Judges Are People Too

Judges Are People Too We recently encountered another situation where we were reminded that regardless of what the law may be; a contract may say; or what the court orders may have been to that point in the case, ultimately the decision on how to enforce those things comes from a judge who has his or her own human emotions.  Before a recent hearing, we were having a discussion with our witness about the fact that there are really two aspects to the law: the legal side and the human side.  Interestingly, the witness thought that the human side is supposed to be left “out there on the sidewalk”.  For those of us who have tried a number of cases through a jury trial or to a judge, we know that is not at all the case.  Cases can be won or lost based upon the strength or likeability (or lack thereof) of a particular witness.  Cases also can be lost because even though the law allows for a certain remedy, the judge is just not willing to enforce that under particular circumstances. In our recent circumstances, there was a widow who had been represented by an elderly lawyer, and the lawyer had fallen ill.  The judge therefore had some concern about how much she had been advised about what had been going on.  Therefore, even though by the various court orders that had been entered, and even though all of the i’s had been dotted and t’s crossed, the judge was reluctant to enter the order that we were requesting until she felt comfortable the widow had retained...

Ten Years to Fight Over a Contract?

Ten Years to Fight Over a Contract?! We are constantly emphasizing to our clients the importance of reading and understanding all of their contracts before signing them.  We also continually counsel our clients about the incredibly slow pace of litigation and how resolving business disputes through the courts can take many years.  A recent decision by the 7th Circuit Court of Appeals (which would hear federal cases under Indiana law) serves as a good illustration of these points: In that, the 7th Circuit reversed a jury’s award of $1,500,000.00 in favor of a sales representative, and found that the plain language of that representative’s contract showed that he was only entitled to $54,000.00 in commissions.  The reason for the reversal was that his contract very clearly stated that in order for the sales person to receive commission credit under the employer’s previous compensation plan, any sale must close on or before December 25, 2005.  The sale at issue did not close until March, 2006.  During the original trial, the trial court allowed evidence to be introduced concerning what was intended by the parties, as opposed to simply enforcing the plain terms of the contract.  With the introduction of that extra evidence, the jury awarded $1,500,000.00.  The Court of Appeals reversed that ruling and directed that the employee was only entitled to $54,000.00. A few interesting points that came out of this recent decision include the fact that this dispute has been ongoing for ten years.  For some perspective, the sale at issue closed about 18 months before the introduction of the iPhone and the decision was entered on July...

Concerns for Small Business: Insurance Can Be a Savior

  Concerns for Small Business: Insurance Can Be a Savior Today’s post focuses more on a practical business reality as opposed to a purely legal issue.  Because we are celebrating Small Business Week, we will keep this blog post short as we know that all small business owners such as ourselves are always pressed for time and struggle to get everything accomplished while maintaining some sort of an otherwise normal life. Over the past few years the insurance issue has been discussed at length in the media and among small business owners as the health insurance requirements have continued to increase and put administrative demands and financial pressures on businesses of all size.  Aside from health insurance, worker compensation, and general liability insurance, there are a number of other insurance products that are available to small businesses that can help provide some protection to the financial strength of the business as well as help to minimize the disruptions caused by unforeseen circumstances that every business will face. Most small businesses do not have the financial capital or reserves to deal with unforeseen issues that arise that necessitate having to retain attorneys, perhaps paying for accidents or even failed contractual relationships.  Dealing with these issues requires the small business to dip into its operations accounts and thereby keeps that money from being used for more useful purposes such as growing the business or compensating the owners and employees for work previously performed.  As we all know attorneys’ fees can also cause a significant disruption in a business’s financial planning, as most small businesses do not set aside a legal budget...

This is Why You Incorporate

This is Why You Incorporate Individuals looking to start a business often question whether it is worth the hassle and expense of actually setting up a corporation and drawing up the necessary papers to establish that corporation particularly when the business is “just me.”  Traditionally the reason for going to that trouble and expense focuses on making sure that the individual, and therefore that individual’s personal assets, cannot be seized by creditors of the business in order to satisfy debts owed by that company.  If the company has not been set up and run as a separate legal entity, then the law looks at the company’s assets and the individual’s assets as being one and the same, and a creditor of the company can look to the person’s individual assets to pay any debt owed to that creditor. Nevertheless, people still question whether it is truly worth it to incorporate.  We generally counsel people that it is well worth spending a little money to help protect personal assets; almost like an insurance policy that you buy and hope that you never have to use.   At the same time, after the corporation has been established, it must not co-mingle its assets with those of the individual owners.  In other words, it is important to keep things in separate “buckets” so that there can be no question what assets belong to the company and what is the property of the individuals.  The more “blurred lines” there are, the more chances there are that a company’s creditors will look to the personal assets of the owners. A recent Indiana case has reinforced the...

Successor Liability and Piercing the Corporate Veil

Successor Liability and Piercing the Corporate Veil: Protect Your Assets We have had several meetings recently with new clients who are either purchasing the assets of an existing business, or are beginning a new company.    When we are in these meetings, we will often stress the importance of separation between the business assets and those assets that belong to the individual owners of the business.   In addition, when a business is purchasing the assets of a former business, it is important to structure the transaction such that the business buying the assets can limit or eliminate any obligations for debts owed by the selling business. These meetings have brought to mind a previous post concerning the same issues, including the factors that a court will examine when determining whether or not to hold an individual liable for a corporation’s debts period. While the Ziese case discussed in that previous post was more focused on “successor liability”, another important decision from the Indiana Court of Appeals around that same time held that in addition to the elements discussed in the Ziese case concerning whether or not a court should consider “piercing the corporate veil,” (and thereby hold the individual shareholders liable for the debts of the corporation), a plaintiff seeking to do so must also show a causal connection between the fraud or injustice alleged by the party seeking to pierce the corporate veil and the harm that that party complains of.   In other words, it is not enough to prove that the defendant corporation did not follow corporate formalities or otherwise misused the corporate form.   Rather, the plaintiff must...
Page 5 of 6« First...23456