What is Commercial Litigation?

I am a commercial litigator and occasionally I’m asked, what does commercial litigation mean? In its simplest form: disputes over contracts. Here’s a case we handled recently at Maselli Warren, P.C. that illustrates commercial litigation. Names have been changed to insure client confidentiality. 

Our client, Mr. D, was sued by a large company (“Big Company “) on a lease for a copy machine used in Mr. D’s business. Like many small companies, Mr. D’s business leased their copier. 

When Mr. D turned 77, he retired and closed his small business. When he retired, the lease term had a few years of monthly payments remaining, amounting to over $140,000. The copy machine was returned to Big Company, after which Big Company sued the business and Mr. D personally for the remaining payments. Although Mr. D had signed the lease as president of his corporation (which would shield him from being personally liable for acts of the corporation), Big Company claimed that 22 years ago, Mr. D signed a personal guarantee on another copier lease and that it was still effective. In the years since that guarantee was signed, the copier under the guarantee was returned and there had been 12 different copiers leased every few years under 12 different leases without personal guarantees signed. Big Company argued the 22 year old personal guarantee was a continuing guarantee that Mr. D had never cancelled and was still in effect for the 2019 lease. 

We filed a motion in which we asked the court to dismiss the suit against Mr. D. Big Company opposed our motion and both sides appeared in court to argue the law before a judge. 

On behalf of our client, we pointed out that two contracts were before the court with conflicting terms; 1.) the 22 year old lease with the continuing personal guarantee; and 2.) the newest lease with a blank, unsigned personal guarantee. 

Statutory law and case law instruct what happens when there are conflicting terms in a contract, and what terms will apply. When a contract has ambiguous terms, the contract will be construed against the party who wrote the contract. Big Company wrote these leases and therefore, the terms would be construed against it. The leases also contained an integration clause, which provides that the contract terms are the entire agreement between the parties. When a contract has an integration clause, the law states that no other evidence can be considered in interpreting the contract, and the court’s examination is limited to the “four corners” of the document. 

These were our arguments and we were successful – the court dismissed all of Big Company’s claims against Mr. D. 

And that, my friends, is what commercial litigation is. 

55 Years Later… What you, the employer, can do today about workplace discrimination.

The law of the land has, for 55 years, prohibited employers from discriminating in the workplace because of race, color, religion, sex, national origin, age, disability or genetic information. Despite this federal regulation, some estimates predict that it will not be until 2059 that men and women reach wage parity. But wage parity is not the only dinosaur women in business still face today. Characterizations of workplace behaviors, which would be applauded and rewarded if exhibited by men, are still cause for reprisals and reasons not to advance women.

On September 24, 2019, a Wall Street investment firm executive alleged, in a 32-page complaint filed in Federal Court in New York, that she was subjected to blatant acts of gender discrimination, including less pay for equal work. She claims when she brought her concerns to the firm, she was neither taken seriously nor treated with respect. Instead, she was chastised for causing tension and being aggressive[1]; and ultimately fired. Her termination came one week after commenting about the “boys’ club” environment fostered by the firm.

It has been 30 years since the United States Supreme Court called out employers for using the word “aggressive” when referring to working women. Justice William J. Brennan wrote in an opinion in Price Waterhouse v. Hopkins,[2]

 

An employer who objects to aggressiveness in women but whose positions require this trait puts women in an intolerable and impermissible Catch 22: out of a job if they behave aggressively and out of a job if they do not.

 

Title VII of the Civil Rights Act of 1964, was, in Justice Brennan’s opinion, the way to lift women out of this bind. It has been 55 years since the passage of Title VII, and 30 years since the Supreme Court ruled, however for some, very little has changed and women continue to be placed in this “intolerable and impermissible Catch 22.”

To create a workplace environment that fairly compensates employees and promotes equal treatment, employers must continue to strive to do better. Employers can and should implement internal procedures to insure compliance with the law. Companies should annually conduct pay audits to identify salary differentials and evaluate whether differences in pay are supported by legitimate business considerations. Amount of experience, training and performance are all valid reasons for pay differentials. Such proactive procedures serve many purposes; they assist an employer who wants to comply with the law, companies who can show compliance[3] attract top talent, reduce turnover, and provide evidence of the employer’s fair treatment of employees when facing the potential anti-discrimination claim.

Blueprints to guide the employer step by step in conducting pay-equity analysis and audits are readily available.  A simple online search reveals plans, questionnaires and, if necessary, software addressing the task.

When employers implement regular pay audits and investigate employee concerns thoughtfully, we all move closer to the workplace environment that promotes the equal treatment envisioned 55 years ago when the Civil Rights Act was implemented. In doing so, we further protect our valuable investments in our businesses, ensure growth and productivity.

 

[1] “Aggressive” is frequently cited as a sexist term regularly used to denigrate women. The same word, when applied to a man, is laudable.

[2] 490 U.S. 228 (1989)

[3] Not only gender pay equity; equity for all protected groups

Special Needs Trusts

Individuals with disabilities frequently rely on government programs to provide basics such as food, clothing and shelter, as well as various services and supports. Most of these government programs are needs based, requiring the recipient’s income and resources to stay within program limits. While this amount will vary from one year to the next, resources in excess of $2,000 will probably disqualify an individual from receiving public benefits.

What then, can be done for the individual with a disability who inherits a sum of money in excess of $2,000 from a relative, or who will receive a settlement as a result of a personal injury suit? What do parents do, if they want to leave their assets to provide for their child with special needs after they die?

Special Needs Trusts (SNTs) are designed just for these instances. Both a First Party SNT, which contains assets contributed by the beneficiary (ex., inheritance or settlement of a lawsuit) and a Third Party SNT (a/k/a a supplemental needs trust), which is funded by persons other than the beneficiary (ex. a devise directly into the SNT under a parent or grandparent’s will) are intended to allow the individual with a disability to continue to be eligible for means tested government benefits. Of course, the SNT must be properly drafted so that it achieves its goals, which are:

  • Preserve eligibility for government programs,
  • Enhance the beneficiary’s quality of life,
  • Supplement the services provided by the government, and
  • Avoid recoupment by the government.

Proper drafting is critical. A SNT must be compatible with the beneficiary’s needs while limiting the beneficiary’s legal right to access the trust funds, as access can jeopardize the individual’s eligibility for benefits. A SNT must be used to supplement not supplant benefits received by government programs. When properly utilized, A SNT is a valuable tool offering assurance and peace of mind that your loved one will be provided for.

This article is intended as general information and not as legal advice. If you would like to discuss whether a Special Needs Trust is appropriate in your Estate Plan or for your loved one with special needs, contact an attorney at Maselli Warren, P.C. to schedule a consultation where we will meet to discuss your particular circumstances. If you already have a Special Needs Trust and it is over five years old, consider having it reviewed by an attorney to be sure it is in compliance with current laws.

The Division of Developmental Disability and the NJ-CAT

The Division of Developmental Disability’s (“DDD”) mission is to assure the opportunity for individuals with developmental disabilities to receive quality services and supports, participate meaningfully in their communities and exercise their right to make choices. DDD provides and funds services to qualified individuals. Services are available for adults with intellectual and developmental disabilities, provided the individual meets the functional criteria of having a developmental disability.

What are the Criteria the State uses to determine developmental disability?

The New Jersey Administrative Code sets forth definitions and criteria. It provides:

“Developmental disability” means a severe, chronic disability of an individual, which:

  1. Is attributable to a mental or physical impairment or combination of mental or physical impairments;
  2. Is manifest before age 22;
  3. Is likely to continue indefinitely;
  4. Results in substantial functional limitations in three or more of the following areas of major activities of daily living:
  5. Self-care;
  6. Receptive and expressive language;

III. Learning;

  1. Mobility;
  2. Self-direction;
  3. Capacity for independent living; and

VII. Economic self-sufficiency; and

  1. Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment, or other services, which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes, but is not limited to, severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments where the above criteria are met. N.J.A.C. 10:46.

 

In addition to meeting the above criteria, any individual seeking to receive services through DDD must also apply, become eligible for and maintain Medicaid eligibility, and have primary residency in New Jersey. At 18 years of age individuals may apply for eligibility and must be 21 to receive Division services.

What services does DDD provide?

DDD funded services are offered under a fee-for-service model. Under this model, adults will be determined eligible for either the Supports Program or the Community Care Waiver Program. The Supports Program provides services such as assistive technology, behavior supports, career planning, prevocational therapy, supported employment, transportation and day habilitation, to name just a few. The Community Care Waiver provides case management, community transition services, day habilitation, individual supports, respite services, and residential placements.

What about residential services?

Should the need for residential placement arise, a case manager or Support Coordinator can explore residential options with the individual and his family. Among the options that may be offered to an eligible person are Group Homes, in which a home is shared with no more than four residents who receive services from on-site 24 hour a day staff; Supervised Apartments, in which an individual lives alone or with a roommate in an apartment leased by a provider agency, which employs staff available to serve the individuals 24 hours a day; Supportive Housing, in which an individual leases his own apartment and receives services on an as-needed basis either in person or through phone contact, 24/7; and Community Care Residence, in which an individual lives as part of the family of a caretaker and receives assistance from that person and/or from an agency on a routine basis.

What is the NJ-CAT?

The New Jersey Comprehensive Assessment Tool, (NJ-CAT) is the mandatory questionnaire used by DDD as part of the process of determining an individual’s eligibility to receive DDD funded services. It assesses a person’s support needs in three main areas; self-care, behavioral and medical. Once the NJ-CAT is submitted, DDD assigns a Tier and a corresponding budget.

Before completing the NJ-CAT, keep in mind that the questionnaire will determine your loved one’s budget and it is therefore crucial that care be taken to answer each question keeping in mind what your loved one can do without your assistance, not with your help and support.

Can I ever appeal the Budget?

Appealing the budget assigned after the NJ-CAT is submitted is difficult, but can be done. DDD is very specific about the way one must proceed if they want to request reassessment of the budget. For this reason, it is suggested that you consult with someone knowledgeable about how to answer the NJ-CAT before you sit down to fill it out. If, however, you have already submitted it, or it was done by a support coordinator on your loved one’s behalf, go to the DDD website and read about requesting reassessment.

This article is intended as general information and not as legal advice. If you are applying for DDD services and will be completing the NJ-CAT, or if you would like to appeal the budget already assigned, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Guardianship and your Child with Special Needs

When an individual in New Jersey or Pennsylvania turns 18, he has reached the age of majority and his parents can no longer make decisions legally on his behalf. This applies to all young adults, even those who have special needs.

Before your child with special needs turns 18, consider whether he is able to make important decisions, including consent to medical treatment, education, where to live, how to spend his day and making financial decisions. If, as a result of a developmental or intellectual disability, your adult child is limited in his ability to make and/or express decisions, consideration of Guardianship is warranted.

Q: What is Guardianship?

A:Guardianship is the court appointment of a person or agency (the Guardian) to make personal and financial decisions for an individual who is not capable of making these decisions independently. A properly crafted guardianship will facilitate the independence of the person with a disability because it will be limited to address only those areas where the individual is not able to make his own decisions.

 

Q: Should I begin thinking about Guardianship when my child turns 18?

A: No – you should begin thinking about Guardianship at least six months before your child’s 18thbirthday.  Guardianship is a legal process whereby the court first determines whether an individual is incapacitated, whether the individual requires a guardian, and then appoints the guardian(s) to make decisions for that individual. This process takes time and requires preparation to gather necessary information, arrange for doctors’ appointment and draft legal documents.

 

Q: How do I know if Guardianship is appropriate for my child?

A: When meeting with clients, we ask a variety of questions aimed at determining whether a general guardianship, limited guardianship, or no guardianship at all, is right for each situation. Full Guardianship grants full decision making authority over all aspects of the individual’s life, including medical decisions, entering into marriage, choosing a residence, managing finances, vocational choices, and voting rights, to name a few. A limited Guardianship allows the incapacitated person to retain decision making authority over as many areas as he is capable of managing. Courts prefer to employ limited Guardianship whenever possible.

When thinking about whether Guardianship is appropriate for your child, here are some initial considerations:

  • Can she prepare her own meals?
  • Can she shower and dress herself?
  • Is she able to communicate with doctors regarding her medical issues?
  • Is she able to make purchases and get proper change back?
  • Can she be left home alone overnight or longer?

While certainly not an exhaustive list of questions, these considerations offer a starting point to determine the extent to which your child may need a Guardian.

We consider Guardianship arrangements a thoughtful act of protection for the newly minted adult who lacks the capacity to understand all the legal consequences of his actions, needs and decisions.

This article is intended as general information and not as legal advice. If you have a loved one with special needs, contact an attorney at Maselli Warren, P.C. to schedule a consultation where we will meet with you, answer your questions and discuss all available options to help you to determine what works best for you and your child.

Funeral Agents

A thorough and well thought out estate plan is essential for many reasons and puts you in control to define your wishes and desires for when you are no longer able to make those decisions. Careful estate planning addresses many issues, including who will receive your assets, who will care for your children, establishes trusts to provide money for the care of your children, and gives you a voice to make medical and financial decisions when you are unable to communicate them on your own.

For those situations when an individual out lives their relatives, are estranged from family members, or may have reason to believe family members will not abide by their expressed wishes with respect to funeral plans, particular consideration in estate planning becomes necessary. New Jersey law authorizes the inclusion of a provision in your Last Will and Testament that appoints another person to control the funeral and disposition of your body. N.J.S.A. 45:27-22. The person appointed, sometimes called the funeral agent, does not have to be the executor under the Will. Funeral homes are required to honor the instructions of the person appointed as the funeral agent.

For those finding themselves in this type of situation, a sample of the language that should be included in the Last Will and Testament appears below. This is offered for illustrative purposes only. We recommend that you consult with an attorney for your particular situation.

Appointment of Funeral and Disposition Representative

“I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”

 

 

When a Lawyer Does Not Do What a Lawyer is Supposed To Do

Lawsuits for legal malpractice are all about what the lawyer was supposed to do. 

For a client to successfully sue his or her former attorney for legal malpractice, the client must first establish what a lawyer is supposed to do in handling a matter like the one the lawyer handled for the client.  If the lawyer represented the client in a car accident lawsuit and the lawyer failed to submit court papers that resulted in the lawsuit being dismissed, the client in a malpractice lawsuit has to prove that lawyers in these types of lawsuits are required to submit these types of papers to the court.  The client proves this by hiring a lawyer to provide an “expert opinion report” which states exactly what a lawyer handing a car accident lawsuit  is supposed to do.  (Note – this is the third lawyer hired by the client: the first was the lawyer who malpracticed by failing to submit the court papers; the second is the lawyer hired to sue the first lawyer for malpractice; and the third is the lawyer who acts as expert witness.)

After proving that the lawyer did not do what the lawyer was supposed to do, the client must then prove that the client was financially harmed because the lawyer did not do what the lawyer was supposed to do. In our lawsuit example, the client would have to prove that if the lawyer did submit the papers to the court, the client would have won the lawsuit and collected a chunk of money from winning the lawsuit.  

The client proves this by having a trial on a “case within a case.”   This is what it looks like.  The client and the malpractice lawyer go to trial and first put the expert witness on the witness stand who testifies that lawyers handling car accident cases are supposed to submit the papers, and that the lawyer being sued failed to submit the papers.  Then the client’s malpractice lawyer puts on witnesses and evidence to prove the car accident case.  The jury decides first if the lawyer being sued messed up by failing to submit the papers.  If the jury decides that lawyer messed up, then the jury decides how much money to award the client for the car accident case.  The lawyer that messed up, or the lawyer’s insurance company, pays the lawyer’s former client the amount of money the client would have received if the lawyer had properly handled the car accident litigation.

Not every legal malpractice case deals with a situation where a lawyer messed up a lawsuit.  The lawyer may have failed to properly handle a transaction, let’s say, a real estate deal. Suppose a seller sells real estate to a buyer who pays $100,000.  The buyer receives a deed and the lawyer is supposed to record the deed in the county clerk’s office.  The lawyer fails to do so.  The seller, an unscrupulous skulduggerer finds another buyer a week later and sells that buyer the same property for $80,000.  The seller gives the second buyer a deed and the second buyer’s lawyer does what a lawyer is supposed to do and records the deed with the county clerk. The seller beats a fast path out of town with a cool $180,000 while the first buyer legally is not the owner of the property because the first buyer’s lawyer did not do what the lawyer was supposed to do. 

In this type of legal malpractice case, the unhappy client hires a legal malpractice lawyer.  Together, they hire an expert witness lawyer to write an expert opinion report that says lawyers are supposed to promptly record deeds and that, had the client’s lawyer done what a lawyer is supposed to do, the client would be the owner of the property.  Instead, the expert explains, the buyer paid $100,000 and received nothing.  In that case, if the jury agrees that the lawyer did not do what lawyer is supposed to do by failing to record the deed, the jury will award the client $100,000 which is how much the client lost as a result of the lawyer’s failure. 

Do you think your lawyer failed to do what a lawyer was supposed to do in a legal matter you were involved with?  Contact us to discuss.  

Does the Lawyer Represent You?

Usually attorneys know their clients and their clients know their attorneys. But not always.

In a recent New Jersey appellate court decision (Greening v. Levine), the appellate court grappled with the issue of whether a lawyer who represented a condominium association in claims made by a construction company also represented the individual unit owners. One unit owner claims the lawyer provided her with legal advice on a number of issues regarding her obligations to the construction company, and that the lawyer gave some bad advice that caused her damage. The unit owner sued the lawyer for legal malpractice.

The trial court dismissed the lawsuit, finding that the lawyer only represented the condominium association and not the individual unit owner. However, the appellate court reversed that decision finding that there were facts in dispute regarding who the lawyer represented. The appellate court sent the case back to the trial court so a jury could decide whether the lawyer represented the unit owner and whether the lawyer committed malpractice.

The lesson to be learned here is that if you are a client or think you are a client, make it clear and in writing. Send the lawyer an email or write a letter and state that you are proceeding on the basis that the lawyer is providing you with legal representation. If you are a lawyer and believe that a non-client may have the notion that you represent that person, send an email or letter that clearly states that you are not that person’s lawyer and that the person should seek advice from a different lawyer of his or her own choosing.

How To Start a Lawsuit

In ancient cultures, disputes over money were often resolved by the sword. 

In modern societies, disputes over money that the parties cannot resolve among themselves are resolved in courts that are set up by the government.

In New Jersey, a person or a business who claims to be entitled to money from another person or business has access to the “Law Division” of the New Jersey Superior Court. The person or business seeking to recover money is called the “Plaintiff.” The person or business who allegedly owes the money is called the “Defendant.”

This Court has a thick set of rules for waging battle in a civil, legal way. 

The rules require a Plaintiff to start a lawsuit by filing a “Complaint” which is a document that tells the story.  It sets forth all the facts that, if proven, will legally support the claim being made.

For example, if a person is injured in a car accident, the Complaint will recount the events leading up to the accident, describe how the accident took place because of the Defendant’s poor driving, and describe the damage to the vehicle and the injuries to the Plaintiff.  A bank seeking to recover on an unpaid loan will file a Complaint setting forth the terms of the loan agreement and the fact that the Defendant has failed to make payment. 

The Complaint is typically prepared by a lawyer hired by the Plaintiff.  The Complaint is filed with the Court’s clerk, given a docket number, then delivered by a process server to the Defendant. Along with the Complaint, the process server delivers a “Summons” which advises the Defendant on what the Defendant needs to do to defend the allegations of the Complaint. 

The Defendant has a deadline of 35 days to file an “Answer” which is a document that responds to the Complaint by admitting to or denying the facts that are laid out in the Complaint.  Along with the Answer, the Defendant may file a list of “Defenses” which, if proven, will relieve the Defendant of having to pay money to the Plaintiff, even if all the facts the Plaintiff asserts are true.  An example of a Defense is duress – the Defendant asserts that he only signed the Plaintiff’s document because the Plaintiff held a gun to his head.  The Answer is usually prepared by an attorney hired by the Defendant, or hired by the insurance company that provides the Defendant with insurance coverage for the types of claims the Plaintiff has made.

Once the Defendant files an Answer and Defenses and delivers a copy to the Plaintiff or the Plaintiff’s lawyer, the parties have a lawsuit. 

At this point, the Discovery stage of the lawsuit commences.  During the Discovery stage, the parties may be ordered to participate in Mediation. After the Discovery stage ends, the parties may be required to participate in Non-Binding Arbitration. If the matter does not resolve between and among the parties, after the completion of Non-Binding Arbitration, the court schedules the matter for Trial.

Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.

Legal Malpractice – Suing Your Ex-Lawyer

Even though your case did not turn out the way you hoped, most of the time, it is not your lawyer’s fault. 

But sometimes it is.

In New Jersey, an attorney will be liable to a former client if the attorney fails to meet the “standard of care” and as a result, the client is damaged. 

In performing legal services, an attorney must exercise the care, skill, and diligence that are commonly exercised by other attorneys representing clients in similar matters.  If the attorney does so, the attorney meets the standard of care.

The attorney most often fails to meet the standard of care in dealing with the technical or procedural components involved in the services being rendered to the client.

Technical and procedural components include such things as recording documents, providing notice, drafting deeds and mortgages, filing a lawsuit within the filing-deadline set by a statute, drafting wills and other estate documents that accurately reflect the client’s intention, obtaining expert witness reports on the pertinent issues of the case being litigated, following a client’s instructions regarding a transaction or a lawsuit, providing tax advice to a client involved in a transaction or an estate administration, meeting all the requirements of proceeding with a lawsuit, informing a client of a settlement offer or other pertinent information needed for the client to make a decision as to how to proceed, advising a client of potential adverse consequences of a client’s decision and other similar events.

Take a look at our blog article titled “Real Life Legal Malpractice Cases,” for more detailed examples of cases. 

One of the key elements of a legal malpractice case is that the person suing the lawyer must prove there is “an attorney-client relationship.”  This means that the person and the lawyer agreed that the lawyer would provide legal services to the person. 

Sometimes, however, a person is harmed by a lawyer’s actions or inactions, but the person is not a client of the lawyer.   Courts have ruled that where an attorney provides information or takes on a responsibility that the attorney knows is not just for the client, but is also relied upon by other people, those other people can sue the lawyer if the information turns out to be unreliable or if the attorney fails to fulfill the responsibility undertaken.

Courts have ruled that an attorney who provided inaccurate information in a bid package could be held liable to a contractor who relied on that information and suffered harm because the information was inaccurate.  Courts have also ruled that where a lawyer represents a person selling property and agrees to record the deed from the client (seller) to the buyer, and then fails to record the deed, the lawyer could be responsible for damages caused to the buyer even though the buyer was not the lawyer’s client.

Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Non-Binding Arbitration and the Trial. 

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.