Wednesday, May 2, 2018

If Your Business Relies on Independent Contractors, Watch Out!

The California Supreme Court just radically changed the rules as to when someone who works for you is an employee rather than an independent contractor. Read all about it in the New York Times. You might want to make them all employees right away rather than risk litigation about it.

Saturday, March 3, 2018

Three Facts You Need to Know About Litigation

By Walter Whitman Moore

1. "Litigation Attorneys" Aren't Always "Trial Lawyers"
You know those flight simulator games, where you pretend you're flying a fighter jet or a jumbo jet? Those games very realistic, but when you travel in the real world, you want a real pilot in the cockpit, not someone whose only experience is on a flight simulator. "Realistic" and "real" are two different animals.

Likewise, when you buckle up for the bumpy ride that is a lawsuit, you want a real trial lawyer fighting for your rights, not a "litigation attorney" who has never actually tried a case. You might be shocked at how many "litigation attorneys" out there have never taken a case all the way to trial -- including lawyers at big firms.

These "litigation attorneys" will charge hundreds of thousands of dollars to represent you or your company for a year or two of pretrial litigation. If they win summary judgment in your favor, terrific. But if they do not, they may pressure you to take crummy settlement that you could have had on Day One, because they are terrified of going to trial. Alternatively, on the eve of trial, they will charge you to bring in a real trial lawyer who won't know anything about your case, and who will charge you to "cram" for a few weeks to try to do at least a passable job of protecting your rights.

Life lesson: hire a real trial lawyer to represent you in a lawsuit, so that you and your adversary will know that you're fully prepared to go all the way to trial if necessary

2. Why Lawyers Love the "Scorched Earth" Strategy

Litigation can be insanely expensive. Seriously. You can spend millions of dollars on legal fees for one lawsuit. Well, you can't, but someone who actually has millions of dollars can. Your adversary will almost certainly try to make the lawsuit prohibitively expensive, in hopes that you surrender just to stop spending so much money on litigation. Lawyers love to recommend that kind of "scorched earth" litigation strategy, because it runs up legal fees: the only way for a lawyer to run up legal fees for the "other guy" is for the lawyer to run up fees for his own client, too. You therefore need a lawyer who not only understands this dynamic, but who has strategies and tactics to protect your rights efficiently.

3. It's Complicated
You've heard of bomb-sniffing dogs, right? Some dogs find bombs, others find drugs. These dogs find things that ordinary human beings miss, because the dogs have a superior sense of smell. Better noses. Better ears, too.

When it comes to litigation, you want to make sure that your lawyer has a better brain than your adversary's lawyer.  You want the lawyer who will spot issues that your adversary's lawyer will overlook. The law is incredibly complicated, full of fine points, traps for the unwary, legal mine-fields -- metaphors abound. Some legal matters are pretty straightforward; there are apps that let you prepare your own will in a few minutes, for example. But litigation is complicated, so hire the smartest trial lawyer you can find.