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Friday, January 30, 2015

Can One Word in a Contract Cost Over a $200,000?

Yes, sometimes a word or two,  even in a forty page contract can make a tremendous difference, and change the entire outcome of the case.  

We had a client's case that went up to the highest Federal court in New York and was then sent over to New York’s highest court in Albany, the Court of Appeals,  and a half of million dollar award was thrown out because of a few words.  In a case called Israel v Chabra (537 F.3d 86) the court held that the words  'provided that' "suggests a condition, and our conclusion in that regard is consistent with the punctuation and grammatical construction of the Guaranty's first paragraph.”   The entire argument the defense raised was the lack of notice of  default. Meaning,  the plaintiff, OUR CLIENT, who did not give the notice argued that the notice was not a big deal because the defendant knew about the default.  The lower court agreed with the plaintiff and awarded him over $330,000 and legal fees of $299,000.
This was all reversed on the two appeals.  This case wandered through three courts for as many years and each sides’ legal fees were well over $300,000.

In another matter, an employee was able to get his $150,000 bonus paid each year  of his three year employment  contract as apposed his employers offer of just one bonus for the first year.  Again, that was because of a change of just one word. 

Lawyers are not usually slow readers, we just have to think about how slight grammatical nuances can turn around a whole contract.  So that is how a word or two can cost or save you hundreds of thousands of dollars.

Alexander Novak, ESQ.
Partner, Novak Juhase & Stern

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Monday, January 26, 2015

Never Tell a Lie to a Fed!

Our mothers always told us never to tell a lie.  You remember the childhood taunt: "liar liar, your pants are on fire."  Well let’s face it, all of us lie every day. We tell white lies or little innocent lies at home and the workplace to keep peace with friends and family. All of us justify these dishonesties because that is just how life is.  And so what really is so bad? Will my pants really catch on fire?

Well telling a lie to a government agent like the FBI or the SEC is a crime, and in fact it is a big crime, it is a felony punishable with five years in a jail. The funny thing, or well maybe the scary thing, is the FBI can lie to you all day and for them it is just doing their job. But if you lie to them, then you have committed obstruction of justice or are impeding the government's information gathering process.  Courts take obstruction of justice very, very seriously.  Indeed the crime sounds particularly ominous.

Telling even the most innocuous lie to a Fed could put you in jail.  Ever heard of Martha Stewart? If you are reading our blog, then you have heard of Mrs. Stewart.  She served hard time, not because she was guilty of insider trading or a host of other securities fraud, rather she lied to the SEC and Assistant US Attorney.  All she said was she did not have a conversation with her broker on the day she sold a lot of stock. In doing so, she told a lie. She mistakenly thought, had she spoken to her broker that day, that she would have committed insider trading. The broker did not divulge any insider information because never had such in the first place. But with a non-criminal lawyer next to her, and not knowing better, she out right lied about the conversation they had.  That was the crime she went to jail for.  At trial it was revealed that what her broker had said to her that day was not insider information and the broker had a legitimate right to tell her and his other clients. This fact did not stop the prosecutors who just wanted to see Martha sit in jail, which she did so in Danbury women's prison.  It was no picnic. Once the government wants you they will pull out anything to convict you.  The government has a license to lie with impunity. Want a good book? Read "Licensed to Lie" by ex-US Attorney, Sidney Powell.

Just being aware of the draconian consequences of lying to the Feds should make you pause.
Many times an agent will catch you off guard and you will say a little lie just to get away.  Once they have that little lie you are the government's footstool. They will keep reminding you of that indisputable lie to make sure you become a very cooperative witness. This happens all the time.  You are always better off telling a Fed to contact a lawyer and that you have nothing to say. By the time they approach you they have built their case, and you fit in somewhere all ready.

Better advice than from dear old mom about lying: BEFORE YOU TALK TO THEM TALK TO ME. Never talk to an agent of the government before you tell your lawyer everything. Don't let your recalcitrance in revealing something a little ugly to your lawyer prevent you from letting him know why the Feds want to talk to you.  You do not help your cause if you lawyer is blindsided. Reveal everything to your lawyer.  You can't go wrong and your attorney will never reveal what was said in confidence to anyone in the world (yes, I keep secrets from my wife). Also, you stop talking to anyone but your lawyer including friends and family.  Otherwise you may make yourself an un-indicted co-conspirator and have to testify at trial. Who wants the publicity?

Alexander Novak, Esq.
Partner, Novak Juhase & Stern

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Friday, January 23, 2015

The Difference Between a Lawyer, Litigator, and a Trial Attorney

What types of Lawyers are out there?

There is a big difference between getting yourself any lawyer and a real litigator. A lawyer could take care of any number of things for you, from reviewing a contract to researching complicated laws. But when you have a real issue in the business world, or get in trouble with the government, you want to have a litigator on your side of the table. 

A litigator will represent plaintiffs and defendants in hearings, arbitration, and mediation, as well as jury and non-jury trials. This is an acquired skill that takes years of practice and experience. Furthermore, you can have a litigator that is not a trial lawyer. It is important to understand the difference between the two before you find yourself an attorney.

Litigators vs. Trial Lawyers

The prime tasks of a litigator include conducting a review to determine if enough evidence exists to file a lawsuit or, in the defendant’s case, what evidence exists to defend a the client, researching previous cases and laws that apply, and mediate out of court for a settlement in order not to go to trial.

Trials require actual courtroom experience, and if you've ever seen "My Cousin Vinny", you know what inexperienced means. A trial lawyer is not necessarily a better lawyer. He/she may just be a tall, good looking, smooth talker that can make quite a presence in court, but with a lack of knowledge of the actual law, won't be much help in the long run. Years of actual cases that went to trial are the only way to gain that confidence and capability of winning in court. After many years of trial law an attorney can get to know many of the judges in that state and how they act in court. It's crucial to find out who your attorney really is and if they are experienced the area of law you need them to represent you. 

We would love to hear from you. What are your courtroom experiences, and what have you learned about proper selection of council that can help others in court?


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