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May 26, 2015 By TB&H

TBH&E Partner Mike Hinkle has again been named a Super Lawyers® Rising Star for the Commonwealth of Pennsylvania. Mike is one of only 2.5% of practicing attorneys under the age of 40 to receive this honor in Pennsylvania in 2015. Honorees are selected for inclusion following a rigorous, multi-phase selection process that includes independent research, peer nominations and peer evaluations. Selections are made on an annual, state-by-state basis and recognize attorneys who have attained a high-degree of peer recognition and professional achievement. Mike’s inclusion will be commemorated in the June 2015 issue of Philadelphia magazine.

Mike is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC. His practice focuses on complex civil and business litigation. He can be contacted by phone at (410) 649-4440 or by email at mjh@tbhelaw.com.

Michael J. Hinkle

April 3, 2015 By TB&H

Answer: When the no-definite term employment agreement contains a “for-cause” termination provision.

As employers head into the spring hiring season they are reminded of the Maryland Court of Appeals’ decision that recently re-examined the contours of Maryland’s firmly established doctrine of at-will employment and avoid an unintended lifetime employment contract or continuous for-cause relationship that was never intended.

In last summer’s decision, Spacesaver Systems, Inc. v. Adam (Md. Ct. App., No. 98 Aug. 27, 2014), the Maryland Court of Appeals confronted the question of whether a written contract containing a for-cause provision but no definite term of employment constituted an at-will contract, a lifetime contract, or something else. After laying out the fundamentals of Maryland employment law, the Court opted for the “something else” category classifying the situation as “continuous for-cause” employment. Explaining that while the absence of any duration suggested an at-will employment relationship, the for-cause provision negated an at-will employment contract.

As a result of the Adam Court’s decision, employers should review their employment agreement forms to make sure that the agreement forms actually establish the employment relationship that is intended. If an employer intends to provide for termination with and without cause, and related benefits only in the case of the latter, the employer must make the distinction clear. If at-will employment is intended your attorney can assist in properly documenting the relationship. Indeed, the Court of Appeals made this point particularly clear stating, “[employer’s] corporate attorney could easily have kept Adam’s employment at-will by inserting an at-will provision in the Employment Agreement, or making sure that no for-cause provision made its way into the contract.”

Employers, as you head into the spring hiring season review your employment documents, including your employment handbooks, to ensure that your documents establish the employment relationships you intend and that your documents are consistent with current law. Carelessness, in this area could result in significant unintended and expensive consequences.

If you have any questions about this Employer Alert, please contact Timmerman, Beaulieu, Hinkle & Esworthy attorney, Jim Timmerman, the author or this alert, or the attorney with whom you usually work for your employment law questions.

About the Author

Jim Timmerman is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC. Jim’s practice focuses on complex business and commercial litigation, including the defense of companies in labor and employment matters, in the federal and state courts of Maryland. He can be contacted at (410) 649-4440 or via email at jmt@tbhelaw.com.

May 20, 2014 By TB&H

If You are Swimming with Sharks…
– How To Avoid Lawsuits
– Best Practices to Save Your Case and Your Assets

DATE: Friday, May 30th

TIME:

8:00 am to 8:30 am Networking & Breakfast
8:30 am to 10:00 am Presentation

WHERE:

PSA Financial
11311 McCormick Road
Hunt Valley, Md

SPEAKER:

James M. Timmerman, Partner
Timmerman, Beaulieu, Hinkle & Esworthy, LLC.

SUMMARY :

This is an opportunity to get practical and hands on advice from a well known and experienced business and trial lawyer. Jim has promised us that this discussion will be down to earth, lively, and most importantly–save your business from possible financial ruin.

Guests may attend one HVBF Roundtable before joining the HVBF.

For more information and online registration to attend for free click here: If You are Swimming with Sharks…

February 10, 2014 By TB&H

Unfortunately, we live in a litigious society. What that says about society is for someone else to decide. But the fact of the matter is that any business can be sued at any time by an employee, customer, vendor, or just about anyone that it comes into contact with over the course of the day. The number of fact patterns that lead to lawsuits is endless, and the sad reality is there is nothing you can do to guarantee that you will never be sued. To add insult to injury, defending a lawsuit can be expensive, time consuming, and emotionally draining.

Are you ready for some good news? Many lawsuits can be prevented altogether, and those that can’t be prevented may be neutered by employing some simple best practices.

Do a good job and be professional. You are a business owner so you have specialized skills and experience. When you make a commitment to a client or customer, honor that commitment and make customer satisfaction a priority. The reality is that most people recognize that mistakes happen. When things go wrong for whatever reason, people are less likely to get adversarial if they have enjoyed working with, or doing business with, you.

Communicate. It should come as no surprise that many lawsuits arise from a simple misunderstanding. One of the best preventive measures to avoid litigation can be a non-accusatory discussion in which any disagreement or misunderstanding is explored. A simple telephone call or honest discussion can save much time and money. Note – such discussions must end immediately if a lawsuit is imminent or has been filed. At that point, discussions should be conducted by counsel.

Document everything. The best way to avoid a misunderstanding in the first instance is to document all applicable policies and terms. A well-drafted contract, employment manual, or other writing that records critical terms of an agreement or event can prevent a misunderstanding from devolving into a lawsuit. The cost of engaging an attorney to review documents such as contracts and purchase orders is nominal when compared to the expense associated with defending a single claim. Have an attorney write you a solid contract that properly limits your liability and exposure. Also, review and understand all contract terms before you sign. If you don’t understand something, ask for clarification. Similarly, when possible, discuss the decision and process of terminating an employee before doing so. You will be better prepared and can prevent pitfalls that you may not have considered.

Understand the applicable laws. One sure fire way to avoid a lawsuit is to be compliant with the law. This includes knowing what to file, when to file and where to file. Spend the time to understand the local, state, and federal laws that apply to your business. This is not as daunting a task as it might sound. There are numerous laws and regulations that apply to any business. However, today’s technology allows for efficient and convenient research. Moreover, there are many business resources available to you through your state and local governments. Your business should also have a regular legal “check up.” The law is constantly changing. The cost of a meeting or two with a trusted attorney or business advisor will pale in comparison to the costs of defending even a single lawsuit. Keep your documents and policies up to date.

Maintain your property. Injuries equal lawsuits. So … prevent accidents from happening in the first place by maintaining your property and keeping a safe and secure workplace. Remember your “premises” can extend beyond your front door and include sidewalks, parking lots, company vehicles, bathrooms, hallways, staircases. Inspect your business property regularly and repair any defective conditions. Also, enforce workplace safety rules. Unfortunately, no matter how diligent you are, accidents happen. Thus, you should consult with an insurance professional and maintain adequate levels of insurance.

Utilize your employee handbook. “Utilize” means if you have one, follow it. Have you read your own policies lately? One way of avoiding misunderstandings, claims of unfairness, disputes regarding termination, leave issues, vacation disputes, harassment claims, etc. is to have a comprehensive and up to date employment manual. If you are not utilizing an employment manual talk to your attorney about the benefit of implementing a manual that is properly tailored to your business operations.

Terminate with care. No one likes to be fired. At the moment of termination emotions can run high. Thus, you must approach the situation with professionalism. Generally, when an employee is terminated it should not come as a surprise. Good employment practices include documenting performance issues and discussing them with your employees. Before terminating an employee make sure you are following your own policies and procedures. Also, consider offering a severance amount that may diffuse the emotion of the moment.

Don’t ignore the problem. It is inevitable that you will run into a difficult client, unreasonable customer, or employee. Do not ignore the situation. Resign yourself to completing the contract or project. Keep your ego in check and remain calm. Address the situation as best you can and learn from the experience so you can avoid similar customers or clients in the future.

All potential clients are not good clients. Life is too short. The reality is that there are times when you know from the beginning that a particular person or client is going to be a problem. In such circumstances you may well be better served in the long run by declining the work.

Remember, every action has a reaction. If you are unable to amicably resolve a dispute and you conclude that you must bring a lawsuit – so be it. But, understand that after you file your lawsuit you are likely to face a counterclaim. Don’t expect that your dispute will be limited to the issue of your choice. Your opposition will try to find leverage wherever they can and that usually means that the scope of your dispute will be expanded. Thus, recognize that you and/or your business practices will be exposed to the public’s eye. As a result, you should have your house in order before voluntarily getting involved in any litigation.

Understand your risk tolerance and properly insure yourself. Insurance can provide you with a competitive edge. Litigation can be time-consuming, expensive, and frustrating. The litigation process can also impact your personal and business schedule. Insurance will not prevent you from getting sued, but it can give you peace of mind and some financial security. In many cases, insurance will cover the cost of an attorney and damages that are awarded. Talk to an insurance professional about the levels and types of insurance that are right for your business.

About the Author

Jim Timmerman is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC. Jim’s practice focuses on complex business and insurance litigation in Maryland’s federal and state courts. He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by email at jmt@tbhelaw.com.

Disclaimer

February 10, 2014 By TB&H

You are a hardworking, law abiding person. You drive the speed limit (most of the time). You have life insurance and a will, or at least have given them some serious thought. When you hire someone to perform work on your home or business you take time to read the contract before your sign it. Before you go into business with anyone you set forth all of the critical terms in an agreement. You treat your employees and colleagues respectfully and try to do things the “right” way.

Unfortunately, despite all of your hard work and best intentions, you are not immune from the nausea that can accompany the receipt of a summons and complaint. Instantly, the world starts spinning faster and your heart begins to pound so hard it seems to be bursting from your chest. Immediately visions of financial devastation play in your mind like a bad movie. As fear turns to anger and back again it may be difficult to remain composed and almost instinctively you may feel tempted to react. Knowing what to do … and perhaps more importantly … what not to do … from the moment you are served is critical to achieving a successful outcome and maintaining your sanity.

The Do’s and Don’ts –

Rule 1 – Do take a deep breath and remain calm. As foreign as it may seem to you, lawsuits are filed every day, so you are far from alone in finding yourself an unwilling participant in litigation. Don’t take any drastic action. Don’t call the plaintiff or the plaintiff’s attorney and discuss your position or ask them to dismiss the case. Much like the police officer always says in those bad TV shows, anything you say, can and will be used against you in a court of law. Keep in mind you can easily make matters worse if you take any steps before you get proper advice and an analysis of the situation. As a general rule, the service of a summons and complaint triggers the start of a marathon not a sprint.

Rule 2 – Don’t delete, erase, shred or alter anything that relates to the claim. At this point the facts are the facts. You cannot change the facts, and any sense that you are better off if you “change” things is incorrect. Destroying or altering evidence will only hurt your case and may constitute a crime. Moreover, in this electronic age, “erasing” anything is virtually impossible. In fact, you should be taking immediate steps to preserve any information relating to your case in whatever format it may be. With respect to electronic information such as emails and computer files you should take active measures to prevent any inadvertent or automatic deletion by anyone. If information is lost or destroyed a judge or jury may be entitled to assume that the information was harmful to your position.

Rule 3 – Do act quickly to determine any applicable deadlines. Once you have been served there is a specific deadline for you to file a response to the Complaint. Failure to respond in a timely fashion can be fatal. Confirm the applicable deadlines and contact counsel.

Rule 4 – Don’t discuss the case with anyone until after you have spoken to your attorney. See Rule 1 above. You may feel strongly that you can explain your position and justice will prevail. I say it again – See Rule 1 above. Anything, no matter how well-meaning or true, could come back to haunt you. Don’t take to social media to comment about the case, the plaintiff, the plaintiff’s attorney, the legal system, or anyone involved in the case. Don’t talk to the media. If you are contacted about the case, politely decline to discuss active litigation matters and refer the person to your attorney.

Rule 5 – Do consult with an attorney. I know – you are already envisioning a bill. Stop. Attorneys are like every other professional service provider in that they charge for their time. That is how they pay their bills. More importantly, they have been professionally trained and have practical experience so they can offer an unbiased assessment of your situation and come up with a plan of action. Your communication with an attorney is also privileged. Thus, you can candidly talk to your attorney without concern that the communication will be revealed. You should also feel free to consult with a number of attorneys before selecting one who will handle your matter. You and your attorney will be going to battle together so it is important that the personality fit is a good one.

Rule 6 – Do contact your insurance agent. You bought insurance for a reason. Use it. Ask your insurance representative whether any of your insurance policies may afford coverage or a defense. Even if you don’t believe you have coverage, don’t wait to inquire. A mistaken belief that you don’t have coverage could adversely impact any actual coverage or defense obligation. Remember, an insurer’s duty to defend can be broader than its duty to indemnify so you may be entitled to defense costs even if liability may not be covered. If your insurance company declines to help, consult with your attorney to determine if you have any recourse.

Rule 7 – Don’t wait to start your homework. The passage of time does not make things any clearer and documents tend to get lost. Immediately identify the relevant documents and the people with any knowledge about the claims. Prepare a detailed outline of the critical facts, documents and contact information about all the witnesses for your attorney. Your lawyer will be better prepared and you can significantly reduce your own legal costs by being a productive member of the team. Also, remember Rule 2 above. Preserve all relevant information in whatever format it is.

Rule 8 – Don’t put your head in the sand and hope that the case goes away. Talk to your lawyer about the strengths, weaknesses and costs that you are confronting. Consider whether you have any claims against the opposing party. In every adversarial matter leverage is critical. Consider whether involving a neutral mediator at an early stage may be beneficial. Once an attorney is involved, it may be worthwhile to explore the merits of the claim through the use of a neutral mediator. You will be forced to participate in settlement efforts anyway, so be open to exploring the potential for an amicable resolution with the assistance of your attorney before you begin incurring significant costs.

Rule 9 – Don’t transfer assets. Any transfer of assets outside of the normal course of business after you have been sued can be problematic and expose you to claims of improper transfers and potentially punitive damages.

Rule 10 – Do prepare a budget and be prepared for business interruption. In almost every instance, whether you have insurance that will respond to the particular claim or not, you will incur out of pocket expenses. For proper planning you should have an understanding of the costs that are on the horizon. Litigation budgets are a good tool, but an initial budget projection is not a substitute for candid and frequent communication. Also, you have a life to lead and a business to run. Be realistic about what you can afford and discuss alternate fee arrangements or other options that may be available. Good attorneys want a mutually beneficial relationship with their clients. Also, prepare from the outset for personal and business disruption. Courts set their own schedules. Fact investigation and the discovery process will require significant time and effort.

Rule 11 – Do prepare for trial. While the vast majority of cases are resolved before trial, it is a fatal mistake to approach the process with anything other than full commitment. You should be prepared to free your calendar in the months ahead so you are free to assist your attorney and participate fully in the preparation of your case.

About the Author
Jim Timmerman is a founding partner of Timmerman, Beaulieu, Hinkle & Esworthy, LLC. Jim’s practice focuses on complex business and insurance litigation in Maryland’s federal and state courts. He also advises individuals and businesses of all sizes on general business and risk management issues. He can be contacted by phone at (410) 649-4440 or by email at jmt@tbhelaw.com.