KalishLawTexas' legal blog The Woodlands

I am a lawyer, so naturally my mind doesn’t work like a normal person’s mind.  I don’t know if I have always been that way or if law school created that situation.  

If someone asks me a question that they think is “straightforward” and deserves a simple “yes” or “no”, my answer is often “it depends”.   When I am given a fact or piece of information, I can often think of 10 or 15 questions without even trying.

Despite my ability to go on and on, I am going to try to be simple, quick and straight to the point about this issue: If someone said to me, “I am going to represent myself in court?  Quick, what should I look out for?” my answer would be one word- Procedure.

Sure, I could write several pages about being “pro se” (which just means representing yourself).  And I am filled with legal knowledge, if I do say so myself. But the best piece of advice I could think of would be this: pay attention to procedure.

I am pretty sure that anyone who is representing himself or herself in court already knows facts about their situation, knows that they should do some research, and knows that just hoping it will go away is not a good plan.  But where many people get “tripped up” is in ignoring legal procedure.  Here’s why:   There are different procedural rules depending on whether the case is state or federal, agency or courtroom, and which type of law.  The procedures vary depending on the state, the county, the type of court, and even the individual judge!

Procedural rules determine things like what legal pleadings must include, how a party is served notice of a lawsuit, how long parties have to respond, how parties give notice to each other, how hearings/trial are scheduled, how “discovery’ is done and answered, whether parties must go to mediation or not, when appeal is permitted and how it is done, how money is collected when a judgment is won, and many, many more things.  

My point here is this: if you are representing yourself it isn’t enough to just know what the suit is about and something about that type of law. You must also know about the procedure that applies to your case and how to follow those rules.   A trip to the clerk’s office or a call to the staff in the court where your case is filed are good places to begin.  Also, be sure to read every line of every paper that you receive from the court or the clerk’s office (or administrative office or agency) in your case! 

Kalish Law Office, The Woodlands, Texas. “Passionate, Professional and Personal. We Make the Difference”.   www.kalishlawtexas.com  

There are three main considerations when deciding whether or not to change the form of your business.  1) Tax benefit; 2) liability protection; and 3) the time-cost analysis of changing your company’s legal status

Tax Benefit:

Oftentimes the tax benefit analysis is not a “legal question”, but rather an “accounting question”.  If you are unsure of whether you might benefit from a change in your business structure, ask your CPA for more specific information about the different options (incorporation, partnership, LLP or LLC) and what they would mean to you in dollars and cents.

Protection:

As far as asset protection, the first rule is to always have the appropriate insurance policies!    But even the most careful business owner can find him/herself involved in a lawsuit.   You may not have significant assets right now but be aware if that a judgment is rendered against you it may be collectable several years from now.  So you should not ever take asset protection lightly.

If you already have significant assets and your business is doing well it is time to consider taking asset protection to a level beyond the mere purchase of insurance policies. Structuring your business properly will make it a separate legal entity from you.  However, whether or not a business structure protects you and your personal assets depends on the situation, the type of business you are in, and other laws and regulations which apply. You can’t assume that just because you have a corporation or an LLP that you and your assets will be protected in all instances.

Time-Cost Analysis:

If you are a sole practitioner, you are your business and your business is you. If you form a business corporation, your business will be a separate legal “person.”  You will have additional paperwork to do.  In addition to meeting federal tax requirements, you will have to be sure that your information on file with the state is current, your “entity books” are updated regularly, any required annual statements are filed, and your franchise taxes are paid in a timely manner.   Failure to do these things can result in forfeiture of your status.   We have our clients docket the important dates on their business calendars and return to us yearly for a review and update, usually between Jan and April.

Any business entity that is formed must comply with all laws, If you are in a profession which requires a license you will need to be aware of restrictions on what a business may be named, what form of organization may be used, what types of licensed professionals are allowed to practice together, and whether or not an entity may include non-licensed individuals as principals.   

If these additional requirements help you save money, protect your assets, grow your business, and stay out of legal trouble, the time that you spend will be well worth it.   

Plan Ahead

Talk to a business attorney about the types of options available to you.  Explain your current status, your short-term and long-term business and financial goals.  Adequate planning and preparation is the key to success.

To get the most out of your consultation, make a list of your goals and a list of your questions. A summary sheet which describes your business (length of operation, industry, owner/partner information, financial status) will also help the attorney in analyzing the situation.  

Kalish Law Office has been serving business clients in The Woodlands, Texas and surrounding areas since 1984.  www.kalishlawtexas.com  

If a creditor wants to sue, they must do so within the time periods allowed by law. This time period varies from state to state.  However, even if this time period has run, a consumer may “reactivate” the debt by taking certain actions. (Such as promising to pay, corresponding about it, making a small payment, or sometimes even discussing it with a creditor.)

Beware of speaking to creditors about old debts that have expired.  The creditor has a certain amount of time to legally sue you, which is called the “Statute of Limitations”.  When the time limit passes and the original creditor is no longer allowed to file suit, that creditor will often sell the debt to a third party.   The purchaser of the debt may then contact debtors and attempt to collect.  

If you know that the statute of limitations on a debt has expired, you shouldn’t speak to or correspond with the creditor.  (Unless you have the desire and ability to pay the debt and are ready to do so.)  If you choose to do so, you should be aware that you may be “reactivating” the debt and may open yourself up for a lawsuit.

Debt collectors that are attempting to collect debts beyond the statute of limitations have been known to get aggressive, and to misrepresent the facts.  If you receive a call from a creditor involving an “old debt” you should be aware of the following:

1. The creditor may tell you that you will be sued, but may have no legal right to do so.
2. Paying a very old debt may not help your credit report score. The debt may be so old that it no longer appears on your credit report.
3. The “new” owner of this account may not have documentation about the original debt and may not be able to tell you the original amount of the debt, the creditor, or the date incurred.   The amount may not be accurate. In fact, the debt may not even be yours. 
4. Even if you get a letter from a “law firm” be sure to do your research online to see if there are complaints or allegations against the company or firm for fraudulent activity. Unscrupulous individuals have made a lot of money by misrepresenting themselves and presenting false information in order to receive payment.  
5. A common scam:  an individual or company contacts numerous people alleging a small, expired debt and collects many small payments from thousands of unsuspecting people.  In addition, bank account information and credit card information is exposed, and may be used for identity theft purposes.  Don’t be a victim!
6. This bears repeating:  Don’t make a payment, or a promise to pay, or discuss an old debt, unless you don’t mind reactivating it.
7. Whenever you dispute an amount owed, keep documentation of that dispute in files that you can access later.  Unlike tax returns, this information should be kept indefinitely.  Third party purchasers of debt have been known to contact alleged debtors 20 and 25 years later.
8. If you do owe debts that are unpaid, you should keep this information in a file as well.   You can use this information in your own plan to reduce and control debt, and also you will not be vulnerable to untrue allegations of amounts owed.
9. If you are being harassed by creditors, or need legal assistance in debt management, asset protection or to discuss bankruptcy options, contact an attorney for a consultation appointment so that you can understand all of your legal options.

If you or a loved one has had a major illness, you may find that you have a confusing array of medical bills left after the illness. Getting the paperwork organized so that you know what you are dealing with will help reduce the stress.

Here are steps that you should take to regain control:

1. Organize your bills.  Get control of the paperwork by grouping the bills in a way that makes sense to you, for instance, by in-patient facility, health care provider or by month.  Get folders and label them so that you can easily see what is in each folder.
2. Organize your payment information.  Gather information from your checkbook, cash receipts, or credit cards so that you will know what has been paid, to whom, and when.
3. If you have insurance, collect your EOB (explanation of benefits) documents and put them in order. You can either put them in date order or put each document next to the medical bills that correspond to them.
4. Audit the medical bills.  Check to be certain that you have been given credit for any payments made. Make sure that the health care provider has given you credit for any participating plan reductions ("negotiated or allowed" amount of fee).  Do this by comparing your payment information and EOBs to the medical bills. 
5. If you have been an inpatient in a facility, be sure to ask for an itemized bill.  Audit the bill for accurate dates or double charges, and ask questions if you don’t understand a charge. Remember, unintentional mistakes are made, even with computer-generated bills.
6. If you have insurance, make sure that you are getting the benefits that your plan entitles you to have. For instance, if you see that you have been billed a higher co-payment for being “out of network”, but you don’t believe that is accurate, call and speak with your insurance company.  In some situations, you may be able to have the charges reconsidered and paid at a higher rater (for instance, if it was an emergency or if there was not an in-network provider available).
7. Talk with the hospital or provider to inform them of the “big picture”.  If you have several thousand dollars in medical bills because of a catastrophic illness you may be able to receive a reduction in the bills or a payment plan.  Some facilities have specific guidelines for situations in which there has been a catastrophic illness, or there is little or no insurance coverage.  Telling your story and sending small regular payments may prevent your bills from going to a collection company.
8. If you are the surviving spouse and are looking at “last illness” bills, you may want to have a legal consult. A probate attorney can assist you by helping you plan how to pay the bills and manage the funds of the estate.
9. Seek professional assistance from an attorney if you need help with understanding your insurance contract, debtor/creditor law, formulating a plan for paying your debts or other legal aspects of your situation.

1. First of all, don’t panic!

2. Read the paperwork that you were given very carefully

3. Determine your “Answer Date”, which is the date by which you must file a response to the suit if you wish to be heard and defend yourself.  Calendar this date!

4. Determine WHY you are being sued

5. Gather your thoughts and your information. Do you have a defense? A counterclaim?

6. Make an appointment with an attorney right away in order to be sure that your attorney has adequate time to prepare and file a response and/or counterclaim. Take the citation (service papers) with you to the appointment, along with any other information that the attorney should see.

7. Be aware that if you miss the answer date, a default judgment may be entered against you and you may be giving up important legal rights and defenses.

Kalish Law Office: The Woodlands, Texas 281-363-3700 

If you are involved in a legal case, here are some ways to keep the conflict from escalating.

1. Keep your mouth shut.  Don’t say whatever comes into your mind, whenever and wherever you feel like saying it, even if it makes you feel better.  If you are involved in a custody battle or divorce, be sure your kids don’t hear you saying things that they shouldn’t.  Don’t write texts and leave voice messages while you are angry, ill, or overtired.  Or drunk.  

1. Don’t talk to other people about things that would have been covered by attorney client privilege.  Bringing third parties into a meeting between you and your lawyer is also a bad idea for this same reason.  Those third parties could be called as witnesses and will be asked about things that you may have been able to keep between you and your attorney.

1. Don’t post all of your personal business on Facebook, Twitter, and other social networks.  Be careful, even in posting and photos that you see nothing wrong with.  An “innocent” post could cause you a lot of trouble when read by someone who is upset with you to begin with. Social networks can be used by any opposing party or attorney to get all kinds of information to use against you.   

1. Don’t disregard what your attorney tells you, even if you think s/he is being overly cautious.  Don’t try to run your case yourself.   Promptly return calls or emails from your lawyer, and keep him/her up-to-date with your contact information.  Don’t forget to tell your attorney important facts about your case and don’t let him/her find out for the first time in the courtroom with the rest of the world.  If you are given “discovery” to answer, work on it as soon as possible.  

1. If you have a mediation, trial or hearing, don’t disagree with your attorney in front of others.   Dress appropriately, and don’t let a bad attitude or anger show, even if you would rather be anywhere else on earth.  Don’t chew gum or whisper and fidget during the proceedings. Watch your facial expression, even if something that is said shocks you, upsets you, or is blatantly untrue.   Keep anger at bay.  

Following the above suggestions will help you feel more in control, and will assist you and your attorney in making the best possible presentation of your case.   

Remember, you and your lawyer are a team, and should strive to work together cooperatively and efficiently.

Blogs, chat rooms, IMs, emails, posts, Tweets, microblogs, status updates....

Fun, fun, fun, until you've put something out there that you can't take back!

Although you may write and send something inadvisable and potentially embarrassing, I hope you never send anything that is legally actionable.   

Here are five commandments to govern your online and electronic behavior and prevent you from being drawn into the courtroom, or the unemployment office.

1. Thou shall not post anything as truth when it is only your opinion.  (It has been said that "truth is the ultimate defense", but is it truly, objectively, demonstratively true?  Or just your own opinion? And even if true, is it really worth the trouble?)

2. Thou shall not post in anger. Rant in front of the bathroom mirror, have a nice cup of tea, and then rationally decide what you want to say.

3. Thou shall not violate the policies, or the trust of, your employer.  Yes! You CAN be fired for posting something about your employer online, and sued besides if it is damaging to business, reveals something confidential and/or is untrue.  You can also be considered to be immature or unreliable by posting something that makes your employer look bad, and this will affect your pocketbook ultimately. Be aware of your company's internet policy.  

You should not be on the company email, or on company sites posting things that could get you in trouble.   It is a fact of life that in today's world the personal and professional do mix together online, but take a minute to be sure that you are using your own email, screen name, page or identity rather than your employer's if you are going to post something controversial.   

4. Thou shall not reveal the confidences or questionable behavior of others unless you don't mind being drawn into their mess.  Commenting on your friends' driving while Facebooking, violent tendencies or philandering ways is a good way to get a personal invitation to attend an event (in legal circles, we like to call this a "subpoena".)  

5.  Thou shall watch thyself when involved in a lawsuit or sticky situation.  If you are involved in a divorce, custody battle, business litigation, DWI, MIP, or LMNOP be aware that posts and tweets make large, colorful, beautiful and entertaining trial exhibits.

Dealing with customers, day-to-day operations, payroll and employee issues is a handful for small business owners.   Every small business owner should practice good “risk management” when it comes to employee issues.  Waiting until a trusted employee becomes a disgruntled one can be a costly error.  

Here are 5 things to help you STOP problems before they occur.

1.  Don’t discriminate or be arbitrary.   This seems really simple, and everyone knows blatant discrimination when they see it, but there are some more subtle ways to discriminate.  For instance, you should be aware that you can’t discriminate against non U.S. citizens in employment.   The key to whether someone is legally employable is not “U.S. Citizenship”, rather it is “work eligibility.”    In addition, be sure that you don’t ask improper questions in the interview process, even if you are just chatting to make the interviewee less nervous.  Being “arbitrary” is not necessarily discrimination, but it also involves treating people differently from one another.   For instance, Employee A takes a two hour lunch without reprimand but when Employee B does the same thing, you write them up.   This could lead to a perception of discrimination (“The younger employees get away with things that I can’t)  and can get you into trouble later.  Be sure that your policies are clear and that you avoid the appearance of discrimination or playing favorites.

2.  Be sure that you are paying your employees properly.   Texas law has specific rules about overtime pay.  Just making someone “salaried” does not mean that you don’t have to pay them overtime.  Only certain key personnel at a certain level of expertise and responsibility in your company are “exempt” from overtime.  This is one of the most common mistakes made.  Don’t allow employees to make their own schedules.  Be sure that they work when they are supposed to and go home when they are supposed to.  You don’t have to pay them for breaks, but you may want to make it your policy that they take breaks. Doing so prevents fatigue, increases productivity and avoids potential overtime problems.

3.  Document the file when you have problems.   If an employee is not following policy, not getting the work done, always running late,  bringing personal problems to the office and disrupting work, or being insubordinate, you should always inform them and document their personnel file.  Not doing so will leave you open to an unemployment claim.  Consider this: in the case of a non-productive employee, you will actually be paying several times.  First; you’ve paid the employee wages for a job done poorly, Secondly: you’ve paid someone else or taken your own time to correct errors;  thirdly: you’ve paid in an increase in your unemployment insurance rates (which have risen considerably since the recession). 

4.  Follow Rules and Regulations.  Be sure to withhold the proper amounts of tax from your employees pay.  Display the federal and state notice posters that you are required to display in the workplace.  Fill out and retain I-9 forms on employees, and report new hires to the state of Texas.  TWC maintains an excellent website that has links to posters, and information about laws.  There is also a seminar that is given for business owners in Texas, and materials and forms are given to the attendees. The seminar is reasonably priced and well worth it for any business owner.

5.  Know what is going on around you.   Being a good listener can help you avoid a lot of trouble.  Be sure that your employees, especially your key managers, are following the office policies and not subjecting you to unnecessary risk.  If an employee is dissatisfied, it is best to find out and deal with it immediately, rather than allow the problem to fester and infect the rest of the staff with negativity and pessimism.  

Taking time to put these policies into action will serve you well for many years to come.  For more specific information, see the website of the Texas Workforce Commission at  http://bit.ly/cFrPoH

There are times when one party to a contract may want to terminate it.

This is a general list of what to look for when you are trying to determine whether you can or should terminate a contract.  This list is very general, and is not specific to any one particular type of contract. 

1.  How long is the contract term?   Look and see how long you have left on the contract.  If the initial term has run out, check the contract to see if you are now considered to have automatically renewed for a specific period or if you are now considered “month-to-month.”  Analyze what you will spend (in money, time, and energy) by staying in the contract.

2. What notice must be given?   Some contracts specify how notice must be given (for instance, in writing and by certified mail and addressed in a particular way).  Verbal notice alone may not be legally sufficient to cancel or terminate the contract.  Mere words are subject to interpretation and won’t give you the proof you need.  Witnesses to a conversation may later prove to be unreliable, unbelievable, or biased. .

3.  What will happen if there is a major disagreement ?   Before you get into an adversarial position with the other party, be sure to check out what could happen.  For instance, some contracts specify that the parties must go to binding arbitration.   The contract may specify that any lawsuit must be filed in a particular county or state.  There may be provisions regarding who will pay attorneys fees and court costs.  You will want to know all of your risks before escalating the situation.

4. Has anyone violated the contract yet?  Even if the other party has violated the contract in some way, you may not have the right to terminate it or stop performing.  You are more likely to be successful in pressing your position (especially in court) if you have “clean hands” and have lived up to your end of the bargain.  If you have already violated the contract in some way that you thought was forgiven, you may find that issue resurrected.

5. Remember to pay attention to the specific laws that relate to your contract.   There are certain specific and sometimes unique laws that relate to each of the following contracts and transactions: real estate contracts, mobile homes sales, applications for consumer credit cards, employment contracts, and contracts for the purchase of a vehicle.   In some purchases you may have a “cooling off” period that is either written into the contract or determined by state law.   You must gather information about the specific laws that relate to your contract. 

Despite all these warnings, there are times when you need to cut your losses.  Whether or not that is right for you is a specific question that must be answered based on the facts of the case, the particular area of law, and financial and practical considerations.

You should always keep a copy of any contract that you sign.  If there is a dispute, don’t act impulsively.  Get your paperwork out, review it and gather your facts. Seek counsel from an attorney before doing anything you regret. Make sure you understand the risks and benefits of  any action that you take.

You put a lot of time, effort and money into developing your business, your client base, and goodwill.  One of the worst things that can happen to a business owner is to have a competitor come along and take some of the fruits of those labors.  That is why it is important to protect your business name.

There are various methods to protect your business name.  Which of these you choose will depend on the size of your business, where you do business, whether you have a specific geographic area that you are concerned with, the type of business you have, and your budget.

To protect your name at the county level, you should file an Assumed Name Certificate (Also called a "dba") in the county where your business is located and in every county where you do business. This is especially important for businesses which are not registered at the state level.

To protect your name at the state level, you will need to file paperwork with the secretary of state. (for example, incorporation, partnership, LLC, LLP).  Once you have done this, your business name is protected at the state level. There are other legal/tax benefits and duties that come with each of these options.

If you routinely do business in another state, you should check with a business attorney about incorporation or registering your company in that state as well.  (Caution: this can subject you to state fees and taxes, so you need to be sure that this is necessary and that you are prepared to pay the fees and keep up with the paperwork.)

While there is no national (federal) "business registration database", you can protect your name and/or logo nationwide by filing a copyright or trademark.

Don't neglect to register your domain name as well.  

You should also consider the future of your business. If you are going to be expanding in the near future you may want to register or secure additional names or domains in advance.

If someone infringes on your name and goodwill, there are legal remedies available.  However, these cases can be protracted and expensive.  Although you may prevail, it is always best to avoid problems by taking preventative action.