Reasonable Reliance

(4) reasonable reliance thereon by the other person; and

Reasonable reliance is basically a judgment call on the size of the lie that the defendant tells in the fraud case. If it's a guaranteed return on an investment or something along those lines, it's a little different than saying that a $5,000 investment will return billions of dollars next week.

Reliance itself just means that the person hearing the lie acted on it assuming that it was true.

Intent- Fraud's Second State of Mind

(3) an intention that the other person rely on it;

The false statement must be out there because the person making that statement wants the plaintiff to rely on it. If it's just negligence or innocent mistakes, you won't win a fraud case.

Knowledge or Belief- One State of Mind

(2) knowledge or belief by defendant of its falsity;

Fraud is an interesting thing to prove because you need two states of mind- "knowledge" of falsity and (as I'll talk about later) "intent" to mislead. I have covered these states of mind before.

If a person doesn't know or think something is false, they haven't committed fraud. They may be dumb or misinformed, and they may even have been negligent, but their culpability does not reach the level of fraud.

Material Misrepresentation- not quite Lying

(1) material misrepresentation of a presently existing or past fact;

Let's break this down.

Material means that the misstatement of fact cannot be a small thing. It must be a pretty big fact and probably has to be one of (if not the) main reason why the fraud ended up taking place.

Misrepresentation is a fancy word for lying, but it basically means that someone has to say that something is one way, even though it isn't.

Presently existing or past. The fact in question cannot be speculative, or occur in the future. It must be true now or true in the past.

Fact. The thing misrepresented cannot be opinion or falsity. It must be true.

Series on Fraud

People love to throw around the word "fraud" to describe anyone or any situation in which they got a raw deal. However, within the scope of the law in New Jersey, fraud has a series of very specific elements and is very difficult to prove. Also, it must be proven by clear and convincing evidence, a higher standard than a preponderance of the evidence. The elements of fraud are

(1) material misrepresentation of a presently existing or past fact;
(2) knowledge or belief by defendant of its falsity;
(3) an intention that the other person rely on it;
(4) reasonable reliance thereon by the other person; and
(5) resulting harm.

Craigslist Tip #5- Know Your Target

Know exactly what you're looking for. If you know you need a computer, and you think you want one that costs about X amount, look on ebay. Look on google. Look everywhere else you can to find out what specifically you want, and then go to craigslist. The benefit there is that you can weed out all the people who think they know what you want, and you can make a better price on the items that match your needs.

Information is king when buying anywhere, but especially in a fast-moving environment like Craigslist.

Craigslist Tip #4- Cash is King

This goes along nicely with the whole X-Files "trust no one" theme on the blog this week. Take cash, and give cash. Don't accept checks, money orders, or promises of a huge payday. Craigslist only works for you if you don't get scammed- and if you let yourself get scammed by taking Zimbabwe dollars as payment, then you're really making it hard to get anything out of the site.

Craigslist Tip #3- Face to Face

This might just be the lawyer in me talking, but you can hardly trust people nowadays as it is. However, when you're talking about cut-rate merchandise, in a completely anonymous marketplace, there is even less reason to trust people. Craigslist does not have bidder feedback, and so if you get burned there is less of a way to go after these people.

Know what you are looking for, and deal face-to-face. Don't be afraid to back out of a deal if what you want doesn't match what you get.

Craigslist Tip #2- Don't Rush to Purchase

It only stands to reason that if you aren't taking the time to consider your purchase, you increase your chances of making a mistake. Craigslist is a great place to go searching if you know what you want (and if you really know, then post a "wanted" ad to target other like-minded people), but if you're not sure, then you will get frustrated. At the bottom of the market, deals get snapped up quickly, and if you can't move fast you won't get them. You will end up gravitating toward something that isn't a deal- and that nobody else will be willing to touch.

Craigslist Tip #1: If it's too good to be true, don't fall for it.

A job paying hundreds of dollars an hour?

A computer for $5?

A two-year old low mileage car for $1000?

A two-bedroom apartment in a nice town for half the normal rent?

Don't believe it. When you reply to ads, you send your personal information to them, including but not limited to your email address. Scammers love to post ads like this that are just too good to believe, and when gullible people follow them through to their nasty conclusion, it never ends well.

Know what you're looking for, and get a sense of what you are probably going to pay. Hunt for bargains, but don't trust one that just falls in your lap.

Practical Law: How not to get ripped off on Craigslist

I'm going to run a practical set of posts next week. They aren't strictly speaking "legally" related, but they will help you to avoid getting ripped off or scammed (and thereby needing to talk to a lawyer). These five tips aren't really even unique to Craigslist, but they are rules I've lived by for quite some time and I haven't gotten badly burned on any of several dozen transactions I've made to buy or sell things.

I can't speak about anything other than purchases- if you're trying to find Mr. Right or Mr. Right Now, find yourself another website.

The topics I'll cover are:

1. If it's too good to be true, don't fall for it.
2. If you need something NOW, go to a chain store rather than hunting on Craigslist.
3. Deal face to face- don't mail anything or accept mailing of anything.
4. Cash is king.
5. Know exactly what you're looking for (and where to find it).

What do all these "bad Craigslist" ads have in common?

All of them are promising you something for nothing. Or practically nothing.

People who practice law have to charge more than these people because they assume different risks. If you are being charged next to nothing for legal services, the person representing you is probably not fully accountable and responsible for your legal matter, and you need to be very careful.

Bad Craigslist Legal Ads, Part Four

http://southjersey.craigslist.org/lgs/1545883607.html

This ad comes frighteningly close to UPL. A "certified paralegal" can draft documents, but the fact that s/he is not a lawyer means they can't sign them, and they aren't responsible for what they are drafting. Lawyers are supposed to be responsible for them by virtue of their signature (and their supervisory abilities).

It's possible this guy actually even knows what he's doing, but that doesn't mean that what he's doing isn't (quite probably) illegal. If he marketed to lawyers I'd be a little less critical, but this is a craigslist ad quite plainly targeted to potential clients as well.

Bad Craigslist Legal Ads, Part Three

Some ads are downright bizarre. This ad is for spiritual work either on cases or for the assistance of attorneys and/or clients. Frankly, it doesn't make much sense. However, if you think that spiritual help is going to help you with a man-made legal system, you have another think coming.

http://newjersey.craigslist.org/lgs/1544263789.html

Bad Craigslist Legal Ads, Part Two

http://southjersey.craigslist.org/lgs/1543076906.html

The most telling line:

Disclaimer: I am not a lawyer. I cannot represent you in court or I’m not supposed to give you advice. I can, however, give you my opinion, and that opinion is based on 30 years of representing people from divorces to winning prisoners freedom. And factually, I personally represented people for (17) years--but circumstances now prevent me from doing so.

--
So is that why your charges are obscenely low? How could he have been representing people for 17 years? One suggestion appears here.

Bottom line: if you have legal problems, get legal help. In other words, talk to a lawyer, not somebody who offers to solve every problem you've ever had for cab fare and two rounds at the local bar.

On Spending Money, or How To Sink a Small Business Very Quickly

Three words here: watch your overhead.

The nice computer, the flashy sign, the fancy furniture, the big office- they all are nice and have their uses. However, try to get them all at once and unless you have a lot of income on the horizon, you might find it's really difficult all of a sudden to pay the bills.

Nobody really notices the difference between a so-so office and a very nice office, but your pocketbook will. People will notice a spectacular office, but if you're really looking for those, make sure somebody else is paying for it.

Bad Craigslist Legal Ads, Part One

Here's the text of the ad:

[Company probably practicing UPL] HAS A STAFF OF RETIRED ATTORNEYS AS WELL ACTIVE ATTORNEYS THAT WILL HELP YOU EITHER GET WHAT YOU DESERVE OR GUIDE YOU INTO A SAFE ZONE IF YOU ARE A DEFENDENT. WHY US? - WE CARE ABOUT YOU NOT YOUR RETAINER FEE.

WE SPECIALIZE IN ALL LITIGATION, CIVIL, CRIMINAL, LAW DIVISION, ALL MOTION PRACTICE AND COMPLAINTS DRAFTED IN HOUSE.

COME MEET MY TEAM AND KEEP THE MONEY IN YOUR POCKET.

---
Why is this bad? Very simple- unauthorized practice of law. In New Jersey, it's not just a bad idea- it's a crime!

2C:21-22. Unauthorized practice of law
a. A person is guilty of a disorderly persons offense if the person knowingly engages in the unauthorized practice of law.

b. A person is guilty of a crime of the fourth degree if the person knowingly engages in the unauthorized practice of law and:

(1) Creates or reinforces a false impression that the person is licensed to engage in the practice of law; or

(2) Derives a benefit; or

(3) In fact causes injury to another.

c. For the purposes of this section, the phrase “in fact” indicates strict liability.

---

That could be 18 months in jail, folks. Bad news.

"Making a Point"

All of us have had situations in our lives where we have been inconvenienced or damaged by some sort of situation due to another's negligence. A totally understandable first instinct is revenge- and if you're the litigious sort (or if you're a lawyer), the court system seems like a natural place to seek redress.

If you're mad about something that happened to you and you want to sue, I understand. You have suffered some sort of damage and/or injury and you want to be compensated for it. That's one thing.

But don't file a lawsuit to "make a point." Some people want to get their money, and to prove something as well. The problem is that people and companies have this annoying tendency not to see your "point" because you're trying to extract money from them. If you end up being able to make a point (through the media or whatever) after you win, then terrific. However, you need to win (and make yourself some money) first; losing your case would make the wrong kind of point.

Getting a New Will in the New Year

My friend Lynda Hinkle posted here that it is a good idea to get a will in the new year. I wholeheartedly agree.

This document is increasingly easy to get at an increasingly low price, either from sites like LegalZoom or from an attorney. Depending on your needs it can be very simple to have one drafted as well.

Even if you don't have much, it really helps to have a will because it makes the process much less cumbersome for your family, and reduces the stress that goes along with the whole grieving process.

New Office and Contact Information

I just wanted to take today's space to let you know that I have the following new updated contact information:

Law Office of Carl Archer
630 Springfield Avenue, Suite 2
Berkeley Heights, NJ 07922
http://www.carllaw.com
carcher at carllaw dot com
856-448-4449

Happy 2010!

Get to work on those resolutions, and give them a little thought over the weekend. Can't hurt! (and plus, it'll stop you from "cleaning up" all those leftovers before you go back to work on Monday.)