From the initial start up to dealing with employees, there are many legal issues for a small business owner to consider.  Frequently small business owners see legal fees to review documents or provide advice as an unnecessary expense. All too often legal issues are ignored until they become legal problems.  The maxim of an ounce of prevention being better than a pound of cure rings true here.  

This is a brief overview of some of the areas where a little money spent on legal fees can prevent big problems (and bigger legal fees).  

To incorporate or not to incorporate
If you do not mind putting your personal assets on the line for your business, you do not need to incorporate.  However, most people would not want to risk the loss of their house should they lose a lawsuit down the road.  Incorporation protects your personal assets from judgment creditors. You could incur a judgment against your business if you or an employee are in a car accident while on business and the other driver sues your business.  Or if someone trips on your property. Or if you make an error in your particular field which result in someone being hurt.  

It will not protect those assets from business creditors if you pledge them as collateral or personally guarantee a business loan.  Some banks or suppliers may require a personal guarantee for extending credit. You will need to use your best judgment as to whether the benefit of having the loan outweighs the risks.  

But I trust my partner
Of course you do – now.  But the relationship may change over the years.  Resentments or misunderstandings may arise. Having the relationship defined in writing protects both of you and can provide procedures for splitting up in case the relationship become toxic.

Getting it in writing is just too much trouble
Failing to get it in writing is more trouble.  Memories fade, sometimes conveniently. Differences develop over what was said and what was meant.  A good contract anticipates problems and provides procedures for resolving them or avoiding them. You should have written contract for all space or equipment leases, employment of key people or independent contractors, and sales of products or services.  If you are presented with a contract by someone else, take a few minutes and a few dollars to have your attorney review it. It is probably written to favor the other side, sometimes unreasonably so. Your attorney can point out the pros and cons and advise you whether to ask for changes or sign it.  Additionally, some fields, such as home improvement, have specific requirements for contracts which are set by state law. Failure to abide by these laws could cost you the entire price of the job and then some.  

I deserve to be paid
Yes, but there are laws governing how you can go about getting paid for your work.  The Fair Debt Collection Practices Act and mechanic’s lien act, as two examples, have specific procedures and time frames that must be followed and certain practices that are forbidden by law.  Ignore these issues and YOU will pay. An attorney familiar with your business can tell you what you need to do and what you cannot do.

But I am just operating out of my house
Have an attorney check into the local zoning laws to see if you really can operate your type of business out of your home.  And if you are thinking of leasing or buying property, have an attorney check the zoning on the particular site to be sure the type of business you plan is permitted – not all businesses are allowed in commercial areas.  

I am just hiring relatives
You still have legal obligations to them under various state and federal labor laws.  For example, you have to provide worker’s compensation insurance for all employees. And just because you have hired someone as an independent contractor, does not mean the Worker’s Compensation Board will see things your way if that person is injured.  If there is ANYONE (including your kids) other than you working, it is best to have Workers Compensation insurance, just in case.  

You have obligations to provide reasonable accommodations for disabilities under the Americans with Disabilities Act (ADA).  If your nephew develops carpel tunnel entering data for your business, you may have to provide voice recognition software.  If your employee has a mobility related disability, you have to provide ADA accessible facilities.

Just because your sister-in-law works for you does not mean you can leave your Playboy calendar posted.  The Equal Employment Opportunity Commission will be asking questions. Nor can you refuse to employ qualified persons of color or ethnicity.  

You have an obligation to provide a safe workplace under the Occupational Safety and Health Act.  Inspectors from OSHA may visit you from time to time to check up on you.  

These various federal agencies carry big sticks.  It is better to have your house in order so as to avoid problems with them.  Your attorney can advise you on these issues and thus protect you from costly mistakes.

These are just some of the legal issues that can come up when you are starting or running a small business.  If you have a relationship with an attorney now, he or she may do much of the minor review work at little or no charge. It certainly does not hurt to ask and it COULD save you substantial money down the road.

While we are on the subject of cars, what about this “Lemon Law”?  This is a consumer protection law that does not apply to corporations, businesses or fleet purchases.  It covers purchase or lease of late model cars with a GVW of 10,000 pounds or less.  It does not cover conversion vans, motor homes, tractors, motorcycles, mopeds, snowmobiles, or off road vehicles such as four wheelers, or ATV’s.

There are some very specific steps you MUST follow before you can even file an action in court.  Dates are critical.  You must begin Step 1 of the process within 18 months of purchase or before you have put 18,000 miles on the car, whichever comes first.  Before you can file a lawsuit, here are the steps you must take:

#1. Take the car to an authorized dealer, report the problem, and have him repair it.  It is important to note this date, because at the end of the process this is the date used to determine the two year statute of limitations for filing an action in court.  

#2. You must allow the dealer a reasonable number of attempts to repair the problem.  ‘Reasonable’ is defined as four attempts at repair or a total of 30 business days out of service.  If the dealer keeps the car from Thursday morning to Monday evening that is only 3 out of service days.  Make sure you are reporting the same problem when you take the car back.  Watch the work orders closely for changes to the problem reported or cause.  The manufacturer can wriggle out if they can claim the four repairs were for different problems.  

#3. If the attempts at repair are unsuccessful, you must follow the manufacturer’s claim procedures, if they have any.  Information on the procedures will be in the written warranty or the owner’s manual.  Keep your eye on the calendar, because your two year time limit is running.

#4. If there are no claim procedures, you must follow any notice requirements in the warranty or owner’s manual.  
Even if there are no notice requirements in the warranty or owners manual it is ALWAYS a good idea to notify the manufacturer of the problem in writing, detailing attempts to repair and providing copies of work orders.  Keep copies for your files.  The manufacturer has 30 days to respond to the written notice.  You may choose to have any monies paid to date refunded and the purchase contract cancelled, or you may choose to accept a replacement car. 
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If the manufacturer denies the claim, you may file suit, assuming it is not more than two years after the first repair in Step 1 above.  If there is no notice requirement, then you may file suit at that time, if it is not too late.  In the suit you can ask for and may recover damages and costs including attorney fees.

I do not handle Lemon Law cases, but google Consumer Protection Attorneys and you should get a number of firms that do handle them.

10. Joint custody does NOT automatically mean nobody pays child support.

9. Children cannot decide who should have custody of them at age 10, or 12, or 14, or ANY age.

8. Just because the child you are paying support on reaches age 18 does NOT mean he is emancipated and you can stop paying child support. In Indiana, 19 is the age of emancipation and it still requires a court order to stop the income withholding.

7. Just because you and your ex agree to a change of custody or change in child support does not make it legal – you must justify it in writing to the court and the court must agree to the change to make it legal.

6. You and your ex cannot agree to a lesser amount of child support unless you justify it in writing to the court and the court agrees.

5. Your credit card companies, utility companies, loan companies and other creditors cannot have you put in jail for failing to pay them.  Your ex CAN have you put in jail for failing to pay child support.  

4. You cannot withhold support in retaliation for denial of visitation.

3. You cannot deny visitation in retaliation for withholding support.

2. Your ex is not going to vanish off the face of the earth – deal with it.

AND THE NUMBER ONE THING WE WISH OUR CLIENTS KNEW:
1. Your children will see how you treat your ex and how you talk about him or her to others.  As they get older, they will come to admire you for acting like an adult under difficult  circumstances.  They will not come to admire you for acting like a child under those circumstances.

Depositions are sworn testimony taken out of court, to be used at court if needed.  They are typically used for discovering other documents and witnesses, or pinning down a witnesses story so they cannot change it later. Sometimes they are used if a witness cannot be available on the date of the trial or if there is possibility that the witness may pass away before trial.  They are taken under oath, so the same rules about telling the truth and perjury apply as for testimony in court.

Plan to arrive half an hour early, unless your attorney has instructed you otherwise.  The deposition may be moved to another room and you want plenty of time to get there and find the right one.  Wear comfortable clothing.  But no flip-flops, revealing (low cut, midriff top, short skirt), raggedy or dirty clothing, shorts, hats, piercings (except women may wear pierced earrings), visible tattoos, or dirty hair.  This is not the time for a fashion statement.  

If there are multiple people being deposed at the same time, you will wait somewhere with the other witnesses.  You will not be allowed to observe the other witnesses depositions.  You must NOT discuss your testimony with any other witnesses or other people in the waiting area.  

When you are called in, go to where the court reporter tells you to sit, usually to the side of the reporter.  When answering, speak loudly, clearly and slowly.  The microphone does not amplify your voice, it just records.  Do not nod your head or say “uhu” or “unhu”.  The recording will not pick that up clearly.  You must say yes or no.  

The lawyers will ask you questions.  You may not ask them questions or argue with them.  You may ask the lawyer to explain or simplify his question or state that you do not understand what he is asking.  “I don’t understand the question.  Can you make it simpler?” or “That is a really long question.  Can you break it down?”  Don’t do this just to be cute or evasive – that will be obvious and will damage your credibility.  You may not talk over the lawyer, even if he talks over you.  

This is not the time to be funny, sarcastic, argumentative or defensive.  I cannot beat that drum enough.  Practice being aware of the tone of your voice.  It will matter when you get in front of a judge.  Your credibility rises and falls on this.  A stranger sitting in the back of the room should not be able to tell from your demeanor or tone if the lawyer questioning you is your lawyer or opposing counsel.  Anytime you open your mouth you are not talking to the lawyers – you are talking to the judge (or the jury).  Do not look to the non questioning attorney or anyone else in the room for answers — they cannot help you or provide answers to you or answer for you.  

Take a breath before you answer.  That allows the lawyers to object to the question if needed.  This is NOT a conversation.  Once a lawyer objects, you must stop talking until the objection is resolved.  Then you will be instructed by the questioning attorney to answer the question.  Unless you are a party, and then your attorney may instruct you not to answer at all.  
Think first.  Plan what you will say and then stop.  Keep your answers short.  If you keep talking, you will talk yourself into a hole.  Answer only the question that is asked.  Concentrate on the verb.  If you are asked “Do you know what time it is?” most people will look at their watch and state the time.  WRONG!  The answer is either yes or no.  The question was “Do you KNOW what time it is?” not “What time is it?”  

The opposing counsel may try to hold you to yes or no answers. Do not let this frustrate you.  He who gets angry – loses.  The other lawyer has the chance to come back and ask you additional questions to explain your answers.  But be careful about answering yes or no if there are multiple facts or lots of adjectives or adverbs in the question.  If you cannot answer yes or no to every word in the question, you can ask the lawyer to breakdown the question.  Do not answer yes or no if the question asks you to or would require you to guess or speculate, unless you make it clear you are guessing or estimating.  “I don’t know, but I would guess. . . .”

Remember that actual knowledge means YOU saw it, heard it, smelled it, tasted it or touched it.  If you did none of these then you do not really know.  The most common example is how do you know who your Father is?  You don’t.  You have deduced it from what you have been told and the circumstances of your childhood, but you were not there at conception, so you do not really ‘know’.  

It is OK to say that you do not remember if you really don’t. Just be aware that if you don’t remember much, then what you do remember will be suspect.  In other words, how could you remember just A and C, when B, D and E happened the same day?  If there are documents that will help you to remember you can mention that.  “It’s in my notes, but I don’t remember.”  The lawyer can show you the document and ask if it refreshes your memory.  If it does, then the lawyer will take the document away and continue with questioning.  However, do not bring documents to the deposition unless your attorney asks you to.  Note that I phrased that so the reference to notes was BEFORE the answer.  This is so you can get it in before opposing counsel can object.  Turn the phrase around and you can be cut off before you can indicate you have notes.  If opposing counsel is questioning you, he probably won’t try to refresh your memory.  

You also cannot say what anyone else (except one of the parties) told you or said.  
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If you are a party and another witness is being deposed, do not react to what is said.  I don’t care if she says frogs fell from the sky and grass is purple.  Do not scowl at the witness or talk back to her or tap your pencil, or sit back and cross your arms and roll your eyes. Do not mutter under your breath or sigh or make any noise at all.  I don’t even want to hear you breathe.

Typically, a Guardian Ad Litum or GAL is a woman, but not always.  For purpose of this article, we will assume your GAL is a woman. 

First you need to understand that the Guardian Ad Litum (GAL) can make or break your case.  You want the GAL to like you.  To that end, you need to cooperate fully and make her job easy.  

Child
Do not prep the child too much for the visit.  Tell the child only that someone is coming who will be helping you and the other parent and the Judge resolve the issues.  She needs to answer the GAL’s questions honestly.  DO NOT prompt the child to tell the GAL anything specific.  Also DO NOT instruct the child NOT to tell the GAL anything.  The child should be clean and neatly dressed.

House
The house must be clean and uncluttered.  It should smell clean.  Any safety hazards should be fixed.  This includes holes in walls and broken windows and screens.  Trash outside should be picked up and in trash bags.  There should not be any junk or broken toys or other things in the yard.  If there are pets, all feces should be picked up from the yard. Any guns should be unloaded in a locked gun safe and/or have trigger locks on at all times.

The GAL may look in the cabinets, refrigerator, freezer and stove checking for cleanliness and adequate, healthy food.  She may check in the bathroom for prescription drugs within reach of kids.  Best to have all prescriptions in a locked medicine cabinet or drawer.  Flush any old or expired prescription drugs.  

Make sure the house is child proofed for the age of the child.  Obviously, if there is a baby, there should be caps in outlets, locks on cabinet doors, and child proof door latches.  Older kids don’t need those types of precautions.  
If you are remodeling or making repairs, all areas, even work zones, should be neat and as clean as possible.  They should also be closed off or blocked off to restrict access.  If there are small children, there should be child proof gates in place to prevent them from getting into the work zone. 

The GAL may make unannounced visits, so be sure to keep the house and yard clean and the pantry stocked at all times until the case is ended.  

Pets
Pets should be up to date on shots.  The GAL may request the shot records.  Have shot record information handy.  Pets should be outside or locked up if they are not perfectly behaved.  Nothing will concern a GAL more than a large dog that acts like it will eat her.  All pet areas should be clean.  The pets should be free of fleas and be clean.  If there are more than a couple of pets consider giving them away or having someone keep them until the case is ended.

Discussing issues
Make sure the child cannot hear your discussions with the GAL.  Many parents SAY they never run the other parent down, but then will tell the GAL all the bad things about the other parent with the child in the room.  Go outside or send the child to her room.  Better still is to try and schedule the interview to start before the child gets home from school.  Then you can speak freely and not worry about the child hearing.  However, be aware of other children in the house – older or half siblings may tell the child what you said, so try not to let them hear anything either.  

This is not about bashing the other parent. All concerns have to relate to the best interests of the child.  It is not acceptable to say you do not like the other parent’s girlfriend, you must indicate specifically how the girlfriend impacts the child.  Don’t say you don’t like the other parent’s lifestyle, indicate specifically how the lifestyle impacts the child.  

Do not get angry at the GAL if she raises issues that the other side has informed her of.  She is only the messenger, so don’t shoot her.  Respond calmly and rationally to any accusations.  She may challenge you on your answers.  Again, do not get angry at her.  Do not assume this means she is “on their side”. It is common to challenge what both sides say in order to get to the truth.

Do not lie to the GAL.  If you are caught in a lie or if your answer is so improbable as to be unbelievable, it will destroy your credibility and thus your case.  But do not simply accuse the other side of lying either.  Set out facts and your proof and let the GAL come to that conclusion on her own.  

Making the job easy
Have a binder prepared to give to the GAL with copies of any documents you want her to see.  Include the child’s most recent report cards; medical records, any pleadings and orders in the case, any prior GAL reports, any counselor reports or records, and CPS reports, any Facebook pages, any emails between the parents, any texts between the parents, and any photographs.  Include the names, addresses and phone numbers of any witnesses and what they can tell the GAL, including teachers, counselors, church staff, scout masters and relatives.  Include a history of the relationship with particular attention to the dates and events that led to the current legal action.