Let It Snow!

As I am sitting here in my home office watching another several inches of snow adding to this record breaking winter, I am trying to decide how to plan my day tomorrow while I wait for the local government to plow my street.  With the wonder of remote access, email and call-forwarding, I really don’t need to go into the office except to meet clients.

 

There are a few contracts to draft for clients and some discovery requests to write in a couple of discrimination cases heating up in federal court.  I have the end-of-the-month bills to pay and the all-important invoices to prepare on Quickbooks and get in the mail next week.  I even brought documents and deposition transcripts home to review.

 

Wait . . . they just announced the schools are closed tomorrow.  I have three daughters, age 11 (twins) and 7, and they are growing up so fast.  Life in my own law practice has its challenges, but what it offers me is the ability to say I’ll work late tonight, tomorrow night, too, if necessary, but tomorrow, I’ll build a snowman with them instead.

Lower Merion Laptop Lapse Not News To Employees

The Lower Merion School District’s laptop brouhaha has been garnering a significant amount of print and air time since a lawsuit was filed claiming the school district used the laptops to spy on students.  The Lower Merion case is notable for the sheer number of laptops issued to an entire school population without much forethought of privacy issues.  However, there have already been several instances of employees discovering they have been secretly monitored by security systems installed on laptops issued by their employers.  Employers monitor employee computer use and internet activity for a variety of reasons.  Security programs can tell the employer whether the employee is limiting the computer’s use to work related matters or surfing the web on the employer’s dime.  They can also alert the employer to possible instances of corporate espionage and other illegal activity.

 

The key word here is DISCLOSURE.  If an employer (or school district) makes a laptop available to an employee or student, it should make full disclosure of the security system features and notify the user that it can be turned on at anytime to track the laptop’s whereabouts.  If the user then willingly accepts the laptop and signs a consent form acknowledging awareness of the security features, the employer or school district has alleviated any privacy concerns.

 

In the Lower Merion case, one wonders whether the IT gurus or school administrators who came up with the laptop program ever bothered to consult the school district’s legal counsel?  Schools obtain parental consent forms for children to attend field trips and activities off school premises.  Yet, no one ever thought of a parental consent form for  a school-issued laptop to children?  Or did they just think no one would notice the webcam?

How To Represent Yourself Without A Lawyer – Part V

Residential landlord/tenant cases are also handled by the local district courts in Pennsylvania as well as the Special Civil Part in New Jersey.  If you are a landlord with a problem tenant or vice versa, much of the information covered in my previous blogs regarding where to file your complaint and how to proceed will be applicable to you as well.  However, there are some differences.  Let’s start with the landlord first.

 

The complaint will ask you whether you are seeking a judgment for money or possession or both.  If you want both, say so.  Otherwise, you may not get relief you forgot to ask for.  Getting a judgment for unpaid rent is fairly easy.  Still, it is good practice to keep a payment log so you can easily show the judge which months, and whatever additional late fees, utility bills, or other additional rent are due.  If you are seeking possession, you better be able to show you gave written notice to vacate in accordance with your lease or at least 30 days’ notice if month to month.  Be sure to show a credit for the security deposit against the unpaid rent or damages you are seeking.  And don’t forget to give a copy of the lease to the judge!

 

 New Jersey is especially tough on landlords.  Not only is it tougher to evict tenants in the Garden State, New Jersey’s Anti-Eviction Act does not allow landlords to simply refuse to renew a residential lease except under the circumstances set forth in the Act.  Therefore, landlords have a greater burden than tenants to document to the penny the rent owed and to show repeated breaches of the lease by the tenant or the likelihood that the tenant’s continued occupancy would risk injury to persons or property.  If the police have been called out to the property, get the reports.  If the property has been damaged, take pictures.  Again, a payment log will help you show the tenant is habitually late with the rent.  Finally, landlords should make sure their properties are in good repair before they seek to evict a tenant.  A tenant can raise a code violation as a defense which, in New Jersey, will result in the judge throwing the case out until the landlord can demonstrate the property is up to code.

 

If you are a tenant with a slumlord, you need not grin and bear it.  However, you cannot simply stop paying rent and spend it on other things instead.  If you withhold rent, set up an escrow account at your bank and pay the money into the account every month on time.  Before withholding rent, be sure you can document that you gave notice of the items needing repair to the landlord.  These items should be something that create a health or safety hazard or seriously disrupt your occupany like a leak or faulty electrical wiring.  I do not recommend withholding rent for flaking paint (unless it is lead) or other cosmetic defects.  Take pictures to show the judge the conditions the landlord is forcing you to live in.  You may file a complaint yourself to compel the repairs, but withhold rent long enough and you will be sure to get your landlord’s attention. 

 

So there you have it!  Spend a little money for a consultation and save yourself alot by representing yourself in small civil matters in your local courts.

How To Represent Yourself Without A Lawyer – Part IV

Unlike in Pennsylvania, New Jersey’s municipal courts are reserved for motor vehicle, criminal, and local ordinance violations and other non-civil matters.  In New Jersey, the court for small civil claims is a division of the New Jersey Superior Court called the “Special Civil Part.”  It is broken down into two sections:  claims not exceeding $3,000 and claims in between $3,000 and $15,000.  The forms for filing a claim can be found at “NJCourts Online.”  The web address is www.judiciary.state.nj.us.  Go to the “Self-Help Resource Center” for all the forms and information you will need to represent yourself in a small claim in New Jersey.

 

One important difference in New Jersey for claims between $3,000 and $15,000 is the ability to take limited discovery.  Again, “discovery” is simply the opportunity for one party to find out what the other party has in the way of evidence before you get to court.  In the Special Civil Part, you may send your opponent a request for any documents he or she may have and the names of witnesses that may be called to testify.  You may also serve “interrogatories” which are simply a series of questions to your opponent asking them to tell you what they know about the case.  For example, in our ABC Contractors case, the contractor might want to send interrogatories to the plaintiff asking whether the dishwasher overflowed after the floor was installed, when it overflowed, whether they called a plumber, and so on.  Drafting effective  interrogatories often requires legal training.  However, in a small case, asking the obvious questions will at least enable you to reduce the risk of surprise when you get to court.

 

Of course, with every upside there is always a downside.  Your opponent may not answer your questions or send you the documents he has.  You may ask the court to compel him to do so.  Yet, all of these extra discovery matters will delay your day in court perhaps by several months.  Accordingly, you have to give serious consideration to how much you really need to know from your adversary before engaging in even limited discovery.

 

Did I mention that it is well worthwhile to pay for a consultation with an attorney before setting out to represent yourself on your own?  At the consultation, the attorney can offer  you guidance on whether to engage in limited discovery and what to ask for.

How To Represent Yourself Without A Lawyer – Part III

Unfortunately, you have just received notice of the plaintiff’s complaint.  You are indignant, irate, and ready to do whatever is necessary to defeat this frivolous claim.  Once you have calmed down and are thinking rationally, there are several factors to consider.

 

Let’s say you are ABC contractors in my example from Part II.  If your company is a separate legal entity (e.g. a corporation, limited liability company, partnership), then it must be represented by a lawyer, not yourself. Sorry, but that’s just the law and trying to do it yourself will only cause more problems.

 

However, if ABC contractors is just you, a sole proprietor, or if you have been sued as a person, be sure to send the form back to the district court saying you wish to defend.  Otherwise, a default judgment will be entered against you.  Once you get a date for the hearing, you must also consider what evidence you will need to win your case.  One strategy may be to wait and see what the plaintiff produces as evidence.  If the plaintiff cannot come forward with evidence that the flooring or installation was defective, you may not need to offer any evidence at all.  However, it is better to be prepared to present a defense than to be unprepared and hope you won’t have to.  In District Court, there is no “discovery,” an opportunity to learn what the other side has in the way of evidence before the hearing.  Therefore, you must anticipate and prepare for the documents and pictures your adversary may possess.

 

“Documents. Pictures. Organization.” applies to the defendant’s case as well.  ABC contractors may want to highlight the language in the contract which states ABC is not responsible for damage or misuse after installation.  Then introduce photographs.    First, show the judge a photograph of the floor just after installation.  Then show the judge photographs taken during your inspection after the plaintiff notified you of the problem showing watermarks near the dishwasher and how the buckling of the floor originates or is most noticeable in that area.  You have established a defense to causation.    ABC Contractors’ contract and pictures presented in chronological order demonstrate that the floor was in good shape when it left and the damage arose afterwards.

 

If you can’t disprove the fact that the flooring or installation was defective, then attack the calculation of damages.  Point out that you removed old flooring also and the entire project only cost $3000.  Or show the judge that the repair estimate includes a different, more expensive tile or hardwood than was in the original contract.  The plaintiff is only entitled to the floor he or she was promised, not a better one at your expense. 

 

In your defense, consider any written evidence which may contradict the claim the plaintiff is making, for example, emails, letters, and receipts of payment which may demonstrate the plaintiff calculated the balance due incorrectly.  Oral evidence may also be admissible, but it’s weight will come down to the judge’s view of the parties’ credibility which is anybody’s guess. 

 

As a defendant, you should also be open to settlement.  A good lawyer will know the weaknesses of his or her case and take that into the calculation of a reasonable settlement.  Anyone representing himself in District Court should also.  Being unreasonable and taking an “all or nothing” approach may result in nothing more than an appeal and more wasted time and money.