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Saturday, February 6, 2016

Duty to Mitigate Damages | Legal How To UTLRadio.com

Monday, December 21, 2015

Top 5 Reasons NOT to File A Lawsuit NUMBER 5 Aunt Millie

People file lawsuits for a variety of reasons. Some of them are good and some of them are pretty bad. Today we're going to start a five part series. I'm going to give you the top five reasons not to file a lawsuit.

 You are at Christmas dinner and Aunt Millie tells you how she just won so much money in a lawsuit because she was fired from her job. She sued her employer and she has just hit the gold mine, like the lottery, right?  She says, "How's your job going?" You say to her, "Not so good, I'm having problems." She says, "You should sue. I did, it was easy. I made a lot of money. I think you should sue."
The number five reason not to sue is because somebody tells you that they had success in a similar care and encourage you to do the same under the gaze that you are going to make the same amount of money as they did.

Why is this the number five reason not to file a lawsuit? Because cases are very, very fact specific. A case may seem very similar to yours but there could be some factual or evidentiary issues that make the case completely different. So Aunt Millie's employment discrimination case could be very similar in a sense to yours but there are certain facts in Aunt Millie's case, testimony, and evidence that all worked in her favor that made it possible for her to recover.

You could have a case with similar facts and then something happens during the discovery process. Something happens because a document is produced or there's a company policy that was in effect that wasn't present in Aunt Millie's case. Just because Aunt Millie was successful in her lawsuit doesn't mean that you will be. If you think that you have a case or claim, go see a lawyer. Go talk to somebody that actually knows because I'm sure Aunt Millie is a great conversationalist. You probably have a lot of fun with her on Christmas and summer barbecues but Aunt Millie is not a lawyer. She doesn't know how to look at the specific facts of a case and say look, this is something that might be a problem. She also can't analyze as the case moves forward whether or not a piece of evidence or testimony is going to change the direction or outcome of your case.

If you have a potential claim or you believe you have one it's worth your time to go find a lawyer, sit down with him or her, show them your evidence, your documents, a timeline of what happened. Explain to them why you think you should be able to recover. Let them tell you whether or not you have a good case and what the likelihood of success is. Remember an attorney is not going to guarantee you a positive or successful outcome. They also can't pinpoint exactly what your going to recover. A seasoned attorney can give you an estimate or a guesstimate, if you will, a range of what you might be able to recover. Not Aunt Millie. While her stories are fun don't take her advice to heart. Go see an attorney for yourself and find out whether or not your case is going to be as successful as hers.

That's going to do it for number five. Stay tuned for Number 4. If you have any questions about this post or any other questions please feel free to give me a call at 973-949-3770 or email me at pl@pjlesq.com.

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Wednesday, December 16, 2015

How to Draft an Order | UTLRadio.com

In this video attorney and UTLRadio.com host, Peter Lamont shows you how to draft an order to accompany your motion or related court document. Please keep in mind that you should always review your state's court rules and procedures.

If you have questions about this video, another video or have a different business or legal question, please contact me at info@utlradio.com or call me at (973) 304-4022.

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Tuesday, October 20, 2015

New York Electrician Will Leave Light on for Divorce Attorney

By: Peter J. Lamont, Esq. | UTLRadio.com
October 20, 2015

Take a walk around the Staten Island and Brooklyn Courthouses and you will find hundreds of flyers posted on sign posts, parking meters and in other prominent places all seeking one thing, a qualified divorce attorney willing to barter services with a licensed electrician. Anthony Davino, a 49-year-old electrician, licensed in New York and New Jersey, has taken to the streets in the hopes of finding an attorney to help him through the remainder of, what has turned out to be, an emotionally and financially draining divorce.

Davino has been without legal representation since his second lawyer quit because Davino was unable to afford the $30,000 fee requested by the attorney for continued representation. According to Nicholas Rizzi (@nickr15), in an article posted on dnainfo.com, Davino said, "I'm pretty much dead in the water. The only thing I have left is my skill, and there's got to be a lawyer who I can barter my services with." (https://www.dnainfo.com/new-york/20151016/st- george/local-electrician-trying-barter-his-services-for-divorce-lawyer)

Reportedly, Davino has been battling his wife through divorce proceedings after he allegedly caught her “cheating”. Davino is reported to have spent over $200,000 on legal fees, alimony and child support as he continues to fight for custody of his 11-year-old daughter and 9-year old son.

While Davino has taken a unique approach to finding representation, this unfortunate scenario is played out daily throughout the country. Every day good people who cannot afford an attorney find themselves mired in legal troubles. While there are times that non-lawyers can do a good job representing themselves, there are so many legal matters that require the assistance of an attorney. For example, small business owners are required by law to be represented by an attorney. It is also extremely difficult to represent yourself in divorce proceedings as they are complicated and extremely emotional.

As an attorney myself, I understand the need to be compensated for your skill, effort and time. However, should greed override compassion? I say, “No.” The unfortunate reality is that some attorneys see clients as a revenue stream only. They charge excessive fees and as quickly as they sign up the client they also terminate representation when the client can no longer pay the bill.

So how can attorneys strike a balance between being fairly compensated for their work and providing quality representation to clients whose pockets may not be that deep? One solution is by providing alternate fee arrangements to certain clients. Alternate fee arrangements can include hybrid billing, where a client pays a flat fee for some services and an hourly fee for others; value or success based fees; and even through bartering agreements.

Many attorneys scoff at the idea of bartering services while others mistakenly believe that bartering is unethical. The reality is that it is not. In a recent ethics opinion, the Connecticut Bar Association Standing Committee on Professional Ethics advised that "lawyers may participate in
a barter exchange program and provide legal services to clients in exchange for receiving barter currency . . . rather than being paid for the services in cash by the client." http://www.thelawforlawyerstoday.com/2015/10/can-lawyers-barter-their-services-ethics- opinion-says-yes-and-it-may-be-a-trend/

The recent Connecticut opinion follows other states’ ethics opinions, including the New York State Bar Association (1994), the Utah State Bar (1997) and the North Carolina State Bar (2010). See also Alabama State Bar Office of General Counsel (2001); Florida Bar (1984, rev. 2011).
So, in the case of Anthony Davino it is possible for an attorney to trade services with him so long as the attorney complies with New York Rules of Professional Conduct. Now he simply needs to find an attorney who needs to have some electrical work done. Hopefully, for Anthony Davino his innovative, yet "old-school" approach pays off. In fact, it already may have as reports suggest that at least one attorney has already contacted Davino. (https://www.dnainfo.com/new-york/20151016/st-george/local-electrician-trying-barter-his- services-for-divorce-lawyer)

Peter J. Lamont, Esq. is a New Jersey Business & Contract attorney and the host of UTLRadio.com, a business and legal podcast and video program. Contact: pl@pjlesq.com. Visit UTLRadio.com for business and legal information.

Wednesday, October 14, 2015

How to Vacate A Default Judgment | UTLRadio.com

By Peter J. Lamont, Esq.

Did you know that there is a way out of a default judgement if one's been filed against you? I'm going to tell you how you can vacate a default judgement.

In a prior video, we've explained what a default judgement is, and it's essentially when you fail to answer or otherwise move when you're served with a summons and complaint. The plaintiff obtains a default judgement against you, meaning that whatever relief they've requested in their complaint, is being granted simply because you didn't respond.

How do you vacate a default judgement? Well, good news. First of all, the courts favor litigating cases on the merits, as opposed to giving someone a default, especially when money is involved. Here's how you do it: you have to file a motion to vacate the default judgement. There are two things that must be in every motion. It's going to vary from state to state, but in the majority of states, you've got to be able to show two things.

One: excusable neglect, a reason why you didn't answer the complaint, for example, you weren't served on time, you never received a copy of the summons and complaint. Two: a meritorious defense, meaning you've got to be able to show the court that you do have a defense and that there's a reason for them to vacate the default because you can defend the claim, because of a meritorious defense. It's just a tangible or real defense. Whether or you can prove it's a separate thing, but as long as you can show the court that you've got some defense, then they're going to vacate the default judgement.

There are times that you should not attempt to do this on your own, and that's the majority of the time. Quite frankly, I'm not a big believer in saying that every legal matter that pops up, you need an attorney for, because the truth is, is that a lot of things you can handle on your own, but once you've been served with a motion of default or a default judgement or any of those things, it's gone beyond the stage that you should be handling it.

In another video we talk about when you should handle something on your own and when you should not. Assuming that it is a relatively high judgement against you, and relatively high depends upon on your level of comfort; for some people a thousand dollar judgement may be really high, for others it's a ten thousand dollar judgement that's really high. You've got to gauge your level of comfort. In general, I always recommend consulting with an attorney when you have a default judgement against you, because, like I said, you're at the end of your rope. All they have to do now is seize your bank account or garnish your wages, and then you're really stuck and it's a lot more difficult to get out of that hole.

If you have a default, you can file a motion to vacate, like I explained, but it's always a good idea to talk to an attorney. I hope that you understand now a little bit of the dynamics of how to vacate a default judgement. If you'd like more information or if you'd like to see a sample motion, I encourage you to pick up the phone and give me a call. My telephone number is 973-949-3770, or you can e-mail me directly at plamont@perterlamontesq.com. I'm available to take your calls, to answer your e-mails. I really want to help you understand the law.

Until next time, don't forget, subscribe. Click the button below to like this video. Share it with your friends if it's helpful. Don't forget to look at the iTunes App Store to download our free app, which is available for iTunes and the iPad, and it allows you to ask questions directly to an attorney in our office, get an answer, and it's all free. Thanks for joining me, and I'll see you next time.

If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at pl@pjlesq.com Offices in: New Jersey & New York.

© 2010-2015, Law Offices of Peter J. Lamont & Associates. © 2015 Insight Consultants, LLC. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between the firm and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Friday, October 9, 2015

Why won't an attorney take my case on a contingency basis?

By: Peter J. Lamont

A common question that I receive all the time is, "Why won't an attorney take my case on a contingency basis? I see it on the news all the time that an attorney will accept a contingency fee, but why won't an attorney accept my case?" Inside today's video I'm going to answer that question for you.

Today, we're going to be looking at a question that I get all the time. In fact, I just received a telephone call about it yesterday. I had someone call me up and say, "I've been sued, and I just don't have the money to hire a lawyer to pay hourly. I need somebody that will take this case on a contingency basis. I've called 15 lawyers, and nobody will accept the case. I don't understand why. At this point I just want to know why no lawyer will take this on a contingency basis." I spent some time with her, and I explained it to her, and that's what we're going to talk about today.

Contingency fees that attorneys advertise are primarily for collection cases, when you are the one that is owed the money, and personal injury cases. A contingency fee is essentially an agreement by the attorney that he or she will take a percentage of what you ultimately recover. The standard percent is 33-1/3%. It can vary in different states, and it can vary between you and your attorney. Maybe your attorney has agreed to a lower percentage. The point here is that the attorney agrees to get paid for his or her work based upon a percentage of what you ultimately recover in your lawsuit.

Just as an aside, understand that attorneys will generally always require the client to pay for actual fees or costs, not attorney's fees, not paying the attorney, but if you need to file a complaint, and it's $150.00, they'll pass that cost along to the client in most cases. If you need to hire an expert witness, they're going to pass that along, too, as well. A contingency fee arrangement means that you don't have to pay your lawyer anything. Your lawyer is investing in your case, taking a gamble, a chance on your case because if they don't recover for you, they're not going to get any money.

In the case of the woman that called me yesterday, she was being sued. She was being sued for, I don't know, something over $15,000.00. She wanted an attorney to take the case on a contingency basis, and no one would do it. She didn't understand why, and I explained it to her. The reason is because the attorney can never get paid for his or her work when you're defending a claim because there's no money that you're going to be entitled to. The reason that no attorney would accept this client who called yesterday is because they can't get paid. They can't recoup their money or their time because there's no money to be had because that person's being sued.

Contingency fee cases only work when there is the potential for recovery. After, of course, I explained it to the woman, she completely understood and decided to handle her defense pro se, meaning on her own. I gave her a little bit of guidance, and I think she'll be okay. That's the distinction. That's why attorneys don't accept every case on a contingency fee basis because they need to pay overhead, the lawyers that work with them, their staff, and if there's no hope of getting paid on a case, then it's a pro bono case, not a contingency fee case.

I hope that that clears up some of the confusion about when a lawyer will accept a contingency case and why you might be running up against an obstacle where an attorney will not accept your case. If you have more questions about this topic or any topic, please feel free to contact me. You can reach me by telephone at 973-949-3770 or e-mail me at plamont@peterlamontesq.com. I'm always here to answer your questions.

Please don't forget to subscribe to the YouTube channel and that way you're notified when new videos are posted. I also want to let you know I really do appreciate all the comments and feedback that I receive from you guys. I read and respond to every comment made, and I would like you to keep them coming because it helps me provide you with better content, content that you need or that you're looking for answers about. Thanks, and thanks for joining me today. I'll see you next time.

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