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When Do You Really Need a Lawyer?
"Clearly, once I've been served with legal papers, a lawyer is necessary. But I'm guessing that there are situations where having a lawyer before it gets to that point would be helpful. I'm interested in some general guidelines for when I should pick up the phone and call a lawyer. I'm especially interested in tales of 'I waited to long and got burned' as well as 'I got a lawyer so early it was smooth sailing'. Like most people, I make a decent living, but I cannot afford high legal bills for very long.
For those who are interested, the CEO in question decided to simply report the incident to the FBI. My guess is that the Feds logged the complaint for their statistics and then dropped the matter. However, the brush with someone with enough money and power to drain me financially has left me distinctly shaken..."
...it's a Clue. Also, your situation might be covered by a book or article at http://www.nolo.com, which is an excellent resource for self-help legal stuff.
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Save all your correspondence however. In fact, you might want to post them online as well. As far as I know it's perfectly legal (at least, you see it all the time), and maybe this CEO will be humiliated enough to think twice before ignorantly accusing people of things.
I'd LOVE to know who this person is, by the way, so I can be sure not to ever do business with his or her company.
You can find a good resource here.
John
The drops of water don't know themselves to be a river; and yet the river flows.
Lawyers will usually not charge you for an initial consultation. If you are upfront with them, tell them your situation, they'll usually spend 10 or 20 minutes with you and decide if you might need their services or not. If they say you do, they'll most likely ask for a retainer of some sort. Depending on how serious the lawyer believes your situation to be, it could be between $1,000 and $5,000. On top of the retainer, you have to pay the fees they bill until you "close your account" with them.
Some smaller lawyers will just bill against the retainer, while larger firms will require payment in addition to the retainer, but will return the retainer in full at your request when you close an account with them.
Most lawyers charge between $150-$300 an hour unless it is a case where they believe you will win a settlement (in this case, it doesn't seem so; however, you might be able to get lawyer fees if you need to sue if the CEO sues).
IANAL, but I'm married to one and had to use some for my old business.
Just go look up a lawyer or get a referal (highly recommended) and see what they say. They'll know better than any of us on slashdot (unless they are lawyers).
TossableDigits.com: Temporary Phone Numb
Or you can go to Jiffy Lube to save $20 bucks a year and then the mechanic doesn't know you from a hole in the wall. Doesn't think you'll be back after he's done.
And who want's a total stranger looking up their hooches to find that itch.
I know I'm crass but it does get the point accross.
I've hit Karma 50 and gotten a Score:5, Troll... I win!
... when you could just /. him instead?
No klez, in fact, no internet
I use Macs to up my productivity, so up yours Microsoft!
If you DO ever end up in court, after sending the polite note and getting a lawyer, point out that you have no money for him to take, and that if he does sue you, he'll look like a fool. If the CEO continues to press the suit, carry through on your end and go public.
There are tons of ways for ordinary people to do this. One is your local TV station. My TV station has something called "Channel 3 Reports" which is basically a cosumer line where people can complain if they feel cheated by a business. Channel 3 will send a reporter to the business and make them answer a few questions on camera. This can be REALLY embarrassing, espcially if there is any chance that the business did make a mistake. Many people would rather settle than have a hostile interview on camera.
Newspapers are also your friend. Alternative ones like the "News and Review" will often do interviews with ordinary people who have run afoul of some large business or government agency. Larger papers too might be interested to run your story.
I think enough bad press, and hints of more, will end just about any unfair suit from a CEO who has a company and business to worry about.
Be smart. Be polite. Be truthful. And be persistant. That I think will get you out of any jam that truly isn't your fault.
Peace.
If you're kinda handy with Sendmail, and CEO stubbornly refuses to believe that SMTP From: headers can be faked, guess how surpised he'll be when he receives an email from gwbush@whitehouse.gov giving you a full pardon.
Ergonomica Auctorita Illico!
I am a lawyer and I practised in high tech/business for years. I think people run to lawyers far too quickly. I wish they wouldn't panic and waste their own time and money. As soon as I became a lawyer, my father pestered me all the time with issues. I kept saying he should use his head. Figure out what using a lawyer will get you then think about what it will cost (in terms of time, money, frustration, publicity, anger, damage to relationships, etc.)
You need to take a deep breath and work out the pros and cons of using a lawyer. I think the best time to use one is where you are presented with a situation where:
(a) you are IN DANGER OF LOSING ESSENTIAL RIGHTS. Examples are signing contracts where you do not understand what people in your position normally can get (or lose);
(b) you are unfamiliar with the regulations and laws associated with doing certain things (like holding lotteries, running a business, being a landlord etc.); or
(c) you or your property are seriously injured and you NEED compensation to compensate for some significant loss
Using lawyers simply as a replacement for common sense is really dumb. Lawyers move SLOWLY and EXPENSIVELY. Why? Well, because (1) they have a lot of stupid work to do; (2) they are often sick of dealing with issues that should be resolved outside the legal system; (3) their profession is focused on looking at what they can get out of someone or how to hit back vs. constructively and quickly resolving disputes.
Often you will walk into a law office and have a consultation. Suddenly, the lawyer is putting together your case. What the lawyer is SUPPOSED to do is work with you on what you want to get out of this in the end, explain the costs, timelines (which are a lot longer than you think) and the typical results. Results means more than just getting some money. It means the effect of legal action on you and those around you.
Too often, the lawyer acts more like a plumber who plugs your story into his predefined precedents instead of being a professional who consults with you and educates you about all the factors you should know BEFORE proceeding.
As a well-established corner of copyright law, you do not own the correspondence you receive from others. You do own the physical media, but you do not have a right to broadcast or republish the material without the author's permission. Unless the author has done something so illegal (e.g. sending a death threat or whatever) that you can be certain of prevailing, and you need the public exposure because you have no other course of action, you should never publish correspondence you receive from others without their permission. It may seem ridiculous, but it is completely illegal almost everywhere on Earth.
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Q: When do you need a lawyer?
A: When you're talking to a lawyer.
Which is to say, if you ever need to deal with someone else's attorney in any offical capacity, no matter how trivial, you're best served by having your own on-call as well.
IANAL...
It sounds like you just got somebody with a bee in their bonnet. (And, if you want another cliche,) My experience has been that such people's bark is worse than their bite.
So, if the CEO wants to sue you, first he has to find a lawyer willing to take on the case. In this case, that means that the lawyer would believe that A) there's a reasonable chance of winning in court and B) that if they did sue you, you have enough money to make it worth their while. Now, B is not as critical -- if the CEO in question is a real jerk, he may sue out of spite. But, A... If there isn't a reasonable chance that you'd win and a judge agrees, not only do you win, but the CEO and his attorney could be in trouble for filing a frivolous lawsuit.
The FBI, luckily is more than smart enough to understand forged headers and also knows more about computer viruses than this CEO evidently does. There may be some record in some computer somewhere, but it won't really mean anything.
The real questions are:
1) Is this CEO is the head of the place that *you* work?
and
2) Is he slandering you among other people?
If he is the CEO of your company and he decides to have you fired or something, then you may have a wrongful termination case. If he's going around telling other people about how you wrote this virus and sent it to him, then that's slander (assuming you didn't actually do it...), which is grounds under which you could sue him. In either case, consulting a lawyer may be a good idea.
Probably the best thing is to take the high road and ignore it.
As a CEO, I am sure he will sue for lost time to clean up the virus. In addition, it sounds like the CEO (mistakenly) believes that the poster is targetting the corporation, which would mean anything from a few computers up to several thousands (all of the the associated tech support fees for getting rid of the virus).
So the CEO has lost documents, lost time, and has to pay a computer guy to clean his computer.
Already the CEO is able to blow this out of proportion to well over $3,000.
I am not a lawyer, but I am the son of one. My advice? Send a nice note through snail mail. Certify the letter, and keep a copy yourself.
In the letter, explain the virus and why you are not at fault. Do some research, and include quotes and backing evidence that support your claim. That should not be too hard to do, a simple search of Symantec and Macafee should give you quite a bit right there.
Start the explanation "I did some research into what seems to have happened, and I see how you mistakenly believe I sent you the email. However..."
End the letter with something like "Before you decide to follow through on any legal action, I am sure you too will research the computer virus (Klez) you recieved and will come to the same conclusion I did - that I am in no way responsible for the harm that has come to your computer and your corporation."
For less than an hour of work and about a dollar to send the letter, you can cut off most chances of legal action. In addition, if the CEO decides to go after you, it will never get to the courts. Lawyers on both sides will quickly figure out that there is no case and never let it get that far. You playing nice and courteous goes a long way to show that you are not only innocent, but deserve some slack for your composure under wrongful attack.
- (c) 2018 Hank Zimmerman
(Emphasis added by me.)
Let me first say that I'm just going to stick with traffic courts for this comment, just to make things clear. Now, you explicitly call out "if you can afford [a lawyer]". What most people don't realize is that they can afford a lawyer, especially for traffic tickets. Ignoring the cost of the fine itself (anywhere between $70 and $500, depending on what you were doing), you are almost guaranteed an insurance hike in the case of a ticket. If a traffic lawyer costs $350 (at least, that's what my lawyer generally costs, with it being a bit higher for tickets out of her county), you've just saved close to $600 in insurance fees. It's very easy for a traffic lawyer to get your ticket dismissed or otherwise win the case. All they really have to do is drag out the process by asking for a discovery, which is usually not done in a traffic case but is allowed and must be honored by the court because a traffic ticket is considered a criminal offense and discovery is a right of the defendant in a criminal case. By doing that, the case will drag past the point where it's profitable for the court to continue trying it, and will likely just drop the charges (your lawyer will need to present some sort of plausible case for the charges to be dropped, so the judge can save face, but any good lawyer can do that in his or her sleep). Since traffic tickets are nothing but income for the issuing government, the simple act of fighting the ticket cuts into their profits. The governments prey on those that just blindly pay their tickets and go on their way. Don't you already pay enough in taxes?
The point, then, is that you can afford a lawyer, and should hire one. Sure, it's more expensive than representing yourself, but it's cheaper than paying the insurance increase, and there's a nearly-100% chance the lawyer will win your case (unless you picked a particularly inept lawyer).
No, you disturbed a dragon. Leave the cave quietly and pray he doesn't wake up. He might never win in court but that doesn't mean you'll have to have six mortgages on your house before he's done with you.
How are the costs of legal actions payed in the US? AFAIK, each side pays his/her own bills. This seems quite silly, because in a case such as this, the rich player can simply drown the poor player in legal fees. I see this as a major flaw of the US legal system.
At least here in Finland, generally the losing side pays both side's expenses (unless decided otherwise by the judge - so nobody has to pay ridiculous expenses). This way nobody can drown the other player out for a silly matter such as this. Of course, this adds risk to filing a suit, which could limit the small man's willingness to sue, but I'd say that on the whole it's a better system. What's your take on it?
I doubt, therefore I may be.
Do not even *think* of speaking to the other lawyer without representation. They are the masters of spin and they will take anything you say and turn it against you. If you speak to him/her and offer no information, then you're uncooperative. That's their job, to make you look like a schmuck. How much money do you think Mr. CEO will invest in his retribution? I'd say if his computer Klez'd an important and equally clueless customer or investor, he's got no choice but to grind you into meatballs.
If Mr. CEO doesn't come to his senses, or if you receive notice of some action, you will need a lawyer who can speak the lingo to tell Mr. CEO's firm why it is a well documented fact that mail headers do not indicate actual message senders, and what sort of filings your side intends to pursue if they do not lay off.
You might even get a clever lawyer who can snooker them into pursuing some cause of action that, once the true facts are presented, will only piss a judge off. And lawyers avoid angering a judge at all costs. Once they're in that position, it's like they're Superman and you've got the Kryptonite. Such a situation might garner you a tidy settlement, out of court and confidential, of course. Yeah I don't favor use of the legal system for personal gain, although I do favor a little "Legal System Aikito (sp?)" when some jackass won't listen to reason.
cat
So say I'm wrong and you sue me.
fine, I lose, and the court awards you damages.
but you want me to pay your expensive lawyer too!? that should come out of your winnings. Else we are basically giving the lawyer the right to assess damages me as well, but without any legal guidelines as to the ammount.
Seems fairer to me that the suit bringer always pays his lawyer, and also the defendant's, if the suit is overturned.
That way, people only sue if they are sure to win, and rich people or companies can't sue poorer people just to harass them into settling out of court.
And there's no risk in sticking your neck out if you know you are right.
Just because someone's a CEO doesn't mean they have more money, power, lawyers (or brains, apparently) than you.
All it takes to become a CEO of an S-Corp or an LLC is to send your $50-300 plus paperwork, depending on your state.
I'm actually the CEO of a small web development boutique (read: 3 partners, a few freelancers, no employees) and have been threatened with a couple of lawsuits and the like in the past. We have very little capital (particularly in the current economic climate) to defend ourselves legally -- so we take the talking route until either the issue goes away (almost all the time) or things get verifiably ugly (lawyers/legal documents appear).
The trick is to talk politely but formally (read: certified mail, business-style) directly to the other individual involved, and keep records of every single piece of correspondence -- at this point you're trying to keep the odds of actually getting in a lawsuit to a minimum.
You explain your complete lack of culpability in the incident (including whatever documentation from Symantec/CERN/etc.), and state (FIRMLY) that you take the *threat* of a lawsuit very, very seriously and if necessary you will pursue that route in kind to reclaim lost time, money and any slander/libel damages that may be due to you.
More often than not (in my experience), when people threaten this type of action, they're looking for easy money in an out-of-court settlement -- or they're looking to scare you into submission (completing a project for free, etc.) Being firm and standing up to these kind of idiots gives them pause.
Obviously, taking this route, you need follow-through. The moment a lawyer or legal paperwork rears their respective ugly heads, all bets are off. Get thee a lawyer and be merciless.
Just keep in mind:
1. Just because they talk big doesn't mean they are
2. If they've got money to bring a frivolous lawsuit against you for something that they could verify easily with a google search -- they've got the money to pay out counterdamages. Most lawyers would be willing to take the case with very little retainer.
</IANAL>
I would caution against using the President's address, because we all know what a great sense of humor the Secret Service has, right? Instead, send him an email "from" himself. Something like "Hi me, If you will notice the 'from' address, this email is being sent from you to you. Since it is impossible to forge headers in your mind, this must have been written by you while you were sleepwalking. Basically I'm your subconcious telling you to drop the case."
"Your superior intellect is no match for our puny weapons!"
I am a lawyer. If you've actually been served with a complaint and have no prior experience with this stuff, I'd advise you to contact a lawyer.
You have a fixed amount of time to file a formal 'Reply' to the complaint you were served with. If you fail to file a Reply within the time limit, a 'default judgment' can be filed against you, basically finding you liable for all the causes of action stated in the complaint. (While 'default judgments' can sometimes be set aside if you appear later and give a good excuse for not having filed a reply, you definitely don't want to have that happen.)
So, first thing, is definitely make sure that you file a Reply within the time limit. The only reason for not doing that would be if you can get the plaintiff to drop the case before then, but even then you're going to have to make sure that they file a dismissal of their case within the time period.
I'd get a lawyer, if I were you. But before doing that, I would give the CEO's lawyer a quick phone call. His or her name and number will be on the Complaint that you were served with. Explain that virus emails almost always have forged emails, and give him some reference to a site on the web or a book that documents that so he or she can look it up. The CEO's lawyer is likely to be more rational about this than the CEO, who may be emotionally upset by the virus attack and looking for someone to blame. If the only evidence thay have against you is the forged email address in the from: line -- and if you can convince the CEO's lawyer that those lines are always forged -- then the CEO's lawyer should recommend to the CEO that the case against you be dropped (probably "dismissed with prejudice" so that it can be refiled in the future if they discover more evidence against you).
In talking to the CEO's lawyer, I wouldn't be very forthcoming with information, if he or she starts asking you lots of questions. The main thing would be to just explain to them that virus emails typically have forged headers, and to point him to some authority to back that up. Also, don't lose your cool. Keep things on a calm and rational level. If the lawyer turns out to be an asshole, you may not make any progress with this step. But still avoid using your cool. You don't want people to get emotionally involved in this thing. Lawyers aren't supposed to get emotionally involved, but some will, so look out and don't let that happen. You don't want to make anybody on the other side mad; it could lead to them doing irrational things (prosecuting a crappy case) and causing you even more trouble.
If you do contact the CEO's lawyer and aren't successful in persuading him or her to get the case dismissed, then you should hire a lawyer to take over and file your Reply. You won't want to wait until the last minute for this; contact a lawyer at least two or three weeks before the Reply is due, if not sooner. Your lawyer could prepare and file your reply, and take over in trying to convince the other side to dismiss the case without going further, after you explain the virus-email-forging thing to him or her.
I should include the usual CYA stuff that lawyers have to do when they say stuff like this in a public forum: the above doesn't constitute legal advice. But it is what I would do if I'd been served with a complaint like that and I didn't know anything about maneuvering within the legal system.
Also, in the case of works with no real commercial value (most e-mail qualifies), you can be successfully sued, but it's very unlikely that you can be sued for monetary damages.
Under United States copyright law, even if the actual damages are less than $20 (lower limit for a jury trial), the plaintiff can pursue statutory damages, which can be as high as $150,000.
Will I retire or break 10K?
You want advice about what to do, and doing your own legal research is either too time-consuming, or this is a critical issue. IANAL, but I do my own legal research. I have found that lawyers, like the rest of us, are not perfect, so trying to understand the basic legal framework is not a bad idea.
In this case, if it is a Klez virus, the documentation is around about the forged from fields. I would think that it is probably a good idea to keep a diary at this point, and if you want a legal consultation, and want to pay for it, go ahead, but it is probably more important to get the documentation together and document every encounter you have with him.
Also bear in mind that the perspective you get from a lawyer will revolve around a "play-it-safe" mentality, and so the extent that is what you are looking for, legal consultations could be helpful.
LedgerSMB: Open source Accounting/ERP
IANAL but it occurs to me that if the CEO thinks that an email From: is accurate enough for the basis of a lawsuit, write up a nice death threat using racial and sexist remarks, address it to yourself, and make the From: be the CEO's. Now either file a counter-suit with that as the basis for your case or at least confront the CEO with the evidence in hand. The look on his face should at least be priceless. :-) If the CEO can do it, why can't you?
- Stop talking to him.
- Give him your mailing address and demand that all further communications (especially those of the "I'm going to sue you" variety) be done in writing (no, e-mail doesn't count). Certified mail is preferable in this case.
- If he DOES mail you something, make sure you put it somewhere safe. It may come in handy later.
- While you really don't need a lawyer until you see a piece of paper that says "I'm going to sue you" bearing his signature, they are handy to have around to make sure you don't write something you shouldn't in a letter to him. If you must write him a letter, at the very least make sure to read, re-read, and re-re-read what you wrote before you mail it. Avoid things like personal attacks, admitting any wrong-doing and phrases that can be read as "I'm going to sue you."
Generally speaking, as soon as he says "I'm going to sue you," say nothing to him other than giving him your mailing address. Whether or not you need a lawyer depends on his follow-through and if he actually puts "I'm going to sue you" on paper.Beyond that, if you end up needing a lawyer, I hear that talking to the local bar association is handy. You're supposed to tell them how you need a lawyer and they can reccomend those that specialize in that department.
If you can afford it, find a competent attorney and sign a retainer aggreement. They come in several types. The most probable type you would want is one where you could pay for a specified amount of legal services up front, for those "Is this something that I should be worried about?" calls. You pay the lawyer up front and they answer the phone whenever you call, they don't need to be worried about getting paid because they already have been. Sometimes you can have as part of this aggreement that you will be refunded a portion of the unused ratainer.
Another type of retainer is the type where you pay a fee for the attorney to always be available for you, then you pay a reduced hourly fee for their services on top of the retainer.
I am sure there are other types of retainer and/or prepaid arrangements out there that could add piece of mind. Call your local bar association to find out, the larger bar associations usually pretty good educational and referral services.