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We will be posting helpful info on this blog from time to time so be sure to check in with us and see what is going on.

Outrageous distribution of private photos results in a plaintiff’s verdict and punitive damage award

In Spring of 2007 The Law Offices of Smith/Coonrod partnered with Lawson Law Office to represent a client who had suffered damages when her ex-best friend emailed sexually explicit photos of her to her mother, ex-husband, ex-in laws, boss and co-worker. Smith/Coonrod pursued her claims for invasion of privacy and intentional infliction of emotional distress, and her mother’s claim for intentional infliction of emotional distress. Judge Melgren allowed the claims to proceed through summary judgment. No significant offer of settlement was ever made by the defendant. The defense essentially took the position that by permitting the photos to be taken plaintiff implicitly agreed to their distribution, and that the defendants actions were justified because he  was “emotionally hurt” by plaintiff ending the relationship. Rachel Smith, Brett Coonrod and Chris Lawson represented the plaintiffs at trial. After a jury trial that lasted most of a week the eight person jury found unanimously in favor of plaintiffs on all counts, and awarded damages and punitive damages. It was a victory for the right to privacy in the digital age.

Are your windows doing their job?

Some of the most important components of your home are the windows. They provide access to light and fresh air while protecting you from the elements. When windows are improperly installed or defectively manufactured they can allow moisture to enter your home rotting its structured elements and causing the build up of potentially toxic mold. Manufacturing defects can include bad seals, gaps in the corners of the windows, improper joining of multiple windows, etc. The Law Offices of Smith/Coonrod has handled cases involving defective windows and has recovered six figure settlements for its clients. If you think you might be having water intrusion from defective or improperly installed windows please give us a call for a free consultation.

Arbitration

Arbitration is becoming increasingly popular as an alternative to litigation to settle business disputes. Generally, when arbitration occurs it is because the original agreement that is the subject of the dispute includes a clause requiring arbitration. More rarely the parties will agree to arbitration in a separate agreement after the dispute has arisen. Arbitration generally involves the submission of the dispute to a panel of one or three arbitrators who make a binding decision that can be enforced in Court. Just like in a case tried in a court, the parties conduct discovery, take depositions, use experts where appropriate and present evidence under oath. Usually arbitrations are conducted under procedures and rules set by an organization such as the American Arbitration Association whose business it is to oversee alternative dispute resolution programs.

Arbitrations have both advantages and disadvantages over traditional court proceedings. Generally, the disputes resolve in a timelier manner, as you are not at the mercy of a Court’s overcrowded docket. However, they are often much more expensive. The filing fee generally depends on the amount of the claim and can be several thousand dollars. This is in contrast to the fee for filing a case in Court, which generally does not exceed $350.00. In addition, you have to pay for the arbitrator’s time and often a rather steep administrative fee to the agency overseeing the proceedings. These fees sometimes put the ability to obtain a resolution of a claim outside the reach of an individual or small businessperson. All of these things should be considered when entering into any contract containing an alternative dispute resolution clause. You should consider discussing your rights and obligations under such provisions with your attorney.

Mediation is a useful tool for resolving litigation

Mediation is becoming a common practice and is one that can be of significant benefit to the client. Mediation involves an impartial person (usually with significant trial experience) listening to both parties and helping them reach an agreed settlement. It is not binding and either party can walk away from the negotiations at any time. The primary reasons mediation is good for a personal injury clients is that it gives the client an opportunity to present their case and air their grievance, it minimizes the risk of a trial, it is less expensive than a trial, it is less stressful than a trial and if successful, it permits the client to achieve satisfaction more quickly. It is even better when your case is filed in a conservative venue, particularly for slip and fall or automobile cases. Mediation does not always work but I believe it is almost always worth trying.
Most defense attorneys will not come to the mediation in bad faith because their client is going to be paying for the mediator’s time (the bill is split between the parties). If the mediation is Court ordered this is a slightly trickier proposition. Some tips for a successful mediation include preparing appropriately. It is critical to attend with nearly as much knowledge and comfort as you would attend trial. The negotiations will be much more successful if your attorney can present a strong case to the mediator and through him the defendant. You will impress the mediator and if you and your attorney are able to respond to questions and arguments with reference to the records, your experts and if necessary, case law. It is important to use a mediator who has a reputation for understanding the law and getting the job done. It is not nearly as important whether he or she used to be on the plaintiff’s side or the defense side- it is important that he or she brings credibility with both sides, the ability to understand and analyze the law and the intention to resolve the case that day.

Big Brothers Big Sisters of Greater Kansas City

At the Law Offices of Smith/Coonrod we have made a commitment to making a positive contribution to our community. One of the important ways that we have accomplished that is through our involvement with Big Brothers Big Sisters of Kansas City. I have been involved as a Big Sister since 1998 and first became a Board member in Douglas County in 2001. I am currently on the Executive Board of the BBBS of KC and serve as general counsel for the organization. I am being matched today with my new Little Sister, who is one of the participants in the Kauffman Foundation Match Program. I have also recently become a Friendship Foundation Donor. I am a team captain for the annual Bowl For Kid’s Sake fundraiser and have consistently been a top fundraiser in that regard.
The firm has also made a commitment to BBBS. We have a donation bin at our office for anyone who wants to come by and drop off clothing or household items. The proceeds from the sale of these items support the organization. The Law Offices of Smith/Coonrod also makes a financial contribution to BBBS. We are very proud to be involved with an organization that is committed to helping children through mentoring. If you would like more information on volunteering or contributing to BBBS please call me or go to their website at www.bbbskc.org.

Rachel Smith
rsmith@smithcoonrod.com

Northeast Johnson County Chamber of Commerce

I am pleased to announce the Law Offices of Smith/Coonrod will be joining the Northeast Johnson County Chamber of Commerce. This will provide an excellent opportunity to partner with the Chamber, network with members and provide exposure to both new and experienced entrepreneurs and small business people throughout the area, as well as other potential clients and colleagues.

Rachel Smith
rsmith@smithcoonrod.com
www.smithcoonrod.com

Business Buyer Beware

Every business owner or prospective business owner who is contemplating buying a franchise needs to be very wary of entering into such an arrangement without adequate professional assistance to evaluate whether it is, in fact, a beneficial arrangement. The recent Brooke Insurance bankruptcy, and the events leading up to that, serves to demonstrate this point. Over three years ago our firm was hired to represent a Brooke franchisee in Florida who had purchased a Brooke franchise and borrowed money from a sister company of Brooke to finance the purchase. In spite of being a seasoned insurance professional, the agent, under the constraints of the Brooke system, could not make a sufficient income to pay the debt service and the expenses necessary to keep the office open. Our firm was able to negotiate a buy back of the agency allowing the agent to get out of debt and actually walk away with some additional cash. What followed was three years of representing Brooke agents from around the country who had similar, if not identical, problems.

While the problems these agents encountered may have been unique to the Brooke system and would not be general issues faced by all franchisees, there were a lot of “red flags” in the agency documents that a competent legal advisor should have been able to see and advise the prospective franchisee of the consequences of such an arrangement. While your attorney, accountant, etc can point out these potential problems only you can make the decision as to whether or not you are comfortable with the arrangement. It is the job of the hired professional to make you aware of these concerns but, of course, in some instances the business person will decide he is willing to take the risks involved in spite of these potential issues.

Some of the “red flags” that might be of some concern to a potential franchise owner include inadequate access to financial information, both regarding the overall franchise system as well as the actual franchise itself. In the Brooke system, for example, the insurance carrier paid all commissions directly to Brooke who then took out their portion and remitted the balance to the franchisee. This was done with entirely inadequate backup documentation and the franchisee was often unable to tell without extensive additional research whether the amount remitted was correct. Brooke made it difficult if not impossible for the franchisee to review the record of commission payments by the insurance carrier to ensure that the payments remitted by Brooke were correct.

Some of the other factors that might make you question the wisdom of entering into such an arrangement include financing of the franchise purchase by the franchisor or a related entity, whether the franchisor or related entity is the party that does the due diligence for the transaction (often for an additional fee), whether the franchisor “helps” you locate an attorney to issue an opinion letter as to the details of the transaction. Look closely at what specific support the franchisor promises to give. Often these obligations are vague or specify that the support will be that which the franchisor determines is appropriate. That doesn’t give you much of a basis for insisting that they give you any assistance at all. There are a number of other such concerns that may arise in such agreements that your attorney or other professional can point out and on which they can give you advice.

It is normal to be excited by what one sees as a great opportunity. Most of us have made a purchase or entered into a contract in spite of concerns that it might not be the wisest course just because we really want to do it. Obviously that is not the best course of action when an investment of your time and money is involved. In spite of your enthusiasm for a business venture take a step back, hire the necessary competent professionals and seriously consider what the ramifications of entering into the agreement really are.

At The Law Offices of Smith/Coonrod we are happy to assist you in any business transaction and will work with other professionals of your choosing, or which can recommend, to ensure that you get the best possible advice and counsel BEFORE entering into a new business venture.

What is a contingency fee contract?

I often spend a lot of time at the beginning and the end of a relationship with a client explaining what a contingency fee agreement is and how it works. Generally speaking a contingency fee contract is an agreement by which the fee is only payable if there is a favorable result. It is very commonly used in personal injury and other plaintiff oriented litigation. Typical contingency fees in the Kansas City area range from one third to one half, with variation by firm, type of case, and the stage of litigation at which the case is resolved. The benefit of a contingency fee agreement is that the attorney or law firm takes the case without being paid a retainer or hourly fee, and generally they pay all of the case related expenses. Additionally, if there is no recovery the client pays nothing and is not responsible to pay for the case expenses. (Case expenses typically include the cost of medical records, depositions, filing fees and expert witness fees and often run into the thousands of dollars on any case, and the tens of thousands in a medical malpractice case). What I have found is that clients are very happy to have a lawyer take their case on a contingency at the beginning when they are spared writing a big retainer check, and very unhappy at the end when they read in the settlement statement that one third of their great recovery will be paid to the attorney. Some things that are important to remember if you are considering signing a contingent fee agreement. First, I would bet that 99.9% of attorneys will take your case on an hourly basis if you are prepared to pay them. Most people prefer to avoid that kind of financial commitment, and many simply can’t afford to pay a lawyer $200 an hour, especially when they learn how many hours go into litigating a case. Second, the average amount of time between filing a case and resolving it is 18 months (that does not consider the time spent investigating and preparing a case for filing). That means that a lawyer will spend tens or hundreds of hours (that they might be billing at $200 an hour) on your case, for a year or two, without being paid a penny. The law firm will pay all of the people who are necessary to move your case forward, including some very expensive experts (I have seen doctors who charge $1400 per hour to work on a medical malpractice case- yes- per hour). The lawyer will also pay the court reporters, mediators, consultants, investigators and various fees related to filing and litigation. The figure a lawyer receives at the end of the case may seem high until you factor the time and resources that have gone into prosecuting a case diligently and aggressively.  And there is always the possibility that a jury will decide that the plaintiff is not entitled to any recovery at all, in which case the client owes nothing and the lawyer receives nothing.

Some other things to consider are that a plaintiff will be responsible for their medical bills out of their portion of the recovery. The damages a plaintiff claims will include medical bills, lost wages, property damages among others. When a plaintiff settles a case or wins a judgment they are being compensated for bills they have incurred and sometimes pain and suffering. A good lawyer may be able to help you reduce your medical obligations depending on the circumstances, but they are the client’s responsibility (and often the basis of the settlement).

Also, have your prospective lawyer explain all of the details of the contingency contract before you sign it. And don’t trust a lawyer who tries to make you sign up before you have time to think about it, reflect and ask questions.

Get a second opinion

I have worked up and successfully resolved a number of cases that have been turned down by other attorneys. If you have had a lawyer look at your case and they have declined it, get a second opinion. Lawyers have different experiences, different perspectives and different priorities. Some lawyers don’t like to file cases in Johnson County, Kansas. Some lawyers don’t like slip and fall cases. Different firms may have access to different experts who will take a more favorable review of your case. Since generally plaintiff’s lawyers will look at your case for free, it does not hurt to have someone else spend a little time discussing your options with you. Be honest with that lawyer if another attorney has told you “no”. In fact, if I am reviewing a case that have been looked at by another firm I often call and discuss it with that attorney. I find it useful to have that lawyers point of view even if I might not agree with it. If I feel I might have more success for some reason I will share that with the client and hopefully move forward. Likewise if I decline a case I generally encourage that person to look elsewhere. I hope each person who believes they have a claim is able to find a good attorney to handle it. I appreciate the opportunities I have to meet prospective clients and will help them try to find someone if it does not happen that I can take the case. Likewise I value meeting with prospective clients who have not yet found the right fit or have not found someone willing to take a chance on their case.

Hire someone with experience

It constantly surprises me how often folks hire their acquaintances to handle serious personal injury cases. It makes sense that you want a familiar face during a difficult time. However, I find over and over again that we inherit cases because the divorce lawyer who said they would help out does not have the time or inclination to actively and aggressively pursue a case that is both outside of their comfort zone and also does not pay like their hourly cases do. Take the time to talk to a couple of attorneys about your case. Generally personal injury attorneys will talk to you for free because they want your business. Walk away from anyone who won’t answer your questions, tell you about their experience or who tries to pressure you into signing a contract before you leave. You will be trusting the attorney you hire with your future and you deserve to feel comfortable about that decision.