Probably one of the most frequent problems I encounter with new cases clients bring to my office is the lack of documentary evidence.
No one bothers to put down in writing that agreement with the brother-in-law or “friend” about the business they were starting together, the house one was going to buy (by signing on the mortgage) and which the other was going to “own” (by going on the title) and paying the mortgage, the investment they were going to make together, or any other manner of legal arrangements.
Then, when things “go south” and the “owner” does not pay the mortgage or the business fails (or even prospers, in which case you will see fights over profits), the differences in each person’s understanding of what was agreed becomes painfully obvious.
But what’s worse is that the prospective client has nothing in writing to back up his side of the story. It becomes a “he said / she said” dispute hard to win in court. Convincing a judge or jury of the rightness of your position is now just a coin flip.
Personal injury attorney Paul Samakow discusses this problem well in a recent article. I commend it to you:
Good day my friends.
Hope you will read my latest article. Last week I advised that I was running for President. So far, no contributions. No problem, I still love you.
This week’s article is a compilation of really interesting “family law” matters across the country, including Sophia Vergara, shooting your mother-in-law, Burger King paying for a wedding and more.
My advice for this week is seemingly common sense, but very important. If ever, whenever, you find yourself embroiled in any controversy that could elevate to hiring an attorney and having a lawsuit filed, the single most important thing you can do to prepare is simply that: Prepare. Be aware of potential problems.
A neighborhood disagreement that doesn’t resolve.
A vehicle repair that is taking too long and isn’t being resolved or a consumer product a retailer isn’t fixing or replacing.
Any time you borrow or loan money.
Anything involving a landlord.
ANYTHING involving the police.
Anything involving a credit card.
Preparing means keeping notes. Document everything. Document conversations. Communicate via email and save the emails, and print them out and put them in a file.
Get witnesses to write statements that are signed and dated.
There is nothing worse than being right and not being able to prove it. The requirement to “win” in a court of law is that the party seeking relief must have at least “a preponderance” of the evidence; that means at least 51%.
If a case boils down to my word vs. yours, I lose, not because I “lose” but because I didn’t have the evidence, or the proof, to “win.” A judge cannot arbitrarily pick one side or the other in a dispute.
Written documentation will carry the day. The documents do not have to be notarized. They do not have to be perfectly written. They just need to exist and be credible.
Have a good week… Paul
Virginia & Maryland Injury Claims 703-761-4343 or 301-949-1515
Paul is absolutely on target. I remember representing a client a few years ago whose bank account had been drained by a “friend” to whom he had given signature authority to pay his bills while he was out of the country. She helped herself to all his money. When he sued her to get his money back, about $30,000, she filed bankruptcy as soon as he got a judgment against her claiming he had made a loan to her.
Fortunately, when they went to the bank to give her signature authority, he had had her sign a simple three line agreement stating that she would be “on” the account, but that the money “belonged” to him.
They did not use legal terminology, but it was clear that they had intended a “trust” in which he as the “beneficiary” for whose benefit the money was to be spent, and she was a “trustee” with power only to use it on his behalf — not spend it on herself.
The writing was sufficient to convince the judge what she did was an illegal “breach of fiduciary duty” and stopped the discharge of her debt to him.
“Put it in writing,” as they say. Even it’s merely a note or a letter to the other side to acknowledge your understanding of the deal. (Of course it’s better to have documentation drafted by a lawyer, but something is better than nothing.)
This is good advice. All of us lawyers endorse it. Keep it in mind.