Friday, May 20, 2011
Affordable Law - Legal Advice
Welcome to my blog, KonstLaw. My name is Harry Konst. I'm a New York attorney and am also an entrepreneur and developer. I try to view my client's problems from their perspective. I offer advice and options so that you can make an informed decision about how to proceed. Sometimes, you might be surprised at how simple a solution might be. Give me a shout. No obligation. Konst.Law@gmail.com
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ReplyDeleteAvoid Litigation”
ReplyDeleteIf you’ve ever been involved in litigation, you realize (sometimes too late) how nerve-racking, frustrating and costly it can be. It can leave both parties feeling exhausted, cheated, and even violated. It can be a long, drawn out process that can take years before it resolves itself.
So, why do parties sue each other? Well, for many reasons. The old saying goes that “people make decisions based on emotion, and then they rationalize it afterwards with reason.” Individuals become angry. They feel wronged and they truly believe that they are in the right.
As an attorney who has aggressively litigated in the past, I get my share of telephone calls from potential clients that are upset and want to sue “based on principle.” That’s the key word, “principle.” It denotes anger and righteousness.
And, I have noticed how some attorneys may actually play it up with the client. “I’m shocked, too,” the attorney says. “You can’t let him get away with that,” the attorney continues. “I’ll need a $5,000 deposit to go forward,” the attorney slips in. “How much do you have on you?”
This is about the time when most clients begin to reconsider, somehow dismissing the importance of “principle.” “Let me think about it” or “I’ll get back to you” are frequent responses from that potential client.
So, what does a client do? Does he shrink back into his shell and go on with his mundane life, accepting his lumps? Or, does he start calculating? He asks the attorney, “how much to send a threatening letter?” “Oh, that’s not bad. Let’s do that and see what happens.”
Or he can seek resolution through arbitration or mediation; also know as “alternative dispute resolution.” You can find information at the website,
In both processes, an unbiased third party or third parties (mediator or arbitrator) hear both sides of the story, analyze the issues and evidence, and then render its decision. Both sides usually agree beforehand that the final decision will be binding. Both sides have their “day in court,” so to speak.
The savings can be substantial. There is less acrimony involved and a fair-minded person can feel that justice was done. But, there’s an even bigger savings. It’s the savings of all your time and effort, which to a small entrepreneur, can be enormous. No more sleepless nights or waking moments of fighting inner thoughts. The process is sped up and it allows you to move on with your life, free to build, create, innovate, and make your mark in the world.
For more information about this article, call Attorney Harry N. Konst at (716) 601-1000.
You Can Call Me Know, or…
ReplyDeleteA client of mine was suddenly ousted from his own restaurant. He came to work one day to find the locks changed and all the employees instructed to ignore him.
What is so sad about this ordeal is that the restaurant was entirely his creation. He created the concept, the design, and the menu. He pounded nails and oversaw all the contractors. He hired and trained all the employees. He managed the operations and did all the marketing and advertising. He invested tens of thousands of dollars and thousands of hours of effort.
After six months of construction and development, the restaurant opened to rave reviews. Within a year it had earned a large and loyal clientele. The business was thriving.
And then the axe fell. Severed from the establishment. Gone. So long. Fine’.
So, who did this to my client? Well, it was his partner, of course.
You may be wondering, how could this happen? Well, it happens all too often when people enter into partnerships with one another. When two people decide to start a business together, they are usually filled with optimism and excitement. But a partnership is similar to a marriage, and it should be taken just as seriously.
Gone are the days of a handshake. A well-drafted partnership agreement is essential before the first drop of sweat or invested dollar. It should address such issues as percentage ownership, responsibilities and duties of each partner, salaries and profit distribution, buy-out and succession provisions, and how disputes will be resolved. Each business is different and has its own special legal issues that need to be addressed.
My client is paying me a lot of money to get his restaurant back, and after our first day in court, he is optimistic. It will be an uphill battle and require a lot of legal work. The moral is, much of this could have been avoided if he had put their words and promises into writing. Unfortunately, the saying holds true, ”you can pay me now or pay me later.” I know one person who wishes he had.
For more information about this article, call Attorney Harry N. Konst at (716) 601-1000.
Attorneys and Real Estate Brokerage
ReplyDeleteYou may not be aware, but all attorneys in New York State are also licensed real estate brokers by law. This means that attorneys can list properties for sale, represent buyers, and collect real estate commissions for introducing buyers and sellers in the sale of residential and commercial real estate, as well as businesses.
When dealing with a real estate brokers, the first thing you should realize is that real estate commissions are negotiable. Though there are certain norms that exist in the industry, there is no law that requires a 7% brokers commission on the sale of residential real estate or a 10% brokers commission on the sale of commercial real estate. However, there are inherent costs associated with real estate brokerage that make certain minimum commission fees a requirement before a broker takes on a client.
So why pay a middleman like a real estate broker at all? A broker earns his pay by becoming the “procuring cause” to a transaction. That means that the broker has produced a buyer or seller that is “RWA” or “ready, willing and able” to enter into the transaction.
There are three types of ways to hire a real estate broker to sell your property, and they are distinguished by the legal characteristics of the relationship. The first is called an Exclusive Right to Sell, which is where the seller is liable for a commission if the property is sold even by the seller herself or by another broker. The second is called an Exclusive Agency, which prevents the seller from giving the property to another agent or broker. But the seller can sell the property herself without paying the broker. The third type is called a Nonexclusive Agency. This is where a broker earns a commission only if that broker was the procuring cause of the buyer. Most sellers prefer this type of arrangement.
A licensed real estate broker (or attorney) does not have to have a written agreement in order to collect his commission in a court of law. So, when dealing with a broker, make it clear in the beginning how you intend to deal with each other.