Downtown Ann Arbor
(734) 994-7877
KURT VANDER VOORT, pllc
LOOKING OUT FOR YOU, YOUR FAMILY, AND YOUR PROPERTY
Downtown Ann Arbor
(734) 994-7877
KURT VANDER VOORT, pllc
LOOKING OUT FOR YOU, YOUR FAMILY, AND YOUR PROPERTY
Articles:
Life presents challenges to everyone. The good news is that most of us are blessed with enough skills and intelligence to overcome the cards we are dealt in life. Not only that, we are usually blessed with sufficient resources to overcome our own mistakes. Indeed, other than the decision to start a family or amputate a limb, few decisions we make in life are irreversible. However, I have noticed that people DO “put themselves in a hole” by making hasty or uninformed decisions. If there's one thought you take away from this page, it's that a good legal consultation early on is like buying insurance or changing the oil in your car regularly; paying a little now can save a lot later.
Perhaps the biggest common mistake people make is placing their signature on documents they do not understand. While most of the time signing your name is of no great consequences, sometimes a signature on the wrong document can have life-long consequences. In other words, certain things require some forethought, and maybe even a legal consultation, before signing. Examples of this would be signing a Power of Attorney, signing an offer to purchase or sell real estate, signing a deed, signing a mortgage, signing a loan or credit agreement, or signing papers to purchase a motor vehicle. In the criminal realm, signing a confession or waiver of rights form can have an even greater negative impact (and for those of you who believe confessions are always true, here's an eye-opener about false confessions).
In Michigan, failing to read or understand what you are signing is not a defense in a civil action to enforce that agreement. Yet those who fail to read and understand important documents can find themselves saddled with outrageously burdensome debt, owners of property worth far less than they thought, or totally stripped of their financial assets, all because they innocently or ignorantly signed a paper. Consulting with a lawyer before signing an important document, or before dealing with the police, is like buying insurance: you are obtaining protection against a bad result you hope will never occur. Yet the cost of such a consultation is trivial when compare to the potential damage that could result from failing to consult with a lawyer ahead of time. What follows are a few more examples of the common problems average people create for themselves.
People often wait too long to see a lawyer. One of the biggest mistakes I discuss later is when people don’t pay attention to what they sign or say and they don’t consult with a lawyer BEFORE they say or do something that could have long-term and possibly negative consequences, financially or otherwise. I’ve also seen some people with very meritorious claims for very serious injuries wait too long to file suit, leaving them unable to do so after the Statute of Limitation has run out. In other words, the law gave them a limited time to recover and they didn’t file their suit soon enough.
While most statutes of limitations run from 1 to 10 years (most are usually in the 2 to 3 year range), some are extremely short, such as whistleblower claims and claims against labor unions. For this reason, it is imperative that people contact an attorney immediately if they believe they may have a serious legal claim for injiury.
Similarly, evidence can “go stale” or disappear entirely if you wait to long. One good example would be a case that involves records kept by a business. If for any reason you do not have those documents in your possession (see my section about poor record-keeping below) you cannot assume those records will always be available via a subpoena or a request for production of documents. Many businesses now have document retention policies that allow them to purge records which, once gone, are never to be found again. This can also be important in a personal injury case, where I have seen medical records become extremely hard to obtain once the other side realizes they may be used as evidence against them.
Now I know this will probably sounds counter-intuitive given what I’ve already said about waiting too long being one of the biggest mistakes people make. However, the opposite of one mistake is often another mistake. In this case I am referring to situations where people feel pressured to make a quick decision. Over the years I have learned that sleeping on a big decision is one of the best things a person can do to make good decisions. Think about it: when a con man is trying to scam someone, they often do it by seeking to convince their victim that he or she has a once-in-a-lifetime opportunity requiring immediate action. Not so coincidentally, people pushed into hasty decisions often lack the time to consult with an attorney or others whose judgment they trust. This is one of the main reasons certain people try to create time pressures on those they are seeking to fleece. Remember, other than buying real estate in a hot market, or a valuable and rare collector’s item, there are very few situations where you can’t take a day or two to think and consult with others before reaching a decision. That being the case, doesn’t it make sense to take a deep breath, get a good night’s sleep and talk things over before making that big decision?
Many people misunderstand the concept of “fairness” in terms of how that idea is incorporated into our legal system. "Fairness" is a moral term most of us apply in our personal lives. However, more often than not, this concept is NOT enshrined in law. This is best illustrated by the phrase “caveat emptor” (let the buyer beware). Other than the common-law rules barring fraudulent words and acts, along with certain consumer protection statutes, the law does not require the other side of a transaction to treat you fairly. Similarly, employers are under no obligation to treat you in the manner you would consider “fair.” In Michigan, so long as the employer doesn’t fire you because of race, religion, gender, age and a few other protected classifications, that employer can basically fire you at any time, for any reason, OR NO REASON AT ALL! Many people are shocked when I explain this means they can theoretically be fired for wearing a particular color or type of clothing their boss hates. Nevertheless, if you are an “at will” employee, you can indeed be fired for those reasons.
There is a myth that Michigan is a strongly “pro-worker” state in terms of its laws. Actually, Michigan is relatively pro-worker if the worker is UNIONIZED. The real issue, though, is that unions negotiate written contracts that require termination “for cause” only. This means the unionized employee can only be fired for reasons set forth in the labor contract. The VAST majority of Michigan’s employees are not unionized and do not have written contracts identifying them as employees who can only be fired “for cause.” Understand, one does NOT have to be in a union to have a “for cause” employment contract. However, one must have a written contract identifying the employment relationship as “for cause.” Most workers need jobs and will take them on whatever terms are offered, leaving them with no ability to bargain for a written “for cause” contract. However, I have represented many people with valuable and desirable skills in business, technology and science who have been able to obtain written “for cause” employment contracts. So the lesson is this: do not expect your employer to treat you fairly or “in good faith.” Michigan law provides no legal recognition of such expectations. Instead, for those of you with leverage or bargaining power, seek an attorney to negotiate a written “for cause” employment agreement.
Similarly, in other contracts, do not rely on a person’s verbal assurances that you will be treated fairly or be taken care of. Ask what exactly they mean, and then have it put in writing and signed by the person making those promises. (GO OVER HOW TO READ FINE PRINT)
Everybody dies. And almost everybody needs an estate plan. If you own real estate, you should have an estate plan. If you have investment account and more than one person you want to have that account, you should have an estate plan. If you want to provide for someone with special needs or situations, such as a medical condition, a psychological problem or an addiction, you should have an estate plan. If you have children, you should have an estate plan, especially one selecting a guardian for them. An estate plan can be as simple as a basic will or beneficiary designation on an insurance or financial form, or it can be as complicated as multiple trusts and multiple insurance policies. Unfortunately, far too many people get estate planning advice from the wrong sources. DON’T listen to the insurance agent trying to sell you a policy. DON’T listen to the financial advisor who just happens to have a lawyer “friend” who can help you. DON’T listen to the title company about how the deed to your property should be drafted. DON'T listen to that friendly lawyer at the community center who says he's making his presentation because he "just wants to help." DO talk to your own lawyer before signing any of these things. I go into this in greater detail (here), so I hope you will read this entire article and avoid the costly mistakes so many make.
DISCLAIMER:
I do only very simple wills and trusts, so this is NOT one of those pitches for business. If you call me or email me with a complicated estate planning issue, including Medicaid spend-downs and estate recovery, chances are very good I will simply refer you to one of the many competent attorneys doing this work.
Finally, for those of you with kids, remember that your children will need a guardian if you and the other parent are gone. I have been involved in heart-wrenching cases in which the maternal and paternal sides of the family were at odds over who could best care for orphaned children. It is irresponsible for ANY parent to permit these situations where families are torn apart. A simple will and guardianship designation can be obtained for only a few hundred dollars. Trust me, it’s worth it. The real problem here is that no one wants to contemplate their mortality. Yet those who fail to acknowledge the obvious and universal truth that is death merely increase the burdens on those who will mourn them.
Oral agreements, for the most part, are enforceable in Michigan. However, certain agreements MUST be in writing, such as those involving the sale of real estate or which cannot be performed in less than a year. The law that requires such agreements be in writing is known historically as the Statute of Frauds. Yet even for contracts that do not fall under the Statute of Frauds, there are still many very good reasons to have things in writing. The best reason to have things in writing is to memorialize the agreement. Human memory is notoriously imperfect, and in a contract case nothing raises more problems, and increases litigation costs more, than verbal agreements. This is because people tend to conveniently recall only what favors their position, and tend to conveniently forget those things that may not reflect well on them or that may increase their legal, financial or other burdens.
Verbal agreements greatly increase litigation costs as well. This is because in a case involving a breach of a written agreement, the judge or jury needs only to hear the facts and then apply them to the written agreement to determine whether one or both sides violated that agreement. On the other hand, with a verbal agreement whose terms are in dispute, the judge or jury must first struggle to determine exactly WHAT the agreement WAS before deciding if anyone violated it. As you can imagine, this is a lot of extra work for the lawyers and parties involved, and it can become a very expensive proposition. One common nightmare example of this is when people decide to create a "partnership" and start referring to each other as "business partners." Doing this without a written partnership agreement can be disastrous, for reasons I detail here.
So putting things in writing serves two very important purposes. First, when the agreement is in writing, disputes are less likely to arise between parties who can each review the document to determine their rights and obligations. Second, a written agreement can save a great deal of time and money in the event a lawsuit is filed. By having a lawyer involved in preparing a written agreement, it is also possible to express the agreement in the clearest terms possible. This, in turn, will make it more understandable to the judge or jury deciding if anyone violated the agreement and, if a violation is found, can also assist in determining who owes what. Once again, hiring an attorney early (before the agreement is finalized) can save a great deal of money down the road. Think of the insurance/oil change analogy I used in the Introduction.
Most of all, remember what I said at the start of this article: certain agreements MUST be in writing to be enforceable (Link Here). Verbal agreements that violate this statute are generally unenforceable in the absence of special circumstances. For most of you who are reading this, the most important thing to remember is that ALL AGREEMENTS INVOLVING REAL ESTATE MUST BE IN WRITING TO BE ENFORCED! More people than you may think have relied on casual statements such as “if you take care of me, someday this (land/house) will all be yours.” Good luck trying to win that case in court.
As you may already have guessed, either through common sense or from my article "How To Choose The Right Lawyer", the opposite of choosing the right lawyer is choosing the wrong one. Your odds of choosing the wrong lawyer go way up if you rely solely upon the Yellow Pages, advertisements, the internet, someone you met in class or your local religious leader. These sources may provide lots of information, yet each has its drawbacks. Advertising only tells you what the attorney wants you to see or hear. Advertisements, especially those on television or radio, can indicate a lawyer or law firm that makes money on volume and not necessarily quality. The internet is full of glitzy graphics and a dizzying array of content, some of which is accurate and some of which is very far from accurate. The person you met in pottery class may have loved his or her lawyer yet totally misunderstood the attorney’s abilities and achievements. Your local religious leader may be more interested in steering cases to a fellow church member rather than an outside attorney who may not contribute to the next capital improvement campaign for the church.
The best way to find a good lawyer is to talk to other lawyers, or the people who work for them or with them. Once good question to ask such people would be: “If I don’t hire you (or the attorney you work for) who would you recommend instead?” This works even better if the person you ask has no business connection to the area of law in which you have concerns. Trust me, a smart business lawyer will not send you to a family law specialist if you have a personal injury case.
While this is mentioned in my How to Choose the Right Lawyer article it is so important I will repeat it again here: If you know a court employee in a position to know, ask them who they would hire for your particular problem, as they can be invaluable sources of information. Years ago, before I was an attorney, I was a Teamster working in a warehouse. I suffered an injury on the job and was quite adamant about finding the best surgeon. Fortunately, I knew someone whose mother was a nurse in the operating room of a local hospital. She had seen the best, the worst and the so-so surgeons. She was kind enough to give me the names of the surgeons she respected the most. I chose one of the ones she recommended, and he did such a good job that years later I have no scar and other doctors can find no evidence I ever had an injury or an operation. If you can use this method to choose an attorney, you will GREATLY improve your odds of success (assuming you have a meritorious case to begin with).
If you are involved in a case where you believe you may have chosen the wrong lawyer, it is not necessarily too late to act. You should get a second opinion (and even a third if you still aren’t sure) if you need help evaluating the situation. I’ve always encouraged my clients to get a second opinion if they have any doubts whatsoever about my representation. While this situation has rarely arisen, the few times it has I’ve had no qualms about this because nothing assures a client more, and confirms my own judgment, than having another attorney indicate that I am on the right track and handling the case properly. It is not wrong to seek those assurances and it is not wrong to change attorneys if you don’t receive appropriate assurances.
Most people figure “hey, I’m not a criminal, so I have nothing to fear from the police.” Sadly, many people are in fact law-breakers without even realizing it. This is not to suggest that my readers are criminals on the same level as murderers and rapists. I merely seek to point out that there is an ever-growing body of law criminalizing behaviors that were not considered criminal in the past. In addition, for reasons I will detail below, innocent people also have a very good reason for remaining silent.
The police are trained to obtain convictions or guilty pleas by getting people to incriminate themselves with their own statements. If you don’t talk to the police, they will not have your words to incriminate you. So if an officer starts to ask you questions for any reason, ask them “am I free to leave?” If they say yes, then LEAVE! If they say “no, you are not free to leave” then you can conclude you are being detained, and you are entitled to remain silent and ask for a lawyer. However, in such a situation, you must clearly state you want to remain silent until you speak to a lawyer. This is your Constitutional right, and one that many have died to protect. Sadly, most people are intimidated by the police, and find it very difficult to say things to authority figures (such as the police) that the authority figures don’t want to hear. Nevertheless, this simple piece of advice is the single easiest way to stay out of the criminal justice system.
Similarly, police may request to search your car or enter your home without a warrant. Again, your response should be a polite “no.” I cannot tell you how many criminal cases I’ve dealt with in which the person’s legal problems would have been much simpler, or even non-existent, if they had merely kept quiet and only answered “no” when the police made their various requests. Again, even for those who are iinnocent, how many of us really know each and every item in our car or home? Perhaps a friend or family member has left evidence of a crime in your home or vehicle. Unfortunately, if you are connected to that home or vehicle (and if the police are asking you for permission to enter and/or search your home or vehicle you can be sure THEY see a connection) then you have a great deal to worry about.
As I noted above, some of you may think my advice is solely for the benefit of criminals. However, my advice also protects the innocent. I have seen cases where people make simple statements that the police later deliberately or accidentally misconstrue. This, in turn, leads to the individual having to spend considerable amounts of time and money to address the situation. And remember, once you’ve made an ambiguous statement, no matter how innocently, a judge or a jury may choose law enforcement’s interpretation over your own, this leaving you with a criminal record. Similarly, I have seen people face charges when the search they agreed to led to the discovery of evidence of a crime they were unaware of, yet was sufficient for a conviction. To summarize: Just say NO to police questioning and requests for searches or entry. You can always change your mind later, AFTER you’ve consulted with an attorney.
In the non-criminal areas of life, where I assume most of you spend much if not all of your time, talking too much can still create problems. This is particularly true in the area of sales and contracts. While some "puffing" is permitted to make a sale, other statements can create serious legal problems. For instance, describing the car you are selling as "the best model this company ever made" is legal even if not objectively true. However, saying "we'll take care of it" in the context of a construction or repair contract may create a legal obligation to do or guarantee work that was never intended. So again, saying too much, or saying the wrong thing, or just talking at all, can lead to unintended legal consequences. And speaking of unintended consequences, if you want to know how companies trick you into signing contracts while avoiding all the verbal promises they made to you before you signed, see the Bonus Section below.
Bonus Section
Here's a little tidbit for all of you who wonder how certain companies can get away with horrible customer service and abysmal quality: Take a look at the contract. I can almost guarantee that buried in the fine print somewhere towards the bottom is a statement that says "This agreement constitutes the entire agreement of the parties, superceding all prior written or verbal agreements, and cannot be modified except by a writing signed by both parties." This means that NOTHING that was promised to you, but was left out of the written agreement, is legally binding! Now that you have this knowledge, businesses will not be able to take advantage of you quite so easily.
Despite this wonderful age of computers that allows us to communicate with each other via email and web-sites such as this, the so-called “paperless society” many predicted still does not exist. We are still inundated with paper in every aspect of our lives AND our computer hard-drives are now clogged with additional email, on-line banking and e-commerce records, and other personal information. It is a natural tendency for people who are overwhelmed by life to get sloppy in keeping things like receipts, bank statements, email and many other types of documents. The problem is that the success or failure of a legal dispute often turns on who has the best documentation. The documents themselves can be valuable evidence, and they can also be used to refresh memories of events that may otherwise be difficult to recall completely and accurately.
There are two types of documents I want you to consider. First, there are the receipts and records that are generated through our ordinary lives as citizens in this country. Some of those I have already described above. Others might be things like real estate records (leases, mortgages and tax records), letters or emails to or from an employer, and medical records.
Second, there are those documents we create to memorialize certain events we wish to recall later. A diary is the most obvious example. Another good example can be found in cases of harassment, stalking or domestic violence. In such cases, victims are encouraged to keep a log of calls and other contacts with the person victimizing them in order to be able to provide a better basis for them to testify in the future. I heartily endorse this method, and advise it for my clients in similar situations, because people under a great deal of emotional stress often find their memory is best bolstered by the records they keep during their most stressful times.
Photographs can also be key documentation for certain types of cases. As I point out in my article “What Every Renter and Landlord Should Know” disputes over the condition of the property are second only to disputes over unpaid rent. The best way to document the condition of the property is with good photos.
Similarly, if you have been in an accident in which your car is totaled and subject to an insurance claim, good photos can help. I’ve made such claims personally, and the photos helped considerably. I’ve also noticed that insurance adjusters are not always good at taking photos. I’ve been fortunate enough to learn from an accident reconstruction specialist how to take proper photos of a wrecked car. Kneel down in front of the car, roughly in front of the left or right side headlights. Then, take a picture directly down the entire side of the care. The goal is NOT to take a picture of the fancy pinstripes in the side of your car. Instead, it is to show the alignment between the front and rear wheels on that side. Do this on the other side. Now go to the back and do it again, this time shooting toward the front.
Finally, get shots from each side of the front and rear bumper, again shooting directly along the bumper to show whether or not the body or frame has twisted. Most people focus so much on the dents and broken glass that they fail to understand and appreciate how important it is to take pictures that also reflect the condition of the vehicle that is NOT readily apparent. The photo techniques I’ve described are intended to document those not-so-obvious damages.
It is downright ridiculous how many people forget to change their address. This involves more than filling out a card at the post office to have your mail forwarded. A post office change of address is only good for six months. However, if you have lived at the same address for a long time, chances are many will have that address and continue to use it LONG after you move. If a matter of legal importance is sent to your old address after the six month forwarding period expires, your mail will be returned as undeliverable.
This affects your legal rights a number of ways. I have seem many people unaware that they face criminal charges or drivers license problems all because the court or the Secretary of State used an old address. And guess what? Courts have ZERO tolerance for defenses based on “well, I never received notice because I moved.” Courts place the burden squarely on YOU to change your address properly. Since most, if not all, Michigan courts now rely on the Secretary of State for addresses, you need to notify the Secretary of State when you move, or at the very least, keep filing change of address forms with the post office until you renew your license.
I have also seen clients face HUGE default judgments in internet cases all because they failed to update their contact information with the Domain Name Registry. If you own a domain name, keep this information up-to-date or don’t be surprised to learn you have a six figure judgment against you or, at the very least, lost ownership of the name you registered. Please also note that the Domain Name Registry also requires a contact email address. This needs to be kept up-to-date as well. Certain courts are now permitting certain types of lawsuits to be served by email. While I question the legality of such an approach, the fact remains it is being allowed in certain courts, and the result is that in some cases my clients have been unaware there have even been legal proceedings, let alone proceedings that have resulted in six-figure default judgments entered against them.
Updating personal information also plays a key role in family law and estate planning. Many divorce lawyers can tell you about receiving calls from former clients years after the judgment of divorce. The reason? The client failed to change the beneficiary designation on his or her insurance or retirement accounts. This leads to lots of wasted time and money as the insurance company or investment company try to figure out who is really entitled to the money.
Most people dread bad neighbors and want very much to be thought of as good neighbors. However, there’s an old saying that “good fences make good neighbors.” While I don’t necessarily believe that is a universal truth, there is a kernel of wisdom there. For many people, their real estate is their largest single asset. Now imagine how you’d feel if a court suddenly told you that a portion of your biggest asset belonged to your neighbor. This happens more frequently than you might imagine. While not as common in newer subdivisions and smaller lots, people who own larger lots often fail to monitor their lot lines regularly. This is especially true for those who live in more rural areas, where the property lines are not clearly marked and there may be a great deal of trees and underbrush.
In Michigan, if a neighbor or squatter were to openly use your property as their own for a continuous ten year period, at the end of that time the law considers that property theirs. “Use” can be something as simple as cutting grass, trimming trees or clearing brush. While there are exceptions to this, such as when you give your neighbor permission to use a portion of your property, such permission should be in writing and clearly spell out what is or is not permitted. When dealing with your largest single investment, such situations suggest that spending a couple of hundred dollars on a lawyer to get it right is a worthwhile form of insurance for that investment. And whenever there is a dispute over property lines, a survey is in order. This is especially important when there are fences in place. If you and your neighbors treat the fence as the property line for ten continuous years, the law will presume you have “acquiesced” to the borders established by the fences, whether or not they are in fact placed on the actual property lines. Once again, a few moments of diligence, and a couple of hours of attorney time can save massive headaches later on.
Cybersquatting really describes failing to respect boundaries in the world of intellectual property and cyberspace. Here's your free legal advice for the day: Do NOT use the name of a trademarked product or company name in a web domain name you register UNLESS it is for purposes of criticism, such as the so-called "companyxsucks.com" sites. I've seen multiple examples of people who break this rule and find that "company x" has sued them for tens, if not hundreds, of thousands of dollars. When I defended owners of legitimate criticism sites, I've won. For those of you who dream of profit instead of criticism, however, IF you're lucky the company will settle, provided you pay their attorney fees (which almost always end up being at least ten thousand dollars) and relinquish your domain name. The bottom line is this: Cybersquatting is ILLEGAL. The internet Gold Rush to register names and sell them to others for a tidy profit is OVER, replaced by specific laws written, for the most part, by the very companies now suing to control their names. If you still want to speculate on domain names, make sure those names involve common words that have no secondary association with any company's goods or services.