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23929 W. Valencia Blvd.,
Suite 411
Valencia, CA 91355
(Inside the Bank of America Building)

661.287.3600

william.lively@yahoo.com

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9:00 a.m. – 5:00 p.m.
 

“Get It In Writing!”

By Bill Lively

 There is no more common saying than this, but as with most cliches, there is a large grain of truth in this one.  Most people would like to think that they could have the help of courts and lawyers to enforce promises that have been made to them, especially when goods and services have been paid for but not delivered.
 
 However, judges and juries are often unable to protect the victims of those who do not keep their promises, when there is an inability to determine exactly what led up to their agreements and disputes.
 
 Recall, that even the likes of King Soloman was so frustrated over his inability to determine which of two mothers standing before him was telling the truth, that he ordered the baby they both claimed to be cut in half and divided between them, in order to best solve their dispute. 

 There are a lot of reasons for preferring written understandings to oral agreements.    For instance, one of the fundamental requirements for a valid contract, are terms that are certain enough for a court to determine and enforce, if a dispute develops between parties.  Such disputes could center around the exact time in which an act would need to be performed, or the exact quantity or quality of goods to be delivered, or a payment schedule that would have to be met before goods and services could be delivered.  

 Society’s interest in the  enforceability of commercial promises as an aid to free enterprise, would be seriously undermined if courts only had the oral testimony of parties to determine who was telling the truth.  That’s why clear and convincing evidence is so cherished and jealously guarded by our legal system. 

 That’s also why it long ago became a rule that certain contracts had to be in writing in order to be valid.  For instance, a contract that seeks to transfer an interest in real property, has to be in writing.  A contract which by its terms cannot be completely performed within one year of its making, has to be in writing.  A contract which seeks to hold a person liable for the debt of another, has to be in writing.  

 One of the most common situations encountered by lawyers,  has clients telling us that there was a so-called “side agreement” to a contract they entered into, where the person who sold or otherwise promised them something, assured them of a fact or benefit that was not actually written into the contract.   A common twist on such a situation might include an assurance to a client that a term that was actually written into the contact, will not really be binding on the client, or the client will not otherwise be held responsible for performing the obligation created by the term.

  More often than not, we have to sadly inform our clients that they are “out-of-luck”, because one of the fundamental rules of written contracts, is that once the parties have reduced their understandings to a written document, a court will generally not enforce terms that are not within the “four corners” of that document.  On the other hand, if a term is actually written into a contract, and the client has signed it, it is presumed that the client will be bound by that term, despite any oral statements to the contrary that were made to the client by the other party at the time the contract was entered into. 

 It’s generally the law that a written contract can only be modified by another written document, and never by an oral understanding.  In fact, some rules actually forbid judges from even hearing evidence that would contradict the terms of a written agreement.  So, that’s why it’s so important to “get it in writing”; and if the persons with whom you are dealing are unwilling to put every detail important to you in words that you can understand, just walk away! 

Submitted to SCVBA editor for publication in Daily news,  5/27/05; taken from SCV Magazine article 

“Who Can Keep a Secret?”

By Bill Lively 

It’s been said that “two can keep a secret, but only if one of them is dead”. But you’ve got the best chance of having your confidences protected, if the other one who knows is your lawyer.
 
 Communications that occur in the context of certain relationships are protected under the law, and there’s no confidence that is more jealously protected than that between an attorney and his or her client.  That may be because it’s attorneys and judges who generally make and interpret the laws — but that’s another article.

There are a lot of different laws and other rules on this subject, which is commonly known as the “Law of Privilege”, but they all seem to boil down to the following principle: a lawyer is obligated to maintain the confidences of a client, even if it exposes the lawyer to peril.

However, there are a number of things that can destroy the privilege, and therefore the ability to keep the secret. The most common thing is where the secret is revealed to a third person.

So, if you’re going to see a lawyer, and you have something you want kept a secret, do not bring another person into that conversation, or allow the conversation to otherwise be overheard; because nobody can make you or the lawyer tell what was discussed, but there’s no protection for the third person.

There are on-going recent developments in the law, which would mandate that an attorney warn when third persons are threatened with death or serious bodily injury, or when the communication between the attorney and client would otherwise involve an intention to commit a future crime ---- but that will have to wait for the next article.

Submitted to SCV Magazine 5/1/2004. 

“Why Does It Take So Long?”

By Bill Lively 

Even lawyers seem to forget, at times, that there are generally only three ways that lawsuits are finally resolved: (1) The plaintiff “walks away” (files a dismissal of the action); (2) The parties settle, and the court adopts their agreement as the final Judgment; (3) The court presides over a trial or other “hearing” of the evidence, and decides who’s telling the truth, and then applies the law to the facts it believed.  Even the length of that last sentence is longer than the others.

 In every legal dispute, there are at least two versions of the story.  We don’t go to  trial over what we agree upon.  That’s why it’s necessary to play out each version of the story in front of a “trier of fact”.  In a “court trial” the judge is the trier of the facts, and in a jury trial, 12 persons selected from the community determine what is true.  In both cases, the judge determines applicable law.

 The rules require that the least amount of time be taken in court, for each trial.  That means that virtually all of the questions have already been asked of the witnesses, and all of the research and investigation has already been done and filed with the court, before a trial actually starts.  Then, there are all of the pressures to mediate or otherwise attempt settlement.

 It’s hard to think of any but the tiniest of suits, that don’t  require at least 3 days in court, and most require many many more.  With 10, 20, or 30 cases on calendar in each of the limited number of our courts, on any given day, you can imagine how the commencement of a full trial is avoided.

 Then, there’s the expense!  But that’s another article.

It would be irresponsible to attempt critical legal advice in 350 words.  If you need help, call me at 800-339-5539 or 661-287-3600.

“The Enforceable Promise (before death)”

By Bill Lively

If you stop to think about it, the idea that the State would actually enforce a promise that someone had made to you, is quite extraordinary.  Without the law, if someone were to break a promise to you, it would just be, “shame on you!”  Of course, even this would be an improvement on the original practice, of clunking the bum on the head and throwing him out of the cave.

We really couldn’t get much done in every day life, if there were not some order and predictability to the every day workings of society.   For instance, it is in the best interests of a well ordered society to require people to actually do what they have promised to do, especially when another person has paid money in exchange for the promise, or otherwise been disadvantaged by a reliance on the promise.  Commerce would literally come to a halt, if people could not be made to perform their promises.  So, it came to pass very early on that certain promises were made enforceable by the government. 

Now, while we really can’t do a “short course” here on a subject that literally takes shelves of books to thoroughly discuss, a few basics are possible:   If promises are exchanged in a certain way, and if they include an exchange of some form of value, what we call a “contract” results.  Thereafter, if the promises contained in the “contract” are broken, they can be enforced by court action. 

The contract must be fair and for a legal purpose, and the terms must be certain enough for a court to be able to enforce them.  Some contracts must be in writing, but in some cases, a writing is not necessary.  The bottom line for enforcement will depend very much upon what a court decides is fair, under the particular circumstances.  

Since the law does not generally want to be involved in the business of supervising the performances of legal obligations; and since, when it is all said and done, people cannot always be forced to do what they absolutely refuse to do, the remedy for a breach of contract is usually reduced to an amount of money that will “get-back” what was lost by one party, when the promise was broken by the other party.  That’s why the measure of damages in a breach of contract suit is called “out-of-pocket” expenses.   It’s a peculiar rule of contract law that one cannot obtain the fees for an attorney, to help them enforce a broken promise, if that right is not actually written into the contract.  In other words, the cost of an attorney can only be recovered in a law suit, when the contract itself contains a provision for the award of attorneys fees.

Submitted to the SCV Magazine, 5/18/2005.

“Why Is It So Expensive?”

 Remember last time, I mentioned how few are the courtrooms and how limited the time available to be in any one of them.  Picture a stay for yourself and your family at one the finest hotels. Imagine that you have a suite, a maid and valet, state-of-the-art electronic equipment, including the most advanced security available.  Now, go to one of the nearest unlimited jurisdiction superior courts in the county, and just look around.

In addition to being a place where ordinary citizens try to resolve disputes, court houses are mini jails, because they house prisoners awaiting court appearances.  Some of those people will go to prison, and they won’t be happy about it.  In fact, if you think about it, about 50% or more of all of the people who go to court as parties, are going to be somewhat unhappy with the outcome — even if just for the time and expense of it all.

In courts where criminal or family law matters are heard, actual armed police or sheriff deputies are required to provide security, both in the court rooms, and for the surrounding common areas.  In strictly civil courts, it’s a little less expensive, with a minimum of governmental law enforcement, supplemented with private security, and civilian court attendants.

In addition to the security, each court room has a judge, at least one clerk, a court reporter, and a large number of other support personnel, including a large number of clerks and maintenance people.  Then there’s the level of training and competence for all of these professionals.   In a jury trial, the jurors get a per diem, and even though it’s a relatively small amount of money, it mounts up.

Now we’re beginning to talk about a lot of money for each hour a court room is in business, and that doesn’t take into account the costs of experts and other witnesses, trial exhibits, and the lawyers and their support staffs ---- but that’s another article.