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Do You Know When to Call a Lawyer?
Janet Portman, JD
Nolo Press

Special from Bottom Line/Personal
May 29, 2005

W hich everyday legal problems can you handle on your own -- and which ones require a lawyer? Take this quick quiz to test your legal know-how.

1. Your neighbor starts building a small fence, which actually is on your property. You should...

A. See a lawyer and sue to make him/her stop.

B. Wait for the town's zoning officials to take action.

C. Talk to your neighbor about his mistake. If the fence isn't taken down quickly, follow up with a letter politely but firmly insisting that it come down.

2. The dishwasher in your apartment is worn out and has stopped working. The landlord won't replace it. You should...

A. Replace the dishwasher and deduct the cost from your next month's rent.

B. Withhold your rent until the landlord replaces the dishwasher.

C. Sue in small-claims court.

3. You take family leave to care for your ailing mother, and then your employer fires you. You should...

A. Hire an attorney and file a lawsuit because it is illegal to fire someone who takes family leave.

B. Find out from your employer the reasons for the termination.

C. Do nothing. Family leave laws don't apply to caring for employees' parents.

4. A coworker frequently tells dirty jokes and stories about his sexual exploits, and it makes you uncomfortable. You should...

A. Ignore him and hope he gets the message that you aren't amused.

B. Tell him that he is making you uncomfortable. If that doesn't work, make a complaint within the company.

C. File a lawsuit against your employer for sexual harassment.

5. Your father is going to have a risky operation. He tells you that if things go badly, he doesn't want any medical "heroics" to prolong his life. Before going to the hospital, you should...

A. Have a talk with his doctor and convey his wishes.

B. Assure him that you'll convey his wishes if and when it's necessary.

C. Help him prepare a living will, and bring it with you to the hospital.

6. A police officer calls to say your son, who is away at college, has been arrested for drug possession. You would be wise to...

A. Do nothing, since you're sure that the charge won't stick and it will blow over quickly.

B. Call the college to see if it can intervene and persuade the police to drop the matter.

C. Have an attorney, even if it is just your family attorney, contact the police and tell them not to question your son until he has legal representation.

7. Your daughter would like to turn her furniture-making hobby into a business. She has asked you to join in the venture. Before beginning operations, you should...

A. Go to a lawyer and have the business incorporated.

B. Form a limited liability company for your daughter and yourself.

C. Keep things simple by forming a partnership, and just get your business license and permits.

8. You loaned your nephew several thousand dollars, but he won't repay it. You want to sue, but the lawyer with whom you've spoken wants too much money. You should...

A. Let the matter go.

B. See if your nephew will agree to mediation.

C. Sue, but act as your own lawyer.

Answers

1:C. You have a legal right to have the fence moved off your property -- but you also want to keep relations with your neighbor as pleasant as possible. There's nothing more unpleasant than a festering dispute with someone you see every day. Calmly explain that the fence is on your property and needs to be moved. This isn't the kind of issue that zoning officials get involved in -- they don't care unless the fence violates local rules about height or materials. See a lawyer only as a last resort.

2:C. In nearly every state and municipality, landlords must maintain a livable, safe rental that complies with basic safety requirements. When landlords fail to live up to that responsibility, tenants in about half the states can repair the problem and deduct the cost from the rent... or withhold the rent until the landlord takes action. These remedies are available only for serious problems (ones that make the unit unsafe or uninhabitable). Losing the use of a dishwasher doesn't make a home unlivable. Using these legal remedies for this issue risks eviction. If negotiation (including mediation) doesn't solve the problem, the safe route is a small-claims lawsuit, in which you ask the judge to reduce the rent by an amount that reflects the rental's market value without a dishwasher.

3:B. The federal Family and Medical Leave Act (and similar state laws) do cover care for employees' parents. If you get fired shortly after taking family leave, talk to your employer and get all the facts. You can't be fired because you are taking family leave -- but you can be terminated if it would have happened anyway.

For example, if your entire department was laid off because the company decided to outsource its work, your termination on that basis would be legal because it wasn't done to punish you for taking the leave -- it would have happened whether you took the leave or not.

If you can reasonably conclude that you were fired because of the family leave, contact a lawyer.

4:B. Talk to your coworker and make sure he knows that you want him to stop. Many boorish employees don't realize that their behavior offends others. Most of the time, a harasser who is confronted and asked to stop will stop.

If your coworker continues to bother you, complain in writing to your employer's human resources department, a manager or someone who has a high position in the corporation. Making a complaint lets the company know there is a problem and gives management an opportunity to fix it. It's a necessary precondition for collecting damages from the employer if you later decide to file a sexual harassment lawsuit.

5:C. The best way for anyone to ensure that he/she gets the type of medical treatment he wants (or doesn't want) is to prepare documents directing his own care. In a living will, you state your treatment wishes in case you are ever unable to speak for yourself.

It also is important to prepare a durable power of attorney for health care, in which you name a trusted person to work with doctors, oversee your wishes and make decisions on matters not covered by the living will. (In this case, it sounds like your father will name you to fill that role.) These documents go by different names, depending on the state in which you live. You can prepare one using software such as Quicken WillMaker Plus 2005.

A patient representative at the hospital also should be able to provide you and your father with the correct documents for your state.

6:C. After an arrest, it's usually not a good idea to talk to the police without talking to a lawyer first. Talking to the police without an attorney can damage the case for your defense, and criminal defense attorneys almost universally advise their clients to remain silent until an attorney has assessed the charges and counseled the client.

Your best response is to retain a lawyer, who will contact the police and instruct them not to interrogate your son. The lawyer should visit your son and tell him not to talk to the police until the lawyer himself has had a chance to talk to him.

7:C. Operating this business as a partnership should be sufficient, at least at first. To clarify each party's rights and responsibilities, however, make a written partnership agreement. Get started by taking care of the governmental registration and filing requirements with which all businesses must comply -- obtain your federal employer identification number... register the business name... and get a business license, seller's permit and any other required licenses or permits.

Later, if the business grows, you could incorporate or form a limited liability corporation (LLC), which will shield you from personal liability for business debts and allow you to save on taxes.

8:B. Mediation is a confidential process in which parties who are having a dispute meet with a neutral third person (the mediator) to try to work out their differences.

If you come to an understanding about how the conflict can be resolved -- perhaps you will design a repayment plan -- the mediator can write up an agreement that will be binding in court. If you aren't able to resolve the conflict, you can end the mediation and sue. Most mediations are successful, so you have a good chance of emerging with both your money and your valued family relationships.


Bottom Line interviewed Janet Portman, JD, managing editor of Berkeley, California-based Nolo Press, America's leading source of self-help legal information and publisher of plain-English law books, including Every Landlord's Legal Guide and Tax Savvy for Small Business. www.nolo.com

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