Ask yourself these four questions before hiring a litigation attorney.

Preparing for your consultation with a litigation attorney

Picture of Litigation Attorney Consulting with Client

As an experienced Litigation Attorney, I am often asked a question which seems simple but isn’t: “Do I have a case?” Unfortunately, the answer to this is always complex. It is dependent on what happened, how you will prove it, what you want if you win, and whether it’s economically worth it to pursue a lawsuit. People often pick up the phone and start calling attorneys before they have these basic questions answered in their heads. They shouldn’t. Having the answers to these questions will help you explain your side and help the litigation attorney evaluate whether you “have a case.”

1. What happened?

The first thing you need to get clear in your mind is what exactly happened. This is the part that actually is pretty simple. Were you assaulted? Did you pay someone to build a deck and they did a bad job? Were you in a car accident? Whatever it was that happened, try to remember the details and write them down. And don’t just think about the event itself, try and remember what led up to the problem and what occurred after. If you have a written account, you can provide that to any litigation attorney that you consult.

2. How will you prove it?

An experienced litigation attorney knows that the old cliché that there are two sides to every story is true. If you’re considering suing, you need to think about what the other party is going to say as well as your side of the story. Also think about how you’re going to prove your side. Will there be objective evidence or will it be your word against theirs?

I always ask potential clients what evidence there might be to support their claim. Perhaps there are text messages, emails, or cashed checks. Nowadays, it is increasingly common for there to be audio or video recordings. If the dispute is primarily over a contract, then it should be obvious that a copy of the signed contract is a necessity. These things are important because they are objective. If the documents are proven to be real (or “authenticated” in legal terms), then there is little dispute about what they say. And they let a judge or jury come to a conclusion on their own.

If there isn’t objective evidence, then the case is simply your word against theirs. Although this type of case is easy to bring into court–because there is very little evidence to present–it is harder to win.

3. What do you want if you win?

It’s surprising, but people often don’t have an answer when I ask them what they would want if they win their lawsuit. Usually they just say “money.” That’s a given, of course. But the real question is, why do you think you’re entitled to money? Sometimes the answer is obvious. Other times, it isn’t. For example, if you paid a contractor to build a deck for you and they took your money and ran then you’d want the full amount back. But if they built a deck that you weren’t satisfied you might not want a full refund. You might want them to fix the parts you are unsatisfied with.

In some cases, the measure of damages can get murkier. Take an assault and battery case as an example. If someone hit you and you had to go the hospital then they might be responsible for reimbursing you for your medical bills. But are they also required to reimburse you for the pain and suffering that resulted from the assault? Maybe. The amount plaintiffs receive can vary greatly from case to case. Just like the question of whether you win at all, the question of how much you will recover will be based on what you can prove. How will you prove to the judge or jury that you suffered? These are all things that you should think about before consulting with a litigation attorney.

4. Is it worth your time and money to sue?

The final thing you need to think about is whether it is worth your time and money to sue. This is a purely economic question. Litigations costs money and the fees can quickly add up. I tell people quite frankly that if your argument is over a small amount of money, such as anything under $5000.00 then it is almost never worth it to hire an attorney. You should first try to settle the argument with the other party. If you can’t do that, then you can take them to small claims court. In Virginia, small claims court can handle any dispute where the amount of money in issue is less than $5000.00. A helpful pamphlet explaining small claims court procedures can be found here.

If your claim is for an amount greater than $5000.00 then it might be worth it to consider hiring a litigation attorney to handle your case. If you answers these questions for yourself before contacting an attorney, you’ll be well ahead of the game.

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What Does the Contract Say?

While it seems like a simple question, a contract’s terms are often overlooked until the parties are in the grips of litigation. Everyone has been through the process of initialing and signing a long contract full of boilerplate language that we all assume will never matter. But when a dispute arises, it is this fine-print language that has real-life consequences.

This is particularly true in business dealings; whether setting up a small-business operating agreement or entering into a long-term commercial lease, the language of the agreement and contract truly does matter. A responsible business cannot wait until the business is more established to take care of the details and it cannot simply sign and hope for the best.

Take the time now, before you face a conflict to review the terms of these contracts:

  1. Operating Agreement;
  2. Partnership Agreements;
  3. Employment Contracts;
  4. Commercial Leases;
  5. Insurance Agreements;
  6. Vendor Contracts;
  7. Client Agreements; and
  8. Any other contracts that your business enters into.

If you have any questions about your Virginia business’s or Washington, D.C., business’s contracts, contact the law office today to schedule an appointment.

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Taylor Swift and the Art of Cross Examination

Cross-examination is a key part of any contested trial. Good lawyers—like good song writers—must be good story tellers. Trial lawyers must tell a client’s story within the context and procedures of the trial. The opening statement lays out the story, foreshadowing what is to come. The witnesses and evidence support the story. And the closing statement serves as the “satisfying conclusion.”

By failing to prepare, you are preparing to fail.

When done right, cross-examination can help a lawyer elicit damaging admissions from the opposing party and tell their client’s story. When done wrong, a lawyer can do irreparable damage to their client’s case.

Doing it right requires only one thing: preparation. The lawyer doing the cross-examination must prepare themselves by examining in detail every statement that the witness may have made on the subject in question. Cross-examination questions should be carefully prepared and should not give the witness “wiggle” room to speculate. The goal should be for the cross-examiner to get in and get out.

On the flip side, a good trial attorney will prepare their client for cross-examination by helping them understand and exploit weaknesses in the examiner’s questions.

Cross-examination of Taylor Swift.

A good example of cross-examination gone wrong occurred last week in Taylor Swift’s civil trial in Denver, Colorado. The trial centers around allegations made by Ms. Swift that David Mueller, a Denver area radio host, inappropriately touched her during a June 2013 photo opportunity. Ms. Swift told Mr. Mueller’s employer that he grabbed her butt during the photo opportunity and they fired him.

In 2015, Mr. Mueller sued Ms. Swift claiming that she recklessly ruined his career with the false allegation. Ms. Swift countersued alleging that Mr. Mueller had reached under her dress and grabbed her bottom.

During trial, Ms. Swift was obviously well prepared for the witness stand. During cross-examination, she was able to score several points for her case when the opposing attorney asked some ill-advised questions.

One of Mr. Mueller’s key pieces of evidence was the photo taken during the photo opportunity. Mr. Mueller’s attorney asked Ms. Swift why the photo shows the front of her skirt in place and not lifted up if Mr. Mueller was reaching underneath to grab her butt. Ms. Swift quipped “[b]ecause my ass is located in the back of my body.”

Later, Mr. Mueller’s attorney asked Ms. Swift “how she felt” when Mr. Mueller’s employer fired him after the accusations. Again, she responded well. She explained “I didn’t have a reaction to a strange person I didn’t know losing his job…that was a product of his decisions, not mine.”

Both of these exchanges are great examples of proper preparation. Preparation that paid off. In the first case, Ms. Swift exploited an open-ended question to great effect. In the second, she avoided a victim-blaming question designed to elicit sympathy for Mr. Mueller.

Ms. Swift’s cross-examination helped her tell her story and prevented Mr. Mueller from telling his. We’ll see which side gets its “satisfying conclusion” in the future when the jury returns a verdict.

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Veterans Affairs Accountability and Whistleblower Protection Act

The President recently signed The Veterans Affairs Accountability and Whistleblower Protection Act of 2017 into law. Friend-of-the-firm Bill Aramony attended the recent bill signing at the White House.  Bill has over 30 years representing employees and veterans, and he has a distinguished history of advocating for veterans.  A number of the Act’s changes are noted below.

The bill amends Title 38 U.S.C. to improve the accountability of employees of the Department of Veterans Affairs. For Senior Executive discipline and removal, the bill allows advance notice, the ability to be represented by an attorney or other representative, and the ability to grieve the decision.

It gives 15 business days to process a disciplinary action, inclusive of 7 business days for the executive to respond to the proposed action. The grievance procedure is 21 days. The bill does not provide for review of SES discipline by the Merit Systems Protection Board (MSPB). Non-SES Employees may be removed, demoted, or suspended for reasons of performance or misconduct.

The advanced notice and response period of 15 business days, with 7 days allowed for employee’s response to a proposal to remove, demote, or suspend.

MSPB appeal time is 10 business days (it was 30 calendar days). The burden of proof on the agency is “substantial evidence.” Before the agency’s burden was preponderance of evidence.

MSPB cannot mitigate VA chosen penalties. The bill supersedes any conflicting provisions of collective bargaining agreement(s).

The bill mandates that the VA institute whistleblower protections and a position of assistant secretary for accountability and whistleblower protection. The bill allows the VA Secretary to reduce the pension of a VA employee convicted of a felony that influenced job performance.

The bill also allows the VA Secretary to recoup any bonus or award paid to any employee engaged in poor performance or misconduct discovered after giving the bonus.

If you have any questions about the Act or about VA and other employment-related issues, contact the office today. Or contact Bill Aramony at 703-299-8496.

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Law Office Closed on 3-4 July

The law office will be officially closed July 3rd-4th. Have a happy and safe holiday weekend!

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Montana Supreme Court Cites “The Wire”, Notorious B.I.G., and N.W.A.

Justice James Jeremiah Shea of the Supreme Court of Montana briefly overtook U.S. Supreme Court Justice Elena Kagan in the race to make the coolest references in a published judicial opinion yesterday. (Justice Kagan’s spider-man reference can be found in the Kimble v. Marvel opinion here.) The case was State v. Glass and the issue was whether the defendant’s federal conviction for conspiracy to distribute methamphetamine barred “a subsequent state prosecution for possession of dangerous drugs on double jeopardy grounds.”

In the case, Mr. Glass was charged by the state of Montana in June of 2014 for, among other things, criminal distribution of methamphetamine and criminal possession of methamphetamine. He pleaded not guilty to all of the state charges. A few months later, Mr. Glass found himself in Federal court facing charges of conspiracy to distribute methamphetamine and one count of felon in possession of a firearm. In federal court he pleaded guilty to the conspiracy to distribute charge.

Later, when the state charges went to trial, Mr. Glass moved to dismiss the state’s charges arguing that the prosecution was barred by Montana’s double-jeopardy statute. The State responded that the basis for the state possession charge did not involve the same criminal objectives or conduct as the Federal charges. It seems that Mr. Glass had received sixteen ounces of methamphetamine; of that, he distributed fourteen ounces and used two himself. The Federal charge applied to the fourteen ounces. The state possession charge applied to the two ounces he used. (That was even though he had smoked all two ounces–there was residue of meth on a pipe that police found in Mr. Glass’s vehicle. The residue alone was enough to support a possession charge under Montana law.)

Justice Shea. writing for a unanimous court, agreed with the state of Montana. In his conclusion, he echoed sentiments from “The Wire”, Notorious B.I.G., and N.W.A:

‘Don’t get high on your own supply’ is a long-established rule in the drug trade specifically because such conduct is inconsistent with the criminal objective of distributing drugs for profit. To that rule we now add the legal caveat: ‘Don’t get high on your own supply, ’cause double jeopardy don’t apply.’

The entire opinion can be found here.

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Starting a Virginia Business

Starting a business is an exciting and nerve-wracking experience. Whether the venture is meant to be big, bold, and long-standing or whether it is intended as a narrow, limited, temporary entity, the reality is that no one knows how the future will unfold. Every entrepreneur encounters unexpected issues that are good and bad. Likewise, they often end up working with a myriad of unforeseen contractors, employees, partners, businesses, and individuals.

Plan for the Future Now

Despite these unknowns (or perhaps in part because of them), new entrepreneurs often focus on their immediate broad goals and needs then leave the subtleties and details to be worked out later. Unfortunately, this is the wrong approach. Neglected details quickly and needlessly turn into headaches.

Although it is difficult, proper planning is an essential step if you want your Virginia business to prosper.  It helps maintain good relations with partners and vendors, and it maximizes your bottom line. Similarly, proper legal planning can help facilitate the business’s overall function. It will also help prevent problems or address them before they occur.

Questions to Consider When Starting Your Virginia Business

  1. What is the business activity?
  2. What is the current structure?
  3. Is the business registered already in another state?
  4. Where does it or will it conduct business activities?
  5. How many employees are there currently?
  6. How many owners, investors, and managers are there currently?
  7. What is your business’s exposure to liability?
  8. Can you insure against the risks?
  9. How many shareholders, partners, and managers do you anticipate?
  10. How many employees do you anticipate?
  11. What, if any, benefits do you intend to offer them?
  12. How long do you intend to run the business?
  13. What gross income range do you anticipate over the next few years?
  14. What are your retirement savings plans relative to the entity?
  15. How much time do you devote (full time or part time) to the entity?
  16. How important is administrative ease?

The answers to these questions will help guide the choice of entity (i.e., the type of business such as a sole proprietorship, LLC, PLLC, LLP, partnership, s-corp, c-corp, or  benefit corporation) and dictate the necessary paperwork, licenses, and other filings.

Taxes

In addition to the questions above, you should carefully consider taxes. The type of entity you form should be driven by, among other concerns, tax considerations. Likewise, how you will pay taxes, what taxes will be owed, and the impact of each employee, contract, or investment on your bottom line should be considered beforehand. Not only will these planning steps lead to a larger net profit, but they will keep the business and its owners out of trouble with the government–whether local, state, or federal.

Professional Legal Advice

With the advent of legal zoom and other online resources, it may be tempting to simply create your business entity through self-help and online filings.  While this may be appropriate for some enterprises–such as those formed by a limited number of experienced entrepreneurs–most people should seek legal counsel when forming a new Virginia business.  Similarly, you should consult with counsel early in the process so that mistakes or vulnerabilities can be identified and remedied early.  This will provide a peace of mind and net benefit to the company that will be as important as any other investment your new business makes.

If you are considering forming a new business in Virginia, please contact our office today to make an appointment.

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Drunk in Public, Fairfax Virginia

Public cursing (i.e., swearing in public) and public intoxication (i.e., drunk in public) are both prohibited by Virginia law. Police officers rarely charge citizens with swearing in public, but charges of public intoxication are fairly routine.

The Statute: § 18.2-388 of the Virginia Code

If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.

As a Class 4 Misdemeanor, it is punishable only by a fine of not more than $250.

In plain English, how can one be found guilty of public intoxication?Drunk in Public Figure

Actually, it’s very easy to be charged with public intoxication. Generally speaking, if you show physical signs of intoxication such as stumbling, difficulty speaking, or other outward behavioral indications of intoxications then you are “drunk” for the purposes of the statute. You are in public if you are in “open view” of homes or a public street.

The discretion provided to police is pretty broad here. We’ve even seen cases where the police have pulled over cars, noticed that the passenger was drunk, asked the passenger to step out of the car, and then written a ticket to the passenger for being drunk “in public.”

What can be done for someone that has been charged with being drunk in public?

There are a number of different strategies to deal with a drunk in public charge. The first thing to do is examine the evidence.  A lawyer will ask the officer what they saw that made them think the defendant was drunk. This is often fairly straightforward. Another strategy might revolve around negotiating with the prosecutor to get the charge reduced to some non-criminal infraction. If you’re facing a public intoxication charge, you should consider consulting with an attorney to determine whether there are any possible defenses you can present.

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Felony Larceny of Girl Scout Cookies

The Lexington Herald-Leader is reporting that a Kentucky woman was recently indicted for felony larceny of $15,000.00 worth of Girl Scout cookies. It appears that the woman was the troop leader for the Wilderness Road Chapter of the Girl Scouts. She went down to the cookie pickup point and picked up the chapter’s cookies on February 1st. The woman did not pay for the cookies or deliver them to the girl scouts.Picture of Cookies

It’s unclear what happened to the cookies, but the grand jury indicted her for felony unlawful taking. In Kentucky, like many other states, the potential punishments for thefts varies according to the amount taken. In this case, the charge is a Kentucky Class C Felony because the value of the stolen cookies is between $10,000.00 and $1,000,000.00.

Virginia Larceny

In Virginia, unfortunately, the potential punishment for larceny hinges on just one number: $200.00. A Virginia larceny is a felony if the item or items stolen are valued at $200.00 or more. (The felony statute is here.) It is a misdemeanor if the value is less than $200.00. (The misdemeanor statute is here.) As a felony, larceny is a crime punishable by, among other things, up to twenty years of imprisonment. Misdemeanor larceny is punishable by, among other things, up to twelve months in jail.

This $200.00 threshold means that defendants who steal even small items face big consequences. For example, Virginia shoplifters who steal a couple of shirts might find themselves facing twenty years in prison. A Girl Scout cookie thief in Virginia would face felony charges for stealing only forty boxes of cookies. (Based on a $5.00 per box value.)

Because the felony threshold is so low, it is important to verify the value of the items that were allegedly stolen. Likewise, it is essential that a licensed attorney examine the Commonwealth’s evidence and confirm that they can prove every element of larceny. Additional information on how an attorney can help a defendant charged with larceny can be found here.

What happened to the cookies?

Really though, the most interesting aspect of this case to me is just what happened to the cookies. By my estimate, the woman stole about 3000 boxes of girl scout cookies. It seems unlikely to me that the she moved the cookies on some sort of cookie black market or on the dark web for bitcoin. I suppose it’s possible she ate them all herself but that would be about 30 boxes of cookies a day. At my best, I think I could only eat 3 boxes a day.

I’ll be following the story and provide more as it develops.

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Virginia DWI – How will the state prove its case?

A Virginia DWI or Driving while intoxicated (DWI)–more commonly known as drunk driving–is a serious criminal offense. Although some states make a distinction between driving under the influence (DUI) and driving while intoxicated, Virginia is not one of them.

The Virginia DWI Statute

In Virginia, the crime is driving while intoxicated. The law can be found at § 18.2-266 of the Virginia Code. It lays out five separate ways that the prosecutor can prove someone is guilty of a Virginia DWI. In plain English, it is illegal in Virginia to “drive or operate” a vehicle:

Image of Beer, a contributor to Virginia DWI(1) while having a blood alcohol concentration of 0.08;

(2) while under the influence of alcohol;

(3) while under the influence of any drug;

(4) while under the influence of drugs and alcohol; or

(5) while having certain levels of specific drugs in your bloodstream.

Although there are five ways that one can be found guilty, there is only one law. And a defendant who is charged with DWI can be found guilty under any one of the ways listed above.

How the prosecutor can use a “rebuttable presumption” to convict.

The most common way for the prosecution to prove a Virginia DWI is to trigger what is called a rebuttable presumption. Notice that two of the ways that a person can be found guilty listed above (number 1 and number 5) refer to the amount of alcohol or drugs found in the defendant’s bloodstream.

If the prosecution has scientific tests such as a breathalyzer or blood measurement they can submit the results during the trial as evidence. If the tests were properly done they will be admitted. And they will create what is called a “rebuttable presumption” if they show that the alcohol or drug levels in the defendant’s blood were high enough. This presumption will allow the judge or jury to presume that the defendant was “under the influence” of alcohol or drugs while driving due to the level of alcohol or drugs in their blood. The law then allows the defendant to submit evidence to disprove that they were under the influence, but that can be tough to do as a practical matter.

The majority of DWI cases are alcohol cases. And the easiest way for the prosecutor to prove these cases is to use the results from a breathalyzer or blood test. Likewise, the easiest way for a prosecutor to prove that the defendant was under the influence of, for example, cocaine is to submit blood test showing the level of cocaine in the person’s blood stream.

Other ways the prosecutor can prove a Virginia DWI.

But even If there is no blood test, that does not mean that the defendant will “walk.” To the contrary, the law allows the prosecutor to put forth circumstantial evidence that a driver was “under the influence” to prove a Virginia DWI. This would include things like: the smell of alcohol on the driver’s breath, blood-shot eyes, the inability to walk a straight line, slurred speech, and the inability to stand without wobbling. One of the biggest things that might be used against a defendant is their own words. Often, when a the police officer will simply ask the defendant if they have been drinking. Nine times out of ten, the defendant will answer yes.

What can be defenses can be made in a Virginia DWI case?

Virginia DWI cases are technically very complex and there are many possible defenses. Whether or not they are available will depend on the facts and circumstances of the case. For example, in blood alcohol cases with a breathalyzer, there may be a problem with the calibration of the instrument. Likewise, there may be problems with the initial traffic stop. If you’ve been charged with a Virginia DWI, the consequences can be significant. You should consider contacting an attorney immediately to discuss your case.

 

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