WHAT IS THE TRUE VALUE OF A LAWYER?

It is my professional responsibility as a lawyer to keep current with legal developments and how they relate to politics, and local, state and national news. This is a time-consuming process. Lawyers have to constantly learn, study, and analyze; their education is never-ending. A recent article quoting Wayne Hassey, Esquire, the managing partner of Maguire Schneider Hassey in Ohio, drew my attention. He is a fan of technology in the law, and he notes that although lawyers formerly formed a closed society, and only they had access to locating, analyzing and interpreting the law, due to the Internet, soon law will be a completely open source, and the public can educate itself.

Mr. Hassey is of the opinion that as everyone can now self-educate themselves about the law, the true value of a lawyer is “trust, advocacy, judgment and duty”. Silly me… I thought those concepts already contributed to the true value of a lawyer. And, many days lawyers question if they have any value, but that is usually after watching lawyers slogging away at each other on political programs, and being pummeled by “news” commentators.

Of course, most lawyers already encounter clients or potential clients self-educating with “Internet law,” and lawyers are not happy with that practice. Just because one reads about the law does not mean that one automatically acquires the legal skills necessary to traverse the increasingly complex legal system, and does not mean that the things one reads about actually apply to one’s situation. In fact, many lawyers are of the opinion that the general public has been harmed by its vague knowledge of the law.  As a result, deadlines are not recognized and often missed, frivolous and superfluous motions are filed, and outrageous financial demands with no relationship to actual losses suffered are made. Therefore the old adage that a lawyer who represents him/herself has a fool for a client has now been expanded to the general public.

Although law is a historic profession, like much of society it is undergoing change, stress and turmoil, and the days when law was considered a stable and rigid profession are certainly gone. It appears that the legal field will experience turbulent times ahead. The large national and international law firms are continuing to invade each other and poach other lawyers, offer teams of lawyers some incentive to leave their current firms, or simply absorb or merge with other firms. Not only are lawyers leaving firms, but the managing partners of law firms are changing firms late in their careers, as are lawyers who have practiced with their original firms for a quarter of a century.

So I say to those Internet “lawyers” who have self-represented and been caught in the extremely complex wheels of the law, I trust that you have learned that the true value of a lawyer is having the advantage of relying on someone who guides you through the complexities of the ever-changing and highly complex laws which control your matter. So when lawyers themselves are experiencing turbulence in the legal field, relying on the Internet for information on how to practice law is not something a layperson should undertake.

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PUT A LITTLE LOVE IN YOUR HEART

As Jackie DeShannon sings in her song, “Put a Little Love in Your Heart”:

Think of your fellow man,
lend him a helping hand
put a little love in your heart…

We are living in cruel times.  Human kindness, decency, and regard for others seem to be on the wane. Obviously, during the history of mankind, boorish behavior has existed and may even have been the norm, but one would hope that at this point in the human journey we would have learned to “play nice.”

Recent incidents involving children make one wonder whether families are taking the time to instruct children on the basic niceties of human behavior. I grew up in Minnesota, not the fictional Lake Wobegon of Garrison Keillor’s imagination, “where all the women are strong, all the men are good-looking, and all the children are above average,” but Minnesota “nice” just the same.  Not only did parents instruct and discipline their children, but neighbors knew each other, and they all assumed responsibility for making certain that all children behaved properly. In fact, the entire community, really everyone we encountered- school teachers and staff, shopkeepers, extracurricular organizations’ staff, the police- kept an eye on children. It was not unusual for parents to receive a call from any of the above to ask if they knew that their child was out late or engaging in inappropriate behavior. I can tell you that when my parents received a call like that, it resulted in some type of punishment for my brothers and me.

Whoo boy! Have things ever changed, and for the worse. I will give you three examples:

First, a recent news story featured a mother and father who appeared at their son’s elementary school, sadly and coincidentally, on a day designated as “Family Fun Day,” to take him out of school early. The mother refused to abide by school protocol, which required that she go to the school’s office to present identification before she left with her son. The protocol was instituted to prevent unauthorized people from leaving with children. Instead of following protocol, the mother insisted on removing her son from the playground. When the principal and vice principal tried to stop her, the mother assaulted them, and the father later joined in.  The mother has been charged with aggravated assault, criminal conspiracy, criminal trespass, simple assault, reckless endangerment of another person, disorderly conduct, and harassment. At the time the news story was published, the father, who ran away, was still being sought by authorities.

Second, a student and her family sued the Philadelphia School District for failing to stop the student from being bullied over her gender-nonconforming presentation (the judge described it as not conforming to “societal expectations for girls in terms of appearance and dress…”). The judge awarded them $500,000, under the Pennsylvania Human Relations Act’s prohibition of sex discrimination, in a unique application of that Act to student-on-student bullying. The girl attended three respective public schools, but the bullying persisted. She developed serious psychological problems, which led to the financial award.

Third, something happened to me recently. A boy of about 12 was walking down the street screaming at the top of his lungs, while I was trying to make a telephone call. I suggested to him that said behavior was not appropriate, as it disturbed other pedestrians. His mother started screaming at me, telling me I had no right to tell her son what to do. She became more enraged by the moment, made some personally insulting remarks to me, and then said she was going to spit on me, which she did, after her group circled me, yelling. Although several people viewed this interaction, when I asked if they had seen what happened, they all shifted their eyes to the ground. The mother’s actions do not portend well for her son. In too many situations these days, people are afraid to step forward and do the right thing, for fear of being criticized or even harmed. When I relayed this incident to others it was suggested that I had no business correcting the boy’s boorish behavior, and it is best to mind my own business. But, that is not how I was raised, and I fear for our society if the rules have changed so that anyone can do whatever they want, anytime they want, wherever they want as others cower in fear.

Let’s all put a little love in our hearts and think of our fellow man, and the world may be a better place for you and me.

 

 

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A LIFELINE FOR THE DISABLED

Although Anthony T. Hincks stated “the only disability that I have, is that I’m human”, that is not true for many people. Although I wish my readers long and healthy lives, many people find themselves at some point in their lives, through no fault of their own, partially or fully medically disabled. I beg you, as well as your family, friends, colleagues and clients, to seek the help of a lawyer when you are applying for long-term (and in some cases short-term) disability benefits, requesting leave under the Family Medical Leave Act, requesting accommodations pursuant to the Americans with Disabilities Act, or applying for Social Security disability benefits.

 

One should not assume that just because they have successfully completed the first level of any of the above application processes, that one is home free. The application process is just the tip of a much larger iceberg that lies below the surface, and, if not handled correctly, can have significant collateral consequences such as undermining a future benefits claim or resulting in the loss of one’s job.

 

The process involved in applying for disability benefits of any sort does not simply involve bringing in a letter from one’s doctor. While this may have sufficed in the “good old days,” the current process is fraught with deadlines, specific requirements, complicated forms, and other landmines that can blow up one’s disability claim. Additionally, if someone is applying for medical leave or disability, it means that they are not functioning at the top of their form and not feeling 100% well. They are often in pain, or suffering from the side effects of medication, which can include fatigue, memory loss, confusion, frustration, depression, and anxiety.  Many people become so upset trying to comply with the requirements of their workplace’s human resources staff, or the staff of a disability carrier, when applying for benefits, that they become frustrated and give-up, or make errors which could impact their ability to receive or continue to receive benefits in the future.

 

Additionally, there is frequently a lack of communication between the employee, employer, insurance carrier, or the third-party intermediary which handles disability, or leave claims for the employer.   The employee may assume that the employer is aware of their medical condition because they have provided their medical information to a third-party carrier or intermediary. Or, often the employer has assigned the medical leave and benefits process to one or more third parties for the purpose of removing themselves from the process in order to preserve the privacy of their employees, or to prevent supervisory staff from becoming biased against a disabled employee. This enforced lack of communication can lead to situations where the employee and the employer are like ships passing in the night. Both parties may mean well and believe they are properly handling the situation, yet they never connect. This can lead to an employee being terminated in spite of a disability because the employer does not have the full understanding of their situation, and an employee feeling they were terminated inappropriately or in violation of a law, despite their employer being fully aware of their situation, or so they thought.

 

Further, doctors do not control employers. This is news to many employees who believe that simply because their employers ask for their doctor’s input, that the employer is legally obligated to listen to the doctor’s recommendations. That is not correct. The law requires a certain level of cooperation from employers, but employers are generally free to control their workforce.  Many employees have lost their jobs because their doctors have asked that they be permitted to be out on leave beyond the time permitted by the law, or have recommended that the employee be permitted to return to work part-time, when that is not an option in their workplace or job, or have stated that the employee should be placed in a different job, when that is not probable, possible, or required of an employer. Employers are generally not required to adhere to the above suggestions. Each workplace has different rules, restrictions, policies and procedures, or even collective-bargaining agreement language to consider. These must be considered alongside local, state, and federal laws.

 

By way of example, we had an unfortunate client who was permitted to take FMLA leave for a mental health condition. During that leave she required back surgery, which kept her out of work for three additional months. The employer regularly asked her for medical updates, and at some point inquired of her doctor when she could return to work. The doctor gave an estimate of a return to work date, but after that date passed, and hearing no further from the doctor or our client, her employer terminated her because of her lack of communication. The client alleged that she did not have to provide a follow-up to her employer because her doctor had not yet cleared her to return to work. The employee thereafter had an option of applying for medical disability retirement, as she was a federal employee, but she did not apply in a timely fashion as she felt she should be permitted to return to her original position. By the time her appeal process ended, she had missed her filing deadline for disability, and the employer chose not to return her to her employment.

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The Law Will Hunt You Down

Each year my Firm receives hundreds of telephone calls from people and company owners who are seeking advice or representation for their legal issues, and our lawyers spend considerable time discussing their issues and legal options with them. Yet many of those telephone calls end with the callers simply fading away, or deciding to postpone action for another day. My questions to them are “where do you think you can go where the law will not find you?” or “how is something going to happen if you don’t take some action?”

Perhaps it is human nature to procrastinate, but it is mindboggling to me that people do not undertake the legal action they should be taking in a timely fashion to protect themselves and their families from future problems.  Some examples follow of my experiences:

Real Estate: 

Husband and wife divorced 10 years ago. Wife could not afford a lawyer so there was not a property settlement agreement negotiated or determined by a judge. The property was purchased while the parties were married, but the deed is only in Husband’s name. Wife wants to know what she can do about placing the property in joint names with Husband, or forcing a sale of the property so she can claim a share. When I advised Wife what she can do and what she should do, her response was “okay,” and that was it!

 Estate:

A caller’s father, who was a widower, died 10 years ago without a will. The father’s children, including the caller, agreed that one of them could administer the father’s estate, which included real estate. The agreed-upon administrator permitted her son to live in the father’s house rent-free for 10 years, and the other siblings have never received any distribution from the estate. The caller doesn’t think anyone is or has paid real estate taxes for some time because she thinks the house is up for sheriff’s sale. When I told her what she had to do she said she would talk to her siblings, I didn’t hear from her again, and that was it!

 Collections:

A caller called to say that her bank account had been frozen. There are only a couple ways in which this can happen. In the private sector in order to execute on a bank account one must have a valid judgment. A valid judgment occurs when one is sued in a court and either did not defend, defended but lost the case and did not appeal, or was not properly served and did not know about the lawsuit. The response to my questions from callers with similar problems is invariably one of the following:

  • I could not afford an attorney and did not defend the lawsuit.
  • I don’t remember ever receiving notice of the lawsuit.
  • I didn’t know they can take funds from my bank account or take my personal possessions.

When a judgment has been taken we would have to investigate if the judgment was appropriately taken or if service of the underlying lawsuit was proper. If we notice a problem we try to open the judgment, which must be agreed to by a judge. Thereafter the case may have to be retried or settled by negotiation. A judgment does not disappear until many years have passed via state statute, or it is marked satisfied by the party bringing the lawsuit.

Sometimes people have paid the judgment but did not request or know that the judgment must be marked satisfied, and it may remain on their record or credit score, or impact their ability to sell real estate in the future.

 Landlord/Tenant:

A caller asked what he needs to do to become a legal landlord in Philadelphia. I discussed licensing and lease language with him, and the pros and cons of operating as a corporation, as well as the tax ramifications. He did not even want to spend a small amount to learn the legalities of his future business. If this man does something inappropriately, and runs afoul of the city or taxing authorities, which will likely happen as he is not interested in learning the correct way to operate, it will cost him thousands of dollars to remedy the situation.

 Traffic Tickets:

Traffic tickets for moving violations or parking tickets do not disappear. Many years down the road, even after someone has moved to another state, they often find that their license has been suspended because of tickets they have ignored, or in some cases, tickets which have been accrued by others to whom they have loaned their cars or to whom they did not legally transfer title. Many states have reciprocal agreements with each other and will honor action taken to suspend a driver’s license due to tickets in a different state.

The law is a living breathing system. It will not go away just because one closes their eyes or tries to ignore it. Ignoring that one has been sued – or failing to take action in a timely manner within the statutory deadlines required under the law – will only come back to haunt one at a later date.

 

 

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Buyer Beware

The general public does not seem to be aware that purchase, transfer, ownership and/or sale of real estate are often fraught with problems which are created by people taking legal shortcuts or failing to conduct due diligence, which means investigation and assessment into the quality and validity of the purchase, transfer, ownership and/or sale of real estate. As a result, many people find themselves in real estate situations which are confusing, expensive, and, often, regrettable. This doesn’t have to be the case if certain steps are taken. As the axiom goes — “an ounce of prevention is worth a pound of cure.”

The buyer alone bears responsibility for due diligence.    So, buyer be beware of:

Purchase, Title or Transfer Issues:

 Buyer Beware #1: Do NOT transfer title to a property into your name or into the name of an entity controlled by you without having an insured title search conducted by a reputable title company,  and an insured title report provided to  you as the prospective buyer.  Liens and judgments, even in the names of prior owners, or even in incorrect names, can attach themselves to the property, and once the title has been transferred to a new buyer/owner, they become the obligation of the new owner.  Any liens, judgments or issues which are attached to the property must be cleared prior to purchase of the property, and the method of payment and computation of amount due are at the discretion of the lienholder.,  If an agreement cannot be reached regarding liens, judgements or issues prior to purchase, settlement needs to be delayed until  agreements are reached, or an action may be required in court to clear title.  A court action in some counties must proceed  through an entire trial, even if the matter is unopposed, which can cost thousands of dollars.  If proper title insurance and clear title cannot  be provided, if the next buyer/owner does seek a title report, title may often not be able to be legally transferred due to some prior legal problem.  People often say they KNOW that the title is clear because their relative or friend told them so, or paid their bills on time, but that is not sufficient.

Buyer Beware #2: A power of attorney in Pennsylvania may require specific language in order to transfer a house or other parcel of land, condo or co-op shares, so it is a good idea to consult an attorney to determine if the power of attorney one wants to use  is valid or has the current language required under the law.   These concerns extend not just to description of an asset being transferred, but who is to receive the transfer, since if it is a gift, specific language is required.  As the law regarding durable powers of attorney has changed over the last few years, any power of attorney should be reviewed and updated to take into account current laws.

Deed Issues:

Buyer Beware #1: Do not assume that a deed which is maintained at home or in a safety deposit box, or even filed with a government office, is the most recent deed on file.  Fraud or forgery may have occurred, especially in Philadelphia, or numerous and conflicting deeds may be on file, or could have been executed before death and then filed post death.  A government office will usually file any document and does not check its legitimacy or have the legal responsibility to do so.  That is the reason that a formal title search is required.

Title or Title Insurance Issues:

Buyer Beware #1: When you buy or transfer a property, purchase formal title insurance to insure the search and transfer. Although a lender requires such insurance, in private sales or other instances title insurance is not required, but should still be purchased to protect the new buyer/owner. A reputable title company will represent you if litigation arises, and will take the time to solve any title or escrow issues that may arise. A reputable title insurance company may also agree to resolve or waive some issues regarding satisfaction of prior debts or liens, judgments or debts which are not legitimately on the report.

Real Estate Tax Issues:

Buyer Beware #1: DO NOT pay real estate taxes, or make an agreement to pay real estate taxes with a local government authority or its agent without first determining if you are the legal owner of the property. These entities will accept tax payments or make agreements with anyone, and they do not determine who is the legal owner of the property, and can’t be relied upon to protect your interest. People often assume that because they have been left the house via a will or inherit the property by law, they can transfer the title into their name without undertaking the required probate process. That is not correct. We have also encountered people who are paying taxes on property foreclosed upon by mortgage lenders or which has been sold at sheriff’s sale, and is no longer their property or their family’s property.

Inheritance Issues:

Buyer Beware #1: Just because you took care of an owner of the house does not automatically entitle you to more of a share of the house than any other heirs, when that owner dies.  A family member is presumed to provide services out of love and affection and not for compensation absent an explicit written agreement addressing the scope of services and method of compensation.

Buyer Beware #2: Just because your name or one or both of your parent’s names are on a deed, does not mean that you automatically inherit the property as there may be faulty language in the deed stating that the parties are tenants in common and not joint tenants with the right of survivorship.  If the deed language states “tenants in common” the deceased’s owners share passes to their estate and not to the other named person/people on the deed. Also, if one or more of the parties’ names in a deed are incapacitated or deceased, etc., a new deed cannot automatically be drafted.  Similarly, if the deed was owned as a husband and wife, and there was a divorce, but there is no agreement or order dividing the property, it is automatically owned by each ex-spouse 50/50 and each 50% share passes to the respective spouse’s estate.   This may create complex inheritance issues, so even if divorce counsel was retained for the divorce, an estate planning and real estate attorney should review the situation.

Buyer Beware #3: Inheritance tax may be due on a property that one inherits, if it bears a Pennsylvania address.  Non-payment or late payment of inheritance tax can lead to interest and penalties, tax liens, and possible action by the Department of Revenue in removing the administrator/executor of the estate and other actions, and the inability to sell or transfer a property at a later date if the inheritance tax is not paid. Inheritance tax is different from other types of taxes, and people sometimes confuse them. Inheritance tax can also have deductions taken against the amount owed, and the amount owed may depend on a different property value than originally assumed, so it is a good idea to consult an attorney before paying inheritance tax.

Buyer Beware #4:  If a deceased real estate owner  was in a nursing home or received care at home paid for by a grant from the Department of Human Services under Medical Assistance or Medicaid, before his/her death, the property  would likely have to be sold to reimburse the state for some payment, with some exceptions. An attorney should be consulted prior to signing any documents with a government entity for care of a relative or friend.

Buyer Beware #5: If you decide not to open an estate and just live in a house which you believe is yours, problems may arise with:

  • Inheritance tax still being due and, if not paid, accruing interest and penalties or possible action by the Department of Revenue.
  • An heir does not have the right to live in a house rent free for more than the first 6 months of someone’s death, which is subject to court review and changes in case law.
  • Any improvements or repairs to the property may be considered gifts to co-heirs although they aren’t residing or supporting or improving the property.
  • If more than 21 years pass and an estate must be opened, court approval is required.
  • If one of the heirs of a house owner dies after the house owner dies, an estate needs to be opened for the deceased heir as well as the deceased house owner.

So, buyer beware.  It is highly recommended that an ounce of prevention be taken by consulting an attorney.

Faye Riva Cohen, Esquire, President of the Law Office of Faye Riva Cohen, P.C., focuses her practice on labor, employment, civil rights, real estate and elder law.  You can learn more about her firm here: www.fayerivacohen.com.

 

Faye thanks Adam S. Bernick, Esquire, for his contributions to this Blog post.

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The Dirty Secrets of Sexual Harassment: A Behind-the-Scenes Perspective

The topic of sexual harassment has been trending in the news, prompted by the revelations made against Harvey Weinstein and many other men by women who allege harassment by these men, some of these allegations occurring many years ago. There are conflicting opinions as to whether and how to report sexual harassment, what the likely outcome of said reporting will be for the accuser, and even what is interpreted as sexual harassment by women of various ages. For example, in October, 2017, The Philadelphia Inquirer ran an interview with a seasoned lawyer about her experiences in handling sexual harassment cases. Although her responses appeared a little blunt, they resonated and affirmed not only my experiences but, indeed, the experiences of any seasoned employment lawyer in handling such cases.

The interview unleashed a barrage of vitriolic criticism attacking the lawyer, with many people expressing dismay at her advice and conclusions, and some even calling her views dangerous. Therefore I have decided to examine some of the lawyer’s comments and compare them to the reality of pursuing a sexual harassment claim.

Is it a bad idea to complain about sexual harassment in the workplace?

That depends on the workplace and whose responsibility it is to handle the complaint. The law generally requires an employer to investigate a sexual harassment complaint and remedy it if the complaint is substantiated. The investigation is under the sole control of the employer. In an investigation, the accuser and the accused start off on an equal footing, and quite often the accused is someone’s supervisor. That supervisor is often in their position because the company’s higher-ups see something to admire and promote in the supervisor. Frequently, this perception already skews the investigation.  An employer can conduct an investigation (or say they did) without providing the accuser with information about how that investigation was conducted, and who was interviewed. The accuser is never present for the interviews, and often the people the accuser suggests be interviewed are not.

Even if the employer decides to remedy a complaint, that remedy usually does not involve terminating the accused harasser. It may involve training, or moving the accused or the accuser to another position or department or location. When the accuser is moved to a new position, they face the risk of retaliation, as most companies no longer want the accuser as an employee because they are concerned that the accuser will accuse another supervisor.  Often the new supervisor of the accuser, of either sex, is leery of the accuser, who is often labeled as a complainer and not a team player. Even worse, if the employer finds the accuser’s allegations not to be substantiated, which is possible as often there are no witnesses of the harassment, the accuser is considered to be untrustworthy.

The lesson to be learned is if you are going to complain about sexual harassment you need to be aware that said complaint may cost you your job. If you don’t care about losing your job, or if you plan to leave anyway, that is fine. But if you leave there probably won’t be an investigation, so the accused can then go on to harass other people. Even if there is an investigation, it will be private, as will any remedy. Consequently, others won’t learn about your efforts and the remedy won’t necessarily have a deterrent effect on the accused.

Is Human Resources Your Friend?

“Human Resources (“HR”) is not your friend,” the lawyer stated in the article. This is true, with few exceptions. HR employees are paid by the employer and their job is to protect the employer. It is human nature for people to not bite the hand that feeds them. It is HR’s decision as to whether they want to conduct an investigation of a complaint, who will conduct the investigation, and what the remedy will be. An HR employee may start out as sympathetic, but over time, chronic complaints will often turn HR against the complainer.

Are the Client’s Goals Realistic?

The lawyer’s final comment was that she only accepts clients with realistic goals, such as seeking a fair financial settlement, as the law doesn’t deliver “justice” or “vengeance.” Those who disagreed with this assessment argued that financial settlements will allow complaints to be swept under the rug and will allow other women to continue to be harassed.

Although clients often say they want their day in court, the reality is that to pursue a sexual harassment complaint to litigation is financially costly. Litigation routinely can cost hundreds of thousands of dollars and continue for years. Even if an attorney agrees to accept the case on a contingency fee basis, the costs are often very substantial, and someone, normally the accuser, has to pay the costs.  Also, there is the possibility that the accuser, if she loses her case, will have to pay the opposing party’s costs. The end result may not really impact the harasser, as the employer or the insurance carrier will bear the brunt of an award of the accuser prevails in her case. In some cases the accuser has been sued by the accused for damages, and having to defend such a lawsuit can also be costly, and may result in an award of damages.

Additionally, the components of a sexual harassment complaint are often more emotionally devastating than allegations of other types of discrimination. If the case proceeds to litigation the accuser must expose her life and personal history to examination, which is embarrassing and may result in victim shaming.

Some of the lawyer’s critics pointed out that government agencies, such as the Equal Employment Opportunity Commission (“EEOC”), exist for the purpose of filing, investigating, and remedying sexual harassment complaints via sanctions and the imposition of huge monetary damages. That is not the reality of how these agencies handle these complaints. The EEOC prefers big impact cases. If one examines their settlement history, their settlement numbers for individual cases are not impressive.

Agencies are often understaffed and underfunded, and investigations, if they are conducted, are not conducted by attorneys, but by folks that generally interpret the law in a straightforward manner, without creative or nuanced interpretations that private lawyers develop. Most of these investigations are inconclusive or do not support the accuser if the employer provides some form of pushback.

So while a lawyer’s advice may seem abhorrent – that one should cope with sexual harassment, find other women to support you, hang in there, try and leave your department, try to outlast the accuser, or quit – this is generally an unfortunate reality and one of the dirty secrets of sexual harassment.

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Faye Riva Cohen, Esquire, president of the Law Office of Faye Riva Cohen, P.C., focuses her practice on labor, employment, and civil rights law.  You can learn more about her firm here: www.fayerivacohen.com.

 

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A Lesson Learned From Taylor Swift On the Meaning of Damages

The composer and singer, Taylor Swift, recently won a sexual assault lawsuit against a former radio host. He initially sued her stating that she had caused his dismissal. She countersued because she wanted the trial to serve as an “example to other women.” Swift only sought a single dollar in damages, which the jury awarded her.

Yes, Even $1.00 Award Has Implications       

The dollar awarded to Swift brings up some interesting points about how damages are calculated under the law. There are two parts to every case:

  • The first part is liability, meaning that one has to first prove their case before they are entitled to damages. Many people spend most of their energy on the facts of their case, as they are so personally involved in it.
  • Yet, once they are able to prove their case, the next step, and often the most important step, is for them to prove how they were damaged. I often tell clients that even if they receive one dollar in a negotiated settlement, mediation, arbitration, or judge or jury award, that they have prevailed under the law. The one dollar amount is significant because that one dollar can trigger a statute which awards the prevailing party fees and costs in certain areas of the law, including areas of civil rights law.  These awards of attorney’s fees and costs can often be quite large.

Would you be pleased if you only received $1.00 in damages?  No doubt, most people wouldn’t.  The question of how damages are calculated can sometimes be mysterious and it’s good to understand this upfront. The concept of damages is not as simple as one would think. There are different kinds of damages that can apply to different areas of law, and the terms “statutory,” “compensatory,” “liquidated” and “punitive” refer to the types of damages which may be available depending on the type of lawsuit one brings. Damages can sometimes be enhanced by added-on interest or a multiplying factor due to the nature or type of law being pursued, because the lawsuit conferred a benefit to a class of people or the general public, because the lawsuit produced some drastic change in the law, or as otherwise permitted via statute or case law. Many clients feel that they are entitled to receive damages due to their “pain and suffering,” “humiliation,” “emotional distress,” “mental anguish,” or “loss of enjoyment of life,” but these types of damages are not available in all areas of the law.

Is Your Expectation of Damages Supported by the Facts?

Damages generally require an underlying basis in fact. In certain areas of the law, such as personal injury, damages are easy to calculate as they are based on discrete items such as lost wages, and expenses relating to medical care and treatment. In other areas of the law, damages are difficult to calculate, and some damage requests are outside the parameter of what the law or the decision makers are able or willing to do, such as restoring someone to their prior occupation.

What We Think We Deserve May Not Be What the Law Thinks We Deserve

Many people have unrealistic expectations of the damages to which they are entitled, either because they feel that someone has to “pay” for what has happened to them, or because they have heard about large awards received by others, and do not understand the circumstances that distinguish their lawsuit such as forum, jurisdiction, decision-maker, location, the statutes involved, and the factual details of their case. They also do not understand that these large awards are sometimes reduced or overturned at the appeal stage of the legal process, or that the award may never be able to be collected, like the Silverman family who has never been able to collect on their judgment against OJ Simpson. Other times, such as in employment cases, the damages are greatly reduced as they are offset by the earnings or other benefits the terminated person has received, which must be offset against their lost wages.

Our Kudos to Taylor Swift

It is highly likely that Swift would have received a large financial award had she sought it, as many celebrities do.  Quite often it is their very celebrity that leads to their victory or a high award, as well as their ability to afford excellent and expensive attorneys. I give Swift credit because she stood up for her principles. On the other hand, few people can afford to fund an expensive lawsuit in order to arrest their own principles. Bear in mind that someone has to pay for a lawsuit. That someone can be the parties to the lawsuit, their lawyers, or some third party who agrees to fund a lawsuit due to personal or public interest.

I am Faye Riva Cohen, Esquire and am a Philadelphia attorney who has been practicing law since 1974.  I am the president and managing attorney of both the Law Office of Faye Riva Cohen, P.C. and Legal Research, Inc.  You can find more about my law office here  and Legal Research, Inc. here.  After my many years of experience, I would like to share my thoughts with you!  You can always contact me via email at frc@fayerivacohen.com, telephone at 215-563-7776, facsimile at 215-563-9996, or in person at 2047 Locust Street, Philadelphia, PA 19103.  Please note that nothing on this blog should be construed as legal advice; every case is unique and the appropriate action for it must be individually considered.  A lawyer/client relationship is not established unless you execute a fee agreement with one of my offices.

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