Dog Owners Beware

Recently, a New Jersey Superior Court in Mercer County awarded $100,000 in damages to a UPS driver for injuries he suffered while trying to deliver a package. The homeowners’ dog was roaming alone loose on the property, had a history of viciousness, went at the driver, and the driver severely and permanently injured his knee trying to escape.

Also, recently, an unrestrained dog jumped out of its owner’s car window and viciously attacked a woman and her dog. The attacking dog was reported to be a repeat offender.

New Jersey law holds dog owners liable, or financially responsible, for injuries caused by their dog’s behavior in three possible – and very common – scenarios.

First, New Jersey law says dog owners, and only the owners, are strictly liable for injuries caused by their dog’s bite, so long as the victim was lawfully on the property and regardless of the dog’s history.

However, if the dog has a vicious propensity that the owner knew or should have known, then the dog’s owner or even the dog’s keeper are responsible for any injuries caused by the dog – even if not caused by biting and biting was not involved in the incident. Vicious propensity can be proven simply by the dog’s history of biting, jumping, chasing, scratching, or even being overly affectionate or playful. “Down boy!”

And, third, even if the dog did not bite and did not have a vicious propensity, then the owner or keeper may be liable for injuries because they failed to exercise a reasonable degree of care for the safety of others.

Owners have a duty to provide safe premises for those invited onto its property and a duty to control their dogs. It is considered dangerous to allow a dog on your property unleashed, unrestrained or unfenced, or to roam free, unsupervised or in an area where it is likely to encounter strangers. At least a clear warning of the dog’s presence should be posted.

People visit for a variety of legitimate reasons every day: Mail carriers, newspaper carriers, package deliverers, utility & maintenance workers, fundraisers, friends and family. Knowing this, owners must anticipate their dog’s behavior. Dogs protect their turf. They investigate strangers. They approach and greet anyone who enters their turf. Unless the dog is responsibly controlled, preventable injuries are likely to happen.

Even friendly dogs can cause serious injury – unintentionally. A big, friendly dog that gets excited when visitors arrive can knock the visitor down, wrench their back, twist their ankle, or otherwise “kill” them with kindness and curiosity. Just the sight of a large dog on the loose and coming toward a visitor can frighten them into hasty escape and injury. Not everyone shares enthusiasm for dogs, especially a 100-pound German Shepard rushing to say “Hello” … or “Get lost”. And that’s their right.

When dog owners fail to exercise care and visitors are injured, people’s lives can be ruined and courts will impose substantial money damages to compensate victims. Compensation has been recovered for injuries when someone was running from a dog, when someone fell after being chased by a dog, or when someone was knocked to the ground by a dog.

Owning a dog carries special responsibility to ensure others’ safety. If you are a delivery person, newspaper carrier, utility worker, or any visitor to another’s property where a dog is present, and are injured by the dog, you have a right to recover money damages under the law.

Timesheet Lawyers and the Billion Dollar Swindle

To begin, let’s review how a lawyer will typically bill you or his/her advice. Consider a $500 per hour lawyer. At that charge rate, you’d expect the lawyer to deliver at least a 7 out 10 in terms of professionalism and of course the more you pay, the more your expectation that your deliverables and legal outcomes will tangibly be worth the money you’ve paid. But wait, lets tote up the costs of this lawyer and see if you math holds up to introspection.

At $500/per hour you’d expect an income for this legal beaver not too exceed 960,000 assuming a 48 hour year, a 5 day week and an 8 hour day. Not a bad income you may argue – and by the time you take off overheads, taxes and other expenses running a partnership, then perhaps this person nets $500k plus in a year. But you’d be wrong – how wrong will surprise you. In fact 960,000 is actually the base minimum this lawyer will make in a year; however we can go on to calculate the theoretical maximum this lawyer can earn, and blow a few cobwebs out of the window as we do so.

To illustrate the size of the problem, we must first factor in the costs of ’rounding’ that our legal beaver administer to their charge rate. Most (not all) legal professionals charge in what’s called whole minute intervals. Some practices may charge at 6 minute intervals, some at 15, others at 30, and the real hogs of the trade a whopping 60 minute units or more. So for example, if you call your lawyer to arrange a meeting, your one minute phone call will cost you 1 unit of time. This is how lawyers charge, and why their costs are so expensive. However, the problem is deeper than this as we shall now find out.

Let’s return to our competent lawyer who charges $500/hour with a fifteen minute rounded interval. In this instance, your one minute phone call will cost you $125. You may be surprised by this, and argue that the ‘itemized’ bill would should these costs. However, if you’ve ever received a hefty lawyers bill, rarely does it detail anything beyond a cursory summary, and your 1 minute $125 phone call simply gets lost in the noise of all the other zeros.

But we can go further. Now we’ve isolated our lawyer’s exact costs, we can go on to calculate the theoretical maximum this individual can earn in a single year. We do this by assuming that each second of the day can be used to do a piece of work, and as such each is billable as 1 whole 15 minute unit. Doing the math, the maximum earning potential for this individual is $864,000,000. Who else do you know can earn anything between a million and a billion dollars a year?

Clearly, when a lawyer bills you $125 for your one minute phone call, the remaining 14 minutes of time (which you have already paid for), can be used on a different client, meaning that your lawyer is charging you for time he/she is spending on other client work. This is commonly known as double dipping, and as you can imagine, there is considerable amount of grey when it comes the legality of this state of affairs.

Well, greed is the obvious answer as to the why whole units are used, but in addition, we must also remember that lawyers are timesheet driven, and were the first to realize that you couldn’t really use a timesheet to record a 1 minute telephone conversation, most especially if it took you 3 minutes to actually write the entry down in you pen and paper time ledger. Of course with the computer, timesheets (time sheets, depending on your location), became part of the digital era – with one thing missing. Developers simply ported the manual-entry timesheet into software, not because it was their only course of action, but because electronic timesheets were a big enough leap forward from the old pen and paper time logging process previously employed. Having it all centralized came next, and dumping the process onto the web an obvious part of this organically evolving process.

However, in the early part of this Century, with more powerful computers and a more beefy operating system, software developers started to look more closely at the whole time tracking process and realized that manual entry timesheets were now redundant, as new and innovative automated time tracking software (such as MetriQ, one of the first in the field) could be used to control the entire time management process. Other software companies have also started to take a look a closer at how to reduce the time errors, inaccuracies and other costly problems inherent with manual and electronic timesheets, a growing dissatisfaction with the time recording process, and the excessive costs of legal advice.

If you have a need for legal or accounting advice, and you don’t want to pay through the nose for time spent doing someone else’s work, then insist your practitioner uses a hands-free time tracking software solution, to track time efficiently, comprehensively and in a way that you can ask to see, down to the nearest second, how your lawyer worked, and how their time was exactly used for your benefit, and no one else. Timeshe technology has peaked, and with a change in technology that releases many of the inherent problems associated with this time attendance paradigm, meaning that we should hopefully realized a more open, a more transparent way for businesses to measure time, providing the opportunity for them to work in a fair and equitable way. Yes, I know I’m dreaming, now you too can start dreaming, and together, our thought will start to change the universe.

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