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.