Upcoming Webinar on Business Disputes and Litigation

Aaron Chausmer of Hecht Walker, P.C. Attorneys at Law is set to speak in an upcoming webinar for the Clear Law Institute. The webinar will premiere on January 31, 2018. The webinar will be titled Fiduciary Duty Litigation in Business Disputes: Identifying Causes of Action, Key Defenses, Remedies and Proof. Aaron Chausmer will be giving valuable insights on the topic and providing a wealth of information that anyone in the legal field will not want to miss.

About the Clear Law Institute

The Clear Law Institute offers engaging workplace learning for online continuing education. It focuses on providing practical and engaging continuing education on law, compliance, investigation, accounting, HR, and management topics. The Clear Law Institute, or CLE, is well-known in the legal community for its informative webinars that include over 1,000 previously recorded webinars and approximately 70 live webinars that are added each month. In addition to the webinars, the online workplace offers courses and games for continuing education. The CLE is led by Michael W. Johnson, the former U.S. Department of Justice attorney.

About Aaron Chausmer

Aaron Chausmer, Senior Counsel with Hecht Walker, P.C., has 19 years of experience in commercial and business litigation matters. Prior to becoming part of the Hecht Walker, P.C. team, Aaron Chausmer led his own commercial and business litigation practice. His primary area of focus included commercial and contract disputes, internal business affairs, corporate governance, strategic planning, litigation avoidance, and competition-based matters.

His education includes graduating from Emory University, attending the Boston University School of Law, and earning a Juris Doctor degree. As a part of Hecht Walker, P.C., Aaron Chausmer uses his years of experience and education to offer services in his area of focus as well as generalized advisory services for businesses.

As an active member of the State Bar of Georgia and an accomplished attorney, Aaron Chausmer has a history of imparting his knowledge to others through speaking events. He often speaks to attorneys and business owners and was a featured as a speaker for Strafford Publications, the Perimeter Chambers Small Business Council Educational Series, Lorman Education Services, and SHRM-Atlanta.

About Hecht Walker, P.C. Attorneys at Law

When Aaron Chausmer joined Hecht Walker, P.C. he became part of a team of experienced attorneys that value hard and honest work. Based in Atlanta, Georgia, the business law firm is home to some of the top business attorneys in the state. The attorneys on the Hecht Walker team have a combined century of experience in their specialized practices. The firm has a successful track record and solid reputation for representing their clients. Clients include individuals, small businesses, government bodies, and large corporations. No matter the size of the company or complexity of the case, the attorneys at Hecht Walker, P.C. aggressively and vigorously represent their clients and defend their legal rights.

Recently, the firm showed not just its expertise, but its charitable side. The first Annual Giving Challenge was established in 2017 to provide a matching grant of $10,000 to Children’s Rights, Inc. Children’s Rights protects children from neglect and abuse through legal work and advocacy. The Hecht Walker, P.C. team is proud to support their worthy cause.

Join with the Hecht Walker Family to Make a Difference in the Lives of Our Most Vulnerable Children

Greg and Cheri Hecht and the team at Hecht Walker, P.C. are happy to announce our first Annual Giving Challenge with a Matching Grant of $10,000 to Children’s Rights, Inc. a non-profit organization. Greg, Cheri, and Hecht Walker, P.C. will match every dollar donated to Children’s Rights, Inc. up to $10,000 between now and #GivingTuesday on November 28th.

Children’s Rights is setting up a Southeastern Headquarters in Atlanta to protect children from abuse and neglect through advocacy and legal work. All of us believe in making this country a place where all children – especially the most vulnerable among them – are safe and healthy. Children’s Rights, Inc. has helped protect over 100,000 children from abuse and neglect through its legal work. Children’s Rights enforces the Constitutional, State and Federal Rights of children, to be free from abuse and neglect, in state custody or supervision. Your contributions will go toward this work to protect Children in Georgia and throughout the South. We need your help to make this Southeastern office a vibrant center of protection for children in foster care and other state and federal oversight programs.

Many of you joined us a couple of weeks ago in Atlanta for a Conversation with Children’s Rights to hear the both horrible and heartwarming story of Edgar C. Edgar survived five years in a group home to make it out on a scholarship to Syracuse University. His younger brother was separated from him in the system and was traumatized through 40 different foster care placements and not surprisingly is now in prison. Unfortunately, less than 40% of children in foster care graduate high school, and the majority, suffer severe trauma and stress in the system.

Cheri and I are blessed to have adopted twin girls who started their lives in foster care, and we are so impressed with the compassion, commitment and great legal work of Children’s Rights to protect vulnerable children. Children’s Rights helps children in Atlanta, the Southeast and across the nation.  We invite you to join us in supporting the organization’s efforts in our region as we strive to transform the child welfare systems that care for America’s children. To double your donation, type or copy and paste “Matched by Hecht Walker” in the donation comments section as you make your donation.

All contributions made will allow CR to expand its work in the Southeast region.

DONATE HERE

Then, to help us spread the word, post and share that you have made a donation:

@childrensrights        #shinealight

Thank you and God bless you and your family. We are grateful for your teamwork and contribution to this important cause.

Property Tax Appeal Deadlines Are Fast Approaching

Higher tax assessments in Georgia have business owners and other property owners alarmed. There has been much confusion as to whether or not these recent tax hikes for property owners will stick.  According to a June 5th article in the Atlanta Journal Constitution (AJC) some Fulton County residents have seen property tax increases this year of more than fifty percent. According to Hecht Walker Principal Greg Hecht,“tax assessments typically come out in spring and early summer across the state, so this issue is currently playing out all across Georgia,”

Business owners and homeowners need to review their tax assessments to find their individual deadlines for appealing a tax assessment. All property owners should be aware that deadlines are coming up fast.

While it appears that residential property owners may have a reprieve, that may not be the case for commercial property owners. In a June 19 article, the AJC quoted Chairman of the Fulton County Board of Assessors John Eaves as saying “commercial properties will be assessed at 2017 levels.”

Hecht Walker, P.C. works on behalf of many businesses and commercial enterprises to help them appeal tax assessments, if advisable.

Business owners are likely to have a better chance at a successful appeal with the guidance of an Atlanta commercial real estate attorney with experience.  The attorneys at Hecht Walker PC focus on business and commercial clients and have represented many such clients with successful outcomes.

BEFORE YOU PAY YOUR TAXES, FIND OUT YOUR OPTIONS FOR APPEAL

To read more about how tax appeals work please take a look at the page “Atlanta Property Tax and Appeal Attorney” on our website, or you may want to read an article published in our 2014 Newsletter by Hecht Walker’s Jon Jordan, Easing the Taxing Cost of Property Ownership.* Additionally, a recent news report by WXIA News featured an interview with Dwight Robinson, the chief tax appraiser for Fulton County; the story helps explain why property taxes jumped so dramatically in Fulton County this year.

Most Georgia counties have mailed out tax assessment notices to property owners already, and your time to appeal is approaching fast if it has not already passed. You should check the date on your tax assessment notice for the appeal date. If you disagree with the county’s assessment of your commercial property’s value, you can appeal the assessment. Please contact Greg Hecht, Mark Walker, Jon Jordan or Aaron Chausmer at Hecht Walker, PC –  (404)-949-0170 if you would like their guidance to determine if you have a good case to appeal your commercial property tax assessment.  Or you may reach our commercial real estate attorneys by completing the contact form on our website. Don’t delay – get the property tax advice and the legal help you need promptly.

*Please note that the law has changed since 2014, and you should contact our law firm or another law firm on your tax appeal matter before relying on the 2014 article.

Do I Need An Attorney For My Small Business In Atlanta?

Every small business needs to work with both an accountant and an attorney. While the necessity of an accountant is obvious, the reasons for hiring a small business attorney may not always be so clear. A lot of small businesses operate on virtually a shoestring budget for the first several years, and sometimes, the entrepreneurs who launch those small startups simply presume that an attorney’s services will be too costly. What they may not have calculated accurately is the cost of not having an attorney’s services.

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WHAT CAN HAPPEN TO A BUSINESS WITHOUT AN ATTORNEY?

Unfortunately, what happens too often is that a small business owner delays until the last possible minute – when the company is being sued or cited – to retain the services of an attorney. But when a business owner in Georgia works with an experienced Atlanta business lawyer from the very beginning, that attorney can often put legal solutions in place before legal problems emerge – saving business owners substantial time and resources in the long run.

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Candid, sound legal advice from an experienced small business attorney can help to protect a small business from the potential legal actions that might be brought by employees, clients, suppliers, contractors, and others. You may need to comply with environmental and zoning regulations, advertising and marketing standards, and depending on the nature of the business and number of employees; your business may be subject to numerous Federal employment laws, including the Fair Labor Standards Act, Americans With Disabilities Act, and the Family and Medical Leave Act. If you employ foreign nationals, you’ll need to be compliant with immigration laws and prepared for inspections by immigration authorities.

WHAT IF A SMALL BUSINESS BUDGET IS LIMITED?

A good small business lawyer is the most effective legal help available to small businesses with limited budgets. Most of the legal matters that a small business owner must deal with are routine, and most of the necessary legal documents can be handled and expedited quickly and economically. A good business attorney can offer valuable legal experience and insights regarding almost every legal matter a business owner may face, from zoning, incorporation, premises liability, and other lawsuits.

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A good business lawyer will help you focus on avoiding legal disputes and preventing legal actions against you. By the time your business is sued or investigated, the damage has already been done; all that remains is how much you’ll pay in legal costs, court fees, and potential fines or damages. Listed here are several of the common scenarios that will inevitably require the counsel of an experienced small business attorney – someone who can provide sound legal advice, ensure that any necessary legal paperwork is complete, accurate, and on time, and advocate on behalf of you and your business in court if that should become necessary:

• Business Formation: Establishing a corporation or any other type of business can be an immensely complicated task. A small business attorney can provide invaluable information regarding the legal differences between various business forms, including s-corporations, partnerships, and limited liability companies, and help advise which form may be right for your business model. Your attorney can also provide assistance with drafting and filing articles of incorporation, and creating operating agreements for businesses with more than one owner.

• Litigation: Litigation is the most serious reason you may need a small business attorney. You’ll need an experienced litigator if a government or law enforcement agency is investigating your business for any reason or accusing you of a violation or a crime. You’ll also need a seasoned litigator to defend private civil lawsuits filed by former or current partners, clients, employees, or customers.

• Major Transactions: You’ll also want the advice of a good small business attorney when you buy or sell a business. An Atlanta business attorney can help you negotiate sales, purchases, and lease agreements, review all of the paperwork to ensure its accuracy and its full compliance with the law, and represent you if necessary in real estate and leasing disputes.

WHAT ELSE DOES A BUSINESS ATTORNEY DO?

A small business attorney can also help small business owners write and negotiate contracts; conduct internal investigations; develop employee policies and compliance procedures; and act as your corporate secretary and registered agent. A good business lawyer will handle your routine business matters quickly, comprehensively, and reliably. When you work with a good attorney from the start, any unanticipated legal issues or disputes that emerge will be handled by an experienced small business lawyer you already know and trust. A small business lawyer will also be able to help you with matters such as:

• corporate dissolutions
• advising on protecting the corporate veil
• partnership disputes
• researching a name for your business
• creating a partnership or a limited liability company (LLC)
• creating contracts for customers or clients
• creating a buy-sell agreement with partners
• applying for any required licenses and permits
• interviewing and hiring employees
• establishing lien filing procedures for small construction businesses
• updating any legal documents as needed

This list is by no means exhaustive, but when a small business owner works with the right business attorney from the start, you’ll have someone you can turn to with any legal question or concerns – someone who already knows your business, how it operates, and the range of issues you face. Even a minor violation or an honest mistake can cost you substantially in lost hours, expenses, and red tape, so working with a small business lawyer is the best investment you can make for avoiding those kinds of unanticipated legal troubles.

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If you own a small business already, or if you are buying or starting up a business, develop a relationship with an experienced small business lawyer. In fact, you really shouldn’t go into business without a small business attorney’s advice. Of course, no business owner likes to take time away from customers and clients to deal with legal matters, but it’s wiser to deal with legal matters before they become legal problems. Be sure that you have the legal help you may need, because if you own a small business for any length of time, the chances are high that you’re going to need it. If you have legal questions or concerns during the formation of a company or at any point, call Hecht Walker P.C. to set up a consultation.

What is The Uniform Voidable Transactions Act and How Can It Help Your Fraudulent Conveyance Case?

When we speak of someone “owning” money or property, we usually presume that ownership is an all-or-nothing proposition. A wallet or a toothbrush, for example, is either yours or it isn’t. But some kinds of property – homes and cars, for example – may be the basis of a creditor-debtor relationship that legally changes an owner’s rights and control over his or her property. A home mortgage, for example, plainly legally limits what an owner may and may not do with a mortgaged property.

A “fraudulent conveyance” is the legal term for a debtor’s attempt to avoid paying an unsecured debt by transferring property or assets to another person or company when the property or assets are at risk to a creditor. Outside of the law, most of us would simply call this “hiding the money.” Maybe the debtor foresees insolvency and tries to conceal property or assets that a creditor might use to satisfy the debt. Maybe the debtor never intends to pay the debt and transfers property or assets in an effort to become judgment-proof.

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To be clear at the start, the law considers a “fraudulent conveyance” or a “fraudulent transfer” to be a civil rather than a criminal matter. Fraudulent conveyance often emerges as an allegation in debtor/creditor matters and in bankruptcy proceedings. Any legal action typically is brought by the creditors or by bankruptcy trustees. In the state of Georgia, when a fraudulent conveyance happens, banks and other lenders may need the legal insights and services of an experienced Atlanta banking attorney.

HOW DID THE UFTA DEFINE FRAUDULENT TRANSFERS?

Under the Uniform Fraudulent Transfer Act (UFTA), a fraudulent transfer may be either “intentional” or “constructive.” An intentional fraudulent transfer is a transfer of property made by a debtor to delay, defraud, or hinder creditors. While intent must be determined on a case-by-case basis under the UFTA, a transfer of all of the debtor’s assets to a newly formed company or to a family member to avoid the reach of creditors or litigation is generally considered evidence of intent.

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Federal bankruptcy laws give a trustee the right under state laws to challenge allegedly fraudulent transfers. Many state’s laws are based on the Uniform Fraudulent Transfer Act, which provides that an allegedly fraudulent conveyance may be challenged if there is evidence that it is either actually fraudulent or “constructively” fraudulent. In establishing constructive fraud, the debtor’s intent to defraud or harm creditors is immaterial. Instead, the issue is whether the debtor obtained more-or-less equivalent value in exchange for the transfer.

In 2014, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Voidable Transactions Act (UVTA), which amends and is intended to replace the Uniform Fraudulent Transfer Act (UFTA), which had been the law in 43 states. Several states – including the state of Georgia – have now adopted the UVTA, and several others are considering it. While the UVTA clarifies the law to keep debtors from intentionally dodging legitimate debts, it also provides a creditor with a legal way to reach properties and assets a debtor has transferred to another person in order to keep those properties and assets from being used to pay off a debt.

HOW DOES THE UVTA DIFFER FROM THE UFTA?

The UVTA’s amendments to the UFTA are designed to eliminate the divergent interpretations of the Uniform Fraudulent Transfer Act that have led to different outcomes in different courts for similar claims. The changes also bring the Act into compliance with the Uniform Commercial Code (UCC) and with the U.S. Bankruptcy Code. The UVTA offers some welcome clarity to what has been for far too long an all-too-often-misunderstood area of the law.

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Most of the UVTA resembles the UFCA. What are the differences? The most important revision included in the UVTA is the absence of the word “fraudulent.” In the UFTA, “fraudulent” and “voidable” are used inconsistently, so the UVTA replaces “fraudulent” with “voidable.” Another change discourages the use of terms such as “constructive fraud” and “actual fraud,” because “constructive fraud” is confusing, and what is deemed “actual fraud” under the UVTA does not actually require proof of fraudulent intent. However, these revisions in terminology should not have any substantial effect on the statute’s application.

As a result of the 2007 ruling in the case Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court now requires the plaintiffs who file fraudulent conveyance claims to include enough facts in their complaint to make it plausible – and not merely possible or conceivable – that they will be able to produce the facts necessary to prove their claims. An experienced Atlanta banking attorney can help banks and other lenders determine what evidence is sufficient for filing a fraudulent conveyance claim in any specific case.

WHO HAS LEGAL STANDING TO FILE A FRAUDULENT TRANSFER ACTION?

Standing to bring fraudulent transfer actions varies, depending on the circumstances. Under the Bankruptcy Code, a trustee always has the right to initiate a legal action alleging a fraudulent transfer. Under the UFVA, both present and future creditors may also bring a claim asserting a fraudulent conveyance. A future creditor is defined as a creditor whose claim arises after the transfer in question, but which had a foreseeable connection to the debtor at the time of the transfer.

The Uniform Voidable Transactions Act establishes the right of a creditor to sue a debtor for fraudulent conveyance and also to take legal action against any person or company who has received the fraudulently transferred assets or property from the debtor. A creditor’s claim prevails when there is a recovery of the property or assets from the company or person to whom the property or assets has been fraudulently transferred.

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The UVTA makes several key improvements to Uniform Fraudulent Transfer Act. The clarifications regarding burdens of proof and legal standing to bring a claim, along with the revision of “fraudulent” to “voidable,” will reduce the confusion among judges, attorneys, and the principals in fraudulent conveyance cases. The other minor changes to the UFTA made by the Uniform Voidable Transactions Act modernize the act and bring it in into compliance with other uniform laws and the U.S. Bankruptcy Code. Overall, for the banks and the other lenders who are victimized by fraudulent conveyance, the changes are helpful and positive.

For more information, speak to our creditor representation attorneys today.

How to Create Non-Compete Agreements

An employment contract should precisely spell out the rights and obligations of both employees and employers. A written employment contract is a legal agreement negotiated and signed by both the employer and the employee. In recent years, after losing too many valuable employees – and too much intellectual property – to the competition, companies are increasingly asking – and sometimes requiring – their employees and job applicants to sign employment contracts that include non-compete agreements.

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Also called a “covenant not to compete,” a non-compete agreement is essentially an employee’s pledge to an employer that he or she will not go to work for a direct competitor for a certain period of time after leaving the employer. If you are a business owner who is considering non-compete agreements for your employees, you face two questions. Is it really worth the effort, and if so, how do you draft a non-compete agreement that the courts will enforce?

ARE NON-COMPETE AGREEMENTS WORTH THE EFFORT?

You’ll have to decide for yourself if drafting and having employees sign a non-compete agreement is worth the effort. Clearly, one benefit is that non-compete agreements will impair the ability of your competitors to lure valuable employees away from you. A non-compete agreement is also legal protection for your confidential data. Almost every company needs an effective strategy for keeping sensitive information and trade secrets out of the hands of the competition.

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Trade secrets are not easy to protect. Anything from a list of clients or contractors to a unique electronic circuit design or a complicated chemical formula can be a trade secret. A trade secret is typically something that gives your company its edge or uniqueness, and as the business owner, it’s something you want to be kept secret. When an employee who knows or has access to your trade secrets leaves, he or she could take and use your trade secret for personal gain. If that ex-employee is hired by a competitor, your trade secret will probably be disclosed – unless you insisted on having that employee sign a properly drafted non-compete agreement.

In California, non-compete agreements can almost never be enforced against employees. California law does not recognize non-compete agreements except in very rare and precisely spelled out circumstances, but the law in the state of Georgia gives more rights to employers. In this state, businesses have the right to sue ex-employees for breach of contract, including the breach of non-compete agreements, and employers in Georgia may also sue for revenue lost through the breach of a non-compete agreement.

WHAT MUST BE INCLUDED IN A NON-COMPETE AGREEMENT?

Non-compete agreements can legally protect an employer’s trade secrets, but the language of a non-compete agreement cannot be open-ended, vague, or ambiguous in any way; no employer can restrict an ex employee’s work options everywhere and forever. The law puts a high priority on every person’s freedom to earn a living, so the language of non-compete agreements must be extremely narrow, limited, and precise. An enforceable non-compete agreement in Georgia must include three considerations:

  1. Geography: In most cases, a non-compete agreement must specify a particular community, region, or state(s) where the ex-employee cannot launch a new business in direct competition with the ex-employer. The geographic range specified will depend on the nature and range of the employer’s business.
  2. Duration: A non-compete agreement must have an expiration date, which is typically from six months to two years. Georgia employers should know that in most cases, a non-compete period exceeding two years will not be enforced by this state’s courts.
  3. Scope: Non-compete agreements must use exacting language to define precisely what employment activities an ex-employee may and may not engage in for the duration of the non-compete period.

Before a business owner decides to require non-compete agreements, he or she should be sure that there’s a genuinely good reason for the requirement. Don’t require non-compete agreements just to keep employees from leaving or to penalize them if they do. The most common and one of the best business reasons for requiring a non-compete agreement is to keep an ex-employee from poaching your customers or clients to establish his or her own new business. If you can’t provide a judge with a persuasive reason why you required an employee to sign a non-compete agreement, that judge may have difficulty finding a good legal reason to enforce the agreement.

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WHO BENEFITS FROM A NON-COMPETE AGREEMENT?

Employment contracts are “agreements” – hence, they must offer a benefit to both parties. The law requires employers to provide something in return for an employee’s signature on a non-compete agreement. If a job offer hinges on the non-compete agreement, hiring the applicant who signs the agreement satisfies that requirement. If someone is already your employee, an employer will need to link signing the non-compete agreement to a raise, a promotion, or to some other tangible benefit.

A non-compete agreement must be “reasonable” in the eyes of a judge, so don’t ask for too much. The courts will not enforce an unreasonable agreement anyway, and it won’t be worth anything. Instead, make sure that you have an agreement that simply meets your most basic business needs. The legal limits placed on non-compete agreements are there to protect workers from unethical employers. So long as a non-compete agreement doesn’t ask for too much and exists for a genuine business reason, courts in the state of Georgia will almost always enforce it.

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In an employment contract, every line and every word is important. Employers need to have precisely-worded employment contracts that are drafted exclusively with your business needs in mind. That’s one reason why the advice and services of an experienced business attorney is imperative. A good business lawyer can protect your operation by creating employment contracts that satisfy your business needs and are not subject to misinterpretation.

In Georgia, employers should have an experienced Atlanta business attorney review every line and every word of your current employment contracts. If changes are needed, your attorney will make recommendations. An Atlanta business attorney should also draft or review all of your employment contracts in the future – before anyone signs them. The modest expense of sound legal advice is a small price to pay for peace of mind, and it’s a wise investment against legal difficulties in the future.

The Most Common Legal issues Surrounding Commercial Property

Commercial property is real estate that is owned or used by businesses. Most states, including Georgia, enforce a number of laws that deal specifically with commercial property issues. Commercial real estate law establishes legal standards for commercial leases and for the purchase and sale of commercial real estate. This is an introduction to the most common legal issues surrounding commercial property, but anyone in Georgia with specific concerns regarding commercial real estate or anyone involved in a legal dispute involving commercial real estate should discuss the matter in detail with an experienced Atlanta commercial real estate attorney.

HOW DO RESIDENTIAL AND COMMERCIAL REAL ESTATE DIFFER?

What are the core legal differences between residential real estate and commercial real estate? Unlike residential real estate, commercial real estate must comply with special commercial property insurance rules. There is also the matter of conduct: some types of conduct are allowed only in residential areas and zones, while other kinds of behaviors are allowed exclusively in commercially-zoned districts. Commercial real estate is also usually associated with distinct legal issues which may include:

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  • Zoning and Land Use: Typically, commercial activities may only be conducted in commercial zones and on commercial properties. Zoning by local governments determines how owners may use commercial properties and what they can build there.
  • Leasing Issues: There are a number of types of commercial leases, each with advantages and disadvantages for owners and lessees. A “fixed” lease is comparable to a residential lease – parties agree to a specific amount of rent for a fixed time period. Parties in a “step” lease agree to annual rent increases. In a “gross” lease, a tenant pays a set periodic or fixed-term rent, and the landlord pays some or all the operating costs of the business.
  • Property Taxes: Taxes on commercial real estate are usually higher than taxes on residential properties, and taxes may also differ depending on the type of business conducted on the property.
  • Insurance Coverage: Commercial property insurance disputes are a common source of legal aggravation for far too many businesses and commercial property owners. Usually, commercial property insurance covers most real property as well as the items or fixtures associated with conducting routine business. In most cases, disputes can be avoided by having an attorney thoroughly review a commercial property insurance contract.
  • Ownership Disputes: Many businesses and commercial real estate owners deal almost constantly with title, ownership, boundary, and/or leasing disputes.
  • Boundary Disputes: Some commercial real estate disputes are boundary disputes over the physical boundaries of a property. Title and boundary disputes are less common today due to better record-keeping, but disputes can still arise when records are old or when the property description in a deed lacks the needed specificity.

WHAT CAN AFFECT POSSESSION AND TITLE OF COMMERCIAL PROPERTY?

Because a number of legal issues will inevitably come into play, anyone who becomes involved in the leasing, sale, or purchase of commercial real estate in Georgia will need to obtain the insights of an experienced Atlanta real estate attorney. Anyone who decides to purchase commercial real estate in Georgia should also be aware of several factors that will affect possession and title. Those factors include:

  • The seller’s awareness of material defects: Most states, including Georgia, require a seller who is aware of a problem with a commercial property to disclose the problem to the buyer.
  • Actively concealed material defects: Generally, it is illegal for a seller to hide a defect actively in order to make a sale of a commercial property.
  • The buyer’s obligation to inspect: Prior to purchasing a commercial property, a buyer must have it inspected for defects by a licensed or certified property inspector. Generally, a seller is not liable for a problem with the property if the seller did not know about the problem and did not actively conceal it.
  • Encumbrances: An encumbrance may limit the rights of a property owner. Encumbrances can include deed restrictions, liens, easements, and encroachments. An encumbrance is any claim or liability against a commercial property that affects the title to the property.
  • Environmental and zoning issues: Environmental and zoning issues affect almost every commercial property. The specifics will depend on the real estate’s location and on the type of business conducted there. Most local governments create separate districts for residential, business, and industrial properties. If an owner’s land use or proposed use does not conform to the current zoning, the owner can usually apply for a variance.

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WHAT SHOULD YOU KNOW WHEN LEASING COMMERCIAL PROPERTY?

Anyone who is leasing commercial real estate should also be aware of some additional concerns. Most commercial leases, for example, are not covered by most of the consumer protection laws that govern residential leases. There are no caps on security deposits, and it is not easy to break or change a commercial lease. Before you sign any commercial real estate lease, have it reviewed by a trustworthy real estate lawyer.

And before signing any commercial lease agreement, you’ll also want to make sure that the lease meets your business needs. Consider the rent payment and make sure that you will be able to handle it. A short-term lease with renewal options is usually best. Also, consider the physical layout. If your business requires changes to the space, make certain that you or the landlord can and will make the modifications.

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WHAT DOES THE AMERICANS WITH DISABILITIES ACT REQUIRE?

The Americans with Disabilities Act (ADA) requires all businesses in the United States that are open to the public or that employ more than fifteen people to make the premises accessible to disabled people. Make certain if you lease commercial property for a business that you and your landlord are in agreement about who will pay for any modifications that may be needed to be in compliance with the ADA.

Speak with an experienced real estate attorney prior to buying, selling, or leasing any commercial property. Because commercial real estate is usually linked with business uses and business contracts, the legal issues regarding any specific commercial property will invariably involve a mountain of documentation and paperwork. If you are involved in any legal issue or dispute regarding a commercial property, compile all of the documents and pertinent legal papers that are related to the property and discuss the issue or dispute with an experienced real estate lawyer.

Tips For Preparing Your Executive Team For Deposition

If you are a business owner or a corporate executive, you already know that a “deposition” is out-of-court, oral testimony. Depositions are a part of the discovery process in which both sides gather information in preparation for a trial. Depositions are commonly used in litigation and are almost always conducted outside of court by the lawyers themselves without a judge’s supervision. Of course, every business owner or corporate executive in Georgia should already have the advice and services of an Atlanta business attorney who can help.

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Depositions are usually conducted at the office of the court reporter or in the office of one of the attorneys or law firms involved in the case. However, depositions are also sometimes conducted at a witness’s workplace or home or in a nearby hotel’s conference room. Usually, a deposition is attended by the person being deposed, that person’s attorney, the other side’s attorney(s), a court reporter, and others who may appear in person or be represented by their attorneys. All parties to the action and their attorneys have the right to be present and to ask questions at a deposition.

HOW DOES A DEPOSITION DIFFER FROM OTHER SETTINGS?

If you are a corporate executive or a business owner, you may be a gifted public speaker, confident in front of audiences and at board meetings. But sitting in a deposition under the examination and scrutiny of a savvy, experienced trial attorney is a completely different kind of setting. Your carefully-rehearsed testimony could send your case spiraling in the wrong direction. Careful and early preparation can help avoid unanticipated questions and surprises in depositions. Here are some key points for corporate executives and business owners to consider.

First, admit to yourself that testifying is not a natural act. It’s not like an employee luncheon where you can simply breeze in with confidence and say a few words off the cuff. Testifying in a deposition is more like trying to speak to people in another country. The environment is constraining. Ask yourself how you feel about testifying. Is simply having to be there an aggravation? Are you afraid you might look foolish, or that you might even wind up demoted or terminated? The first step in a deposition is being brutally honest with yourself.

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WHAT IS THE PURPOSE OF A DEPOSITION?

Secondly, understand that the success of the case does not rest solely on you. Everyone has a part in the case, and your part is but one piece in a larger scenario. Thirdly, be sure that you fully understand the purpose of your deposition. It’s not your job to offer all of the information you have about a case. A deposition is a fact-finding opportunity for the other side. Answer the questions precisely, and if the other side’s attorneys do not ask for a specific piece of information, don’t provide it. Volunteering information unnecessarily can potentially point to weaknesses in your case that the other side can exploit.

Next, become aware of the various strategies and tactics that opposing attorneys use. One strategy is the pose of the “friendly” opposing counsel. Longtime Modesto personal injury lawyer Jeff Nadrich suggests the attorney may actually be a nice person, but if the niceness is directed at you as a witness, it’s probably just a strategy to catch you off-guard. If you anticipate a contentious encounter, and instead you are greeted warmly, the opposing attorney is hoping that you’ll you drop your guard. Don’t. Litigation Insights, a legal consulting firm, offers these suggestions to business owners and corporate executives who are being deposed:

  • Don’t have chatty conversations during breaks or when the camera isn’t rolling. Opposing attorneys use these opportunities to gather information that can later be exploited.
  • Watch out for long pauses or the pose of “bumbling” and delaying. Attorneys know that witnesses tend to fill in uncomfortable pauses with additional details.
  • An opposing attorney may play dumb as a tactic. Attorneys are never confused during depositions – they’ve done their research. The tactic is an appeal to vanity, as if the attorney is pleading to be “educated” by the witness. Don’t fall for it. You may disclose unnecessary details.
  • Stay calm. Don’t let a surprising remark by an opposing attorney make you defensive and make you say more than you need to say.
  • Don’t be overly prepared. If you provide thoroughly canned, well-rehearsed answers, your credibility might be questioned. There’s a presumption that “scripted” witnesses have been “told what to say.” Be as natural as possible under the unnatural circumstances. Of course, it’s imperative to anticipate what will be asked and to rehearse your testimony, but it is equally imperative to retain some sense of spontaneity while you are being deposed.
  • Be ready to answer the tough questions. The wrong answers could discredit your testimony. You do not want to avoid or dance around tough questions. What you want to do is to answers those questions directly, firmly, and without hesitation. Make a list of the toughest possible questions an opposing attorney might ask, and have sound, direct answers ready.
  • In business and corporate litigation, make sure – or have your attorney make sure – that none of your company’s other employees will be offering testimony that contradicts yours in any way.

3

HOW SHOULD SOMEONE PREPARE FOR A VIDEO DEPOSITION?

Video depositions are standard practice today. Trial jurors and others may see the video of your deposition, so you’ll want to keep these additional recommendations in mind when you give testimony that’s being recorded:

  • Give short, precise answers.
  • Appear knowledgeable and speak with confidence, but also be humble, not boastful.
  • Maintain eye contact, be well-groomed and wear attire appropriate to your position.
  • Be entirely familiar with any documents in question or any documents that could be presented.
  • Try to avoid words or phrases like “I think,” “I believe,” “maybe,” or “perhaps.”
  • Don’t wring your hands, fidget, or play with your glasses. These gestures indicate nervousness.
  • Know when to say “I don’t know.”

4

Have your own attorney make certain that the video is set up so that it is clear to viewers that you are directly addressing the attorney who is questioning you. A witness who frequently looks off camera in a video deposition gives the appearance of being uncertain, or worse, the appearance of being coached. A deposition is unlike any other situation. It requires hours of preparation, and then you have to appear spontaneous. Don’t be intimidated. Help is available.

If you are a business owner or a corporate executive, and if you are expected to testify at a deposition in the state of Georgia, you may choose to seek help and advice from your own attorney, from an experienced Atlanta business attorney, or from another lawyer near you. Find someone who can be neutral and objective, and someone who has extensive experience handling depositions.

Mark Walker Attorney Profile

Walker.Mark_Hecht Walker Principal Mark Walker is a 28-year practicing attorney and a southern gentleman. Originally from Tallahassee, FL, Mark has been married to fellow attorney Mary House for 28 years. Mark proves that a strong belief in God and family keeps you grounded. He enjoys the outdoors, which helps keep him healthy.

BEST ADVICE YOU RECEIVED AS AN ATTORNEY?

Always keep clients informed. Mark believes in being completely honest and keeping his clients informed even when the news may not be what his client wants to hear. According to Mark, There are times when clients come into the office and they have already made up their mind how they wish to proceed. Sometimes the client wishes to proceed in a matter that is not the most beneficial way, so it is my job to explain why a different position might be more beneficial. I always have the clients best interest in mind and hopefully with proper explanation can save the clients time and expenses.

WHAT MADE YOU DECIDE TO BECOME AN ATTORNEY?

In college I participated in a Model United Nations Seminar in New York City. Each college would be assigned a country to debate the countrys position with regard to a particular matter. If I recall, the matter we were to debate was regarding oil. During the experience, I realized that I was blessed with the ability to debate and express my point in such a way that it would be convincing to other people and thus the Legal Profession became an obvious choice.
BEST ADVICE YOU VE GIVEN AS AN ATTORNEY?

Try to work something out before getting a lawyer,
However, in representing lenders, it is extremely helpful for a client to contact us as soon as a problem arises. If a borrower is only behind a payment or two, it is a lot easier for that borrower to make some type of an arrangement to get the past due debt brought current. This is preferred over allowing the debt to become so great that there is nothing the borrower can do to bring the debt current thus causing the client to incur the expense of foreclosing or any other remedy they choose.

MOST PROUD OF?

Honesty.
I believe in treating people with respect and being honest with them.  That could be opposing counsel, clients as well as individuals or companies opposing you.  When you treat people that way, the point you are trying to get across or the position you are taking should hopefully be accepted even though they may not feel the same way.

DESCRIBE YOUR APPROACH TO EACH CASE.

Thorough
The more thorough you are in preparation of the case, the less likely there will be any surprises from the opposing party. This allows you an opportunity to more fully represent your client.

IF YOU COULD GIVE YOUR CLIENTS ONE PIECE OF ADVICE?

Keep good records.

WHAT DO YOU DO WHEN NOT IN THE OFFICE?

Golf, Fish, Hunt, and follow sports teams.

WHO IS YOUR HERO?

My Father.
My father has taught me and still does that you should always be yourself. Always remember where you came from. Respect others even though you may not agree with them. Additionally, I know the this a cliché, but treat others like you want to be treated.

WHAT BROUGHT YOU TO ATLANTA?

My wife.
I followed my wife to Atlanta. On the last day of law school at Walter F. George School of Law in Macon, my then fianc and I had a deal that whom ever received a job offer first would accept it and the other one would follow. I had my heart set on going back to Florida but as luck would have it Mary received an offer to come to Atlanta, the day before my first offer. I was one day away from raising my family in Florida but after all these years, I wouldn’t change a thing.
Mark lives in Henry County with his wife Mary, his sons Cole and Jamie and their dogs, Trinity – a Chocolate Lab, and Bucky an EnglishSetter.

To learn more about Mark Walker read his BIO here.

 

*Hecht Walker Motto:  Hard Work, Honest Work, Great Responsiveness, Great Results

International Arbitration Part 3 – Traps, Tricks, and Practice Pointers

Evidentiary Issues

Prepare for the relaxation of evidentiary rules in ICC arbitrations. First, remember that hearsay will come in to most ICC arbitrations, but the arbitrator may determine what weight and credibility will be given to such hearsay. Second, motions to exclude such as Daubert motions are less likely to be granted than in a Court setting. In our opinion, arbitrators are more likely to include evidence than a district court or superior court judge would to avoid any confirmation issues related to exclusion of evidence.
Strategically, motions in limine and Daubert motions are still helpful for the arbitrator to determine weight and credibility issues. Furthermore, the motion in limine can result in the rare exclusion of evidence in an arbitration.

ICC Rules

Don’t expect to be operating under a Civil Procedure Act within the ICC arbitration process. The ICC provides some definite rules, but a lot of the procedure is going to be determined by the arbitrator and the parties. The parties and the arbitrator may provide for the federal or state rules to be the default set of rules when there is no guidance from the ICC.
In addition, be aware that certain affirmative defenses normally expected to be applied may not be applied in your case. For example, the statute of limitations defense may or may not be applied as you would expect in the arbitration process. You need to brace your client for the fact that certain affirmative defenses may not receive the same mandatory application in ICC arbitrations as those defenses would in a State or Federal Court case. The results of those decisions may increase the cost and breadth of the litigation within the arbitration process. Also, the arbitrator may not make decisions on such important issues until just before the evidentiary hearings (i.e., trial for all practical purposes).

Due Process of Law

ICC arbitrators do not want to be reversed or have their decisions fail to be confirmed. One significant type of objection or motion, if normal rules of procedure are not followed, is constitutional objections such as a failure to provide due process of law to the parties. If the arbitrator is not following standard civil procedure rules, then this type of motion or objection is an important tactic to utilize.

The Talk

If the case is not going to settle and will be tried in evidentiary hearings, then early in the proceedings, you need to haveTHE TALK with your client. You need to let the client know that the arbitration process can get very expensive including hundreds of thousands of dollars for prosecution or defense of a case, and that your client should not expect a significantly reduced cost to arbitrate the case over litigating a case under a Civil Procedure Act and in Court. This talk will assist clients and will assist your firm before legal costs get out of hand based on the misperception of clients in relation to arbitration being much cheaper than normal litigation.
Conducting THE TALK before engaging in significant discovery is important, because the pace at which ICC arbitration runs is brisk. Once written discovery begins, the calendar will be compressed significantly in comparison to normal litigation.
The amount of documents and the translations needed for written discovery are significant and on deadlines that may or may not be realistic. Both parties will encounter these difficulties and need to be cooperative with opposing counsel. Both parties need to work with the Arbitrator on realistic deadlines to complete discovery, pre-trial motions, and evidentiary hearings.
Also you should note to your client that once depositions begin, the costs and fees will rise dramatically during those months. The timeline is shorter in general than regular litigation, and as a result, the cost and fees will be intense within each month as depositions go forward. You need to prepare your client accordingly.
Also, please note that each arbitrator may handle the discovery process differently. Some arbitrators may limited depositions significantly and push for memorial statements and affidavits as opposed to many depositions. This decision will significantly affect the cost and strategy related to the arbitration.

Subpoena Frustrations

The ability to enforce subpoenas in ICC arbitrations is difficult and cumbersome. Out of state subpoenas, to be enforced, require holding hearings out of state where the witness resides. You would be asking the arbitrator to hold the hearing out of state with the parties counsel. Questions as to the utilization of skype and other such services by the out of state witness counsel are all subject to interpretation and in the end, likely require a court ruling if the out of state witness’s counsel objects or just ignores the subpoena. We can assist you on this issue, but it is very difficult to gain compliance. Some collateral source articles exist on these out of state subpoena enforceability issues.

Evidentiary Hearings

Time is tight in evidentiary hearings. An ICC arbitrator may decide that the arbitration will take a maximum of five (5) business days regardless of the number of documents, depositions, and experts you maintain. Deposition designations, i.e. page and line number demarcations for use of depositions as testimony, may be necessary by stipulation in order to complete evidentiary hearings within the time allotted by the arbitrator. Specific rulings on the use of depositions and affidavits are critical, and the strategic evaluation of such utilization of live and deposition witnesses are critical from the beginning. Also, you should get an idea of the weight affidavits and deposition designations will get from your arbitrator before evidentiary hearings begin.
Pretrial Briefs and Opening Statements are critical. Do not assume that your arbitrator will find the right passages in depositions. Both sides need to be cognizant of the potential need to designate deposition portions for trial.
During the evidentiary hearings, do not expect normal court procedures. In fact, don’t be surprised if the arbitrator engages in significant questioning of the witnesses to your clients advantage and disadvantage at times.
Furthermore, do not expect normal objections to be sustained. Most of the time, the evidence is going to come into the proceeding. Unless exhibits have not been provided previously in discovery, the exhibits are likely to be admitted into the proceeding. Hearsay and other objections will be rarely sustained if a bates stamp number is on the document or prior notice has been received by the opposing party.
A lack of hard and fast rules in ICC arbitration exists for the most part. The best of trial lawyers can be rewarded or frustrated by this lack of formality. However, it is better to be forewarned than to be surprised at these hearings.

Hecht Walker, PC Arbitration Representation

Our firm wishes you the best of luck in your ICC arbitrations. If we can assist you in arbitration or in litigation, we would be honored to serve.  Please feel free to contact us about your international or domestic arbitration, commercial litigation, real estate litigation, employment law litigation, and business disputes of all kinds. Thank you.
Greg Hecht has been a practicing attorney for 28 years. He has been lead counsel in over 1000 hearings and 300 trials. His specialties include international arbitration, business, commercial and real estate litigation, local government law, commercial landlord/tenant, contract, 42 USC 1983, zoning, land use, employment law, personal injury & wrongful death, and litigation.

Greg-Hecht-v2-thumbnail

Greg Hecht has been a practicing attorney for 28 years. He has been lead counsel in over 1000 hearings and 300 trials. His specialties include international arbitration, business, commercial and real estate litigation, local government law, commercial landlord/tenant, contract, 42 USC 1983, zoning, land use, employment law, personal injury & wrongful death, and litigation.

Full bio at http:// www.hechtwalker.com/attorneys/greg-k-hecht