New Home & Construction Defect Litigation

I am proud to report that my wife and I have realized one of the cornerstones of the American dream – we have just purchased our first home! This was no easy task considering the current financial situation of our country and the hesitancy of banks to loan out money. Somehow, someway, we put in one offer on one home and that is the house we got … and we couldn’t be happier.

For the past two weeks we have been knee (and elbow deep) in primer, plaster, paint, padding, carpeting, and other niceties of home improvement. All you have to do is take a look at the paint that is clumped on my forearm that is making the hair on my arms stick together. I almost feel as though I am an unwitting participant in one of those home makeover shows.

Aside from the joys of home ownership and now being able to safely store all my daughter’s stuff, I have realized what a chore that home ownership will be. Leaky pipes, leaky roofs, leaky windows, mold … the issues and responsibilities are endless and I have my first $600 plumbing bill to show it – looks like I can’t just call property management anymore. When did plumbers start making more money than attorneys anyway?

I also harken back to the words of the experts from Pete Fowler Construction Services. We now have four of PFCS’s courses hosted on our website, taped at various lunchtime events around Southern California. Having worked in the trenches for a number of years President Pete Fowler and licensed architect Paul Kushner are experts in many areas of construction defect and have seen many types of construction defect claims.

If you need help deploying your expert witness in construction defect litigation Mr. Fowler and Mr. Kushner provide an informative and entertaining look at how to get the best results from you expert at trial in Construction Defect: Expert Witness. Knowing and understanding the expert in a construction defect case, making the right tactical decisions, and taking the time to prepare will pay off in a successful verdict or settlement. Areas covered in this course include expert witness preparation, designation, planning, presentation, performance and pitfalls to avoid at trial. Even it you don’t practice in construction defect litigation, this is an incredibly entertaining course and the information gleaned can be transferred over to other practice areas.

In Mold Management: What Have We Learned, Mr. Fowler cuts through the complexity and media hype to focus on the real issues surrounding mold. Mold is nothing new – it has been around for thousands of years and there are even accounts in the bible – it has just come to the forefront of litigation over the past decade. Mr. Fowler provides reliable sources of information for its management and introduces a framework for the professional handling of situations where mold might be present in occupied buildings. The presentation starts by describing the state of the legal landscape, details professional standards and practices, illustrates the dangers of mold, and finishes by thoroughly detailing the mold management method – a comprehensive six phase process for properly handling mold claims.

Construction Defect: Building Codes & Standards is for the legal practitioner who needs to understand how codes and standards affect the construction of buildings and how violations or deviations from codes and standards can place the general welfare of the public at risk and can expose the design professional and construction professional to legal liability. In this in-depth presentation, Mr. Kushner deals with how codes and standards have evolved through the ages to provide for the health, welfare, and safety of the general public and how they continue to evolve today. Design professionals must design in compliance with codes and standards, general contractors must build to conform to codes and standards and building officials are entrusted to enforce codes and standards.

In Building Wall Inspection & Testing Mr. Fowler describes how the built environment has changed over the years. It used to be that Owners would hire experienced, hard working Architects and Engineers who developed plans and specifications that were not perfect – but good enough – that experienced, hard working General Contractors could hire experienced, hard working Trade Contractors to do the work of making a project happen. The construction was relatively simple and our expectations were less than perfection, so most projects were considered acceptable. Now we have consumers who expect increasing quality and decreasing prices in all products, a building industry that is not keeping pace with the quality and price advances many industries are making, and consumers who are more litigious than ever. The built-environment has been altered in the last 20 years, including increased complexity, less fault-tolerant materials, and tighter, slower drying buildings, and consumers are more conscious of building-related health issues than ever.

As President of Pete Fowler Construction Services, Pete Fowler is active as a General Contractor, Certified Professional Cost Estimator, Certified Inspector, Construction Consultant, author and speaker regarding construction topics. Focusing on construction projects and buildings suffering distress, Mr. Fowler has analyzed damage, performed testing, specified and overseen repairs, performed repairs as a contractor and testified on a wide variety of construction issues. Mr. Kushner is a California licensed architect with 20 years experience in the design and development of residential construction projects. He has an extensive background in coordinating and leading multi-disciplined complex construction litigation for both plaintiffs and defendants including planning and directing of invasive testing programs, analysis of collected interdisciplinary inspection data, preparation of scopes of work, coordinating cost estimates.

Thank You Washington: The Repeal of the Estate Tax

I came across this one on Law.com this morning over my morning cup of coffee at Starbucks:

A 77-year-old Texas billionaire’s death two months ago comes at a fortuitous time for his heirs because of a quirk in the U.S. estate tax.

Oil pipeline tycoon Dan Duncan may be the first U.S. billionaire to die within a one-year window of exemption from the estate tax, the New York Times reports.

His reported $9 billion in wealth would have been taxed at a tax rate of at least 45 percent if he had died three months earlier, the story says. If he lived until next year, the tax rate would be 55 percent.

The window was part of an estate tax bill signed into law in 2001. Democrats had sought to eliminate the 2010 window, but failed to reach an agreement in December. Even if a bill passes this year, it’s unclear whether it will be applied retroactively, the story says.

Yes, one of the most disturbing things to take place in the law this year is the repeal of the estate tax – or the “death” tax – as George W liked to call it. I know it’s not quite scary as the new Nightmare on Elm Street movie, but for legal practitioners that deal with wills, trusts, and probate matters there could be no bigger nightmare than the story of Dan Duncan. What is most troubling about the current situation is the partisan bickering and gamesmanship that has brought us to this point – complete uncertainty. It’s the beginning of June and nothing is even on the horizon, and nobody seems to think that Washington is going to get anything done until after the November elections have concluded.

If you don’t normally deal with estate matters, the disappearance of the estate tax on January 1, 2010 brings unintended consequences for many wills and trusts this year, and the threat of client dissatisfaction and lawsuits for legal practitioners. At this point everyone is asking what exactly can you do in these uncertain times? And the only answer anyone seems to have – who knows? I think if you talked to five different attorneys you would get five different answers because nobody knows exactly what’s going on.

If you need some enlightenment in this area please join S. Andrew Pharies in The Estate Tax: Tips for Practitioners as he details the issues surrounding the repeal of the “Death Tax,” presents four possible scenarios for resolution, talks about the effect of the repeal, discusses interpretive issues, and closes his presentation with a discussion of Professional Responsibility and malpractice liability. Mr. Pharies’ practice encompasses estate planning, charitable planning, post-mortem trust and probate administration and litigation, exempt organizations, transfer tax (estate, gift, and generation-skipping) planning, income tax planning, business planning, and tax litigation. He is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization.

Cybersleuthing: Be Your Own Online Clouseau

Hello out there in cyberspace! First, I just wanted to thank you for reading the Attorney Credits blog, I hope you find some useful information on our site that can benefit you in your personal practice. We have made an attempt this year to reach out to attorneys throughout the country this year with our social media effort. Hopefully, between our Facebook page, our Twitter page, our MircoSeminar series on YouTube, and our LinkedIn discussions you have found something that benefits you professionally – or at least just makes you chuckle over your morning cup of coffee.

While we are on the topic of the Internet, try something for me right now. Open up whatever browser you may use – whether its Safari, Firefox, Explorer, etc. – and run a quick search of your name on Google or one of the numerous other search engines (Google comes to mind for many, but there are plenty of other search engines out there). What comes up? Throw in your middle initial and run another search. Are you surprised by what you find?

You may be. That’s because there has been a major push recently to aggregate personal information out there. I ran a quick search of one of my friend’s names on pipl.com looking for his address yesterday and I came up with some mortgage information that I could buy from another site. I was kind of surprised by that. Then I ran another search using my name – I was amazed at how many Jason Castillos there were out there. I didn’t think it would be such a common name. At least there are much fewer Jason Scott Castillos, and as soon as I used my middle name in the search the first thing that popped up was a picture of my ugly mug on 123people.com.

Now, a few last points to try and sum this all up. First, it’s amazing what you can find out there on the Internet. The Internet has been in mainstream use for over a decade now and it has accumulated a lot of information – it’s all just a matter of knowing how to find it. Second, there is a whole heck of a lot more out there than just Google. Google is just the most widely known search engine, and it’s a good thing they own half the world or “google” may eventually become genericized. From Spokeo to Baidu, there are many other search engines that aggregate information.

Lastly, these recourses should now be of great importance in your practice because they can help you to run a more efficient firm. The Internet can be used to find many things for attorneys – assets, witnesses, trustees, information about a potential employee, the owner of a patent, copyright or trademark – it all just depends on your practice. If you need help gleaning these online detective and research skills, you can learn how to utilize this new online environment to its fullest potential in Cybersleuthing for the Legal Practitioner. In this great new course, our panelists discuss both free and commercial websites that attorneys from all practices can utilize in order to more effectively deliver legal services to their clients. Websites discussed by our four panelists include LexisNexis, Westlaw, Dun & Bradstreet, Morningstar, Accurint, Switchboard, Spokeo, pipl, Black Book Online, Facebook, Twitter, YouTube, government websites and more useful online resources.

This course can serve as an asset in your everyday practice, and the skills learned can save you a lot of time and money.

Temporary Repeal of the Estate Tax

One of the most disturbing things to take place in the law this year – the repeal of the estate tax, or the “death” tax as Georg W. liked to call it. I know, it’s now quite scary as the new Nightmare on Elm Street movie, but for practitioners that deal with wills, trusts, and probate matters there could be no bigger nightmare. What is most troubling about the current situation is the partisan bickering and gamesmanship that has brought us to this point – complete uncertainty. It’s the end of May and nothing is even on the horizon, and nobody seems to think that Washington is going to get anything done until November once the elections have concluded.

What is this nightmare you ask? Well, if you don’t normally deal with estate matters, the disappearance of the estate tax on January 1, 2010 brings unintended consequences for many wills and trusts, and the threat of possible lawsuits for legal practitioners. At this point everyone is asking what exactly can you do in these uncertain times? And the only answer anyone seems to have is who knows? I think if you talked to five different attorneys you would get five different answers because nobody knows exactly what’s going on.

Join S. Andrew Pharies in The Estate Tax Repeal: Tips for Practitioners as he details the issues surrounding the repeal of the “Death Tax,” presents four possible scenarios for resolution, talks about the effect of the repeal, discusses interpretive issues, and closes his presentation with a discussion of Professional Responsibility and malpractice liability. Mr. Pharies’ practice encompasses estate planning, charitable planning, post-mortem trust and probate administration and litigation, exempt organizations, transfer tax (estate, gift, and generation-skipping) planning, income tax planning, business planning, and tax litigation. He is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization.

The Nuts & Bolts of Criminal Law

As Director of Legal of Legal Education with Attorney Credits I am very proud of the programming that we have put together on our website for attorneys. When I first began this task my goal was to create courses that were both educational and entertaining, and that would benefit you in your practice – without wasting your time and breaking the bank.

At this point in time, the day before Memorial Day weekend I think we are beginning to achieve our goals. Over the years we have had the pleasure of working with some incredibly bright minds and personalities from all over Southern California. And now that we are beginning to make our mark nationally, we have also welcomed begun to working with attorneys from around the country. We have recently begun a partnership agreement with New York Criminal Defense Attorney Michael S. Discioarro who provides an incredibly practical overview of running a criminal practice. We will be eventually be producing ten courses together, and right now we are hosting two webcasts on Ethically Managing Criminal Clients and The Criminal Arraignment.

When it comes to these courses the phrase “nuts & bolts” comes to mind. After taking two of his courses I feel like I could start my own criminal practice. Mr. Discioarro reminds me of Howard Cosell – he tells it like it is and he pulls no punches. This grittiness has been earned in his years of experience as an Assistant District Attorney in Bronx County, a litigator with a Manhattan firm, and now in his own private practice.

One great point that he makes in Ethically Managing Criminal Clients is that these clients are just a little different than clients in other practice areas. Unlike clients in civil proceedings, criminal clients face loss of liberty and loss of livelihood – a very daunting proposition to deal with. Mr. Discioarro also discusses many pertinent topics relating to criminal clients, including the standard for an ineffective assistance of counsel claim, the line between zealous defense and unethical conduct, the five types of challenging clients, fees, court appearances, practice issues, and firing the client.

Topics discussed in The Criminal Arraignment include how the process works and how you can represent your client to the fullest at this stressful point. Subjects covered include the initial call, getting paid, fees, gathering information, dealing with police, making contact with the client, starting the investigation, the purpose of arraignment, formal charges, the plea, bail, using a bail bondsman, and meeting after the arraignment.

And these are just the first two in a series of ten courses on criminal law and Mr. Discioarro uses excellent examples from his everyday cases to teach attorneys how to handle specific situations – from dealing with stressful clients to managing family members. In addition to his private and public service Mr. Discioarro also formerly taught criminal law at Hunter College and John Jay Criminal Justice.

Cybersleuthing & Intellectual Assets

On Thursday night I had the pleasure of taping another wonderful event with the North County Bar Association here in San Diego. It was a great dinner on a beautiful Southern California spring evening, and there was a wonderful presentation on Cybersleuthing – or more appropriate title ‘digging up dirt online.’ It was a great presentation that instructed attorneys how to find witnesses, assets, and evidence online from both commercial and free resources. One key point that was brought up by one of the speakers was using online recourses to find intellectual assets.

In a recent case, one attorney in the room had used a website to deduce that one of the defendants in the case owned some patents to some medical devices. She was then able to garnish the stream of royalties from those patents to satisfy the judgment. A few points struck me upon hearing that. First, very creative lawyering to find the patents and then to use the stream of royalties to satisfy the judgment. The attorney had first attempted garnish the patent itself – but there was no case law on the subject and the federal statutes don’t address the matter. Second, the attorney used free online resources (including many government sites) to track these intellectual assets down. Lastly, this brought out the point that intangible assets have become very important in the Digital Age – inventions, songs, computer programs, publicity rights, sounds and smells – and they have increasingly become an integral part of society and litigation.

Ironically, we just taped another great course last week with CONSOR®, an intellectual property consulting firm based here in La Jolla, California. If you answer yes to any of the questions listed below this course is for you:

• Have you ever wondered what Woody Allen’s publicity rights are worth?
• How about Marlon Brando post-mortem publicity rights?
• How much is Adidas’ distinctive three-stripe trade dress worth?
• Or what intangible assets where left after the Tower Records bankruptcy?

If you stay up late at night like I do pondering these questions, we have the answers that you need. In Valuing the Intangible – Where to Start? Weston Anson, Lewis Koppel, and Justin Skinner utilize seven case examples to highlight the importance of intangible assets in today’s economy, why they are relevant to your practice, the methods used to value these intangible assets, and how to quantify these damages in litigation.

Even if you are not an intellectual property attorney, these intangible assets are increasingly a part of just about every deal, litigation, or estate, and the issues presented in this course touch on many practice areas – from real estate to divorce. For example, in the Marlon Brando case example the IRS was interested in valuing Mr. Brando’s post mortem publicity rights to help satisfy certain judgments. And these intangible assets can be used in transactional financing in order to serve as collateral for loans.

The seven case examples used to illustrate these issues include Woody Allen v. American Apparel (right of publicity), Adidas v. Payless Shoesource (trade dress), Tower Records (bankruptcy), The Estate of Marlon Brando (estate and tax planning issues), IP Securitization (transactional financing), Upaid Systems v. Lanza (cross border licensing), and ResQNet v. Lanza (use of comparable transactions in valuation).

What's the Difference Between Email and a Pager?

Since I have a science background, the intersection of law and technology has really fascinated me over the last few years (I attended UCSD and studied cellular and molecular biology as an undergraduate). We all knew that the technology was coming and that it was going to revolutionize our lives, we just didn’t know how it was going to affect us. Aside from people now building farms on Facebook and kids being unable to put the phone down – there are many changes in society that have resonated into the law. While many attorneys may be slow to accept and to adjust to these new technological changes in society they can no longer be ignored and our courts are crafting new precedents every day.

Of late, one crucial question that has yet to be fully resolved centers on cell phones, text messaging, an employee’s right to privacy, and the employer’s right to monitor. A reader posed this question on the Attorney Credit’s LinkedIn Discussion post on Friday after he read an earlier blog post on the same subject. The question posed:

Is it a violation of privacy for an employer to read your personal texts?

My answer – like many legal answers “it depends.”

This has turned out to be an extremely complicated question and the answer depends on many specific factors and what part of the country you are located in. There has been a split amongst the courts in this country and we are currently awaiting guidance on the matter from the SCOTUS.

A few weeks ago the Supreme Court heard oral arguments in City of Ontario, Calif. v. Quon, a case that will clear up some of the confusion. However, its application may be practically limited because of its specific set of facts. At the appellate lever, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

In Quon, the general issue is whether an employee has a reasonable expectation of privacy in their cell phone text messages. It is a topic I blogged about back in December, and although it does seem like a crucial case on the subject, the holding may be more limited in practice. First, a public – not private – employer was involved in the case. Second, the phone was owned by the police department, but Quon paid for overages when he exceeded the text message limit set by the police and he was off-duty at the time the text messages were sent. Lastly, Quon’s police sergeant subpoenaed Arch Wireless for the records – something a private employer would have a tough time accomplishing. At the appellate level, the Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.

This has been a hot button topic in the last few months and a quick search will reveal that many blogs have covered the topic. As reported by Law.com, it is not clear which direction the Supreme Court will go on this issue and there are many facts that must be dealt with. What is an employee’s “reasonable expectation of privacy” in their electronic communications? Are texts the same as email or a phone call? Can an employer completely disclaim an employee’s right to privacy in all digital communications by inserting such language in the AUP (Acceptable Use Policy)?

Of course, I enjoy blogging about this topic and it highlights the tricky issues we all face in our new electronic world. One of the main arguments that Quon’s lawyer presented was that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office. However, is communicating by text the same as sending a letter through the U.S. mail or an email through an ISP?[1]

These issues even invoke the Constitution and Deputy Solicitor General Neal Katyal cautioned the Court about generalizing Fourth Amendment rules in this area. As he aptly point out the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs. However, I find this rationale to be flawed for one main reason – the law will never catch up to technology. Technology moves way too fast for the law to ever keep up at the same pace.

One last issue to ponder … is the Supreme Court even equipped to properly decide these issues? During oral arguments, Chief Justice John Roberts asked what the difference was between an email and a pager. And this body will continue to craft the law in this area for years to come …. let’s hope they have some tech-minded clerks!

[1] This is a very unsettled area of law. In Rehberg v Paulk, the 11th Circuit recently held that a party has no privacy rights to email because email is “information you have turned over to a third party.”