Notes From the Desk of Cynthia Lifson: A Contract is a Story

Recently, I had the pleasure of attending a continuing legal education seminar on contract drafting.  Now, I know that many may think that this is a totally tedious undertaking, but I remain fascinated by this particular form of writing.  Since the beginning of time, principles of exchange that are embodied in contracts have been necessary for human societies to function.  While contracts can certainly be verbal, a written instrument that articulates the elements of an agreement is usually preferred. When I first meet with a new client, it is not unusual for me to look at a document that the client has taken from a website on the internet and already signed. The client asks me to review the document and offer a legal analysis of the contract.  When I inquire about the client’s understanding of the document he or she has downloaded from the internet, the client frequently does not understand the meaning of the words in the document.  Sometimes, the client “tweaks” the language to reflect what the client believes is the intent of the parties to the contract.  In such instances, these “tweaks” may result in language that is so confusing that I need to say that absent amendment of the document, a court may need to intervene to interpret the contract. So what can a thoughtful person do to create a clear, understandable, and legally enforceable agreement?  While it may be useful to start with a template, looking at the contract as a story may help organize thinking.  I especially enjoy spending time with my clients to help them craft their “stories” when facing a...

Marriage Equality: Thinking About the Business Consequences

  On June 26, 2015, the U.S. Supreme Court decided in Obergefell v. Hodges that the Fourteen Amendment of our Constitution requires a State to license a marriage between two people of the same sex. Same-sex couples in the United States are entitled to the same right to marry as heterosexual couples. The particular state where a same-sex couple resides does not change this right. While some citizens celebrated this decision and other citizens denounced it, the change in our law will likely create a considerable impact on business. Now that there are no legal impediments to same-sex marriages, we can expect that many businesses will re-evaluate their policies regarding benefits for both spouses and domestic partners. For example, some companies had previously put in place benefits for domestic partners, or same-sex couples who could not legally wed. Some of these, such as cooperative health insurance coverage, are still in place. Yet, as The Washington Post reports, it is not clear whether these benefits will continue to be extended to long-standing couples that do not legally marry. It may no longer be a cost-effective option to offer, especially for small business owners. Similarly, with more individuals applying for spousal benefits, companies may find them too expensive to offer altogether. According to The Wall Street Journal, this is a recent trend that employers have been following to save money. Those businesses already inclined to cut these benefits will likely move forward now that the ruling has taken place. In addition, the timing of any changes in benefits offered by companies to their employees may change as a result of the...

Cyberstalking: New Form of Old Behaviors

  The crime of harassment has been on the books for a very long time. And of course, the obnoxious and often frightening behaviors associated with harassment have been a part of human existence since the beginning of time. One form of harassment is stalking: a crime that calls to mind the hunter and the prey, a crime of intimidation and psychological terror that often escalates into violence against its victims. Now, as we continue to develop new and immediate ways of communicating with one another, we see forms of stalking through electronic media. The relentless pursuit of a victim through the internet can be disruptive, cause enormous fear, and foreshadow undesirable contact “in real life.” This form of stalking through electronic communication devices is often referred to as “cyberstalking.” The federal government and all fifty states, including Maryland, have statutes to address stalking. However, the law has not kept pace with rapid changes in technology. Currently, Maryland law defines stalking in this way. It is a malicious course of conduct that includes approaching or pursing another where the person intends to place or knows or reasonably should have known that the conduct would place another in reasonable fear of the following: serious bodily injury, of an assault in any degree, of rape or sexual offense or attempted rape or sexual offense in any degree, false imprisonment or death. Notice that the term “approaching” is ambiguous. Does this mean approaching in the actual physical environment, or does it refer to approaching through electronic media? The June 1, 2015 decision by the Supreme Court in the case Elonis v. United...

Notes From the Desk of Cynthia Lifson: Slowing Down the Pace

I recently returned from a trip to one of our most famous national parks, Yosemite, in northern California.  Such an experience was wonderful in the most literal sense of the word.  I was truly filled with wonder while being in the midst of the natural world.  In viewing the incredible vistas, the sparkling waterfalls, and enormous rock formations, it occurred to me that all of this did not develop in the seconds it takes to tweet, but took an enormous amount of time and energy to create.  I also appreciated the stillness of the park.  Amazingly, despite the presence of many other visitors, it was a quiet place. Upon coming home to Maryland, I remain grateful for the opportunity to do meaningful and important work on behalf of many clients.  I am refreshed and ready to re-enter the hurly-burly of my law practice.  But as I think about it, the basic need to unplug, to reflect, and to slow down allows us to nourish ourselves and think about what is important in the very short time we have to be on this earth. I hope that you take some time this summer and enjoy something wonderful,...

Notes from the Desk of Cynthia Lifson: Crafting Language

  As I write this paragraph, I am taking a break from drafting amendments to a bill that has been introduced in the Maryland General Assembly on behalf of one of my legislative clients.  The drafting is tricky because the amendments are responding to new information gleaned through my interactions with legislators followed by additional communications with my client.  The goal of this exercise is to push the law forward so that the problem presented by the original bill introduced in the General Assembly is sufficiently addressed and at the same time to handle the objections articulated by opponents of the bill adequately so that the bill can pass the General Assembly. Crafting legal language is tedious work and requires adherence to specific stylistic conventions.  Translating thoughts into language that will be interpreted by our courts and that will ultimately affect the lives of our citizens can be difficult.  This effort is one of the most important tasks performed by attorneys and it applies not only to legislative advocacy, but to nearly all of the work that we do with respect to resolving disputes and creating documents that reflect such resolutions. As demonstrated in the Baker case discussed in the above article, courts scrutinize language contained in a contracts carefully.   To avoid ambiguity in a contract, the provisions of a contract must be expressed clearly.  A written agreement is not ambiguous merely because two parties in litigation offer different interpretations of its language, but will be found to be ambiguous if, when read by a reasonably prudent person, it is susceptible to more than one meaning. To avoid difficulties...

Notes from the Desk of Cynthia Lifson: Priorities

As each new year begins, we refresh goals and identify new worlds to conquer.  Our true objective fueling the new year’s burst of energy , is our heartfelt hope that this year we will faithfully join the crowd at the gym, avoid the pattern of junk food indulgences that  can follow in the wake of the Super Bowl, and bring sunshine to our days no matter what the ground hog has predicted.  In other words, deflect the routine hum-drum hibernation we experienced during last year’s cold weather — Blah! So, to that end, this year, I am trying a modest approach.  In 2015, my personal Goal #1 is managing my most precious resource, my time, both productively and meaningfully – for myself and my clients.  Trying to be both conscious and mindful is not always an easy thing to do given our competing pressures.  However, this year I am determined to better manage time, doing what is most important for the people and projects that matter. To save my clients’s time this year, I have created an informational brochure on family law topics such as divorce, separation and estate planning, in response to the questions we are most frequently asked.  These are designed as a resource to share; if you or someone you know needs information on family law, please just contact us, and we will send you a...