Legal Ease Newsletter: 1998 Spring

How To Begin A Small Claims Suit:
Obtain a 3-part application (complaint) from the District Court closest to where you live. Complete the form and pay $35.00 and the Court will notify the defendant by certified mail with a copy to you.

Important Information To Know First:
Make sure you have the correct and complete name and address, including zip code, of the party being sued. If the defendant is a corporation, you must provide the name and address of the corporate officer that you want served with the legal documents.

What Does The Defendant Need To Do?
Upon receiving notice of the lawsuit, the defendant must write back to the Court and say he/she disagrees with your claim and request a trial. The Court will then schedule a trial and notify both parties by mail.

What If The Defendant Doesn’t Answer The Complaint?
You win by default, but the decision is not final for another 30 days. You must first submit an affidavit to the Court indicating that the defendant is not in the military, since that is an excuse for not responding.

How Do I Prepare For A Trial?
In a word, “documentation”. It is not what you say, but what evidence (contracts, letters, photographs) you present to back up your version of events.

How Do I Act In Court?
Get to the point. Don’t tell her your life story. The judge has heard it all before and wants to know only what is legally relevant, not your personal legal opinions or conclusions.

If you are owed money under a contract, tell the judge: “Your Honor, I painted the defendant’s house on July 22, 1997. I have the written contract which shows I was to be paid 20% above the cost of the paint. I also have a bill for the paint I bought. The defendant hasn’t paid me.” The judge will likely ask you some questions to determine why you haven’t been paid. If you have witnesses, bring them. If a witness can’t come to Court, the judge will often accept a letter from the witness, preferably notarized. Remember, any witness should only testify to what they know first hand, not what they heard from someone else.

You Win...Maybe?
If you have told a credible story and have the documentation and/or witnesses, you are likely to win. That’s the good news. The bad news is you still have to collect. The losing party has 30 days to pay you. If he/she does not, you can ask the Court (for $5.00) to order the defendant to appear in Court again to determine if he/she is able to pay, and if so, the judge will order him/her to pay you in a lump sum or installments. The additional costs you incur chasing the defendant are reimbursable to you.

If he/she doesn’t show up for Court, a warrant for his/her arrest may be issued, but police will only pick him/her up if stopped for some other reason, such as a traffic violation.  In other words, it is often hard to collect.

Got Milk? Only If It’s Hormone Free
Congratulations to Gary Hirshberg, owner of Stonyfield Yogurt, for winning a big case against the State of Illinois that directly benefits citizens of New Hampshire.

Illinois had prohibited labeling milk products that contained rbGH (a growth hormone), claiming consumers would think that products with growth hormones had health risks. Dah! Stonyfield Yogurt and Ben & Jerry’s argued that the ban prevented consumers from making informed decisions and the Court agreed. Chalk up one for the good guys!

The “How Dumb Can You Get” Award Goes To...
During a trial for drug possession, the defendant claimed his warrantless search was illegal, but the prosecutor argued a warrant wasn’t needed because the bulge in the defendant’s jacket could have been a gun. The defendant, wearing the same jacket in court, handed it to the judge for examination. Don’t you know the judge discovered a packet of cocaine in the pocket.

It’s To Your Benefit!
As a special service from JG&W and your employer, you and your family members can receive a Basic Will, Power of Attorney for Healthcare and Living Will, for only $25.00 per person. No strings attached...no extra fees. Call JG&W today at 228-1151.

Lawyer Joke of the Month...
Rumor has it that lawyers have special word processors. No matter what font you select, everything comes out in fine print.

Noteworthy News
Roy Weddleton has completed his second monograph for the Institute for Paralegal Education entitled, “Managing the Residential Real Estate Closing for the Paralegal in New Hampshire.” Attorney Mark Dunn and real estate paralegal Susan Curley also contributed and presented a seminar on April 29 in Nashua for 25 paralegals from law firms throughout New Hampshire.

Roy and Susan previously wrote “The Paralegal’s Role in the Real Estate Transaction in New Hampshire” and that text is used in the NH Technical Institute’s Paralegal program.

Telemarketer or Crook?
Here are few ways to determine if you’re being taken:

• if the call starts out or turns into high pressure sales;
  
  
• if the caller insists on an immediate decision;
  
  
• if the offer sounds too good to be true;
  
  
• if a request is made for your credit card number for any purpose other than to make a purchase;
  
  
• if an offer is made to send someone to pick up the money or use of overnight mail to get your funds more quickly;
  
  
• if a statement is made that something is “free” followed by a requirement that you pay something;
  
  
• if the offer is an investment without risk—everything has risk!
  
  
• if there is unwillingness to provide written information or references that you can contact;
  
  
• if there’s a suggestion you take action based on “trust.”

Four Things You Should Know

1. A non-compete agreement is unenforceable when the company is sold to another company. The agreement not to compete is not assignable to another company without the employees’ consent.
   
   
2. A company can refuse to hire a person who has filed for bankruptcy. Although the bankruptcy code prohibits discrimination against employees who file for bankruptcy, it does not apply to applicants.
   
   
3. Employees who have poor judgment, are chronically late or are irritable may have to be “accommodated” under the ADA if such behavior is the result of mental illness.
   
   
4. Under NH and Federal law, if you buy any goods or services at a place other than the seller’s normal place of business, (such as from a door to door salesman) you can return the goods or service for a full refund within 3 business days after the sale.