An Important Job Being Done by a Lawyer in a Personal Injury Case

Personal injury cases are supposed to be built on a triangle of three important participants. These participants are supposed to be the claimant, the accused or the guilty party and a specialist and professional lawyer. Lawyers have a very vital role that is to be played in order to assist the deliverance of justice to the deserving ones. In this modern world of ours, where there is vast sea of information related to every aspect of life, there are those individuals also who try to deal the negotiations with the third party insurers on their own with out the assistance and guidance of specialist lawyer. Mostly such petitioners have to suffer consequently.

This is supposed to be the duty of a professional lawyer to satisfy the claimant who hires his services and this satisfaction can only be granted through the medium of a successful injury claim. Law cases are being associated with a lot of legalities and intricacies. These personal injury claims are also involve a set of intricate legal proceedings which only a lawyer can understand in the most apt manner.

There are a lot of such factors related to these procedures that a common man can not be able to decode them. This is the reason, it is always advised whether the claimant wants to go for settlement or for the legal proceedings, he should hire the services of a professionally skilled lawyer.

And an important thing to be kept in mind is the selection of a lawyer. You as a claimant are not supposed to get in touch with just any lawyer. Rather you are expected to appoint that lawyer who you know is the specialist one who practices in the field of personal injury claim cases. A bit of research is needed to be done beforehand so that a skilled and expert lawyer should be hired who will be able to guide you and lead the case in the best possible manner.

There are different types of injury claims and there are different types of lawyers as well who are practicing in the specific branches of injury cases like road accidents, professional malpractices, workplace injuries etc. The victim of a particular type of accident is highly recommended to consult that skilled lawyer dealing in that specific genre of personal injury compensation claims.

The lawyer not only lifts up the whole burden off the claimant’s shoulders but the expertise of that lawyer help a lot in winning the desired amount of the claim as well.

International Contracts

Culture and Contracts for International Lawyers

Lawyers working in international law oftentimes interpret, review, and advise their clients on contracts written by other international lawyers in foreign countries. Considering the great possibility for legal, linguistic, and cultural misinterpretations, it is important for international lawyers to become familiar with the types of contractual clauses that they see in such diverse contexts.

In understanding the commonly used clauses in contracts drafted by lawyers in other countries, international lawyers will be better prepared to explain to their clients the consequences and implications of contract language written according to the laws and customs of other countries. International lawyers may do work with clients and their legal representatives across the world. However, the purpose of this article is to help guide those lawyers practicing outside of the U.S. toward understanding the common clauses used in contracts written by U.S. lawyers.

Common situation

The international-contract scenario is easy to identify. It begins with a party in Mexico, for example, who contracts with another party in Germany. Or it starts with a Spanish company wishing to employ a French agent to work in Spain. While the parties negotiate the contract terms, one party’s lawyer may, in the end, write most of the contract due to the difference in the bargaining positions of the parties. The party whose lawyer drafts most of the contract has the advantage of including certain clauses with legal concepts that may be unknown to lawyers not practicing in that country. To avoid this situation of allowing unfavorable contract terms into a business deal, international lawyers should become familiar with – to the extent time and circumstances permit – the country’s laws and customs where the other contracting party resides.

An understanding of the typical contractual clauses used in the U.S. legal system is beneficial to those international lawyers whose clients contract with parties represented by U.S. lawyers. Because the U.S. legal system is based on the common law (judge-made law), typical contractual clauses encompass legal concepts of well-developed case law of which international lawyers may not be aware. The following paragraph and examples provide the basic background about the standard terms and conditions clauses normally included in many contracts drafted by U.S. lawyers.

Standard terms and conditions

A contract contains the standard contractual clauses and performance deliverables to which both parties agree. While the performance deliverables section of a contract provides the parties with general ideas of expectations, the standard terms and conditions section of a contract is just as important. Signing the contract binds a party to the common contractual clauses as much as it does to the performance deliverables clauses. In summary, the standard terms and conditions section may contain just as many or more calls to action as the performance expectations. Therefore, while a French agent contracted to do work in Spain may be more aware of his or her duties to carry out performance, the standard terms and conditions that also bind the agent are critical to the agent’s understanding of how to perform. This is because standard terms and conditions clauses in U.S. contracts generally lay the legal framework for how to interpret the contract, which law applies, dispute resolution options, etc.

The clauses contained in the standard terms and conditions section consist primarily of those clauses the parties include to protect themselves in case of breach of contract or potential litigation over contract terms or circumstances. A breach of contract may result, for example, from a breakdown in the parties’ relationship or a misunderstanding about performance or enforceable promises. To assist international lawyers with identifying and understanding common contract clauses to prevent a breach of contract for their clients, listed below are some of the typical contract clauses normally contained in a standard terms and conditions section of contracts. This list is not exhaustive, but it does contain some of the more commonly included contract clauses in the U.S. legal system.

Commonly called: Merger/entire agreement/complete agreement clause

Effect: This clause indicates to the reader that the parties have no agreement other than the agreement containing the merger clause. A merger clause pronounces an agreement’s completeness and restricts other prior agreements from consideration when determining the contract’s terms. The function of the merger clause is to keep out any “side conversations” when determining the parties’ intent captured in the contract at issue. The effect of this clause is that one agreement only governs the parties’ relationship.

Example: “This agreement represents the parties’ entire agreement.”

Commonly called: Modification clause

Effect: This clause generally requests that two contracting parties memorialize their modification in a writing that both sign. Important to the modification clause and its effect is the general rule that contract modifications typically require new consideration. Consideration is a common-law concept that refers to a bargained-for exchange. However, some types of contracts may not require new consideration for modification, so it is important to check (1) the type of contract and (2) the laws in the jurisdiction governing the contract. While the consideration issue may be more complex, a modification clause simply requests that amendments to the contract be in a signed writing. This writing requirement of the clause encourages the parties to negotiate any modifications before reducing their changes to writing and obtain a similar and clear understanding of what will be modified before any change occurs. However, oral modifications – despite what a contract says – may be effective depending on the U.S. jurisdiction.

Example: “The parties may modify the contract only by an agreement in writing signed by both parties.”

Commonly called: Employee or independent contractor clause

Effect: In a contract for services, this clause identifies whether one of the parties will be considered an employee or independent contractor. The greatest difference is that employers are responsible for certain financial and liability matters for employees, where those who hire independent contractors are not responsible for the same matters. In summary, an employee means more employer control but also more employer liability.

Example: “Mr. X will act only as an independent contractor for the ABC corporation. Mr. X is NOT considered an employee of the ABC corporation for the purpose of this contract for services.”

Commonly called:Confidentiality clause

Effect: A confidentiality clause or agreement defines what confidential information is, who must keep it private, and what the consequences of disclosure are. Confidentiality clauses may have exceptions relating to publicly known information or where the other contracting party consents to the disclosure of otherwise confidential information.

Example: “Mr. X, independent contractor, will not disclose confidential information obtained through Mr. X’s scope of services for ABC corporation.”

Commonly called: Conflict of interest clause

Effect: A conflict of interest clause restricts a contracting party from engaging in relationships, transactions, or circumstances external to the contract at issue. The purpose of the clause is to prevent a conflict of interest from arising between the contracting parties. A conflict of interest issue may arise due to a party’s personal situation or position.

Example: “Contractor has disclosed any interest that presents or may present a conflict of interest. Contractor will disclose any actual, apparent, or potential conflict of interest that arises throughout the term of the parties’ contractual relationship.”

Commonly called: Choice of law clause

Effect: A choice of law clause identifies where the contracting parties prefer to litigate issues arising from the contract. Usually, the party who drafts the contract chooses the applicable law. Other jurisdictional issues may become relevant in the future if litigation arises.

Example: “The laws of the State of Delaware will govern this contract.”

Commonly called: Dispute resolution clause (commonly involving arbitration and waiver of jury trial)

Effect: These clauses tell the reader whether either party has waived some type of dispute resolution option. A contracting party may want the other party to opt out of certain dispute resolution options in light of likely costs and inconveniences.

Example: “ABC corporation agrees to resolve all matters arising from this contract through arbitration.”

Commonly called: Severance clause

Effect: This clause refers to the situation where a court determines that part of the contract is illegal or unenforceable. The clause states that in this case, the validity of the remaining portions of the contract is unaffected.

Example: “If any of the provisions of this agreement contravene or are invalid under state or federal laws, this finding will not invalidate the whole agreement.”

Commonly called: Indemnification clause

Effect: This clause states that one contracting party will indemnify (reimburse) the other for failure to meet a contractual obligation or other illegal or damage-causing action.

Example: “ABC corporation shall indemnify, defend, and hold DEF corporation harmless from any and all liabilities, damages, penalties, claims and expenses (including defense and settlement costs) resulting from any breach of this agreement.”

Conclusion

This article clarifies some of the most common clauses found in the standard terms and conditions section of a contract drafted by a U.S. lawyer. While the explanations and examples of the clauses are generally consistent across a wide variety of U.S. contracts, these clauses vary depending on the U.S. jurisdiction in which the drafting lawyer is licensed or the interests of the party drafting the clause. As a result, international lawyers should carefully read and assess the standard terms and conditions of the contracts that guide their clients’ contractual obligations. Even if U.S. law does not govern the contract at issue, understanding and recognizing common U.S. contract clauses will allow international lawyers to better help clients to perform on contracts in a way that does not offend U.S. cultural notions of compliance and fairness.

In understanding contractual clauses common to any particular legal system, both international lawyers and clients will be more prepared to fulfill contractual obligations and maintain healthy international business interests and relations.

Melanie Glover & Marina Bugallal

Startup Law 101 Series – Key Legal Rules For Who Owns the IP Relating to Your Startup

As a founder, you need to understand work-for-hire. Why? Because it determines who owns key IP in your startup.

Copyright laws protect creative works, including IP that you develop. When you develop IP for others, the work-for-hire idea affects who owns it.

How does it work?

Here are some guidelines:

1. You develop IP for your startup as its employee — the IP belongs to your employer. Pretty basic. This is a classic work for hire.

There are gray areas but, if you create IP while doing employment duties for which you are paid, there is no ambiguity. All IP relating to such work automatically belongs to your employer, whether or not you signed any agreement relating to it.

2. You develop IP for your startup as a consultant and are paid for that work, but have no agreement in place relating to the IP rights — it might surprise you to learn that the IP here would belong to you and not to your startup.

Why? Because the default rule under copyright is that the creator of a work owns the copyright unless (a) it is done as a work for hire or (b) it is expressly assigned under a contract to the other party.

Contractor work is a work for hire only if there is a contract identifying it as such and, in addition, the work falls within certain specified categories of types of work that qualify as works made for hire.

No contract, no work for hire.

No contract, no assignment.

Thus, with no contract specifying that it is a work for hire and with no assignment, the default rule kicks in to provide that you own the copyright to the IP you created even if you were paid for your work.

3. You develop IP for your startup as a contractor and are paid and have a work-for-hire agreement that contains no express assignment provisions in it — again, perhaps surprisingly, you still would own that IP if it involved a software development effort.

Why? Because software development does not fall within the specified categories that would allow it to qualify as a work made for hire in the contractor situation.

Thus, to ensure that IP rights to software are transferred from the contractor to the startup, you will routinely find language in work-for-hire agreements that says, in effect, “this is a work made for hire but, just in case it isn’t, the contractor agrees to assign all IP rights anyway.”

4. Which brings us logically to our last case, that of the contractor who develops IP for a startup, gets paid, and does the work under a work-for-hire agreement that characterizes the work as one made for hire and that assigns all IP rights to the startup — in that case, the startup owns the IP rights free and clear and you retain no rights to the IP.

How might these guidelines play out in practice for you as a founder?

We can assume that you would want your startup to own all its IP. What are potential problem situations by which the startup could face claims from founders or others that parts of the company IP belong to them separately, with at best only a license to use it extending to the company?

Let’s look at some cases to see how the guidelines might apply when we strictly consider work-for-hire (for your specific case, see a good business lawyer.

You and your buddies are developing IP for a startup you hope to launch. There is no entity. Ergo, there is no employment relationship and there is no contract between you and any entity (nor, typically, between you and any other person) relating to your development work.

Quick quiz: who owns the IP rights to your work under work-for-hire principles?

Answer: you do.

No employment. No work-for-hire agreement. No assignment. Hence, the default rule applies and the person who created the work keeps all rights to it.

Let’s assume your buddies paid you for your work in the case just cited.

Who owns the IP now under work-for-hire principles?

You would still own it.

The mere fact of payment changes nothing. For the rights to transfer, you need a work made for hire or an IP assignment. Without an agreement providing for either of these, the ownership rights stay put with you as the developer – even if you got paid.

Now let’s take the same case and assume you are a developer working offshore, say in India. You have a software development agreement with a startup in the U.S. specifying that it is governed by U.S. law. That agreement has a statement of work, defines deliverables, a development timetable, and a price. You comply with all this and deliver the work to the startup. The agreement is silent on all other points.

Now who owns the IP under work-for-hire principles?

Yes, that’s right, you, the offshore developer, own it. Payment or no payment, if it is not done as a work for hire, and if the IP rights are not expressly assigned, the startup gets only an implied use license and not ownership of the IP.

Let’s shift a little.

You and your co-founders form your startup. You assign all IP rights into the company. Then, in the spirit of keeping things loose, you continue to work on the IP development after company formation without contracts of any kind and without setting up an employment relationship between the company and its co-founders.

Who owns the IP rights to the post-formation development work?

Yes, the founders do, individually that is. So if one of you bolts, the company may have a problem with its IP or may need to do a workaround.

Why so? No employment relationship. No work-for-hire agreement. No assignment. Default rule kicks in and the rest follows.

Let’s look at one last case, the one where your startup does a work-for-hire development project for a customer.

Your startup has core IP that it uses in all its consulting projects. It contracts with Big Company X to do some custom development work. It signs the customer’s standard form. That form says, “this is a work made for hire and, by the way, if it isn’t, you agree to assign all IP rights relating to the deliverables to the customer.”

Anything wrong with that?

Yes, there is plenty wrong, at least if you don’t want to compromise your startup’s rights to its core IP.

In such cases, the boilerplate language (which seeks to assign to the customer who is paying for it any IP that does not otherwise qualify as a work-for-hire) may have an unintended consequence: it potentially sweeps in, along with what is intended by the parties, the core IP that your startup uses for all its projects.

Oops.

As a founder, you need to be alert to the effect of such language. A simple carve-out solves the problem, assuming you catch it up front.

That wraps up our quick tour of some key legal rules for understanding who owns the IP relating to your startup. There are some obvious lessons here: if you as a founding team are drifting along without your IP rights buttoned down, time to get that situation fixed. Don’t be slack on this. You might have to pay a high price if something goes wrong.

By the way, in all cases, in order for the contract to stick, a work-for-hire agreement or an express assignment needs to be accompanied by some payment of consideration to the person doing the work. This can be cash or stock or anything else of value. Don’t neglect this vital piece.

A final caution: General guidelines will help you spot problem areas but you will need a good business lawyer to help you evaluate them. Gray areas and exceptions to the rules abound. When it comes to your IP, work with a good lawyer to do things right.