Talking Law” N°5 : The New Client
by KC Anderson
Let’s step back into the office of our virtual lawyer, Ben Forthwright. You will recall that last time we left Ben in a staff meeting with his legal assistant, paralegal, and law clerk. During a rather long discussion about an ongoing case, Maria, Ben’s legal assistant, reminded him that he had a new client coming in at 9 AM. Ben checked his watch and quickly wrapped up the staff meeting in order to get ready for his 9 o’clock meeting.
One of the partners in Ben’s firm had referred the client to him. Ben is a young lawyer in the Litigation Department of the firm and specializes in Commercial Litigation.
He opened the file that the partner had given him and read. It seems the firm had done all the work to set up a new restaurant in town and now the chef/owner, Mr. Blaze Masterson, had a new legal problem.
The file contained some basic information about the restaurant and some newspaper clippings. Ben read that Blaze Masterson had trained and worked all over Europe with some of the finest chefs in the world. He had now come back home to the U.S. and opened his own restaurant, “Exquisite”. The critics loved the food which they described as having “all of the refined glamour and attention to detail of a real European restaurant” right here in downtown Austin, Texas. Ben wondered what had happened that would require his skills as a litigator.
The Client Interview
Blaze Masterson walked into the office at precisely 9 o’clock. He was dressed in a finely cut dark suit and had short dark hair peppered with grey. Ben introduced himself and invited the famous chef to take a seat. He looks more like an actor than a restaurateur, Ben thought.
“What can I do for you, Mr. Masterson ?” Ben asked.
“I intend to sue one of my suppliers,” he said “and you have been highly recommended”.
Ben proceeded to interview his new client in order to determine the facts of the case. Here is what he found out.
Blaze Masterson regularly orders products from Europe for use in his restaurant “Exquisite.” His suppliers are importers of products from all over the world. Recently he planned a dinner that he called “All Around the Truffle.” He checked with his regular truffle suppliers and called on a new supplier, Gourmet Value, that was advertising truffles for up to half the price of his regular suppliers.
After planning the menu for his special evening, he realized that if he ordered all of the truffles from his regular supplier, the price of the dinner would be far more than his customers were willing to pay. So he decided to order half of the truffles from Gourmet Value on the basis of their advertisement that said “European quality truffles for less. We offer European quality truffles for up to half the price of other importers.” But the ad also included the fine print: European truffles or other truffles of equivalent quality according to availability.
When the shipment of truffles from Gourmet Value arrived only a week before the special dinner, the shipment included a letter explaining that both French and Italian truffles were “unavailable at the current time” and that they had substituted “High quality Oregon State, U.S.A. truffles.”
Masterson was shocked when he received the shipment and refused to accept it. He would not serve inferior quality truffles. He sent the shipment of Oregon truffles back to Gourmet Value telling them that his clientele demands only the best and he would not try to fool them with low quality products.
Masterson then decided to cancel the special truffle dinner because he could not get a sufficient quantity of truffles with only a week left before the scheduled dinner. He believed that he had lost thousands of dollars and suffered great embarrassment due to the cancellation.
Ben thanked his new client and told him that he would so some legal research and get back to him with the results.
Next time we will look at Masterson’s cause of action and the likelihood of success on the merits of his case.
Glossary of terms
litigation department – That section of a law firm engaged in the preparation and trying of lawsuits.
litigator – 1. A trial lawyer. 2. A lawyer who prepares cases for trial, as by conducting discovery, and preparing pre-trial motions, trying cases, and handling appeals.
to sue – To institute a lawsuit against another party.
facts – 1. Something that actually exist ; an aspect or reality. Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and opinions.
fine print – The part of an agreement, or document, usually in small, light print that is not easily noticeable, referring to disclaimers, restrictions, or limitations.
legal research – 1. The finding and assembling of authorities that bear on a question of law. 2. The field of study concerned with the effective marshalling of authorities that bear on a question of law.
cause of action – 1. A group of operative facts giving rise to one or more bases of suing ; a factual situation that entitles one person to obtain a remedy in court from another person.
merits – The elements or grounds of a claim or defense ; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points. 2. A legal theory of a lawsuit.
All legal definitions are from Black’s Law Dictionary Eight Edition 2004
Just for Fun
A new client walks into a lawyer’s office. “May I ask how much you charge ?” asks the new client. “Of course,” says the lawyer. “I charge $500 for three questions.” “Wow !” the new client responds, “Don’t you think that is a little bit high ?” “Not at all.” says the lawyer, “Now what is your third question ?”
“Talking Law” N°3 : Practice, practice, practice…
by KC Anderson
A tourist was lost in New York looking for a famous classical music concert venue called Carnegie Hall. He stopped a passerby and asked “How do you to get to Carnegie Hall ?” The passerby answered “Practice, practice practice.” The same can be said of lawyers trying to succeed in their profession. What a lawyer does every day at work is practice law. And the business enterprise of a lawyer is also called a law practice.
When lawyers work together in the same office they often form a partnership or a limited liability company. We generally refer to these types of associations as a law firm. You may recall the John Grisham novel called “The Firm”. The practice of a law firm is usually centered around a certain area of specialty. Let’s take a look at some different areas of legal specialization.
Corporate Law – This is a very general description of a business related law practice. It can include all aspects of the legal needs of a business including forming a business and advising the owners or operators of a business. In fact, if someone says that they are a corporate lawyer, they have not given you very much information. You might want to say something like “Oh really? What kind of corporate law do you practice?” Then you might get a good answer like “I specialize in M & A (Mergers and Acquisitions)” or “I am in-house counsel for …” In-house counsel means that the lawyer works in the legal department of a company.
Commercial Law usually refers to a practice that centers on business contracts and transactions. Other business law specialties include banking law, insurance, securities law (stocks and bonds, etc.), construction law, and bankruptcy law (insolvency problems).
Intellectual Property (IP) – Patents, trademarks and copyright.
Family Law – The legal needs and problems associated with marriage, divorce and children.
Personal Injury, Products Liability and Medical Malpractice – Lawyers who practice in any of these areas may be referred to as Plaintiff’s lawyers. They represent people who have been injured and sue those that they believe are responsible for the injury.
Labor and Employment Law – the rights and relationships between employers and employees.
Real Estate – law related to the buying and selling of land, houses and buildings.
International Law or International Trade – you know.
Criminal Law – crime and punishment. Note, however, that government lawyers who prosecute crime usually refer to themselves as Prosecutors, not criminal lawyers. And lawyers who defend those charged with a crime, call themselves Criminal Defense Lawyers because “criminal lawyer” could be confused with a “lawyer who is a criminal”.
In fact, many people believe that the language of lawyers is always confusing and that the way we talk is criminal. Why we can’t we just use the same plain English as everyone else? Next week we will take a virtual visit to a law office and learn some legal vocabulary for every day usage.
What kind of lawyer are you? What is your legal specialty? What does your practice involve?
Have you ever wondered what those initials after the name of a lawyer or law firm mean ?
Here are some common abbreviations you will see…
Bernard Dane Fotthingham, Esq. – Esquire is a title of courtesy for lawyers
Dewey, Cheatham and Howe, PC – Professional Corporation. A form of limited liability company especially for professionals like lawyers, doctors, accountants etc.
Brainard & Assoc., LLP – Associates (we don’t ever abbreviate associates with “Ass”.) and Limited Liability Partnership, a business organization where the partners liability for the partnership debts is limited.
Souam and Winne, PLLC – Professional Limited Liability Company – a newer form of limited liability company for professionals.
©2006 KC Anderson
“Talking Law” N°2 : Passing the Bar
by KC Anderson
When lawyers talk about the “bar” they may not be talking about the place where you meet your friends for a drink. Rather, the Bar Examination is the licensing test to become a lawyer in the U.S. and the Bar Association is the oganization that regulates the legal profession. Both the test and the organization are often referred to as “the Bar”. So when someone says that they are a “member of the California Bar” they mean that they are a licensed lawyer in the State of California, not a participant in a drinking club in San Francisco.
Additionally, membership in the California bar gives you the right to practice law only in California. Each State of the United States has its own licensing examination because the laws of each State are often quite different. There is no nation-wide licensing for lawyers in the US, except in the very special area of Patent Law. Unlike lawyers in Germany or France, American lawyers who move to another part of the US normally have to take another Bar Examination in their new home State. Some States and Washington, D.C., do not require a new examination if you are licensed in another State and meet certain requirements.
The difficulty of each State’s bar examination also varies from State to State. California is known to have the most difficult bar examination in the country. In the state of Wisconsin you do not have to take the bar exam if you graduated from certain Wisconsin Law Schools.
Louisiana is also known to have a very long and difficult Bar examination. As you may know, Louisiana is the only State in the US that has a legal system patterned after the French system instead of the British Common law system. When we talk about the system of law in France and Louisiana we call it a Civil Law System, as distinguished from a Common Law System.
US Lawyers are also commonly called attorneys or attorneys at law. There is no difference in the US between lawyers who do (barristers) or who do not (solicitors) practice in court like there is in Great Britain and other comon law countries. When you pass the Bar in a US State you are licensed to practice in all areas of law (except Patent Law, which requires a special licensing exam.)
Next week we will talk about different areas of law.
Useful Vocabulary :
Take the Bar
Pass the Bar
Fail the Bar
Be a member of the Bar
Interesting Celebrity Fact :
John F. Kennedy, Jr. failed the New York Bar exam 2 times before finally passing on his third try.
©2006 KC Anderson
You may have heard that the US Supreme Court recently overturned a long series of cases on the subject of corporate freedom of speech, related to a company’s right to finance political campaigns in the United States.
Under the Common Law system, lower courts are bound by the decisions made by the courts above them. These decisions are called precedents. Just like law made by the legislature, court precedents are law and must be followed by lower courts.
It is unusual for the highest court in the land to make a decision that changes a precedent.
One of the great voices of American political comedy, Stephen Colbert, explains the difference between legal precedent and “prece-don’t”.
Watch it here
|The Colbert Report||Mon – Thurs 11:30pm / 10:30c|
|The Word – Prece-Don’t|
“Talking Law” N°1 : Is That Coffee Worth a Million Dollars ?
by KC Anderson
It seems everyone has heard about the woman who spilled hot coffee in her lap and successfully sued McDonald’s for millions of dollars. Results like that make the rest of the world wonder what kind of crazy legal structure the U.S. has. The mystery of the jury trial and million dollar damage awards create the image of a court system to be feared.
Over the course of this series, we will try to unravel some of these mysteries. In doing so, you may actually learn some legal English vocabulary and impress your clients and colleagues at the office. However, we can’t promise anything for the accident with your morning coffee. Just be careful. It’s hot.
If Law School is so difficult to get through, why are there so many lawyers ?
If you Google “lawyer joke” you get hundreds of web sites dedicated to jokes about the legal profession. For example, “How can you tell when a lawyer is lying ?” Answer : “His lips are moving.” Or “What is the problem with lawyer jokes ?” Answer : “Lawyers don’t think they are funny and no one else thinks they are jokes.” And you often hear the now infamous Shakespeare quote “ The first thing we do, let’s kill all the lawyers”. What people don’t realize is that Shakespeare’s immortal words were uttered by a villain whose aim was to destabilize the government. Because lawyers are an integral part of any country’s legal system, lawyers will always be needed and therefore will often be resented by those who have to rely on them to get things done. Let’s take a look at how we create lawyers in the U.S.
Unlike many European countries, the education of lawyers in the United States is a two part process. First the future lawyer has to get a 4 year university degree, called an undergraduate or Bachelor’s degree (BA or BS). Then after taking an examination called the Law School Admissions Test (LSAT) you can apply to Law School, which is a graduate school that ordinarily takes 3 additional years of full time studying. The prestigious law schools, like Harvard or Yale are extremely competitive. Only those students with the best grades and test scores have a chance (unless of course you have good family connections). You graduate from law school with a Juris Doctor degree (JD).
A Master of Laws (LLM) is a degree you can seek after you get a JD. It is not very common for American lawyers unless they are planning a practice in tax or patent law. However it is common for lawyers from outside the United States to come to an American law school for an LLM in order to perfect their legal English and gain some experience in the Anglo-American legal system.
But to become a lawyer you need more than just a legal education. In order to call yourself a lawyer and practice law, you have to pass the Bar. You can learn all about that in our next installment.
Great Small Talk Topic :
American Lawyers love to talk about law school and university days, so it is always a good topic for small talk. Often the lawyer will be very proud of his or her old school. The standard question “Where did you go to law school ?” should get them talking. You can add the occasional “really ?” and “that’s interesting” and if they start to slow down you can always ask “Where did you go to undergraduate school ?”.
©2006 KC Anderson
After many months of dreaming and planning we decided to update Speak Legal English in order to give you a voice. This new blog format will give you the opportunity to comment or ask questions about the lessons and articles that we publish. You will still get the Legal-Word-a-Week, but we will also have other interesting articles and other fun ways to help you learn legal English.
Please let us know what you think.