LegalZoom Blog

Legal news and small business tips.

Malpractice Retaliation, Employee vs. Independent Contractor, and More – Free Joe Friday 4/29/11

no comments yet

Every Friday, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss last week’s Free Joe Friday? Don’t worry. We’ve got it all right here.

Mary: If I prevail in a medical malpractice lawsuit, will I become “black-listed” in the Medical Community?

Joe Escalante: I actually don’t know about any web sites or clearing houses listing people who sue for malpractice, but it’s not a bad idea. Until I create that site (this weekend) and become rich from it, you are probably safe. However, you bring up a great point about consequences of litigation. You have to be sure that you are seeking justice and not just taking advantage of the system or there are sometimes unexpected consequences.

I’m reminded of a lawsuit I’m involved in right now. A company seeking easy money, not justice, sued my band. My band responded with this cartoon:
They hated it. But you will love it.

Diane: Can I change my name back to my maiden name as part of bankruptcy procedures.

Joe Escalante: Not as part of the same process, but you can do it simultaneously. Bankruptcy cases are filed by Social Security number, so until the new name has been registered,you can’t change the name on your bankruptcy petition. But you can modify the petition to include an alias name with your name change.

Janice: Does a patent protect the idea or function? Can one who does not have the patent to a product, make it in a different way, but their product still have the same function as the one who holds the patent?

Joe Escalante: That would depend on a few factors. A patent gives the inventor the right to prevent others from making, using, selling, or distributing the patented invention without permission. Let’s take the formula for Coke. If you make Coke, and it’s arguably the same product but you used a different formula, you have an argument, but also a lawsuit.

I hold a patent (as part of a group) to a special type of guitar bridge that keeps the strings in tune forever. If someone comes up with another way to keep the strings in tune forever, say using oompah loompahs that are extremely tiny, that hold the strings in tune, they would not be violating our patent. They’ve produced the same result, but it’s not really the same product. If they did it silmilarly to the way we do it, they would have a lawsuit on their hands. Would they win? A court would decide. For more info, check out

Vikki: If I’m living w/someone and a certain bill is in that other persons name..he moves out…am I responsible for that bill?

Joe Escalante: Perhaps morally, but it would be tough for them to do anything really bad to you if you didn’t pay it. If it’s a bill for diamond necklaces, and you are wearing them, it would be worth it for them to take you to court to prove that you had “privity of contract” or some other legal theory to recover from you. However, if it’s just an Eharmony bill or something that you were sharing with your roommate for trolling purposes or something, it wouldn’t be worth it for Eharmony to take you to court to try to establish you were sharing the account.

Vikki: The bill was an elect. bill, who assumes liability for that bill, the landlord?

Joe Escalante: If you used it, you could just pay it. But if that is unacceptable to you, the electric company will have to go after the tenant, not the landlord.

Candy: im over 18 and my dad just started paying child support that he owes from when i was little and it goes to my mom’s address and we are fighting over who should get them because she did not raise me my grandma did (but she feels its hers because it’s in her name). I want to know who has a right to the support checks. and how can we settle it.

Joe Escalante: I would talk to the district attorney in the county where your mom lives. It sounds like it could be fraud, and it’s the D.A.’s responsibility to prosecute fraud cases, especially fraud against the government. Basically, I think it should go to grandma, then she shoulld distribute it to you after deducting diaper and Miley Cyrus ticket costs, etc.

If the D.A. sounds too scary, at least talk to the entity issuing the checks and tell them you think there’s a fraud. The best thing to do would be to get a consultation with a family law attorney in the county where your mom lives. They’ve been through this.

Heith: i am a 35 year old male and disabled child sapport is takeing half my check which is fine but they wont release my liscence and i live in maine by the way. they say i am not paying enough but i am paying all i can pay what can i do?

Joe Escalante: Put all your income and expenses together, with documentation and prepare to petition the court to modify the order of support to reflect the fact that you cannot afford to pay this much. Good luck.

Keisha: is a power of attorney still needed if the person has already passed away with no will?

Joe Escalante: The dead person would have to sign the power of attorney and that frightens me. It’s not going to happen. When someone dies without a will, it’s called dying “intestate.” The law is very clear about what happens to the assets of the decedent. That law in state will be followed to dispose of all the property. You should talk to the probate court it is assigned to if you want to get involved. Sorry for your loss.

Crystal: Is there one location to sign up for sales tax filings as a business in all states? Or does it have to be applied for in each state individually?

Joe Escalante: I know of no such location entity, but I believe some versions of Quickbooks might have a function that makes filing for sales tax in all the states easier.

Ben: How much weight does a verbal agreement between two businesses hold in Texas?

Joe Escalante: If both parties were acting as if a contract was in effect, e.g., paying invoices, or not objecting to certain things, a verbal agreement can be just as good as a fully executed and negotiated written instrument. If one party was acting as if there was no contract, e.g., saying things like “as if,” then you have evidentiary problems that make the verbal agreement way worse than a signed contract.

Kelly Ann: My husband’s name is on deed to house, he doesn’t live here, my boyfriend n I pay the mortgage. What rights do I have? I can’t afford a divorce, we have been separated since May 2008. He don’t pay support for our 3 kids. He told the mortgage company not to speak to me. My bf n I have been slowly remodeling the home but can’t claim any rebates. I really need to know how to get control of my home. I have lived here since 2001.

Joe Escalante: I have to say Kelly Ann, there’s nothing you can do that will make that house yours unless you buy it, or sue for it in divorce. I would save some of that cash you are spending on remodeling and put it towrd the cost of a divorce.

Kathy: Is it a problem if my mother is listed on our deed for our home? She lives with us. If she should go in a nursing home, can they take the house?

Joe Escalante: Normally, entering a nursing home is not grounds for taking someone’s house. But later on, if she has debts that end up in court as a judgment, they can put a lien on the house and you’ll lhave trouble selling it without paying the debt to free the property from the lien.

Johan: I have been working for a Real Estate Company in NY for 5 years this year is the first year I got something to file taxes with. They gave me a 1099 instead of a W2 even though I am clearly an Employee and not an independent contractor. On top of that I had an accident at work a few months ago but did not go to the hospital until now because I have no health care. I went to the E.R. twice and I am now taking 4 Pain killers for my back pain. I am unable to work. What can I do to get workers comp or any benefits from my old job? (I tried talking to the owner but he shrugs it off)

Joe Escalante: Just because your boss says you’re an independent contractor, it doesn’t mean you are. You can challenge it if you feel that you had a legitimate employer-employee relatioinship. For example, your boss told you what time each day to show up to work, and what time to quit. Check the resources at the N.Y. State Labor Board for info on how to file a claim.

Ed: I’ve invented, designed and developed a new consumer product for the sporting goods market. I’ve licensed my provisional patent and registered trademark to a manufacturer/distributor for a period of 7 years. There’s no language in our contract (written by his lawyer) about marketing efforts, but I took him at his word, being a friend, that his intentions were to make a lot of money for us both. Since launching the product last summer at a major sporting goods trade show, he seems to have put little or no further effort into marketing, and lately answers my (friendly) emails with terse, one-word replies. Quarterly royalty checks have been abysmally small and overly late, about 6 weeks. What legal recourse might I pursue? Can I get out of our contract somehow so I can shop it around to other outlets?

Ed: Forgot to mention, this is in the state of California, and my patent has been assigned to my S-corp.

Joe Escalante: It would be very difficult and expensive to establish that your former friend is in breach of the agreement. One could argue that putting more marketing dollars into it would be throwing good money after bad. You would need independent expert testimony establsihing the damages. It will never happen. You just have to make the best of it.

Keep the friendly attitude and bother them a little less, and do some of your own marketing and see if you can turn the relationship around and maybe they will put more into it. Go big with the Twitter/Facebook/Youtube stuff. Make them feel guilty for not doing as much as you do. This is not the greatest plan, but way better than a lawsuit.

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook next Friday at 10am PT for more Free Joe!

ShareShare on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Sign up for the LegalZoom newsletter!

Written by

May 3rd, 2011 at 5:25 am