infringement, the entity holding the copyright can take action against the offending party. These actions include (as listed on www.copyright.gov website): Impounding and disposition of infringing articles, which means they will take away the molds, pictures, or any method that is being used to in violation of the copyright owner. They are also allowed to collect any damages and profits from the infringer. These include the legal costs and fees. 

According to Regina Paul on Yahoo Voices (http://voices.yahoo.com/how-protect-digital-art-online-thieves-253355.html), there are a few things to add to your property to protect it. You must put a watermark on it. She says, “A watermark is a transparent mark that you can put across your images.” Also, you can create a logo. “While anyone can create a logo, and it is not a guarantee this will deter an online art thief, the thief might think twice about stealing an image with a logo if they think that as a business you may the resources to pursue a(n)… (sic) thief.” You need to add a copyright signature. “An example would be: © 2007 by Regina Paul. Adding this to your pictures is one way to let the art thieves of the online world know your work is copyrighted.” You can add the words “All Rights Reserved.” "Adding the words All Rights Reserved to your copyright signature is letting the world know that only you have the right to post or use your artwork unless you give someone permission in writing.”

A recent lawsuit found online at the Salt Lake City Tribune (http://www.sltrib.com/sltrib/news/57034653-78/video-goblin-hall-rock.html.csp) details a case of a video that the newspaper posted to YouTube of two men pushing over a rock formation at the Goblin Valley State Park was taken down by one of the men in the video using the copyright law. Apparently, YouTube told the newspaper that they can file a counter claim. “YouTube sent The Salt Lake Tribune a message Wednesday about the copyright claim and offering tips on filing a counter claim. Both claims and counter claims go through the site’s copyright page.”