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Sheriff's Report

January 24th, 2021 2:41am - Posted By: Mark Cohen

Sheriff's Report - April 26, 2053

Reporting Deputy: Kim Jones

Deputies were dispatched early this morning to a remote location west of Left Hand Reservoir after hikers reported a dead body. 

After grabbing some donuts in Nederland, Deputy Smith and I arrived on scene at 0835 and observed a 1967 Oldsmobile Vista Cruiser station wagon with a "F*&$%ck Trump" bumper sticker on it and expired plates. 

After walking to the west of side of the reservoir, we identified an odor best described as a combination of cheap whiskey, bitterness, and jock itch.  We then observed what appeared to be an elderly, deceased white male beneath some pine trees.  The body was covered with abrasions, puncture wounds, and scratches.  Further investigation revealed the corpse was dead. 

Deputy Smith retrieved the deceased's wallet from his jacket and found an expired driver's license issued to Mark Cohen (DOB 5/21/58).  The license had expired eight years ago. Except for the abrasions, puncture wounds, and scratches, the photo on the driver's license appeared to be a photo of the deceased. 

I searched the deceased's pockets and prepared an inventory: 

            1. Wallet with $8.32 in it and seventeen credit cards, along with some business cards identifying the deceased as the Consul General of the Democratic People's Republic of Korea.

            2. Set of car keys, including a key to the aforementioned Oldsmobile.

            3. Small plastic container of edibles purporting to be a strawberry margarita flavored, fast acting variety, each gummy containing 10 mg of THC and 10 mg of CBD.

            4. 1 battery power hair clippers

            5. Three XXL condoms (ribbed).

Deputy Smith and I then reconnoitered the area to look for signs of foul play.  I then heard Deputy Smith shout, "Holy Mary mother of freaking God in a chicken basket," or words to that effect.  I ran to Deputy Smith's location and observed what appeared to be an adult deceased male bear weighing approximately six hundred pounds. There were six half-eaten edibles beside the bear. The bear's body was covered with abrasions, puncture wounds, and scratches. Further investigation confirmed the bear was dead. 

It appeared Cohen, having consumed an unknown quantity of edibles, had attempted to use the aforementioned hair clippers to carve "F*&$%ck Trump" into the bear's torso, and a fight had ensued.  Deputy Smith phoned the Division of Wildlife regarding the deceased bear.  We loaded Cohen's body into a standard body bag, then returned to Nederland for more donuts. 

Status: Case closed. Nobody was alive to charge with a crime.  The fight was a draw.

           

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Should Businesses Provide Contracts in Other Languages for Customers that Do Not Speak English?

January 8th, 2021 2:42pm - Posted By: Mark Cohen

Businesses sometimes ask whether they should translate their contracts into other languages for customers that don’t speak English.  I appreciate the desire to help customers understand legal documents, but I believe providing contracts in other languages is unwise.

One fundamental principle of contract law is that one who signs a contract is presumed to have read it, understood it, and agreed to its terms. It is well-settled that a mentally competent person who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and must be held to have known and fully comprehended the contract's legal effect. Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 801 (Tex. App. 2013).

While this may seem harsh, any other rule would wreak havoc on the legal system.  Without this rule, litigants would bombard courts with lawsuits seeking to invalidate contractual obligations based on claims that one party did not read or understand the contract.

The courts have applied this rule even when the person seeking to avoid the contract does not speak English. Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406 (S.D.N.Y. 2014); Morales v. Sun Constructors, Inc.,541 F.3d 218, 222 (3d Cir. 2008)(“In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”); Tamez v S.W. Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. 2004); Vera v. N. Star Dodge Sales, Inc., 989 S.W.2d 13, 17–18 (Tex. App. 1998); In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, at *5 (Tex. App. 2004) (“Whether a party is illiterate or incapable of understanding English is not a defense to a contract.”); Fried for Use of Berger Supply Co. v. Feola,129 F.Supp. 699 (W.D.Pa.1954)(Difficulty understanding English does not render contract unenforceable).

If a business chooses to translate its contracts into another language, it assumes a duty to make certain the translation is accurate.  Hialeah Automotive, LLC v. Basulto, 922 So.3d 586 (Fla. App. 2009).  So, in addition to the risk of being sued by a customer claiming breach of contract, that business also assumes the risk of being accused of not providing an accurate translation and losing the benefit of the contractual provisions intended to protect that business.

Another possible problem if a business attempts to provide a foreign language version of a contract is that the meaning in the foreign language document may differ from the meaning in the English document.  The question then becomes which document controls. There could also be litigation and a “battle of experts,” with different experts opining on the meaning of the foreign language term.  See, for example,Ramos v. Westlake Services LLC, 195 Cal.Rprt.3d 34 (Calif. App. 2015).

For these reasons, I believe businesses should not provide translated versions of their contracts to potential customers unless the law requires it.  However, if a business has strong feelings on this issue, rather than translate a contract into another language, I recommend the business include something like this in the contract in English and in the other relevant language:

IF YOU DO NOT SPEAK OR UNDERSTAND ENGLISH, YOU SHOULD HAVE A QUALIFIED EXPERT TRANSLATE THIS AGREEMENT FOR YOU BEFORE YOU SIGN IT.  IT IS YOUR DUTY TO MAKE CERTAIN THE TRANSLATION IS ACCURATE.  IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE TRANSLATION, THIS AGREEMENT WILL GOVERN.    If you have any questions, please contact me at mark@cohenslaw.com

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What to Look For Before Signing a Construction Contract

January 4th, 2021 3:29pm

What to Look for Before Signing a Construction Contract

If you want to read this as a PDF, CLICK HERE

Many construction contracts are horrible.  I have reviewed hundreds of them, drafted dozens of them, and litigated dozens of unnecessary disputes arising out of poorly drafted contracts.  This article explains construction contracts and summarizes what contractors and owners should consider before signing one. 

There are three main types of construction contracts -- (1) fixed price contracts, (2) cost plus contracts, and (3) time and materials contracts.  There are many variations of these, but owners must understand the differences and be sure the written contract -- almost always prepared by the contractor -- reflects what the parties agreed to.  Contractors must be sure they are on the same page as the owner about the type of contract being agreed to, otherwise a dispute is sure to arise after the contractor begins work.

THE THREE TYPES OF CONSTRUCTION CONTRACTS

Fixed Price Contracts 

In a fixed price contract, the contractor agrees to complete the work for a fixed price.  Many owners prefer a fixed price contract because it provides certainty.  Problems arise when the contractor underestimates the labor and material costs the contractor will incur.  Facing a diminishing profit margin, some contractors lose interest in the project or attempt to coerce the owner into paying more prior to completion of the work.

Cost-Plus Contracts

A cost-plus contract requires the owner to pay the contractor for costs incurred in the project, plus a set amount for profit, usually a percentage of the total price.  With these contracts it is important to specify what "costs" include. The most obvious costs are the contractor's payments for labor and materials, but some contractors will also include items such as their time managing the project, so it's important that the contract clearly define what "costs" means.

Time and Materials Contracts

Time and materials contracts reimburse contractors for the cost of materials and establish an hourly or daily labor rate. Many contractors don't like these because of the time involved in tracking costs and time spent on the project.  From the owner's perspective the contractor has no incentive to complete the project early unless the contract provides for a bonus if the contract finishes the job ahead of schedule.

WHY MANY CONSTRUCTION CONTRACTS ARE HORRIBLE

Contractors are not in the business of drafting legal documents, and many don't want to pay a lawyer to draft a contract for them.  Consequently, they frequently present the owner with templates that are not right for the project and/or not favorable for the owner.  Some never present a written contract at all, thus opening the door to expensive litigation about what the agreement was.  Without a written contract, the contractor is at risk because the owner may claim the scope of work what broader than what the contractor asserts it was.

Contractors that present the owner with a written contract usually obtain them from one of three sources - (1) the American Institute of Architects (AIA), (2) the Associated General Contractors of America (AGC), and (3) templates they found on the Internet or copied from another non-attorney contractor.

AIA Documents

There are three problems with the AIA documents.  The first is that contractors often use them when there is no architect involved or when the architect's role is far less significant than the role the AIA document describes.  The second is that even when the AIA documents accurately describe the architect's role, they are drafted to benefit the architect. The third is they are written by lawyers, making them difficult for laypeople to understand, and they frequently refer back and forth to other AIA documents, some of which the contractor may not have provided to the owner because the contractor is not familiar with the proper use of AIA documents.

AGC Documents

The AGC documents suffer from many of the same defects the AIA documents suffer from.  Not surprisingly, the AGC drafts its documents to favor the contractor.

Templates Found on the Internet

Templates found on the Internet or copied from another non-attorney contractor are dangerous.  The contractor often has no idea what they mean, but doesn’t think it matters and takes comfort in the money saved by not paying a lawyer.  Many of these documents are missing necessary protections for both the owner and the contractor.  For instance, I have had to tell contractors there was no point in filing suit to collect sums owed because the contract did not contain a provision requiring the owner to pay the contractor's attorney's fees if the contractor was forced to file suit to collect sums owed.

WHAT TO LOOK FOR BEFORE SIGNING A CONSTRUCTION CONTRACT

            1. What type of contract is it? 

It's vital to be certain the written document accurately reflects the type of transaction agreed to. I have seen contracted labeled "Fixed Price" contracts that contain language allowing the contractor to charge on a cost plus or time and materials basis.  In one case I filed suit against a contractor claiming fraud and violation of consumer protection laws because the contractor had labeled the document a "Fixed Price" contract but inserted time and materials provisions into the body of the contract.

            2. Does the contract define the scope of work? 

Disputes often arise when the contract is unclear about the scope of work.  With a fixed price contract, it's vital to know what work is included in that fixed price.  Even with cost plus or time and materials contracts, the owner wants an accurate statement of what work will be done and an accurate estimate of the cost.  One way contractors get more money is by charging the owner for work they believe was not within the scope of the original contract, so it’s vital to be clear about the scope of work. 

            3. What does the contract say about cost overruns? 

Some contractors attempt to limit their risk of a fixed price contract by including a provision allowing them to charge a higher price if there are cost overruns.  In such cases, it is vital that the contract include a line-item budget showing the time and material costs projected for each item. An owner that agrees to a clause that allows an increased price due to cost overruns should insist on some limitation, such as provision that in no event shall the fixed price increase by more than five or ten percent of the agreed price. 

Contractors should take the time at the outset to prepare accurate cost projections.  I have filed suits against contractors alleging they fraudulently or negligently induced the owner to enter the contract by underestimating the costs in their estimates.

           4. Invoicing and Payment. 

The contract should be clear about invoicing and payment.  Many contracts require the owner to make progress payments during the project, but the contract is often vague.  For instance, a contract might require a progress payment when the contractor has completed twenty percent of the work, but the contract leaves it to the contractor's discretion determine when twenty percent of the work has been completed.  Problems arise when the contractor is asking for payment of fifty percent of the fixed price or fifty percent of the estimated cost, but it appears the contractor has only done thirty percent of the work.  A good contract contains clear milestones for payment.

            5. Record Keeping. 

Many contractors are notoriously bad about keeping records of their costs and time.  The contract should require the contractor to keep accurate records and provide all receipts and time records with each invoice.  Contractors that fail to do this put themselves at risk if disputes arise during the project.

            6. Change Orders. 

Owners frequently want to add to or change the scope of work during the project, and the contractor understandably wants to get paid if these changes or additions increase the contractor's costs.  Disputes arise when the contractor claims the owner asked for additional work or changed the scope of the work and the owner denies it.  For this reason, it is critical that the contract state that the owner is not liable for any changes in the scope of the work unless the owner approves it in a written change order.

Disputes sometimes arise when the parties don't follow the contract's change order process.  For instance, the contractor might send the owner an email stating the contractor is going to use more expensive roof tiles than what was budgeted.  If the owner does not respond, the contractor may construe that as an acceptance of the plan for more expensive tiles.  Following the change order process protects both the owner and the contractor.

            7. Warranties. 

Does the contract contain any warranties as to the quality of work and materials?  Are the warranties clearly defined?  Some contracts attempt to disclaim all warranties.

            8. Limitations on Damages. 

Most contracts contain a clause that prevents the owner from collecting consequential, incidental, or special damages resulting from the contractor's breach.  (For my purposes, those terms are synonymous).  Not understanding what this means, the owners usually agree.  This can be regrettable, particularly in commercial projects.  For instance, suppose the contractor's unjustified delays prevent a business from opening for three months and the owner loses three months of anticipated profits.  A limitation on consequential damages might preclude the owner from seeking to collect those damages.

           9. Owners Should Avoid Arbitration Clauses.

Even though the Constitution establishes a court system, business is convinced that unethical lawyers are crouching behind each corner, eager to file frivolous lawsuits.  Thus, they include mandatory arbitration clauses in the contracts.  An arbitration clause requires the parties to surrender their right to go to court if one party breaches the contract and instead requires them to submit the dispute to an arbitrator.  Discovery in arbitration is limited and there is no appeal from an arbitrator's ruling -- even if the arbitrator gets the facts wrong or misapplies the law.  Moreover, many arbitrators are former contractors or lawyers that represent contractors.  If the contractor insists on an arbitration clause, insist on these provisions:

            a. A provision that the arbitrator must be former state court or federal judge.  This is particularly important if the issue involves interpretation of a legal document or application of contract law principles. Better yet, agree on the arbitrator in advance and identify the arbitrator in the contract.

            b. A provision that in any arbitration the parties will be allowed to conduct discovery consistent with the rules of civil procedure in your state.

            c. A provision that requires the arbitrator to award attorney's fees to the prevailing party.

            10. Attorney's Fees.

In America, the rule is that in any lawsuit or arbitration each party pays their own legal fees unless the contract contains a "loser pays" provision.  Some contracts contain a provision requiring the owner to pay the contractor's legal fees if the contractor wins, but don't contain a provision requiring the contractor to pay the owner's legal fees if the owner wins.  Some contracts are silent on the issue, meaning a party must pay its own legal fees even if it wins.  Without a "loser pays" provision, a party that has been victimized by the other party's breach may have no viable remedy because even if that party prevails in a lawsuit, that party will end up paying that party's lawyer more than the amount recovered.

            11. Be Careful of LLC's.

Many small contractors operate as limited liability companies, making it difficult to sue the owner personally.  A judgment against an LLC is often worthless since the LLC frequently has few assets.  Few contractors will be willing to sign a personal guaranty of the LLC's performance, but one way to address this is to be sure the contract includes all representations the contractor is making to induce the owner to enter the contract.  This allows the owner to sue the person signing for the contractor personally for any misrepresentations in the contract.

Similarly, a contractor doing a project for an LLC should insist that the owner of the LLC personally guaranty the LLC's obligations under the contract.

            12. Insurance.

The contract should specify that the contractor must maintain errors and omissions insurance in a specified amount sufficient to protect the owner, general liability insurance in a specified amount sufficient to protect the owner, worker's compensation insurance as required by state law, and automobile liability insurance as required by state law.  It should require the contractor to promptly notify the owner in writing if any coverage lapses. 

            13. Lien Waivers.

Contractors frequently invoice the owner for sums paid to subcontractors or material suppliers.  Unfortunately, it sometimes happens that the contractor has not yet paid those subcontractors or suppliers, instead keeping the money.  The result may be that the unpaid subcontractor or supplier puts a mechanic's lien on the owner's property after the owner has paid the contractor for sums allegedly already paid to the subcontractor or supplier.  The contract should require the contractor to provide the owner with lien waivers from all subcontractors and suppliers before the owner pays the contractor for any claimed payments to subcontractors or suppliers. 

            14. Time of Completion / Damages for Delay.

Be sure the contract contains a deadline for completion and a provision for a penalty if the contractor fails to complete the project on time without justification.

            15. Permits.

Be sure the contract is clear about who will obtain and pay for the required permits.

            16. Future Agreements.

Be wary of contracts containing provisions stating that the owner and contractor will agree on certain items later.  This is an invitation to litigation if the parties are unable to agree.

            17. Modification.

Every contract should contain a provision stating it may not be modified, except in a document signed by both parties.  Contractors frequently encounter trouble because the owner claims there was an oral modification to the contract after it was signed.

            18. Indemnification.

Indemnification is the right of a party that is legally liable for a loss (the indemnitee) to shift that liability to another party (the indemnitor).  The goal is usually to shift responsibility for any damages that occur from the party that is sued to the party that caused the harm.  For instance, a contract might contain a provision stating that if a supplier sues the contractor to collect sums owed, the owner must indemnify the contractor.  There is nothing wrong with that, but owners should make sure the duty to indemnify runs both ways.  For instance, if a visitor sues the owner for an injury resulting from the contractor's negligence, the contract should require the contractor to indemnify the owner.

Indemnity provisions are complex and they must be consistent with other contract provisions, such as those that purport to limit liability or damages.

            19. Termination.

Many contracts contain specific provisions that govern when a party may terminate a contract.  Unhappy owners sometimes get into trouble by terminating the contract in a way that is not consistent with the contract's requirements.

If there is a dispute about the quality of the contractor's work, the owner must understand that Colorado has a statute - the Construction Defect Action Reform Act (CDARA) - that requires the owner to provide a notice of defects to the contractor and to give the contractor an opportunity to cure the defects.  Failure to follow the required process can be harmful to any legal claims the owner may want to assert.

 

 

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Identifying and Dealing with Opposing Counsel that are LFOP

January 2nd, 2021 5:26pm - Posted By: Mark Cohen

IDENTIFYING AND DEALING WITH OPPOSING COUNSEL THAT ARE LFOP

If you prefer to read this in a PDF format, CLICK HERE.

The law -- at least the litigation side of it -- is an adversarial profession.  Disagreement comes with the territory.  Still, I like most opposing counsel I work with.  A few, though, are full of poop.  If you are dealing with a lawyer full of poop (LFOP), it's nice to know it from the start.  This screed summarizes some indicators that opposing counsel may be an LFOP and suggests ways to deal with them. 

1. The first communication from opposing counsel is a request for a lengthy extension of time to answer.

Yes, there are times when a client receives a summons and delays hiring counsel until the last minute.  In such cases, opposing counsel may legitimately request an extension of time to answer.  But those cases are rare, and that is unlikely to be the case if the defendant is an entity with in-house counsel or a standing relationship with a firm.  Such a request may be, but is not necessarily, a sign that opposing counsel's strategy will be to delay, delay, delay.

I will always agree to a request for a seven- or ten-day extension because I may want opposing counsel to return the favor later and because I know the judge will grant the extension over my objection anyhow, but when opposing counsel requests a thirty-day extension, that may be you first indicator that opposing counsel is a LFOP.

            Cohen's first law of LFOP:

The longer the requested extension, the more likely it is that when opposing counsel finally files a response it will be a baseless motion to dismiss rather than an answer to the complaint.  Probably a motion alleging your thirty-page complaint, complete with ten attachments, doesn't contain sufficient factual allegations to meet the Twombly/Iqbal plausibility standard.

2. Opposing counsel's answer lists inapplicable boilerplate affirmative defenses.

Many lawyers, particularly those in insurance defense firms, include a boilerplate list of affirmative defenses in every answer they file.  I have even seen lawyers list contributory negligence as a defense in a breach of contract case.  Including a defense where there is no factual basis for it clearly violates Rule 11. Gargin v. Morrell, 133 F.R.D. 504 (E.D. Mich. 1991).  But it is common, and most judges allow lawyers to get away with it "because everyone does it" or "that is how it has always been done."  Some state court judges did the same thing before being elevated to the bench, so filing a motion for sanctions may be a waste of time. 

There is now a split of authority on whether Twombly/Iqbal standard applies to affirmative defenses, but at least one federal circuit has held that it does. GEOMC Co., Ltd. v. Calmare  Therpeutics Incorporated, 918 F.3d 92 (2nd Cir. 2019).  Even if it does not apply, an affirmative defense must be stated to give notice to a claimant, who can then use the discovery process to investigate more fully the factual basis supporting the defense.  United States Welding, Inc. v. Tecsys, Inc., No. 14-cv-00778-REB-MEH, 2015 WL 3542702, at *2 (D. Colo. June 4, 2015).  Thus, a motion to strike may be appropriate, but it may not get you far because the judge may rule that you can use the discovery process to ascertain the basis for the defenses.

A better approach, I think, is to file a reply to affirmative defenses under Rule 7 to highlight the lack of specificity and show that opposing counsel put little thought into their answer.  Put differently, it's a way to show that court that opposing counsel is a LFOP.

In jurisdictions that require the parties to submit a proposed case management order, another approach is to include something like this in the proposed CMO:

"Defendant has listed an affirmative defense of failure to join an indispensable party without specifying the identity of the allegedly indispensable party.  Plaintiff asks the Court to order Defendant to specify the allegedly indispensable party within seven days."

3. Opposing counsel engages in extensive written discovery when most facts are undisputed and known to both parties. 

I believe written discovery is largely worthless.  Almost every request is met with a long list of boilerplate objections followed by equivocal weasel language written by opposing counsel.  Yes, some lawyers are legitimately concerned that if they don't engage in massive written discovery their client may later accuse them of malpractice, but in many cases they are just running up their bill and trying to impress their client with the massive volume of electronic paper they can generate. 

 In most cases both parties know the facts and many facts are undisputed.  Mandatory disclosure of documents required by Rule 26 should ensure that counsel for both parties have nearly all of the relevant documents.   I rarely engage in written discovery. The boilerplate objections and evasive responses almost always invite a motion to compel, but most state court judges don't want to be bothered with such disputes and you run the risk of being held responsible for the other party's attorney's fees if the judge gets it wrong. 

I much prefer depositions where I can ask the witness follow up questions and opposing counsel must be silent, except to make objections. 

4. Opposing counsel repeatedly makes speaking objections while defending a deposition.

F.R.C.P. 30(c)(2) (and its Colorado counterpart) provides:

An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

I always bring a copy of that rule to any deposition and have, at times, handed a copy to opposing counsel on the record and made it a deposition exhibit.

The best solution to this behavior is, after opposing counsel is done, to look at the witness and say, "Now that your lawyer has completed their objection, let me repeat the question…"

5. Opposing counsel objects to pattern interrogatories approved by your state's supreme court as "irrelevant, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence."

I've seen it happen, and I've seen judges let opposing counsel get away with it.

6. Opposing counsel produces thousands of pages of documents in response to a Request for Production without any index and responds to the request with, "See documents produced herewith."

This is poop at its finest.  See, e.g., Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009), in which the court held that in responding to interrogatories by producing documents the party "must specify the documents from which the responses to the interrogatories can be derived in sufficient detail to enable the interrogating party to locate the documents as readily as the responding party could."  The court wrote, "It is not sufficient for a responding party to simply direct the interrogating party to a mass of business records.  The court noted that "when voluminous documents are produced under Rule 33(d), they must be accompanied by indices to guide the interrogating party to the responsive documents. Citing, O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 278 (C.D.Cal.1999).  The court held that the same rule applies to requests for production of documents. The court found that the defendant's production of more than 7,000 pages of documents was insufficient because they "were not accompanied by any indices or other tool to guide plaintiffs to the responsive documents" and wrote that "the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant's duty to sufficiently identify the location of the relevant documents."

7. Opposing counsel objects that discovery requests are "premature."

This is usually poop.  The rules require discovery responses within a specified period and specifically require litigants to supplement their responses when new information becomes available. 

Generally, a discovery request is premature only if served prior to the time allowed by the applicable rule.  Taylor v. Great Lakes Waste Servs., Not Reported in F.Supp.2d, 2007 WL 422036 (E.D. Mich. 2007).  An objection that a request is premature may also be appropriate when the request seeks to force a litigant to provide information prior to the deadline to do so.  For example, a request that asks for information about your expert's opinion prior to the deadline for your expert's report. McKellips v. Kumho  Tire Co., Inc., 305 F.R.D. 655 (D. Kan. 2015).

But in most cases the claim that a discovery request is premature is poop.

8. Opposing counsel objects to a request for production because the parties are already under a duty to disclose all relevant documents.

I know, it sounds like the dumbest objection ever made, but I have seen it.  Obviously, there would be no rule allowing requests for production if this argument had any validity.  Courts have universally rejected it. A litigant is "entitled to individualized, complete responses to each of the requests, as numbered and identified in the requests, accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced."  See, e.g., Louen v. Twedt, 236 F.R.D. 502 (E.D. Calif. 2006).  This objection is pure poop.

9. Opposing counsel claims no duty to produce documents because you already have them.

Courts have universally rejected this argument as well. See, e.g., Walt Disney Co. v. DeFabiis, 168 F.R.D. 281 (C.D. Cal. 1996)(Defendant's responses were insufficient and Defendant was "required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents."); Beydoun Foods, Inc. v. 7-Eleven, Inc., Not Reported in F.Supp.2d2013 WL 5515348 (E.D. Mich. 2013)(Court rejected argument that Defendant had no duty to produce documents it believed Plaintiff already possessed, and imposed sanctions); Beach Mart, Inc. v. L&L Wings, Inc., 302 F.R.D. 396 (E.D.N.C. 2014)("The rule is not that a requesting party in a case must go out and find responsive documents. Rather, the rule is that even where a requesting party already has documents in its possession, or could otherwise access those documents, the disclosing party may not withhold those documents…).

This objection is poop for another reason.  Opposing counsel has no way of knowing what documents you possess.  If opposing counsel has supernature powers and has used them ascertain what documents you possess, opposing counsel should at least provide an affidavit establishing the foundation for their supernatural powers and how they were used to ascertain what documents you possess.  See, C.R.C.P. 43(e).  

10. Opposing counsel repeatedly accuses you of unethical or unprofessional conduct.

Goebbels wrote, "Accuse the other side of that which you are guilty." 

11. Opposing counsel rarely responds to emails.

Some lawyers prefer phone calls to emails, and phone calls can be productive.  Some judges even require phone calls where the law imposes a duty to confer regarding a motion.  But a repeated refusal to put anything in writing despite requests for specific authority to justify a stated position often indicates opposing counsel knows there is no support for his/her position on an issue. 

12. Opposing counsel repeatedly claims to have not received emails.

It is certainly possible that an email you send to opposing counsel ends up in his/her spam or junk folder.  But such problems quickly come to light and are easily remedied.  When opposing counsel repeatedly claims to have not received emails, even though you have not received any automated "undeliverable" messages, your poop threat level should move from yellow to orange.  In some cases you may want to provide opposing counsel with an alternate email address if you have one and/or send emails that request a read response.

13. Opposing counsel never provides legal authority for any position.

Some lawyers take bold positions on issues, but never provide any authority to support those positions other than "Because our firm says so."  I always email opposing counsel an invitation to provide legal authority for their position so I can understand it.  If opposing counsel does not respond, I start to think I am dealing with a LFOP.

 14. Opposing counsel repeatedly takes snippets from emails and depositions, and incorporates them in motions and responses, out of context to give the court a false impression.

This may not always be an ethical violation, but courts find it irritating.  Robinson v. Gerritson, Not Reported in F.Supp.2d, 2002 WL 1052042 (N.D. Ill. 2002).  See also, Minch Family LLLP v. Buffalo-Red River Watershed District, Not Reported in Fed. Supp., 2009 WL 10700939 (D. Minn. 2009)(Court denied motion to amend supported only by "Affidavit which purports to interweave a rag-tag collection of snippetsfrom depositions, agency meetings, notations, jottings at Hearings or from witness interviews, and the like, so as to infuse that unlikely pot-pourri with foundation."

The remedy for this is simple.  Include the full email or other relevant portions of the deposition transcript in your response and paint opposing counsel as a lawyer that is intentionally misleading the court. 

Although conventional wisdom holds that a lawyer defending a deposition should ask few, if any, questions at a deposition, I make it a point to listen for witness answers that may be taken out of context and used against my client later, and I often ask the witness questions when it is my turn so I can use the witness' answers to my questions when the deposing attorney submits a snippet out of context.

I don't hesitate to ask leading questions either.  It's not my deposition, so I am cross-examining the witness and thus entitled to lead.  There is no requirement in F.R.E. 611 that dictates a party cross-examining a friendly witness is precluded from using leading questions. Giter v. U.S., Not Reported in F.Supp.2d2009 WL 4730551 (M.D. Fla. 2009).  It is well recognized that the Court may allow counsel to propound leading questions to his or her own witnesswhen such witness has been called as an adverse witness by opposing counsel. Stahl v. Sun Microsystems, Inc., 775 F.Supp 1397 (D. Colo. 1991).  See also, Alpha Display Paging, Inc. v Motorola Communications and Electronics, Inc., 867 F.2d 1168 (8th Cir. 1989)(District court did not abuse its discretion in allowing Motorola to use leading questions during the cross-examination of friendly witness); Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978)(Not error for the trial court to permit the defense to use leading questions when cross-examining its own employees, who had been called by plaintiff on direct examination as part of her case-in-chief)

15. Opposing counsel repeatedly blames his/her staff.

Everyone makes mistakes.  Responsible lawyers own them.  If opposing counsel repeatedly blames his/her staff for missed deadlines, failure to return calls, undisclosed documents, etc., that's a poop indicator.

16. Opposing counsel sends you an email (or leaves you a VM) asking your position on an anticipated motion to satisfy his/her duty to confer, then files the motion ten minutes later informing the court that you did not respond to his/her request to confer.

When you receive such an email or voice message, if you don't have time to respond immediately, promptly reply (by email) that you will respond within 48 hours so you have a record of it you can attach to your response to the motion. 

Acknowledgment

I would like thank several firms for providing the inspiration for this article..           ...

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The Impact of Covid-19 on Commercial Contracts

May 17th, 2020 2:49pm - Posted By: Mark Cohen

The COVID-19 pandemic has caused many businesses to seek legal guidance concerning whether the crisis relieves them of their duty to perform contractual obligations.  Much of ensuing discussion has focused on force majeure clauses, but it is important to also consider the common law defenses of impossibility and frustration of purpose.

Force Majeure Clauses

A force majeure clause is a contract provision that excuses a party’s performance of its contractual obligations when circumstances beyond their control make performance commercially impracticable, illegal, or impossible. 

In general, a force majeure event must be an unforeseen event beyond the control of the parties, but the language of the contract may alter this. See, e.g., Perlman v. Pioneer Ltd. Partnership, 918 F.2d 1244 (5th. Cir. 1990). 

Changes in costs, market conditions, or taxes are generally not considered force majeure events.  See, e.g., Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445 (Mich. Ct. App. 2015) (China‘s imposition of tariffs was not a Force Majeure event); Langham–Hill Petroleum, Inc. v. S. Fuels Co.,813 F.2d 1327 (4th Cir.1987)(rejecting claim for relief under force majeure where the government of Saudi Arabia acted to cause a collapse in world oil prices, making a contract unprofitable for one party); N. Ind. Pub. Serv. Co. v. Carbon County Coal Co.,799 F.2d 265 (7th Cir.1986)(holding that a government order denying a request from a utility to pass increased coal prices along to its customers did not excuse utility from a long-term contract to buy coal even though contract was unprofitable).

Not all force majeure clauses are the same.  Therefore, it is important to read the applicable clause with some specific questions in mind.

Is COVID-19 a Force Majeure Event?

Some force majeure clauses are broad and might refer to "any Act of God or other circumstance beyond the parties' control."  Others may list specific examples such as, “fires, floods, earthquakes, tsunamis, wars, terrorist attacks, strikes, civil unrest…"  Because each clause is unique, it's important to read the applicable clause carefully to determine whether the language clearly applies to the COVID-19 crisis. 

Does the Force Majeure Clause Excuse Performance or Merely Suspend It?

Some force majeure clauses excuse performance entirely while others merely suspend the requirement for performance until the unforeseen event no longer prevents performance.  Some force majeure clauses may carve out exceptions for duties such as the obligation to make payment, so it is important to look for any such exceptions.

Does the Force Majeure Clause Impose a Duty to Try to Respond to the Force Majeure Event?

A force majeure clause may impose on the parties a duty to try to take actions to mitigate or overcome the effect of the force majeure event.  It is important to determine whether such a duty exists and what steps, if any, a party might take to satisfy that duty.

Does the Force Majeure Clause Require That You Give Notice?

Many force majeure clauses require that a party desiring to excuse performance under the clause give written notice to the other party.  It's important to determine whether the clause requires notice and to provide any required notice in a timely manner and in the manner the contract requires. Any notice should track the language of the force majeure clause and include reference to any relevant specific events such as a government "Shelter at Home" order.  Any notice should also invoke the doctrines of commercial impracticability and/or frustration of purpose, if applicable.

Do Other Doctrines Apply?

Even if the COVID-19 crisis might not fall within the scope of a particular force majeure clause, two other common law contract defenses may apply. Those are commercial impracticability and frustration of purpose.

Commercial Impracticability or Impossibility

The common law contract defense of impossibility of performance is now often called commercial impracticability.  The Restatement (2d) of Contracts § 261 provides:

Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

Commercial impracticability is an affirmative defense.

Frustration of Purpose

 A party need not fulfill its obligations under a contract if an unforeseen event makes it impossible to achieve the purpose of the contract.  For example, if the purpose of an organization's contract with a hotel is secure space for a convention, and a travel ban prevents the attendees from attending the event, the doctrine of frustration of purpose may apply.  Frustration of purpose is also an affirmative defense.  Keep in mind that courts will seldom accept the argument that the "purpose" of a contract was for one party to make a profit. 

 

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The Proper Use of Animal References in Law

May 17th, 2020 2:42pm - Posted By: Mark Cohen

The Proper Use of Animal References in Law

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The Common Law of the Gym

May 17th, 2020 2:41pm - Posted By: Mark Cohen

The Common Law of the Gym

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When to Use the Passive Voice

May 17th, 2020 2:38pm - Posted By: Mark Cohen

When to Use the Passive Voice

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Indemnification Provisions in Commercial Contracts

May 17th, 2020 2:36pm - Posted By: Mark Cohen

Indemnification Provisions in Commercial Contracts

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The Free Market and Leeches

April 25th, 2020 2:34am

The pure "free market" is an economic system based on supply and demand with no government regulation.  The "free market hypothesis" is the assertion that the free market always produces the optimal allocation of resources.

Conservatives love the free market like a fat kid loves cake. The appeal is understandable.  Our world is complex.  We long for simplicity.  Life would be grand if we could eliminate government (and taxes), confident that the free market would create the best allocation of resources.    

People often trace the free market hypothesis to Adam Smith's 1776 book, The Wealth of Nations.  In that book (and in an earlier work), Smith used the metaphor of an "invisible hand" to describe the unintended social benefits that manifest when each person acts in their own best interests.

Let's travel back to 1776.  Imagine you live in a county with a population of five thousand.  Five hundred of them grow corn.  Corn costs seventy-five cents per bushel.  If Farmer A raises his price to eighty cents per bushel, the word will spready quickly and nobody will buy from him because there are 499 other farmers selling corn for seventy-five cents per bushel.  People stop buying from Farmer A and the "invisible hand" forces him to lower his price back to seventy-five cents per bushel. 

This was a good theory in 1776.  You know what else was a good theory in 1776?  Using leeches to treat disease.

What free market cultists fail to understand, or willfully ignore, is that we don't live in 1776.  The conditions that existed in agrarian America in 1776 do not exist today.  If he were alive, Adam Smith would tell you that the "invisible hand" only works if certain conditions exist -- if you make certain assumptions -- and that most of the necessary conditions that existed in 1776 don't exist today.  Let's look at some.

Assumption 1 - Goods and Services are Homogenous.  Corn is corn.  It's all the same, and it doesn't matter who you buy it from.  That's not true today for most goods and services.  Take operating systems for personal computers.  Windows is not the same as Apple.  Or televisions.  They come in different sizes, with different features, from manufacturers with different reputations.

Assumption 2 - No Single Seller or Buyer Has Enough Market Share to Influence the Price or Supply of a Good or Service.  We assumed five hundred farmers selling corn in one county back in 1776.  Back in 1776, Farmer A could not keep his price at eighty cents per bushel because people had other options. Fast forward to 2020.  Do you want a smartphone?  Your choices are an i-phone or an Android.  There are not five hundred cell phone manufacturers competing for your business.

Assumption 3 - Everyone has Equal Access to Relevant Information.  In our 1776 hypothetical, everyone knew who the corn farmers were, how many corn farmers there were, what they were charging for a bushel of corn, and what it cost to grow corn.  And all the corn farmers knew how many people lived in that county, how much corn they bought on average each month, and how much money their buyers earned.  Do you have equal access to the information Apple has regarding its i-phone?  Do you know how much it costs Apple to manufacture an i-phone, how long it is designed to last, or what other products Apple plans to introduce in the future? No.  You're at a disadvantage because Apple knows far more than you about its products and the market.

Assumption 4 - Barriers to Entry are Low.  In 1776, if you wanted to grow corn, you bought some seed and, if you did not own land, you bought or leased some land.  Anyone could grow corn if they wanted to.  This made it difficult for any single farmer to gain a monopoly or large market share. Fast forward to 2020. What would it take for you to start a company that manufactures smartphones to compete with Apple and Samsung?  How much money would you need to create a business to compete with Walmart?

The assumptions underlying free market theory began losing validity in the mid-1800's when the railroads came to power, and the trend continued with the rise of oil companies in the late 1800's.  Back on those days, Republicans were not cult members.  They understood the assumptions underlying free market theory.  They realized what was happening and passed antitrust laws intended to prevent any single business from gaining a market share large enough to reduce competition.  Congress passed the first antitrust law, the Sherman Act, in 1890 as a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade."  Explaining the law, Senator John Sherman declared, "If we would not submit to an emperor, we should not submit to an autocrat of trade..." 

But antitrust laws are only as good as the prosecutors and judges who enforce them.  This is why it matters who the Attorney General is.  This is why it matters who serves as a federal judge.  To circumvent these laws, big business invests heavily in political campaigns to get the appointed officials and judges they want.  Nobody should be surprised that the five Republican Supreme Court justices who ruled corporations are people in Citizens United (Kennedy, Roberts, Alito, Thomas, and Scalia) ruled as they did; corporate contributions to political campaigns got them there for that very purpose.

The Wealth of Nations never advocated no regulation or elimination of government; it attempted to articulate when regulation is beneficial.  If you are still preaching the free market gospel, I have one question for you - are you still using leeches to cure disease?

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I Will Not Let the Libtards Make the NFL Use the Metric System

March 30th, 2020 8:40pm - Posted By: Donald J. Trump

My fellow Americans:  You are well aware of the many forces trying to destroy America and the heroic efforts I make daily to foil their pathetic efforts.  Whether it is Muslims trying to force us to adopt Arabic numerals, immigrants wanting to take high-paying tomato picking jobs from real Americans, or journalists trying to revive that outdated separation of powers model, I have fought their efforts with every fiber in my body (which, by the way, is the most fit body ever inhabited by an American President.  Believe me). 

But the liberals will stop at nothing to destroy this great nation that our straight, white, Christian, Republican, free-market, golfing forefathers built.  Now, as part of their campaign to kill America with socialism, healthcare for all, a  clean environment, and competent appointees, the liberals, led by Nancy Pelosi and Chuck Schumer (both from liberal coastal elite states), are pushing legislation to require the National Football League to ditch the American system of measurement and replace it with the metric system. 

I mean, it's bad enough that they want little Johnny to use same bathroom as little Suzy.  It's bad enough that they want to disarm our police officers.  It's bad enough that they want to disband our armed forces and send our brave troops across the land to plant marijuana on their way home. It's bad enough that they want your kids to learn science so they can use carbon dating to prove the Earth is more than six thousand years old and Jesus could not possibly have talked with dinosaurs.  But have they no shame?

Can you imagine an America in which tens of millions of viewer are forced to listen to Al Michaels say, "It's fourth and half a meter for the Packers.  What do you think, Chris?"  And this would be wholly unfair to men like Drew Brees, whose record would drop from 77,416 career passing yards down to 70,798.34 career passing meters. 

My friends, there is no coronavirus.  That's fake news.  The Taliban are the good guys.  We have so much money in the bank for Social Security you wouldn't believe it if I showed it to you.  When you retire, you will all be drinkin' that free Bubble-Up and eatin' that rainbow stew.  Don't believe the liberal media.  The real problem facing America right now is that liberals like Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib want to force the NFL to adopt the measuring system their countries use. 

As your President, I will never let the liberals force the NFL to switch units of measurement.  CBS, NBC, ABC, PBS, and CNN can defame me all they want, and they can fail to report my many achievements, but this will not deter me -- still your President -- Donald J. Trump, from protecting the game of football.

God bless you all, and God bless America!

Donald J. Trump

           

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When to Use Passive Voice

May 31st, 2019 8:05pm

Click Here to read: WHEN TO USE PASSIVE VOICE

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Self Help Books Are Making You Worse

May 2nd, 2019 2:59pm

I recently visited a bookstore to buy myself a birthday present. When I came through the door, I immediately encountered a large table with dozens of self-help books on it. The store's management had strategically placed the table in a location that would force customers to walk around it.

My first thought was that there sure are a lot of folks writing self-help books. My second thought was there must be a whole lot of folks seeking some kind of help.  

Not the least bit interested in self-help books, I meandered through the mystery, philosophy, and current events sections. But I kept thinking about all those self-help books. All those self-help authors. And all those people wanting some kind of help. 

I understand people want more happiness, more fulfillment, more whatever. I get that. But I wondered why so many are searching for something more these days. I have some thoughts on it, but I'll save those for another day. Maybe another column.

I returned to the self-help display and glanced at the titles. I even picked up a few books and skimmed random pages. Some were well-known classics and others had catchy titles without much substance. What I saw in those few moments confirmed two things I already knew. First, not all mental health professionals write well. In fact, many write poorly. Second, not all self-help authors have anything original to say. 

As I thought about it all, I realized most people buying self-help books do so based on several unstated assumptions. First, they assume they can or should be happier, more fulfilled, or better in some way. Second, they assume the author has knowledge that will help them get there. And third, even if the first two assumptions are true, they assume reading the book will lead them to greater happiness, fulfillment, or to whatever improvement they seek. That third assumption bothers me. 

Reading a book, by itself, can't make you happier or more fulfilled. It would be nice if you could buy a book, spent a few hours reading it, and have a better life, but that's not how it works. What usually happens is you buy the book, you read it, and you feel a bit better for perhaps a day, and then you forget what you learned and revert to your familiar thought and behavior patterns. So eventually, when you feel you want more happiness or fulfillment, you buy another self-help book and the same thing happens. After a while you own dozens of self-help books, but you're not happier or more fulfilled.

Don't get me wrong, there are some great self-help books. Two I particularly like are The Road Less Travelled by M. Scott Peck and The Way of the Peaceful Warrior by Dan Millman.  But, assuming the book contains some useful idea or knowledge, reading the book is just the first step. You have to take that idea or knowledge, consider it in the context of your own life, and apply it in your life.  Every day. For the rest of your life. This is what mental health professionals refer to as "doing the work."

Self-help books hurt you by leading you to believe that just reading a book can improve your life. They suck up your money and time, and leave you frustrated because you did not realize reading the book was just the first step on a long journey.

I could buy a book on how to throw a football, but to expect that just reading the book would make me a better passer would be foolish. I would have to take the knowledge gained from that book and practice. I would have to push myself, ask what I am doing right, what I am doing wrong, and seek feedback from others. Maybe find a coach. If I did those things, day after day, week after week, month after month, and year after year, I would get better.

So instead of buying another self-help book, take one down from your shelf that you've already read. Read it again. Pick three ideas from it that resonate with you and write them down on an index card. Then consider those ideas in the context of your life. Devise a written plan on how you will incorporate those ideas into your life. Then execute that plan and hold yourself accountable. Every day.

           

 

 

           

Posted in: The Big Picture

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My Beach Baby Loves Lovin' Where My Rosemary Goes United We Stand Dat Ding

April 8th, 2019 8:33pm - Posted By: Mark Cohen

I have fond memories of many 1970's one hit wonders. My favorites include Love Grows Where My Rosemary Goes by Edison Lighthouse, My Baby Loves Lovin' by White Plains, Beach Baby by First Class, United We Stand by the Brotherhood of Man, and Gimme Dat Ding by the Pipkins.

But what you probably didn't know is that the lead singer for each of those groups was the same man - Tony Burrows.

Born in Great Britain in 1942, Burrows started his musical career as a member of the Kestrels. That group included Roger Greenaway and Roger Cook, who wrote Long Cool Woman in a Black Dress for the Hollies.

Burrows later joined the Ivy League, which became The Flower Pot Men, which included two founding members of Deep Purple. The Flower Pot Men reached # 4 on the U.K. charts in 1967 with Let's Go to San Francisco.

Burrows had his biggest hit in January of 1970 as the lead singer of Edison Lighthouse.  Love Grows Where My Rosemary Grows was a fast paced feel-good tune that hit # 1 on the U.K. charts and # 5 in the U.S. Burrows did not rest on that success.  He got back with The Flower Pot Men, they renamed the band White Plains, and had a hit with My Baby Loves Lovin' in March of 1970, when it reached # 13 on the U.S. charts.

That was a busy year for Burrows. He sang lead on United We Stand for the Brotherhood of Man, which peaked at # 13 on the U.S. charts in the Spring of 1970.

In April of 1970, Burrows and Greenaway formed the Pipkins. Burrows sang lead on Gimme Dat Ding, which reached # 9 on the U.S. Charts. (One of the songwriters was Albert Hammond, who later had a hit with It Never Rains in Southern California).

But Burrows was not done. In 1974, he sang lead on Beach Baby for the First Class, which reached # 4 in the U.S. Beach Baby was another feel-good tune that recalled the lost innocence of the era before Vietnam and Watergate.

Beach Baby was Burrow's last big hit, but he continued a successful career that included singing backups with musicians such as Tom Jones, Elton John, and Rod Stewart. He sang background vocals on Elton John's Tiny Dancer.

Tony Burrows remains the only vocalist to hit the U.S. Top 40 as the lead singer for five different groups. 

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My Right Mindset Routine

March 25th, 2019 12:51am - Posted By: Mark Cohen

CLICK HERE:

My Right Mindset Routine

If you can't see the entire PDF, email me at mark@cohenslaw.com and I will email the article to you.

Posted in: The Big Picture

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