We Moved! to www.lincharlotte.com

We moved! Please see the new blog at www.lincharlotte.com.

EDD slowly getting back to you? You are not alone....

A few of my clients were complaining to me about how slow it is for someone to get back to them. They've even sent a few emails with no response. Apparently, they are not alone. This article explains: "On Nov. 6, an Assembly committee held a hearing into the EDD problems. Several lawmakers said they'd heard numerous complaints from constituents, and some estimated nearly 150,000 claims had been delayed for weeks because of the computer system change." The new "system" has caused a great cloud of confusion and delays. It is frustrating! People are complaining to be waiting for months or even a year. Something that is set up as an "emergency fund" for people who were recently laid off should really act like an emergency fund. 

What an attorney (me) does for EDD (unemployment insurance) appeals....

Friends and colleagues ask me why an attorney (aka, me) needs to be involved in EDD (unemployment insurance) hearings. Can't people do it themselves? Yes, but....

In cases where the employer appeals the case, it is a little easier, but not always.

But in cases where the employee is the one appealing, the burden is on the employee to put on his/her case.

I really only get involved when there is a complicated issue at an appeal. Most of the time the time I help people file an appeal when their claim was outright denied. This is very common, since the claimant's first appeal with the entire EDD-entity is a short phone interview. It seems to me that most of the time, the first interview is where the person's story got lost. It almost seems logical to me that this first interview is where people should have a lawyer help them.

I have been successful helping people at their appeals hearing mostly because I help claimants put together their case. I figure out what is really at issue, and what the judge will focus his/her energy on in the short amount of time allocated to the hearing. Most of the times, when someone gets let go, they get really upset and emotional. This is understandable. But, this often makes the person focus on the wrong thing when they go to their EDD hearing. I  help clients bring their side of the story. I go through many phone interviews and fully understand what happened and what issues will come up at the hearing (and let them know not to worry, something they were embarrassed about is not going to come up). Sometimes I find a key evidence that the claimant didn't know was relevant.

Unemployment insurance codes and precedents (previous decisions) are a little quirky. Even seasoned attorneys in employment law don't necessarily understand the nuances of EDD. Sometimes a case can win in EDD but not as an employment lawsuit. I have talked to a few clients who went through a couple of attorneys who all told them they don't have a "case". Actually, they probably don't have an employment law case, but that doesn't mean they don't have a case for unemployment insurance.

Usually the claimant also has other underlying employment related issues, and getting unemployment insurance is my first step in helping them. Lawsuits can take a year, if not years, and labor board complaints can take a year or more to set a hearing. I usually recommend (and assist with) EDD hearings, then I help with other employment issues such as wrongful termination, breach of contract, discrimination, harassment, unpaid wages, misclassification of independent contractor, etc., all of which take much longer to resolve.

I believe this niche can really help people. Time is very rough for people who have just been fired or laid off or forced to quit. As an employment lawyer, my job is extremely emotional sometimes because I have to explain to them the reality of at-will employment. But, I explain that unemployment insurance is there to help people in this situation.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

Common theme: Misconduct with EDD (Unemployment Insurance)

This probably happened to someone you knew at one point or another.

You get let go.

You apply for unemployment. Maybe things went smoothly at first since you got your unemployment checks for the first few weeks. Then all of a sudden you get a letter in the mail. You former employer is claiming “misconduct” and why you shouldn’t be eligible for the unemployment checks that you are now depending on to pay your rent and bills. They even set in a few "write-ups" to EDD about you to prove how bad an employee you were. Perhaps you never even seen one or two of these write-ups until now. Words like “insubordination” suddenly shows up. 

Suddenly you feel like a criminal! Someone is accusing you of misconduct!

I get a lot of callers with this same problem. For most of them I can say that based on what they’re telling me, it doesn’t seem like “misconduct” at the EDD level. Then we have to take it to appeal and fight what the employer accused him or her of. Most people are angry or at least very upset when this happens.

First, I need to clarify that California is an at-will employment state. This means that your job is presumed to be terminable “at will” by either party. An employment, having no specified term, may be terminated at the will of either party on notice to the other. In general, your employer can let you go for any reason, as long as it is not an illegal reason (but that is the subject of another long blog yet to come). What I am explaining in this blog is whether the reason you are terminated qualifies or disqualifies you for unemployment insurance/EDD. This blog does not discuss wrongful termination or California employment law.

Ok, so a big bummer is that your employer can terminate you for any reason. There doesn't even need to be a reason. So, it is my belief that unemployment insurance is to help people in this situation.

I help clients with their EDD appeal hearing. Either they had their appeals hearing set right away, or I have to help them ask for a hearing so their case can be heard. As a caveat, I only assist with appeals and hearings, I don’t handle administration with EDD such as filing claim forms.

One very repetitive theme for EDD hearings is “misconduct”. Many employees get charged with Unemployment Insurance Code 1256, which is: An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work. So at the appeal hearing, the issue is whether there was misconduct that rose to the level to deny EDD benefits. To me, that is a very hard threshold to meet. 

Rules within EDD appeals can get very complicated. “Misconduct” has many different subcategories such as aiding competitor, falsification of work application, cash shortage, improperly channeled complaint, disobeying orders, exceeding authority, use of drugs, damage to equipment, not meeting quality or quantity of work, neglecting duty on the job, poor relations with customers or coworkers, etc, etc etc. Each of these subsections also has it’s own sub-subsections, and the rules within each subsection or sub-subsection can be very confusing.

There is a huge list of reasons an employer can claim “misconduct” for EDD purposes, but each of those reasons have to be very specifically met. And that is usually what we are fighting over at the EDD hearing in front of a judge. The employer will argue that something constitutes misconduct for EDD purposes, and I will argue that it does not amount to misconduct.

Let’s take “quality of work” as example (which is a popular choice). An employer can simply say: we don’t like the employee’s work product, it’s not up to par with our standards. An employer may use this as a reason to fight the employee’s unemployment claim and argue “misconduct”. They may even write a few post-termination "write-ups" claiming that employee was insubordinate or that on xyz date they couldn't find employee at their post. These post-termination write-ups are very suspect with me. 

Under Title 22, Section 1256-38(b)(1): “Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct.” The explanation goes on to say that if the employee did poor work because of inability to do better, it is not misconduct. This means that if the employee only weighed 140 pounds, and was ordered to stack bags of concrete weighing 250 pounds each, the employee’s inability to do the job is not considered misconduct. Employee may also be unable to do the work as a result of physical, mental, or emotional problems not within employee’s control.

In a precedent decision by EDD, it was found that merely being inept to do the job is not misconduct.

Also, if the employee had a vision issue that caused him or her to not be able to perform their job, but did not consult an optometrist or refuse to wear corrective lenses, it is considered misconduct because the employee had the power to control the inefficiency.

And one more thing to consider is, did the employee have the ability to do better? If the employee was able to do better, and then all of a sudden the work performance deteriorated, with no explanation for the deterioration, there is misconduct. So, you cannot be the star employee for 3 months, and all of a sudden start to have performance problems. Usually, there needs to be some sort of warning from the employer before they can establish misconduct. But, an isolated instance of mistake by the employee does not count as misconduct.

Just to make it more confusing, this doesn’t mean you can simply start slacking and still get unemployment insurance payment. EDD rules that it IS misconduct if the employee willfully fail to perform to the best of his or her abilities. If the employee does nothing to improve his or her performance, or if the sub-par performance is entirely within his or her control, that is still misconduct. If the employee knowingly and willfully failed to perform to the best of his or her ability, it is considered misconduct. So, if you know you can do better (and there is documented performance reviews and awards to prove you did better), and you simply slacked off, you probably won’t win your case.

Every case is different, and not all rules will fit perfectly with your case. Some cases may have multiple reasons and theories. I can’t go into all the different rules and nuances within this blog here, but hopefully I shed some light as to this complicated issue.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

My "opinion" on Red Light Camera Tickets...

Lawyers cannot give guarantees. We may be able to give opinions, but even then it is hard. In general, defending traffic tickets will vary county to county. The outcome of your case will very much depend on the county you are in, the judge you get, the officer that wrote you the ticket, the police/sheriff/CHP agency's policy, and your own previous records. For these reason it's always hard for me to give an opinion on each individual's outcome because of different factors.

Defending these red light camera tickets are no different. It's really an art. Some defenses work on certain judges but not others. So if you are reading things online and see something that worked for someone else, don't expect it to guarantee to work for your individual situation. Sometimes the officer will be reasonable and dismiss on his own motion. Sometimes the judge will dismiss the case if the officer doesn't show up. Sometimes the judge will NOT dismiss the case and set a continuance and make both sides come back again if the officer had good cause not to show up. Sometimes you get lucky, sometimes you don't. Some judges will automatically reduce the fine, some judges need you to argue why your fine should be reduced, some judges will never reduce the fine. For red lights camera tickets, sometimes the judge will order the defendant in for trial (when in general for traffic tickets the attorney can appear on behalf of the defendant so the defendant does not need to take a day off to go to court). One thing I do when I talk to people about these tickets is based on my experience with xxx agency and xxx county (although I mainly practice in Ventura County), etc, what is the likely outcome, but of course I can't make a guarantee, then I let them decide if they want to hire me to help them.



I am an attorney in Ventura, California, and I do handle traffic and DUI cases.  I defend red light camera tickets (Oxnard or Ventura). See my case results here: http://lincharlotte.com/traffic-case-results/. 
If you need help with your upcoming traffic or DUI case, please contact me at 805-517-4LAW or 805-517-4529, or email me at attorneycharlottelin@gmail.com. Please visit my new website at www.lincharlotte.com for new traffic and DUI legal information. 

Red light camera ticket - the nomination form aka "snitch" ticket

I have been meaning to write about the "nomination" forms that accompany the red light camera tickets that comes in the mail. Once in a while a person gets one of these tickets in the mail, but they are not the real driver. The real driver is usually someone close to that person- gf, bf, parents, siblings, cousins, or friends. The person is then stuck with the decision to "rat out" the driver, making the ticket the real driver's problem. I defend traffic tickets in Ventura County. In Ventura County, these tickets start at $480. With fees to attend traffic school, AND traffic school fee, this can add up to $600. If the ticket is overdue, there can be up to $300 fine on top.

Without ratting out the real driver, one can try to fight this ticket in court. I have taken a few tickets to court in these situations where the wrong driver was identified. As a defendant, you have a 5th amendment right to remain silent, meaning you do not have to tell who the driver is. Also, the burden is on the government to show that you were the driver. The burden is not on you to show you were not the driver, nor is the burden on you to tell who the real driver is.

But, exercising these basic rights are sometimes easier said than done when it comes to these tickets. 

I had a personal experience of arguing with the clerks office over this nomination form. I had to get a on calendar for arraignment. The office "insisted" that a nomination form is the only way to get a ticket dismissed, and therefore they refused to set the case for arraignment. Not true. I had to argue with them on basic constitutional rights (especially on 5th amendment). And even then it was a pretty ugly battle. I thought to myself, would it be worth it for most people to go through this? Probably not. My guess is one would just pay it in hopes to avoid any sort of drama like this.   (After an hour of argument I was able to get the case on calendar. That ticket was actually dismissed in trial). 

In another situation, I also had the unpleasant experience when an officer confronted my client in front of me, basically asking him on the spot to turn over the real driver. I had reminded my client not to say anything to anyone, especially if anyone asks him about the identity of the driver. Thankfully he remembered not to cave in on the spot. The officer eventually scurried away, but the whole ordeal was uncomfortable. I can imagine this sort of thing happening to other people trying to go to court themselves to fight these tickets. (That ticket was also dismissed).


I am an attorney in Ventura, California, and I do handle traffic and DUI cases.  I defend red light camera tickets (Oxnard or Ventura). See my case results here: http://lincharlotte.com/traffic-case-results/. 
If you need help with your upcoming traffic or DUI case, please contact me at 805-517-4LAW or 805-517-4529, or email me at attorneycharlottelin@gmail.com. Please visit my new website at www.lincharlotte.com for new traffic and DUI legal information. 

My humble cost of starting/running a law practice...

I was doing some bookkeeping this weekend and pondered what was the true cost of running my law/business. I remember reading this blog a while ago from Lawyerist (http://lawyerist.com/the-cost-of-starting-a-solo-law-practice-and-keeping-it-going-for-at-least-a-year/). Lawyerist is also a great blog for solos and young attorneys if you don't already have it in your blog feed). Actually as I was writing this post I found out that the original blog has been updated with another blog (http://lawyerist.com/how-much-it-really-costs-to-start-a-law-firm/) that discusses the recommended cost of starting a practice. Apparently there was some controversy over the $3000 amount. So I thought it'll be fun to compare my experiences against both the theoretical $3000 vs the updated blog that claims to be more realistic.

I am by no means endorsing this as what I recommend, or claiming that this is the ideal budget. I am just listing this to show what my budget is at the stage that I am in. The budget will also depend on what stage you are in. And to clarify, the stage I am in is still the "experimental" stage, where I am still  figuring out what I really really want to pursue (in lean startup fashion). This means I may be doing things on a shoe-string budget while I am learning and refining, rather than investing in some big ticket items such as software licenses or expensive furniture.

So, my cost at my current stage:

The can't-get-away-with costs
Physical space- $130/month for virtual office for 8 hours a month.
I agree with the updated blog. In 6 months you WILL need to find an office or some kind of space to meet clients. Around this point meeting at starbucks or Panera (with my favorite startup clients actually) is just not enough. It is way too hectic, there is no privacy, and you have no way to make copies of important documents (details!). I was sitting outside starbucks on the patio and important papers flew out of my file, and the client had to run after it! (embarrassing?)

But in comparison, I did have an office in the beginning. In month one I just didn't have the traffic to justify the space (and paying the rent was quite a burden on my startup budget). So now I am exploring the concept of something in between- like a virtual office to rent for a few hours a week. But again this will depend heavily on your area of practice. If you are doing all contract work for other attorneys, you probably don't need an office.

Efax
$6/month
I always wonder why in 2013 we are bending over backwards to make an old technology work. Basically with efax we are transforming a "scan" into a "fax". This topic is beyond me. I just accepted the fact that most administrative agencies and courts will ask if you have a fax. I actually felt bad that a judge had to overnight an order to me rather than have the ability to fax it. So I caved in and bought a cheap efax service.

Google Phone
Free BUT cell phone charge =$100/month.


Lexis/Westlaw? Local library = FREE, but consider how many trips you will have to make.
Thankfully the law library is attached to my local courthouse. So I have a running list of books I need to pick up or caselaws or CEB chapters I need to download, and get them all at once when I make a trip down there. May be a bit inefficient, but I did sign up for one of these services at one point. The cost of using these services by the month will add up and it just doesn't justify my practice for now (this may be different if you were a full time researcher or litigator).

Bar Associations
$70 VCBA + varies for local section. Local sections may be important because of the ever important listserves.
I may add LACBA membership, but these fees add up.

MCLE = Varies
Practice guides to buy = varies
Some guides you can get at the library, but for some niche practice areas (like special ed or immigration) it may be pretty tough to find a copy from the library.

Ink cartridge = $12/month

Legal Malpractice insurance = $500 first year

Hosting service for websites = $5/month

Stamps = random

The costs I don't know if they count
Laptop/computer cost- well, I am still using the same one from my 3L year.

*update: may be doing the upgrade to an imac soon ($2000). I find I am more productive on a desktop. Plus it gets too hard to have to copy/paste from 2 windows or reference multiple windows to get some work done on my tiny 15 inch laptop.

Printer/scanner from costco = around 2-300. Should probably add this on your christmas wishlist!

health insurance = $114/month for now. But this is not all inclusive.

Buying domains = $12, but discount codes available. I also buy alot of domains so my budget here may be an outlier.

Hiring someone to modify wordpress= around $300 market rate

Auto insurance/gas - this counts if your job is to drive area to area.

Business cards from Vistaprint = $10 about
If you are doing direct marketing, the cost of envelopes and stationaries may add up substantially. For some reason the envelopes are exponentially more expensive than the letterhead.

marketing in general
Some you can get away with for free like Craigslist or free online yellowpages-type profiles.
If you get into google ads, the cost will go up depending on your practice area and keywords.
Then there's other traditional marketing.

Costs I haven't considered
incorporation- in CA would be $100 plus $25. Update: don't forget the yearly tax bill for a corporation! (I believe it is $800/year) This could make or break your first year budget.

secretary/paralegal. Many people would argue this is the key to a practice- getting help from someone who really knows the system. Also many argue how invaluable it is for someone to answer your phones. Right now, I am compromising by letting google voice filter out the calls.

But overall, even taking out the things I haven't considered, or things that don't really count, it's really still cutting it a bit close to claim you can start up a practice in less than $3k. Remember, everything here varies by the person, the practice, the geographic location, etc.

What's your startup budget??