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1. Deadline Dates

It is critical that when you are negotiating a contract that you specify in the contract deadline dates, whether that be for payment, for completion of construction, for delivery of product, etc.  A deadline date establishes a very specific event that will trigger your ability to go into court and seek damages for the other party’s failure to fulfill their promises.  The less ambiguity, the better.

2. Attorney’s Fees & Costs

The general rule in California is that if your contract does not specify that the prevailing party in a breach of contract situation is entitled to recover attorney’s fees, the court will not award you attorney’s fees even if you win at trial.  Now there are statutory exceptions to this rule that will allow a person to recover their attorney’s fees even without that language in a contract, i.e., employment discrimination lawsuits.  However, if a statute does not apply to your case and your contract is silent on the issue, you are left footing the bill with your attorney. 

We have had countless people come to our office with a great case, people owe them tens of thousands of dollars, and then learn that every penny they spend on an attorney suing in court is not recoverable.  This very scenario is the reason you need a professional to look at your contracts. 

If you do not have enough money to afford an attorney but you have a clear cut contract case and the contract allows you to recover attorney’s fees, an attorney will be much more inclined to take your case knowing that they will be able to recover later. 

3. Choice of Law and Choice of Venue

Choice of law is the state or federal law that will govern your case.  Choice of venue is the place where the parties are agreeing that any disputes will be handled.  For example, you can have a contract signed in Los Angeles that says that Oregon law will apply but the lawsuit must be filed in Florida.  You need to watch out for this language.  A Los Angeles attorney most likely is not licensed under Oregon law and will not be inclined to travel to Florida for court hearings.  You would have to find a lawyer in Florida that is licensed in both Florida and Oregon, which is a mess. 

If your contract specifies that the lawsuit has to be filed in Los Angeles and that California law applies, you will not be spending as much money on travel time for an attorney whereas your adversary could be spending a ton of money on travel time (especially if they are out of state).  It is very important to pay close attention to this language in any contract. 

4. Arbitration

When you sign a contract with an arbitration provision, you are agreeing to waive your right to have your day in court.  Instead, you are agreeing that a panel of arbitrators (retired judges) or a single arbitrator (one person) will be the judge and jury in your case.  Arbitrations were developed to create a fast track forum for cases to go to trial right away with low costs.  However, they have become very expensive over time with arbitrators charging large fees (upwards of $600-$1,000+ an hour).  Arbitrations are not as efficient as they were meant to be and are often delayed for months (similar to a normal case in a courthouse).  It takes about 18 months to get to trial in a normal civil case and arbitrations often last around a year (if not longer). 

Depending on the type of contract, you may be responsible for paying for half of the arbitrator’s fees regardless of whether you win or not.  It is very important that you have a professional look at these types of provisions to make sure you are protected. 

Further, if you are dealing with a large business entity (Apple), they are most likely a repeat customer with certain arbitrators and the arbitrators may be bias toward them (Apple) since they pay their hourly fees on a regular basis, which could put you at a disadvantage.  You need to consult with an attorney to see if an arbitration would make sense or not for your particular situation.      

5. Limitations of Damages

Finally, it is not uncommon for a contract to try to limit your damages.  For example, language may be put in a contract limiting your loss of profits.  Say that Led Zeppelin hired a venue for $300,000 for the night to play a concert and then suddenly that venue cancels the event.  In that scenario, the contract price would be $300,000, which would be reimbursed back.  However, the loss of profits from the ticket sales, merchandise, food, etc., could be enormous.  If the contract says that Led Zeppelin cannot recover lost profits, they could lose all that potential money even though the venue was at fault. 

This is another classic example of why you need a professional looking over your contracts. 

If you have any questions about interpreting a contract or drafting one, please contact the Law Offices of Michael C. Murphy today at 818-558-3718 or email us at info@murphlaw.net. 

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On August 10, 2020, a California judge ruled that Uber and Lyft are to classify their drivers as employees when this entire time they were being classified as independent contractors.  The State of California brought a lawsuit against Uber and Lyft claiming that they were misclassifying their workers.  Uber and Lyft have since appealed the decision, which could bring years of litigation defending their business models.

2. What is the Difference Between an Employee vs. Independent Contractor?

An independent contractor is basically someone that works for themselves, provides their own tools and equipment to do their work, sets their own schedule, and has their own license to do business in California.  An independent contractor can be anyone from a plumber to a large corporation.  An independent contractor is treated as if they are their own business and usually have a unique skill.  They can be hired for temporary work, highly skilled work, or even bigger jobs like construction work.

An employee is someone who is hired by a company but the difference is that the company has control over that employee and can tell them how to do their job, when to show up to work, and the employer provides most of the equipment and tools to do the employee’s job.  The law performs a weighing test to determine exactly how much control the company has over the person hired for the job to determine if they are an employee or an independent contractor.  However, in California, the vast majority of workers are presumed to be employees and overcoming this presumption can be a very difficult task in court.

3. Why is Classification Such a Big Deal?

There is a reason that the cost of doing business in California is one of the highest in the entire country.  Whether a company (Uber or Lyft) classifies their workers as employees or independent contractors has drastic implications.

With employees, the employer is responsible for making sure their workers take meal breaks, rest breaks, receive wage statements, responsible for reimbursing the driver’s for all of their business expenses, pay them overtime, track all of the drivers’ hours, schedule every single driver for every day that they work, track all of their pay, may be required to provide vacation pay and paid leave of absences, the employer pays payroll taxes, they must withhold payroll taxes from their employee’s wages, and they may be required to provide their employees with health insurance depending on the size of the company.  The company has to provide accommodations to disabled workers or workers that are temporarily sick, provide certain paid sick leave for medical treatment, create anti-discrimination and harassment training programs for its workers, and it is prudent to hire human resources professionals to handle employee complaints once an employer has more than 10 workers.  On top of that, federal law requires that an employer reimburse its employees for $.575 per mile that they drive during the course and scope of their work.  While there are exceptions to these rules, this is a short summary of the rules that employers must abide by when operating in California.

If a driver for Uber or Lyft is now an employee and they get into a car accident, it also makes it a lot easier to sue Uber and Lyft in court.  An independent contractor is typically responsible for themself and before the recent ruling by the court, it was a lot harder to sue Uber or Lyft for the actions of an independent contractor (an Uber or Lyft driver).  However, under the doctrine of respondeat superior, employers are generally responsible for the actions of their employees while they are working, subject to certain exceptions.  Uber and Lyft may need to purchase more comprehensive insurance plans to cover their drivers.  They may even need to require their drivers complete a training program before they may become drivers similar to commercial drivers.  All these obstacles could turn a lot of people off from wanting to drive for Uber or Lyft.

With independent contractors, the only thing that Uber or Lyft was really required to do before was make sure their workers were paid and that the workers were provided with a somewhat safe work environment.  Uber and Lyft were not required to issue their drivers wage statements, pay them overtime, or make sure they paid taxes.  At the end of the year, an independent contractor receives a W-9 and they are responsible for paying their own taxes.  An independent contractor must set aside money throughout the year for their anticipated tax bill at the end of the year.  An employee receives a W-2 and the employer must legally make sure the employee pays their taxes throughout the year.

4. How Will This Affect Ride Sharing?

The change in classification of Uber and Lyft drivers from independent contractors to employees could be devastating for Uber and Lyft.  The change in classification could destroy their business models.  Most people work for Uber and Lyft because they need temporary work and they prefer the flexibility in being able to work when they want to and on their time.  However, with the change in classification, that could all be eliminated from the business model with set schedules for the drivers.  The cost of doing business could become equivalent to taking a regular Taxi at which point their competition could drastically increase.  A $20 Uber or Lyft ride could turn into $30 or $40 ride very easily, which previously gave them a competitive advantage over Taxi’s.

It is doubtful that Uber or Lyft will prevail on this issue and if they want to continue doing business in California, they will need to find another way around these employment laws or the California legislature will need to create a loophole for these special circumstances.  People’s jobs could be at risk and the number of intoxicated drivers on the road could also increase if the cost of ride sharing makes it unaffordable for the general public.  In the end, they are facing an uphill battle.

If you have any questions about your own workers or employees, please contact the Law Offices of Michael C. Murphy today at 818-558-3718 or email us at info@murphlaw.net.

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One of the worst mistakes you can do when you are in a lawsuit is to post about the suit on social media. If any of your accounts are open to public view, all of your comments and posts about your case can be used against you at trial. They are considered “admissions” by you and even if you are just joking or writing something just for entertainment or a reaction online, it can come back to haunt you later. The golden rule in this situation is to simply not post about anything that could be remotely connected to your lawsuit or any of the people involved in your lawsuit.

2. Lawyers are Allowed to Explore Your Social Media Profile if it is Open to the Public

The opposing lawyers are not allowed to explore your social media profiles if they are private and locked away from public view. The opposing lawyers are also not allowed to add you on social media in an attempt to see your private information. However, lawyers are permitted to explore your social media profile as long as it is open to public view. You do not have an expectation of privacy when you share information for the entire public to see. Make sure to always lock your social mediate profiles and make sure they are on the “private” setting to protect yourself.

3. Watch Out for People Who are Already Friends with You on Social Media

You need to always watch out to see if anyone involved in your lawsuit is already friends with you on social media. If the other side is connected to your social media accounts and you begin posting about them or the case, there is a high probability they will find out and all of your posts can be used against you at trial.

Be especially careful with witnesses. For example, say you are driving your car and you accidentally hit another car while you are texting and you don’t tell the police or anyone you were texting or looking at your phone at the time of the accident. You are sued and you say that the other driver recklessly slammed on their brakes causing an inevitable accident. Unbeknownst to you, one of your social media friends witnessed the accident on the street but did not tell you they saw the accident. Then you go on social media and write a post warning your friends and family to never text and drive as you almost killed someone while you were texting and driving the other day. That social media friend that saw the accident might see your post and then contact the driver suing you and send them a screenshot of your post. If the jury saw that, you would have virtually no chance of winning at trial and you would leave your lawyer helpless.

This is just one of many examples of why you should never post on social media about anything connected to your case. Rule of thumb is only post things on social media that you would be fine with the entire world seeing.

4. Do Not Bad Mouth Anyone in the Case, the Lawyers, or the Judges

Lawsuits can be a very emotional experience and it can be very tempting for some people to express their feelings on social media. It is not uncommon for people to post that the person they are suing or being sued by is a crook or a liar or a cheat. If you post something negative about the opposing side in the case and the other lawyer sees it, your words can be used against you and your post can be shown to the jury. A lawyer will try to ruin your credibility and attack your character using your words against you. You could even be sued for defamation for trying to humiliate someone in a public forum.

Even worse, if you bad mouth the judge and they find out, it could permanently harm your case. Judges are people and are going to make mistakes. They may make rulings that harm your case. However, if you upset a judge continuously throughout your case, they will treat you horribly at trial. When a judge has a certain attitude toward one side of the case, the jury often pick up on those cues and tend to feel that side must have done something wrong. It is the lawyer’s job to protect you so please keep your thoughts about the judge to yourself, or at least until after your case is finished.

5. Photographs on Social Media Can Ruin Your Case

If you are being sued for assaulting someone and you have posted lots of selfies holding automatic weapons, those pictures are almost guaranteed to land in front of a jury. A lawyer will say that you have a propensity to be violent and therefore, they should find you guilty.

Be very mindful of what you post online. Less is more when it comes to photographs. We have had cases where people will post pictures of themselves getting high and doing drugs during work hours while suing their employer for loss of wages during the same time period as those work days where they were partying (claiming they were working). Your entire case and all your credibility can go out the window if you are not very careful about what photographs you post online.

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The first thing you should do if you are in a car accident in California is seek medical care.  It is often that victims in a car accident do not realize that they are seriously injured because of shock.  A car accident or motorcycle accident can be a traumatizing event that people will remember all the years of their lives so it is important that you go to the hospital whether you can afford it or not.

Many injuries often develop long after an accident too, such as back pain, arthritis, permanent scars, inability to run, walk, stretch, bend over, or engage in athletics at the same stamina and strength, etc.  Make sure you seek medical attention right away so that a doctor may examine you and offer you the best treatment possible.

If Possible, Call the Police

Some people wonder if they should call the police or not after an accident.  You should call the police.  If you are unable to call the police yourself, have a loved one or a friend call for you.

The purpose of the police is that they act as the first investigator.  They will collect the other drivers’ vehicle information, their contact information, they will interview witnesses at the scene, and they will ask each side their version of what happened.  All of this information will go into a police report, which can become very useful later.

If the car accident is a close call between who is more at fault or not, witnesses who observed the accident become crucial to proving your case before a jury.  If a witness disputes the other side’s story and there is no other physical evidence to rely on (such as video surveillance, iPhone videos, or other images capturing the accident), that witness becomes the most important factor in being able to win your case.

The police also form their own opinions in their police reports.  If the police conclude that you were not at fault and the other driver is at fault, this can be used as evidence in your case.  If the police issue a citation to the other driver, this is especially good for your case as it can be used to show the other driver was negligent or reckless.

Take Lots of Pictures and Videos

You or someone you trust need to take lots of pictures and videos.  This step is the most important step of all.  You will need to photograph and/or video all of the damage to your vehicle and your personal belongings that were damaged.  Many people forget about their personal belongings that were damaged.  The more pictures or videos you have of all the damage, the better.

If you received physical injuries in the accident, it is crucial that you take tons of photographs and videos of you being taken to the hospital, being treated in the emergency room, and the aftermath of your injuries after you get home from the hospital.  You should take photographs and videos even as your injuries improve.  These photographs and videos become absolutely necessary to show the jury the seriousness of your injuries and show a jury why they should award you money.  Carefully take photographs and videos of each injury.

Make Sure You or Someone You’re With Gets the Driver’s Insurance Information

California requires that everyone that operates a motor vehicle have insurance.  It is crucial that you take a photograph of the other driver’s insurance card or write down the insurance information.

Assuming the other driver is insured, their insurance policy will usually be the maximum amount of money that you will be able to recover from the other driver.  Most people do not have tons of money in their bank account to fully compensate you for your injuries.  The insurance policy will show you the limits of what is recoverable at trial.

For example, if you have $50,000 in medical bills and the driver’s insurance policy is $300,000, our Burbank car accident lawyers could potentially recover that full $300,000 to pay for all of your injuries and give you additional money for your pain and suffering.  If the insurance policy is only $15,000 and the driver has no other money, you could be limited to only $15,000 in that recovery.

Do Not Talk to the Other Driver’s Insurance Agents about the Accident

After you have collected the other driver’s insurance information and you are back at home from either the accident or the hospital, you need to contact the Law Offices of Michael C. Murphy immediately.  You can never trust an insurance agent about your accident.

What will happen is that the other driver’s insurance company will try to contact you over the phone and try to get your statement.  They will record the conversation over the phone and try to get you to trick you into admitting that you were at fault.  Any statements that you give to an insurance agent will try to be used against you at trial.  Lawyers will later try to twist your words and do everything in their power to destroy your case.

It cannot be stated enough, do not talk to any insurance agents or insurance companies.  Ignore their letters.  Our Westlake Village car accident lawyers will handle everything for you.  Once we contact the insurance company and tell them we are representing you, they are not allowed to contact you ever again without your personal injury lawyer.

Be Careful About What You Say to Emergency Personnel and Hospital Staff

If you are conscious after an accident and you need emergency help, it is very important that you be careful about what you tell firefighters, paramedics, doctors, nurses, and hospital staff.  If you tell emergency workers or hospital personnel that you were at fault and you made a big mistake, your case could be ruined.  If those statements are written down in your hospital records, they will be used against you at a trial.

It is also very important that you be honest about your injuries to doctors, nurses, and hospital staff.  This is not the time to act like a tough person or hold back your pain.  If you are truly in pain but tell the doctor you are fine, lawyers will try to use that against you later.  You should be completely honest with hospital workers.

Ask the Hospital Where You Were Treated to Send You All of Your Medical and Billing Records

Once you have retained the Law Offices of Michael C. Murphy to represent you in your California motorcycle accident case, you will need to get all of your medical and billing records.  This information will be needed whether you negotiate a settlement before suing or after your personal injury attorney Ventura County has filed suit.  The faster you can get us your medical and billing records, the sooner we can begin negotiations on your behalf.

If You Have to Miss Work, You can Recover Your Lost Income

One category of damages that you may be able to recover is loss of income.  If you have to miss work to do surgery, attend medical appointments, or simply rest at home, there is a good chance our car accident attorney can recover the money you would have earned if you had gone to work.

If your injuries are serious enough where it impacts your trade or skill on a permanent level, you may be able to recover future loss of earnings and loss of earning capacity.  This means that our personal injury lawyer can ask a jury to award you money based on what you would have made in the future, especially if you can never work again.  Our car accident attorneys with the Law Offices of Michael C. Murphy will do everything in their power to recoup the maximum amount of money that you deserve.

If Your Clothes or Personal Belongings Were Damaged, You Can Recover Compensation to Replace Them

Many drivers do not purchase insurance to cover their personal belongings.  Even if your own insurance will not pay you for damage to personal belongings, our personal injury lawyers can ask that the other driver’s insurance reimburse you for the damage to your belongings.  If you had clothing, furniture, a motorcycle helmet, jewelry, etc., that were damaged in the accident, we can ask for money to replace them.

Call the Law Offices of Michael C. Murphy

Whether you need a Los Angeles car accident lawyer or Ventura County car accident lawyer, we can help you.  Our personal injury attorneys here at the Law Offices of Michael C. Murphy will know how to navigate through your case and work tirelessly to obtain the best possible recovery for you.  We will work as a team and the better the outcome for you, the better the outcome for all.

Our California personal injury lawyers will meet with you and give you the time and attention that you deserve.  If you are unable to meet with us because of your injury, we will make arrangements to accommodate you by either coming to your home or scheduling a video chat with Zoom.  Contact the Law Offices of Michael C. Murphy today to receive a free phone consultation.

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