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I’m a writer (again) and a lawyer – Lookout Grisham!

January 20, 2011

If you’re in Southeastern Massachusetts this Sunday, make sure you pick up a copy of the Sun Chronicle.  I’m the new legal columnist for the “Lawyer’s Log” in the Living Well section.  Very excited to be writing and published again.  You can pick up a paper here.

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There’s a difference between justice and revenge

January 7, 2011

I was recently in court for the beginning of a heated trial between a brother and sister (and their attorneys) who were arguing over their deceased father’s estate. The estate was worth somewhere in the vicinity of a million dollars. A short summary of the case: Sister is trying to have her father’s will thrown out because it disinherits her and she believes her brother improperly influenced her father into doing so. Brother has lived in the same house with mom (now deceased) and dad (same, obviously) for almost his entire life.

Both sides had holes in their arguments – The brother has huge credibility issues because of his past conduct. The sister does not seem to have enough evidence to persuade the court to rule against the brother. The judge clearly did not want to rule in the brother’s favor – but based on the evidence the judge did not think she would have much choice when the time came to make a judgment.

After listening to both attorneys’ opening statements, the judge urged both parties to settle before “Armageddon” happened – meaning there were so many issues in dispute that if both parties continue along the route they’re on, everyone will spend so much time and money arguing that they’ll all turn to ash, including the money in the estate.

This particular judge did a great job at imploring, if not directing, the attorneys to come up with a reasonable solution while the trial was going on. It was clear the two attorneys didn’t like each other either. What was also apparent was that even if the sister won, she would still only receive about $100k from previous estate plans. Another reason the judge saw settlement as a very good possibility. But the sister and her attorney were not persuaded, it was not just about the money. It was about her brother’s underhanded conduct and undue influence over her parents too. The judge stopped the sister’s attorney from saying anymore, looked at the sister and said: “If you’re looking for vindication, this is the wrong place to find it. This is not a court of vindication – we divide money here…If there’s any left.”

The brother was clearly not a good person and probably did influence his father to rewrite his will in some way – but the sister could not prove it. Therefore, the court will have to hold its nose and rule for the brother. Settlement is probably the best opportunity for the sister to get something because at least the other side indicated they would be open to it.

In today’s litigious society, so many people look to the courts and confuse revenge with justice. No matter the result – win or lose – they are still unhappy because they don’t get everything they asked for or worst case scenario, they fight and fight, and ultimately lose. What also is lost is the opportunity to recover anything from the other side.

Maybe it’s the word “settle” that people in disputes back away from – they don’t want to settle, they want to win. In that case, even after a trial win, those waving the victory flag are usually left with empty pockets, broken relationships, and a gigantic legal bill.

If you go to court to force the other side to act reasonably, you’ll have justice. But anyone expecting to make the opposition beg for mercy from the court will be sorely disappointed.

Desperate Housewife No More

November 29, 2010

Eva Longoria walked into my office today and said “Attorney Oreste, I’m getting divorced from my husband Tony Parker and I want you to represent me.”  I responded, “Of course, Ms. Longoria – Let’s talk about why you want a divorce before we move forward.”  She leaned back in her chair and answered, “He’s a liar and a cheater.  I want the world to know I’m divorcing him because he’s an unfaithful SOB.”

The only truths to the fictional scenario above are that I’m a pop culture geek, and, more importantly, Eva Longoria and Tony Parker, the star-studded couple, are getting divorced.  Celebrity divorce is a Hollywood cliché these days because it happens so often. However, what all divorces have in common are hurt feelings and tension for all parties involved – especially when the reason for divorce is adultery. 

In these type of divorce cases, the victim (Eva) wants to file a divorce based on the adulterer’s (Tony’s) conduct. Eva is devastated and extremely hurt, therefore she wants to make sure that the court knows – and the court records show for that matter – that the only reason for this divorce is Tony’s affair with his teammate’s wife.  Eva insists adultery be the grounds for divorce.  This is a common initial reaction with clients.  But, as counterintuitive as it seems, it’s harder to get a divorce if adultery is the only grounds because then, the party that brought the divorce must prove the adultery.  This may involve bringing Tony’s mistress, Erin Barry into court to testify.  Divorce proceedings are stressful enough without adding another party to the mix to recount the gory details of an affair.

If Longoria and Parker were getting divorced in Massachusetts, I’m sure Eva Longoria’s attorney (hopefully that would be me) would advise her that the best way to get a divorce is through a no-fault divorce where the grounds are the more general “irretrievable breakdown of the marriage.”   An irretrievable breakdown still has to be proven but, in Eva’s case, if she testifies that there was a breakdown, a court will rarely go against her word even if Parker tries to contest it.

The hardest part on two people getting divorced is getting past the anger and hurt in order to get the process over with as quickly as possible.  For many going through divorce, they can’t get past their emotions and see the other side of the tunnel.  They desperately need the support of family and friends as well as a good lawyer who is able to help the client make rational decisions at a very difficult time.  With proper guidance and support, the client can begin the healing process as soon as possible and move on to the next chapter of life. In Eva’s case, sooner is much better than later because she’ll need to have that tattoo of her soon-to-be ex-husband’s jersey number removed from the back of her neck.

The must-have on your Bucket List

October 15, 2010

In the 2007 movie The Bucket List, Jack Nicholson and Morgan Freeman‘s characters created a wish list of things to do before they “kicked the bucket.”  The contents included a safari, driving motorcycles on the Great Wall of China, and other awe-inspiring and uplifting experiences.  Here’s one must-have item that should be on everyone’s bucket list: Create an Estate Plan.  The thought of making an estate plan does not usually conjure up feelings of excitement and laughter like the movie’s list.  Also, estate planning is admittedly a terrible subject if you’re trying to make a Hollywood hit movie. But in the real world, it is essential to create one, especially if you are a parent because it allows you to control the answers to two important questions:  Where is my money going and more importantly, where are my kids going? 

Those who pass away without a will, leave it up to the state to decide how to divide assets using a preset legal formula.  Most people would rather not leave it up to Massachusetts law for many reasons – one being that they want to know that their family will be provided for and secure. 

An estate plan can give families security not only in death but also during any period of incapacity.  It is commonly thought that a regular estate plan consists only of a simple will, but that’s just one piece of the puzzle.  A complete plan will also include a health care proxy, durable power of attorney, a living will and possibly a trust.  To give a short overview of each, the will transfers your assets to whom you want and names your children’s guardian; a health care proxy gives someone the authority to make medical decisions for you if you cannot; a power of attorney allows someone to make financial decisions for you if you cannot; and a living will expresses your desire to accept or refuse life support in the event of an incurable injury, disease, or illness.  Finally, a trust is an option for someone trying to minimize estate taxes or keep assets out of probate.  In general, an estate plan is not complete if it doesn’t have these key documents in place.

As parents, we do all we can to protect our children and make them feel secure in their world.  We teach them right from wrong. We buy them organic foods, plastic bottles with no BPA for their health.  We invest in their future by opening college savings plans. Whatever we do for our kids, we try to look out for their best interests. That’s exactly what a good estate plan will do for you and your family.  Still, more than 70% of people in the U.S. do not even have a simple will.  The likely reason for that is estate planning causes us to consider our own mortality which can be a difficult thing.  But once you do it, you can rest easy in knowing that you have taken care of your family as best you can. 

Now, cross off “Create an estate plan” from your bucket list and get moving on to more exciting things – like skydiving.

Dealing with Home Improvement Contractors

October 12, 2010

The beauty of running a general law practice is that I can handle a broad spectrum of legal issues.  However, I won’t take just any case.  If I think someone’s legal issue is one where I can’t be of any help, I’ll refer them to the best possible attorneys for whatever the specific problems may be.  To be a successful lawyer is to know what cases you are good at handling or, at the very least, you can become competent in handling.  Fortunately for a civil litigation attorney, the general procedure for handling a lawsuit is similar across all courts no matter what the actual issue is.  This allows me to take on clients with issues in many different fields of law.  Aside from Oreste Law’s primary focuses (family law, civil litigation, real estate and estate planning), I get to learn a little about a lot as a result of my civil litigation practice.

One issue that has come up often the past few months is about home improvement contractors and the law.  I was recently retained by a client who hired a home improvement contractor – let’s call him Bob the Builder -whom he found online to do a bathroom renovation.  My client’s hiring criteria was based solely on price and Bob the Builder was the lowest. You probably know where I’m going with this – Bob the Builder did not fix the bathroom.  In fact, he did more damage and broke more terms of the agreement between my client and him that he ultimately abandoned the job.  When my client demanded a refund two months after the renovation was supposed to be completed and several weeks of not showing up to work as scheduled, Bob the Builder refused and tried to blame my client for breaking the contract.  My client has spent three times the amount of money that the renovation should have cost – thousands of dollars more to repair the mistakes and complete the work in his bathroom.

I’m sure this is an all too familiar scenario for many homeowners and one that many just chalk up to lost money because they don’t want the hassle or added expense of fighting with Bob the Builder in court.  What most homeowners don’t know is that they may not have to go to court.  Massachusetts has a Home Improvement Contractors Guaranty Fund to which all licensed contractors pay into.  The money for this fund is used for the types of cases as described above: where the work is done in an un-workmanlike and unprofessional manner. 

The Guaranty Fund will pay actual damages to the homeowner if the contractor doesn’t.  Better yet, there is a written arbitration procedure to decide these cases.  Generally, the homeowner (or homeowner’s attorney) will file for arbitration that includes a statement of the damages along with any photos, receipts, and any other evidence that should be considered.  The contractor is allowed to respond in writing within a certain number of days.  An arbitrator reads both parties’ papers, reviews the evidence and then sends out his decision to both parties.  If the decision is in the homeowner’s favor and the contractor does not pay, the homeowner now has a binding arbitration award that a court will likely enforce and allow money to be paid to the homeowner from the Guaranty Fund.

While arbitration and the guaranty fund can be a good option and safety net for the would-be homeowner who runs into a bad contractor, the real moral of the story is do your research if you’re going to pay someone thousands of dollars to renovate your home.  First and foremost, make sure the person doing the work is licensed to do so by checking with the Secretary of State. Also, check out the list of prohibited acts by a contractor or subcontractor here if you think the contractor you hired is acting wrongly or unfairly.

Your rights as a tenant in an eviction case

September 24, 2010

The first client I ever had was a tenant who was being evicted…That was while I was in law school.  I was a member of Suffolk Law’s landlord/tenant clinic and, as a student attorney, the state allowed me to represent poor people who couldn’t afford representation.

Low and behold, when I opened my practice the first client who called me was a tenant who was being evicted.  He called me in a panic because he was served with a 14-Day Notice to Quit and was concerned that he and his family would be homeless when those 14 days were up.  Thankfully, that is not the case. 

Since Landlord/Tenant law was my first real foray into lawyering, I thought it would be appropriate for it to be the subject of my first post.  Aside from non-payment of rent, a landlord can evict you for many other reasons so hopefully those of you who rent may find this useful. 

A common misconception when someone receives a notice to quit (either a 14-day or a 30-day depending on the reasons) is that if you don’t move out by the time stated in the notice, you can be thrown out of your apartment and evicted immediately.  That is untrue.  Once the time in the notice to quit is up, it merely terminates your tenancy (the agreement/contract between you and the landlord).  This allows the landlord to only begin the eviction process.  Fortunately for the tenant, the law has built in a reasonable amount of time for tenants to find a new place to live in the face of an imminent eviction – even if you have missed months of rental payments.  You also have other rights to potentially reduce the rent you owe.  Keep in mind that the only person than can evict you is a sheriff – you’re landlord has no right of possession in your apartment until then.  It’s a serious offense if he locks you out or forcibly removes you or your belongings himself.

On average, the eviction process usually takes around 5-6 weeks, but sometimes it can be even longer than that.  Here’s a quick worst case scenario timeline:

1. You’re served with a 14-day Notice to quit for nonpayment of rent
2. Sometime after the 14 days, the landlord can serve you with a summons and complaint for eviction.
3. Once you receive the summons and complaint, a hearing is scheduled around 10 days after.
4. If a judgment is made in favor of the landlord at the hearing, an execution will be issued 10 days after that.
5. You’ll get a final 48-hour notice before the Sherrif comes to evict you.

So you see, even in the worst case scenario you still have more time than 14 days. Just about 5 weeks if the landlord brings the eviction immediately and everything goes as scheduled (often not the case).  You can often extend that timeline and ask the landlord or the court for additional time if you need it. 

Obviously, I suggest talking to an attorney if you receive a notice to quit to make sure the landlord (or landlord’s attorney) follows the correct procedure and all of your rights are preserved as a tenant.