ANNOUNCING LAW FIRM MERGER!

Dear Clients and Prospective Clients:

Every small business wants to grow and succeed, and I am happy to announce the merger of my firm with a well-established and highly reputable firm located in the Des Moines, WA marina. The new firm will be Regeimbal, McDonald & Young, PLLC and will provide the depth of service and support that a sole practitioner often cannot. The Regeimbal, McDonald firm currently provides outstanding service to clients in estate planning, elder law, probate, and guardianship as well as general business and corporate, real estate and transactional matters. I will continue to offer litigation services and mediation, as well as real estate, business, construction, employment and probate/ elder law / guardianship. As I have represented adult family homes, guardians, and heirs in administrative and court proceedings, this is a natural growth area for me. I’m very excited about this move, and truly believe it offers all of our clients more value and expertise. Please feel free to review the existing Regeimbal, McDonald website at: http://www.rm-law.com. I will continue to post here and be available at both offices for the immediate future. The office in Des Moines information is:

Regeimbal, McDonald & Young, PLLC
612 S. 227th St.
Des Moines, WA 98198
Local: 206-212-0220
Seattle: 206-408-2020
Fax: 206-408-2022
www.rm-law.com; www.desmoineselderlaw.com

MEDIATION OVERVIEW

If you are facing mediation, it is a good idea to know what to expect in order to prepare well and maximize the efficiency and effectiveness of the process. Know these basics:

(1) The mediator facilitates a conversation, but is NOT a decision-maker. Your job is to persuade the other side, not the mediator. One way to prepare well is to write a mediation brief or letter. It is addressed to the mediator, but often shared with the other party. It lays out a very brief history. For Example, it could read like this:

[My former business partner and I met in 1998; bought a business together in 2004; decided to sell in 2013; and now are in conflict over terms of the agreement. A copy of the agreement is attached as Exhibit A. I believe clause 3 means X; the other party believes it means Y. A copy of my letter to her outlining my view is attached as Exhibit B; a copy of her letter in response is attached as Exhibit C. I believe my interpretation is correct because…..]

A good length for your letter is six (6) pages. You may want to include a section that says: [My goals are…..]. This helps you focus on the outcome you want — both in terms of dollars and non-monetary terms. More on that below.

(2) Mediation sometimes works because the parties themselves know…deep down…what is really bugging them, what really motivates them, and what is really at issue for the other side. Attorneys sometimes gloss over these things to only focus on dollars. Even in construction cases, and almost always in real estate and employment cases, other considerations play a significant role. BEFORE the mediation, ask yourself what matters to you, in addition to money. Consider placing your core concerns, goals and “wants” in the mediation brief. Still, even if it is emotionally laden, remain professional and courteous. Rude and inflammatory remarks, vindictive comments, and negative overlay are counter-productive. Sometimes examining the emotional content first, then editing it out of your final submission, helps diffuse the internal drama. It is hard for the brain to be both emotional and analytical simultaneously, so this is a useful exercise even for business disputes.

(3) Settlement demands can always come down, but it is very difficult to increase your settlement demand. Start with a number that you can support with your evidence, but do not expect to be able to leave the mediation, invest more attorney fees, expert costs, discovery costs, and then have the other side pay for all of that in increased offers. It almost NEVER works that way. The time to maximize your settlement recovery is before the attorney fees, expert fees, court costs, depositions and other litigation processes suck the wallets dry.

(4) There are generally two different mediation models. One is the “shuttle offers” approach where the mediator moves from your room to the other side’s room and conveys information and offers, and tests your own theories of the case with questions, evidence, and issues for you to consider.

The other is a combined approach more typical in employment and labor cases, where an ongoing relationship between the parties will require future cooperation, collaboration, and mutual understanding. Consider which approach would best fit your situation, and find out which model your mediator prefers. It is your process, and you have the right to insist upon a mediator and an approach that will maximize the effect. You are paying for it, one way or the other. You cannot force the other party to meet with you, but even that refusal gives you information.

If you are the party refusing to meet, consider the message that you are sending. As a litigator also, I often view this as a signal that the other side is afraid to meet my client, afraid to face me, and afraid to really negotiate hard. To me, that is a signal of weakness. If they cannot face us in mediation, how will they do so at trial?

(5) Secrecy and “hide the ball” are counter-productive. Mediation is a private and confidential process, although what is learned during mediation cannot be unlearned upon leaving the room. However, keeping your best arguments, evidence, and information secret just in case your mediation isn’t successful usually ensures that mediation will NOT be successful. A mediator cannot use ammunition that s/he is not provided. However, a benefit of mediation is that your personal conflict is not public and available openly to business competitors, regulators, former employees, etc. The privacy aspect of mediation is a major “plus” for most parties.

(6) Take your files and documents with you to the mediation so that you can refer to them if necessary. The other party may genuinely have questions that you could answer to your own advantage and benefit.

(7) Finally, consider having your expert, accountant, or other “go to” people available by phone during the mediation. This is not for your own benefit, but to answer questions or provide insight to the other party. GOOD LUCK. Mediation works in most of the cases, most of the time.

Insurance – An Ounce of Prevention For Litigation Defense Costs

Both businesses and individuals can be protected against high legal costs for defending against claims through insurance. Whether you carry basic premises liability coverage, or have the full package that includes employment practices liability (EPL) insurance, homeowner’s insurance, or even renter’s insurance, it is wise to ask your attorney if it makes sense to tender a claim that is made against you to your insurance carrier for defense and indemnity. Defense coverage is not guaranteed, and is dependent completely upon factors you cannot control (such as how the Plaintiff’s attorney chooses to draft the complaint against you). Indemnity against a possible judgment is not guaranteed, either, and will depend upon too many complex factors to review here. The important thing for a defendant in any legal action to know, however, is that requesting a tender of the claim to your insurance carrier often makes good sense. Even if you think that your attorney will automatically do this, it is a good belt and suspenders approach to make sure that it is considered and discussed. Many attorneys have handled so many cases of a similar nature that they may be able to advise you immediately that it would be a waste of time. Still, it is worth having the discussion and worth considering whether even one count of the complaint would be subject to insurance coverage.

There are negative aspects to tendering the claim to your insurance carrier, and this blog is not intended to suggest that tendering a claim is ALWAYS a good idea. Some of the negatives are that the insurer may have a stable of attorneys it uses through a lower-cost agreement (similar to medical insurers insisting that you utilize only this doctor and that hospital). Further, it can impact your rating, causing premiums to increase and even resulting in cancellation of coverage altogether. So, the potential defense costs and/or potential exposure for a judgment must be weighed against potential long-term insurance premium and coverage ramifications. Having the discussion with your attorney about these issues, when you are the defendant, is ALWAYS a good idea!

Rev. Dr. Martin Luther King, Jr. – Day of Service

Whether or not you must work today, it is a good day to remember that service to our country and to each other honors national heroes, but more importantly gives us each a life filled with meaning, purpose and commitment. Dr. King called upon us to perform service and we can honor him in this way. My family used this opportunity of “day off / day on” to pick up trash around our neighborhood two years ago. We collected food for the food bank last year, through a program sponsored by the City of Federal Way. Whatever you choose to do, remember that individuals, business owners, families, civic organizations, and religious groups can accomplish more together than anyone can alone. I wish you a wonderful New Year, a wonderful MLK day of service, and a prosperous and meaningful life.

AVVO.COM Questions and Answers

I have contributed regularly to answering questions from the public on the website, http://www.avvo.com and you may go to that site to review some of the questions and answers that I have posted. You can compare my answers to those of other attorneys, and you can determine whether my general philosophy and approach syncs well with your own.

EFFECTIVE ORGANIZATION FOR ATTORNEY MEETINGS

Your first meeting with your attorney can be efficient, productive, and set the tone for your entire relationship.  Whether it is a construction contract that you would like to have an analysis of, or defense of a lawsuit, or a claim that you intend to present against another party, there are basic tactics that always work to maximize your time and effort. 

I.  GATHER DOCUMENTS.  All documents.  Irrelevant documents.  Documents that are uncomfortable, unfavorable, and even draft documents.  Unsigned documents.  Undated documents.  Photographs.  Videotapes.  Emails.

II.  ORGANIZE – Group your documents by category.  (1) Emails; (2) photographs; (3) brochures, marketing, web pages; (4) correspondence; (5) contracts, drafts, and addenda / change orders.

III.  DEVELOP A CHRONOLOGY:  This means, what happened on what date, supported by specific documents (when possible).

These steps are the key to organization and efficiency.  If done prior to your meeting, your attorney can review the documents, hear your story, answer your questions, and plan your strategy.

 

Good luck!

“DO I HAVE A CASE?” 5 Tips on How to Know

The first contact between many clients and this office starts with this question, “I’d like to know if I have a case?”  Every fact situation is different, but most individuals have the resources available to answer this for themselves, at least in a rough kind of way.  Your attorney will help you figure out the nuances, the practicalities of whether pursuing your claim is cost-effective, and a good attorney will also caution you that litigation is stressful, time-consuming and often very costly.  Mediation can be the better alternative, but even then one should always negotiate from a position of strength.  This means: (1) knowing the legal strengths and weaknesses of your position; (2) knowing the “rules” that will govern the game; and (3) knowing the intangibles that may motivate the other party or parties to avoid litigation and settle reasonably.

I.  ELEMENTS OF A BASIC LAWSUIT

Every claim requires four elements:  (1) that the other party(ies) owed you a duty [statutory, contractual or common law]; (2) that they breached [this means in a material way…not minor, insignificant things that didn’t really alter the terms of your situation]; (3) and because of  the breach; (4) you were damaged in a foreseeable or predictable way. 

How do you know if the other party legally owed you a duty?  Today, there are many ways to learn about the obligations we all owe each other.  For example, in a real estate deal, you may say, “I didn’t sign a contract yet, but they told me the house was mine.”  Did the seller have a duty to you, because they made such statements?  You can research this by going to http://www.leg.wa.gov (our state legislative website); looking in the search box (top right of the upper menu bar) and selecting “RCW’s) (revised code of Washington…our statutory authority). 

Enter your search terms —  for example:  “verbal agreement real estate” or “oral contract real estate.”

The pertinent statute will come up and tell you that ALL contracts to convey real estate in Washington must be in writing to be enforceable. 

You may have other claims, though.  It may seem to you that your situation is a bit special, because the seller specifically told you that they would lease your old house until you could sell it; they would pay your temporary living costs until they were ready to move out of the house being sold to you, etc. and you relied upon this, and changed your current situation to your detriment based upon those promises.  A court may not force them to sell the house to you, but a court may force them to reimburse you all of your damages for having relied upon these “side” promises.  It would be very fact dependent.  That is why your first meeting with your attorney should be as thorough, but concise, as possible. 

II.  DEFENSES THAT COULD DEFEAT YOUR CLAIM(S)

If your research shows that you have met the elements of DUTY, BREACH, CAUSATION and DAMAGES, you still must consider whether the other party has valid defenses that would defeat your claim in court.  Such defenses are also fact specific, but you can find most of them listed on the court’s website, under the civil rules of procedure, at CR 12.  (Civil rule 12).  Go to:  http://www.courts.wa.gov, and on the left menu, select “court rules.”  Type in “CR 12″ and read the entire rule.  For most lay persons, the language used is meaningless.  This is where you need to consult with an attorney if you suspect that the other party to your dispute may have some valid defenses to your lawsuit.  Examples of common situations are:

1.  You had a valid claim, but you waited too long to file suit.  This is called the “statute of limitation.”  There are different periods governing different claims.  For example, you have six years to sue for breach of a written contract, but only three years to sue for breach of an oral contract, and only two years to sue for fraud.  Many insurance contracts have a one-year suit limitation period that Washington courts have enforced.

2.  You had a valid claim, but you brought the case in Washington, and the contract says that all of the disputes will be resolved in Boston, MA and Florida law will govern and you must arbitrate and sixty days prior to the arbitration you must serve a demand for mediation upon the other party.  [Yes, I have seen a few contracts that have such convoluted provisions.  Most of them, but not all, are enforceable].

III.  PRACTICAL CONSIDERATIONS

You’ve decided that you have a claim, and that it is unlikely that the other party(ies) has any defenses.  They crashed their car into you, running a red light, were ticketed, were uninsured (also a violation of the law), and caused you both property damage and personal injury.  Unfortunately, you were also uninsured!  You will have to hire an attorney to pursue the other party and try to recover.  Most attorneys accept personal injury cases on a contingent fee basis, which means they agree to not charge you directly, but will take a 1/3 or greater percentage of whatever is recovered from the at-fault party.  Here, the fact that the at-fault party had no insurance probably means they also have no assets that they were tryin to protect with insurance.  Perhaps they are also very willing to give up their low-earning job, flee the state, and melt into the Florida economy rather than paying you from their garnished wages.  So, you may find it very difficult to interest an attorney in your case.  Collecting is the fifth element that many attorneys want to discuss with you first…before time is wasted establishing that you actually do have a valid case.  You should ask yourself this question before visiting the attorney, and do any research that is possible on your own before the first appointment.

A well prepared client is a more attractive client to any law firm.  I hope this blog posting assists you, and I also hope it assists your future attorney.  Time saved is not just money saved.  It creates a professional bond that tells your attorney you are competent, will be easy to work with, and will present well in depositions (recorded interviews of you under oath, taken by the other attorney(s)).  Organized, concise clients are desireable clients!

REAL ESTATE BUYER RISKS

Many real estate purchasers consult an attorney after it is too late to take action against the seller, the realtor, the home inspector, or others that may have had a hand in the transaction.  It is good to be aware of the issues that arise upon closing the transaction, and generally to take action promptly when the other party does not promptly resolve or remedy the situation.  For example, a builder /seller may offer a “one year warranty” on new construction.  Failure to remedy the problem within the first year of the sale means that the buyer can no longer make the claim under the warranty, but must then resort to alleging that it constitutes a breach of the contract.  That could be difficult.  It shifts the burden of proving what went wrong, and how it was caused, from the builder (who bears the burden of proving it WAS NOT defective construction under a warranty claim) to the buyer (who bears the burden of proving that the issue constitutes a breach of contract).  Furthermore, even defective construction may not constitute a breach of the contract.  Most real estate sales contracts favor the seller, and the realtor.

Breaches of a written contract must be brought within the first six years after the breach, and in construction cases, there is a “statute of repose” requiring that the claim actually arise within the first six years.  Therefore, when a property buyer brings an attorney a case stating, “I didn’t find out that the sewer was improperly built until now, and I purchased this house seven years ago….”  this is too late to bring a claim against the builder vendor.

Claims against inspectors are particularly difficult.  Most of the contracts have language limiting the damages that could be recovered severely.  These are typically enforceable in Washington, if they are of reasonable type size, fairly clear that they limit your remedies, and are in the same language as the rest of the contract!  Given the typical prices of the inspections, and the limited nature of the inspections (most inspectors do not crawl under the house, and cannot pry boards loose or dig to inspect sewer lines), this is usually a reasonable limitation.  Do not believe that because you hired and relied upon an inspector you can then wait a couple of years while the sewer backs up, the house doesn’t heat or cool properly, and water pours in through the windows.  The longer you wait, the harder it is to give your attorney a reasonable chance of success.

Even if you do not miss a statute of limitation, however…you may still wait too long for your attorney to take reasonable action.  People die, move away, retire, and go bankrupt.

If you ARE a builder / vendor, keep these same principles in mind.  Returning to fix issues within the first year may be a part of a written warranty that you have chosen to offer.  However, if there is no contractual promise of a warranty, there is no “automatic” one-year warranty.  Second, unreasonable ongoing demands to come out and replace light bulbs need not tie you down from pursuing new work.  Many claims are actually the result of the homeowner’s failure to perform normal, customary, and routine maintenance.

If your contract documents are not clear, this office can help you clarify your obligations and your buyers’ remedies for future transactions.  A happy buyer is important, but we all know folks who continue to demand long past the expiration date of logic or reason.  Contracts should be clear, and fair to both parties.  Honor your reasonable obligations, and seek advice if a particular customer shows no indication of behaving reasonably toward you.

PREVAILING WAGE BASICS

Many contractors are confused about their obligations to pay the Washington state prevailing wage when contracting to perform work on a public works project.  This attempts to provide contractors with very basic data, and where to find more information if needed.

1.  Public works projects are broadly defined in Washington to include those projects erected at public expense.  A fairly well-known case involving the Performing Arts Center in Wenatchee, Washington held that where any public money or assets are involved, then it is a public work.  Thus, the fact that the greatest bulk of the financing came from a private non-profit did not convert the project into a private work.  The bid packets should say whether the prevailing wage applies, but a careful contractor in doubt will inquire, in writing, to the Industrial Statistician of the Washington State Department of Labor & Industries.

2.  The prevailing wage applies to the scope of the work performed, not the job title.  Accordingly, a contractor may call its crew “laborers” but when they perform work tying iron they must be paid at the rate associated with iron workers.  The job title, or hiring documents, or workers’ experience is irrelevant.  It is the actual work being performed that determines each individual’s pay scale for each specific period during which that work is performed.  The “scopes” are found at RCW 296-27-010, et seq.

3.  If your particular scope does not appear to be addressed, then it is wise to obtain a written determination in advance from the Washington State Department of Labor & Industries, industrial statistician.  There is a case in Washington where the contractor did exactly that, but after the project was completed, the Department issued its “NOV” (notice of violation).  The contractor responded that it had asked specifically about the correct scope and pay, had received a response, had relied upon the response, had paid accordingly.  The court held that the contractor’s payments did violate the prevailing wage law, at RCW 39.12, but that the Department was estopped from issuing its NOV.  The contractor therefore was not required to make up the difference between what it paid and what it should have paid.

4.  The same scenario does not apply if a contractor obtains the opinion of only the local agent for the Department.  Only the industrial statistician has the authority to issue an opinion letter on the topic of scopes.  Accordingly, many contractors have sadly learned that: (a) the local agents often don’t really know; and (b) even if they do, their opinions don’t matter — legally.

5.  The prevailing wage law is found at RCW 39.12.  The contractor or subcontractor(s) must submit “intents” prior to performing public work, which can be found and submitted on-line.  Go to:  http://www.lni.wa.gov and type “prevailing wage” into the search box.

6.  “Affidavits” must be completed after the work is performed.  This is a verification under oath that the correct prevailing wages were actually paid.  Parties should not rely on this, as it is often a task left to lower level employees.  Again, these individuals often do not really know whether the correct wages were paid, and even more often do not know if the correct fringe / benefits were actually paid.

7.  The question of payment of the fringe into a bona fide trust is complicated and should be referred to an attorney or CPA with experience in auditing and accounting for Washington public works projects.  Your Uncle Joe’s CPA is NOT a good source for this information, nor is your Aunt Kathy’s divorce counsel.  I have handled such disputes for both wage claimants and contractors, and have learned that mistakes, fraud, and misinformation are prevalent.  Prudent contractors should not leave intents and affidavits to inexperienced personnel, even if that individual is on the management team and otherwise very capable.

FRIVOLOUS LIEN MOTIONS BRING RISKS

Washington State recognizes many different types of liens — the familiar mechanic’s lien in the construction industry, at RCW 60.04, plus at least 30 other varieties of lien devices to secure payment for various types of services rendered.  Almost all of those lien statutes bring with them the opportunity for the owner of the liened-upon property to bring a motion to expeditiously dismiss a frivolous lien.

Such motions are available, but as the saying goes, “Just because you CAN, does not necessarily mean that you SHOULD.”  Motions to dissolve liens as frivolous entitle the prevailing party to an award of attorney fees.  Therefore, before one files a motion to dismiss a lien as frivolous, a close examination of all the facts is required.  You may think that you have all the evidence necessary to immediately prevail, but if you are wrong, such motions can typically cost from $3,000 to $8,000.

Moreover, the case law runs strongly in favor of the lien claimant.  While the courts have said that such motions are heard as a “trial by affidavit,” the courts have also stated that the summary procedure does not replace a full trial on the merits where the matters in issue are not clear-cut.  A review of Washington case law, both published and unpublished opinions, reflect that such motions are rarely successful.

In my practice, I have asked other attorneys to send me their briefings and Orders on such motions.  I have encountered only two successful motions briefings in the last five (5) years.  I brought one, and a colleague brought the other.  Both were on facts that show successful motions rest upon the lien itself being invalid on its face.  For example, one lien clearly included amounts earned over the preceding five years relating to multiple projects, but liened against only one property.  Moreover, the owner of the single property was completely unrelated in any way to the owners of the other parcels where work had been performed that was being claimed.

The second lien that was dismissed as frivolous described work performed that could not have been performed on the liened-upon property.  There, the lien sought payment for work performed in common areas of the condominium, where the liened-upon property was a single family residence.  The case law makes it clear that an invalid lien is not necessarily frivolous, but a truly frivolous lien is one so wholly devoid of merit that its dismissal is without question.

Be wary of filing such motions, and be willing to assume the risk of an additional $3,000 to $8,000 in your gamble.  If you haven’t been to the casino lately, perhaps you do not want to play this game, either.