Disputes and Resolving Them Archives

“Lawyer on Contingency Fee?” – Who “Swallows” the Expenses?

Published on June 4th, 2019 by Alan L. Sklover

Sklover Working Wisdom Law Justice Scale

 
“Be careful who you trust – The devil was once an angel”

– Unknown

ACTUAL CASE HISTORIES: Wendy hired an attorney to represent her in a lawsuit against a former employer. Her agreement with the attorney said that attorney would represent her on a “contingency” basis, meaning that the attorney would be paid only if the lawsuit was successful, and then he would be entitled to 1/3 of the proceeds.

The lawsuit was settled for $90,000, and so Wendy expected that she would receive $60,000 (that is, 2/3 of $90,000), and the attorney would get $30,000 (that is, 1/3 of $90,000). It turned out that the lawyer got his $30,000, but Wendy only received $40,000. How come? The other $20,000 went to pay the expenses of litigation.

Les also hired a lawyer to represent him in a lawsuit against his former employer. He also agreed to a 2/3 split for Les and 1/3 split for the lawyer. The case was, unfortunately, dismissed in favor of the employer. So, the lawyer got nothing, and Les got nothing . . . but Les did receive something a few weeks later: a bill for $25,000 for the expenses of the lawsuit. How come? That is what the attorney’s retainer provided for, unbeknownst to Les. Les even lost money on his “contingency fee” case.

In both cases, each of the lawyers’ retainer agreements provided that the client was responsible for the expenses of the lawsuit, whatever that came to. Sad, because it might have said something different if Wendy and Les had noticed it, and asked to change it.

“Clients beware.”

LESSONS TO LEARN: In any relation involving money, it is important to the success of the relation to enter into a clearly written and fully understandable agreement on all of the terms and conditions of the relation. Nowhere is that more important than in the attorney-client relation.

A lawyer’s retainer agreement is a contract, and should be no less clear and no less understandable than any other contract; maybe more so, especially if they anticipate lawsuits, which can be heavily burdened by costs and expenses.

“Contingency Fee” means “A fee comprised of a percentage of payments received, if any.” While you might think that it suggests “payments received after expenses are taken off the top,” it does not say that. It says nothing at all about costs and expenses.

Costs and expenses of a lawsuit commonly include: (a) Court filing fees; (b) process server fees; (c) expert witness fees; (d) Court reporter costs; (e) photocopying costs; (f) messenger and postage costs; (g) costs related to obtaining medical, government and school records; (h) transcript costs; and lots, lots others. In some cases, they end up being in the many tens of thousands of dollars. And, as noted above, if you lose your lawsuit, you just might also have to pay your employer’s legal costs. BIG OUCH!!

The need to raise – and clarify – this issue early on is important. So many clients get mentally and emotionally distracted in the process of hiring legal counsel; others get intimidated. This particular point often gets lost in the process, but is an important one to focus on before the onset of the attorney-client relation.

WHAT YOU CAN DO: When hiring an attorney, make sure you understand the attorney’s retention agreement. Especially if you are considering hiring an attorney on a “contingency” basis, make sure you understand who “swallows” the expenses. Don’t just focus on the possible amount of money to come your way; focus, too, on the amount of money that may leave your wallet, related to expenses.
Read the rest of this blog post »

Giving and Receiving Gifts at Work -Ten Practical Precautions

Published on November 27th, 2018 by Alan L. Sklover

 
“The road to hell is paved with good intentions.”

– Proverb

ACTUAL CASE HISTORIES: Each year, without fail, I get five to ten emails from employees who have either (a) given a gift at work and gotten into trouble for doing so, or (b) received a gift at work that is either causing discomfort or a problem. As you might imagine, most of these calls come shortly before or shortly after the year-end holiday season.

LESSON TO LEARN: Today more than ever, you need to devote a measure of thought to (a) why you are giving a gift, (b) how it may be perceived or misperceived by the recipient (or others), (c) for what reason or purpose another person may be giving you a gift, and (d) whether that gift to you might be a sincere gesture, a thinly disguised bribe, or a “payoff” for past favors. In fact, when giving or accepting a gift at work, it is the potential perceptions of others that can be far more dangerous than your own intentions.

To prevent even the perception of impropriety, and to discourage even the slightest offense, many company policies, laws, rules and regulations have been put into place that address – and in certain circumstances prohibit – giving and receiving gifts at work, and in business affairs.

As examples: How might your gift-giving look to compliance officers who work for your employer? Might a rather expensive gift be viewed by Human Resources as a subtle form of sexual harassment? Might your gift be viewed with suspicion, or even anger, by the husband or wife of its recipient? Is a gift a sign of generosity, or perhaps a disguised bribe? If you give some, but not all, of your office mates gifts, might some of those “left out” perceive themselves as outcasts, or victims of favoritism or even discrimination?

I often say “These days you have two jobs: one is to do your job, and the other is to keep it. This is one context in which that surely applies. Since your gift-giving might result in a perception or accusation of misconduct. Before giving or accepting a gift at work, take just a few moments to review and consider the many possible interpretations of your gift-giving or gift-accepting behavior.

Do I intend to make you paranoid? Yes, I do, but just a little.

WHAT YOU CAN DO: Consider these 10 Practical Pointers on gifts at work:
Read the rest of this blog post »

Work for Hire – Key Words & Phrases

Published on October 30th, 2018 by Alan L. Sklover

Key Words

What is meant by:

Work for Hire”?

A “work for hire” (or “work made for hire”) is an item of creative content that was made on the job. Examples include written works, data analyses, visual presentations, songs, computer code and programs, and useful forms and booklets.

If the creation was made during the period of employment, and is related in some way to the job, the law says that it is a “work for hire” and thus owned entirely by the employer.

What happens if you created it before you started your job, but you used it on your job? Chances are your employer will consider it theirs.

What happens if you created it in your spare time, say, on the weekends? Chances are your employer will consider it theirs.

What happens if it was entirely yours, but you shared it with colleagues, and they used it on the job? Chances are your employer will consider it theirs.

Many employers go further, and insist that their employees sign agreements, often as part of their initial offer letters, that provide that even if you conceived of the idea behind the creation, or improved it, while employed, you must agree it is a “work for hire” and “hereby sign over all rights to the employer.”

As an employee, you need to be vigilant. You can take steps to protect your creative works from being considered a “work for hire” and thus lost.

Steps that you can take include, (i) not sharing your creative works during interviews, (ii) being vigilant about anything you sign, (iii) not bringing into the office or uploading your creative works to your employer’s computers, and (iv) not using your creative works in conjunction with your job.

Still further, you can seek a letter, memo or agreement with your prospective or present employers that protects your creative work(s) from being lost or given up.

You don’t need to lose your rights to your creative works, writings, and inventions. And, you definitely don’t need disputes, lawsuits or legal fees.

You do need to be careful. There is a fierce competition for great ideas, and the valuable creations that come from them.

Forewarned is forearmed.

More information on Protecting Your Creations can be found [here].

For a Model Letter requesting Rights in Your Creations on Your Present Job, just [Click Here.]

Need to send a model memo or letter to make a request or complaint? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2018 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

Did You Know That . . . Recording Calls or Meetings Can Get You Fired

Published on May 30th, 2018 by Alan L. Sklover

. . . recording calls or meetings, even if legal in your state, is probably cause for getting fired at work?

It is common for employees to tell me “I know that it is legal to record a telephone conversation in this state, so I have been recording phone calls and meetings at work, and there is nothing they can do about it.”

That belief is simply and profoundly wrong. These examples should illustrate why:

• It is entirely legal to be drunk in your own home, or in the home of a friend. However, being drunk at work is surely good cause to be fired.

• It is entirely legal to walk around naked at home. However, walking around naked at work is surely good cause to be fired.

• Finally, it is entirely legal to use curse words at home. However, using curse words at work is surely good reason to be fired.

And, so it is with surreptitiously recording of telephone calls or meetings at work. If it is to be done at all, it must be done very quietly, very carefully, and totally discreetly, and not to be mentioned to others.

The seeming increase in employees recording conversations of all kinds at work is, I believe, a reflection of the decrease in trust felt for employers, managers, Human Resources staff, and even colleagues. And, this sense of distrust is being fueled, as well, by what we see between and among our political and other leaders.

Feel distrust at work? I can’t argue with your feelings, but recording conversations or meetings at work is, to my view, more self-defeating than helpful under almost any circumstance you may find yourself in at work.

To read a blog post I have written that provides a more in-depth explanation of tape recording at work, go to “Recording Conversations with Your Boss or HR” What You Need to Know.

Need to send a model memo or letter to make a request or complaint? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2018 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

Don’t be too Rational . . . It’s not Logical.

Published on May 8th, 2018 by Alan L. Sklover

Two Heads Logical Rational

Workplace Negotiating Insight No. 17: Don’t be too Rational . . . It’s not Logical.

Observe and Learn:

It happens quite often . . . clients share with me their frustration, their disappointment and their difficulties at work due to the seemingly irrational behaviors of others.

Underlying these frustrations and disappointments are their views that some other person they are dealing with is not acting rationally.

Here is an example: “If he just scheduled our team meetings on Friday, then the entire team could attend, and that would prevent so many miscommunications.”

Here is another example, “If she would just approve one more staff member on my team, all 12 of my other team members would be more effective, and we would more than make up the cost. I just don’t understand her thinking.”

Often, my response is this: “It is not wise to expect people to be rational because when you do so, you are not, yourself, being logical. Logical people recognize and incorporate into their expectations that people are both rational and irrational, and often more irrational than rational in nature.”

What so many people miss – and in doing so cause themselves untold difficulties – is that so very much of people’s behavior is not based in rational thought, but rather in emotion.
Some people go so far as to suggest that most of human behavior is not rational, but emotional.

Fear, greed, lust, insecurity, control, pity, revenge, and other emotions so often lurk beneath the surface of daily life, and underlie even our loftiest decisions.

Not taking into account these powerful emotional motivators makes you so rational that you are not, yourself, being logical. And often the key to getting whatever it is you seek lies in your appealing not to others’ rational minds, but rather to their emotional needs.

And, this is not a one-way street. As the saying goes, “Understanding other people’s motivations is very hard. Understanding your own motivations is even harder.”

So, in dealing with others at work, navigating and negotiating through your work day and work life, bear in mind that expecting 100% rationality is so, so often simply illogical.

Observe and Learn.
Then Navigate and Negotiate.

Need to send a memo or letter? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

Interested in Membership? It’s free, and has advantages, including discounts on our products. Just [click here.]

Need a private telephone consultation? Just [click here.] Evenings and weekends can usually be accommodated.

© 2018, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

Receive All Our Posts - It's Free!

Monthly Newsletter, Discounts, Events