In Yakin v. Tyler Corp, a case reported in last week’s NY Law Journal, the US Court of Appeals upheld a contract provision which limited the litigation of any dispute between the parties to Nassau County, NY.
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
Wednesday, May 20, 2009
Wednesday, May 13, 2009
Your Internet and the legal world
Social Networking sites such as Facebook, MySpace, and Twitter, as well as the proliferation of blogs have changed the way we communicate with each other and present ourselves to the world.
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
Tuesday, May 5, 2009
Advocating Outside the Courtroom
We here at Tolmage Peskin believe that advocating for our clients doesn't stop when you exit the four walls of the courtroom. We know that injured people are not only affected by the individual facts and circumstances of their cases, they are affected by the laws and policies set forth by New York State.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
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