Sam Hasler

The Law and You – Some Popular Myths About Contracts

shasler — Thu, 19 Jun 2008 06:51:04 -0700

Contract law in one short article? Impossible. Not just hard impossible but impossible like climbing Mount Everest in the nude impossible.

Instead, I am just going to knock on some myths about contracts. That is more like climbing Mount Everest in a bathing suit.

Every Contract Has to Be in Writing. Nope, wrong. Contracts involving land and labor that will take over a year and certain consumer transactions must be in writing to be valid. A contract is an offer and an acceptance and that can be oral. Better that everyone writes down what was offered and accepted so that the written document can be used as evidence.

You Do Not Need A Lawyer to Write a Contract. This one depends on what will happen if the contract gets breached, how much will you lose if the deal goes bad. I say it is a gamble and the best place to gamble is at a casino and not with your business. Many years ago a client brought me an eviction, he had proudly bought his lease at Decker's (yes, it was that long ago) and talked about saving so much money on attorney fees. Problem was that the lease was pro-tenant and it cost him much more to get the person evicted than a would have a proper lease.

You Do Not Need a Lawyer to Read a Contract Before Signing a Contract. This is true – so long as the contract works the way you want it to. If the contract does no work out the way you wanted, then you get to pay a lawyer for litigation. Or you maybe you will have other costs. It seems a lot of the subprime mortgage crisis came about because people signed off mortgages without knowing what they were doing. Now they are dealing with foreclosures. While there are some times when a court will not enforce a contract, "oops, I didn't have my lawyer look it over first" is not a defense. The contracts where a court will not enforce a contract include: one side is mentally incompetent, one side is younger than 18 years of age, the contract is against public policy. (And what is against public policy? Contracting for illegal services is against public policy. This scenario proposed by someone would be – in my opinion – against public policy: “....the contract said a person had the right to, say, legally adopt your children if they didn't fulfill the terms of the contract....”). What you get is attorney fees for litigation instead of attorney fees for reading a contract. I call this penny wise and pound foolish.

Lawyers Are Dealbreakers. A friend used to say this to me. After some extended litigation, he no longer says that. The only deals that ought to be broken by bringing in the lawyers is one that would have been, probably should have been broken.

Any Contract Can Be Set Aside After Three Days. No, only sales at home can be set aside after three days.

I think that hits some of the high points. Now let me leave you with the best advice I can give about contracts: Get a lawyer because an ounce of prevention is worth more than a year or more of litigation and all those attorney fees.

The Law and You – Part Three: Dealing With Lawyers

shasler — Tue, 10 Jun 2008 18:20:35 -0700

After twenty years, how people react to lawyers still amazes me. The reaction runs from dislike to dread to a mix of both. Why people feel fear when meeting with their lawyer is something I do not understand. I put it down to my professions failure to explain itself to the public. After all, if we make a mystery of things then people will pay their fees and let us get on with our jobs.

I think the more knowledgeable the client, the better will be the attorney-client relationship. What I want to do today is give you some tips on how to approach the attorney-client relationship.

Ask Questions and Remember to Wait for the Answer. Lawyers expect questions. We will answer questions. It may be that your question contributes nothing to resolving the legal issue, but how will you know without asking? But when you ask a question, wait for the whole answer. Do not interrupt, do not start yelling before you get the whole answer. I had a client do that last month. I would have been annoyed except that I had already made my mind up that I did not want the case. His behavior convinced me that regardless of how good his case was, his behavior would sink it.
Get Informed Before You Meet With the Lawyer. There is enough information out on the Net and in public libraries to let you know something about your case. See how well the lawyer explains things to you. This will help you with number 1 above. If nothing else take a look at the subject index on my Indiana Divorce and Family Law Blog.
Do Not Expect A Cheerleader. My job is to be an advocate and an objective one at that. The legal profession's ethical rules expect me to look out for a client's best interests. What all that means is that I have to seriously consider and explain the case's weaknesses and problems with the client. The perfect case exists only as a myth. Understand that how good a case is depends on balancing the bad and the good. I explain the good and the bad and leave it to the client on whether to pursue the case or not. Attorneys who pump up a weak case just to keep a client are the same as those people who predicted flowers strewn along the streets of Baghdad.
Do Not Oversell Your Case. Call this the flip side of 3, the person who says that a case is worth untold riches. I know who to calculate the value of a case. Any lawyer who cannot calculate the value of a case should be questioned and anyone accepting a potential client's talk of untold wealth needs avoiding. I have a solution for people trying to inveigle me into taking a case with promises of a big payoff – I show them the door.
Do Not Lie. You may not like to explain some tawdry, embarrassing incident to a relative stranger but it is better to do it in a law office than in a courtroom. When I did criminal defense work, my clients would amuse me when I presented the evidence of the State had on them and they say that was true. Lawyers deal with the bad stuff in a case but we have to know about it first. If you do not give me the facts accurately, I cannot do job properly.
Do Not Say That It is The Principle and Not the Money. Say that on the telephone to me and you do not get an appointment, say it in the office and you get shown the door. Making that statement means that money will mean everything.
Pay Your Bills. The lawyer-client relationship is a partnership. I have the law and the client having the facts is only part of the relationship. Trust is the other part. I need to demonstrate that I have the skills for the job – that justifies you putting your trust in me. You paying your bills is part of how you make the lawyer trust you. (The other part being contained in 5 above). Not paying your bill makes it very difficult to believe in you, and believe in your case. Let me put it this way: would you trust your employer if they did not pay you your wages? I do not think so.

What should you expect from your attorney? Indiana's Rules of Professional Conduct spell that out, but here are the minimal ones:

Diligence. Working as quickly as possible to get all things done.
Competence. That we know what we are doing.
Communication. That we let you know what is going on in your case and do our best to explain what is happening.
Promoting only meritorious claims. I do not think there is anything to add that.

The Law and You - Part One

shasler — Fri, 28 Mar 2008 18:20:46 -0700

By Sam Hasler

Welcome to my first article for the Anderson Free Press. I was delayed in starting this project by the flu and a serious case of writer’s block. More about that block in a moment.

I should introduce myself first. I have been a practicing lawyer from Anderson for more than twenty years. In those years, my practice became concentrated in two big areas: family law and business law. I expected to write about those areas but I also published two law-related blogs (Indiana Civil & Business Lawyer and Sam Hasler's Indiana Divorce & Family Law Blog). I want what I write here not to be quite so technical as what I write there. While trying to avoid repetition and fighting the flu, I found myself with a nasty case of writer’s block.

I thought the readers of the AFP would want something broader and useful. This lead me to thinking about how law school teaches lawyers to think like lawyers. Which lead me to this question: how do people know how to deal with the law and lawyers? Television and movies are not the most realistic teachers.

People approach the law and lawyers as something more terrible than a visit to a dentist. If I took on the subject what is the law would mean starting out on a journey that would take a very long time. Many long, large books exist on the subject of what is meant by law. I am going to skip all that and pragmatically assume that the law is certain things - like whatever is in the lawbooks.

But what is in the lawbooks? I say that questions bedevils all those who think they can handle their own legal matters (as well as more than few lawyers!). That no one book exists saying that here is all the law on the issue. Why do lawyers waffling on what real people think is a simple question? Because of the terror that somewhere exists a case that creates an exception sinking your case.

In America, the lawbooks include constitutions, statutes, administrative agency regulations, court rules and judicial opinions. Both the federal government and Indiana have constitutions (all these links are for Indiana sources). Legislatures pass statutes based on the powers imposed by the constitution. If you want to litigate, then you have to deal with the rules of court. Finally, a court makes a decision on whether and how a statute or constitutional provision applies to the facts of your case. If either side disagrees, they can appeal. Appellate court opinions make law by interpreting the statute or constitution. I have completely omitted discussion of administrative agency regulations or those issues which are created by statute or constitution which we call the common law (which is completely judge made). To know what the law is depends on knowing all that can apply and not just bits and pieces.

Now you can see why lawyers hem and haw when asked what is the law. Next I will discuss selecting a lawyer.

Note: This column is not legal advice. If you have a legal problem, you need to get a lawyer and talk to them in person rather than rely on anything written here.