Recently, I wrote about the basics of identity theft and provided a few tips for preventing it.

But what do you do if your identity has already been stolen?

Unfortunately, you can’t just put a “lojack” on your identity and have the police just go and pick it up. The bad news is that recovery from identity theft can take years and cost thousands of dollars. The good news is that there are new laws and regulations which work to make the recovery process faster and less expensive.

If you determine that you are the victim of identity theft, there are four steps you should take immediately. First and foremost, you should contact the three major credit reporting agencies (Equifax, Experian and TransUnion) and place a “fraud alert” on your credit report. I would highly recommend that you send your notice and request via regular mail, return receipt requested. Keep copies of all of your communications in this process, as well as all signed “green cards.”

Your second step is to contact someone in the security or fraud prevention department of each company where an account has been improperly opened. Be sure to inform the company that you have been a victim of identity theft, that you did not open or authorize the account, and ask that it be closed immediately. Again, be sure and send these notices via certified mail, return receipt requested. Be sure and obtain written confirmation from these companies that the accounts have been closed and that the fraudulent debts have been discharged.

Your third step in the process is to file a police report of identity theft. I would suggest filing the report with your local police department, as well as with a law enforcement agency in the area where the theft occurred (if you have this information). It is very important that you report this theft and cooperate with any subsequent investigation. Your rights and remedies in regard to the identity theft resolution process often depend on this step.

Finally, be sure to report the identity theft to the Federal Trade Commission. This process can be done online through their website at www.ftc.gov. Keep a copy of your report, as it will be very helpful in cleaning up the identity theft mess. You may also wish to provide a copy of this report to the local police who are investigating your criminal complaint.

By following these steps as outlined above, you will be able to resolve the headaches caused by identity thieves. It will take time and effort, but it is most certainly worth it. Your good name is your most important asset, and once it is stolen you must do whatever you can to get it back, even without a lojack.

Today, March 3rd, has been dedicated as “Spread the Word to End the Word” day by Special Olympics is companion organization, Best Buddies.

Which word? “Retard.” As many of you know, I have been an ardent supporter of Reach Unlimited for many years. My friends at Reach Unlimited are “developmentally disabled,” they are NOT retarded.

Please help me spread the word today. EVERY person has worth and value. Not only that, EVERY person has feelings, and feelings can be hurt. Using the word “retard” or “retarded” can be hurtful and stigmatizing. Please remember today to help me “spread the word to end the word.”

When I was a kid, I remember when thieves could steal your car, steal your purse, or even steal your wallet. Today there is a new target for smart and sophisticated thieves: your identity. Think about it – from the criminal’s perspective, this is the perfect crime. There is no gun required, almost no physical risk, a low chance of getting caught, and the potential for a very lucrative haul. Welcome to the 21st century.

This month I’m going to take a look at identity theft and answer some basic questions. What is identity theft? How does it happen? How can I prevent it? Next week we will take a look at some specific steps you can take if you have already been the victim of identity theft.

So what exactly is identity theft?

Identity theft occurs when a criminal steals your personally identifying information (name, social security number, birthdate, etc.) and uses the information to commit fraud. Identity thieves may use your identity to rent an apartment, get a telephone, obtain a credit card or even buy a new car! Often, victims of identity theft do not learn that they have been victimized until they review their credit report or are contacted by a debt collector.

How does identity theft occur?

Identity thieves use several common methods to obtain the information they need to commit their crime. Some criminals will go through your trash until they find discarded correspondence or other documents with your information. This practice is known as “dumpster diving.” Some criminals rig credit card machines to make a copy of your credit card information when you slide your card for a legitimate authorized transaction. The more “high tech” criminals use a complex method of posing as banks or other institutions to get information via email or fake websites. This technique is called “phishing,” and is one of the most effective and fastest growing means of obtaining your personal information.

There are several things you can do to help prevent identity theft.

First and foremost, be aware of the ways your personal information can be stolen and take the appropriate safeguards. You may wish to buy a personal shredder to use for sensitive documents you throw away at home such as all those pre-approved credit offers many of us receive. Also, be very careful about how and when you provide personal information over the internet. If you get an email from your bank or credit card company asking for information and providing a “link” to click on, ignore it. Call the number you have on file for the financial institution (do NOT rely on any phone number provided in the email) and ask them about the email over the phone. Remember to regularly review your credit report and look for errors or accounts you did not open. You can receive one free copy of your credit report annually. The official website for this process is: www.annualcreditreport.com. You can get additional information on identity theft and its prevention by visiting the Federal Trade Commission web site at: http://consumer.gov/ncpw/everyone/identity-theft-and-privacy/.

But what to do if you think you may already be a victim? Stay tuned, I’ll have some more advice for you soon.

An honest auto mechanic can sometimes be tough to find. No harder than finding an honest lawyer, some would say, but my regular readers already have that department covered! My wife and I have run into a series of car “issues” lately, and it got me thinking about the different ways an uninformed consumer can be abused by a dishonest mechanic. This month’s article will focus on ways to make the often painful and expensive world of car repairs a little easier for my readers.

There are three golden rules for any consumer when dealing with an auto mechanic:
1) get it in writing;
2) get it in writing; and
3) get it in writing.

If you follow these three rules, you will by WAY ahead of the game in case of problems or disputes “down the road” (if you’ll pardon the pun.)

Specifically, you should always get a WRITTEN authorization for towing or inspection of your vehicle PRIOR to the time it is towed or inspected. This authorization should cover several issues, including: the exact cost and description of the towing, inspection or diagnosis to be completed; an explanation of which charges (if any) will be waived if you elect to have the repairs completed; a statement that the car will be satisfactorily reassembled if you elect not to have the repairs done and/or a statement that all inspected parts will be saved and stored for you; and most importantly, a statement that the authorization for towing or inspection is NOT an authorization for repair and that a separate, written work authorization will be required prior to the commencement of any repairs. You should ALWAYS require a separate repair authorization prior to the time you begin repairs. Although you may be asked to sign the inspection authorization at the same time you sign the work authorization, my advice is NOT to do so. I mean, if you’re going to do that, why bother with the inspection authorization at all?

Your work authorization should address certain items as well: a complete description of the repair work to be done (obviously); the stated fee for the work to be done, broken down by parts and labor; a full disclosure of all other costs (storage, shop fees, etc.) as well as a statement that all costs and fees are disclosed in the authorization; a statement as to whether the parts will be new from the manufacturer, new aftermarket parts, used or rebuilt; the specific terms of the warranty for the repair work; the method of payment accepted for the repairs; and an indication that all parts removed and/or replaced will be stored and saved for your inspection (unless they are required for exchange, such as brake pads.)

There are a few common problems to watch out for. For example, you should never let the mechanic disassemble your vehicle or put it up on the rack if you do not have a written authorization for inspection as described above. At that point, you run the risk of authorizing overpriced repairs or getting your vehicle back partially or improperly reassembled. Also, your mechanic may call you for “verbal” approval to amend or change the work authorization. While time and convenience may tempt you to take this shortcut, I would highly recommend that all changes to work authorizations be in writing and signed or initialed by both parties. This is the only way to insure that misunderstandings do not blossom into increased revenue for your friendly local lawyer.

If you do have a problem with a mechanic, or if the final charges exceed the written authorization and you feel you have been cheated, it is probably best to go ahead and pay the bill. If you do this, be sure to write a few words making your protest clear on the bill and on your check if you can. If need be, you can go back and dispute your credit card charges or sue the mechanic in small claims court after you drive away. Keep in mind that a mechanic has a lien on your vehicle to insure payment of his charges. Please do NOT pay with a check and then put a “stop payment” order in place, as this will likely end up with your car being repossessed.

Remember, a nice smile and firm handshake does not always translate into quality service delivered with honesty and integrity. Keeping all agreements and authorizations in writing and being firm about your rights is hard work, but it sure does beat riding a bicycle to work on a rainy day.

The right to vote in these United States is at once both our greatest privilege and our most important responsibility. For over 200 years brave patriots have shed their blood to support and defend our democracy. Given the importance of the upcoming elections, I would hope that everyone who is eligible to vote will do so. Unfortunately, the U.S. has one of the lowest voter participation levels of any democracy in the world. Perhaps a brief exploration of the long, hard fought struggle toward the universal right to vote will provide a bit of “incentive” to make it to the ballot box next month.

As some of my readers may know, when this country was formed, only white male property owners had the right to vote. In fact, several colonies even had religious requirements to vote, some of which lasted until 1790! Gradually, over the first half of the 19th century, the requirement of property ownership was abolished. As is often the case, sometimes these restrictions were not lifted without a fight. In 1842, the “Dorr war” was fought in Rhode Island over this very issue. For his troubles in leading the fight for non-property owners to obtain suffrage, Thomas Dorr was found guilty of treason in 1844 and sentenced to life imprisonment at hard labor (although he was pardoned the next year.)

After the civil war, in 1870, the 15th Amendment was ratified guaranteeing the right of U.S. citizens to vote without regard to “race, color, or previous condition of servitude.” Tragically, another century would pass before persons of color could fully begin to claim this right. During reconstruction, the idea of a black man voting was intimidating to many both in the north and the south, and downright blasphemous to some. Many schemes were devised to keep blacks from voting, including poll taxes, literacy tests and cumbersome registration requirements. Blacks, of course, were not the only once excluded from the vote. Many western states denied the right to vote to Asian-Americans as well.

Through the 1950s, many southern states retained poll taxes and literacy tests designed to disenfranchise blacks. In Alabama, for example, prospective voters were required to provide written answers to a 20 page test including questions such as: “Name the rights a person has after he has been indicted by a grand jury.” While the Civil Rights Act of 1957 assisted enforcement of voting rights, black voter registration in the south was only increased by around 200,000, a mere fraction of the eligible black population.

In 1965, Martin Luther King, Jr. launched a voter registration drive in Selma Alabama. At that time, blacks slightly outnumbered whites in the city, but the voter roles were 99% white. Despite their best efforts, stiff resistance from the racist and segregationist establishment successfully prevented even a single black voter from being added to the rolls.

Dr. King’s heroic work, however, stirred the nation. On January 23, 1965, the 24th Amendment was passed banning the use of the poll tax. Later that year, President Johnson signed the 1965 Voting Rights Act, eliminating all literacy tests and empowering the federal government to oversee and enforce voting rights as necessary. While many feel that voting rights are still not equal to this day, there is no doubt that the work of Dr. King and the subsequent Voting Rights Act has substantially narrowed the gap between black and white voter registration in the south.

Of course, no discussion of voting rights would be complete without reference to the long struggle for women’s suffrage. The practical start to this fight started in Seneca Falls, New York in 1848 when America’s first women’s rights convention took place. Susan B. Anthony and other supporters of women’s suffrage attempted to vote in the 1872 presidential election. As a result, in 1875, the U.S. Supreme Court (Minor v. Happersett) held that women could only vote as a result of legislation or constitutional amendment. Over the next several decades “suffragettes” such as Susan B. Anthony, Elizabeth Cady Stanton and Lucy Stone continued to fight for a woman’s right to vote. Fueled, in part, by the political atmosphere created during World War I, women finally won suffrage. On August 18, 1920, the 19th Amendment was ratified which guaranteed that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” This was not the only battle for suffrage influenced by war. At the height of the Vietnam war, on July 1, 1971, the 26th Amendment was ratified lowering the voting age to eighteen.

The point of my article this month is simple: Do NOT take your right to vote for granted. Too many great Americans have fought too hard and too long for this valuable right to be wasted. The best way to thank those who have fought for our rights for the last 200 years is to stand up and make sure your vote is counted.

How often do you get to hear a lawyer try and talk you OUT of hiring him? Not very often, so LISTEN UP! Some of you may be familiar with the small claims court system here in Texas. If not, its very much like the People’s Court on T.V. But with more cowboy hats and Texas accents.

The small claims court system is a fantastic way for regular folks (non-lawyer types) to settle their differences in court without having to pay an attorney to represent them. My first and (if I do say so myself) best advice to anyone thinking about suing in small claims court is to first try and settle your differences with the adverse party. Don’t let your emotions get the better of you. While using the small claims court system is simple and inexpensive, it still takes up time, costs money (not much though), and takes up valuable judicial resources.

If you cannot settle your differences amicably, however, you should explore the opportunity to sue in small claims court before you start trying to hire a lawyer. You do not need a lawyer to appear in small claims court. The rules of evidence generally do not apply. You are able to introduce written evidence and witness testimony, subject to the approval of the judge. My best advice to you if you go this route is to make sure that you are as prepared as possible when you appear.

Okay, now for the “fine print.” There are some limitations on the small claims court system. First of all, you cannot sue in small claims court unless the amount in dispute is less than or equal to $5,000.00. Also, keep in mind that either party may appeal from a small claims court judgment.

If and when you are ready to file in small claims court, the first step is to find the proper court for your case. Generally speaking, you would file your lawsuit in the small claims court precinct where the defendant resides, where the business operates, or where the transaction made the basis of the dispute took place. Once you have determined the proper court in which to sue, you should go to that court’s “civil” department and ask for a small claims court packet. While the clerks are not able to give you legal advice, they are usually very friendly and helpful in giving general information about the process. Remember, when you file, you will need to pay a small filing fee and will also have to pay a “service fee” to have the lawsuit served on the defendant. Again, the clerks will likely be able to help you with this procedure.

So… Now that I’ve managed to talk you into not hiring me, I think I’ll crawl under my desk and take a little nap. Good luck in court!

How Much Car Insurance Do I Need?

Yes, yes, I know, every penny counts, especially nowadays! But the few dollars you may try to save on your car insurance bill may cost you dearly in the long run.

Lets start with the basics. In the State of Texas you are REQUIRED to have at least liability coverage on your vehicle. Liability insurance is that portion of your insurance which pays for the property and personal injury damages of someone you hit if a collision is your fault. In Texas the minimum amount of liability insurance that you are required to carry to cover for bodily injuries you may cause is $20,000.00 per person and $40,000.00 per incident. You are also required to carry $15,000.00 worth of insurance to cover any property damage you may cause.

So let me ask you this, have you seen a typical hospital bill lately? Have you seen some of the fancy cars people drive in this city? If those minimum limits sound a bit low, its because they are. In a time when any stay in a hospital is likely to cost tens of thousands of dollars and a new Toyota (not a Lexus mind you, but a Toyota) can cost upward of $25,000.00, you should seriously think about asking your insurance agent for more than these minimum limits. I think you will find the cost of increasing your coverage to $100,000.00 per person and $300,000.00 per incident surprisingly small. Your coverage for property damage will increase as well. Of course, as an alternative, you could just make sure you always drive behind vehicles that are at least ten years old!

Another type of coverage is called Personal Injury Protection, or PIP. This coverage will pay for your medical expenses and up to 80% of your lost wages in the event you are in an accident. Usually, the minimum amount of PIP coverage is $2,500.00, but again, it does not cost much to increase these policy limits. Again, given skyrocketing medical expenses and the importance of keeping up your flow of income, I suggest PIP coverage in at least the amount of $5,000.00.

In my opinion, the most important type of “optional” coverage anyone can purchase is Uninsured Motorists (“UIM”) coverage. This coverage will “step into the shoes” of someone who causes an accident if they are at fault and do not have any insurance. In my practice, you would be amazed at the number of times I see people involved in accidents who do not have insurance. Not only is this illegal, but it is irresponsible as well. UIM insurance has another benefit as well. It also acts to protect you in the event you are struck by someone who is underinsured. For example, lets say you are struck in a collision and sustain serious personal injuries. Furthermore, lets say the person who caused the collision only has minimum policy limits. In this scenario, your UIM coverage will “fill in the blanks” and will act to increase the liability limits of the “underinsured” driver beyond $20,000.00.

Of course, you may also wish to purchase comprehensive and collision insurance as well. This insurance will pay for the repair of your vehicle if you cause an accident, or if your car is stolen, etc. If you are financing your vehicle, your bank will require this coverage. You may have an option of the size of your deductible. How much risk you can afford to take in this regard is a question of personal preference.

There are also other types of optional coverages that your insurance company may offer. These may include car rental insurance, glass breakage, or death indemnity. While some of these coverages are quite inexpensive, others may not be worth the expense. I would certainly make sure you had the “basics” (liability, PIP and UIM) in place before you started thinking about these “bells and whistles.”

So remember folks, even if you are trying to watch your budget, be careful about cutting back too far on your insurance bill. Insurance is one of those things that you hope you never need, but you are darn happy you have it when you need it!

The Supreme Court made a very important ruling this past week in the Case of Citizens United v. the Federal Election Commission. The gist of the ruling is that the Supreme Court, in a 5 to 4 vote, lifted a 100 year old ban on corporate spending in federal elections.

Essentially, because of this ruling, large (and small) corporations are in a position to spend unlimited amounts of money to either support a political candidate they believe will be sympathetic to that corporation’s interests or to attack a political candidate they believe will not be helpful to the corporation.

While some are trumpeting this ruling as a ruling in favor of free speech, the ruling is based on the legal assumption that a corporation is a person, just like you or I. The concept of “corporate personhood” was originally derived in the late 19th century in order to facilitate the legal and practical operations of the large business that were starting to come about in that era. The attorneys, lawyers and judiciary of that time came up with this concept as a practical solution to what was a difficult legal problem in dealing with the rapid growth of the industrial era. Restrictions on corporate involvement in political campaigns were started at the urging of President Theodore Roosevelt in 1907. Labor Unions were similarly restricted after WWII.

Honestly, it is this attorney’s opinion that corporations are not people. They have no feelings, they have no soul, they have no conscience and you cannot put a corporation in prison when it breaks the law. I think we need to rethink the concept of corporate personhood in this country, as it seems to give corporations an enormous amount of rights with only extremely limited accountability.

Supporters of this recent decision cite the fact that the ban is lifted on labor union participation in federal election campaigns as well, thus tempering the massive influence of corporate involvement. Well, as a practical matter, comparing the relative size of the “war chest” of the 100 largest corporations vs. the 100 largest labor unions is a bit like comparing a tea cup to a supertanker oil transport vessel.

For whatever its worth, I think our current government would be better served by LESS corporate involvement in the electoral process, not MORE. No matter what one’s party affiliation, it is just common sense to want our representatives to care more about the people they represent than the corporations that are now able to pay to put them in office. Personally, I believe that all political campaigns should be funded by public money and private contributions not to exceed a very nominal amount, but that may be a post for another blog entry.

What do you think?

Typically, you will see comments, information and opinions about legal issues in my blog. This week, I’m going to make an exception to that. I hate to take us off track, but I think this is important. Instead of blogging about a legal issue I’m going to take your time and attention to simply provide a list of those organizations which could use some help with their relief issues in Haiti.

The American Red Cross
www.redcross.com
Text “Haiti” to 90999 to donate $10 (billed to your phone)

The United Nations World Food Program
www.wfp.org

Action Against Hunger
www.actionagainsthunger.org

Project HOPE
www.projecthope.org

Partners in Health
www.pih.org

Most of the time when I write my legal articles, I try to give you some tips and practical hints to make your life a little easier when it comes to living with the law. This month, however, I want to take a moment to reflect on a document that made “the law” what it is today. Most of my friends know, I’m a bit of a history buff, especially when it comes to legal history. I promise I’ll write something more practical next month!

I was watching CNN recently when I saw a feature about one of the revisions of the Magna Carta going up for auction in New York. It turns out that this document was privately owned by billionaire H. Ross Perot. The document sold for a whopping 21.3 million dollars. A lot of money, but what price can one put on freedom?

As many of you may have learned in school, the Magna Carta was the single most important influence on the development of the constitutional rule of law we enjoy today. Essentially, the Magna Carta limited the right of the English monarch and gave certain protections to the king’s subjects. Most notable of these rights was the writ of habeas corpus, or the right to appeal an unlawful imprisonment. This was an astounding development in 13th century Europe! The Latin “Magna Carta” literally translates to “Great Paper.” Given its significance on the development of legal rule in western civilization, this name is no understatement.

There were several versions of this great document. The original Magna Carta came about as a result of a dispute between King John, Pope Innocent III and the English barons as to the rights of the monarch. While the power of the English king had been steadily increasing since the Norman conquest of 1066, a series of missteps by King John early in the 13th century led to discontent among the barons, anger from Rome, and a shortage in the treasury. On June 10, 1215, the barons marched on London. Londoners, in a show of support for the rebellious barons, opened the city gates and allowed them to enter without resistance. Fearing the loss of his crown (or even his life), King John agreed to grant certain rights and powers to his barons in exchange for their renewed vows of fealty. This written agreement was the first iteration of the Magna Carta. The document was revised and reissued several times over the next 80 years or so until its final issue in 1297. This is the document which was recently sold at auction.

So the next time you marvel at our constitutional government, our representative democracy, our bills of rights and the rule of law which we enjoy in this country, take a moment to reflect on the document that started it all. Given the influence of this document on our history, 21.3 million seems like a bargain.

No, I’m not talking about the stock market lately. Rather, I am talking about what to do after you trip or slip, fall, and are injured. While watching someone slip on a banana peel may be very funny in an old fashioned comedy, its no fun to go through this painful ordeal yourself.

Sometimes we trip because we aren’t paying attention, but sometimes a slip or trip can be caused by the negligence of the person or entity in charge of the area where the fall takes place. There are many factors that can go into the question of who is at fault, but there are several steps you can and should take to preserve your rights.

FIRST: Stay calm! After any incident like this you are going to have loads of adrenaline dumped into your bloodstream. This is what is responsible for the “fight or flight” feeling you may get. That same adrenaline may make you feel scared or shaken up, so be sure to take a few moments to compose yourself.

SECOND: Check for injuries. That same adrenaline that may cause a panic may also make you feel like you can just get up and walk away. Its natural after an embarrassing fall to want to simply disappear. You should, however, take a moment to make sure you are okay. If you feel you are seriously injured, do not hesitate to call for medical attention.

THIRD: Report and document the incident. If you are with someone, send them for help. If you are by yourself and cannot move, try to signal someone for help. If you are at a commercial or retail establishment, be sure to report the incident to he person in charge. Make sure to get their name and number, and note the date and time of day. If you have a cell phone with a camera, try to take a picture of the area where you fell and what it was that caused the fall.

FOURTH: Get proper medical attention. I graduated from law school, but I didn’t attend medical school. I’ll bet most of you didn’t either. Remember that serious injuries don’t always result in immediate pain or bleeding. If you need an ambulance – use it. If not, you may later need to drive to an emergency room or to your doctor’s office. Don’t take chances with your health.

FIFTH: (You knew this was coming, right?) If you have any questions or concerns about your legal rights, consult with an attorney. Most people don’t know what their legal rights are after an incident like this, nor do they know how to enforce those rights. An honest and knowledgeable attorney is your best ally in protecting yourself in the unfortunate event you are injured after a fall. While there isn’t much we can do about the falling Dow Jones, you may have rights after other types of falls!

Stewart J. Guss is a licensed attorney practicing in the Houston area for over 10 years. He concentrates in the areas of personal injury, insurance law, consumer law, and small business issues. Mr. Guss maintains an office in the Northwest Houston area and is proud to serve the residents of Cypress, Tomball, and the Houston area. He is available for speaking engagements on a wide variety of legal topics. For further information or for a free consultation, visit his website at www.attorneyguss.com, call him at 281-664-6500 or send an email to: stewart@attorneyguss.com.

As my wife and I explore our options in buying or building a new house, one of the things we look for are friendly neighbors. Nothing can spoil the fun and excitement of a new home faster than finding out that you have moved next door to the “mean old man” of the neighborhood. Of course, our new neighbors may not be thrilled when they find out that my 6 year old son is worse than Dennis the Menace! (Just kidding, Iain!)

While a few friendly words and an occasional basket of fresh baked muffins will go a long way toward insuring a good relationship with your neighbor, occasional conflicts are bound to come up. In this month’s article, I’m going to discuss a few of the more common problem areas.

We have all heard the expression “good fences make good neighbors,” but what happens when the fences aren’t soundproof? You would be surprised at the number of questions I get about “that darn dog next door that won’t stop barking” when I am at parties or speaking engagements. Unfortunately, there is no simple answer to this problem. The first step is to simply talk to your neighbor about the problem. If you approach in a friendly way, you may be able to work out a solution. The next step would be to research any ordinances or deed restrictions that may apply. If that avenue doesn’t work, you may want to consider bringing a “nuisance” lawsuit. Under the law, you are not allowed to maintain your property in such a way that would interfere with the enjoyment of a neighbor. (This is the principal that prevents you from opening up a “pay to plop” garbage dump in your back yard.) If a reasonable person would be substantially bothered by the barking dog, you may have legal recourse.

What do you do when the fence is not high enough to catch that tree limb before it falls on your new car? Again, there is no simple answer but certain principals might apply. First, don’t hesitate to file a damage claim with your automobile insurance company if you have coverage. That is why you pay premiums. If you don’t have insurance, I would suggest asking your neighbor for their homeowner’s insurance policy. There may be coverage for your claim. Ultimately, whether or not your neighbor is responsible for your damages depends on whether or not they were negligent. That is to say, if the tree was damaged, injured, overgrown or otherwise posed an obvious risk and your neighbor did nothing to trim or repair the tree, they were likely negligent. On the other hand, if the limb was knocked off a perfectly healthy tree by an unusually strong wind, there may be no negligence on the part of your neighbor.

What do you do when the fence is not high enough to keep out the neighbor’s children? Generally speaking, the law only requires you to take “ordinary” care to protect against trespassing children. For example, if you have an unusual or hidden danger in your yard, you should take steps to protect potential trespassers. Generally speaking, however, if you have taken ordinary and reasonable care to protect against potential dangers, you should be okay. The one important exception to this general rule is in regard to what is known as an “attractive nuisance.” An attractive nuisance is something that is known to attract children such as a swimming pool or trampoline. If you have an attractive nuisance in your yard, the law imposes special duties and obligations to block access to and minimize potential dangers. For example, homeowners (absent codes or deed restrictions to the contrary) are not normally required to build fences around their yards. When you have a pool, however, you would likely be held liable for injury to a child that was hurt in your pool if you did not have a fence.

At the end of the day, the best advice to good relations with neighbors may be to build a good fence and bake lots of muffins. When that is not enough, however, remember that you have important legal rights and responsibilities in regard to the folks next door.

I’ve got bad news. Turns out Santa’s rosy cheeks are from a bit too much Kentucky Bourbon. Santa got busted tonight for SUI! (”Sleighing Under the Influence.”) Luckily he hired a great lawyer, I got him bailed out, got Rudolph to be the designated sleigher, and Santa should be on time for all deliveries. (Seriously – remember friends – if you indulge in the Christmas spirit, PLEASE put someone else behind the reins!)

“Arbitration clauses? What’s this guy talking about? I’m just an average guy, non of that stuff applies to me. Only big businesses have to worry about that arbitration stuff, not individuals like me. Right?”

Wrong. I’ll bet you’ve got at least one binding mandatory arbitration agreement (“BMA”) that applies to you right now. Many credit card agreements, automobile purchase agreements and mortgages have BMAs. If you have credit cards, a car or a house, you may be subject to several BMA agreements right now.

So what is arbitration? What is a BMA? Why should you care about any of this?

Arbitration is an alternative method of resolving disputes in which two parties present their individual sides of a complaint to an arbitrator or panel of arbitrators. The arbitrator, who is supposed to be neutral, then weighs the facts and arguments of both parties and decides the dispute. Decisions in an arbitration are usually final and cannot be appealed. In binding mandatory arbitration, a company requires a consumer to agree to submit any dispute that may arise to binding arbitration prior to completing a transaction with the company. Consumer are required to waive their constitutional right to have their dispute heard and decided by a jury of their peers (i.e. usually other consumers).

“Well, that doesn’t sound so bad. After all, I get to avoid all the hassle of a lawsuit, right?”

Here are a few things to think about. First, arbitration providers are organized to serve businesses, not consumers. All of their marketing is targeted toward businesses, and most of the arbitrators are either executives or lawyers in the corporate industry. Because only businesses are likely to be “repeat customers” of an arbitrator, there may be an inherent bias toward the business clients and against the consumer.

Also, “discovery” is greatly limited in arbitration. Discovery is the process by which the parties to a dispute obtain from the “other side” information and documents that are relevant to the case. In a regular lawsuit, discovery is a right; in arbitration it is a privilege. A consumer’s right to obtain important (and often incriminating) evidence against a business is often severely limited.

While there is nothing wrong with a voluntary arbitration agreement to which both parties have agreed and fully understand, many businesses require arbitration in the “fine print” before they will do business with you.

So what can you do? Shop around for credit cards. Find credit card providers who do not have BMA clauses in their agreements. Write to those who do and explain why you won’t be doing business with them. Likewise, when shopping for a vehicle, insurance, a mortgage, or any other major purchase, make sure ahead of time that you won’t be required to sign a BMA in order to conduct your business. Our forefathers fought to insure your right to a jury trial in civil cases. Make sure you do what you can to preserve that right!

Stewart J. Guss is a licensed attorney practicing in the Houston area for 15 years. He concentrates in the areas of personal injury, insurance law, consumer law, and small business issues. He may be reached at 281-664-6500 or via email at stewart@attorneyguss.com.

A “Donald Trump” Primer on Employment Law in Texas

One of the most common calls I receive in my office are calls involving employment situations. On a weekly basis I’ll get a call from someone who was fired regarding their situation. The call invariably ends with the question, “Can they fire me for that?” About nine times out of ten, the answer is “yes.” Texas is essentially an “employment at will” state. Basically this means that, unless you have an employment contract, you can be fired or you can quit at any time, for any reason, or for no reason at all. Say the boss doesn’t like your shoes? She can fire you. Say you don’t like the tie the boss is wearing? You can quit.

As with everything else in the law, however, there are always exceptions. For instance, the Texas Supreme Court has ruled that you cannot be fired for refusing to perform an illegal act. If you refuse to dump that fifty-five gallon barrel of toxic waste into Lake Conroe, your job is still secure!

Also, you cannot be fired for discrimination based on your age. Federal law makes it illegal to discriminate against anyone on the basis of age if they are over 39. And yes, in case you are wondering, it is a bit depressing to realize that this law applies to me now!

Here’s an interesting question: Can you be fired for refusing to take a drug test? Here’s a very lawyer like answer: Probably. Remember, private employers can fire you for any reason or for no reason at all. If your employer can fire you because they don’t like your shoes, they will likely have the right to fire you for your refusal to take a drug test. There are some exceptions to this rule, but they tend to involve public employers. (But honestly, do we really want intoxicated mail carriers wandering our streets?)

Okay, forget the drug test. Can you be fired for refusing to take a lie detector test? This is actually one of those exceptions I mentioned earlier. Federal law actually prohibits an employer from asking an employee or prospective employee to take a lie detector test. It is also illegal to refuse to hire or to fire someone for refusing to take the test. There are some exceptions to this rule that involve an employer’s ongoing investigation regarding economic loss or theft. But hey, what fun would the law be if there weren’t exceptions to the exceptions?

What do we do when laws appear to contradict one another? I recently had a call from someone who was fired for simply stating their opinion about a matter at work. They called me, very upset, and felt that their constitutional right to free speech was violated. I ended up giving them a good news / bad news answer. The good news is that you do have a constitutionally protected right to free speech. The U.S. Government cannot restrict your right to express yourself. The bad news is that your employer can fire you for expressing yourself at work. The First Amendment to the Constitution protects you from the government’s attempt to restrict what you say, but it does not affect your employer’s right to fire you for saying it. Besides, the guy ordering his pizza from you probably isn’t all that interested in your opinion on the Iraq war anyway!

Stewart J. Guss is a licensed attorney practicing in the Houston area for 15 years. He concentrates in the areas of personal injury, insurance law, consumer law, and small business issues. Mr. Guss maintains an office in the Cypress area and is proud to serve the entire Houston area. He may be reached at 281-664-6500 or via email at stewart@attorneyguss.com.