What's the Best Way to Screen Tenants?

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.

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.

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.

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.

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.

What Are Your Legal Rights as a Shopper?

In this episode we’ll discuss legal remedies for unhappy shoppers. A lot of our material is derived from, “Nolo’s Encyclopedia of Everyday Law,” written by Shae Irving, and the Nolo editors. Okay, let’s start with a typical consumer question:

QUESTION: I don’t like a lamp that I purchased. There’s nothing wrong with it; I just don’t like it. Do I have the right to a cash refund?”

ANSWER: Many merchants will refund your money or reverse your credit card charges, but they’re doing it because it’s their policy, not the law. Nolo, for example, the sponsor of this podcast, has a “no questions asked” return policy – if you don’t like a book, you can return it for a cash refund. But a seller is not legally required to make a cash refund. A seller may be required to make an exchange for merchandise that is defective or does not perform as advertised. These are requirements that occur because of laws about warranties – implied and expressed warranties. We’ll talk about those in a few minutes. But it’s important to remember that a merchant doesn’t have to make a cash refund to a consumer. There are rules in four states however:

In California, sellers who do not allow a full cash or credit refund within seven days of purchase have to post the store’s refund credit policy. If the seller fails to post the policy, you can return the goods for a full refund within thirty days of your purchase.
In Florida, if the seller has a no-refund policy, such a statement must be posted in a store. If a no-refund policy isn’t posted, you may return unused goods in the original packaging within seven days for a full refund.
In New York, sellers with a no-refund policy have to post it. If a seller does not post the policy, you’re entitled to a choice of cash or credit refund within twenty days if goods are not used or damaged.
In Virginia, sellers must post the refund or exchange policies, unless they give a full cash refund or a full credit within twenty days after purchase.

QUESTION: What does a warranty mean? Does every new product come with a warranty?”

ANSWER: The main thing to remember about warranties is that they’re based on common sense. A contract for a sale is based on a principle that merchandise will perform either as commonly expected – for example, that a lamp will work, or that a product will be sold as advertised. For example, if it says that batteries are included, then you expect that batteries will be included. These guarantees are part of the sale. So, a warranty is just an assurance about the quality or performance of the product or service. The most common warranty is the implied warranty of merchant’s ability. It’s a part of every consumer transaction that you will make. What that means is that a product or service will perform as expected for its basic purpose. So, if you buy a juicer that can’t perform it’s basic purpose, that is, it can’t make juice, then the seller broke the implied warranty, and the seller owes you a replacement juicer that will make juice. For used items, there’s also a warranty of merchant ability, and that’s a promise that the product will work as expected given its age and condition. So, for example, a ten-year-old used juicer may not look or work as well as a new one considering its condition and age. There’s a second implied warranty, and that’s the implied warranty of fitness. That means that if you and the seller communicated a specific or an unusual purpose when you purchased the item, then it’s expected that the item can perform for that unusual or specific purpose. So, for example, if you purchased a juicer and indicated to the seller that you wanted a juicer that could both do citrus fruits and carrots and apples, and the juicer could only do carrots and apples, then there’s a breach of the warranty of fitness for a particular purpose. Those are the two implied warranties that exist in all states for purchases of new and used items. There’s also an expressed warranty, and that’s a warranty that’s specifically stated, usually in writing. So, for example, the juicer may come with a warranty that says, “This juicer is warranted against defects and materials or workmanship for ninety days.” So, if there was a breakdown in parts, the manufacturer would have to replace those parts, to honor the expressed warranty. An expressed warranty can also be an advertisement, or even a sign in the store -- for example, a statement that all dresses are 100% silk. An expressed warranty lasts for the period of time stated in the warranty, for example, three years after the date of purchase, and in most states, an implied warranty lasts as long as the product can be used for its intended purpose. In a few states, however, if there’s an expressed warranty, the implied warranty lasts only as long as the expressed warranty that comes with the product. In some states, if there is no expressed or written warranty, a seller can sometimes avoid an implied warranty by selling the item “as is.” There are other states that prohibit all as-is sales, but in all states, the buyer must know that the item is sold as-is in order for the seller to avoid any implied warranty.

QUESTION: What good does a warranty do me if I purchase a defective item?”

ANSWER: Since most of the time a defect is going to show up immediately, you can ask the seller or the manufacturer to fix or replace the item. If the seller won’t, or tries only once and the fixed or replaced item is still defective, you can withhold payment or inform a credit card company that the charge is disputed. If you’re uncomfortable doing this, or have already paid for the item, call the seller and try to work out an arrangement. If the seller refuses, you can try to mediate the dispute through a community or better business bureau mediation program, or else you’re going to have to sue, usually in small claims court. Nolo has an excellent book on dealing with small claims court, Everybody’s Guide to Small Claims Court, but it’s best if you can sort out your dispute without resorting to small claims court, since the process can be time-consuming, and sometimes requires chasing the merchant further, even if you win. If the seller or manufacturer won’t make good under a warranty, you must sue within one to four years of when you discovered the defect, depending on your state’s laws.

QUESTION: What happens if my juicer works fine for the one-year written warranty period, but then breaks the day after the warranty period ends?

ANSWER: If there’s an expressed warranty and it’s expired, you usually don’t have any recourse. However, in some states, if the item gave you some trouble while it was under warranty, and you had it repaired by someone authorized by the manufacturer, the manufacturer must extend your original warranty for the amount of time the item sat in the shop. If you think you’re entitled to this type of extension, call the manufacturer, and ask to speak to the department that handles warranties. Also, keep in mind that you have some other options – if your item was trouble-free during the warranty period, the manufacturer may offer a free repair for a problem that arose after the warranty expired, if the problem is widespread. Many manufacturers have secret “fix-it” lists – items with defects that don’t affect safety, and therefore don’t require a recall, but that the manufacturer will still repair for free. It can’t hurt to call and ask.

QUESTION: What about an extended warranty? Should I buy one?

ANSWER: Probably not. Merchants encourage you to buy extended warranties, also called service contracts, because they are a source of big profits for stores, which usually pocket up to 50% of the amount that you pay. It’s rare that you have the chance to exercise your rights under an extended warranty. Name-band electronic equipment and appliances usually don’t break down during the first few years, and if they do, they’re usually covered by the original warranty.

QUESTION: I received some unordered merchandise in the mail, and now I’m getting billed. Do I have to pay?

ANSWER: No, you don’t. You don’t owe any money if you receive an item you never ordered; it’s considered a gift. If you get bills or collection letters from a seller who sent you something you never ordered, write to the seller stating your intention to treat the item as a gift. If the bills continue, insist that the seller send you proof of your order. If this doesn’t stop the bills, notify the state Consumer Protection Agency in the state where the merchant is located. If you sent for something in response to an advertisement claiming a free gift or trial period but are now being billed, be sure to read the fine print of the ad. It may say something about charging shipping and handling, or worse, you may have inadvertently joined a club or subscribed to a magazine. Write the seller, cancel your membership or subscription, offer to return the merchandise, and state that you believe the ad was misleading.

QUESTION: I just signed a contract to have carpet installed in my house, but I’ve changed my mind. Can I cancel?

ANSWER: Under the federal trade commission’s cooling off rule, you have until midnight of the third day – not including Sundays and federal holidays – after a contract was signed to cancel either of the following: one, door-to-door sales contracts for more than $25, or two, a contract for more than $25 made anywhere other than the seller’s normal place of business. For example, a sales presentation at a hotel or restaurant, an outdoor exhibit, a computer or trades show, with two exceptions: public auctions and craft fairs are excluded. This cooling off period also does not apply to contracts to buy a car, truck, van, or camper. If your dealer says otherwise, that is, if the dealer is promising you a cooling off period, be sure to get it in writing.

QUESTION: What other types of contracts can I cancel?

ANSWER: The Federal Truth and Lending Act lets you cancel some loans up until midnight of the third day – not including Sundays or federal holidays – after you sign the loan contract. It applies only to loans for which you pledged your home as security, as long as the loan is not a first mortgage. In addition, many states have laws that allow you to cancel written contracts covering the purchase of certain goods or services within a few days of signing. These usually include contracts for dance, or martial arts lessons, credit repair services, health club memberships, dating services, weight loss programs, time-share properties, and hearing aides. In a few states, you can also cancel a contract if you negotiated the transaction in a language other than English, but the seller did not give you a copy of the contract in that language. Call your state Consumer Protection Agency to find out what contracts, if any, are covered in your state.

QUESTION: I ordered some clothing online, and there’s a delay in the shipping. Can I cancel my order?

ANSWER: With the exception of photo development services, magazine subscriptions, and the ordering of seeds or plants, if you order something online, or by mail, phone, or fax, the Federal Trade Commission’s mail or telephone order rule requires that the seller ship to you within the time promised or, if no time was stated, within thirty days. If the seller cannot ship within that time period, the seller must send you a notice with a new shipping date, and offer you the option of canceling the order and getting a refund or accepting the new date. After you receive this first notice, you have to contact the seller to cancel. If you don’t, you’ll be considered to have consented to the delay.

QUESTION: I purchased a defective item using my credit card. Can I request that the credit card company reverse the charges?”

ANSWER: Under federal law, you must first attempt in good faith to resolve the dispute with the merchant. If that doesn’t work, the credit card company is required under the law to begin a dispute resolution process, during which time the charges are temporarily reversed, pending the outcome. Now, your ability to use this law depends on several variables, including whether the merchant is within your state, or within 100 miles of your home, or whether you are using a seller’s card, for example a JC Penny’s card to buy at JC Penny’s, and the extent of the proof that you can furnish to demonstrate that the product or service is defective. Check with your credit card company, because many companies provide better dispute resolutions procedures than guaranteed by this law, and in general, it’s much more satisfying than dealing with small claims court, because if you win, the charge is permanently reversed; you don’t have to chase the merchant to enforce the judgment. But, like small claims court, it still requires time and preparation, and for small consumer disputes, say, for example, for matters between $50 and $100, you may spend more time preparing your case for the credit card dispute resolution procedure than you’ll be getting back. That said, it’s still one of the better forms of consumer protection when making purchases.

What Does a Dog Owner Need to Know About the Law?

We’re speaking with Mary Randolph, the author of “Every Dog’s Legal Guide: A Must-Have Book for Your Owner.”

NOLO: Mary, considering that dogs have been around for thousands of years, why is it necessary to license them, and what’s going to happen to a dog owner who doesn’t license a dog?

MARY RANDOLPH: Well, the theory behind licensing is that cities want to keep track of dogs; they want to know how many dogs they have, they want to get a little money from the dog owners to go towards the cost that a city incurs when it’s taking care of the dog population… they have to have animal control officers, they have noise ordinances… so, that’s the idea behind it; it’s just that having a dog is a bit of a privilege, it’s not just a right, and you have to pay a little fee for it. But no one comes around, obviously, knocking on doors, checking to see if your dog has a tag… you can get into trouble if your dog gets picked up, if your dog is running loose and the animal control people pick it up, you’re much more likely to get the dog back quickly and safely if you’ve got a license for the dog, because they can trace you right away, and they can contact you. If the dog doesn’t have an identifying tag, you might not get the dog back. In some places, they have rules that they keep licensed dogs longer on the theory that they are not strays; they have an owner out there looking for them. They also use licenses to keep track of rabies vaccinations, because you’re required to have a rabies vaccination, and in some places, some other vaccinations as well, so that usually goes along with the licensing requirement.

NOLO: In your book, you provided the interesting story of Toby, a dog who ran wild and whose owner was fined $500 for that, and later appealed the case to the California Court of Appeal. Two questions: in most places, dogs can’t run free, but how zealous can animal control enforcement people be when chasing dogs and what can they do once they’ve gotten hold of a dog? And, I guess, another question might be, what could motivate a dog owner to pay thousands of dollars in lawyer fees to appeal a $500 fine?

MARY RANDOLPH: Well, in dog cases, there’s always something going on more than money; people are very emotional attached to their dogs. This must have been a big issue; I don’t know the particulars of this case, but Toby had a rap sheet – Toby had been caught fifteen times I think, by the animal control people, so this was a dog who was obviously let free all the time, and the owners were flouting the law, but how this case came about is because the animal control folks were chasing this dog, the dog ran home, ran in through an empty door, jumped on the bed presumably, went right in the bedroom, and the police came because the door was open, and they thought perhaps there had been a burglary. The animal control people followed the dog into the house and impounded it, so the owners were understandably upset that the people had gone into their house and taken the dog who was not running loose at that moment, and carted it off and locked it up. So, that is beyond the pale – animal control folks are not supposed to come into your house and take the dog. Otherwise, they can, if the dog is running at large, they’re pretty free to track it down and lock it up. It’s a public safety issue.

NOLO: Mary, if there’s a no-pet clause in a lease, what if the landlord permits a dog in the beginning, and then later wants to enforce the no-pets provision?

MARY RANDOLPH: Landlords are free to discriminate against people with pets. They can’t discriminate against people with families or people with disabilities, but pets are okay for landlords to decide that they just don’t want to deal with pets, that’s alright. But a landlord who tells you that you can have a pet, and then later changes his mind, might be in trouble. For example, if you move in, and you have a pet that doesn’t cause any problems for several years, and it’s okay with the landlord and they know about it, but in the lease there’s that little fine print, no-pets clause, the landlord can’t suddenly say, “Oh, I’m going to enforce that clause now, and you have to leave or get rid of the pet,” because it’s often a pretext for getting rid of someone for another reason; perhaps the landlord wants to raise the rent or get a different tenant. Courts understand that landlords use a no-pets clause sometimes to get rid of someone for another reason, so you’re not allowed to essentially waive that clause for several years and then enforce it.

NOLO: You told the story of a man who shipped nine racing greyhounds by air from Portland to Boston. The airlines left the cages on a baggage cart in ninety-seven degree heat, and seven of the dogs died. But the court awarded the owner a total of $750. How can that be?

MARY RANDOLPH: That’s right, it’s obviously far below the market value even, of those dogs, much less anyone’s emotional value of a dog. The reason they could do that is because federal law limits airlines’ liability, and dogs are treated just like baggage for purposes of that limit, so the limit now is $2,800, which still, of course, is not very much, and in no way replaces the value of a pet. Airlines have also, since that time, become more restrictive and selective about transporting animals. They’re really not set up to do a very good job of it, and it’s best to avoid it if you can. Some airlines no longer take animals, some won’t take them during the summer months, some don’t take certain breeds that tend to have breathing problems… so, you have to be smart about it, and pay real close attention to the conditions of the flight, and non-stop flights of course are best, avoiding hot weather or very cold weather is best, but you’re certainly not going to get very much financial compensation if something goes wrong.

NOLO: The barking dog issue… in an episode of Seinfeld, Elaine, unhappy about a barking dog, enlists Kramer and her friends to kidnap the dog. Now, most of us have faced similar noise problems, so what can a person do in this type of situation?

MARY RANDOLPH: This is probably the most common problem that people have with dogs, because owners, unfortunately, are often blissfully unaware that their dog is causing problems, because dogs typically bark when they’re left alone; dogs hate to be left alone – that’s kind of the worst thing you can do to a dog, so they bark and howl because they’re sad and lonely. So, the owners, when they come home, think they have a perfectly quiet dog. What you need to do is be solicitous of your neighbors, if you have the dog. If you get a new dog, tell people that you want to know about the problem; people don’t like to bring up those problems, so let them know that you’d like to know about things so you can take care of it. There are lots of things that behaviorists also recommend that owners can do to keep their dogs happy while they’re gone. If you’re on the other side of the fence, and you’re being disturbed by a dog, the best thing to do is approach the owner first. Again, you have to assume good will, assume that the person doesn’t know that they’re causing a problem, and if you’re being bothered, probably other neighbors are as well, so you can enlist their help. Approach the owner in a cordial way, at least to start. You may have to ramp up your efforts later; it doesn’t always work to be cordial, but it’s the best way to start – these are your neighbors, you don’t want to poison relationships if you can possibly avoid it. But you can call the animal control folks. Different towns have different systems for responding; some can be very helpful, but with others you’ll have to be more persistent to try to get someone to come out and try to speak to the owner. The police are the last resort, but you can call them if it’s a continuing problem that you can’t seem to solve, and sometimes that has the desired effect.

NOLO: What should a person do if they witness unnecessary cruelty to a dog?

MARY RANDOLPH: The best thing you can do is to call the animal control authorities for your town; sometimes that duty is contracted out to a local humane organization or an SPCA, but every town has someone who’s in charge of that, and animal cruelty or neglect is a crime – it’s punishable by fines, and, if it’s really horrendous, by jail, so you can do something; you don’t have to stand by and watch. People have certain basic duties to care for their animals, so if an animal is neglected continuously, or if it’s chained out without proper food or shelter, for example, or if it’s actually abused, you should definitely try to take action. You don’t have to rescue it yourself, but you can enlist help.

NOLO: Providing for your dog after you’re gone – it’s surprising how often that question seems to come up. What’s the answer for a dog owner?

MARY RANDOLPH: Well, you’re right that it is a big question; a lot of people, especially older people, are concerned about what would happen if their pets outlive them, and it’s a reasonable question, because you have to have some kind of plan in place for just the care of an animal, and the animal can’t wait; it needs a home right away. So, the most important thing you can do is to find a home for the animal ahead of time. Talk to somebody, make sure that they’re willing to take the animal – don’t let it be a surprise, make arrangements. And the financial part is the next part. If you’re leaving your dog to someone, which is really what you’re doing by making these arrangements, it’s good to leave some money with the dog. Dogs take care, they take veterinary care, especially as they get older, and simple upkeep, and it’s going to take some money, so it’s a thoughtful thing to leave some money along with the dog. Now, you can make fancier arrangements, and most states now have a legal arrangement under which you can make a trust for a dog; you appoint a trustee, you leave money… it’s like leaving money in trusts for a child. I don’t think most people need to go that route, to have to set up a trust. If you have someone that you’re entrusting the dog with, hopefully you would entrust them with some money for the dog’s care, and that’s really the most important thing; you’re not going to be around. A trust is a legal mechanism to make sure that your wishes are carried out, but how many people really need that? How many people really need the thought of a lawsuit to enforce their wishes? So, really, it’s just best to find someone trustworthy and leave them your pet and some money.

NOLO: Mary, speaking of dogs, Nolo recently unveiled its branding initiative that features a dog on the cover of many Nolo books. Can you tell us a little bit about this initiative, and the dog that was chosen for the cover?

MARY RANDOLPH: That’s right, we have a whole new look for Nolo books, and it goes along with our new theme, which is called “your legal companion.” We’re trying to make the book covers reflect how people think about Nolo; we are peoples’ companion through legal manners – we’re not like a professor, and we’re not like a lawyer, we’re a friend, and someone who helps you through these issues and explains them in plain English, and we were really looking for something that cuts across all the different kinds of books that Nolo does that would convey that, and we came up with the idea of a dog and your legal companion; it seems to resonate with people. Our cover dog has her own story; her name is Astrid, and she’s a yellow lab who was in the guide dog training class at Guide Dogs for the Blind in San Raphael, California. She was at the top of her class, and she was pulled out to become a breeder dog, so she’s a working mom, and she’s going to Japan to start the breeding program there for a guide dog program there, so she’s quite a star in her own rite, and we just thought that she conveyed that image of Nolo as your companion in a very good way.