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Archive for February, 2012

I WON A JUDGMENT: NOW WHAT?

One incredibly important issue in civil litigation that many lay-people do not properly understand is the importance of being able to collect from the other side.  To be honest, some lawyers do not adequately understand the complexities of how one actually goes about turning that piece of paper known as a “judgment” into real dollars and cents.

Good lawyers know the holy “trifecta” that you need to have a good case; liability, damages, and the ability to recover.  In other words, you need to be able to prove to a judge or jury that the other side is liable, under the applicable law and facts, for your “injury” (be that physical, mental, monetary, or otherwise).  You then need to be able to prove to the judge or jury that your injury is capable of being converted into a dollar figure, and that the law provides a way to recover for that injury.  Lastly, assuming the judge or jury finds in your favor, you need to be able to collect on the judgment you win.

What many lay-people do not understand is that the last factor, collecting, can at times involve as much work as winning a trial.  Once you have “won” a judgment against the opposing party, you need to be able to collect on it.  Factors such as bankruptcy, and defendants with no assets, or those who suddenly transfer their assets to another individual, all complicate this process.  It is prudent to take this consideration into account from the moment legal action is contemplated.

As an example of how this issue plays out in the real world, plaintiffs from a class action lawsuit litigated in Ecuador won an approximately $18,000,000,000.00 judgment against Chevron in 2011.  They are currently in the process of trying to recover on that judgment, which Chevron is contesting as fraudulent.  This is the largest judgment ever won in an environmental lawsuit, yet thus far the plaintiffs have recovered nothing.

In California, the law provides many procedures to recover on a judgment, from a “till tap” in which someone actually takes money out of a businesses’ cash register or as contained on the premises, to a sweep of bank accounts.  There are also pre-trial procedures which can help seize assets pending a trial.  If you have a question on recovering on a judgment, or opposing recovery, our firm has experience and knowledge on these issues.  We can also help you plan properly before serious legal action is taken.  Do not hesitate to contact as at (916) 565-8161 or visit our Sacramento Attorney website.

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BUSINESS OWNERS: GET IT IN WRITING

If you’ve ever had the pleasurable experience of spending significant time with an attorney, you realize they absolutely love documents.   Paper, whether it is an incriminating email introduced at trial, or a simple promissory note providing repayment terms, is a fixation for most lawyers.  The reasons for this are fairly simple; people’s memories not only fade, but recollection of a specific event often varies considerably between people despite the fact that they may have experienced the exact same event.  Documents, however, have a semi-permanence that lasts through time.

Attorneys also realize, as do savvy business owners, that courts also love documents.  Courts will routinely enforce written contracts despite the fact that one of the parties to the agreement claims to have a different understanding of the “actual agreement”.  The words in a written agreement make a difference, and no one should casually sign any important written agreement.

One of the best ways small business owners can protect themselves is to be vigilant about the written agreements they sign.  Many modern written agreements are incredibly complex, and the terms used can have dire consequences if one does not understand them.  Remember that the agreement is written on paper, not stone, and terms are negotiable.

Business owners can also help their business by having important understandings and agreements put in writing.  That way all parties can understand going forward what is expected of them, and what they can expect of the other side.  Assumptions and unspoken or unaddressed issues can derail the best intentions.

If you need an agreement prepared, or you have an agreement that needs review, do yourself a favor and have experienced counsel provide their opinion.  Our firm handles these issues daily.  For more information feel free to call our firm, or check out additional information at:  http://radlegal.com/law-practice-business-corporate-law-sacramento-ca.php

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TRADEMARK AND PATENT ‘TROLLS’ DEMAND THEIR PRICE TO CROSS THE BRIDGE

Those of you savvy with the internet may be familiar with the term “trolls”.  It generally refers to individuals who post inflammatory or provocative messages online, often in an attempt to harass others.  The term “patent troll” refers to an individual or company who buys and then enforces patents against an alleged “infringer”, usually in an opportunistic manner.  Blunter individuals would refer to them as extortionists.  Similarly, the term “trademark troll” refers to an individual or company who attempts to register and enforce a trademark without any real intention to use that trademark, in an attempt to force others who use the same (or a similar) mark to pay them.  The “troll” part of the name is a reference to the attempt to collect a toll from vulnerable people.

For the most part trademark trolls have had little success, as simple registration of a trademark does not give exclusive rights over the mark; Courts look for ‘actual use’ of the mark in commerce.  Unfortunately patent trolls are another matter. These individuals often purchase dozens if not hundreds of patents cheaply from bankrupt companies, and then file demands or lawsuits against any company arguably infringing on the patent.  Often the claims are legally specious, and rely upon the theory that a quick pay-out will be made rather than incur the costs of litigating the matter.  Texas has apparently become a hotbed for these types of companies, and the issue is expected to continue to grow in 2012.

Trademarks and patents are not the only areas in which opportunistic individuals can prey.  It is important that one understand their rights and obligations when buying or selling a business, including the rights and obligations that may be associated with the goodwill of the business, any potential trade secrets, and express and contingent liabilities.  An ounce of prevention in this regard can often avoid substantial expenses and stress later. If you have any question about your legal rights do not hesitate to contact our offices.

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