It Is Later Than You Think

The time limit to enforce your legal rights just got shorter. In a controversial and divided decision, the Michigan Supreme Court held that a daughter could not sue the convicted murderer of her mother. The killing occurred in1986, but the murderer was not identified and arrested until 2002, 16 years after the crime.

The daughter sued the murderer for damages. It is common knowledge that there is no statute of limitations for murder, but that is not the case for a wrongful death claim, which must be filed within three years of the person's death. The Michigan Supreme Court ruled that the daughter waited too long, even though she had no idea who to sue until the defendant was arrested.

Three of the seven judges on the court disagreed, stating that the daughter should have been allowed time to discover the facts before she was required to act. This "discovery" period, a long-standing part of our common law, has now been overruled, at least in this type of case. In this case, even the police did not identify the person until 13 years after the limitation period expired under this ruling.

This decision has a real impact on how you should act. If you have a claim to assert in court, your time to file that claim starts to run when the wrongful act occurred, not when you first learned what happened, or as in this case, who did it. The statute varies for different claims, such as 6 years in contract claims, 3 years for non-contract claims and 2 years for professional liability claims.

If you own a business and an employee leaves, you need to review that employee's actions quickly to determine if there was any theft, embezzlement, or whether the employee took information belonging to you (just a few examples). If you are in an accident, you need to investigate your injuries and possible damage claims immediately, so that if you do have a legitimate claim you can file suit on time. It has always been the law that if you wait too long and then find a wrongful act, your right to sue will have expired. Now the concept of "too long" has a different meaning.

What does this mean to you? Act now and see your attorney if you think you have a law suit to pursue, or simply to learn what time periods to be aware of in your business or personal life. Protect yourself by making sure you do not miss a deadline by accident.

What Does It Mean To Retire - a/k/a The Dangers Of Imprecise Contracts

Defining, or redefining, “retirement” is not just a topic of commercials for annuities or RVs. It is a question so meaningful that the Court of Appeals has recently issued an opinion in which a central issue was the definition of the word.

The ubiquitous Google provides a good starting point for an analysis. A Google search for definitions of the meaning of retirement quickly yielded 14 different results. These definitions share some common themes, but they also have some very distinct differences.

This illustrates the problem of using, but not defining, the word “retirement” as part of a contract. As with any legal issue, where a contract leaves a term undefined there is an opening for a dispute that may need the intervention of the courts for resolution.

In an unpublished opinion in the matter of Nardi v. Satellite Servs., Inc., the Court of Appeals took on the issue of defining retirement. As a matter of background, the plaintiff was a former employee of the defendant. As part of an employment agreement, plaintiff was entitled to certain rights if his employment ended by virtue of “retirement.” The plaintiff left the defendant and went to work for another company, he alleged that he had “retired” and was entitled to certain benefits as defined by the contract. The defendants disagreed, alleging that “retirement” meant that the plaintiff was required to stop working in any occupation. In this matter, the Court of Appeals agreed with the plaintiff:

Resolution of this issue turns on the meaning of the word “retirement,” which is not defined in the contract. Defendants argue that “retirement” means that plaintiff was required to stop working in any occupation. However, the word “retirement” means “removal or withdrawal from an office or active service.” Random House Webster’s College Dictionary (1997). As noted by the trial court, however, today Americans often continue working in some capacity after they have begun drawing retirement benefits from a previous employer. See Derr v Murphy Motor Freight Lines, 452 Mich 375, 391 n 6 (Mallett, J.); 550 NW2d 759, amended 453 Mich 1204 (1996). Therefore, the modern understanding of the word “retirement” is an employee’s withdrawal from a particular “office” to collect vested benefits that have accrued to the employee, usually from years of faithful service. The contract’s other provisions support this definition of the word “retirement.”

Keep in mind that this is an unpublished opinion, so it is not binding as a matter of legal precedent, but it is informative on this issue. Moreover, it illustrates the problem that can occur when a contract does not expressly define a key term.

In the employment arena, or with regard to succession planning (such as buy-sell agreements and shareholder agreements), I suggest you take the opportunity to review your agreements. Is the word “retirement” used without definition? Are other key terms undefined?

What other practical advice can you take away? Spending the time with a qualified attorney to carefully draft significant documents may add to the up-front expense of a project. But the additional cost of litigation that can be the direct result from a dispute based on an imprecise contract will far outweigh the benefits of any slight cost savings from trying to cut corners when creating the agreements that will affect you and your business for years to come.

Business Litigation Is Not A DIY Matter

The Internet can be a great resource and with all the available information it is tempting to think about trying new endeavors without professional assistance. Just make sure to cross off "appearing in court on behalf of a corporation" as one of those activities.

An article on allbusiness.com asks "should you hire an attorney?" Do it yourselfers rejoice? Not so fast. The first sentence of the article is already leading to a road for trouble:

The only time you should always be represented by an attorney is when you appear in a criminal matter.

STOP! This statement is far too simplistic. Most notably, in Michigan, a corporation (as well as varoius other entities) may not appear in court without representation of a licensed attorney.

Longstanding Michigan law is that non-attorneys who violate this rule are engaged in the unauthorized practice of law. An ethics article from the Michigan Bar, which arose from the context of a landlord-tenant dispute where one the parties was not an individual, plainly spells out the law:

Lay officers, directors, partners and employees of corporate or partnership entities may not represent the entity in court proceedings or sign court documents without engaging in the unauthorized practice of law.

But that is not all, oh no, that is not all.

Michigan lawyers confronted with a non-lawyer appearing in court for a corporation or partnership have an ethical duty to bring the fact to the attention of the tribunal. Informal ethics opinion RI-10.

Likewise, Michigan judges are also under an ethical duty to prevent the unauthorized practice of law.

A separate ethics opinion reaches the same result in the context of a corporation or partnership which is involved in court proceedings relating to criminal matters or in response to ordinance violations:

We find no pertinent difference between the handling of civil matters and the handling of criminal matters by a layman representative of either a corporation or a partnership.

A layman appearing for a corporation or a partnership in response to an alleged violation of an ordinance is engaged in the unauthorized practice of law.

These ethics opinion are all in line with the Michigan Court of Appeals opinion in Peters Production, Inc. v Densick Broadcasting Company which held that a non-lawyer officer or shareholder may not appear in court on behalf of the corporation:

An individual may appear in propria persona; a corporation, however, can appear only by attorney regardless of whether it is interested in its own corporate capacity or in a fiduciary capacity.

Besides the practical reasons to work with an attorney, such as an attorney's specialized knowledge of the substantive law and the procedural rules, in some cases you must work with an attorney in order to avoid the potential consequences of engaging in the unauthorized practice of law.

Have questions about the boundaries of what is permissible by a non-attorney without running afoul of the law? You can start with the source by viewing the statutes MCL 600.916 and MCL 450.681, or, better yet, post a comment or e-mail me to continue the discussion.

Blogging About Litigants Blogging

This is a blog post about litigants using blogs and websites.

I know, the whole ironic, self-conscious thing is so 1990s, but this topic was too good to pass up.

The Wall Street Journal Law Blog has an oh-so-interesting discussion about the recent trend of litigants using blogs and websites as part of ongoing courtroom, and the attendant public relations, battles.

Progress and time march on, so this trend is likely here to stay, if not increase in popularity. But is it a good thing? As an attorney, and a part-time/novice blogger, I say "aye" - with a caveat, of course.

A blog or a website is merely a tool. As an attorney, or as someone who is not a member of the bar but who is caught up in the litigation process, why wouldn't you want more tools at your disposal? Whether and how to use those tools is up to you.

Information is easier to disburse then ever. Youtube anyone? Whether there is any merit to the content is another question.

Back to the litigation blogs. One question that is most interesting to yours truly is whether an increase in the usage of such devices will empower Davids or will it simply further empower Goliaths.

In concept, a website or blog can be cheaply established and easily maintained, and thus may be a way to level the playing field and allow those of less means to essentially wage an otherwise costly PR battle. Is it not foreseeable, though, that once all parties agree to engage via the same medium that the party that has access to more assets will have an advantage? Possible, but a relatively primitive blog may still be a more than sufficient device when placed in the hands of an effective communicator with a meaningful message.

Bottom lining it - on balance, I like the idea. It's creative, and it will be interesting to see where it takes us.

Lawyers and non-lawyers alike please chime in on this one. What's your take?

This Is A Communication To Consumer Debtors and Debt Collectors

Kudos to Michigan attorney Gary Nitzkin for a very interesting addition to his excellent Michigan Collection Law Blog in which he comments on a recent Court of Appeals for the Fourth Circuit decision (Sayyed v Wolpoff and Abramson) addressing the extent to which the FDCPA applies to attorneys during litigaiton.

If you are still reading this posting it is likely that you are either a collection attorney or you are a debtor who is doing research on the FDCPA. In either event, you have made the right choice as we are about to get to the practical part of this posting.

That the FDCPA applies to attorneys is not new. But, as Mr. Nitzkin does a fine job of highlighting, this matter involved a somewhat novel angle, as well as some carefully crafted, but ultimately rejected, defenses.

Herewith the novel angle: the allegedly violative statements were contained in the pleadings. The consumer debtor alleged that the debt collector was over-reaching in their requested relief, to which the debt collector asserted numerous defenses, including common law immunity from statements in pleadings. The court, siding with the debtor, opined that "common law immunities cannot trump the Act's clear application to the litigating activities of attorneys...".

Herewith the novel angle - part II: the debt collector attorney was unsuccessful in persuading the court that the pleadings were exempt from the FDCPA because they were transmitted to the attorney for the debtor, not directly to the consumer. The court was quite clear in striking down this argument, stating "[t]hus, plainly, the FDCPA covers communications to a debtor's attorney."

Bottom line please? True commercial litigators need not be concerned. The FDCPA has not been extended to cover collections beyond consumer debtors. But for collection attorneys, this opinion needs to be heeded as a warning that the requirements of the FDCPA should be seen as ongoing throughout the course of litigation and will even be applied to "indirect communications" to the debtor via the debtor's attorney. And for any consumer debtors reading this posting, keep in mind that a debt collecting attorney must respect your rights under the FDCPA during litigation.