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David J. Abeshouse

David Abeshouse’s Answers

26 total

  • When is it advisable to simply "cut and run" in a civil litigation?

    The mediator is in cahoots with opposing counsel and is trying to force me to settle the case. I've been made a "semi-reasonable" offer, but have access to counsel who knows the agency and is willing to step in at 25% contingency (for mediation ...

    David’s Answer

    Parties sometimes assume that the mediator is "in cahoots" with the other side, because of a possible lack of perspective about the case. For example, you don't know what the mediator is saying to the other side during private caucuses about the weakness of their case. Moreover, one often assumes a more favorable than likely outcome via litigation, due to a firm belief in once's case, which may be in part misplaced. Absent specific knowledge about your situation, it's impossible to opine fairly, but suffice it to say that if you feel the offer is "semi-reasonable," then it is in the ballpark, and if you aren't likely to do sufficiently better in litigation to warrant the higher contingent fee plus the added delay (and risk), then you should seriously consider either accepting the current offer or making another effort to enhance it.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • I want to sue my employer and the statute of limitations is coming right up. But I also have an arbitration clause.

    What should I do to make sure I comply with arbitration requirement but also not "blow" my statute of limitations?

    David’s Answer

    You also should consult competent counsel in your jurisdiction because it is possible that the arbitration clause may preclude commencement of a lawsuit in court (or, as the previous responder suggested, render it subject to dismissal). You have implied that, but haven't indicated whether, the claim on which you want to sue arises out of facts that are subject to arbitration, due to the clause. As a general rule, one does not do both (sue in court AND arbitrate). Moreover, if what you're talking about here is all part and parcel of the same thing (in other words, the court suit and the arbitration would arise out of the subject employment relationship), you should be aware that the statute of limitations applies to the claim, wherever it's brought, and so it'd apply equally to a court action OR an arbitration proceeding. If you don't file your arbitration proceeding before the statute of limitations period expires, a belatedly-filed arbitration proceeding is subject to dismissal on statute of limitations grounds, just like a lawsuit in court would be. You probably need a lawyer to help you sort out what to do here, and soon, if you're bumping up against the impending expiration of the statute of limitations (especially as it may take a lawyer some time to investigate and then take action on your matter). I hope this helps.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • How does one compel mediation?

    Spouse's attorney has arranged for court ordered mediation to be postponed. However, several weeks have gone by and I have not been contacted by recieved any form of correspondance from the attorney. My fear is that this may be a delay tactic.

    David’s Answer

    One or two additional thoughts to add to what was said in the previous answer: Although mediation may have been court-ordered, ultimately it is a consensual process, in which the parties must agree on terms in order for there to be an enforceable agreement. Otherwise, the court will proceed to hear and determine the case. So, if mediation is likely to be helpful, it's worth pursuing. If, under the circumstances, it's merely a stage that has to be gone through in order to get to the next step in the procedure, then perhaps a properly-worded explanation to the judge might be helpful in moving things along. Also, you don't say whether you have an attorney representing you. If you do, your attorney should be able to do this for you.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • Regarding arbitration

    got service with t-mobile, i was told theres no credit check, at the time i was in the process of buying a home and was building my credit score, and was told by the bank not to open any credit transaction in order to keep the score at a certain l...

    David’s Answer

    I agree with Mr. Kelly; the particular type of attorney that you probably should seek would be a consumer protection attorney or consumer credit attorney. You can find such a lawyer through Avvo, Martindale.com, the Brooklyn Bar Association, by Googling appropriate key words, or various other means.

    Please note that I do not practice consumer law. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • I received an arbitration award by AAA five months ago. How do I turn this into a judgment?

    The arbitration was in Los Angeles (where I live) and the respondent lives in VA. Do I only file a ADR-106 form or are there other forms to complete as well? Do I need to serve the respondent, and if so, at what point in the process? Does it matte...

    David’s Answer

    In New York (I recognize that you're in California), you have 90 days after issuance of the arbitration award to move in court to vacate (overturn) or modify an arbitration award, and you have one year after issuance of the award within which to confirm it in a court judgment. There may be similar or different time limitations in California, so you should consult competent counsel to advise you on this important aspect. Confirming the arbitration award in a court judgment makes it much more susceptible to enforcement (collection).

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • Who is the responsible party for paying the arbitration expenses?

    I have not seen or signed any type of document that stated I, the plantiff have to pay the expenses even if I was not at fault and the arbitration ruled in my favor. Thank you...

    David’s Answer

    I am not sure at what stage your matter currently is, based on the question. I agree with the previous responding attorney, Alan, that if your question is more theoretical, in advance of a dispute, then you definitely should provide in the arbitration clause (agreement) such particulars as who is responsible for payment of arbitration expenses (e.g., filing fees, arbitrator compensation, expert witness fees, and any other direct costs) and payment of lawyers' fees. There are many options and alternative arrangements available; you need to select and possibly negotiate what seems best for your situation, in advance, if the dispute has not yet arisen, and you're in the contracting stage.

    If, however, you're already involved in an arbitration proceeding relating to a particular dispute, it may depend on the type of arbitration and on in which forum the dispute is being administered (e.g., the American Arbitration Association, etc.). In general, however, the parties may have an opportunity to inform the arbitrator, at the beginning of the proceeding, whether they both agree that the prevailing party's costs and fees will be paid by the losing party. Even beyond agreement in advance or at the beginning of the proceeding, some statutory claims may provide for shifting of costs and fees in favor of the prevailing party. And in some arbitral forums, the direct arbitration costs may be awarded at the discretion of the arbitrator, but the legal fees may not, absent agreement or a governing statute to that effect. Barring an agreement or a statute that dictates award of laywer fees in favor of the prevailing party, the general "American Rule" is that each party bears his, her, or its own lawyer fees incurred.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • Does an LLC protect my personal assets?

    I am looking into opening a small business, and will take a start up loan to fund it for the first six months. If things go south, will the LLC protect my personal assets from the bank?

    David’s Answer

    I agree with Michael's answer, above, and will add just one point -- it also may depend somewhat on the size of the loan you need (smaller dollars at risk may allow the lender to require a bit less in the way of formalities), your experience in the industry (the more track record you have, the better), and also what kind of small business this will be. The answer to the latter issue may afford you another set of alternatives for financing, if you're in one of the right kinds of business for alternative financing such as, for example, factoring. However, note also that factors also may be likely to seek a personal guarantee. The point here is that you may not want to place all of your funding eggs in one basket, so looking into alternatives to banks might prove fruitful.

    This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • What legal action can I take to stop these harassing emails?

    I am a teacher who receives emails almost weekly from a parent stating that I am not competant to teach their child. My school system will not do anything to stop these emails. I am highly qualified with excellent credentials. It is taking a to...

    David’s Answer

    First, as a practical matter, you may want to (a) block all e-mail from this sender, if that's permissible -- you didn't mention whether this is a private e-mail address over which you have complete control or whether it's a school e-mail address for which you may have to follow school rules; and (b) consult with your teachers union rep -- the union, more than the school system itself, may be able to start the ball rolling with practical assistance, getting the school to take some sort of ameliorative action.

    Legally, you may have the makings of a defamation action -- depending on the particulars (you understandably haven't provided much in the way of specifics here) you conceivably could have the basis for a claim against this parent for libel with respect to the written statements if the parent disseminated them to others beyond you, and/or for slander if the parent spoke the defamatory statements to others as well. For this, you'd obviously have to consult a lawyer in your area, preferably one who has experience both with school legal issues as well as the law of defamation (libel and slander).

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • Is there a place on the internet that has free samples of filed briefs sorted by types of lawsuits?

    I am representing my self (pro per). Yes, I know, I know. But I do not have a choice. I most certainly would hire a lawyer for what I need were I to have the money and if I could get a lawyer to listen to me (which I cannot). So I must do it...

    David’s Answer

    In addition to the previous answers, you also might want to check to see whether the court in which you'd be filing the complaint has a special office or at least separate clerks for dealing with people representing themselves (usually called "pro per" or "pro se"). If so, they can be helpful. Also, check out Nolo.com for information and forms for self-representation. It's a very tough road to do it yourself, and even if the court might provide assistance, someone not trained or experienced in arcane legal procedures and theory, etc. is very likely to make many mistakes, any of which could be fatal to a claim. Any competent guidance you can get would be worthwhile.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for general educational purposes only, and no attorney-client relationship has been formed. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. The response given is not intended to create, nor does it create an ongoing duty to respond to questions. As they say, "Your Mileage May Vary." Best of luck.

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  • Homeowner's association nonsense: Can we pay under protest and then sue the HOA for the $ under small claims court?

    Our homeowner's association alleges we owe them for lost coin-operated laundry profits since we haven't been using the facilities since we bought our own washer. They refuse to sign a section 6(d) certificate required to sell our condo because of...

    David’s Answer

    On the first part of your question: From what you've said, if you're intent on contesting their claim, then I agree that paying it under protest as you suggest would be the best way to address the situation. Just be sure that (a) you know exactly how much the HOA's full claim is, including any claimed interest, so that you're in a position to be cleared completely, and (b) you include a clearly-written letter that the payment is being made under protest and reserving all rights because you disagree with the asserted basis for their claim, and (c) send the check and letter by certified mail, RRR, to the correct address and retain the paperwork as you'll need copies of it as exhibits for your small claims court proceeding. It's not a "lock" or guarantee here, but it seems like the best way of proceeding given the apparent intractability of the HOA and the relatively modest amount in controversy.

    On the additional portion of your question: I don't know whether your small claims court in Massachusetts has jurisdiction permitting declaratory judgment claims or issuance of DJs, so you'd have to check that (online and by calling the court clerks, who are used to assisting parties who don't have counsel). I'd check both online and by calling, to help ensure that you get the right info. As for relying on statements that one sees in an online legal forum, please know that most such statements are -- even when they're made by someone with some legal knowledge (which often unfortunately is not the case), it could be a general statement and not necessarily applicable to your specific circumstances. I hope this helps you.

    Please note that I am not licensed to practice law in your state, and I practice only in NY. This response is provided for educational purposes only, and no attorney-client relationship has been formed. As they say, "Your Mileage May Vary." Best of luck.

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