Commercial Lease Agreement Form

I recently revised a Florida Commercial Lease Agreement for a large commercial real estate company. The company owns multi-million dollar properties throughout the southern United States and has found a number of problems with its standard Lease Agreement.

Provisions for eminent Domain, Subordination of Mortgages, Bankruptcy, Indemnification, even Radon Gas were included in the lease. I brought the lease to the partner expecting a big pat on the back and possibly a raise. Neither came.

The Final Product
After many more trips to the partner's office and many more revisions we finally ended up with a 15 page Commercial Lease Agreement that fit our client's needs. The process was long and arduous and I learned much of what I now know about writing during the experience. As it turned out, the partner had done me a huge service in requiring me to start from scratch; and he knew it. I later learned that he had experienced a similar start to practicing law from his mentor. I now view the partner as a mentor and someone I greatly respect.

Purchase the Lease Agreement Template
I have provided a number of legal documents on my blog free of charge. Some of these include the Warranty Deed, Quit claim Deed and Claim of Lien. As I have described above the Commercial Lease Agreement is something I spent hours preparing. You can purchase the Commercial Lease Agreement for $14.99. It has obviously been modified to appear as a template so that you can adapt it to your specific use.


Credit Repair: This One's For Jamie

For more than seven years my sister-in-law, Jamie, has been upset about something one of her former roommates did to her when she was in college. Now that Jamie has moved to south Georgia she might say what her roommate did "sticks in her craw." The situation involves a telephone bill, a roommate and a hoodlum. Sounds a lot like a board game or a clue on Jeopardy, but it's not.

What happened to Jamie is so common that it may have happened to you when you were a wide-eyed, wet-behind-the-ears freshman away from home for the first time. Not that Jamie really fit into that category at the time, but I don't want to be overly critical of how long it took her to catch on. Just kidding.

They Started Out As Friends
From what Jamie has told me, she and a number of her friends decided to move into an apartment together. As is often the case, each of the friends had a separate utility put in her name. One got the electric bill, one the water and Jamie got the telephone bill. The friends were to split the electric, water and telephone (cost of standard service) and each friend was to pay for her own long distance telephone calls. So far, so good.

It seems the roomies rocked along quite comfortably for awhile splitting the bills, hanging out and enjoying each other's company. Then one day things started to change. One of her roommates had started dating a hoodlum. After the hoodlum was thrown in jail (as is often the case with hoodlums) he began making collect telephone calls from prison. Each time her friend accepted a collect call from prison the call would show up on the telephone bill in Jamie's name as "Collect Call: Sing-Sing Prison." Jamie didn't like the idea that her name was now attached to a building repository for the underbelly of society. But that is not what has upset Jamie lo these many years.

They Stiffed Her
At some point in the relationship, the roomies decided that all good things must come to an end. The three packed up their boxes, loaded up their cars and parted ways. The problem arose when it came time to get payment from the newly separated friends. When the final telephone bill arrived the collect call portion from Sing Sing Prison was outrageous.

Jamie contacted her former roommate about paying the bill. Payment never came. She again contacted her roommate. Still no payment. Again she contacted her roommate. Well, you can see where this is going. It wouldn't be much of a story if the roommate ended up paying the bill now would it. Jamie was stuck with the bill which, I am told, has never been repaid by the roommate.

Now A Word Of Advice
To those students who are getting ready to move into an apartment with roommates for the first time consider this:

(1) If the utility bill is put in your name you are responsible for it. The utility company does not care that two of your roommates stiffed you on the bill. When it comes time to issue a negative credit report or sue, you are the one who will suffer; not your roommates. Try to have the bill put in all of the roommates' names.

(2) Before parting ways with your roommates, call and have any utilities in your name shut off. You do not want to be responsible for bills from people who moved in after you left.

(3) Get a payoff from all of the companies that have bills in your name (i.e. utility, telephone, Blockbuster, etc.) before you move out. Make sure your roommates pony up their portion before you part ways.

(4) Check out my post on repairing your credit for more information on fixing your credit.


Is Your Car A Lemon?

One of my clients bought a new minivan two years ago. One month after she bought the van it began having engine problems so she took it to the dealer's repair shop. They diagnosed the problem and "fixed it" within an hour. Two weeks later the van started having the same problems. Again she took it to the repair shop and again they "fixed it" and sent her home. Within another month she had experienced the same problems two more times. The fourth time she took the car to the dealer, handed them the keys and told them she wanted her money back. She had purchased what is known as a "lemon" vehicle.

What is a Lemon?
In most states, a new vehicle (no more than a year old and still under warranty) is considered a "lemon" if it has a serious defect the dealer can't fix in four tries, or has one or many defects that prevent you from using it for 30 days or more (the 30 days need not be consecutive). Lemon laws generally do not apply to used vehicles. A defect covered by the Lemon Law must seriously affect the "use, value or safety" of your vehicle and must be covered by the warranty. An irritating rattle may not be "serious" enough to make your car a lemon. Stalling probably is.

Protect Yourself
You will not know the first time you take your vehicle into the shop whether you have a lemon or not. Document everything. If you have any problems with your vehicle during the first year after purchase be sure to get a repair order for every repair visit. This is so even if the shop doesn't diagnose the problem or attempt a repair. A repair order should show the problem you report, and the dates your car is in the shop. Keep purchase contracts, warranties, and repair orders to prove you have a lemon. Don't keep repair orders in your car where they may get lost or removed.

Consult your state Department of Consumer Protection for forms you may need to complete to be refunded for your purchase. Many states require the use of specific language before a vehicle can be deemed a lemon.

If you return your vehicle to the manufacturer damaged, a manufacturer may want to negotiate a damage deduction. In most states, you are not responsible for paying for normal wear and tear, such as minor dents, scratches, pitted glass, soiled carpets, minor stains or tears. You may consider having the damage appraised by a third party, or have it repaired rather than paying a deduction.

Filing Suit
In many states, a court may be required to decide whether your vehicle is a lemon and what you are entitled to receive. If you sue the manufacturer and win, you may be entitled to double the vehicle purchase price, as well as other costs and attorney fees.


Oh, The Sweet Smell Of Victory

About eight months ago my law firm was hired to sue a restaurant chain for failing to pay its bills to one of our local clients. Our client had done work for the restaurant over a 10 year period. During most of that time the restaurant was prompt in its payments.

About a year ago the regional manager of the restaurant got into an argument with our client and refused to pay for more than $100,000 in work our client had performed. When it became clear the restaurant would not pay without litigation, our client turned the case over to us. We filed suit seeking damages for breach of a promissory note, court costs and attorney's fees pursuant to a clause in the note allowing us to recover such fees.

A Contentious Discovery Stage
From the beginning the suit was very contentious. During the first round of depositions it became clear that the two opposing parties could not be in the same room with each other (name calling, swearing, arguing, etc.). You can find out some very interesting details about a business relationship when the relationship deteriorates into hatred.

The second round of depositions were full of racial slurs (although not on the record and not by our client), allegations of fraud and other criminal activity, and more name calling and swearing.

At the conclusion of the depositions it was clear to us that the restaurant knew it owed our client the money but refused to pay because the manager hated our client. The manager admitted during a deposition that the money was owed but that he just didn't want to pay it. He indicated that he wanted to go before a jury and explain why our client was a jerk and that because of that he shouldn't have to pay our client's bills. The manager felt he could persuade a jury to let the restaurant off the hook once they saw how bad a person our client was. The legal term for this strategy is "jury nullification."

Summary Judgment
What the restaurant manager didn't know about is a legal procedure known as Summary Judgment. Summary Judgment states that if the deposition testimony shows that the money is owed and there are no valid defense for not paying the money (no, "the guy is a jerk" is not a valid defense) then the Court can rule in favor of my client without a trial.

This morning the manager received an eye opening lesson in Civil Procedure and Summary Judgment. The judge granted our Motion for Summary Judgment and awarded us the entire principal amount, plus court costs and attorney's fees. This may sound like chest beating or poor sportsmanship, and it probably is. But once you've had to deal with a defendant like that for the last eight months you might be able to see where I'm coming from.

To those of you who want to use a jury to try to defame someone's character, let this be a lesson to you. It was to the manager of this restaurant chain.


Family Law: For $500,000 She Can Have My Husband

It sounds like an episode of the Jerry Springer show: Husband suddenly begins "working" late and making midnight phone calls to strange telephone numbers; wife has a private investigator tail her husband to one of their vacant rental homes; husband is caught in the act of cheating on his wife. The title of that episode might be "You've Heard It All Before."

What makes this case interesting is not the sordid love affair between Home Depot co-workers Clay Harrell (the husband) and Beth Carroccio (the mistress). Nor is it the way the two "lovers" were busted when Cindy Harrell (the wife) walked in on the two in a vacant rental home the Harrell's owned. Nor is it the subsequent break up of their marriage and the effect it has had on their toddler son.

When All Else Fails, Sue
So how did Cindy Harrell handle her husband's affair once she discovered what was going on? She didn't pack up her husband's things and throw them out in the street. She didn't threaten to kill his mistress. She didn't blame herself for the affair. Instead she hired an attorney and sued her husband's mistress for "alienation of affection."

Mrs. Harrell's decision to hire an attorney turned out to be a good one. After the suit was filed, Mrs. Carroccio failed to respond to the allegations and a Default Judgment was entered against her for $500,000. Now that is an expensive love affair.

But before you become giddy thinking you have figured out how to get revenge on the other woman, let me point out that this suit was filed in North Carolina (one of the only states that allows suit for alienation of affection). It is reported that the largest verdict for "alienation of affection" in North Carolina to date is $2 million. North Carolina allows jilted spouses to sue not only the mistress, but the spouse's employer if the "lovers" work together and the company does not take steps to stop the affair.

So if you can convince your spouse and his/her mistress to move to North Carolina then let the lawsuit begin. If not, tune in to the Jerry Springer show for some ideas.


Bankruptcy: The New Asset Valuation Method

As you may know, some of the legal work I perform is for clients seeking to collect against debtors. I often advise my creditor clients that the real work of collecting on a bad debt does not begin until after a judgment has been entered against the debtor. It is not until after a judgment is entered that the collection attorney is able to begin the formal post judgment discovery process.

One of the tools used in post judgment collections is a set of interrogatories (questions) regarding the debtor's finances. The debtor is asked under oath to list all of his or her assets and to give a value for each asset. The value usually listed by a debtor is what the debtor would receive for the asset if it were sold at an auction or "fire sale."

Bankruptcy and the Old Asset Valuation Method
Until recently, bankruptcy debtors have also been able to list their assets at the "auction value." This has been an incredible benefit to bankruptcy debtors trying to hold onto assets. If the value of an asset is less than the cost it would take to sell the asset at auction, bankruptcy trustee prudence dictated allowing the debtor to retain the asset. On the other hand, the higher the value of an asset the greater the likelihood the bankruptcy trustee would take the asset and sell it to pay back creditors.

The difference between the auction value and replacement value of vehicles, furniture, boats, clothing, etc. is usually significant.

Bankruptcy Assets Now Must Be Valued at Replacement Cost
The new bankruptcy laws require that a bankruptcy debtor now value his or her assets at what it would cost to repurchase the assets at a retail store. The debtor is allowed to account for the asset's age and condition. In almost every instance, (even accounting for age and condition of an asset) the value of the asset will go up and the likelihood of the asset being taken and sold by the trustee increased.

For more information on the new bankruptcy law changes see my articles on whether bankruptcy is right for you, the income eligibility requirement, the means test and bankrupcty and student loans.


Your Business Needs a GSA Contract

In June, 2006, I posted about how I helped an online business selling thermal underwear obtain a contract through GSA. The online business recently informed me that the federal government placed two substantial orders for thermal underwear in the middle of June. Not quite selling ice cream to an eskimo but pretty close. The orders were placed through the online catalog GSA has made available to every federal and state government agency in the United States (now that's free advertising on a nationwide scale!).

For more information on obtaining a GSA Contract for your company check out this article titled What is GSA.

Apparently selling thermal underwear (and probably a million other products) is only seasonal if you do not have a contract to sell to the federal government. What does this mean to you? It should mean that you need a GSA contract for your business.


Reflections on My Time In "Paper Chase" Land

I thought I might take a brief hiatus from dispensing legal advice to reflect back upon my time in law school. If this post is received well I might devote additional Fridays to some of the many surreal experiences I had while a law student at The Florida State University College of Law. Surreal, but nice.

The Spitter
I remember walking into Florida Con Law I for the first time. It was my second semester of law school and I now felt like a seasoned veteran. I had been through the fire of the first semester's end of semester exams and had done well (averaging a B+). I am not one of those people who gets an 88 on a law school exam and acts like he's disappointed. My B+ average put me in the top third and that was good enough for me. Sure beat a poke in the eye with a hot stick anyway.

I was looking forward to having my skull full of mush filled with grand discourses on the lofty document of grandeur that is the Florida Constitution. Just kidding. I was really just wanting to find out how pregnant pigs and a monorail train had somehow ended up in the Consitution.

I had been told that a new highly qualified professor was scheduled to teach the class. He was a judge in his previous life and had recently ascended (or descended depending on your view of those who teach and do not practice) to the heights of the law school professor. As was my custom I entered the classroom and took a seat in the front row. Not long after I sat down, a distinguished looking gentleman entered the room, walked down the aisle which sloped to the front of the room (stadium seating) and opened up his briefcase. He took out some chalk and wrote his name and the name of the class on the board. He then turned around and began to address the class.

I will never forget the first words I ever heard him speak. Not so much for what he said, but for the way he said it. "My name is Professor So-And-So and this is Florida Con Law I." The words were moving and spoken with a great deal of feeling. At least for those of us in the front row. You see, Professor So-And-So was a spitter. When he spoke, a light mist sprayed out of his mouth and onto those of us in the front row (the feeling part). We all wanted to move (the moving part).

I had seen people roll their tongues when they spoke. I even know a guy from Swaziland who can make tiny clicks with his tongue when he speaks. But this was the first time I had ever seen anyone who could seamlessly spit and talk at the same time. One of my friends turned to me and said, "He's a spit talker." The whole situation seemed like it should have been the topic of a Seinfeld episode. The next time we met for the class I was comfortably seated in the back row well out of range of the Spitter. I calculated that anyone sitting in the fourth row or further back was out of his range unless the professor walked up the aisle.

Several days into the class one of the students wore a yellow raincoat into class. It hadn't rained in a week.


Asbestos and Mesothelioma: Georgia-Pacific Exposed Again

This is a follow-up to my post on Asbestos and Mesothelioma in May fussing about how long it has taken for our local school board to remove the asbestos from my kid's school. I bring the subject up again because of an article I recently read about a man (Mr. Timothy Shawn Bostic) who died at the age of 41 as a result of being exposed to asbestos when he was a teenager. The article is reported in the most recent edition of LawyersUSA and titled "Man exposed to asbestos as a child wins $13 million."

The facts of Mr. Bostic's death are tragic. In brief, when Mr. Bostic was a teenager he worked with his father in the construction business. One of his tasks involved sealing the seams between pieces of wall board (also called sheetrock) using a joint compound containing asbestos. The tiny asbestos fibers entered into Mr. Bostic's lungs causing him to develop Mesothelioma. Mr. Bostic showed no signs of having Mesothelioma until shortly before it killed him in 2003. What makes the story even more distressing is what happened after the family filed suit and the jury awarded the verdict.

The First Trial
Mr. Bostic's family filed suit against the manufacturer of the joint compound, Georgia-Pacific, claiming the company "knew, but failed to warn customers, about the dangers of the product." In March, 2005, a jury awarded Mr. Bostic's family $9.3 million ($3.1 million in compensatory damages and $6.2 million in punitive damages). The trial judge then threw out the verdict claiming the jury did not understand how to correctly calculate punitive damages. The judge gave the family a mandate. Either accept a drastically reduced verdict of $2 million or have the case tried again. The family chose to retry the case.

One of the things that bothered me about the judge's mandate is his offer of $2 million. If he felt the jury was confused about punitive damages then why not offer the family all of the compensatory damages (i.e. $3.1 million) and throw out the punitive damages. But it is not my intention to criticize the judiciary in this post.

The Second Trial
The second trial lasted one month. At the end of the trial the new jury deliberated just three hours before awarding the family $13,593,814 ($7,554,904 in compensatory damages and $6,038,910 in punitive damages). The thought comes to mind: "I bet the original $9 million figure is looking pretty good to Georgia-Pacific right about now." The case is currently in the appeals stage. I will update this post once the appeals are over.


The Difference Between the Enhanced Life Estate Deed, Warranty Deed and Quitclaim Deed

On June 19, I wrote an article explaining the benefits of the Enhanced Life Estate Deed. The article has quickly become one of my most popular reads. Professor Gerry W. Beyer of the Texas Tech University School of Law commented on my article in his post titled Lady Bird Deed. Other estate planning lawyers and professors have e-mailed me extolling the benefits of the Enhanced Life Estate Deed.


Family Law: Stepparent Adoption

I have wanted to post about this subject for quite some time but have not done so until now. My main concern has been disclosing too much personal information about a family that I have become very close friends with. I have decided to go ahead and post an article on the topic but leave out many of the salient personal facts I usually include in my posts. That being said, consider the following:

I know a loving family made up of both natural and step parents and their children. The children (both natural and step) are close friends. You cannot tell based on observing the interaction between the parents and children which parent is the natural parent of which children.

About a year and a half ago the stepfather of four of the children wanted to adopt them. I was informed that the children's natural father was willing to agree to the adoption (for reasons I will not discuss). The family contacted me about drafting the paperwork for the adoption. In doing so, I found that the stepparent adoption process is unique in a number of respects from a regular adoption.

Natural Parent Consent and Waiver
In most states all legal paperwork for adoption must be filed by an attorney. After the family contacted me about the stepparent adoption, the first step I took was to contact the natural father of the children to be adopted. I wrote the natural father a letter and enclosed a form consenting to the adoption. The form identified the children to be adopted and included the statement "I relinquish all rights to and custody of these three (3) minor children with full knowledge of the legal effect of the adoption and consent to the adoption by [John Doe]. In Florida, there is additional language that must also be included in the form. I will make the form available at some future date. The natural father signed the form and returned it to my office.

Consent of Adoptee
In most states if children are over a certain age they must consent to the adoption by the stepparent. In Florida, that age is 12. As one of the children was over twelve years old when the adoption occurred I drafted a Consent of Adoptee form which she signed. The form is basically an affidavit stating, among other things, that she was 12 years of age or older and consented to the adoption. The affidavit also states that she was aware that she would then become the adopting parent's legal child and heir at law. She also consented to change her last name to that of her adopting father.

Uniform Child Custody Jurisdiction and Enforcement Act Affidavit
Most states require the adopting stepparent to complete and sign an affidavit identifying the children to be adopted and stating whether the adopting parent has other adopted children. The affidavit also acknowledges the duty of the adopting parent to inform the Court of any custody, visitation, child support, or guardianship proceeding (including dissolution of marriage, separate maintenance, child neglect, or dependency) concerning the children in any state. This affidavit is called the Uniform Child Custody Jurisdiction and Enforcement Act Affidavit. The adopting father signed the affidavit.

Joint Petition for Adoption by Stepparent
Once the affidavits and aforementioned forms were executed, I filed them with the Court along with a Joint Petition for Adoption by Stepparent. The petition was filed on behalf of both the adopting father and natural mother. Less than one month after all of the forms were completed and filed with the Court, the Court held a brief hearing (more to give advice to the children and adopting parent than anything else) and issued a Final Order of Adoption.


Confidentiality Agreement

I was involved with a lawsuit some time ago between a large roadway construction company (my client) and the Florida Department of Transportation. During the discovery stage of the case, the FDOT requested my client to provide the FDOT numerous financial, trade-secret and other proprietary legal information my client considered confidential. The FDOT argued the information was necessary to prepare its case for trial.

Initially we refused to turn over the documents claiming they were privileged. However, after several lengthy court hearings it became apparent that the Court was going to require our client to turn over the confidential documents. In an effort to limit the exposure of my client's records, we offered to work out a deal with the FDOT by way of a Confidentiality Agreement. Our client was primarily concerned with customer lists, employee records, tax information, accounting and financial records.

We crafted a Confidentiality Agreement which did the following:

(1) Defined what constituted Confidential Information;

(2) Prohibited the FDOT from disclosing the Confidential Information to a third-party without my client's prior written consent;

(3) Defined what constituted a third-party;

(4) Required any FDOT employee or third-party who was to review the Confidential Information to sign a non-disclosure agreement;

(5) Addressed disclosure of the Confidential Information at deposition; and

(6) Placed a number of restrictions on the use of the Confidential Information.

As you can see, the primary focus of this blog is to provide free legal education to the public on issues I have dealt with as an attorney. Recently I have had several e-mail requests for legal forms I have created to deal with these issues. Given the voluminous hours I have spent performing legal research and creating the forms I am compelled to charge at least a small fee for their access.

The fees are significantly less than what was charged to my clients (less than 1%) for whom they were originally prepared. They are also much more detailed and less expensive than what you would pay at a legal forms website.


Estate Planning, Divorce and Life Insurance Proceeds

One of my clients recently experienced the death of her husband in a car accident. Her husband had been married and divorced prior to his marriage with my client. During his previous marriage he had taken out a $500,000 life insurance policy naming his former wife as the beneficiary of the policy.

According to my client, her husband's divorce from his former spouse was "long, agonizing and hateful." During the divorce proceedings the two former spouses tried all in their power to hurt the other spouse. Their actions included revealing intimate details of their married life during open Court proceedings, using their two minor children as leverage against each other and destroying certain assets that had no real monetary value but significant sentimental value. These facts are important given the life insurance policy naming the ex-wife as beneficiary.

It is clear from what my client has told me that her spouse did not intend for his ex-wife to remain the beneficiary of the policy after his death. This is evidenced by her spouse having removed his ex-wife from other legal forms like the Enhanced Life Estate Deed he had drawn up prior to his divorce. It is also clear that her husband's divorce attorney either did not know about the policy or knew and failed to advise my client's husband to change the beneficiary.

The Florida Probate Code
In Florida, divorce does not remove the ex-spouse as beneficiary under a life insurance policy. Florida takes the position that the life insurance policy is a contract and should not be interfered with unless fraud is involved. Further, if the deceased wanted to change the beneficiary he could have done so at any time but chose not to. It is not for the legislature to alter the terms of the written contract in determining the mind and will of the contracting party.

This means that my client will most likely not receive the proceeds from the life insurance policy and that my client's husband's ex-spouse will. To rub salt in the wound, the policy was primarily paid for during my client's marriage from funds that belong (at least in part) to my client. An argument might be made that since the funds used to pay for the policy were my client's as well as her husband's it would be inequitable to distribute the proceeds to my client's husband's ex-wife.

The Uniform Probate Code
In the above regard, Florida differs from states that follow the Uniform Probate Code to determine the life insurance beneficiary. States that follow the Uniform Probate Code would sever the tie between the divorced spouses and replace the beneficiary. The new beneficiary would be determined using a similar system to the intestate statute. This means that if my client's husband's insurance policy were governed by the Uniform Probate Code, my client would most likely receive the proceeds from the policy. This would also apply to ex-spouses named as beneficiaries under a Lady Bird Deed.

A word of advice, check your insurance policy today to be sure who you have named as beneficiary. Do not rely on the numerous statutory probate codes to determine who will get the insurance proceeds. If you need assistance reviewing the policy or changing your beneficiary, contact one of the attorneys above.

Other Estate Planning Articles
Estate Planning and the Enhanced Life Estate Deed, The Difference Between the Enhanced Life Estate Deed, Warranty Deed and Quit claim Deed, The Traditional Life Estate Deed, The Revocable Transfer on Death Deed and California's Revocable Deed.


DUI Laws In All 50 States

This is a follow-up to my original DUI post on June 5, 2006. In that post I discuss several provisions contained in most state DUI statutes, including the "Per Se" Blood Alcohol Concentration (BAC) Level, Enhanced Penalty Standards and Implied Consent to DUI testing.



Living Will and the Durable Power of Attorney

After the Terry Schiavo saga concluded last year in south Florida our firm saw a huge increase in clients seeking living wills. Many of you may not recall the case. Terry Schiavo is the woman from St. Petersburg, Florida who at the age of 26 had a heart attack and was in a coma for ten weeks. About three years later she was diagnosed as being in a persistent vegetative state.

In 1998 Terri's husband and guardian, Michael Schiavo, petitioned the courts to remove her gastric feeding tube. This meant Terri would be deprived of the sustenance she needed to stay alive. Terri's parents opposed the removal of the feeding tube saying Terri would not have wanted the tube removed. A lengthy court fight ensued (including fourteen appeals). The courts eventually determined that Michael Schiavo had the right to have the feeding tube removed.

After seven years of court battles, Terri's feeding tube was removed for a third and final time on March 18, 2005. She died thirteen days later at a Pinellas Park hospice on March 31, 2005. She was 41. Had Terri only had a Living Will there would not have been a dispute over whether she wanted the feeding tube removed.

What Is A Living Will?
A Living Will is a document that expresses a person's wishes about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. Health care providers are bound by the instructions contained in the Living Will. In addition to directing nurses and other health care providers to withhold treatment, Living Wills may also direct that all available treatment options and medical techniques be used, or choose some medical options and reject others.

Living Wills do not take effect until the person is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

Durable Power of Attorney
A durable power of attorney can perform some of the functions of a living will. This document gives another person legal power to make health care decisions for you if you become unable to make those decisions yourself. A durable power of attorney is different from a Living Will in that it may direct the attorney-in-fact to carry out the Living Will's instructions or allow the attorney-in-fact to use his or her own judgment. A durable power of attorney is not dependent on terminal illness or permanent unconsciousness to become effective. I recommend both documents be executed to cover every situation.


Collection Law: Post Judgment Discovery

I came into work this morning thinking I would just return a few telephone calls and head back out to finish off my 4th of July extended weekend. One of the messages left on my answering machine was an individual (I'll call him Mr. Jones) begging me to help him get out of jail. It appears Mr. Jones was picked up by the Dade County, Florida Sheriff's Department on an order of Contempt of Court. He spent the weekend in jail because he thought it best to ignore several court orders I had served on him during the past month. Yes, I admit it. I often moonlight as a collection law attorney. Something has to pay the bills; right?

The background of the case is as follows:

Sometime last year Mr. Jones lost his job and became unable to repay my client (a large financial institution) for a loan he had been given to purchase a vehicle. My client repossessed the vehicle, sold it at auction and retained my firm to file suit. The suit was to recover the deficiency left after the vehicle was sold. If you have read through my other posts you will notice that sometimes I represent the little guy and sometimes the 800 pound gorilla. In this case I represent the 800 pound gorilla.

Don't Ignore the Lawsuit
Mr. Jones ignored the lawsuit I filed against him (probably hoping it would just go away) and I obtained a judgment for the entire principal amount, interest and attorney's fees. Had Mr. Jones just responded and tried to work out a settlement I would have been willing to waive attorney's fees and most of the interest. Most of the financial institutions I represent are more than willing to do this. When Mr. Jones failed to respond he lost most of his bargaining leverage.

Post Judgment Discovery
Once the judgment was obtained, I sent Mr. Jones a legal form with questions relating to his finances. In Florida we call the form the Fact Information Sheet, Post Judgment Interrogatories or Form 1.977 (they all mean the same thing). The Florida Supreme Court has approved the questions as a lawful way for obtaining financial information about someone who has a judgment against him or her. Mr. Jones was then required by law to fill out the Fact Information Sheet and return it to me. He didn't.

When he failed to timely complete the Fact Information Sheet the Court entered an order compelling him to do so. Still no response. The Court then held him in Contempt for failing to comply with its order.

Order of Contempt
You probably know that there is no such thing as debtor's prison in the United States. For that I am thankful. However, when Mr. Jones failed to comply with the Court's order requiring him to complete the Fact Information Sheet he was held in Contempt of Court and thrown in jail. Mr. Jones was not put in jail because he couldn't pay his debt. He was put in jail because he would not comply with a Court order. I ended up spending most of this morning trying to get Mr. Jones the Fact Information Sheet so he could complete it and fax it back to me.

Most attorneys will not respond quickly to help obtain a debtor's release under the circumstances outlined above. They think the longer the debtor is in jail the more incentive the debtor will have to pay the debt off.


Happy 4th of July!

Like most of you I plan to make this a longer than normal weekend due to the fact that Independence Day is on Tuesday. Sorry Brits. Y'all have had our (the American's) backs on a number of occasions and I appreciate it. But on July 4, 1776, y'all were on the wrong side of the fight. I may not post again until Wednesday unless I get a chance on Monday.

I didn't post yesterday because my family and I went to Silver Springs, Florida for a mini-vacation. We actually saw the Kodiac Bears get into a domestic dispute that could be heard throughout the park. The riverboat cruises were great too. If you ever get the chance its worth visiting at least once. You'll find Silver Springs is not one of those cheesy hole-in-the-wall reptile shacks that stuff too many reptiles into too small a space and charge an arm and a leg to view them.

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