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MEDIATION BASICS

King County and Pierce County now require mediation prior to trial for most disputes.  What is this process, and why is it required?

Mediation is an opportunity for the parties in dispute to have a conversation either through, or with the assistance of, a neutral and trained mediator.  Mediation is frequently and surprisingly successful, given that the same parties were previously so unable to reach a resolution that court proceedings were instituted.

Mediation must be distinguished from arbitration and from litigation.  Arbitration is a very formal trial-like process where an architect, attorney or other trained professional actually hears evidence and renders a decision.  Arbitration is usually required  when a contract provision so provides, or where particular industries that utilize interstate commerce are at the core of the dispute.  Mandatory arbitration under statute and court rules apply to many cases, but not all.  This varies upon the amount in controversy, the relief sought, and whether other statutes specify that the case must be tried before a judge.  Witnesses testify, exhibits are offered into evidence, and the submissions of briefs to the arbitrator make the process very much like a trial.

Litigation is a formal court process before a judge or jury, with witnesses and documentary evidence to support each party’s case.  Litigation of most disputes is open to the public, and a recording or transcript of the proceedings is made.

Once in the mediation, each party is usually given its own space to meet as a team consisting of the party, that party’s  attorney, the expert (if any), and key witnesses.  The mediator will sometimes start the parties in a common room for introductions, before breaking out into private sessions.  Some mediators assess the situation as not appropriate for a common session (for example, in highly emotional cases involving sexual harassment, bitter custody disputes, allegations of fraud, etc.).  The private sessions are to assist each party with assessing settlement offers and demands, with the private expertise of legal counsel, expert, and key witnesses.

The benefits of mediation are that the parties are able to fashion contractual remedies and agreements for themselves that arbitrators, juries, and judges cannot impose.  It is a favorite quote for judges to say, “The court cannot fashion a remedy for the parties that they did not fashion for themselves.”  Mediation is an attempt to do exactly that…the parties themselves are in control of the outcome.  If you do not receive an acceptable offer, you leave the mediation and proceed with the arbitration or litigation process.  If you do receive an acceptable offer, a new agreement is drawn up between the parties to utilize going forward.

The selection of the mediator can be critical to whether the case settles.  A mediator with expertise in the particular area of the dispute can be extremely useful to open up the world of possible solutions to the thorny problems that brought the parties into dispute.  If your mediator actually worked as a realtor for twenty years, then served on the ethics panel, then served as a financing broker for the real estate division of a bank, this mediator would bring a unique skill set to your real estate dispute, but possibly very little substantive expertise to your employment dispute.  Even so, training in conflict resolution, building trust, drafting lasting agreements, and just maintaining a peaceful presence often does the trick.  Don’t write off the mediator for lack of specific technical expertise.

Mediators attempt to move the parties from blaming each other for what happened yesterday toward a focus of moving forward efficiently, cost-effectively and into a lasting resolution.  The success rate of mediation remains at over 90%.  It is therefore usually a good use of time and money.  The same cannot often be said for litigation, but obviously where another party refuses to recognize their own obligations, litigation and arbitration are sometimes required to preserve rights and enforce remedies.

COURT VALIDATES GIFT OF REAL ESTATE BY QUIT CLAIM

YAY!  Please indulge me in expressing sincere happiness for my clients who recently won their case on appeal with the excellent assistance of Ken Masters and Shelby Frost Lemmel.  I was trial counsel for this matter, and we fought hard at trial to defeat the claims of breach of an oral contract to devise, duress, unconscionability and fraud that were claimed by the disappointed parties that believed they would inherit a cabin.  Instead, when the decedent finally died, they learned that he had quit claimed the property to his nephews, my clients, before his death.

The trial court found that although the allegations of fraud, duress and unconscionability would not stand, the quit claim deed was not valid because it had not recited “consideration.”  We argued that no consideration was necessary for a quit claim deed.  The trial court disagreed, stating that the standard form in Washington requires it.  My client appealed, and chose the law firm of Ken Masters to handle that.

What an excellent choice!  Ken and Shelby utilized recent Washington case law to point out that the requirement of consideration in a quit claim has never been imposed.  You can read the opinion at:  http://www.courts.wa.gov, and it is styled:  “Dennis Bale, Respondent / Cross-Appellant v. Robert E. Fletcher, Appellant / Cross-Respondent.”  The opinion was released on February 11, 2013, Division I, Docket number 07/08/2011.

 

AGE DISCRIMINATION — The Statistics are In, and It May Not Be “You”

When a person over the age of 50 loses a  job, it is natural and obvious for a Human Resources consultant to view the job history and focus on the one thing that the worker and consultant can change — the profile of the worker.  More training, a better resume, a new look, some better “people” skills, and new interviewing skills can all help.  Moreover, those are things all within the worker’s control.  When you’re down, the impulse is to DO SOMETHING.  Following that impulse can make one feel better, more in control, and provide a positive outlook that translates to a brightness and warmth during job interviews that will translate well.  This positive outlook can even be transmitted in the way one composes a cover letter and the word choices the worker adopts in resumes.

However, it is discouraging to go through all of those processes and realize over time that the percentage of interviews is not increasing, or the percentage of second interviews is not increasing, and certainly the percentage of offers is not increasing.  Sometimes, it is uncomfortable to confront the reality that, “it isn’t you.”

The New York Times published an article on Sunday, February 3, 2013 (available on-line) supporting this reality with the statistics available from the federal Department of Labor for the post-recession hiring data.  The reality is that the bounce-back after losing a job for a person in their fifties, most definitely, is statistically low.  One woman in her early fifties is quoted as saying, “they see the gray hair…” and it’s over.  The fact is, most employers are savvy enough to not say, “You look kind of old for this position,” but the reality is that older workers are not favored, for a variety of reasons mentioned in the article.

I will mention another reason, and that is that older workers can be, or are perceived to be, less flexible.  While I personally enjoy working with folks my own age, and enjoy the wisdom that years of experience bring, I know that my own attitude has changed dramatically away from “I’ll scrub the toilet if you say it’s part of my job description” to “I don’t think so.”  With added years come a sense of some entitlement.  However, many older workers do not have that attitude, and it is unfair to blanketly assume that they will not be as eager to follow directives, take instruction, or learn new skills.

What are your options?  A good HR consultant will already have assisted you with: (1) confronting that bias head-on, both in your cover letter and in your resume.  Use specific language that highlights learning new technology, new skills, and seeking out new assignments and information.   (2) Highlighting very recent achievements, even classes that you have taken outside the work place, even if it is yoga or karate.  (3) Emphasizing your ability to work with and take direction from all levels of the team, and to get along with a very diverse work place.  While some people think of diversity in terms of racial or religious contexts, you can specifically state that your last work place had a diverse group of all ages (if that is true).

If you still meet with resistance, consider starting your own consulting business.  DO NOT do this without getting some legal assistance up front.  An hour with an attorney to help you understand the differences between true employment and independent consulting is important.  Without this, you cannot possibly know how to accurately and yet competitively price your services.  In addition to meeting with an attorney, understand that the law on this — while fairly uniform under federal statutes — is NOT uniform under state laws.  Simply reading up on the internet has led many a person to make critical mistakes.

Being your own boss is sometimes not easy, but for many workers, failure is not an option.  Retirement at age 66 may still be over ten years away.  Working to generate business, send out invoices, track payments, market and advertise, stay on top of assignments, etc. are all part of the turf that may be very new to somebody that has been “in corporate” for over twenty years.  But those years of experience are valuable.  The company that did not want the older employee may be willing to pay a premium for that expertise, without the potential headache of dealing with the new employee who won’t take direction from the younger manager.  Of course, the consultant almost always bows to the directive of the client — there is no question who holds the reigns of power in that relationship.

Additionally, the issues of benefits, insurance premiums, taxes, and other employment hassles do not exist with the independent consultant relationship.  Instead, there are delicate matters of confidentiality, intellectual property, non-compete agreements, bonuses for hitting targets or deadlines early, and other matters that are a “given” with true employees in some industries that must be negotiated with truly independent contractors.  But sometimes, the only thing to fear IS fear itself.  Take the initiative, and give it a try.  If YOU are willing to invest in you…eventually, others will too.

 

 

 

 

5 TIPS FOR KEEPING LEGAL FEES REASONABLE

1. Arrive on time for every appointment. Stay focused on the purpose of the meeting. Avoid the temptation to argue your case to your own attorney, or to belittle the other side.
2. Organize your documents before providing them to the attorney. Provide ALL of your documents, and do not destroy any or hold them back from your attorney. What you view as harmful to your case, or irrelevant, may actually contain very helpful and useful information. Even if not, it is legally and ethically mandatory to provide all non-privileged documents to the other side promptly upon their request for them (if you are already in litigation).
3. Make a list of all witnesses or “players” in your case that includes their full name, and job title or “role” in the cast of characters. Full contact information, including work phone, cell phone, and home phone along with a physical address and a brief description of what you believe their involvement in your case is or may be. Give that to your attorney as soon as possible.
4. Construct a chronology (time line) of important or significant events in your case. This should be easier once your documents are organized. Start with the earliest event, and do it in a table format. If there is a document that relates to that event, you could make index tabs and place a copy of that document behind the tab for the same event. Give this to your attorney as soon as you can. Example:

1) January 16, 2011. Hired to work on project by Felicia Jones. [Tab 1 – contract dated Jan. 16, 2011].
2) February 3, 2011. Met Vice-President of general contractor. [Tab 2 – email confirming meeting date and place].

5. Finally, do not call or email your attorney daily. If you are not receiving status reports, copies of correspondence, emails, or pleadings, then a call is in order on a weekly or bi-weekly basis. It is cheaper to ask that you be kept informed of events in your case then to call when nothing is happening. Sometimnes, the law requires specific periods be given to the other side. An example is that the other side has 30 days in most cases to respond to your attorney’s written discovery requests. The other side has two weeks or so to respond to a motion for summary judgment. Your attorney will seldom have the right to rush these legally-imposed time frames.

Employment Law Basics – “At Will” Exceptions

Most employers and employees in Washington State are familiar with the phrase that we are an “at will” state.  This means, many believe, that an employer may terminate an employee for any reason, or no reason at all.  However, there are exceptions to the “at will’ doctrine that both employers and employees must be aware of.  They are, very broadly and generally speaking:

1.  Termination or adverse job consequences (such as a reduction in hours, disfavored shifts, or unwanted transfers) arising from discriminatory motives.  What types of discrimination are unlawful? Those that target the employee based upon the employee’s race, ethnicity, religion, sex, pregnancy or family status, age, or disability (or perception as a disabled person).

2.  Termination or adverse job consequences due to the employee’s “whistle-blowing” activity; that is, where the employer knows or believes that the employee has reported unlawful conduct of the company / employer to a government agency charged with oversight.  Not all reports will protect the employee from retaliation for whistle-blowing.  This is an emerging and continually developing area of the law in our state, and additional legislative and litigation activity in this area is anticipated during the next several years.

3.  Termination or adverse job consequences in violation of the company’s own policy manual, contracts, procedures and promises to employees.  This is very fact-specific, and the company may successfully disclaim that the employee policy manual can be relied upon to create any expectation by the employee that particular procedures will be followed.  HOWEVER, employers may then have to explain why it did not follow its policy manual or established procedures with this particular employee (possibly leading back to apparently disciminatory motives).

Saphronia Young, Attorney – PLLC gives legal advice and litigates employment law claims for both employees and employers, depending upon the merits of each individual situation.  Employers seeking to create a solid employee policy manual, seeking to provide training to its work force and management, or seeking to investigate potential claims of discrimination will find knowledgeable and experienced legal assistance.  Employees seeking review of possible employment claims will find honest assessment of the potential merits of each claim, and the relative options available, including litigation.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

Must Certified Mailing of Mechanic’s Lien Notice be actually received?

By:  Saphronia Young – syoung@syounglaw.com

No.  The statutes requiring notice of the claim of lien to be sserved upon the Owner of the property does not specifically require receipt of the notice.  Rather, RCW 60.04.031(1)(a) and RCW 60.04.091 (the attorney fees provision) state that the lien claimant must mail the notices by certified mail.  At least one court has held that the mailing to the last known address satisfies the requirement, whether or not the Owner actually received the notice.  Baker v. Altmayer, 70 Wn.App. 188, 851 P.2d 1257 (1993).  More recent cases have upheld the rule, for other statutory situations, and have cited to the Baker opinion.  While the lien statutes have been amended since 1993, the language concerning the mailing requirement has not been revisited.  In a Labor & Industries case, the court specifically declined to impose an implied “restricted delivery” requirement upon the Department, and cited to Baker with approval.  The certified mailing requirement is reasonably calculated to ensure that lien claimants will make the effort to comply, and that the Department would make reasonable efforts to comply with mailing materials to injured workers.  See, Duskin v. Carlson, 136 Wn.2d 550 (1998) and Washington Cedar & Supply Co. v. State, 137 Wn.App. 592, 154 P.3d 287 (2007) (concerning notice of a safety violation citation).

Our office advises lien claimants to send the Notices to every possible known address, by certified mail.  One may check the tax assessor, the recorder of deeds, and for corporate owners, the Secretary of State’s website to send notice to the registered agent of the corporation.  That site is:  http://www.secstate.wa.gov.  One may also check with the Department of Revenue, athttp://www.dor.wa.gov, for the proper addresses of non-corporate businesses  (sole proprietors, for example).

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

Question: Is exterior painting lienable?

Answer by:  Saphronia Young — syoung@syounglaw.com

Yes, I think so.  Whether or not it is commercial or residential, most paint products are guaranteed to last for a period of years.  I believe that painting is done to protect the structure, and not just for an aesthetic appeal.  Because painting actually protects the structure, I would characterize it as a repair and improvement.  Many types of repairs and improvements must be done repeatedly, but if you look at the installation of certain long-term fixtures, you will find case law analyzing the length of the improvement as relevant.

 

You can contrast it to mowing lawns (not an improvement) which must be done every two weeks, washing windows, janitorial services, and other work that cannot conceivably be considered an improvement.

 

Painting requires special tools and equipment, and the investment in those items can be costly, and in fact is one of the reasons that people choose to hire painters rather than do it themselves.  This is especially true for multi-story homes/buildings, where ladders, scaffolding, etc. are required.

 

Moreover, painters obtain licenses, bonds, insurance.  Per RCW 18.27.010, persons who erect scaffolding as part of their work to “repair [or] improve” realty must be licensed.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

Mechanic’s Lien Basics

By:  Saphronia Young  — syoung@ameryounglaw.com

Much of our construction practice is devoted to litigating mechanic’s liens.  The right to file a mechanic’s lien arises from RCW 60.04, and there are very specific requirements that must be met in order to “perfect” this unique type of security interest.  No matter how long one has practiced in this area of law, most attorneys find themselves reviewing the relevant statutes in each case, because no two cases that I’ve handled have ever been the same.  One may focus on the issue of who has the right to file a lien; the next case may focus on whether the correct parcel was identified.  Generally, here are some basic lien-filing rules: (1) The lien must be filed within 90 days from the last date of work on the site; (2) The lien must be filed against the same parcel upon which the work was performed; (3) The suit foreclosing the lien must be filed in Superior Court, and it must be filed within eight months from the lien filing date; (4) Any party whose interest is sought to be foreclosed against must be joined in the lawsuit.

Liens are often very straightforward, and the issues are clear.  Many times, the parties will engage in very brief discovery, and the matter is resolved well prior to trial.  Lien litigation CAN be complex, however.  Some cases involving multiple parties, with competing claims, and large amounts of money (and even project completion) can hang on the outcome.

Liens can only be amended after the 90-day filing period if the initial lien that was filed was proper.  Thus, a truly defective lien cannot be revived by filing a perfected amendment.  (See, DKS Construction Management Services v. Real Estate Improvement Company, Division II of the Court of Appeals).  However, not every problem renders a lien “defective,” and the amount of the lien is frequently amended to reflect payments, adjustments, credits, or other issues that do not render the original lien defective.

Liens are valuable as payment enforcement mechanisms because they provide for recovery of reasonable attorney fees, in situations where the underlying contract may not.  However, this sword cuts both ways…the landowner that successfully defeats the claim of lien is entitled to recover attorney fees as well.  SEE, RCW 60.04.185.

Another interesting issue with liens involves when notices are required, and what notices must be given.  Not every party is required to provide pre-lien notice, under RCW 60.04 — persons with direct contracts with the general contractor do not have to provide pre-lien notice, nor do persons with direct contracts with the owner.  Additionally, the lack of notice defense is often not available to the construction professionals themselves, but only to the land owner.  Moreover, in some (but not all) cases, an additional notice is required under RCW 18.27 (the contractor’s licensing statute).  Many construction professionals are unaware of this fairly new law, although it is only required within certain dollar parameters, and for certain types of work.

If you have specific legal questions concerning your situation, please don’t hesitate to call either Saphronia Young, or Rita Amer.  Our office telephone is: (253) 833-3004 and we try to keep every Friday open for appointments.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.

Bidding on Public Works Projects in Washington State

BASIC INFORMATION ON THE FORMAL BIDDING PROCESS FOR PUBLIC WORKS IN WASHINGTON STATE – RCW 39.04

by Rita F. Amer ramer@ameryounglaw.com

Public works in Washington State have been and are slated to continue receiving funds from the Federal Stimulus Program. Public works include schools, hospitals, fire stations and many other facilities that you may not think of as public institutions. Because of the influx of funding, contractors who have not previously considered bidding for public works contracts may want to consider it now.

Below is a basic introduction to the mechanics of bidding on public works. This explanation is not comprehensive. There are many issues you must also consider including, the payment of prevailing wages and the use of apprentices. Please consult the applicable statutes and administrative regulations regarding these and other issues relevant to contracting for public works.

What is a Bid Invitation?

Step 1: A governmental entity issues a bid invitation. The invitation must be in writing and include all specifications for the project, including such information as bonding requirements and experience requirement for the subs to be employed on the project. These specifications must be complete and detailed so that all bidders are on notice as to the requirements and can file a responsive bid. The governmental entity must publish the invitation in the county’s official newspaper at least 13 days prior to the date the bids are due. Bid specifications will also be posted at the clerk’s office and on the entity’s website.

The invitation must also state the time and place where bids will be opened. The statute requires that the bids be opened in the presence of the bidders or their agents, should they choose to be present. At the time of the opening, the project will be awarded to the lowest responsible bidder. Bidders can, at that the time of the opening, examine the bids and lodge a protest if a bidder believes the project has not been awarded to the lowest responsible bidder.

Recommendation: Do not miss the chance to be present at the bid opening. The owner or the person who prepared the bid should attend. Realistically, if you have to file a bid protest you must be present at the opening because bid protests must be filed within two working days of the opening. RCW 39.04.105. This means that you are very unlikely to meet the deadline if you are not present at the opening.

What is a responsible bidder?

RCW 39.04.350 lays out the basic criteria for a responsible bidder.

Responsible bidders:

(a) At the time of bid submittal, have a certificate of registration in compliance with chapter 18.27 RCW;

(b) Have a current state unified business identifier number;

(c) If applicable, have industrial insurance coverage for the bidder’s employees working in Washington as required in Title 51 RCW; an employment security department number as required in Title 50 RCW; and a state excise tax registration number as required in Title 82 RCW;

(d) Not be disqualified from bidding on any public works contract under RCW 39.06.010 or 39.12.065(3); and

(e) If bidding on a public works project subject to the apprenticeship utilization requirements in RCW 39.04.320, not have been found out of compliance by the Washington state apprenticeship and training council for working apprentices out of ratio, without appropriate supervision, or outside their approved work processes as outlined in their standards of apprenticeship under chapter 49.04 RCW for the one-year period immediately preceding the date of the bid solicitation.

In addition, entities will look at whether the bidder and its subs have a) the ability to fulfill the requirements set out in the bid invitation; b) a reputation for integrity; c) the required experience, and efficiency of the bidder; d) a reputation for meeting deadlines; e) how well the bidder performed on any previous contracts with the entity; f) bidder’s compliance with laws applicable laws; and g) any other facts that will have an impact on the bidders’ ability to fulfill the contractual requirements.

These are only the basic statutory requirements. Any governmental entity can add requirements, which will be delineated in the bid invitation.

Should I seek to pre-qualify as a responsible bidder?

For projects initiated by the Washington State Department of Transportation, the bidder must “pre-qualify.” If the bidder does not satisfy the pre-qualification requirements, its bid will not be considered.

Even though many entities do not require pre-qualification, it is a good idea for two reasons:

(1)    A contract, unless there is an exception, must be awarded to lowest “responsible” bidder. Pre-qualification establishes you as a responsible bidder even before you submit your bid.

(2)    In the event you are not the awarded the contract and bid protest ensues, you may possibly awarded the contract as the next lowest responsible bidder.

(3)    If your bid is accepted but you are not pre-qualified, the qualification process will delay your ability to accept the bids of your subs and will delay the payment for your work.
If a bidder is determined to be not responsible, the agency must provide a written basis for this determination. The bidder then has an opportunity to appeal the “not responsible” determination by “presenting additional information. The agency must consider the additional information before making a final determination regarding the responsibility of the bidder.  If the agency decides after considering the additional information that a the lowest bidder is not responsible, the entity cannot enter into a contract with any other bidder until two days after the not responsible bidder received notification of the final determination.

Remember that your subs must also meet the responsible bidder criteria.

What else must I know about bidding?

A bid must be responsive to the specifications listed in the bid invitation. The bid must be based on the materials and labor reasonably required to fulfill the contract. ALL FORMS in the bid packet must be filled out entirely and included in the bid.  Bids that do not contain all the required forms are non-responsive. Bids that do not list subs with the required credentials are non-responsive. Bids that are significantly lower than the entity’s estimate of the cost or are significantly lower than the next highest bidder may be considered non-responsive.

What kind of bonding will I need?

Other than the bond required of registered contractors ($12,000 for generals and $6,000 for subs), Bid Bonds and Performance Bonds are usually required.

Bid bonds must be included with the responsive bid. By submitting a bid you have made an offer to the entity. If the entity accepts, you are contractually bound to fulfill the contract. If for some reason you cannot enter into the contract after your bid has been accepted, you are liable for breach of contract. The bid bond, which must be for five percent of the bid amount, acts as a remedy for the entity. The entity keeps the bonds amount and does not sue the defaulting bidder.

Performance Bonds are required, except for projects of $35,000 or less where entity can opt instead to retain 50% of the contract price for up to 30 days after the project is complete.

What if I make a mistake on my bid? Do I have any recourse?

You may be able to rescind or correct a bid when you have made a clerical error. If you have made an error in judgment, such as making an error as to cost of materials or labor, you will probably not be able to rescind your bid without forfeiting the amount of your bid bond.

If you have made rescindable error, alert the entity as soon as possible. You must communicate that you made a mistake before your bid has been relied on. To be eligible to rescind or correct your bid you will have to show that  you acted in good faith, without gross negligence, gave reasonably prompt notice of the error, and that you may suffer substantial damages if you are not permitted to rescind or correct the bid.

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.