Frequently Asked Questions In My Practice
I have answered many questions concerning the law in my practice at Law Offices of Maxwell Charles Livingston. Below is a sample of those questions. If you have specific questions concerning a matter, the best way to get an answer is to make an appointment to speak with me. Call 262-661-7915 or use my online contact form.
Questions And Answers:
What options are there if I don’t want to sue?
It is actually fairly common that a client will avoid court if at all possible. And, many times, court is not the best option. For example, when the parties wish to work something out without destroying a relationship, mediation can be much less damaging. Mediation is a voluntary process in which the parties come together and discuss how to move forward amicably; hence, mediation many times leads to creative options and relationship building. However, in court, the parties can only “win” by fighting over who was more “wrong.” This can lead to broken relationships, a drawn-out recovery time and uncertain results. Many times, the case need not advance even as far as mediation, as a good lawyer can reach results through negotiation.
I have a lawyer who never picks up the phone. Why is that?
While lawyers are busy, they owe it to their clients to be reachable. That is, there is an ethical duty owed by lawyers to their clients that they keep the clients informed at all times. That means picking the phone up when a client requires information.
Will you fight for me?
I hear this one often. Many times clients feel that they overpay their lawyers, and then their lawyers refuse to defend them when the other side fervently disagrees – especially in court. While I may not always agree with my client(s), the client comes first. Hence, I will fight for my clients when the time comes.
Is it true that the most successful negotiator is a bully?
This is a common myth. In point of fact, the best negotiator is one who collaborates. That means working with the other side. While this may sound odd, studies and experience show that you will get more done when you don’t upset the other side. In fact, upsetting the other side typically leads to one of two phenomena: (1) the other side reacts in kind – competitively OR (2) the other side becomes avoidant – meaning they no longer care. But, when one acts collaboratively, the result is many times that the other side will collaborate also. On the rare occasion in which that is not the case, the negotiator can switch tactics to match that of the other side until that other side comes to their senses. Then, it’s back to collaborating.
I am so upset…. I worked for a company for nine months and then decided that the job was not only too taxing for me but the employers views of how I should handle the co-workers under me was not something that I could do. I turned in my resignation, found a new job, and was notified by my new employer that my previous employer had left two voice mails, and then finally cornered him in the bank and told him that I stole from them. At no time did this happen or this concern even brought to my attention. What can I do?
I’m so sorry this happened to you.
It is slander, but, even more importantly, it’s defamation. Under defamation, there must be a publication (statement to a third party) of a false statement that causes damage to your reputation (as is clear here), with resulting damages – which are presumed if it hurts your business reputation, and are clear if you lose your job. To a lesser extent, there would also be damages for the slander. If you send me an email, I can assist you in the matter.
A man asked me to do a job. He now wants to pay me less than my invoice based on another contractor’s estimate. We had no written contract. Is there a law that says in the absence of a written contract, the customer must pay the previously agreed upon estimate?
Verbal contracts in Wisconsin are typically enforceable. If the man asked you to do a job for X, and you agreed by performing the job, that is a contract. It’s an verbal contract – rather than written. If you performed per the agreed upon terms, now he must also. Just because someone else quoted something different, does not change his obligations under the verbal contract.
There are exceptions to a verbal contract being enforceable. Those exceptions are barred by the “Statute of Frauds.” For example, in Wisconsin, The Statute of Frauds does bars a verbal contract when the payor reasonably believed that payee could not pay back within one year’s time, it is a contract to create an interest in real estate, it is a contract in contemplation of marriage, it is a contract for a sale of goods over $5000, or a contract made to answer for another’s debts. See Wis. St. § 241.02, 706.001. If none of those apply, the verbal contract is enforceable. Hence, this is not barred, and is fully enforceable. Also, to any extent that you enriched the party by him not fully paying, you can ask for further damages under the theory of “unjust enrichment”. See BILHARZ v. FIRST INTERSTATE BANK OF WISCONSIN, et al., 98 F.3d 985 (1996).
She’s pregnant with my kid, her parents keep us separated, and they constantly verbally abuse her telling her she’s never going to be anything important, and she should just kill herself. Her mom is a pill addict, she’s always high on pills and always verbally abusing my girlfriend. Her dad is a cop, he’s never home and he just sleeps when he is. I’m a high school graduate, I have a job, and I’m working on getting another one. My mom and dad can assist us also. My girlfriend doesn’t want to be there anymore. What can we do?
Under Wisconsin Statutes Section 48.415(6), you could argue that her parents’ rights should be involuntarily terminated, because of failure to assume parental responsibility. This is tricky, but I could help.
There is a young lady who is 21 and has asked me on several occasions if I would adopt her…she has a mild developmental delay. Is this possible?
Any adult may be adopted assuming he or she consents to the adoption. In order to do so, you must petition for adoption. If you need help, please email.
I had a baby three months ago and they left pieces of the placenta inside of me and three days after, I was sent home. I called my doctor to tell him I was still in pain and he gave me more pain killers. Then, four days after that, I was rushed to the emergency room. They had to do a dnc and now I am getting bills for that stay. I never signed the paper work for them to bill me and now they are non stop calling me to pay for it. Is there anything I can do?
If they left placenta in you, causing damages, you can likely sue for medical malpractice. Because the malpractice occurred within the statutory time period (three years in Wisconsin), you can sue for damages caused. I would be happy to initiate such an action on your behalf; please email for assistance in the matter.
They give me medication for treatment, the diagnose was wrong. I spent five months on bed rest. They found out I was pregnant, had a baby with bad breathing problems from it. And, after bloodwork, cat scans, and 11 visits to the doctor two times weekly. Can you help me?
I’m so sorry you’ve had to endure this. It’s a real shame. Unfortunately, this is not an easy case. The difficulty here is proving that the injuries were CAUSED by the doctor’s improper evaluation, or prescription(s). If you have strong evidence to prove this, or feel you can through expert testimony, you have a winnable case. You can email for assistance in this matter.
I have received a gift from a vendor partner of mine in the computer trade and it has significant value. Nearly $4k retail value and I am going to sell it to pay my bills. I received this after we were legally separated and she claims that she is entitled to half of the value that I get from the sale. I don’t care to keep something from her if she has a clear right to it, but I could also use the money for myself and our children. She filed and has left our home and we have a temporary order with 50/50 custody. What can I do?
Exceptions to the Wisconsin marital property rule of 50/50 division include property received by gift or inheritance OR property acquired after legal separation. This appears to both (a) a gift and (b) received after legal separation.
Is a contract still valid if it was signed under the influence of alcohol?
That’s a great question. If the intoxicated person, voluntarily became intoxicated, the answer depends on whether a court would find that s/he was mentally competent at the time s/he signed the agreement. On the other hand, if s/he became intoxicated involuntarily (or not “by choice”), it is more likely that s/he will be excused from obligations existing under the contract. This is not a simple case, and I would recommend that you hire a talented contracts attorney. I can help you, if you send me an email with further details.
I have a rumor being spread about me and drug use. Can I sue under Libel laws?
Yes, assuming you can prove who is spreading the rumor, it’s false, and it’s hurting your reputation. If so, please don’t hesitate to contact me for representation
I kept getting misdiagnosed by general doctors, they would only recommend physical therapy and most of them said I was just being anxious. It wasn’t until I finally got insurance, then I was able to get a proper diagnosis from a craniofacial specialist. Is this medical malpractice?
If your misdiagnosis or treatment CAUSED the injury, there might be a sufficient malpractice claim to justify lawsuit. If not, it might not be worthwhile to proceed in the action. Please email if you need further assistance.
Seller had a court appointed representative. This person claims at death they cannot represent the seller any more. The second offer for the seller to repair has a ten day expiration date. The seller has no will and no one has been assigned to represent the estate. Is the offer null and void after the 10-day period specified in the second offer? I am sure if there was a signed contract the contracted would have survived the sellers death but since the home failed the inspection can the buyer consider the origin?
Great question! This real estate issue becomes significantly more complicated when the seller dies mid-transaction. That being the case, you could argue that the 10-day period to cure/repair was iron-clad. If so, upon expiration, the condition should fail. Based on that understanding of the facts, you can walk away free and clear. The counter-argument may be “extenuating circumstances.” However, given the nature of reliance by you -the buyer – it is quite likely that you could walk away from this deal, unscathed. Please email me if you have further questions, or to setup a meeting in my office.
In January, I moved and hired movers. Not only did these guys break some of my furniture, but they went behind my back and tried to fix my desk without saying anything. I only saw what they did later that day. The desk is too dangerous to use now. A few calls later, I filed an insurance claim, and voiced my opinion on Yelp about what they’ve done. When they finally got back to me, they told me that particle board pieces weren’t covered. So they would only give me $50 for the rest (plates, glasses etc.). What can I do?
With respect to ruining your furniture, if it was mishandled, you could argue that you are owed its market value (under negligence and conversion theory).
Further, you could argue that the moving company committed fraud in attempting to conceal a defect in its work.
My husband inherited some land while we were married about 12 years ago. We have been married 22 years. I have a home that was paid for but have done some work on it. Its a rental and all my furniture and things I had before being married. What do they count as? He had no furniture, only a new truck with payments. How does this work? I haven’t been able to work at all this last year and not much the year before. I have been going through counseling and in the hospital twice. Breakdown from all his cheating.
Well, that’s a good question. For the most part, in a community property state like Wisconsin, property transfers 50/50. Exceptions include property received before marriage or property received by one spouse only as an inheritance or gift. Hence, the inheritance, if to your spouse only, would be excluded as “separate property” of your husband. If you separately own a home, the question regarding that home is whether there were any payments from community property used toward that home. As to maintenance, you were married for a long time (22 years). So, if he can afford to pay, and you require payment, it is highly likely you would receive maintenance and likely it would be permanent. Finally, if his retirement was earned during marriage, that should be subject to 50/50 distribution as well. Best regards. Email me if you need further assistance in this matter.
Does a quit claim need to notarized by a notary in the state in which the property is located?
In the state of Wisconsin, a notarial act upon a Wisconsin Real Estate Deed, by a notary from another state is sufficiently enforceable in the State of Wisconsin. That is, assuming the notary is any of the following:
“1. A notary public of that jurisdiction; 2. A judge, clerk, or deputy clerk of a court of that jurisdiction; or 3. Any other person…” so authorized. This is spelled out in Wisconsin Statutes Section 706.07(4). Also, subpart (7) of 706.07 spells out appropriate certificates of notary, and (8) spells out appropriate short-form. If you would like to discuss this quitclaim further, or make sure you have followed the code requirements, I welcome you to come in for a consultation.
Does it begin at the time of discovery?
Right, depending on the case it can either begin to accrue at the time of injury or later – when a reasonable person would have discovered the injury. For an action for medical malpractice (in Wisconsin), an action can be brought within EITHER (i) three years of the malpractice; (ii) one year of claimant’s discovery (based on reasonableness); or, (iii) within one year that claimant discovered foreign object was inserted into his or her body during the operation.
I would like to convert the status of my LLC to a non-profit (fee for service) 501(c)(3). I would like to know if this is even possible and if can be done in a timely manner. I would imagine that this would require IRS approval. In my consulting work I would like to bid for state and federal projects that are only applicable to eligible entities – one being a 501(c)(3). Also – how does this change my liability or tax filings (if applicable)?
Great questions! Sometimes, Wisconsin Corporate Law can become complex; this is especially so when it comes to achieving status as a 501(c)(3) non-profit.
If there are no stocks/dividends, this may be possible. In Wisconsin, you would likely want to start by dissolving it and then re-incorporating with the Department of Financial Institutions as a Non-stock corporation. Then, you would need to file a 1023 with the IRS, typically including bylaws, a relevant conflict of interest policy, your articles of incorporation, and 1023 answers requiring a separate sheet. That is an elaborate filing which includes a wait-time of 4-6 months until the IRS will decide whether to approve your status. If you do decide to go that route, it is highly recommended that you retain an Attorney to prepare the necessary documentation.
Can a person who recorded a conversation during a family meeting to discuss a family trust disclose that recorded conversation in a Wisconsin court civil case, if/when all other attendees were unaware of the recording and did not give permission to record the conversation? Please provide statutes to support your response.
That’s a great question, and one of the many complicated issues that can arise in Wisconsin in family law cases.
To start, if he was a party to the communication, it may be permitted but only if “authorized”. If not, it is a felony unless he was acting “under the color of the law” (typically only if a police officer, or through police instruction). If he was a party to the communication, it would initially seem under 968.28 to 968.34(c) of the Wisconsin Statutes, that such a private recording by a party to the communication is lawful. But, it being lawful is not the same thing as it being admissible. Under State v. Duchow, No. 2005AP2175-CR (Wis. App. 4/3/2007) (Wis. App., 2007), it must also be authorized by the court, and – if so – may only be used while giving testimony under oath. To receive such authorization, one must make an application for electronic surveillance to the circuit court, per Section 968.29(2). And, the Arnold Court found that to properly object, “to properly enforce the § 968.29 limitations… a writ of prohibition against admission of the intercepted conversations was required. Id., 51 Wis. 2d at 444.” So, the answer is, in short, (a) it is clearly illegal and even felonious if he was not a party to the conversation or acting under the color or the law; (b) if he was a party to the communication, he must receive authorization to be able to admit the recording AND – if he receives such authorization – he only is allowed to admit such evidence while testifying under oath. If you have any follow up questions or comments, I welcome you to ask away – as I am here to provide you with the best possible service.
I had a roof put on in Wisconsin. 60 days are past and I am ready to pay contractor, buts he says I do not need a Lien waiver from subcontractor. If I get a Lien waiver from primary contractor only, can the subcontractor sue me if he is not paid by primary contractor? What do I need to protect myself here? Subcontractor did not give me any lien notice, and it has been over 60 days since last work was done. I am concerned that a lien waiver from primary contractor is not enough to protect me from an unpaid sub? Is this true?
Wisconsin Real Estate Law can get complex, and even when it isn’t, it is. It would seem that getting a contractor to sign a lien waiver after 60 days would be all that is needed, since the subcontractor’s rights expire after 60 days anyway.
The subcontractor can come after you for a bill paid to the contractor, even after 60 days. While his lien rights may have expired, since 60 days have passed, there are issues such as unjust enrichment which may still apply. And, without a lien waiver from both, either can assert lien rights for unpaid work. So, there is cause to worry. Hence, it is typically advisable to get a lien waiver from the subcontractor whether or not the contractor also will be providing a lien waiver.
After I went to doctor, he told me I tore some muscles in my shoulder. When I went back to work, my bosses said sorry that they didn’t think I was in pain – after I told them I was – and they didn’t think I wanted to go to a doctor after I told them I did. What should I do?
I’m sorry that you have been forced to endure this unfair treatment. Luckily, the law is built to help those who’ve been abused as you have.
I agree with the two respondents. If you are denied time when hurt on the job, you can bring claim for worker’s compensation and under FMLA (for not being granted 12 weeks in the year to recover). Please email if you need assistance in this matter. I wish you all the best.