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January 20, 2016 In Auto Accident, Business Litigation, Civil Litigation, Contracts, General, Personal Injury

Can I Represent Myself in General Sessions Court?

Can you represent yourself in General Sessions Court?

Yes, you may always represent yourself in any court matter – it’s called proceeding pro se.  However, you may only represent yourself.

If the true party in the case is actually a corporation or limited liability company (LLC) – even if you are the sole shareholder/owner/member – then you may not represent “yourself” because, technically-speaking, a business organization is a distinct legal entity separate and apart from you as a natural person.  And unless you are a lawyer, you cannot represent another person or entity, or else you would be guilty of the unauthorized practice of law, and no Judge will allow that.

Should you represent yourself in General Sessions Court?

If you are the party in the case as an individual, or as a sole proprietorship, then you may always represent yourself.  The real question, though, is should you?  Many people believe General Sessions Court is a “small claims court” similar to the TV court shows where two parties stand at podiums and, with great drama, show or tell the Judge whatever they want. While it is true that General Sessions Court disputes are typically limited to smaller matters under $25,000, and further that any judgment can be appealed to Circuit Court, it would be a mistake to assume that General Sessions Court is somehow informal or easy.

In many cases, litigating in General Sessions Court is easier and less expensive than litigating in Circuit Court. However, General Sessions Court is serious. All parties, even those representing themselves, must follow the Rules of Court and the Tennessee Rules of Evidence and must observe the proper rules of courtroom decorum.  You cannot simply tell or show the Judge whatever you want.

So the question really is this: do you know the Tennessee Rules of Evidence? Do you know what makes a piece of evidence objectionable? Do you know how to lay a proper foundation to get a document or a witness’s testimony admitted in evidence? Attorneys are trained to know the rules and to use them to their client’s advantage. You may have a perfectly winnable case and lose it because you do not know how to properly present evidence.  We’ve seen it hundreds of times.

Many people say they cannot afford an attorney, while others simply don’t want to pay an attorney to handle something they believe they can handle themselves.  However, is the potential of recovering nothing on your claim – or, conversely, subjecting yourself to a judgment that will be reported to creditors – preferable to paying an attorney fee?

Helpful Resources for pro se litigants

If you truly can’t afford to hire an attorney, here are a few resources you may find helpful:

Rules of General Sessions Court (Shelby County)

General Sessions Court–Civil Case Forms

Attorney of the Day Courthouse Project. Each Thursday Memphis Area Legal Services hosts an advice clinic at the Shelby County Courthouse at 140 Adams Avenue in Memphis.  Volunteer attorneys meet with walk-in clients and provide advice and counsel.  The clinic starts at 1:30 p.m. in Room 134 of the Courthouse.

Saturday Legal Clinics. These clinics, also hosted by Memphis Area Legal Services, operate on a first come, first served basis and provide opportunity for members of the community to meet with an attorney to discuss their legal issues.  Volunteer attorneys provide advice, counsel, referrals.   Memphis clinics are held the second Saturday of every month at the Benjamin Hooks Main Library, 3030 Poplar Avenue, starting at 9:30 a.m. until 12:30 p.m. Covington clinics are held on a Saturday every other month at First Presbyterian Church, 403 S. Main Street, starting at 10:30 a.m. until 1:30 p.m.

We practice in General Sessions Court. 

The attorneys at Patterson Bray regularly practice in General Sessions Courts in Memphis, Shelby County. We know the rules and we will use them to effectively present your case or defense to the Judge. We represent both Plaintiffs and Defendants. If you have a pending General Sessions case, or if you are thinking of suing someone in General Sessions Court, and you’d like to talk to us about it, please call us at 901-372-5003.

January 13, 2016 In Business Litigation, Civil Litigation, Contracts, General

Can We Make Them Pay My Attorney Fees?

Can We Make Them Pay My Attorney Fees?

Can we make them pay my attorney fees? This is one of the most common questions we receive from our clients who find themselves involved in lawsuits. Unfortunately, the answer in most cases is no. Tennessee follows the “American Rule” which means that each party in a lawsuit pays their own attorney fees, no matter who wins. There are, however, exceptions to this rule. Two of the most common exceptions are as follows:
(1) Certain state and federal statutes allow the prevailing party to recover attorney fees. Examples: certain consumer protection, civil rights, and employment claims, etc.

(2) A contract provision where the parties to a contract have agreed that the prevailing party in a dispute will be entitled to recover attorney fees. Examples: leases, commercial contracts, collections, home sale contracts, etc.

Your attorney should examine the allegations in the lawsuit and any contracts that may apply to determine whether it is possible for you to recover your attorney fees. If you are a business person and you don’t have attorney fee provisions in your contracts, consider adding them. Here are some answers to additional questions we are frequently asked about attorney fees:

“This lawsuit is frivolous! Can we make them pay for all the money I have to spend dealing with this?” The standard for “frivolous” is pretty high. Even lawsuits that are eventually determined to have no merit are not necessarily frivolous. Very few cases are. Unless your case meets one of the exceptions, you probably can’t recover your attorney fees, even if you win.

“My contract provides for attorney fees. What are the chances I actually recover them?” If you are the prevailing party and you obtain a judgment, that judgment should include an award of what the judge deems a reasonable attorney fee. Your award may or may not equal what you actually paid your attorney. If your case is resolved through settlement, the attorney fee provision is often used as a negotiation point to increase the overall amount of money you recover.

“If the judge awards me an attorney fee of less than what I actually paid my lawyer, does my lawyer have to give my money back?” It depends on what your fee agreement is with your lawyer, but in most cases, the answer is probably no. Your fee agreement with your lawyer is independent of any judgment you may recover from the opposing party.

If you need help drafting an appropriate attorney fee provision for your contracts, or if you have a question about recovery of attorney fees in a lawsuit, please call us at 901-372-5003.

November 16, 2015 In Business Litigation, Civil Litigation, Contracts, General

Construction Contract? Confirm Your Contractor is Properly Licensed First!

Construction Contract? Confirm Your Contractor is Properly Licensed First!

I spent a good amount of time one week working with a client to cancel his construction contract after learning that the contractor was not properly licensed to build his new house. What started out as an exciting time in this client’s life turned out to be a big mess.  I was eventually able to work out a solution with the unlicensed contractor, but not before he had hired legal counsel of his own.

In Tennessee, residential and commercial construction contractors are regulated by the Tennessee Board for Licensing Contractors.  Per the Board,

A contractor’s license is required prior to contracting (bidding or negotiating a price) whenever the total cost of the project is $25,000 or more.

For residential construction, licensed contractors may contract to build houses so long as the total cost of the project does not exceed the monetary limit established by the Board.  A contractor may apply to have his limit increased after submitting documents showing financial stability.

Frequently however, home builders enter into contracts with customers for projects that exceed their monetary limits.  Many problems can come into play when this happens.  Contractors jeopardize their licenses and expose themselves to fines from the Board. Contractors open themselves up to not being able to collect under the terms of the construction contract, even if everything goes well.  Customers run the risk of the project being shut down and having to incur additional expenses. Customers may even have to hire a replacement contractor.

Before Your Enter Into a Construction Contract. . .

Check to see if your contractor is properly licensed!  Construction litigation  can be lengthy, complex, and expensive. Many problems can be avoided if customers do a little quick research to confirm that the contractor they want to use is fully and properly licensed.  You can do that by clicking here.

If you need a construction or contract lawyer, call me at (901) 372-5003 or email me here. 

By: Chris Patterson

Patterson Bray PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

 

 

November 14, 2015 In Business Litigation, Civil Litigation, General, Personal Injury

Put Up or Shut Up is Back

Put Up or Shut Up is Back

In what is generally viewed as a win for defendants in lawsuits, the Tennessee Supreme Court recently reverted to a more lenient summary judgment standard used by courts in Tennessee prior to 2008.  

A summary judgment motion is a procedural tool where a party (typically a defendant) can ask the court to “short circuit” a lawsuit by asking the court to dismiss the suit because there’s no dispute over any material fact, and the case can be resolved on legal grounds.  In federal court, and in Tennessee state court prior to 2008, a defendant could prevail on a motion for summary judgment by simply pointing out that a plaintiff had insufficient evidence to support his claims, even if the court were to assume that all of that evidence was viewed in the light most favorable to the plaintiff.  In order to survive the motion and keep the lawsuit alive, the plaintiff would have to come forward and identify relevant evidence showing that an actual trial was, in fact, necessary.  This summary judgment standard is often referred to as the “put up or shut up” standard since it required a party basically to go ahead and show his cards if he wanted to avoid a dismissal.

In its 2008 opinion in Hannan v. Alltel Publishing Co., the Supreme Court drastically altered the summary standard to make it harder for a party to get a case dismissed prior to expending considerable time and expense on discovery.  Rather than being able to argue that the plaintiff should “put up or shut up” during the pre-trial stage, the Supreme Court held that a defendant would instead have to affirmatively disprove the plaintiff’s claims in order to avoid a trial, and/or otherwise show that the plaintiff would not be able to prove his claims at the trial. 

A few weeks ago, in Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court essentially reversed itself, overruling Hannan, and stating that Tennessee courts would again apply the “put up or shut up” standard.  The Court explained that in retrospect, it believed it had misapplied the law in Hannan, and further that the tougher summary judgment standard adopted in Hannan had proved to be unwise and unworkable in practice.

By reverting to the pre-Hannan “put up or shut up” standard, the Supreme Court made it much more likely that certain cases will be resolved on legal grounds without the need for a trial.

August 18, 2012 In Business Litigation, Civil Litigation, Contracts, General

Why it Pays for Small Business to Use a Small Law Firm

 

Why it Pays for Small Business to Use a Small Law Firm

If you run a small business, you have no doubt heard the usual reasons why you should consider taking your legal problems to a small law firm instead of a mega-firm:

  • Lower hourly rates (no subsidization of fancy offices, boxes at FedEx Forum, flashy overhead, etc.)
  • Better responsiveness (no “big shot” partner egos to deal with)
  • More attention (smaller pond = bigger fish)

All of which is true.  But how about this one:  BETTER SOLUTIONS!  We are a small law firm for small business.

Small Business + Small Law Firm = SUCCESS

Here is a real-life example of how a small law firm ended up being a better fit for the needs of small business.

A construction contractor client came to our firm with a problem.  Business had gotten slow, and the business decided to terminate a few employees, including one of its carpenters.  The client allowed the employee to finish out the workweek and went ahead and cut his final paycheck through the end of that week.  Unfortunately, the employee injured himself on the job just a few days later (his second-to-last day at work).  He understandably filed a workers compensation claim for his injury, to which the client had no objection.

However, the employee later went on to file a federal lawsuit alleging that he had actually been fired in retaliation for filing a workers comp claim – a claim which was patently untrue.  After all, the decision to terminate the employee was made before he had ever even injured himself.

The key piece of evidence ended up being the final paycheck which was dated prior to the date of the injury.  The employee claimed, however, that the check had been forged and backdated.  This allegation was potentially troublesome because it basically boiled down to a “he said, she said” dispute that would normally be a classic question of fact for a jury.  This meant the client was potentially staring down the barrel of a long, drawn out lawsuit ending with a trial.

Which is where the benefit of having a small law firm kicked in.

Small law firms think like small businesses because we ARE small businesses.  And so we know a thing or two about the practical, hands-on side of payroll and accounting software.  We use it ourselves every day.  And so we knew, for example, that most small business software packages contain built-in, anti-fraud features including a hidden, tamper-proof transaction log.  And while the actual purpose of having a tamper-proof transaction log is to protect the small business itself (by preventing bookkeeping employees from having the ability to manipulate financial records in order to hide embezzlement), the information proved invaluable for our client in this particular situation.  Indeed, we knew the client could access the transaction log which ultimately proved with a precise date/time stamp that the employee’s final paycheck had indeed been cut before he was  injured.

This single piece of information was ultimately sufficient to convince the employee’s attorney that the case had no merit, and so the lawsuit was literally resolved within mere days.  Which was all the more important because the client’s annual audit was only weeks away, and it desperately wanted to avoid having to disclose a pending lawsuit.

WE ARE SMALL BUSINESS.

Small law firms have a different, and arguably more relevant, knowledge base and experience than mega-firms.  We better understand the needs and perspective of small business, because we ARE small business. If you are a small business, let our small business help you. Call us today at 901-372-5003 or email us here.   Or visit the Business & Commercial Litigation page on our website to learn more.

We’re conveniently located near the intersection of Walnut Grove and Germantown Parkway in Memphis. Easy access to our office means you are in and out when you need to visit us, so you can get on with running your business.  Oh, and there’s free and plentiful parking here. No parking garages necessary!

August 13, 2012 In Business Litigation, Civil Litigation, Estate Planning, General

Legal Problem Solving: Does Your Lawyer Merely Work the Problem? Or Solve the Problem?

Legal Problem Solving: Does Your Lawyer Merely Work the Problem? Or Solve the Problem?

Let’s discuss legal problem solving. Does your lawyer merely work the problem, or solve the problem? There’s a difference, you know.

  • A cookie-cutter response vs. a creative solution
  • Reaction vs. a plan of action
  • “Winning” the lawsuit vs. avoiding the lawsuit
  • Churning legal fees vs. finding a cost-effective solution up front

I saw a blog post once detailing a masterful stroke of legal genius by the lawyers for Jack Daniels, and wanted to share it. It’s a prime example of the type of culture and approach we cultivate at Patterson Bray– solving the problem vs. merely working the problem.

Legal Problem Solving at Patterson Bray

Our clients don’t just want legal answers.  They want solutions.  So at every stage our goal is to focus on the following question to the client:

“What do you ultimately want to accomplish?”

Sometimes that means we have to act not just as legal advisors, but also legal counselors – asking questions, raising issues the client may not have considered, and then sometimes even gently prodding and steering clients to think beyond their immediate short-term emotions and goals.

In virtually every case, our clients appreciate our focus on long-term solutions.  That might mean, for example, our client accepting a short-term loss in exchange for saving a relationship with a customer and securing new business, renegotiating as opposed to litigating a contract, and realizing that the cost of vindication might sometimes outweigh the perceived benefits. Many clients have even remarked how unusual it is that a lawyer would suggest an option that they weren’t even aware of, and that would generate less in billed fees for the lawyer.

But, then again, that’s how we internally answer the very same question we put to our clients:

“What do WE ultimately want to accomplish?”

We want to uniquely serve the best interests of our clients so that they ultimately come back.  And refer their peers, colleagues, friends, and family.

And they do.  And we’re confident you will, too.

January 3, 2012 In Business Litigation, Civil Litigation, Contracts

Credit Application and Small Business

Signing a Credit Application on Behalf of a Company Could Subject You to PERSONAL Liability

Most small business vendors and suppliers require a company officer to sign a Commercial Credit Application or Agreement to buy goods and supplies on account.

Watch out, though!

Carefully examine the language of the Credit Application or you may find yourself personally liable for the debt even if you don’t have any ownership in the company!

In 2011, the Tennessee Supreme Court considered a credit application in  84 Lumber Company v. Smith that contained the following language:

BY SIGNING BELOW I HEREBY … UNCONDITIONALLY AND IRREVOCABLY PERSONALLY GUARANTEE THIS CREDIT ACCOUNT AND PAYMENTS OF ANY AND ALL AMOUNTS DUE BY THE ABOVE BUSINESS….

Mr. Smith signed the Credit Application as “R. Bryan Smith, President.” This manner of signing is typically referred to as signing in a “representative capacity” to denote that it is being executed by the company only, as compared to signing your name without a title to indicate that it is being signed personally.

However, the  Court ruled that the attempt to sign in a representative capacity did NOT  trump the unmistakable language of the Application, and held that Mr. Smith was personally liable for the debt as well.  This same logic would presumably apply not just to company presidents like Mr. Smith but also even to junior employees who might have signed such an agreement.

Credit Application Best Practices

So what should you do if faced with this situation?

  1. Strike through offending language. In order to avoid personal liability, you would at a minimum need to physically strike through the personal guarantee language AND then also sign the document in a “representative capacity” (i.e. name + title).
  2. Make an Informed Decision.  Many suppliers and vendors require a personal guarantee in order to do business, and so you may have to decide whether to go ahead and sign the agreement, shop around, or try to negotiate a better deal (e.g. perhaps provide for a maximum limit on the guarantee, or secure a bank letter of credit instead, etc.). At least you will be making an informed decision.
  3. Ask a “Higher Up” to Sign. If you’re just an employee or junior officer of the company then you should probably take the agreement to a superior to make certain that the right person is signing the agreement. A regular employee (i.e. someone with no ownership interest) should not fairly be expected to personally guarantee the obligations of his or her employer.
  4. Go see an attorney! The above tips are intended only as general legal advice. Each agreement, contract, and situation is different, and you should seek legal advice tailored to your specific situation.

We are Small Business Lawyers.

Check out our team at Patterson Bray.  If you need help with your small business contracts, agreements, or forms, or if you have a question about business litigation, please call us at 901-372-5003 or email us here. We have offices in Memphis and Nashville TN.

December 16, 2011 In Auto Accident, Business Litigation, Civil Litigation, Contracts, General, Personal Injury

What is a Deposition? Law FAQ

What is a Deposition?

A deposition is similar to a witness testifying in court, except that it occurs in an out-of-court setting.  A witness at a deposition is referred to as the “deponent.”  A deposition usually takes place in a lawyer’s conference room, although I’ve personally been involved in depositions that took place in homes, hospitals, and even over the telephone.

It’s a chance for lawyers to ask questions and get answers from a witness under oath.  A court reporter is present to make a record of the questions and answers, which is then usually reduced to writing in what’s called a “transcript” of the proceedings. Sometimes a videographer will also be there to film the testimony.

Depositions are part of the “discovery” process of a lawsuit.  Each side has the right to discover information about the other side’s allegations. This is accomplished by things like written questions, production of documents, inspection of property, independent medical exams, and depositions.  Rule 30 of the Tennessee Rules of Civil Procedure governs depositions in Tennessee.

Do we really need a deposition? Isn’t it expensive?

A deposition can be expensive, but it’s perhaps the most useful tool in a lawyer’s discovery toolbox because it allows for real-time follow-up and feedback.   One of the most useful benefits is that, with some exceptions, it can be used to preserve and/or “lock in” crucial testimony.  A transcript can be admitted as evidence in court if the witness later becomes unavailable for trial (e.g. death, incapacity, outside the reach of court’s jurisdiction, immune from subpoena, etc.).  A transcript can also be used to impeach and cross-examine a witness who shows up for trial with a different version of events.

Depositions are Serious Business.

A deposition is a very serious matter with serious potential consequences.  Remember, the transcript may be used in court. If you are the deponent, you should treat your deposition as if your testimony is occurring right in the courtroom in front of the judge and jury.

Need a lawyer in Memphis?

We’d be honored to represent you. Call us at 901-372-5003 or email us here.

September 27, 2011 In Business Litigation, Civil Litigation, Contracts

Are Oral Contracts Enforceable?

Elements of a Contract in Tennessee

With a few limited exceptions oral contracts are enforceable in Tennessee just like a written contract.  Of course, a written contract is much easier to prove because there is hard evidence of the agreement.  However, an oral contract IS enforceable in most cases.  The parties and/or their witnesses can testify about the terms of the agreement, and things such as partial performance or “normal course of dealing” can serve as powerful circumstantial evidence of the terms of the deal.

A contract is a contract – oral or written – so long as it has the following elements:

  1. A legal purpose (e.g. Tennessee courts will not enforce a contract between neighbors to illegally use one cable box);
  2. A mutual agreement that is free from fraud or undue influence;
  3. Terms that are definite enough to be enforced (e.g. a promise to work for a person’s lifetime would be too vague because a lifetime is not a definite duration); and,
  4. Adequate value exchanged by both parties (referred to as “consideration” in legal terms).

Contracts Required to be in Writing

There are certain contracts that are required to be in writing under a legal doctrine called the “Statute of Frauds.”  In Tennessee, the six types of contracts that must be in writing include contracts for the following:

  1. Marriage;
  2. Contracts with a term greater than 1 year (i.e. a 2 year lease must be in writing);
  3. Sale of land/property;
  4. Executor’s/Administrator’s promise to pay debts of the estate;
  5. Sale of Goods/Personal Property that costs $500 or more; and
  6. Suretyship agreements (i.e. a promise to guarantee payment of the debts of another person).

Even after you have successfully navigated all of the above requirements, you should still be careful to file a lawsuit for a violation of an oral contract within 6 years in Tennessee – the same statute of limitation as a written contract.  Additionally,  oral contracts often require the testimony of a witness to verify the terms of the agreement.

We advise avoiding oral contracts.

While oral contracts are enforceable, you should avoid them, if at all possible, simply because written contracts are so much easier to prove and enforce.  Contracts can be difficult to navigate, and if you have any doubts when drafting or entering into a contract, it is best to consult an experienced contract attorney.  If you need help in negotiations, contract drafting, or even contract disputes, please give us a call at 901-372-5003.

 

Patterson Bray

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.pattersonbray.com

May 25, 2010 In Business Litigation, Civil Litigation, Contracts

What’s a Public Adjuster? Ask the Insurance Lawyer

What’s a Public Adjuster? Ask the Insurance Lawyer

Have you ever heard of a public adjuster? Most people have not. When you file a claim with your homeowner’s insurance carrier, the company assigns an employee–called an “adjuster”– to investigate and handle the claim.   The adjuster’s duties might include, among other things, to visit the damage site, to take photos, to hire and analyze data from cause and origin investigators, to parse what part of your damage is covered vs. what is not covered, and to coordinate with damage estimators and/or potential contractors.

At some point, the adjuster will arrive at some plan of action to ultimately resolve your claim. This could range from supervising re-construction or repair, to simply giving you a check and letting you oversee your own repairs.

What if you disagree with the insurance company adjuster?

But what happens when you disagree with the adjuster?  What if you believe the amount you’re being offered is a low-ball offer, is based on estimates from contractors who you think aren’t “up to snuff” so to speak, or  is based on a scope of repair that you don’t believe fully remedies your problem?

What do you do?

Well, you can always call a lawyer.  That’s a given.  However, you might be better served to first consider a less “nuclear option” than going legal.   Indeed, you might first consider utilizing the services of a public adjuster.

What is a Public Adjuster?

A public adjuster is a licensed professional who works exclusively for the public as a counterweight to the in-house adjuster who is employed by your insurance company.

Need an Insurance Lawyer?

If you have an insurance claim that you’ve been unable to resolve, call us at (901) 372-5003 or email us here.  Do not delay. There are deadlines in insurance policies that you don’t want to miss. Visit out website to learn more about us.