We’re speaking with attorney Janet Portman, an expert on landlord tenant law and the author of, “Every Landlord’s Guide to Finding Great Tenants.”
NOLO: Janet, your book is geared to finding and screening great tenants. But what about a landlord who has just purchased your book, and already has tenants in the building? Can a landlord go back now and run a screening effort on existing tenants?
JANET PORTMAN: Great question, and the answer is no. Here’s why: in order to request a credit report, a first level screening tool, you have to have a valid business reason. But if you’ve already rented to someone, especially someone with a lease, you don’t have that reason anymore. If you want to check criminal background, a second level screening tool, you need your tenant’s permission, but existing tenants aren’t likely to play along. The most you can hope for with your building full of tenants is that the prior owner did some minimal screening, and that the bad apples are either near the end of their lease, or are renting on a month-to-month basis. You can terminate their rental agreements with requisite notice – usually thirty days. If you have a really bad tenant, regardless of the length of his lease, you can always terminate for cause.
NOLO: You mentioned criminal background checks. If you were to explain the rules to someone from another country, they might be mystified. For example, the California Apartment Association advices their members not to do a Megan’s Law search, and not only that, but refusing to rent to an ex-con might result in a lawsuit. How did it come to be that landlords have to take a “don’t ask, don’t tell” approach when it comes to ex-convicts?
JANET PORTMAN: This is one of the most interesting issues in the landlord tenant world today. Here’s the deal: California and New Jersey and Madison, Wisconsin, passed laws that prohibit employers and landlords from using Megan’s Law databases to deny housing or employment, and there’s hefty penalties if landlords break the law. Maybe these legislators realize that if ex-cons could be denied a job or a place to live once an employer or landlord saw their name on the list, they would become outcasts, and eventually go underground, defeating the whole purpose of the registration process. But landlords in these states, knowing that they are charged with maintaining a safe place for residents to live, feel that they should be able to use the database to weed out applicants who might commit crimes. So, there’s the problem. Fortunately, there’s a way to find out about a person’s unsavory past by using other tools besides the Megan’s Law lists.
NOLO: Janet, just so we’re clear, is it okay to turn down tenants who are pet owners solely on the breed of their dog? And can you do other things, like ask for special deposits because of the pet?
JANET PORTMAN: Landlords can prohibit all pets, or some pets, and they can also say, “No dogs over a certain weight, no un-spayed or non-neutered dogs,” and yes, “No pit bulls, Dobermans, or any other breed.” The only caveat here is when the tenant says, “I am disabled, and this is my service or companion dog or animal.” But let’s not get hung up on this exception. It’s not that easy to satisfy the legal definition of being disabled, so landlords aren’t likely to find hoards of tenants successfully circumventing their no-pit bulls policy by using this exception. Now, as to charging more if a tenant wants to bring a pet, most of the time, the pet deposit that a landlord wants to set should be included within the security deposit, and if your state sets limits on the amount of security deposit you can charge, you must fold whatever you consider a pet deposit into the overall deposit you charge the tenant.
NOLO: I want to be sure I have another rule correct: you can rent to a person who is in the U.S. illegally, that’s not a violation of the law, but you can’t employ that person as your property manager?
JANET PORTMAN: Yes, that is right. Our legislators, and really, our society, for we elect them, have decided that it’s against the law to hire someone who is here illegally, but it is not illegal to rent to that person.
NOLO: What happens if a married couple wants to rent, and one spouse is ideal from a screening perspective but the other spouse is a dud, and a potential liability? Can you turn them down because of one spouse’s screening results?
JANET PORTMAN: That depends on what the problem is: is it behavioral, or financial? Suppose this couple’s former landlord describes one spouse as a dream tenant, and the other as a wild party animal who caused endless neighbor complaints. You can turn them down for this reason. But suppose one spouse has a great job, and satisfies your minimum income requirement, but the other doesn’t work. Here, you must treat them as one, and disregard the fact that the unemployed spouse couldn’t handle the rent on his or her own. That’s because married people are responsible for their spouse’s basic living expenses. So, in a sense, you’re dealing with one renter, when it comes to income.
NOLO: In chapter nine of Every Landlord’s Guide to Finding Great Tenants, you say it’s okay to participate in a bidding war; you just can’t initiate one because of bait-and-switch laws. Can you elaborate on that?
JANET PORTMAN: It’s against the law to advertise one thing, then change the terms of the deal when the customer shows up. So, if you’re on a hot market and have several qualified applicants vying for your place, it’s risky to say, “Well, I’ll rent to anyone who will pay me $100 more in rent,” and so on. Instead, lucky landlords in this situation should wait and see what develops. If an applicant offers a deal-sweetener, then fine, but understand that you’re still taking a risk. A disappointed applicant may claim later that you initiated the war. It’s smarter to figure out the temperature of the market before you set the rent, and choose your tenant on the basis of who’s the best applicant, not who can offer the best goodies.
NOLO: Janet, is it really true, or is it just an urban myth, that a landlord can deny an apartment to someone simply because they’re an attorney?
JANET PORTMAN: If you live in California, then you may have a problem, since a judge might view being a lawyer as a personal characteristic or trait, and in California, you can’t discriminate on the basis of a personal characteristic. I’m not aware of any legal decisions that have followed that line, but I do recall a similar situation out of San Diego several years ago, where a condo association had a rule that an owner couldn’t sell to a lawyer. A selling owner challenged the rule, and I believe they settled it. Other states don’t forbid personal characteristic discrimination, so a “no lawyers need apply” rule might work outside of California. But there’s one thing to keep in mind: a person may be a lawyer, but could also be old, of a certain ethnicity, national origin, race, religion, be disabled, have a family… all of these characteristics are protected by fair housing laws. If the lawyer you reject happens to be a member of one of these groups – and these are big groups – you’ll get challenged for discriminating on one of these bases.
NOLO: Janet, it seems like we’ve come a long way since the landlord was actually the “lord of the land.” In viewing your book, so much of what a landlord says and does is regulated by the government. I doubt this was the case when Benjamin Franklin and Thomas Jefferson were renting property. So how did it come to be that the government could have so much control over how you screen and choose tenants?
JANET PORTMAN: The answer to your question is in how the term “landlord” has morphed into “residential rental owner,” which is what landlords like to call themselves these days. Back before Ben’s day, there were no city-dwelling tenants; all tenants were tenant farmers, who rented land from the local lord, who owned it, hence “landlord.” The lord didn’t warrant that anything worked, or was up to code, and certainly didn’t promise to fix anything; his tenant farmer was far handier. With the industrial revolution, people began moving to the cities, and gradually began renting homes without land. Fast-forward to 1971 in Washington, DC, where a group of tenants refused to pay rent because nothing worked, it wasn’t up to code, and the landlord wouldn’t fix it. Same complaint, but they won, having turned the tables 180 degrees. Courts and legislators had begun to realize that the handy tenant farmer was now the hapless office worker, who didn’t know a screwdriver from a chisel, and that the owner was in a better position to take care of the structure. Once the courts acknowledged that decent housing was a basic necessity, it was a short hop to requiring landlords to offer it, and another short hop to forbidding them from denying housing for any reason other than a solid business reason. In other words, they couldn’t discriminate based on racial and other stereotypes.
Sunday, July 30, 2006
Sunday, July 23, 2006
Do You Need a Lawyer?
Thirty-five years ago, Jake Warner and Ed Sherman kick-started the legal self-help movement by publishing Nolo’s first do-it-yourself legal guides. This week, we’re speaking with Jake Warner, one of the founders of Nolo, and the author of several books, including “Everybody’s Guide to Small Claims Court.” Today, we’re going to talk about a question that’s directly related to Nolo’s mission: when do you need a lawyer, and when can you handle something yourself?
NOLO: Jake, last year Americans paid their lawyers over fifty billion dollars for personal legal services. Are we paying too much for legal services?
JAKE WARNER: Absolutely. We’re paying $300 an hour on average, for a lot of services that are probably worth $50 or $100 per hour, and one of the reasons is that lawyers have a cartel, which basically says that lawyers own the law. They don’t just own some of the law, or a little bit of the law, they own all the law, so even if you have the simplest kind of procedure, something that is way simpler than doing your own income tax, not much harder than filling out a driver’s license application, for example, doing a name change. 99.5% of the name changes are approved; it’s filling out a few pieces of paper, taking it to a court clerk, and in a few states you have to go before the judge… that is going to be charged at $300 an hour, the same as if you are handling a complicated business transaction, or doing a criminal defense matter, or all sorts of other things where maybe lawyers are worth more. The truth is, by simplification, by making forms available at clerks’ offices, by providing some reasonable help, by a lot more electronics, we ought to be able to do a lot of these things on a versa teller-like approach, or a bank ATM-like approach, I guess I should say. Yeah, we’re paying way too much.
NOLO: Nolo is definitely not anti-lawyer.
JAKE WARNER: Well, Nolo was never anti-lawyer; lawyers were anti-Nolo.
NOLO: When we talk about non-lawyers representing themselves, there’s the viewpoint of the public, and the viewpoint of the legal profession. You were around when the legal self-help movement started in the early seventies; have the viewpoints of the public and the legal profession changed?
JAKE WARNER: Yeah, no question, and we’ve made a lot of progress. When we started Nolo in 1971, the attitude really was, lawyers own the law, they own every bit of the law, and no one else can do it, so there were absolutely no forms available for the simplest kind of procedure. Court rooms were very hostile; if you went into a court clerk’s office and asked the simplest question, “How do I fill out line one on this form?” they’d say, “That’s practicing law without a license; I’m sorry, you have to go get a lawyer.” So, we have come a long way in the sense of the legal profession, the consumer movement, a whole lot of forces in society have opened up the system to quite an extent, so it’s a lot easier now for a non-lawyer to do simple legal procedures. Does that mean it’s as easy as it should be? No, we’ve maybe gone halfway in the more progressive states, and not that far in the others, but I think we’re on the right track, and so, Nolo is now much more working with people to solve problems. Sometimes that involves lawyers, sometimes it doesn’t, you can do an all-self-help approach in one area, you need a little legal advice in others, and hey, if you’re charged with murder-one, you probably ought to turn the whole thing over to a lawyer; it’s a continuum.
NOLO: One issue that’s addressed in Everybody’s Guide to Small Claims Court is, “how do I know if my case is any good?” The book makes the point that unfair is not necessarily illegal, and because that’s the case, regardless of whether you’re in small claims court or superior court, isn’t a lawyer always going to be better-suited to decide whether you should proceed with the legal claim?
JAKE WARNER: Not necessarily; you’ve got to think about what a lawyer’s motivation is, and the main motivation is to pay the rent, to pay the secretary, to support his or her nice house in the suburbs and whatnot, so a lawyer’s going to look at your claim as primarily as, “Is there some money in it for me, as the lawyer?” But so many claims, where you feel like something was unfair or wrong, might involve twenty or thirty thousand bucks, say you are doing a kitchen repair or kitchen remodel and the contractor screws up – you’re out $20,000; it’s a real deal. You go to the average lawyer in America, and they’re going to say, “Wait a minute, this guy’s going to fight back, we have to go to court, this is going to involve depositions, this is going to involve a trial… there’s no way this is economic.” You might say, “Hey, if I pursue this on my own, I’m not paying a third or half of the money to a lawyer; I can handle this.” So, there are definitely times where checking your conclusions with somebody that knows more than you do and is experienced in the legal system makes sense, but it’s a false dichotomy to say, “Okay, we have all self-help over here, I just have to make up my own mind without any legal advice, or I’m going to turn the whole thing over to a lawyer.” There’s nothing to stop you from, say, calling up a lawyer in the phonebook and saying, “Hey, I want a consultation, half an hour; I’ll pay you $150, and just tell me what you think.”
NOLO: What about the conventional wisdom, that a demand letter on an attorney’s letterhead is more likely to get results than a demand letter from a non-lawyer?
JAKE WARNER: Right, okay, so you’ve got a conflict with somebody else; the question is, should you go get a lawyer and try to do the nuclear option, or should you choose some other option, and the answer, of course, is that it depends on the circumstances, and in many, many circumstances, what the lawyer will do, the lawyer’s letter, the lawyer’s phone call, will escalate the dispute. You get two people who have separated, they’re in a divorce thing, they’ve got a little kid, they’re on their way to working it out, they’ve had a couple of conversations, one person gets mad and runs to a lawyer… what’s the other person going to do? They’re going to run to another lawyer, and the lawyers will now spend two years and $50,000 or $100,000 arguing over something that the people are going to end up settling themselves, and the same kind of thing is true with a neighbor, with a small business in your community and whatnot; there are many other approaches. For example, community mediation is available in many, many areas of the United States, where you sit down, and you talk about it; it’s almost free – in some cases it is free – and you don’t pull the nuclear option, but hey, you’re a small businessperson, you’re on one side of the country, you’ve established your trademark, you’ve got your little business going, and some bigger company on the other side of the country suddenly grabs your name and isn’t going to let go of it, well, yeah, probably writing a letter on your own stationary isn’t going to be as effective as going out and hiring a lawyer with a good reputation in the intellectual property law area. So, again, it’s all over the place in terms of what the best way to approach stuff is, but running off to a lawyer every time you get mad at somebody is rarely the best option.
NOLO: One thing that’s often overlooked by non-lawyers who pursue legal claims is that winning a court case doesn’t guarantee you can collect; all you get when you win is a piece of paper that says you’re the winner. So, can laypeople collect judgments with the same efficiency as an attorney?
JAKE WARNER: Yeah, you know, I think it’s the wrong way to think about it; like, if you have a small claims case for example, and you’re considering whether to go ahead with it, you really have to ask that question before you file the lawsuit in the first place, whether it’s a lawyer, or it’s you, because most judgments are pretty easy to collect; if you sue a business, hey, the business is there – if they won’t pay, you can go take the money out of the cash register, send the sheriff over, he’ll take it out of the cash register, and he’ll charge the business. If you’re suing an individual, you can garnishee their wages. So, most people have assets, and collecting is no big deal, whether you’re an attorney or you’re not an attorney. The kind of people, especially, say, in a small claims venue, where you’ve got an unlicensed contractor who does his whole bank account out of his back pocket in twenty-dollar bills; that kind of person is going to prove almost impossible for anyone to collect from, and the lawyer is not going to be one bit easier; in fact, the lawyer, who values his time at $300 an hour, is going to say, “Turn it over to the collection agency,” and the collection agency, if they don’t find it easy to collect, will just give up, so no, I think in most circumstances, you’re really using your intelligence in advance.
NOLO: Don’t non-lawyers, because it’s their case, lack that non-emotional perspective that’s necessary to convince a judge or jury?
JAKE WARNER: Go down to a small claims court almost any day, in any place in America, and you will see people standing on their own two feet presenting their cases so unbelievably more convincingly than any lawyer would ever present it, because they know they’re right, and they believe in it. Now, does that mean you have to be confident to succeed if you just get up there and blabber on and on and call the other guy a dirty rat and whatnot, are you going to win? No. So, yes, you need a little knowledge of how to proceed, that’s part of it, but you can learn that. In some cases, getting a little coaching from a lawyer may help, and yes, it’s true that in some situations where you are so seeing red that you can’t think straight, getting someone to help you might make sense, but this whole, you know, lawyers invented this Madison avenue advertising campaign about eighty or 100 years ago, that somebody who represents themselves has a fool for a client, and they’ve sold that to America. Well, why have the sold that to America? Because they’re selling their services at $300 an hour, just like accountants aren’t real happy with you going and buying turbo-tax and doing it yourself.
NOLO: Is choosing a lawyer always going to be an either-or situation, or are there new paradigms for working with lawyers?
JAKE WARNER: You know, when I started all of this, getting involved with law and self-help and whatnot thirty-five years ago, almost every state had a ruling that if a lawyer represented you any kind of way involving a certain kind of legal case or dispute, they had to represent you in the whole dispute, otherwise, ethically, they couldn’t take the case. Well, part of that, we’ll leave aside whether that was part of the lawyer cartel’s political paradigm, but that’s the situation you face. Lawyers have come to realize that the average consumer just can’t afford $300 an hour, especially to do a lot of ministerial things, like fill out forms and drive to the courthouse and whatnot, so what we’ve got is a new movement called “unbundling,” lawyers call it unbundling, which is just great; they can never come up with plain English, even for something as simple as saying that the lawyer can help you with part of the case, and you can do part of the case yourself, which is what unbundling means. So now, in most states, in most jurisdictions, there are lawyers, and some of them will advertise because now we have lawyer advertising, “Hey, we’ll help you help yourself,” and if you’re in a situation where, say, your mom dies, you’ve got to push an estate through probate, it’s filling out a lot of forms, it’s not contested, it’s not going to go to court, it’s just a lot of work, and this thing has to go before this thing has to go before this thing, you can get a lot help from the court clerk these days where you didn’t used to, but you may want to, at some point, go to a lawyer, review what’s going on, maybe even have them handle a tricky part of it, but do 80% of it yourself. Hey, that way, maybe you spend $500, instead of $5,000, so yes, you can do that these days.
NOLO: Jake, last year Americans paid their lawyers over fifty billion dollars for personal legal services. Are we paying too much for legal services?
JAKE WARNER: Absolutely. We’re paying $300 an hour on average, for a lot of services that are probably worth $50 or $100 per hour, and one of the reasons is that lawyers have a cartel, which basically says that lawyers own the law. They don’t just own some of the law, or a little bit of the law, they own all the law, so even if you have the simplest kind of procedure, something that is way simpler than doing your own income tax, not much harder than filling out a driver’s license application, for example, doing a name change. 99.5% of the name changes are approved; it’s filling out a few pieces of paper, taking it to a court clerk, and in a few states you have to go before the judge… that is going to be charged at $300 an hour, the same as if you are handling a complicated business transaction, or doing a criminal defense matter, or all sorts of other things where maybe lawyers are worth more. The truth is, by simplification, by making forms available at clerks’ offices, by providing some reasonable help, by a lot more electronics, we ought to be able to do a lot of these things on a versa teller-like approach, or a bank ATM-like approach, I guess I should say. Yeah, we’re paying way too much.
NOLO: Nolo is definitely not anti-lawyer.
JAKE WARNER: Well, Nolo was never anti-lawyer; lawyers were anti-Nolo.
NOLO: When we talk about non-lawyers representing themselves, there’s the viewpoint of the public, and the viewpoint of the legal profession. You were around when the legal self-help movement started in the early seventies; have the viewpoints of the public and the legal profession changed?
JAKE WARNER: Yeah, no question, and we’ve made a lot of progress. When we started Nolo in 1971, the attitude really was, lawyers own the law, they own every bit of the law, and no one else can do it, so there were absolutely no forms available for the simplest kind of procedure. Court rooms were very hostile; if you went into a court clerk’s office and asked the simplest question, “How do I fill out line one on this form?” they’d say, “That’s practicing law without a license; I’m sorry, you have to go get a lawyer.” So, we have come a long way in the sense of the legal profession, the consumer movement, a whole lot of forces in society have opened up the system to quite an extent, so it’s a lot easier now for a non-lawyer to do simple legal procedures. Does that mean it’s as easy as it should be? No, we’ve maybe gone halfway in the more progressive states, and not that far in the others, but I think we’re on the right track, and so, Nolo is now much more working with people to solve problems. Sometimes that involves lawyers, sometimes it doesn’t, you can do an all-self-help approach in one area, you need a little legal advice in others, and hey, if you’re charged with murder-one, you probably ought to turn the whole thing over to a lawyer; it’s a continuum.
NOLO: One issue that’s addressed in Everybody’s Guide to Small Claims Court is, “how do I know if my case is any good?” The book makes the point that unfair is not necessarily illegal, and because that’s the case, regardless of whether you’re in small claims court or superior court, isn’t a lawyer always going to be better-suited to decide whether you should proceed with the legal claim?
JAKE WARNER: Not necessarily; you’ve got to think about what a lawyer’s motivation is, and the main motivation is to pay the rent, to pay the secretary, to support his or her nice house in the suburbs and whatnot, so a lawyer’s going to look at your claim as primarily as, “Is there some money in it for me, as the lawyer?” But so many claims, where you feel like something was unfair or wrong, might involve twenty or thirty thousand bucks, say you are doing a kitchen repair or kitchen remodel and the contractor screws up – you’re out $20,000; it’s a real deal. You go to the average lawyer in America, and they’re going to say, “Wait a minute, this guy’s going to fight back, we have to go to court, this is going to involve depositions, this is going to involve a trial… there’s no way this is economic.” You might say, “Hey, if I pursue this on my own, I’m not paying a third or half of the money to a lawyer; I can handle this.” So, there are definitely times where checking your conclusions with somebody that knows more than you do and is experienced in the legal system makes sense, but it’s a false dichotomy to say, “Okay, we have all self-help over here, I just have to make up my own mind without any legal advice, or I’m going to turn the whole thing over to a lawyer.” There’s nothing to stop you from, say, calling up a lawyer in the phonebook and saying, “Hey, I want a consultation, half an hour; I’ll pay you $150, and just tell me what you think.”
NOLO: What about the conventional wisdom, that a demand letter on an attorney’s letterhead is more likely to get results than a demand letter from a non-lawyer?
JAKE WARNER: Right, okay, so you’ve got a conflict with somebody else; the question is, should you go get a lawyer and try to do the nuclear option, or should you choose some other option, and the answer, of course, is that it depends on the circumstances, and in many, many circumstances, what the lawyer will do, the lawyer’s letter, the lawyer’s phone call, will escalate the dispute. You get two people who have separated, they’re in a divorce thing, they’ve got a little kid, they’re on their way to working it out, they’ve had a couple of conversations, one person gets mad and runs to a lawyer… what’s the other person going to do? They’re going to run to another lawyer, and the lawyers will now spend two years and $50,000 or $100,000 arguing over something that the people are going to end up settling themselves, and the same kind of thing is true with a neighbor, with a small business in your community and whatnot; there are many other approaches. For example, community mediation is available in many, many areas of the United States, where you sit down, and you talk about it; it’s almost free – in some cases it is free – and you don’t pull the nuclear option, but hey, you’re a small businessperson, you’re on one side of the country, you’ve established your trademark, you’ve got your little business going, and some bigger company on the other side of the country suddenly grabs your name and isn’t going to let go of it, well, yeah, probably writing a letter on your own stationary isn’t going to be as effective as going out and hiring a lawyer with a good reputation in the intellectual property law area. So, again, it’s all over the place in terms of what the best way to approach stuff is, but running off to a lawyer every time you get mad at somebody is rarely the best option.
NOLO: One thing that’s often overlooked by non-lawyers who pursue legal claims is that winning a court case doesn’t guarantee you can collect; all you get when you win is a piece of paper that says you’re the winner. So, can laypeople collect judgments with the same efficiency as an attorney?
JAKE WARNER: Yeah, you know, I think it’s the wrong way to think about it; like, if you have a small claims case for example, and you’re considering whether to go ahead with it, you really have to ask that question before you file the lawsuit in the first place, whether it’s a lawyer, or it’s you, because most judgments are pretty easy to collect; if you sue a business, hey, the business is there – if they won’t pay, you can go take the money out of the cash register, send the sheriff over, he’ll take it out of the cash register, and he’ll charge the business. If you’re suing an individual, you can garnishee their wages. So, most people have assets, and collecting is no big deal, whether you’re an attorney or you’re not an attorney. The kind of people, especially, say, in a small claims venue, where you’ve got an unlicensed contractor who does his whole bank account out of his back pocket in twenty-dollar bills; that kind of person is going to prove almost impossible for anyone to collect from, and the lawyer is not going to be one bit easier; in fact, the lawyer, who values his time at $300 an hour, is going to say, “Turn it over to the collection agency,” and the collection agency, if they don’t find it easy to collect, will just give up, so no, I think in most circumstances, you’re really using your intelligence in advance.
NOLO: Don’t non-lawyers, because it’s their case, lack that non-emotional perspective that’s necessary to convince a judge or jury?
JAKE WARNER: Go down to a small claims court almost any day, in any place in America, and you will see people standing on their own two feet presenting their cases so unbelievably more convincingly than any lawyer would ever present it, because they know they’re right, and they believe in it. Now, does that mean you have to be confident to succeed if you just get up there and blabber on and on and call the other guy a dirty rat and whatnot, are you going to win? No. So, yes, you need a little knowledge of how to proceed, that’s part of it, but you can learn that. In some cases, getting a little coaching from a lawyer may help, and yes, it’s true that in some situations where you are so seeing red that you can’t think straight, getting someone to help you might make sense, but this whole, you know, lawyers invented this Madison avenue advertising campaign about eighty or 100 years ago, that somebody who represents themselves has a fool for a client, and they’ve sold that to America. Well, why have the sold that to America? Because they’re selling their services at $300 an hour, just like accountants aren’t real happy with you going and buying turbo-tax and doing it yourself.
NOLO: Is choosing a lawyer always going to be an either-or situation, or are there new paradigms for working with lawyers?
JAKE WARNER: You know, when I started all of this, getting involved with law and self-help and whatnot thirty-five years ago, almost every state had a ruling that if a lawyer represented you any kind of way involving a certain kind of legal case or dispute, they had to represent you in the whole dispute, otherwise, ethically, they couldn’t take the case. Well, part of that, we’ll leave aside whether that was part of the lawyer cartel’s political paradigm, but that’s the situation you face. Lawyers have come to realize that the average consumer just can’t afford $300 an hour, especially to do a lot of ministerial things, like fill out forms and drive to the courthouse and whatnot, so what we’ve got is a new movement called “unbundling,” lawyers call it unbundling, which is just great; they can never come up with plain English, even for something as simple as saying that the lawyer can help you with part of the case, and you can do part of the case yourself, which is what unbundling means. So now, in most states, in most jurisdictions, there are lawyers, and some of them will advertise because now we have lawyer advertising, “Hey, we’ll help you help yourself,” and if you’re in a situation where, say, your mom dies, you’ve got to push an estate through probate, it’s filling out a lot of forms, it’s not contested, it’s not going to go to court, it’s just a lot of work, and this thing has to go before this thing has to go before this thing, you can get a lot help from the court clerk these days where you didn’t used to, but you may want to, at some point, go to a lawyer, review what’s going on, maybe even have them handle a tricky part of it, but do 80% of it yourself. Hey, that way, maybe you spend $500, instead of $5,000, so yes, you can do that these days.
Sunday, July 16, 2006
What is Collaborative Divorce?
We’re speaking with attorney Katherine E. Stoner, whose legal practice focuses primarily on family law and mediation. We’re talking to her about her new book, “Divorce without Court: A Guide to Mediation and Collaborative Divorce.”
NOLO: Let’s start with the basics: what is collaborative divorce, and what’s the difference between it and divorce mediation?
KATHERINE E. STONER: Well, both are ways for divorcing couples to settle without a courtroom fight. In mediation, the spouses work with a neutral person who helps them make decisions together; they may or may not have lawyers actively participating or consulting with them. In collaboration, the divorcing spouses hire lawyers to work with them and meet with them in what’s called “four-way meetings,” and everyone works together towards a settlement. They may also hire other professionals – therapists, financial experts – to help them, but they do everything collaboratively and cooperatively, and they sign an agreement that the lawyers and the other professionals have to withdraw if they don’t reach an agreement.
NOLO: Okay, the idea of divorce and collaboration seems almost like an oxymoron, so how can a couple that’s fallen out of romance, that commonly are very angry or bitter with each other, be expected to collaborate on a divorce?
KATHERINE E. STONER: Yeah, that’s a good question. Actually there are lots of reasons why they might mediate or collaborate. One, and one that’s sort of a primary concern to people when they come in, is that it will save them quite a bit of money. There are statistics that show that the average contested courtroom divorce will cost $50,000 or more, if you’re in a major urban area, and collaborative divorce, even with two attorneys involved every step of the way, is going to be considerably less than that, and mediation where the lawyers may interface even less will be of course even less expensive than that.
NOLO: There’s another element to this of course, and that’s the attorneys, and if you’ve seen the film Intolerable Cruelty, the tag line there was, “engage the enemy,” which is really the common view of divorce lawyers, sort of ruthless adversarial individuals who place their clients’ interests above everything else, so what’s the response been from the family bar to this sort of idea? Have they been open to it, or…?
KATHERINE E. STONER: Yeah, in fact, I think the ruthless litigator is really the exception rather than the rule. In my experience, most lawyers who do family law all the time see the damage that’s done to people financially and emotionally, and to their children, and really want to do something different, and so the response of the bar has actually been pretty tremendous, and I think that’s one reason why mediation and collaborative is kind of taking off these days.
NOLO: You said something interesting in the book that I liked; you said that couples who are divorcing don’t need alternative dispute resolution, because they don’t have a dispute, and I think most of us think, “Well, gee, is that correct? A divorcing couple seems to have so many disputes,” so could you just explain and give us a background on how you came to that conclusion?
KATHERINE E. STONER: Yeah, some people are able to make all the decisions that have to be made themselves. Maybe they do it at the kitchen table, maybe they do it over a period of time, but they don’t really need help in making decisions. They may need help in the paperwork of getting divorced, because they’re not going to be experts. Other people need some help with not only the paperwork but with making the decisions, and that’s where a mediator or collaborative lawyers would come in.
NOLO: Okay, and you also maintain in your book that there are four divorces, not one, which I thought was really, really interesting. Would you just explain a little for the people who are listening what the four divorces are?
KATHERINE E. STONER: Yeah, when you think about divorce, of course the first thing people think of is the legal divorce. Turns out that the legal divorce is potentially the simplest part of the whole thing – if people reach an agreement, and sign an agreement, and all they have to do is a certain amount of paperwork, it’s a very simple and not very expensive process. The real complication comes from the other things that are going on with the people who are divorcing. What I call the emotional divorce is really a grieving for the marriage, for the relationship, and all the experts say that everybody has to go through it. Usually the spouses go through this at different timing, so you might have one person who’s much further along than the other person, so there can be fights and problems just presented by the fact that one person’s all the way through their grief process; they’ve accepted the decision and they’re ready to move on, and sort of like, “What’s the matter with you?” and the other person’s back at square one. So, that can complicate things, because it actually ends up feeling that somebody’s getting dragged along, and they’re going to be resistant. That’s one divorce. In addition to the emotional divorce, there’s the financial divorce. There are lots of hard decisions that have to be made by people when they divorce. They’re taking one economic unit, they’re dividing it into two; chances are, they’re going to have to spread the same income over a much bigger overhead, and there’s the question of just how much paying are they going to share, and how are they going to do that. So, that’s the financial divorce, and those decisions have to be made, too, and people can end up fighting about those whether or not they’re in the legal arena. The final divorce is what I call the social divorce, which is just the realignment of all the relationships that people have. When you’re in a family together, you have family friends, you have extended family on both sides often, you have community acquaintances and networks, kids have friends, and all of that gets ruptured and has to be kind of realigned and recreated, and that times some time, so if people can get all those, the emotional divorce, the financial divorce, and the social divorce kind of lined up, the legal divorce is simple. What usually happens when there’s a big, hard-fought litigation, those other things have not been taken care of, and people are going into court with all that other stuff still to be resolved.
NOLO: So, does collaborative divorce work towards resolving all four, or…?
KATHERINE E. STONER: I think that collaborative divorce and mediation allows for more room to consider all those other things; I mean, the law is the law, so if you’re in a courtroom, a lot of things about what’s going on with people emotionally – not so much financially but emotionally and socially – are really irrelevant from a legal perspective, so in a collaborative divorce, the lawyers are trained to actually be looking for these other things. Similarly, a mediator is going to be trained to be helping people look at those other things and attend to them, and do so in a timing that works for both people and not just for one of them.
NOLO: The person who’s in the situation where they need to find a collaborative divorce attorney… how do they go about doing it? It might be a difficult task for someone to find one in let’s say a rural area.
KATHERINE E. STONER: Right. Well, actually, there’s some rural areas where there’s been a lot of interest in collaborative. There’s a place called Medicine Hat I think, up in British Columbia where just about all the lawyers signed onto this collaborative idea, and so it’s really well-established there. It’s coming in a lot of places; it’s not everywhere yet, and one of the first things I would recommend to people to do is to go online if they can, and do a search for “collaborative law,” or “collaborative divorce,” or something like that. They’ll find collaborative groups of lawyers and professionals who have actually gotten together and sort of made sure that everybody’s conforming to some standards and that sort of thing. With mediators, it’s the same thing; if you look online, that helps, and you can also ask for referrals. Chances are there’s somebody around who’s had a good experience with one or the other who can point you in the right direction and say, “This person would be good,” or at least a person to talk to and get some names or referrals.
NOLO: Now, you also say that collaborative divorce isn’t for every divorcing couple, and one way you try to help people determine whether they’re right for it is you created a survey. Where’d you get those questions, and how did you come up with that idea?
KATHERINE E. STONER: This was really something that came from my own practice, from my research, and from talking to other mediators and family lawyers, just looking at the people who seemed to succeed in the hallmarks, or the cases that seemed to do well in mediation or in collaboration, versus the ones that it’s really pretty obvious that it’s not for them, and so the idea is really to help people kind of take an honest look at their own situation and assess how ready they are for something like that, and if they want to try it, and maybe they’ve got some areas where they’d scored low on this little test; it’s not scientific or anything, but it might give them a chance to get more ready. Now, there’s some obvious times when people shouldn’t be mediating or collaborating. One is if there’s domestic violence, if it hasn’t been resolved, and nobody’s getting any help for it and it’s not sort of in the past, those people shouldn’t be in a face-to-face situation, even with collaborative lawyers. I think that’s a situation where there needs to be a little more protection. Another situation that can be hard is if there’s drug or alcohol abuse on the part of one or both spouses and that hasn’t been dealt with and people aren’t in recovery, and dealing with that. So, there’s sometimes when it’s just not the right thing, but generally, people will know for themselves.
NOLO: Well, you say it’s not the right thing sometimes if it’s not mutual; is that correct?
KATHERINE E. STONER: There is one question I think about whether the decision to divorce was mutual, and, you know, usually there’s one person who decides; there’s one person who sort of initiates the whole thing. Sometimes people both come to the same conclusion at the same time, but a lot of times they don’t. But you could still mediate or collaborate as long as both people have accepted the reality that they’re going to get divorced. But occasionally you have someone who just doesn’t accept it and doesn’t want it, and even if they think they can mediate, the truth is, they’re going to undermine it, because the whole point of the mediation or collaboration is to reach an agreement that will be the operating guidelines for your post-marriage life, and if you can’t get to that point emotionally, then you’re not ready to collaborate or mediate.
NOLO: The last question I have for you is, what happens if you’re in that collaborative situation, and one of the participants falls back on the legal side of things, like, “Well, gee, under the law, I would be entitled to such-and-such.” How do you deal with that, because you’re really trying to step away from that in a way?
KATHERINE E. STONER: Well, it’s perfectly fine to look at what the law provides; in fact, I think it’s important that people know that, and that you have conversations about, “This is what might happen in court, if you weren’t here,” because that is the alternative that people have to reaching an agreement, and you can’t have a yes if you don’t have a no, so people need to know what the alternative looks like, including the cost of getting there. But if people want to reach an agreement and have the case be uncontested, they’re going to have to consider more than the law. So, it’s all very well to say, “I’m entitled to X,” or “I’m entitled to Y or Z,” it’s still going to mean that you’re going to have to convince the other person that they should agree that you get that, and that you give them something in exchange in order for it to work.
NOLO: Let’s start with the basics: what is collaborative divorce, and what’s the difference between it and divorce mediation?
KATHERINE E. STONER: Well, both are ways for divorcing couples to settle without a courtroom fight. In mediation, the spouses work with a neutral person who helps them make decisions together; they may or may not have lawyers actively participating or consulting with them. In collaboration, the divorcing spouses hire lawyers to work with them and meet with them in what’s called “four-way meetings,” and everyone works together towards a settlement. They may also hire other professionals – therapists, financial experts – to help them, but they do everything collaboratively and cooperatively, and they sign an agreement that the lawyers and the other professionals have to withdraw if they don’t reach an agreement.
NOLO: Okay, the idea of divorce and collaboration seems almost like an oxymoron, so how can a couple that’s fallen out of romance, that commonly are very angry or bitter with each other, be expected to collaborate on a divorce?
KATHERINE E. STONER: Yeah, that’s a good question. Actually there are lots of reasons why they might mediate or collaborate. One, and one that’s sort of a primary concern to people when they come in, is that it will save them quite a bit of money. There are statistics that show that the average contested courtroom divorce will cost $50,000 or more, if you’re in a major urban area, and collaborative divorce, even with two attorneys involved every step of the way, is going to be considerably less than that, and mediation where the lawyers may interface even less will be of course even less expensive than that.
NOLO: There’s another element to this of course, and that’s the attorneys, and if you’ve seen the film Intolerable Cruelty, the tag line there was, “engage the enemy,” which is really the common view of divorce lawyers, sort of ruthless adversarial individuals who place their clients’ interests above everything else, so what’s the response been from the family bar to this sort of idea? Have they been open to it, or…?
KATHERINE E. STONER: Yeah, in fact, I think the ruthless litigator is really the exception rather than the rule. In my experience, most lawyers who do family law all the time see the damage that’s done to people financially and emotionally, and to their children, and really want to do something different, and so the response of the bar has actually been pretty tremendous, and I think that’s one reason why mediation and collaborative is kind of taking off these days.
NOLO: You said something interesting in the book that I liked; you said that couples who are divorcing don’t need alternative dispute resolution, because they don’t have a dispute, and I think most of us think, “Well, gee, is that correct? A divorcing couple seems to have so many disputes,” so could you just explain and give us a background on how you came to that conclusion?
KATHERINE E. STONER: Yeah, some people are able to make all the decisions that have to be made themselves. Maybe they do it at the kitchen table, maybe they do it over a period of time, but they don’t really need help in making decisions. They may need help in the paperwork of getting divorced, because they’re not going to be experts. Other people need some help with not only the paperwork but with making the decisions, and that’s where a mediator or collaborative lawyers would come in.
NOLO: Okay, and you also maintain in your book that there are four divorces, not one, which I thought was really, really interesting. Would you just explain a little for the people who are listening what the four divorces are?
KATHERINE E. STONER: Yeah, when you think about divorce, of course the first thing people think of is the legal divorce. Turns out that the legal divorce is potentially the simplest part of the whole thing – if people reach an agreement, and sign an agreement, and all they have to do is a certain amount of paperwork, it’s a very simple and not very expensive process. The real complication comes from the other things that are going on with the people who are divorcing. What I call the emotional divorce is really a grieving for the marriage, for the relationship, and all the experts say that everybody has to go through it. Usually the spouses go through this at different timing, so you might have one person who’s much further along than the other person, so there can be fights and problems just presented by the fact that one person’s all the way through their grief process; they’ve accepted the decision and they’re ready to move on, and sort of like, “What’s the matter with you?” and the other person’s back at square one. So, that can complicate things, because it actually ends up feeling that somebody’s getting dragged along, and they’re going to be resistant. That’s one divorce. In addition to the emotional divorce, there’s the financial divorce. There are lots of hard decisions that have to be made by people when they divorce. They’re taking one economic unit, they’re dividing it into two; chances are, they’re going to have to spread the same income over a much bigger overhead, and there’s the question of just how much paying are they going to share, and how are they going to do that. So, that’s the financial divorce, and those decisions have to be made, too, and people can end up fighting about those whether or not they’re in the legal arena. The final divorce is what I call the social divorce, which is just the realignment of all the relationships that people have. When you’re in a family together, you have family friends, you have extended family on both sides often, you have community acquaintances and networks, kids have friends, and all of that gets ruptured and has to be kind of realigned and recreated, and that times some time, so if people can get all those, the emotional divorce, the financial divorce, and the social divorce kind of lined up, the legal divorce is simple. What usually happens when there’s a big, hard-fought litigation, those other things have not been taken care of, and people are going into court with all that other stuff still to be resolved.
NOLO: So, does collaborative divorce work towards resolving all four, or…?
KATHERINE E. STONER: I think that collaborative divorce and mediation allows for more room to consider all those other things; I mean, the law is the law, so if you’re in a courtroom, a lot of things about what’s going on with people emotionally – not so much financially but emotionally and socially – are really irrelevant from a legal perspective, so in a collaborative divorce, the lawyers are trained to actually be looking for these other things. Similarly, a mediator is going to be trained to be helping people look at those other things and attend to them, and do so in a timing that works for both people and not just for one of them.
NOLO: The person who’s in the situation where they need to find a collaborative divorce attorney… how do they go about doing it? It might be a difficult task for someone to find one in let’s say a rural area.
KATHERINE E. STONER: Right. Well, actually, there’s some rural areas where there’s been a lot of interest in collaborative. There’s a place called Medicine Hat I think, up in British Columbia where just about all the lawyers signed onto this collaborative idea, and so it’s really well-established there. It’s coming in a lot of places; it’s not everywhere yet, and one of the first things I would recommend to people to do is to go online if they can, and do a search for “collaborative law,” or “collaborative divorce,” or something like that. They’ll find collaborative groups of lawyers and professionals who have actually gotten together and sort of made sure that everybody’s conforming to some standards and that sort of thing. With mediators, it’s the same thing; if you look online, that helps, and you can also ask for referrals. Chances are there’s somebody around who’s had a good experience with one or the other who can point you in the right direction and say, “This person would be good,” or at least a person to talk to and get some names or referrals.
NOLO: Now, you also say that collaborative divorce isn’t for every divorcing couple, and one way you try to help people determine whether they’re right for it is you created a survey. Where’d you get those questions, and how did you come up with that idea?
KATHERINE E. STONER: This was really something that came from my own practice, from my research, and from talking to other mediators and family lawyers, just looking at the people who seemed to succeed in the hallmarks, or the cases that seemed to do well in mediation or in collaboration, versus the ones that it’s really pretty obvious that it’s not for them, and so the idea is really to help people kind of take an honest look at their own situation and assess how ready they are for something like that, and if they want to try it, and maybe they’ve got some areas where they’d scored low on this little test; it’s not scientific or anything, but it might give them a chance to get more ready. Now, there’s some obvious times when people shouldn’t be mediating or collaborating. One is if there’s domestic violence, if it hasn’t been resolved, and nobody’s getting any help for it and it’s not sort of in the past, those people shouldn’t be in a face-to-face situation, even with collaborative lawyers. I think that’s a situation where there needs to be a little more protection. Another situation that can be hard is if there’s drug or alcohol abuse on the part of one or both spouses and that hasn’t been dealt with and people aren’t in recovery, and dealing with that. So, there’s sometimes when it’s just not the right thing, but generally, people will know for themselves.
NOLO: Well, you say it’s not the right thing sometimes if it’s not mutual; is that correct?
KATHERINE E. STONER: There is one question I think about whether the decision to divorce was mutual, and, you know, usually there’s one person who decides; there’s one person who sort of initiates the whole thing. Sometimes people both come to the same conclusion at the same time, but a lot of times they don’t. But you could still mediate or collaborate as long as both people have accepted the reality that they’re going to get divorced. But occasionally you have someone who just doesn’t accept it and doesn’t want it, and even if they think they can mediate, the truth is, they’re going to undermine it, because the whole point of the mediation or collaboration is to reach an agreement that will be the operating guidelines for your post-marriage life, and if you can’t get to that point emotionally, then you’re not ready to collaborate or mediate.
NOLO: The last question I have for you is, what happens if you’re in that collaborative situation, and one of the participants falls back on the legal side of things, like, “Well, gee, under the law, I would be entitled to such-and-such.” How do you deal with that, because you’re really trying to step away from that in a way?
KATHERINE E. STONER: Well, it’s perfectly fine to look at what the law provides; in fact, I think it’s important that people know that, and that you have conversations about, “This is what might happen in court, if you weren’t here,” because that is the alternative that people have to reaching an agreement, and you can’t have a yes if you don’t have a no, so people need to know what the alternative looks like, including the cost of getting there. But if people want to reach an agreement and have the case be uncontested, they’re going to have to consider more than the law. So, it’s all very well to say, “I’m entitled to X,” or “I’m entitled to Y or Z,” it’s still going to mean that you’re going to have to convince the other person that they should agree that you get that, and that you give them something in exchange in order for it to work.
Sunday, July 9, 2006
Can You Patent Your Invention? Part Two
We’re speaking with patent attorney David Pressman, the author of the world’s best-selling guide, “Patent it Yourself,” as well as the co-author of other Nolo books, including, “Patent Pending in 24 Hours,” “The Inventor’s Notebook,” “How to Make Patent Drawings,” and “Nolo’s Patent’s for Beginners.” This is the second installment of a two-part interview with David.
NOLO: David, since you can never get a patent just by filing a provisional patent application, what good is a provisional patent application?
DAVID PRESSMAN: Well, you’re exactly right; a provisional patent application doesn’t give you a right to get anything. It’s actually a misnomer, because it’s not an application for anything; it’s really just a way of recording your invention, so that later you can go back to this date when you filed the provisional application, and use that date to antedate references that the patent office cites against you, or you can win an interference if someone invents the same invention and there’s a proceeding in the patent office to determine who was first. Another advantage of the provisional is that you can call your application “patent pending,” but remember – it’s very important to remember – that within a year, after you file the provisional, you have to file a regular patent application, or else the provisional will be lost and discarded forever.
NOLO: A U.S. patent can only be used to stop infringements within the United States, so when is it worthwhile to file for foreign patents?
DAVID PRESSMAN: Foreign patent filing is extremely expensive, because the value of the dollar has gone down, and the foreign patent agents charge quite a bit of money. So, if you have a very valuable invention, and you can afford to pay for it, if someone else is willing to pay for it such as a licensee or someone else who buys a part of your invention, then you can foreign file if your invention has a market overseas – in other words, if your invention has a market in Europe, then you can file in the European patent office, but it costs about six or seven thousand dollars to file there, or in Japan it costs about the same. You can file in Canada for a couple thousand dollars, but in any of these countries there are ongoing substantial expenses, so you have to be prepared for that, and you have to be sure that your invention has enough potential there to make it worthwhile, and you’ll get much more back then you paid in.
NOLO: You hear a lot about business method patents, perhaps the most famous of which is the Amazon one-click patent. What are business method patents, and are they here to stay?
DAVID PRESSMAN: Well, I’ll give you a little bit of history first. The business method was always never patentable in the patent office. Whenever we got a patent application that was even remotely connected to a business method, as an examiner we’ve always rejected as non-statutory because it was always the rule in the patent office that business methods were non-statutory subject matter, but this was challenged by an innovative person, and they got patents on business methods, and now it’s very, very common, and they seem to be hear to stay. Recently I had an application pending on a pure business method that was a way of financing, and the patent office rejected it because it didn’t use technology, it didn’t use a computer, and I had to appeal, and while I was waiting for the appeal to be decided, they changed their mind and there was another decision, and they decided that it doesn’t need to use technology, so any method that is used in business that is novel and unobvious – that’s the key, it has to be novel and unobvious, such as a new way of financing, a new way of advertising, a new way of doing something on the internet can be patentable now, but it has to be novel and unobvious.
NOLO: David, in the U.S., we use a first-to-invent system, but the rest of the world uses a first-to-file patent system. Can you explain the difference, and do you think the U.S. will ever change?
DAVID PRESSMAN: I don’t know whether they’ll change or not; it all depends on the politicians and how much they’re willing to conform the U.S. patent system to the rest of the world. The rest of the world, except the Philippines, all has the first-to-file system, which means that the first person to file a patent application gets the patent, even if the other one invented it first and documented it first. In the U.S., it’s not the first to file; it’s the first to invent, so if someone invented first, and that means they conceived of it first and were diligent in building and testing or filing, or built and tested it first, then they can get the patent even if the other one filed after them, provided that they can prove this. There are many advantages and disadvantages on both sides, and it’s too much to go into now, but I feel that it’s much better for the layperson to have a first-to-file system, because if you do get into an interference at present, you have to hire a trial attorney, and that’s very, very expensive, so it’s better to rely on the first-to-file.
NOLO: Besides your books, are there any sites on the internet that are especially helpful for novice inventors?
DAVID PRESSMAN: Yes, the patent system is changing so much that it’s essential if you use Patent it Yourself to go to my update site, where you can just go to www.patentityourself.com/ and there’s a link to my blog site, which has all the updates, and I apologize because there’s so many, but it’s necessary to keep up-to-date with the law. For general information on patent law, there’s a good site run by a friend of mine, Victor Lavrov, that’s called inventnet.org. Then there’s another site run by another friend of mine, Ron Riley, and it’s called inventored.org. There’s also an Inventor’s Digest site – Inventor’s Digest is the magazine for inventors – that’s called inventorsdigest.com, and lastly there’s another good site run by a guy named Andy Gibbs out of Sacramento, called patentcafe.com, and all of these sites will give you a lot of good general information about patents.
NOLO: What advice would you give to an inventor who’s starting out today?
DAVID PRESSMAN: Okay, the first bit of advice I would give is to evaluate your invention very carefully before spending any money and time on it, and that means to search it and evaluate the commercial potential of it. In chapter four I tell you how to evaluate the commercial potential, all the positives and negatives you should be aware of, and in chapters five and six I tell you how to search it, and don’t proceed with it unless you feel that your invention is commercially viable and patentable, and if it is and you still feel it’s a great idea, then you have to spend a lot of time and effort on it, and preparing a patent application, and promoting it.
NOLO: David, you have many helpful inventor commandments in Patent it Yourself. Do you have one or two favorites you could share with our listeners?
DAVID PRESSMAN: Yes, I think that the heart of the book is how to prepare a patent application, and the most important thing you can do when you do a patent application is to make a full, clear, concise, and complete explanation of the invention and how to make and use it in your patent application, and that’s covered in inventors’ commandment number ten in chapter eight. Also, when you write a patent application, you have to have these little sentence fragments called “claims” in there, and you want the broadest possible claims for your main claims, and that’s covered in inventors’ commandment number twelve, where you make your claims with as few elements as possible, and each element should be recited as broadly as possible.
NOLO: As a patent attorney, you examine and help prepare a lot of applications for inventors. Are there one or two mistakes that are commonly made by inventors when they prepare their patent applications?
DAVID PRESSMAN: Yes, the one mistake that I find most often is that the inventor doesn’t tell clearly how to make and use the invention. You have to sweat the details like a professional does, and don’t be ashamed to detail all the parts of your invention, how they’re connected together, and how they work. They don’t penalize you; take as many pages and use as many drawings as necessary. Another thing that I find is the writing is not clear and communicative, so it’s best when you write it to have someone else review it and make sure they can understand what you’ve written and it’s clear and readable and understandable.
NOLO: David, since you can never get a patent just by filing a provisional patent application, what good is a provisional patent application?
DAVID PRESSMAN: Well, you’re exactly right; a provisional patent application doesn’t give you a right to get anything. It’s actually a misnomer, because it’s not an application for anything; it’s really just a way of recording your invention, so that later you can go back to this date when you filed the provisional application, and use that date to antedate references that the patent office cites against you, or you can win an interference if someone invents the same invention and there’s a proceeding in the patent office to determine who was first. Another advantage of the provisional is that you can call your application “patent pending,” but remember – it’s very important to remember – that within a year, after you file the provisional, you have to file a regular patent application, or else the provisional will be lost and discarded forever.
NOLO: A U.S. patent can only be used to stop infringements within the United States, so when is it worthwhile to file for foreign patents?
DAVID PRESSMAN: Foreign patent filing is extremely expensive, because the value of the dollar has gone down, and the foreign patent agents charge quite a bit of money. So, if you have a very valuable invention, and you can afford to pay for it, if someone else is willing to pay for it such as a licensee or someone else who buys a part of your invention, then you can foreign file if your invention has a market overseas – in other words, if your invention has a market in Europe, then you can file in the European patent office, but it costs about six or seven thousand dollars to file there, or in Japan it costs about the same. You can file in Canada for a couple thousand dollars, but in any of these countries there are ongoing substantial expenses, so you have to be prepared for that, and you have to be sure that your invention has enough potential there to make it worthwhile, and you’ll get much more back then you paid in.
NOLO: You hear a lot about business method patents, perhaps the most famous of which is the Amazon one-click patent. What are business method patents, and are they here to stay?
DAVID PRESSMAN: Well, I’ll give you a little bit of history first. The business method was always never patentable in the patent office. Whenever we got a patent application that was even remotely connected to a business method, as an examiner we’ve always rejected as non-statutory because it was always the rule in the patent office that business methods were non-statutory subject matter, but this was challenged by an innovative person, and they got patents on business methods, and now it’s very, very common, and they seem to be hear to stay. Recently I had an application pending on a pure business method that was a way of financing, and the patent office rejected it because it didn’t use technology, it didn’t use a computer, and I had to appeal, and while I was waiting for the appeal to be decided, they changed their mind and there was another decision, and they decided that it doesn’t need to use technology, so any method that is used in business that is novel and unobvious – that’s the key, it has to be novel and unobvious, such as a new way of financing, a new way of advertising, a new way of doing something on the internet can be patentable now, but it has to be novel and unobvious.
NOLO: David, in the U.S., we use a first-to-invent system, but the rest of the world uses a first-to-file patent system. Can you explain the difference, and do you think the U.S. will ever change?
DAVID PRESSMAN: I don’t know whether they’ll change or not; it all depends on the politicians and how much they’re willing to conform the U.S. patent system to the rest of the world. The rest of the world, except the Philippines, all has the first-to-file system, which means that the first person to file a patent application gets the patent, even if the other one invented it first and documented it first. In the U.S., it’s not the first to file; it’s the first to invent, so if someone invented first, and that means they conceived of it first and were diligent in building and testing or filing, or built and tested it first, then they can get the patent even if the other one filed after them, provided that they can prove this. There are many advantages and disadvantages on both sides, and it’s too much to go into now, but I feel that it’s much better for the layperson to have a first-to-file system, because if you do get into an interference at present, you have to hire a trial attorney, and that’s very, very expensive, so it’s better to rely on the first-to-file.
NOLO: Besides your books, are there any sites on the internet that are especially helpful for novice inventors?
DAVID PRESSMAN: Yes, the patent system is changing so much that it’s essential if you use Patent it Yourself to go to my update site, where you can just go to www.patentityourself.com/ and there’s a link to my blog site, which has all the updates, and I apologize because there’s so many, but it’s necessary to keep up-to-date with the law. For general information on patent law, there’s a good site run by a friend of mine, Victor Lavrov, that’s called inventnet.org. Then there’s another site run by another friend of mine, Ron Riley, and it’s called inventored.org. There’s also an Inventor’s Digest site – Inventor’s Digest is the magazine for inventors – that’s called inventorsdigest.com, and lastly there’s another good site run by a guy named Andy Gibbs out of Sacramento, called patentcafe.com, and all of these sites will give you a lot of good general information about patents.
NOLO: What advice would you give to an inventor who’s starting out today?
DAVID PRESSMAN: Okay, the first bit of advice I would give is to evaluate your invention very carefully before spending any money and time on it, and that means to search it and evaluate the commercial potential of it. In chapter four I tell you how to evaluate the commercial potential, all the positives and negatives you should be aware of, and in chapters five and six I tell you how to search it, and don’t proceed with it unless you feel that your invention is commercially viable and patentable, and if it is and you still feel it’s a great idea, then you have to spend a lot of time and effort on it, and preparing a patent application, and promoting it.
NOLO: David, you have many helpful inventor commandments in Patent it Yourself. Do you have one or two favorites you could share with our listeners?
DAVID PRESSMAN: Yes, I think that the heart of the book is how to prepare a patent application, and the most important thing you can do when you do a patent application is to make a full, clear, concise, and complete explanation of the invention and how to make and use it in your patent application, and that’s covered in inventors’ commandment number ten in chapter eight. Also, when you write a patent application, you have to have these little sentence fragments called “claims” in there, and you want the broadest possible claims for your main claims, and that’s covered in inventors’ commandment number twelve, where you make your claims with as few elements as possible, and each element should be recited as broadly as possible.
NOLO: As a patent attorney, you examine and help prepare a lot of applications for inventors. Are there one or two mistakes that are commonly made by inventors when they prepare their patent applications?
DAVID PRESSMAN: Yes, the one mistake that I find most often is that the inventor doesn’t tell clearly how to make and use the invention. You have to sweat the details like a professional does, and don’t be ashamed to detail all the parts of your invention, how they’re connected together, and how they work. They don’t penalize you; take as many pages and use as many drawings as necessary. Another thing that I find is the writing is not clear and communicative, so it’s best when you write it to have someone else review it and make sure they can understand what you’ve written and it’s clear and readable and understandable.
Sunday, July 2, 2006
Can You Patent Your Invention? Part One
We’re speaking with patent attorney David Pressman, the author of the world’s best-selling guide, “Patent it Yourself,” as well as the co-author of other Nolo books, including, “Patent Pending in 24 Hours,” “The Inventor’s Notebook,” “How to Make Patent Drawings,” and “Nolo’s Patent’s for Beginners.” This is the first installment of a two-part interview with David.
NOLO: David, we’re all familiar with stories about great inventors from the past who came up with great ideas, patented them, and made millions of dollars. But nowadays it seems like large corporations and universities dominate the world of patents. Is it still possible for an independent inventor to come up with something innovative and make money off of it?
DAVID PRESSMAN: Definitely. I think that about 30% of all patents are now still issued to inventors who have no assignee; that means they haven’t assigned their invention to a corporation and therefore they’re small inventors. Most small businesses are still individually-owned, and even one of Nolo’s authors, Jack Low, started a very big business where he’s very successful now, on his vertical mouse, by himself. I have several clients, one which makes insulating cups, another which makes shower mirrors, and they’re both individual inventors who have started businesses on their own.
NOLO: Another change since Thomas Alva Edison’s day has been that the patent system has become more complicated and more complex, yet you still maintain that a diligent inventor can prepare his or her own patent application. Tell us why you believe that inventors can prepare their own applications.
DAVID PRESSMAN: Yes, because the inventing process is still the same, and it’s actually much harder than the patent application filing and preparation process when you look at all the work involved. To get a patent you actually have to do some new things which inventors are not familiar with, but basically a patent application is just a detailed explanation of how to make and use the invention in conjunction with drawings, and then there’s a few forms and rules you have to follow, but I lay them all out in a checklist, and I think anybody who is smart enough to invent, to create something new, should be easily able to follow the instructions. You do have to be able to write a detailed description of your invention in conjunction with drawings, and frankly, not everybody can do that, but if you can do that, I think the rest is duck soup.
NOLO: David, you’re familiar with the stories behind many famous inventors. Who are your favorites?
DAVID PRESSMAN: Well, my favorite inventor happens to be a person who had his lab and made his great inventions on the same street that I live on in San Francisco, Green Street, and his name is Philo T. Farnsworth, and if anybody is not familiar with him, he invented television. He was a genius, a farm boy from Iowa, and he just really understood how the electrons work, and how the cathode ray tube works, and made television work. Of course, it was a little before its time, but his widow did collect a lot of money from his royalties. Two other famous inventors that I like are Edwin Howard Armstrong, he was another electronic genius, they called him the man of high fidelity. He invented the automatic game control, a very important circuit in electronics, and continuous wave transmission, and also FM. Finally, my third favorite inventor is Dr. Wallace Caruthers of DuPont, who after working and striving and using his brilliant knowledge of chemistry for eleven years, he came up with what we now call nylon.
NOLO: There are many things that an inventor needs to do when preparing a patent application, and you discuss them in detail in Patent it Yourself. But if you had to discuss one indispensable thing to do before filing a patent application, what would it be?
DAVID PRESSMAN: Well, there’s not any one individual thing that I can think of, because there’s several things that are really important, and really one is no more important than the others. There’s two things you have to do to avoid a lot of needless work with your invention, and that is to make a search before you file, and to evaluate it for commercial potential before you file, because if it’s old, and there is a reference showing the same thing, all your work will be wasted, and also if it has one or more serious drawbacks and you didn’t think about these, then your work will also be wasted. And then another very, very important thing you can do is to prepare for challenges and other difficulties that you may get involved with after you file, is to make a written record of your conception of the invention, and build in testing if possible, and make a written record of that. If you do that, you can go back to the date of conception, or the date of building and testing, and you can win an interference if someone invents the same thing, or you can swear behind references if the patent office cites a reference that has a date earlier than your filing date, but after the date you conceived of the invention. So, those three things I would say are essential: search, commercial evaluation, and record conception and building and testing.
NOLO: After many stops and starts, it seems as if the US Patent & Trademark Office has finally created a useable system for electronic filing of patent applications. Does the system really work?
DAVID PRESSMAN: Yes, it does, and I’m very pleased with it, but I do not recommend that an inventor who’s filing a one-time patent application use it, because it will take the inventor much more time to use the electronic system than it does to prepare and send in an application on paper. That is because the patent office’s instructions are not clear. I’ve attempted to write out clear instructions, but even with those, you’re always going to find a lot of issues and difficulties when you do anything new with the computer. So, if you really want to go in for the electronic experience, and you’re ready to spend a little extra time, it’s a good way to go because you don’t need to express-mail your patent application; you get an instant acknowledgement and a serial number, and there’s no need to make file copies of any papers, because the papers that you do are the papers that you keep, and you send in a PDF copy of them. But it’s not for everyone.
NOLO: When you started as a patent attorney, all patent searching was done through paper patents at the US Patent & Trademark Office, or at a special patent library. But in the past ten years, there’s been a change in how patents are searched, with more and more emphasis in online searching. Is searching through paper patents at the US PTO a thing of the past?
DAVID PRESSMAN: Not completely; I haven’t done any searching deeply for many, many years, and I hire a searcher, but he still goes into the patent office and searches the paper patents. The reason for that is, is that the patent office’s online system only goes back to 1976, and the European patent office’s search system goes back to the 20’s, but it doesn’t search the full text; it only searches the abstracts of patents. The patent office has a system for searching way back for the full text, and that’s called the EAST system, for examiner-aided search tool, but it’s very expensive to use at a patent depository library, several of them have that, and it’s free if you use it in the patent office, but if you look in the paper files, it’s a lot easier to search generally, and you have some foreign patents there. So, they still use paper searching, but it’s gradually being replaced, and most examiners have two computer terminals on their desk: one to display the patent application, and one to do the searching with, but they still use the paper to a certain extent.
NOLO: There’s often one person who stands between an inventor and a patent, and that’s a patent examiner at the US PTO. You once worked as a patent examiner… what are patent examiners looking for when they examine a patent application?
DAVID PRESSMAN: Yes, I was a patent examiner for two years, and I can tell you the first thing an examiner needs to do is to understand the invention, and make sure that the application tells how to make and use the invention, and if the application passes that hurdle, the examiner needs to be sure that the claims are clearly written and directed to the invention that’s described in the patent specification, and lastly, when those formalities are over with, the examiner has to get into the meat of the matter, and make sure that the invention claimed is novel and unobvious, and to do that, the inventor makes a search of all the prior art, and pulls out everything that is close, and then compares the claims with this prior art to make sure or to determine if the claims recite something novel and unobvious over the prior art.
NOLO: In your book, Patent it Yourself, you refer to a patent as a hunting license. Can you explain what you mean?
DAVID PRESSMAN: Yes; it’s not actually a general hunting license, where you can go out and go after everybody; it’s only a hunting license to go after people who make the invention covered by the claims of your patent. If you don’t have a patent and you have an invention out there and someone infringes it, you have no rights at all against that person unless they copy a trademark of yours, or they copy some feature of your invention that has a secondary meaning, then you can accuse them of palming off, but generally you have no rights at all if someone copies your invention. So what do you need? You need a license to go after them, and to be able to sue them and stop them, or just send them your patent and show them, and that’s what a patent provides; it provides a license to go after and nab the infringer, and if you do win your suit, you can get an injunction against them to order them to stop making, using, selling, importing, and offering your invention for sale, and also to get damages for what they’ve done in the past, and often this is used to extract royalties from them, and to get a license from them, for past and future activity.
NOLO: David, we’re all familiar with stories about great inventors from the past who came up with great ideas, patented them, and made millions of dollars. But nowadays it seems like large corporations and universities dominate the world of patents. Is it still possible for an independent inventor to come up with something innovative and make money off of it?
DAVID PRESSMAN: Definitely. I think that about 30% of all patents are now still issued to inventors who have no assignee; that means they haven’t assigned their invention to a corporation and therefore they’re small inventors. Most small businesses are still individually-owned, and even one of Nolo’s authors, Jack Low, started a very big business where he’s very successful now, on his vertical mouse, by himself. I have several clients, one which makes insulating cups, another which makes shower mirrors, and they’re both individual inventors who have started businesses on their own.
NOLO: Another change since Thomas Alva Edison’s day has been that the patent system has become more complicated and more complex, yet you still maintain that a diligent inventor can prepare his or her own patent application. Tell us why you believe that inventors can prepare their own applications.
DAVID PRESSMAN: Yes, because the inventing process is still the same, and it’s actually much harder than the patent application filing and preparation process when you look at all the work involved. To get a patent you actually have to do some new things which inventors are not familiar with, but basically a patent application is just a detailed explanation of how to make and use the invention in conjunction with drawings, and then there’s a few forms and rules you have to follow, but I lay them all out in a checklist, and I think anybody who is smart enough to invent, to create something new, should be easily able to follow the instructions. You do have to be able to write a detailed description of your invention in conjunction with drawings, and frankly, not everybody can do that, but if you can do that, I think the rest is duck soup.
NOLO: David, you’re familiar with the stories behind many famous inventors. Who are your favorites?
DAVID PRESSMAN: Well, my favorite inventor happens to be a person who had his lab and made his great inventions on the same street that I live on in San Francisco, Green Street, and his name is Philo T. Farnsworth, and if anybody is not familiar with him, he invented television. He was a genius, a farm boy from Iowa, and he just really understood how the electrons work, and how the cathode ray tube works, and made television work. Of course, it was a little before its time, but his widow did collect a lot of money from his royalties. Two other famous inventors that I like are Edwin Howard Armstrong, he was another electronic genius, they called him the man of high fidelity. He invented the automatic game control, a very important circuit in electronics, and continuous wave transmission, and also FM. Finally, my third favorite inventor is Dr. Wallace Caruthers of DuPont, who after working and striving and using his brilliant knowledge of chemistry for eleven years, he came up with what we now call nylon.
NOLO: There are many things that an inventor needs to do when preparing a patent application, and you discuss them in detail in Patent it Yourself. But if you had to discuss one indispensable thing to do before filing a patent application, what would it be?
DAVID PRESSMAN: Well, there’s not any one individual thing that I can think of, because there’s several things that are really important, and really one is no more important than the others. There’s two things you have to do to avoid a lot of needless work with your invention, and that is to make a search before you file, and to evaluate it for commercial potential before you file, because if it’s old, and there is a reference showing the same thing, all your work will be wasted, and also if it has one or more serious drawbacks and you didn’t think about these, then your work will also be wasted. And then another very, very important thing you can do is to prepare for challenges and other difficulties that you may get involved with after you file, is to make a written record of your conception of the invention, and build in testing if possible, and make a written record of that. If you do that, you can go back to the date of conception, or the date of building and testing, and you can win an interference if someone invents the same thing, or you can swear behind references if the patent office cites a reference that has a date earlier than your filing date, but after the date you conceived of the invention. So, those three things I would say are essential: search, commercial evaluation, and record conception and building and testing.
NOLO: After many stops and starts, it seems as if the US Patent & Trademark Office has finally created a useable system for electronic filing of patent applications. Does the system really work?
DAVID PRESSMAN: Yes, it does, and I’m very pleased with it, but I do not recommend that an inventor who’s filing a one-time patent application use it, because it will take the inventor much more time to use the electronic system than it does to prepare and send in an application on paper. That is because the patent office’s instructions are not clear. I’ve attempted to write out clear instructions, but even with those, you’re always going to find a lot of issues and difficulties when you do anything new with the computer. So, if you really want to go in for the electronic experience, and you’re ready to spend a little extra time, it’s a good way to go because you don’t need to express-mail your patent application; you get an instant acknowledgement and a serial number, and there’s no need to make file copies of any papers, because the papers that you do are the papers that you keep, and you send in a PDF copy of them. But it’s not for everyone.
NOLO: When you started as a patent attorney, all patent searching was done through paper patents at the US Patent & Trademark Office, or at a special patent library. But in the past ten years, there’s been a change in how patents are searched, with more and more emphasis in online searching. Is searching through paper patents at the US PTO a thing of the past?
DAVID PRESSMAN: Not completely; I haven’t done any searching deeply for many, many years, and I hire a searcher, but he still goes into the patent office and searches the paper patents. The reason for that is, is that the patent office’s online system only goes back to 1976, and the European patent office’s search system goes back to the 20’s, but it doesn’t search the full text; it only searches the abstracts of patents. The patent office has a system for searching way back for the full text, and that’s called the EAST system, for examiner-aided search tool, but it’s very expensive to use at a patent depository library, several of them have that, and it’s free if you use it in the patent office, but if you look in the paper files, it’s a lot easier to search generally, and you have some foreign patents there. So, they still use paper searching, but it’s gradually being replaced, and most examiners have two computer terminals on their desk: one to display the patent application, and one to do the searching with, but they still use the paper to a certain extent.
NOLO: There’s often one person who stands between an inventor and a patent, and that’s a patent examiner at the US PTO. You once worked as a patent examiner… what are patent examiners looking for when they examine a patent application?
DAVID PRESSMAN: Yes, I was a patent examiner for two years, and I can tell you the first thing an examiner needs to do is to understand the invention, and make sure that the application tells how to make and use the invention, and if the application passes that hurdle, the examiner needs to be sure that the claims are clearly written and directed to the invention that’s described in the patent specification, and lastly, when those formalities are over with, the examiner has to get into the meat of the matter, and make sure that the invention claimed is novel and unobvious, and to do that, the inventor makes a search of all the prior art, and pulls out everything that is close, and then compares the claims with this prior art to make sure or to determine if the claims recite something novel and unobvious over the prior art.
NOLO: In your book, Patent it Yourself, you refer to a patent as a hunting license. Can you explain what you mean?
DAVID PRESSMAN: Yes; it’s not actually a general hunting license, where you can go out and go after everybody; it’s only a hunting license to go after people who make the invention covered by the claims of your patent. If you don’t have a patent and you have an invention out there and someone infringes it, you have no rights at all against that person unless they copy a trademark of yours, or they copy some feature of your invention that has a secondary meaning, then you can accuse them of palming off, but generally you have no rights at all if someone copies your invention. So what do you need? You need a license to go after them, and to be able to sue them and stop them, or just send them your patent and show them, and that’s what a patent provides; it provides a license to go after and nab the infringer, and if you do win your suit, you can get an injunction against them to order them to stop making, using, selling, importing, and offering your invention for sale, and also to get damages for what they’ve done in the past, and often this is used to extract royalties from them, and to get a license from them, for past and future activity.
Subscribe to:
Posts (Atom)
