Happy New Year's Eve!

Get in early, and stop drinking a couple of hours before you drive. Or better, stay wherever it is you're partying. Cops just love writing DUIs in the first two or three hours of the new year.

And a Follow-Up to That Thought...

If you divest the landlord of that security deposit and make him pay interest, how do you suppose that's going to make the landlord feel toward you? Is that important to you?

It might be. It always goes to show that laws like this can be used as a shield; but use them as a sword (or a club to beat someone over the head) at your own peril.

Quick Thought On Rental Properties: What is the Rent Security Deposit Act?

N.J.S.A. 46:8-19 is where you can find what is called the Rent Security Deposit Act in New Jersey.

The Rent Security Deposit Act requires the landlord to put your security deposit in a separate bank account that pays interest. The landlord must tell you in writing the name and address of the bank where the deposit is being kept, the amount of the deposit, the type of account, and the current interest rate for that account- all within 30 days of getting it from the tenant, and annually thereafter.

If the landlord does not comply, the tenant can give the landlord written notice telling the landlord to use the deposit, plus seven percent interest per year, toward the rent. This is nice to know because it protects tenants from landlords who might run off with the tenants' money.

Two Questions to Motivate You At the End of the Year

1. What do you want to accomplish in the new year?

2. Why are you waiting until the new year to accomplish them?

Merry Christmas!

Enjoy this holiday with family and friends, and take a minute to really appreciate what this holiday means to you. It'll help you savor every moment of it (and give you something to do while you're falling asleep from a turkey coma). :)

Merry Christmas Eve

Finish shopping! Be safe! Then go home and be with family.

You Get What You Pay For?

Just a thought before the Christmas holiday- gifts are great, but not in law. People who receive free services have a tendency to value them as they paid for them- which is to say, not well. It is absolutely worth offering "value-added" services to your clients, but don't do it by discounting your rates. You're not doing anybody any favors.

My New Year's Resolution: Learn to Say No

It's easy to say yes, and we do it all the time. However, I personally have a lot of trouble saying no, and it's a problem. It misleads people at best, and at worst it makes you look like you can't commit to an answer.

Therefore, I resolve to say no and explain as best I can to people why I am doing so. I find they will take it better if I am upfront and honest, and it saves me the trouble of worrying about it later.

At-Will Employment

Do you still think you "have" to give two-weeks' notice in order to quit a job? Or that an employer owes you the same courtesy?

Unfortunately, that thinking is a little outdated. Most employment in New Jersey is "at-will," which is to say that either of you can terminate the agreement at any time for any reason.

If you're upset at losing your job, try and think about why you lost your job. If you think that there is an element of discrimination (i.e. your race, gender, or age contributed to it) then talk to a lawyer. If your workplace environment was an absolute nightmare, go ahead and talk to a lawyer. However, if you just left on bad terms, be prepared for bad news in terms of a lawsuit.

On Fighting Nice: Don't Get Cute

When I'm writing a letter to somebody who's been a real pain, I'm often tempted to write something cute. Call it what you want- cute, smug, cheeky, whatever. Don't do it- play nice. You never know when those little remarks will come back to bite you. They might feel good to put in a letter, but the satisfaction they provide you is cheap and won't last when you look at the letter in a couple weeks and realize how small it makes you look. The ultimate satisfaction is prevailing in whatever conflict you have, and if you can do it by taking the high road, it's even better.

It's called discipline, and it's all about resisiting short-term pleasures in favor of longer-term gains. It isn't fun, but it is worth it.

On Fighting Nice, or Nothing Is As It Seems

Nothing is as it seems, and everything is up for negotiation. Whenever you get a letter demanding that you do something, or telling you that you "must" do something, take it with a big grain of salt. What appears to be iron-clad at first glance isn't always so, and there is usually a way to work toward a settlement in the middle.

Two Minutes on Realtors- When Renting Real Estate

Yesterday, I mentioned buying real estate, and the different agents. It's a little bit different for renting.

There are still buyer's agents and seller's agents, but unless you specifically tell an agent that you want them to work for you (as a buyer), they are probably working for the seller, and so you should take that into account when evaluating what they are saying.

The typical real estate commission for a purchase is 6%, to be split evenly between the two agents. In the case of a rental, the commission is usually one month's rent, to be split between the two agents. Depending on the area and the market, the buyer may be on the hook for some or all of that commission. Do not pay the commission up front- some unscrupulous agents will ask you to pay them most of their money up front with the promise that they will then take you around to some properties (or that they will give you access to their exclusive listings). It's hogwash- there are plenty of agents who will help you out without taking money up front. No matter who you speak to, make sure you ask about the commission before you get interested in a property.

Two Minutes on Realtors- When Buying Real Estate

If you've ever bought a house or thought about it, one of the things you almost always consider is a choice of agent. You want to make sure that that person helps you look for the right place, because they know more about the market and where to find the right houses. However, the person who owns the house you want to buy also has an agent. Even more strangely, sometimes that person is one and the same. What gives?

Keep in mind that there are two types of agents in a transaction like this: buyer's agents and seller's agents. Typically, one agent will not represent both parties, although the agent can if the parties agree to it. Most of the time, each party will have an agent who represents their own interests. Be sure, especially if you're a buyer, that you sign something saying that this agent is representing you; if you are dealing with the listing agent for a property, they are going to operate on the assumption that they are representing both parties.

Realtors are paid almost exclusively by commission, and that commission comes out of the selling price of the home. The buyer should not have to worry about paying their agent, as the buyer's agent's cut comes out of the commission.

Universal Truth of Self-Employment #10: Your business is not your self-worth.

This is very important to realize, especially for anyone who is going through a slump or who is nervous about starting a business for the first time.

I am starting a firm effective early next year, and I have said to people that it will show whether I'm "cut out for being a solo." I have thought about it some more and realized that that's not true. I have to recognize the possibility of failure, but just because the business fails does not mean I am not capable of doing so at all. The only thing I can do is try my best, make mistakes, learn from them as best I can, and move on.

Your business is just a business. People's businesses fold all the time, but they will often come back with other ideas, many of which succeed. You do not fail simply because your business does.

Other "standards" terms- presumptions, or other weird standards

There are some other legal terms that may operate to create standards that I haven't previously discussed. For example, sometimes you will hear that one side is "presumed" to have done something. This is the law's way of saying that the burden is on that particular person. Presumptions can always be defeated (the legal term is rebutted), but that may be either easy or very difficult to do. Also, you may hear other phrases that sound like standards ("a scintilla of evidence" is my favorite) but usually those are not in wide use, and sometimes they are just another way of saying one of the more common standards in use. Do a little more research and you might find out exactly what they mean (or that they don't mean much of anything).

Beyond a Reasonable Doubt

This is the standard of proof most familiar to Law & Order fans (and other shows, but sorry, I'm biased). A "beyond a reasonable doubt" standard is the highest one that the courts employ, because courts take very seriously any trial in which someone's personal liberty is at stake. If you're potentially going to jail, the courts want to make sure they get the right person first. The standard is amorphous, as many frustrated people have said, but is said to be met when people are firmly convinced of a person's guilt (we have heard that wording before) and though they are not free of any possible doubt, any reasonable ones have been eradicated.

People have tried to measure what "beyond a reasonable doubt" means as a percentage (how likely is it that this person is guilty?), and the numbers vary. These standards are not fixed in any way, but the system has been working fairly well for over 200 years this way so there isn't any impetus to change it.

Clear and Convincing

The "clear and convincing evidence" standard is difficult to meet. A finder of fact (a judge or jury) must be firmly convinced that you're right before giving you the win. This standard of proof is higher than "preponderance of the evidence," but most people agree it's lower than "beyond a reasonable doubt."

Preponderance of the Evidence

This is the most common standard of proof you'll have to deal with. It is the one usually used in almost all civil cases. It basically means that "more likely than not," your case is the right one. That is not a huge margin; various examples have it put at 50.1%. I've also heard it said that if you had two equally balanced piles of sand and moved one grain of sand from one to the other, that will satisfy the standard. Either way, it's not an incredibly high standard.

Probable Cause

Probable cause is usually understood to be the lowest standard of proof. It usually just means that there is enough evidence to lead a judge to believe that a crime has occurred. Judges and criminal attorneys are the only ones who routinely deal with probable cause, because it is the standard by which warrants are granted and traffic stops are made.

Standards of Proof

If you find yourself in court, you're going to want to get out (maybe even if you're getting paid to be there). The most satisfying way to get out of court is to win your case, but how do you do that? Courts employ standards of proof to determine which side should win a case. Those standards can either be very easy to meet, or very demanding. Knowing whether you have the burden of proving a case, and how much work is involved, could seriously change your attitude toward a particular court appearance. The next series of posts will delve into these topics and hopefully make this topic a little clearer.

Burden of Proof

All of the standards of proof that I will talk about are only meaningful if you have the burden of proof; that is, you have to satisfy the standard in order to win the case. If you are a plaintiff (if you are suing someone), or if you are a prosecutor in a criminal case, you have the burden of proving your case. If you are a defendant (criminal or civil), you don't. You can just sit back and do nothing if you want, if you're sure the plaintiff/State can't prove their case. Of course, if you want to you can provide evidence for yourself to make their job harder.

Discretion and Decision-Making in the Criminal Justice System

Here's something to consider when you're wondering how lawyers make their money.

Police officers are usually the first line of law enforcement. They may see something happen, but decide not to pursue it. They can use their discretion.

Attorneys who work for the State (at any level) can decide not to pursue a case brought to them, or to drop a case they are working on. They can use that discretion as well.

Judges can make rulings based on motions and other paperwork filed by attorneys, and those rulings often have huge impacts on a case. Juries can nullify a verdict by deciding not to convict someone for whatever reason, even though they're told they can't do that. These aren't really discretion in the sense I used it above, but as people they can make decisions.

Lawyers know they have angles at many or all of these venues. They will try to affect people's discretion and decision-making in their clients' favor. They don't have to be consistently successful to make a difference, either; one success can often lead to a dismissal or acquittal.

This is how lawyers make their money.

Universal Truth of Self-Employment #9: Ask For Help

I've talked about this before, but it's really the sort of thing you can apply all through your life and your business. Ask for help wherever you go and from whomever you meet. You might get business advice, or get a break on crucial supplies. You might get a friend. It never hurts to talk, and to ask. The worst thing you'll get is a no, and that's not bad at all.