Wednesday, July 30, 2014

Good Luck to Everyone Taking the Bar Exam

Taking the bar exam is still one of those rites of passage that lawyers have to go through and to all those who are taking the bar exam right now, good luck! There is a light at the end of the tunnel...

But in case the whole thing wasn't stressful enough, it appears that there is a software glitch with the ExamSoft software. So if you know anyone taking the bar exam, they may need a hug today.

Monday, July 28, 2014

July Means Adjournments?

Whether it is the heat or some other force working against the scheduling, it seems like almost every court appearance that I had scheduled for late-July is now being pushed off to the fall. I guess the post-Labor Day period is a better time to handle all of these issues.

It's not just adversaries who are moving cases back. I've even received calls directly from the courts themselves that the respective judges are going to be unavailable for personal matters and the cases need to be adjourned.

In the meantime, I'm left to explain to the clients why their case is being pushed back. Some of them understand, others are quite upset.

I guess the lesson to be learned is not to schedule cases for late July...

Friday, July 25, 2014

New York Unjust Enrichment and the Quiet Final Friday in July

We have clearly hit the part of the summer when most people are on vacation and the pace and volume of work in my New York office seems to slow to a crawl. On my floor today, where you normally find about 30 - 35 people working, there are only 5 of us in the office today.

With the quiet of the office comes the ability to catch up on some research that has been piling up over the past few weeks. The top of the pile today comes from a series of cases dealing with the concept of unjust enrichment.

In 2012, the New York Court of Appeals discussed the standard to be used in unjust enrichment cases:
As we have stated on several occasions, "`[t]he theory of unjust enrichment lies as a quasi-contract claim'" and contemplates "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009], quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). An unjust enrichment claim is rooted in "the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another" (Miller v Schloss, 218 NY 400, 407 [1916]). Thus, in order to adequately plead such a claim, the plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [brackets and internal quotation marks omitted]).

In the cases that came across my desk a couple years ago, my various clients entered into transactions that they believed to be based upon a contract. However, each client failed to actually enter into a contract before transferring money to the other party and were left without any means of getting their money back unless they filed a lawsuit.

At this time, the cases are all at different stages, some initially filed, some in the middle of exchanging discovery documents, and two with trials scheduled for the fall of 2014.

My advice to my clients, at least before they enter into these transactions, is always to get the terms in writing, preferably in a contract that each party understands so that they do not end up in my office looking to start a lawsuit.


Wednesday, July 23, 2014

Prenuptial Agreements and the Summer Wedding Season

As wedding season rolls through the summer, I have spent many hours with clients preparing their prenuptial agreements before their upcoming weddings. While it is not the most romantic thing to discuss before your wedding, in many cases, a prenuptial agreement is a good investment before you get married.

Years from now, if the prenuptial agreement is tested in court, there are a variety of factors that a court will consider when deciding if the agreement is enforceable.  As a preliminary matter, it is best to have the agreement signed in advance of your wedding date, not five minutes before you walk down the aisle.

When preparing the agreement, instead of using some form you found online, it is best to have an attorney prepare and review the document for you. That attorney should not do the same service for your spouse. Your spouse should have their own attorney sit down with them and review the agreement and be sure to explain all of the provisions before they sign the agreement.

The attorney involvement also helps when it comes to the signing of the agreement. With certain formalities that need to be observed, it is best to have the supervision of an attorney who knows the law and can be sure that all of the I’s are dotted and the T’s are crossed.

In the agreement itself, it is important that all of your assets and liabilities, and your spouse’s assets and liabilities, are disclosed to the satisfaction of all parties. If you forget to mention that $25 million bank account, it could come back to haunt you in the case of a divorce. Also, if your agreement has very lopsided provisions that are really unfair to one of the spouses, any court that is reviewing the document will take a skeptical look at the agreement when deciding if it is enforceable.


While you may save a few dollars with an online form, if you truly want to protect your finances, call an attorney and be sure to get the prenuptial agreement professionally drafted.

Monday, July 21, 2014

New York Account Stated and Crazy Jello

A long summer weekend has ended after a wild toddler party that included crazy jello, water features, mermaids and lots of cake (is there any better way to spend a weekend?). As the children splashed and generally enjoyed the festivities, the parents get to sit around and discuss whatever comes to mind. In my case, it was a discussion on an account stated and collections for a friend who has some customers who aren’t paying their bills.

On its most basic level, the principle of an account stated is:
To properly assert an account stated claim under New York law, a plaintiff must plead that "(1) an account was presented, (2) it was accepted as correct, and (3) debtor promised to pay the amount stated." Camacho Mauro Mulholland LLP v. Ocean Risk Retention GroupInc., No. 09 Civ. 9114, 2010 WL 2159200, at *2 (S.D.N.Y. May 26, 2010); IMG Fragrance Brands, LLC v. Houbigant, Inc., 679 F.Supp.2d 395, 411 (S.D.N.Y.2009) (Preska, C.J.); Leepson v. Allan Riley Co., Inc.,No. 04 Civ. 3720, 2006 WL 2135806, at *4 (S.D.N.Y. July 31, 2006)accordLeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 64 (2d Cir.1999) (holding that an account stated claim "requires `an agreement between the parties to an account based upon prior transactions between them'" (quotingChisholm-Ryder Co., Inc. v. Sommer & Sommer, 421 N.Y.S.2d 455, 457, 70 A.D.2d 429 (App.Div. 1979))). "[A] claim for an account state[d] requires evidence that the debtor accepted, either explicitly or by his actions, the account as being correct."Exp. Dev. Can. v. Elec. Apparatus & Power, L.L.C., No. 03 Civ. 2063, 2008 WL 4900557, at *16 (S.D.N.Y. Nov. 14, 2008). The latter two elements—acceptance as correct and a promise to pay the amount stated—are implied where a defendant receives and retains invoices without objecting to them in a reasonable period of time. See Leepson, 2006 WL 2135806, at *4see also LeBoeuf, 185 F.3d at 64(explaining that acceptance "may be implied if a party receiving a statement of account keeps it without objecting to it within a reasonable time or if the debtor makes partial payment" (citation and internal quotation marks omitted)); Eastside Food Plaza, Inc. v. "R" Best Produce, Inc., No. 03 Civ. 106, 2003 WL 21727788, at *4 (S.D.N.Y. July 23, 2003) ("An account stated may be implied when a creditor sends a statement of an account to a debtor and the debtor... keeps it for a reasonable time without objecting to the correctness of the account.").


In the case of my friend, he has a variety of customers who owe him small balances and they all seem to be trying to negotiate down their bills. Even when they do, however, they don’t honor their agreement to pay the negotiated amount and my friends is left with too many small balances that add up to one big amount in the liabilities category of his balance sheet.


So while the children splashed, we devised a plan going forward to get these small accounts resolved in an economic fashion so that we can all get back to our parties…

Monday, July 14, 2014

Large Litigation and the Need to Digitize your Files

In between the other crazy cases that seem to pop up in the summer, I also have a legacy case that has been going on for more than a decade. The amazing thing about this case is that it is just an unending wave of filings (my client told me today that there have been 84 motions to the appeals court). It has become almost a weekly event that a new volley of filings rifles their way through the court system.

Once a week, I spend a good portion of the day with my client putting together more response papers, addendums, exhibits and other documents to star this week off. The case illustrates the importance of being able to store documents electronically. Without it, you would need to rent a rather large storage locker to be able to house all of the documents that have been filed in the case.

With the relative ease and increasing storage limits of the cloud and other electronic storage options, a decade’s worth of litigation papers can be held on a flash drive or accessible through the web wherever you are. In addition to digitizing the files, it’s also important to make them searchable, unless you are truly a glutton for punishment who is seeking to manually scan through thousands of documents for that one allegation or graphic that you need for your case.

When you have all your documents into digital format, you can share them virtually with your client and get a set of them onto a tablet or laptop computer that you can take to court, and then you won’t be forced to drag a large bag behind you as you attempt to maneuver the stairs at your local courthouse. I still find it amazing to see the two camps of attorneys at the courthouse: the first set seem to carry a mountain of paper that would make Atlas cringe and the second set seem to breeze into the courthouse with nothing more than their tablet and a smile.

I know which camp I prefer to be in…

Friday, July 11, 2014

The Warmer the Weather, the Warmer the Negotiations?

The hot weather seems to be going to people’s head even when they are in a nice air-conditioned courthouse. After two very warm mornings of getting to Court bright and early, neither case seems to be much further than it was a few weeks ago.

In one case, although a settlement has been reached long ago, for some reason, the other party refuses to just rip off the band aid, sign the agreement and end the case. Each person has the right to try their case, but when a settlement has been reached, going back to Court every few months is really just a waste of time for the attorneys and the Courts, and it really just benefits the attorneys who get paid for each court appearance. After a few more court appearances, the settlement will be less than the counsel fees.

In the other case, we’re at the other end of the spectrum. As a case begins, there are certain things that have to be done to get things moving, like Court conferences and other filings with the Court (Summons, Complaints, Answers, etc.). Even before those basic things happen, people like to position themselves and posture a bit to see if they can head off the lawsuit or get the upper hand. Unfortunately, these tactics normally don’t work and it appears that everyone is going to get ready to dig in for the long haul of a just commenced lawsuit.


It would be nice to get the second lawsuit settled quickly, but I fear that the hot days of summer will quickly turn into some busy days this fall…

For more entertaining reading to wind down your week, check out this blog post on the poor fella who sued when he was caught napping during a Yankees-Red Sox game on ESPN.

Wednesday, July 9, 2014

The Saga of the Missing Defendant Has Ended

It took nearly one year, but on a hot Tuesday afternoon in July, the saga of the missing Defendant finally resolved itself in Court yesterday. After months of court appearances, sometimes with the Defendant there, most of the time with him not, we proceeded to trial yesterday to finally get my client divorced.

To get to this point, we had 2 trial dates adjourned in May because the Defendant did not appear. At the first date, the Defendant spent the morning in the courtroom, but the trial was scheduled for the afternoon. When the afternoon rolled around, the Defendant was nowhere to be found. As it turned out, he had been arrested over the lunch break and the case was adjourned to later in May.

Later in May rolled around, and again, the Defendant did not appear. This time, however, we found the Defendant, who was in jail and would be there for a while. So the case was adjourned again, this time to July, and the Court ordered that the Defendant was to be produced from his detention center to the criminal courthouse for the trial.

Sitting in the Criminal Courthouse in a foreign courtroom was an odd scene, especially with the numerous court officers and corrections officers overseeing the proceeding. But after making sure to get through a variety of procedures to ensure that we could get the case done, we were finally able to resolve the case and the Defendant can go back to his life and my client can move on with her life.

Monday, July 7, 2014

Trial Preparation in the Unbearable Heat

It's another very hot day in the city that makes me glad to work indoors. As the week begins with another stretch of court appearances in the blazing heat, I am at least able to pass the time inside and prepare for the first appearance, a trial tomorrow. It's the missing Defendant, who has finally been found (he's incarcerated and we finally know how to make him appear for trial).

In addition to the trial, I met with a nice young lady this morning who is having an issue with lost baggage and her airline. I am hoping it was due to the heat, but she was quite upset and wanted to pretty much sue the world over her lost luggage. Some of it has been found, some has not yet, and there must be some very important items in the baggage.

Unfortunately for her, the first response to sue everyone (and she wanted to sue EVERYONE) is not necessarily the best course, especially when dealing with the airlines. While this young lady had her heart set on a lawsuit, there are a lot of terms and conditions that apply whenever you take an airline flight. Want something fun to read? Ever tried American Airlines' Conditions of Carriage?* 

After years of dealing with passengers, the airlines have their policies and they stick to them pretty rigidly. Lawsuits aren't always the best way to go.

*Not the airline that this young lady flew on, they are used just as an example.