LETTER OF THE LAW

(May 1994)

Several years ago, Massachusetts implemented a new jury system, which makes it more likely than ever that you will be called for jury duty and less likely that you will be exempt or excused from service. At the same time, the regular term of trial jury service has been reduced from one month under the old system to one day or one trial under the new.

The old system contained a lengthy list of exemptions, and it was easy to be excused from service. But that system produced juries who did not represent a cross-section of the community. The new jury system contains few exemptions: If you are under age 18 or, at your option if you are over age 70; If you cannot speak and understand English; If you cannot serve because of physical or mental disability; If you are solely responsible for the daily care of a disabled person; If you are outside the county and do not intend to return at any time during the next year; If you were convicted of a felony within the past seven years or are a defendant in a pending felony or in custody of a correctional institution; If you have served as a juror in any court within the previous three calendar years.

In general, if it is inconvenient for you to serve when called, you can usually get one postponement, for up to one year. You may also often arrange to serve at a different court house within the same county, if that would be more convenient. If a trial is expected to last longer than three days, the judge will announce that before the jury is impanelled and may excuse you from serving on that trial. Grand jury service is usually for three months. Accordingly, it is easier to be excused from grand jury service.

Often, you may simply sit around in the jury room for several hours without being selected for a trial. Jurors awaiting assignment are generally discharged as early in the afternoon as possible when it is known that they will not be needed.

The law requires your employer to pay your regular wages for the first three days of trial jury service. After than, you will be paid by the state at the rate of $50. per day. If you are unemployed, you will not be paid for service, but will be reimbursed for your expenses. Grand juror compensation is similar but slightly more complicated, based on your regular wages or up to $50. per day.

You may be prosecuted and fined up to $2000.00 for failure to appear for jury service or other violations of law. Sometimes, when the number of no- shows starts to produce shortages of jurors, the jury commissioner's office steps up prosecution of delinquent jurors. If there aren't enough jurors for a case, the deputy sheriffs have the power to grab people from off the street around the court house. This doesn't happen often, but it did happen in Dedham not too many years ago.

This article describes the jury selection system in Massachusetts courts. The Federal courts continue to follow a more traditional jury selection system. Your chances of being called for service in a Federal jury are much less.

Copyright © 1994 A. Joseph Ross, J.D.

(May 1994)

In the case of Taylor v. Schlander, decided 5 March 1993 by the Georgia Court of Appeals:

"Plaintiff Candace Ann Taylor and defendant Cynthia M. Schander were previously involved in a romantic relationship. This lawsuit arises out of an injury plaintiff sustained on their first date in February 1989. After spending several hours at a bar, the couple returned to the defendant's house."

"Plaintiff was sitting on a kitchen bar stool facing defendant, who was also sitting on a stool ... the couple commenced kissing. Defendant got up and sat in plaintiff's lap and the couple resumed kissing. Because of a certain movement defendant made ... the stool toppled and both women fell to the floor."

The plaintiff suffered a broken ankle, but lost the case because "the risk of falling should have been obvious."

Copyright © 1994 A. Joseph Ross, J.D.

(May 1994)

There are many lawyers in the world who do not practice law. One such was the man for whom the Hubble Space Telescope was named.

After passing the bar, then spending some time as a teacher and as an athletic coach, Edwin Powell Hubble (1889-1953) went to the University of Chicago and earned a doctorate in astronomy. Then, in 1919, he went to work at Mount Wilson Observatory in California. At that time, Mount Wilson's 100- inch reflecting telescope was the world's largest.

Hubble made discoveries which proved that what astronomers then called "spiral nebulae" were actually distant galaxies like our own. He then discovered the expanding universe. The rate of the universe's expansion is called the "Hubble Constant." The rule that "the farther an object is from us, the faster it is receding" is known as "Hubble's Law." And it was discovered by a lawyer.

Copyright © 1994 A. Joseph Ross, J.D.

(September 1994)

Introduction

The important witness has a difficult role in any litigation. The subjective pressures on him or her -- whether a party or not -- can make testifying a frightening experience. Lawyers have a difficult time perceiving this, and that may well explain why lawyers are supposedly among the worst witnesses.

Our role is to help you be a witness, not only on the subject matter of your testimony, but also on the special problems of being a witness. Being a witness can be a highly artificial business for which there is no adequate background or experience. Therefore your preparation must start from scratch.

In General

1. Take your time. Wait until the entire question is asked before answering. Listen carefully to the question and think before you speak. If you don't understand the question, say so. Don't try to answer a question that you don't understand. If you are asked about a document, read it before testifying about it.

2. Tell the truth. Answer the question as truthfully as you can, according to your best recollection of the facts and events involved. Answer only the question that was asked. Don't ramble on or volunteer information. When you have finished answering the question, stop and wait for the next question. Don't be tempted to expand on your answer just because the examiner seems to expect it.

3. Don't answer what you don't know. You don't have to know the answer to every question. If you can't remember an answer, say, "I can't recall" or "I can't remember." If you don't know the answer, say, "I don't know." These are legitimate answers to the most illegitimate questions. You can ruin your entire case if you try to fill in gaps in your memory, turn out to be wrong, and your statements come back later to haunt you.

   You may refer to notes to refresh your recollection. To do so, you must first exhaust your recollection, then refer to your notes to refresh your recollection, and then testify from your refreshed recollection. You cannot simply read your testimony. Any notes that you use to refresh your recollection may be seen by the other side and introduced into evidence.

   Try to have dates and chronology firmly fixed in your mind. While no one expects you to have total recall, if you must refer to notes too much, your credibility will suffer. One cross-examination technique is to ask questions which skip around in time to try to get you confused as to the order of events and dates.

   But don't memorize your testimony. It will sound unnatural and less believable.

4. Understand the difference between knowledge, hearsay, and surmise. You must never answer a question by suggesting that you know something that you do not know. YOU DO NOT KNOW SOMETHING YOU HAVE MERELY BEEN TOLD. Be as specific or as vague as your memory allows, but stick to your true recollection. If you can only approximate dates, times, and distances, give your best approximation. Do not guess.

   You only know what you personally saw, heard, or did. Usually, you cannot testify to what others know or to conclusions, opinions, and speculations. You cannot tell what was in someone else's mind. You cannot tell if a person was angry, for example, but you can testify that the person ACTED angry, shouted in an angry tone, turned red in the face, jumped up and down, etc. You cannot testify to other people's motivations, but you can testify to what they said was their motivation.

   Don't testify about your own state of mind unless you are specifically asked about it. Don't explain your thought processes unless asked. In testifying on conversations, make it clear whether you are paraphrasing or quoting directly.

5. Every witness makes mistakes. These are normal, and you should not become flustered. You should, however, correct errors as soon as possible. Some witnesses try to defend their error. This cannot be done successfully. Don't collapse if you are caught in an inconsistency. Don't tie yourself in knots trying to cover up some slip of speech or memory, and don't try to correct an error by building a story around it. If a later question doesn't give you the opportunity to correct an error, take advantage of the next recess to confer with us, so that we can give you the opportunity to correct the error.

   Every witness also thinks of things she or he should have said after the testimony is over. Accept it. There's no going back to add to your testimony. Don't expect to testify without the other side scoring a few points.

General Demeanor

1. Speak clearly and loudly so that the judge, counsel, stenographer, and the last juror can easily hear you. Keep your hands away from your mouth or face. Never nod your head to indicate "Yes" or "No." The tape or stenographer won't pick up gestures.

2. Give positive, clear, and direct answers to every question whenever possible. Answer the questions with the words you normally use and feel comfortable with. Don't use someone else's vocabulary, "police talk," or other stilted speech.

3. Avoid adjectives and superlatives. Avoid mannerisms of speech. A habit such as prefacing your replies with something like "I can truthfully say..." may cast unwarranted doubts on your whole testimony.

4. Avoid attempts at levity. Avoid even the mildest obscenity. Avoid absolutely any ethnic slurs or references which could be considered derogatory. Avoid all nasty or snide remarks about opposing parties, witnesses, or attorneys.

5. Be serious and polite at all times. Do not exaggerate the facts, and do not understate them. Don't give cute or clever answers. Never argue with the lawyers or the judge. Never lose your temper. The lawyer on cross- examination may try to get you to argue or to lose your temper. Resist these temptations.

6. Remember that the fact-finder (judge, jury, or hearing examiner) is your primary audience. Face the fact-finder when testifying and try to get and maintain some eye-contact. Don't look at the judge or lawyer for help on difficult questions.

7. When addressing the judge, use "Your Honor." A hearing examiner is "Mr. Examiner" or "Madam Examiner." Address attorneys as "Mr." or &quotMs." and the last name.

8. When an attorney objects or the judge or hearing officer interrupts, stop immediately until the judge or hearing examiner makes a ruling. If the objection is overruled, you may answer the question. If the objection is sustained, simply wait for the next question. Never try to squeeze an answer in when an objection has been made.

9. If the examining counsel interrupts you, let counsel finish the interruption, and then firmly but courteously state that you had not finished your answer to the previous question.

10. If your attorney objects to a question, listen to the objection very carefully.

On Cross Examination

1. There are two ways to cross-examine: friendly and hostile. The hostile approach, while popular on television, is generally the mark of an inexperienced attorney. If opposing counsel is hostile and badgering, remain calm and polite. Don't let anyone rile you into arguments over trivial points or even important ones. Be firm, but flexible. Take solace in the fact that a hostile cross-examiner is probably hurting his or her case by annoying the judge and jury and making them sympathetic to you.

   It is more likely that the cross-examiner will adopt a friendly or neutral approach. Remember that no matter how friendly opposing counsel may seem, he or she is your adversary.

2. Don't assist or argue with the cross-examiner. It is counsel's job to ask a question so that it can be intelligently answered. It is our role to argue if necessary, but never yours. Unless instructed by us to the contrary, you should answer as best you can all questions that you understand. You should ask that a question be repeated or rephrased until you understand it. Do not ask counsel any questions, and do not state, unless asked, the reason you need to have the question rephrased. Do not assist opposing counsel. Cross-examination is the adversary's inning, and it is no part of your burden to make any points. You are there to answer questions and nothing more. Your general attitude should be as if you were a by-stander with no interest in the outcome.

   Never express anger with opposing counsel. Be frank and fair, neither too anxious to please nor too eager to fight. Try to seem as friendly and helpful to opposing counsel as you are with your own attorney.

   Don't try to be a "Smart" witness. If counsel is obviously giving you a chance for a wisecrack, avoid it like the plague. It's the anesthetic before the knife.

3. Don't let counsel put words in your mouth. Listen carefully to the question, and be wary of adopting the cross-examiner's terminology. We all tend to be careless about language at times, but testimony is a time for care in word usage.

   Don't adopt a cross-examiner's summary of your prior testimony. When they say, "I believe you testified earlier that...," that may not be exactly what you said.

   If counsel is trying to jump around in time, make sure that you listen to each question and know its time-frame before you answer.

   Listen closely to any question that begins, "Do you want this jury to understand...?" If you don't want the jury to understand it that way, make clear what you do want them to understand.

   Do not answer a compound question unless you are certain that you have all parts of it in your mind. Pay particular attention to introductory clauses which may precede the actual question.

   If counsel asks, "Are you as positive about this as the rest of your testimony?" stop! Are you?

4. Here's how to answer "yes or no" questions. If you can fairly answer a question "yes" or "no" without explanation, you must do so. If you can't fairly answer "yes" or "no," say so and explain your answer.

5. Don't look at your attorney during cross examination. You may just be nervous, but it will look like you're looking for help with the answers.

6. And finally, don't get tripped up by questions like "Did you ever discuss your testimony with anyone?" Of course you did, and if asked, name the people. This is merely an attempt to get you rattled or trick you into looking less believable. There is nothing wrong with discussing testimony with your attorney or anyone else. And if opposing counsel is foolish enough to ask what we told you to say, just reply that we told you to tell the truth.

Copyright © 1994 A. Joseph Ross, J.D.

(September 1994)

Over 20 percent of all complaints to the Federal Trade Commission since 1990 have been about credit bureaus. According to a survey by the US Public Interest Research Group, 61 percent of the consumers complaining were denied credit, housing, or jobs, because of errors in their reports. It is easy for your file to get confused with that of another person with a similar name. It is not unknown for an unscrupulous merchant or landlord to make an unjust adverse report.

Before you plan to make a major purchase, it is a good idea to check your credit report first. You actually have not one but three credit records, since there are the three national credit bureaus: TRW, Equifax, and Trans Union.

TRW will send you one free credit report annually. You must make the request in writing, giving the following information:

• Your first name, middle initial, last name, and, if appropriate, any indication of generation (Senior, Junior, Third, etc.);

• Your current home address and previous addresses for the last five years, including zip codes. You must verify your identity by enclosing a photocopy of a utility bill, driver's license, or billing statement;

• Your spouse's first name;

• Your Social Security number;

• The year you were born.

Sign your request and mail it to TRW, PO Box 2350, Chatsworth, CA 91313-2350. If you find errors, call TRW at 800/682-7654 to resolve the dispute.

Equifax and Trans Union will only give you a free copy of your credit record with them if you have already been denied credit. Otherwise, they will charge about $8.00 for it. Their phone numbers: Equifax 800/685-1111 Trans Union 800/851-2674.

There is some good news. With a new computer system, the three credit bureaus will soon be able to share correction information and make corrections in a few days, rather than a few weeks.

Copyright © 1994 A. Joseph Ross, J.D.

(April 1994)

We've all seen the stories in the news about families who have to go through several court levels in order to get the doctors to turn off life support for a terminally ill and unconscious relative. More and more people want to providing in advance for such eventualities.

The legal system's first attempt to deal with this issue was the living will. This is a document in which you tell your doctors and family what sort of medical treatments you want and don't want in certain circumstances.

A living will is useless if it doesn't cover the circumstances that actually occur. That encourages lengthy and legalistic drafting. But doctors faced with a lengthy legal document often refuse to act without consulting the hospital's attorneys -- the last thing you want in a medical emergency.

The currently preferred approach is the health care proxy, which is authorized in Massachusetts by legislation which took effect in December 1990. Under this new law, by properly executing a health care proxy, you can appoint a "health care agent," who will have power to make health care decisions for you should you be unable to make or communicate those decisions.

A health care proxy must be in writing and signed by you or by someone else at your direction, before two witnesses. The witnesses must attest that you are at least 18 years old, of sound mind, and under no constraint or undue influence. The health care agent cannot serve as a witness. No one associated with a nursing home or a hospital where you are a resident or a patient may be appointed as health care agent unless related to you.

Unless you specify limits in the proxy document, a health care agent is authorized to make all decisions involving your health care that you could make if able to do so. This includes decisions on administering or withholding life-sustaining treatment.

The law does not allow "suicide or mercy killing" or any "affirmative or deliberate act to end one's own life," nor does it prevent any medical procedure which the attending physician determines is necessary "to provide comfort, care or pain alleviation."

A health care agent may act when the attending physician determines, in writing, that you lack the capacity to make or to communicate health care decisions. The agent's authority will end if the attending physician later determines that you have regained capacity.

You may also name an alternate health care agent, who may act if the first agent is unavailable or unable to act. The law also allows you to revoke a health care proxy. A new health care proxy automatically revokes a prior one. If you name your spouse as a health care agent, a divorce or legal separation will automatically terminate that person's authority to act.

We have developed a simple health care proxy form and encourage clients to come to us for this service.

Copyright © 1995 A. Joseph Ross, J.D.

(April 1995)

If you had an account in a failed bank, you must make a claim promptly in order to avoid forfeiting your deposit. Telephone calls to the bank do not satisfy this requirement, nor does updating the interest earned on a passbook savings account. Within 18 months of the failure, you should do one of the following:

• Make a deposit or withdrawal after the new bank takes over the failed institution. Keep the receipt.

• Renegotiate the terms of a certificate of deposit in writing. Receipt of a Form 1099 tax statement from the bank also qualifies.

• Where there is no takeover and the FDIC liquidates the failed bank, accept a check for the full amount on deposit.

• Close the account and either take the money or open a new account with the new bank.

• Sign a form with the new bank stating your intention to keep the account open.

Copyright © 1995 A. Joseph Ross, J.D.

(April 1995)

Some married women who file joint tax returns and were self-employed under their maiden names may not have had their earnings recorded correctly to get social security credits. The IRS has corrected the problem for current returns, but earnings for past years of self-employment may not appear on some women's earnings statements.

To get an earnings statement, call Social Security and ask for Form SSA-7004. After you fill out the form and return it to Social Security, you will get a copy of your earnings statement, on which you can identify errors and get them corrected.

Copyright © 1995 A. Joseph Ross, J.D.

(April 1995)

According to a recent decision of the United States Supreme Court, if you are talking over a cordless phone, the answer is no.

The Supreme Court ruled that police may eavesdrop on cordless telephone conversations without first getting a search warrant. Because cordless phones are not private, the Court ruled that there is no reasonable expectation of privacy in those who use them.

Cordless phones operate at frequencies that can be picked up by anyone with a police scanner. In addition, as many cordless phone users know, your conversations can often be picked up inadvertently by other cordless phones nearby.

Cellular phones also operate within the frequency range of many scanners. The Electronic Communications Privacy Act of 1986 (ECPA), passed in response to lobbying by the cellular phone industry, makes it a Federal offense to eavesdrop on cellular phone calls, and newly-manufactured scanners are required to exclude those frequencies. By an amendment to the ECPA passed last year, the law now also prohibits listening to cordless telephones.

Many scanners can still be modified easily by electronics buffs to receive cellular frequencies. Hobbyist magazines frequently contain specific instructions on restoring cellular frequencies on various popular models. There is no requirement that new scanners exclude cordless phone frequencies. The ECPA is nearly impossible to enforce against people listening in private.

Most of us have a tendency to think that our phone conversations are private, even when we are knowingly using devices which broadcast radio signals. Some couples have been heard to say some of the most incredibly private things in the baby's room, in front of a live baby monitor microphone!

This has also important ramifications when you are having a confidential conversation with your attorney. Make sure that you are aware of when your phone calls are not private. You have a right to ask whether your attorney is using a cordless or a cellular phone when you call (We never do.). If you have private business to discuss, be sure to use a hard-wired phone when you call your attorney. If you do call on a cellular or cordless phone, tell your attorney, so that he or she can avoid discussing your private affairs when they may be overheard.

Copuright © 1995 A. Joseph Ross, J.D.

MARCH 2010 NOTE: Nowadays, cellphones are all digital and so are newer digital phones. This article still applies to any older analog phones still in use.

(April 1995)

Changes in banking rules in recent years mean that there are more and more ways that you can lose to your bank the money that you deposit in your account.

Most obvious is the increasing number of service charges, particularly on small accounts. Until recently, service charges on savings accounts were unheard of. Now, on many small accounts, the monthly service charge exceeds the interest earned. Your money is more secure under the mattress than in this type of account.

Another problem is back-up withholding of taxes. Back-up withholding is when your bank withholds federal taxes from interest earned on your account. It is only supposed to be done in certain narrowly defined circumstances, when the IRS has had past problems collecting your taxes. When you open an account, your bank is supposed to give you a form to sign giving your social security number and certifying that you are not subject to back-up withholding.

But some banks may take several months before entering your account in their computer as one to which withholding doesn't apply. Meanwhile, they keep withholding taxes from your account. It can take many months of arguing with bank personnel before the withheld money gets returned. The amount is small for each account, and you get credit for it when you do your taxes next year. But for all the accounts to which this applies, it no doubt increases the bank's cash flow at your expense.

We once ran into a variation of this problem when we kept some clients' escrow accounts in a small bank. Then our small bank was taken over by a larger bank. As soon as the accounts were converted into the new bank's system, income taxes were withheld, even though the bank's statements indicated that they had our clients' social security numbers. We had to fill out forms several times, over several months, and complain repeatedly before the withholding stopped and the money was re-credited. Needless to say, we removed those accounts from that bank as quickly as we could!

The banking system especially costs you money when you bounce a check. Most banks now charge about $20.00 to a customer who writes a check which bounces. This is far more than the bounce costs the bank to process, but banks justify this charge by saying they want to deter you from bouncing checks.

Fair enough. But it is much harder to avoid a check bounce than it once was. It used to be that if you kept your checkbook record properly and did your statements regularly, the balance in your checkbook would give you a clear picture of how much money you had to spend. Now, with ATMs, direct deposits, automatic payments, and proliferating bank service charges, you can no longer be sure of how much money is in your account.

As if that weren't bad enough, the way bounced checks are handled has changed. It used to be that when you bounced a check, you got a notice from your bank before the payee of the check got the check back. You had time to fix the problem and to call the payee and smooth things over. You could then tell the payee to put the check through again, and it would clear.

That's no longer what happens. Now, the banking system automatically puts a bounced check through a second time, before you even know there is a problem. This means the check will probably bounce a second time, with another $20 charge. When the payee finally gets the check back, it will have bounced twice and will be marked "Do Not Re-Deposit." The payee will be angrier with you and may insist on being paid with certified funds. Some payees, especially government agencies, may impose additional charges of their own for the bounce.

How can you protect yourself from our new banking system? Here are some suggestions:

• Ask about service charges when you open your account. Watch all statements to catch new service charges as soon as they are imposed. In particular, beware of extra service charges when you use your ATM card in another bank's machine. The convenience of networked ATMs comes at a price.

• If you have a small savings account, look for a bank which still offers a passbook account. These are among the few savings accounts left that are still free of service charges.

• To avoid back-up withholding on an interest-bearing account, consider dealing with smaller banks. They seem to have less trouble updating the information on your account.

• If your bank is about to be taken over by another bank, close all interest-bearing accounts before they are transferred to the new bank's system and open new accounts in another small bank.

• An overdraft reserve offers protection from bounced checks. But use it ONLY as an overdraft reserve. The interest rate on an overdraft reserve makes it the most expensive form of personal loan. But it is a valuable a cushion against an inadvertent bounced check. If you write a check which triggers the overdraft reserve, pay the money back into the reserve as quickly as possible.

• As an alternative to an overdraft reserve, consider keeping an extra $100.00 in your account as a cushion against an inadvertent overdraft. This is what many people did years ago, when banks offered no-service- charge accounts if you kept a small minimum balance in the account. Just put the $100 in and forget that it's there. If it saves you just one inadvertent bounced check, it will be worth it.

We used to think of banks as a safe and secure place to put our money. In recent years, banks have found increasing ways to take our money for themselves. It is up to you to protect your money in today's banking system.

Copyright © 1995 A. Joseph Ross, J.D.

(December 1995)

In April 1994, a new law regarding lead paint went into effect in Massachusetts. One of the sleeper provisions in this new law is a new notice requirement for landlords of all residential property built before 1978.

Effective 1 September 1995, landlords must provide all prospective tenants with an official notice outlining the hazards of lead poisoning. The notice must be given on a form prepared by the state Department of Public Health. The landlord must enclose with the form a copy of the most recent lead inspection report for the unit if there has been one, a letter of "interim control" if intermediate steps are being taken to control the leak paint, or a letter of compliance indicating that any necessary de-leading measures have been taken. Tenants must sign a statement certifying that they have received these materials.

Between 1 December 1995 and 1 December 1996, landlords must also provide these materials to all existing tenants. The notice is required whether or not the tenants have children under the age of 6. Tenant notification forms can be obtained free of charge from the state Department of Public Health. We also have forms available for our clients.

The tenant notification can also be included in a written lease and has been incorporated into the latest edition of the Greater Boston Real Estate Board Rental Housing Association's standard form lease.

This notification requirement parallels the tenant notification requirements under Title X, a comprehensive federal lead poisoning prevention law signed by President Bush in 1992.

Any owner who fails to comply with these provisions will be liable for all damages caused by the failure to comply and is subject to assessment of a penalty of up to one thousand dollars. A violation by any person engaged in trade or commerce is also considered an unfair and deceptive act or practice under the consumer protection law, giving rise to potential liability for treble damages plus attorneys fees.

Sending notice to a tenant is not considered an admission of liability to any claim for lead poisoning, but the fact that a tenant has received a lead paint notice does not bar any claim.

Copyright © 1995 A. Joseph Ross, J.D.

(December 1995)

We've recently heard that some movers have been demanding cash payments for their services as soon as they've finished moving you into your new home. Whether they can do this depends on whether or not they have given you fair warning that they require this.

If a mover warns you when you call them that they will expect payment in cash, that can be considered to be part of the contract, and your agreeing to hire them can constitute your agreement to pay them in this way.

But we've heard of movers who put the requirement of cash payment into the fine print of a contract form, but don't tell you that they want cash until they've finished the move. Then, they may pressure you to go down to an ATM right now to get the cash for them. Burying the requirement in the fine print of a contract is not adequate warning, and they may be liable under the state Consumer Protection Law for failing to disclose this to you in advance.

After the movers have moved you into your new home, they have very little leverage to enforce any requirement for payment in cash. They can't very well move you back into your old place. If they call the police, the police will most likely tell them that it is a civil matter and they must take you to court. So long as you offer a check (and the check is good), there is, as a practical matter, nothing the movers can do but take it or leave it. if they refuse your check and take you to small claims court, you can go to court and offer the same check. The court will probably be upset with the mover for wasting their time.

Copyright © 1995 A. Joseph Ross, J.D.

(December 1995)

We've all heard of obnoxious tactics on the part of some bill-collectors. Under the Federal Fair Debt Collection Practices Act, a bill collector is prohibited from:

• using obscene language;
• making annoying or frequent telephone calls;
• calling before 8:00 AM or after 9:00 PM;
• threatening violence or injury to property;
• threatening criminal prosecution, except involving a bad check;
• falsely implying that the collector is a lawyer;
• communicating the existence of the debt to a third party without your
• permission, or threatening to do so;
• Communicating with you directly after they have been notified that you have a lawyer;
• Communicating by post cards;
• Soliciting a post-dated check;

In a debt collector's first contact with you, the collector is required to notify you that if you dispute the debt, you must notify them within thirty days or they will assume the debt is valid. If you notify the debt collector in writing within the thirty day period that you dispute all or part of the debt, they must obtain verification for you and mail you a copy of the verification or a court judgment.

If you so request within the thirty-day period, they must provide you with the name and address of the original creditor if it is different from the current creditor. This may be important if the original creditor has assigned the debt to the collection agency.

The debt collector must also notify you if they intend to bring suit against you before the thirty-day period has expired and that they are attempting to collect a debt, and any information they obtain will be used for that purpose.

Consumer protection regulations adopted by the Massachusetts Attorney General contain many similar restrictions on debt collectors and require that debt collectors notify you of your right to request, orally or in writing, that telephone calls regarding your debt not be made to you at your place of employment. An oral request will be valid for only ten days unless you provide written confirmation within seven days.

Copyright © 1995 A. Joseph Ross. J.D.

(December 1995)

If you own your home, the law gives you an important tool to protect it from being taken by creditors in a sheriff's sale. Any homeowner can obtain this protection by recording a Declaration of Homestead in the Registry of Deeds where your title is recorded. You can also obtain homestead protection by words written into the deed when you first buy your home. A "manufactured home" (what used to be called a "mobile home") can be protected by filing a declaration in the city or town clerk's office where the home is located.

A homestead estate protects the first $100,000 of your equity from attachment, levy, and sale for payment of debts. But there are certain debts that can override homestead protection. These include a sale for unpaid taxes; a debt contracted before you declared a homestead estate or any previously existing mortgage, lien, or encumbrance; a debt, such as a mortgage, contracted for the purchase of the home; and unpaid alimony or child support.

An elderly or disabled person can obtain greater homestead protection, for $200,000 worth of equity, by filing a special elderly or disabled person's homestead declaration. An elderly person is defined in the law as a person 62 years of age or older. A disabled person is defined in terms of the requirements of federal law for Supplemental Security Income. Documentation of the disability must be filed with the disabled person's declaration of homestead protection.

The exemptions from an elderly or disabled person's homestead protection are similar to those from a regular homestead. The principal difference is that any first or second mortgage debt is exempt from an elderly or disabled person's homestead protection. An elderly or disabled person's homestead can only apply to that person's principal residence.

An estate of homestead which exists at your death can continue and protect your surviving spouse and minor children until your spouse remarries or dies and until the youngest unmarried child reaches the age of 18.

Under prior versions of the homestead legislation, it used to be unclear whether an unmarried person or person who owned property jointly could acquire a homestead estate. Now, it is clear that a homestead estate may be acquired by one or more owners, regardless of marital status, or one or all who rightfully possess the premises. But only one owner can obtain homestead protection for the benefit of his or her family, and on only one principal residence. A declaration of a new homestead estate discharges any previous homestead estate of that person.

In these difficult times, a homestead estate provides important protections against your creditors. It is something that you should discuss with your attorney whenever you purchase a home or review your estate plan.

Copyright © 1995 A. Joseph Ross, J.D.

(December 1995)

Before he entered politics, Abraham Lincoln was a successful attorney in Illinois. Many stories are told of his days in law practice. One such story began when McLean County, Illinois decided to impose a property tax on the Illinois Central Railroad's right of way in the county. The tax itself wasn't great -- only $428.56. But the railroad feared the financial burden that might result if every county that its tracks passed through imposed a similar tax. So they decided to challenge the county's right to impose the tax. After losing in the lower court, they hired Abraham Lincoln to take the case to the Illinois Supreme Court. In 1856, Lincoln won a decision in the railroad's favor.

But The railroad's gratitude was short-lived. It lasted only until they received Lincoln's bill. It was for $5,000, at the time an unheard-of fee. It was four times the salary of the Chief Justice of the Illinois Supreme Court.

The railroad refused to pay it, and Lincoln took them to court. Where before, he had been a polished lawyer arguing a complex tax case before the state's Supreme Court, he now presented himself as the poor prairie lawyer who had been cheated by the big railroad. Before a jury of frontiersmen, he was at his most folksy, even popping a button on his suspenders during his summation to the jury and whittling a peg to hold them.

Lincoln won and the railroad paid. They even hired him again. He used the money to finance his campaign against Stephen A. Douglas. His free railroad pass didn't hurt, either.

Source: Doug Storer, Amazing but True Stories about Presidents, Pocket Books, 1975.

Copyright © 1995 A. Joseph Ross, J.D.