Four Tips For Your Case to Be Successful

No one who files a lawsuit in court is guaranteed success, but your likelihood of success increases if you do specific things before you file.  While I will be discussing them in the context of an employment case, these four tips could apply to a variety of cases.

1.  Document!  If you are an employee and your coworkers, or someone in authority treats you poorly, and that poor treatment becomes a pattern, don't brush it off.  Don't pretend that it doesn't matter, or hope it goes away.  Start documenting it.  That means keeping a journal of who/what/when/where/why, as well as retaining any relevant emails, text messages, or phone messages.  Even if the treatment turns out to not be illegal, it never hurts to have a record.  That way, if you do end up filing a claim, you will have evidence to back up your assertions.  Too often, people who file a claim must work backwards, scrambling to find evidence after they have asserted illegal behavior.  

2.  Seek Help From Someone in Authority.  One of the first things you should do if you think that you have received poor, possibly illegal treatment, is inform someone in authority.  Too often, employees who receive poor treatment end up quitting in protest, or immediately filing a claim.  While that does not always harm their case, courts generally look more favorably on those who first try to work things out within the company.  If you are mistreated by coworkers, find a supervisor whom you can trust.  If there is none, or if the supervisor is the one mistreating you, talk to your company's human resources department.  If human resources does not help, see if there is anyone else in a position of authority whom you trust to remedy the issue.  If going through company channels does not improve working conditions, an aggrieved employee may then go ahead and file a claim.       

3.  Keeping Fulfilling Your Obligations.  When someone has been wronged at work, it is tempting to quit, or to stop performing certain job duties.  Your morale may be low, and you may be feeling angry and bitter toward your company.  Yet too often when that happens, employers may give the employee poor performance reviews, or outright fire the employee and claim that it was justifiable based on the employee's poor performance.  An employee may then be able to prove that the true cause of the firing was retaliation for filing a claim, but it is much easier to show retaliation if the employee can also show that his or her work performance never changed -- that is, it was the same quality of work as when the employee received good performance reviews.    

4.  Don't Wait.  Some people brush off poor treatment for years before filing a claim.  They should keep in mind that there are time limitations attached to their claims.  For instance, if they seek to file a discrimination claim with the Equal Employment Opportunity Commission, they can only do so within 180 days (or in some cases 300) from the day the discrimination took place.  There are also statutes of limitations attached to each claim, which means that if they seek relief for discrimination going back 10 years, they will not be able to do so.  So as you attempt to first work things out within the company, keep the time limitations for filing a case in mind.

Again, these four tips may not guarantee success, but they will likely make your case stronger.

If you need a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Just a Quick Update

Yikes, I can't believe it's been so long since my last update.  The good news is that it's because I've been pretty busy.

My practice is expanding beyond bankruptcy into related areas, including unlawful detainer defense and collections defense.

On the employment side, I am working on a package that I can offer to small business employers to help them avoid employee lawsuits.

Stay tuned...

A Few Thoughts About Attorney's Fees and Litigation Costs

One stereotype about lawyers: we are all rich.  Several times, non-lawyers have wildly overestimated my income.  While there is some truth to the stereotypes, there are also some misconceptions, based on the attorney's hourly rate.  This post is aimed to shed some light on hourly rates and fees versus costs.

"I can't believe what you charge per hour!" is a frequent comment, whether the attorney charges $150 or $450 per hour.  One reason is because when people think of hourly rate, they typically think of it on a 40-hour per week basis.  If the attorney received $150 per hour for 40 hours a week, every week, that would indeed be a terrific living -- $6,000 a week, or more than $300,000 per year.  While some attorneys make that amount -- usually seasoned attorneys -- most do not.  

Instead, an attorney's hourly rate is based on doing actual attorney work.  This includes attending hearings, drafting pleadings, holding meetings with the other party, and more.  Here is the important thing: if an attorney sits in the office for eight hours, but only spends six hours doing attorney work, the attorney charges for six hours, not eight.  Moreover, if the attorney is new and takes longer to draft a pleading than an experienced attorney, if the new attorney is ethical, he or she will shave time off of the total amount of time taken.  Otherwise, the new attorney could end up making more money for the same tasks than a seasoned attorney would.  

As for why the hourly rate is so high, it often comes down to the fact that attorneys may not have many cases.  Certain types of cases take weeks or months and require a lot of attention.  Therefore, it would not be a good idea for the attorney to have a high volume of cases, as the attorney would have less time to attend to each one.  Yet the attorney still needs to earn a decent living, so he or she needs to charge a certain hourly rate.

The same idea works with flat rates.  Those who hire bankruptcy attorneys who charge $500 for a Chapter 7 may think they are getting a wonderful deal, but it could come at the expense of quality representation.  An attorney who charges such a low flat rate may try to make up for it with high volume -- either a high volume of bankruptcy cases or of other cases.  That could mean handing the details of the case over to a paralegal, or otherwise not giving it the attention it needs.

Now that doesn't mean there are no attorneys who do quality work for a $500 flat rate, or no attorneys with large caseloads who still charge high amounts.  But too often cheap prices equal less care and attention.

Another thing I wanted to discuss was the difference between fees and costs.  The hourly rate mentioned above is for attorney's fees, which are separate from the actual costs of litigation.  Litigation costs include costs of filing a complaint in court, serving papers on the other party, and setting up a deposition.  Some attorneys that do cases on a contingency basis still require the client to pay for the costs of litigation, prompting an outraged: "I thought you wouldn't get paid unless you won!"  It's true that the attorney won't get paid attorney fees unless the client wins, but costs can be charged throughout the case.  Some firms will pay the costs if they sense the case is a good one and can afford it, and then bill the client for the costs later.  However, not every firm is in a position to do this.  Plus, some attorneys believe that clients are more responsible and attentive when they have "some skin in the game."

So hopefully this sheds some light on attorney's fees and costs.  Just because an attorney has a certain rate does not mean he or she is trying to gouge the client.  The attorney -- especially a solo attorney -- is more than likely just charging the amount that will help him or her earn a decent living.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Some Hard Truths About Employment Law Claims, Part 2

Last time, I mentioned several situations where bad behavior at work was illegal.  But lots of times, a work situation can be toxic without discrimination or sexual harassment being involved.  Sometimes a supervisor or a coworker is just a toxic person who likes to make everyone in the workplace a bundle of nerves.  Sometimes a supervisor might single out an individual to abuse, not because of the person's race or gender, but because of personality, jealousy, or any number of reasons real or imagined.  Aren't these examples of hostile work environment?  Isn't that illegal?    

Hostile work environment is illegal, but only if the hostility targets one of the categories mentioned in the last post.  On the other hand, hostility by a hot-headed boss toward an introverted employee is not illegal per se.  That said, depending upon the type of behavior, it is possible that a supervisor or coworker could be breaking the law.  Some other types of law-breaking include:

1.  Defamation.  If a supervisor or coworker says something about you that is untrue and it causes damage to your reputation, he or she could be liable for defamation.  The untrue statement can be spoken or written, but must be said to at least one other person to be "published."  

2.  False Light.  If a supervisor or coworker implies something false about you that would be considered highly offensive to a reasonable person, and that implication is made public, then he or she could be liable for false light.

3.  Intentional Infliction of Emotional Distress.  If a supervisor or coworker intentionally engages in reckless or "extreme and outrageous" conduct that causes you emotional distress, he or she could be liable for intentional infliction of emotional distress.   

4.  Assault, Battery, and/or False Imprisonment.  Things would have to be pretty bad for one of these to be applicable, but it's not impossible.        

5.  Breach of Contract.  If an employer's bad treatment violates terms and conditions of your contract, your employer could be liable for breach of contract.   

Also, if the supervisor "punishes" you by denying you wages or vacation, despite no evidence of wrongdoing on your part he or she may have violated a number of federal and California labor laws.

Suppose you think that your boss's behavior is wrong, but are not quite sure it is illegal.  Here are some possible options:

1.  Document Everything.  Even if you don't know, you can always keep a journal of what was said and when.  That way, you have recorded a pattern of behavior that at the least, could be used as records for internal discipline and at most, could be the basis for a lawsuit.

2.  Check Your Company's Policy.  Usually before you contemplate filing a lawsuit, it's a good idea to try to resolve the issue internally.  You could check your company's policy on reporting abusive behavior, and/or speak to someone in the HR Department.  The policies in place may allow you to report bad behavior without revealing yourself/exposing yourself to possible retaliation.  If there are no policies in place, and you don't feel safe reporting the bad behavior to a supervisor, you should consider speaking to an experienced Bay Area employment law attorney.

3.  Don't Lose Your Cool.  Regardless of the type of treatment, it is important to remain calm and professional.  If you blow up, it becomes easier for the supervisor or coworker to portray you as the malcontent and instigator.

4.  Don't Let Your Work Slip.  A lot of people respond to prolonged abuse by missing workdays or performing poorly.  Though you might need more time off to recover your health, it is important to do it within permissible bounds.  Otherwise, the supervisor and/or coworker might find it easier to challenge your credibility. 
      
Some employees may find that there are no good internal ways of dealing with the problem, and thus proceed to a lawsuit.  Other employees find that no matter how terrible the boss, his or her behavior does not meet the illegal threshold.  What to do then?  An employee can always leave the job, though at this time, that might require pain and sacrifice.  Many employees fear that if they look for a new job, the abusive supervisor will give him or her a bad reference.  That may be, but if so, that supervisor may open him/herself up to charges of defamation. 

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Some Hard Truths About Employment Law Claims, Part 1

Because of the amount of time we spend at work, no workplace conflict is small.  Conflicts with your boss or coworkers can damage your self esteem and your health.  When you are fired from your job after being in a toxic situation, and you believe that it was not due to performance, it is easy to think that your firing was unlawful.  However, the hard truth is that your firing can be completely unfair... and still be legal.

How can that be?  The reason is because California, like most states, has "at will" employment.  That means an employee can be fired at any time for any reason, barring specific exceptions.  It does not matter whether you are in a probationary period or are a full-time employee: you can still get fired because you have a personality conflict with your boss.

The purpose of "at will" employment is to maintain a flexible work environment.  At will is a two-way street: employers aren't burdened with unskilled or unmotivated workers, but employees can also quit with little to no notice, usually without repercussions.

Still, most employees want to keep their jobs.  If the default is that you can be fired at any time, for any reason, then when is it unlawful?

1.  When you have been discriminated against on the basis of your race, gender, national origin, age, religion, disability, and (under California law) sexual orientation.  

This discrimination is not always easy to prove.  Fitting a certain gender or racial profile when you are fired is not enough -- the behavior itself must show intent to discriminate.  An employee who believes he or she was fired due to discrimination must first make a "prima facie" case: (1) the employee was a member of a protected group; (2) the employee was qualified for the position and performed its requirements satisfactorily; (3) the employee was terminated; and (4) after termination, the employer hired another person with similar qualifications.  The defendant then has the chance to rebut the case by providing evidence of a nondiscriminatory motive.  The plaintiff then has the opportunity to prove that the defendant's claimed motive is just pretext, covering the real discriminatory reason for the discrimination.  As the one filing the lawsuit, the plaintiff carries the heaviest burden of proof.

2.  When you have been terminated due to sexual harassment.

As with discrimination, retaliation related to sexual harassment can be difficult to prove.  The employee must make a prima facie case that: (1) he or she was a member of a protected class; (2) he or she received sexual advances or requests for sexual favors from the supervisor; (3) his or her refusal to give in to these advances or requests affected his or her employment status; and (4) the supervisor used his or her authority to create adverse job consequences for the employee.  Again, the employer has the opportunity for a rebuttal, and the employee must provide evidence that it is pretext.

3.  When your termination violates public policy.

An employer violates public policy when an employee is fired for refusing to participate in an illegal activity, or for participating in a legal activity like voting or other political activity.

4.  When you are terminated for being a whistleblower.

5.  When you are terminated for filing a Workers Compensation claim.


Whether you fit one of the above scenarios may also depend upon the type of workplace: the number of employees, the nature of the work, or other factors.

So if you believe that your boss's behavior toward you is illegal, what should you do next?  And if you don't think that it's illegal, but still find it toxic and harmful, what should you do then?  Some suggestions will be provided in Part Two.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

But What If You're the Debtor? Some Bankruptcy Pointers

In my last post, I looked at things from the creditor's point of view.  That was because previously, I had discussed employees filing lawsuits against their employers.  I wanted to show what could happen to employees if their employers decided to file for bankruptcy.  I addressed the most simple scenario; for instance, I didn't discuss some of the steps available to employee-creditors if their employers filed for Chapter 11 business bankruptcy.  Chapter 11 is very different from Chapters 7 and 13, and will usually be discussed separately.  I will discuss Chapter 11 in a future post, but suffice it to say that employee-creditors can be involved in the Chapter 11 reorganization process.

What I wanted to stress was that the creditor is not always a mortgage lender or a credit card company: sometimes the creditor is you.  However, you could just as easily be the debtor, especially if you are an employee who was demoted, wrongfully terminated, or otherwise denied wages.  If that's the case, what can you do?

Figure Out How Much Debt You Owe.  When you don't have a job and are struggling to pay your credit cards and mortgage, it can be tempting to choose bankruptcy as the first step.  But bankruptcy is a serious decision, and if you have the time, you should definitely consider other options first.  Those options include seeking a loan modification with your mortgage lender, which could lower your monthly payments and interest rate, and negotiating with the credit card companies.  You might also consider selling certain property and using the money to pay down your debts.

If your debt is mostly credit card debt, and is fairly low -- such as $10,000 or $20,000 -- you might be able to wipe it away through a method other than bankruptcy.

If Bankruptcy, Which Type?  If you have tried the above options and still can't manage your debts, you need to figure out what type of bankruptcy would be best.  For that, you should consult a Bay Area bankruptcy attorney.  Individual debtors usually file for Chapter 7 or Chapter 13.

Chapter 7 is the most common form of bankruptcy, and usually the fastest.  With Chapter 7, the property you own before you file becomes "property of the estate," and the Chapter 7 trustee will determine which of your assets can be sold to pay off your creditors.  Before you file, you state which property is "exempt" (off-limits) and "non-exempt" (can be used to pay creditors).  To figure out which property to exempt, you would choose one set of California's exemptions, 703 or 704 -- whichever set best suits your needs.  If the Chapter 7 trustee and the creditors do not object, then the non-exempt assets will be sold and the proceeds paid to your creditors.

Chapter 7 is a good option for those with a lot of credit card debt who are not attached to their property.  But Chapter 7 does not get rid of your obligation to pay off most secured loans -- loans secured by the house, car, or other property as collateral.  If you have defaulted on your mortgage payments and want to keep your home, you may want to file for Chapter 13.  Whereas Chapter 7 is usually fast -- 3 to 6 months -- a Chapter 13 bankruptcy lasts from 3 to 5 years.  During that time, you pay off your creditors a little each month through a court-approved payment plan.

Whether you file for Chapter 7 or 13 may depend solely on whether you pass the "means test": if your income is more than the median income for your state, you are required to file for Chapter 13.  If your income is less than the median income, you could potentially file for Chapter 7 or Chapter 13.  However, if your debts are above a certain limit ($1,149,525.00 for secured debts; $383,175.00 for unsecured debts), then you are not eligible for a Chapter 13 -- you must file a Chapter 7.  In the case where you earn too much and have too much debt, you could file an individual Chapter 11.

Prepare Beforehand.  Before the papers are filed, attend credit counseling.  You must have a credit counseling certificate before you can file.  You should also consider moving your checking account to a different bank, as your current bank might freeze your account after you file.

Attend the Creditors Meeting.  Once you file for bankruptcy, you are obligated to appear at the 341 creditors meeting, which will be held no more than 40 days after you file.  This meeting is very important to your case, so don't miss it.  Your attorney will tell you what you need to bring.

Be Honest and Cooperative.  Both before and during the bankruptcy, disclose everything, even if you are concerned it could hurt you.  Your attorney will help you figure out how to deal with it.  If you forgot something, bring it up as soon as possible.  If you have a change in circumstances, bring it up as soon as possible.  Follow whatever procedures the court or your payment plan has in place.  If you do these things, your bankruptcy is more likely to be smooth.

These are just some of the things you should consider when filing for bankruptcy.  For more information, contact a local bankruptcy attorney.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

If You Are a Small Creditor, What Are Your Options In Bankruptcy Court?

You're an employee who has spent months trying to claim back wages that your employer owes.  You finally obtain a judgment against him in state court… and he files for bankruptcy.

Or you are a homeowner who paid far too much for your home remodeling because the contractor lied to you about the cost of materials.  You sue the contractor and get a state court judgment against him… and he files for bankruptcy.

Now what do you do?  Bankruptcy court is bewildering enough for debtors who file, let alone the creditors.  At least debtors usually understand the process before they file; creditors have this bewildering world thrust upon them.  They might then hire an experienced bankruptcy attorney to navigate the process.  If they receive notice of the bankruptcy, but wait too long to file a proof of claim, they could be out of luck.

So how does bankruptcy affect state court claims, and what can you do if you are the creditor?

When a debtor files for bankruptcy, an injunction is created known as the automatic stay.  The automatic stay bars creditors from taking any further action to collect on a debt.  Any action.  If you have taken the debtor to court, even if you are in the middle of litigation, you must stop once the debtor has filed for bankruptcy.  Any actions beyond that point are void.  

The automatic stay lasts only as long as the bankruptcy.  If the bankruptcy is dismissed before discharge, the automatic stay lifts, and creditors can pursue legal action once more.  However, if the debtor does everything right and the automatic stay remains until discharge, what are the creditor's options?

1.  File a Proof of Claim.  If the debtor filed a Chapter 7 or 13 and you are an unsecured creditor (the debt owed to you is not secured by collateral) this must be your first step.  You must file within 90 days after the first meeting of the creditors.  On the proof of claim, you would include your name and address, the amount owed, the basis of the claim, and the type of claim.  

If you don't file a proof of claim until after the 90 days, your claim could be disallowed unless you successfully argue "excusable neglect."  Failure to file a proof of claim means you could be barred from receiving payment distributions from the trustee handling the bankruptcy.  

2.  File a Motion for Relief from Automatic Stay.  This option can be used by secured or unsecured creditors.  A secured creditor (debt secured by collateral) might request relief from automatic stay to ensure "adequate protection."  The secured creditor might argue that the collateral is losing value, and the creditor must be assured that it will receive payments from the debtor.  An unsecured creditor might seek relief from automatic stay for debts that won't be discharged, such as child support or spousal support payments.  An unsecured creditor who is a landlord might seek relief from automatic stay to evict for the debtor tenant for failure to pay rent.

3.  File an Adversary Complaint to Prevent Discharge.  If you believe that the debt came about as a result of fraud or defalcation, you could have your attorney file an adversary complaint under 11 U.S.C. section 523.  You would argue that because of the fraud or defalcation, the debtor should not receive a discharge for that particular debt.  You might also have a claim under 11 U.S.C. section 727, which bars discharge of ANY debts.  The adversary proceeding would be an offshoot of the main bankruptcy case and would proceed very much like any other litigation.  If you win, the debt remains even after discharge, and you can pursue it as before.

There are other options as well, such as requiring the debtor to reaffirm the debt.  However, that option is usually exercised by business creditors (such as auto retailers), rather than small individual creditors. 

Small creditors with unsecured debts often face an uphill battle to get paid.  But don't be discouraged: contact a Bay Area bankruptcy attorney to learn what you can do.

If you need a Bay Area bankruptcy attorney or a Contra Costa employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.