Do Lawyers Exaggerate the Severity of Legal Problems?

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Lawyers, like all other professionals, sometimes exaggerate the severity of the problems they deal with.  What might be a small legal issue can be blown out of proportion when an attorney explains the matter to a lay person using hyperbolic terms.

Why do some lawyers do this? It seems lawyers engage in this behavior for a few reasons.

1. It encourages people to hire the lawyer.  Here’s a common example.  For most people the probate process in Massachusetts is about the same whether you die with or without a will.  A will does save some money and time during the probate process and there are circumstances in which a will greatly reduces the cost of administering an estate.  But in most cases a will makes little difference.  Nevertheless, almost every estate planning attorney will describe the probate process as a total nightmare that can only be avoided only by employing him or her to draft your will or living trust.

2.  By exaggerating the nature of a client’s problem, the lawyer’s advice seems much more valuable.  For example, a few years ago I advised an elderly couple to take their house out of their name.  The circumstances were such that it was the best way for the couple to qualify for state aid with their nursing home bills and to avoid liens which could result from the aid.  The family knew a tax attorney who told the couple that my advice was “tax suicide” because, in her opinion, it would result in a higher tax rate when they sold the property.  Although the threat of losing the house due to nursing home aid was more substantial than the possibility of paying higher taxes in the future, the couple went with the tax attorney’s advice because it was proposed in more ominous terms.

3.  Finally, lawyers exaggerate the severity of problems to win arguments with other attorneys.  As with the prior example, lawyers often disagree with each other regarding what’s best for a person legally.  Often it’s the lawyer who can create the most fear in the client that wins the argument. 

Hiring Movers for the Day of Your Closing — Often a Gamble

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Hiring a moving company for the day of your closing can be a gamble. These companies often charge hundreds of dollars per hour. Overly optimistic buyers schedule the movers for the morning of the closing, often at 8 or 9 am. Unfortunately, buyers can’t move in to the new house until the deed is recorded at the registry of deeds. And that usually does not happen until late in the afternoon, often at 3 or 4 pm. This causes a tremendous amount of added stress for the buyers on closing day and leaves them with yet another big bill to pay at part of the closing process.

Need legal help? Email justin@jrmccarthy.com

Quantum Meruit: Legal Claims for Unpaid Services

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Quantum meruit (Latin for “as much as he has deserved”) is a legal claim for the reasonable value of services rendered.

The Massachusetts Supreme Judicial Court describes quantum meruit as follows:

It is an obligation that arises under quasi contract theory in which an obligation is created by law for reasons of justice…The underlying basis for awarding quantum meruit damages in a quasi-contract case is unjust enrichment of one party and unjust detriment to the other party. The injustice of the enrichment or detriment equates with the defeat of a person’s reasonable expectations. While a party does not recover on the contract itself under quantum meruit, a court may look to the terms of the underlying contract to help determine appropriate recovery under quantum meruit.” Liss v. Studeny, 450 Mass. 473, 479-480 (2008).

To succeed with such a claim, the plaintiff must establish:

(1) that he or she conferred a measurable benefit upon the defendants;

(2) that the claimant reasonably expected compensation from the defendants; and

(3) that the defendants accepted the benefit with the knowledge, actual or chargeable, of the claimant’s reasonable expectation.

Plaintiff often couple a claim for quantum meruit with similar claims such as promissory estoppel, unjust enrichment, breach of contract, and the Massachusetts’ consumer protection law 93A.

Real Estate Walkthroughs and “Broom Clean” Condition

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Most residential purchase and sale agreements contain a provision which states,

The SELLER agrees that the premises will be delivered to the BUYER in “broom clean” condition. The BUYER shall have the right to inspect the premises for compliance with this paragraph prior to delivery of the Deed upon reasonable notice to the Broker.

This means that prior to the time of closing, the seller most remove all of his or her possessions from the property and, at the very least, sweep the house clean.

Occasionally a seller may wish to leave behind customized items that would be helpful to the new owner.  For instance, when I purchased my home the prior owners left behind a few antique door knobs that matched the other door knobs in the house.  They also left a can of paint that matched the paint in our living room.

Before leaving such items behind, however, the seller or the seller’s agent should check with the buyer for approval.

Buyers will have an opportunity to examine the house before the closing to ensure it has been cleaned out.  This examination, known as the “walk through”, usually happens on the same day of the closing.  Seller’s frequently fail to clean the house out entirely.  Unfortunately, many buyers will close regardless of any mess left behind simply because they do not want to incur the expenses caused by postponing the transaction.  

Need legal help? Email justin@jrmccarthy.com

Common Problems when Selling a House “As Is”

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Some real estate contracts state that the house is being sold “as-is”. This essentially means that there is a mutual agreement between the parties: the seller will not make any repairs to the house before the closing and the buyer will not request such repairs.

Although the concept of an “as is” clause is simple, there are a few issues that both buyers and sellers should be aware of. First, if the buyer is getting a loan to purchase the property, the bank may require that certain repairs get done before the closing. This is most likely to happen when the buyer is getting an FHA or VA loan. Second, Massachusetts law requires home sellers to get a smoke certificate prior to selling their house. Sometimes installing or upgrading smoke and carbon monoxide deters in order to pass inspection can be costly, especially if the work requires hardwiring. Finally, the “as is” clause does not always deter hard-bargaining buyers from requesting repairs or reductions in the sale price. This happens more often than it should and it causes a lot of justifiable frustration among sellers.

Need legal help? Email me at justin@jrmccarthy.com.

Last Will & Testament of Sigmund Freud, September 23, 1939

Sigmund Freud, 1856-1939, Austrian psychiatrist, in the office of his Vienna home looking at a manuscript.

I, SIGMUND FREUD of 39 Elsworthy Road Hampstead in the County of London HEREBY REVOKE all former Wills and Codi­cils made by me and DECLARE that this is my last Will.

  1. I APPOINT DR. MARTIN FREUD of Mount Royal W. 1 and ERNST FREUD of 32 St. John’s Wood Terrace N.W. 8 and ANNA FREUD of 39 Elsworthy Road N.W. 3 to be EXECUTORS AND TRUSTEES of this my Will.
  2. I BEQUEATH the following specific legacies free of legacy duty (a) TO my daughter Anna my Collection of Antiques as defined by the Catalogue (b) TO my daughter Anna my Collection of Books on Psy­chology and Psycho-Analysis
  3. I DEVISE AND BEQUEATH all copyrights and interests in copyrights to which I am entitled to my trustees UPON TRUST to retain same and to pay the whole of the net royalties and profits or of moneys in the nature of royalties or profits whether the same be payable by virtue of any agreement made by my trustees or virtue of any agreement made by me in my lifetime to all the issue of my children who shall be living at my death and attain the age of twenty­ one years or (being female) marry under that age other than Ernst Halberstadt son of my daughter Sophie and if more than one in equal shares as tenants in common I DIRECT that my Trustees shall have the fullest powers to sell and deal with such copyrights and interests in copyrights including power to grant licenses or rights (whether exclusive or not) of printing publishing selling or performing the subject mat­ter of any such copyright and that any such sale or dealing may be made wholly or partly in consideration of royalties to be paid to my Trustees AND I DECLARE that my Trustees may join with other persons interested in any such copyright in any such sale or dealing as aforesaid
  4. I BEQUEATH an annuity free of all duty to my Sister-in­ law Minna Bernays of Three hundred pounds during her life by equal quarterly payments the first whereof shall be made three months after my death and I DIRECT my Trustees · to appropriate in their names investments of _any nature hereinafter authorized of an amount sufficient at the date of such appropriation to answer out of the income thereof for . such annuity and I DECLARE that such income shall be the primary fund for answering the said annuity and the capital of the said investments shall form a secondary· fund for answering the same in the event of the income proving insufficient and further that after any such appropriation shall have been made my residuary estate or the income thereof , shall no longer be liable to provide for the annuity in respect of which such appropriation shall have been made AND I DECLARE that the balance (if any) of the appropriated fund not required in any year for answering the annuity shall be part of the income of my residuary estate and shall be distributed accordingly
  5. I DEVISE all my real estate and I BEQUEATH all the residue of my personal estate to my Trustees and I DIRECT my Trustees to sell call in and convert into money all such parts of my real estate and residue of my personal Estate as shall not consist of investments of the nature hereinafter authorized
  6. OUT of the clear moneys to arise from such sale calling in and conversion as aforesaid and out of such investments as aforesaid my Trustees shall pay or provide for my debts funeral and testamentary expenses and annuity and any du­ ties payable thereon and on the said legacies and subject thereto my ‘Trustees shall invest · in manner hereinafter authorized the residue of the said .clear moneys and stand possessed of such investments and of the residue of such investments as aforesaid which formed part of my real Es­tate and residue of my personal Estate at the time of my death and of all parts of such Estate for the time being unsold (hereinafter called “my residuary Trust Fund”) upon the following trusts: (a) UPON TRUST to pay the income thereof to my Wife Martha during her life and after her death (b) UPON TRUST as to both capital and income for all and every my children or my child (if only one) living at my death who being sons or son have attained or shall attain the age of twenty one years or being daughters or a daughter have attained or attain that age or previously marry and if more than one in equal shares as tenants in common (c) PROVIDED NEVERTHELESS that Ernst Halberstadt being issue of my daughter Sophie who has died previously to the execution hereof shall if living at my death stand in the place of my said daughter Sophie and take the same share of my residuary Trust Fund which my Daughter Sophie would have taken if she had survived me and had attained a vested interest (d) PROVIDED FURTHER that in case any child of mine shall die during my life time leaving issue living at my death who being male attain the age of twenty one years or being female attain that age or previously marry such issue shall stand in the place of such deceased child and take per stirpes and equally between them if more than one the share of my Residuary ‘!rust Fund which such deceased child would have taken if he or she had survived me and taken a vested interest
  7. I HEREBY DECLARE that notwithstanding the trusts hereinbefore declared in favor of my children it shall be lawful for my Trustees upon the written request of my Wife at any time or times to raise any sum or sums (not exceeding two thousand five hundred pounds in any one year and not exceeding Fifteen thousand pounds in all) out of the capital of my Residuary Trust Fund to pay such sum or sums to my Wife for her absolute benefit in addition to the income of my Residuary Trust Fund hereinbefore given her
  8. I RELEASE each of my children from any legal liability to pay any debt which may be due from him or her to me at the date of my death but each of my children shall bring into hotchpot against the capital of his or her share such sum and such sum only as I may have debited subsequent-to the date hereof against him or in the case of a daughter against her or against her husband in my private ledger
  9. I DECLARE that my Trustees may postpone the sale calling in and conversion of any part of my real or personal estate for such period as they may in their absolute discretion deem fit without being liable to account notwithstanding that it may be of a wasting speculative or reversionary na­ture and that pending such sale calling in and conversion the income (including the net rents and profits of real estate and chattels real after payment of rates taxes rent costs of insur­ance repairs and other outgoings properly attributable in the opinion of my Trustees to income) of property actually producing income shall be applied as from my death as income and on the other hand on such sale calling in and conversion or on the falling in of any reversionary property no part of the proceeds of such sale calling in or conversion or of such property shall be paid or applied as past income
  10. I DECLARE that all moneys liable to be so required to be invested under this my Will may be invested in any one or more of the following modes of investment (a) ANY investments from time to time sanctioned by Law for the investment of Trust Funds (b) ANY Public Stocks or Funds or Government-Securities of Great Britain or of any British Dominion or of any Foreign Government or State (c) FREEHOLD or Leasehold Securities (the latter having not less that Forty Five Years unexpired at the date of such investment) in Great Britain (d) STOCKS Shares or Securities the capital whereof or a minimum rate of interest or dividend thereon is guaranteed by the British Government (e) STOCKS Bonds Mortgages or Securities (by whatsoever name they may be called) of any Public Municipal or Local Body or Authority situate in Great Britain or in any British Dominion or in any foreign state (f) SUCH Stocks or Securities quoted on the London Stock Exchange as shall be certified in writing by one Member of that Exchange to fall in the opinion of such Member within the description of gilt edged securities (g) STOCKS Bonds Debentures Debenture Stocks or Mort­ gages or Securities (by whatsoever name they may be called) or any Railway Shipping Canal Dock Harbour Gas Water Electric Light or Power or Wireless Company Transport Grain-Elevator or Oil Company or other Public Utility Company or any Banking or Insurance Company Incorpo­rated by Royal Charter or by Special Act of the Parliament at Westminster or of the Legislature or Government of any British Dominion or of any Foreign State or of the United States of America or incorporated under any General Act of any such Parliament Legislature or Government as aforesaid all such investments paying interest or dividends at the date of investment (h) THE guaranteed· or preference stock or. shares of any such Company as aforesaid which has in each of the years· immediately prior to the date of investment paid a dividend at the rate of- at least Five Pounds per centum per annum upon its Ordinary Stock or Shares of which fact a letter purporting to be signed by the Secretary of the Company or by a Member of the London Stock Exchange or by the Secretary or Manager or Branch Manager of a Joint Stock Bank shall be sufficient evidence (i) THE guaranteed or preference or preferred Stock or Shares of any such Company as aforesaid which has in each of the three years immediately prior to the date of invest­ment paid a dividend at the rate of at least five per centum per annum on such stock or shares of which fact a letter purporting to be signed by the Secretary of the Company or by a Member of the London Stock Exchange or by the Secretary or Manager or Branch Manager of a Joint Stock Bank shall be sufficient evidence (j) THE Ordinary Stock of any Railway Company as is men­tioned in Section 1 (1) (g) or (h) of the 1rustee Act 1925 (k) THE Ordinary Stock or Shares of any such Company as is mentioned in (g) above upon which Stock or Shares there has in each of the Three years immediately prior to the date of investment been paid a dividend at the rate of at least five per centum per annum of which fact a letter purporting to be signed by the Secretary of the Company or by a Member of the London Stock Exchange or by the Secretary or Man­ ager or Branch Manager of a Joint Stock Bank shall be sufficient evidence (l) ANY share capital or loan capital of any Company regis­tered in England under the Companies Acts and having a capital paid up or credited as paid up of not less than two hundred thousand pounds (m) GOLD Silver or other metals provided not more than twenty per cent of my Residuary 1rust Fund is so invested
  11. 11. I negative the rule known as the Rules in Howe v. Earl Dartmouth and Allhusen v. Whitten in all their branches
  12. NO 1rustees of this Will shall be liable for any loss not attributable (a) to his own dishonesty (b) to the willful commission by him of an act known by him to be a breach of trust and in particular he shall not be bound to take any proceedings against a Co-1rustee for any breach or alleged breach of trust committed by such Co- Trustee
  13. THE Statutory Power of Appointment of New Trustees of

this my Will shall be exercisable by my said Wife during her life

IN WITNESS whereof I have to this my last Will set my hand this day of One thousand nine hundred and thirty eight.

SIGNED by the above named SIGMUND FREUD as his last Will in the presence of us both being present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as Witnesses.

When May a Person Remove a Dog From Another’s Car Due to Extreme Weather?

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In Massachusetts it’s legal to remove a dog from another’s vehicle if the animal is in immediate danger due to severe weather conditions. Before taking such action, however, a number of steps must be followed. Massachusetts General Law chapter 140, section 174F(e) reads as follows:

After making reasonable efforts to locate a motor vehicle’s owner, a person other than an animal control officer, law enforcement officer or fire fighter shall not enter a motor vehicle to remove an animal to protect the health and safety of that animal in immediate danger unless the person:

(i) notifies law enforcement or calls 911 before entering the vehicle;

(ii) determines that the motor vehicle is locked or there is no other reasonable means for exit and uses not more force than reasonably necessary to enter the motor vehicle and remove the animal;

(iii) has a good faith and reasonable belief, based upon known circumstances, that entry into the vehicle is reasonably necessary to prevent imminent danger or harm to the animal; and

(iv) remains with the animal in a safe location in reasonable proximity to the vehicle until law enforcement or another first responder arrives.

Sections (f) states:

A person who removes an animal from a motor vehicle pursuant to subsection (e) shall be immune from criminal or civil liability that might otherwise result from the removal.

Need legal help? Contact me at justin@jrmccarthy.com.

Can You Be Pro-Police and Anti-Government?

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If 2020 has taught us anything, it’s that police throughout the Western world will not hesitate to forcefully impose arbitrary and absurd government regulations. 

Consider just a few examples from this month alone.  In Australia a pregnant mother was arrested in front of her family for a Facebook post inviting fellow Aussies to an anti-lockdown protest.[1]  In Spain a fourteen-year-old boy who refused to wear a mask was thrown to the ground by an officer who then kneeled on the boy’s back as he screamed in pain.[2]  In the US two policemen removed a mother and her year-old child from an airplane because the infant’s face was not covered.[3]  Most disturbing of all, police in Quebec have been quietly seizing and detaining healthy citizens who have refused to comply with the city’s COVID-19 regulations.[4]

All of these incidents were reported with indignation by pundits in the right-wing media.  Conservative commentators rightfully warn us that government is overstepping its bounds and that we may be the next to get an unwanted visit from the police or even a shove to the ground and a knee to the back. 

Yet it’s the same right-wing pundits who are the first to defend the most excessive police brutality whenever someone refuses to comply with an officer’s orders.  They faithfully “back the blue” with almost blind loyalty and even support arming the police with military-style weapons and equipment. 

Do these conservatives fail to see their own contradictions?

Ask yourself: if full-fledged socialism comes to the Western world, who will be on the frontline imposing it?  It won’t be the beta-male bureaucrats forcing you to comply.  It will be the “thin, blue line” of the police—equipped with their military-grade weaponry—that will physically force you to obey orders.  Don’t think they’ll do it?  Just look at the cases I cited. 

I am not advocating defunding the police.  No sane person would propose that.  Nor am I suggesting that a police force is antithetical to a free society.  We need cops.  Rather, I’m asking conservatives to reflect for a moment on their contradictory views.  Government and law enforcement are one and the same.  You cannot be critical of laws that infringe on our liberties while praising the men and women who dutifully enforce those laws—if necessary with violence.

Our freedom depends on a healthy skepticism towards government.  That skepticism should be applied to all facets of the state, especially the police.


[1] https://www.usatoday.com/story/news/world/2020/09/02/pregnant-woman-arrested-over-anti-lockdown-event-australia/5693574002/

[2] https://www.thesun.co.uk/news/12634607/cop-kneels-neck-boy-george-floyd-mask/

[3] https://www.dailymail.co.uk/news/article-8715603/WestJet-canceled-flight-dispute-toddler-mask-rules-caused-rapid-escalation-board.html

[4] https://summit.news/2020/09/09/quebec-city-says-it-will-isolate-uncooperative-citizens-in-secret-corona-facility/

Termite Inspection Clause in Residential Purchase and Sale Agreements

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Almost every residential real estate contract in Massachusetts contains a termite inspection clause. The clause requires the home seller to pay up to $1,000 for termite treatment if necessary.

The typical termite clause reads as follows:

“This Agreement is subject to the right of the BUYER to obtain, at BUYER’S own expense, a termite or other wood-destroying insect inspection and written report, being made by a licensed exterminator, on or before ten days from the date of this agreement. If the inspection shows that there is no evidence of termite or other wood-destroying insect infestation in the existing construction, or if infestations had existed, they have been corrected, this Agreement shall be in full force. If the inspection shows that there is evidence of termites or other wood-destroying insect infestations and/or damage as a result of infestations, the BUYER shall furnish SELLER with a copy of the written report(s) stating the results of the inspection. If the total cost of treatment and repair does not exceed $1,000.00 the SELLER shall undertake such treatment and/or repair and the BUYER shall be bound to perform the BUYER’S obligations under this Agreement. In the event that said cost shall exceed $1,000.00, the SELLER at SELLER’S option, may bear all expenses in excess of $1,000.00 or may, subject to the BUYER’S election hereinafter stated, cancel this Agreement by notifying the Broker in writing, in which event this Agreement shall become null and void and all deposits made hereunder shall be refunded to the BUYER. Notwithstanding the SELLER’S right to cancel, the BUYER may, upon prompt written notice to the SELLER, agree to pay all amounts in excess of $1,000.00, in which case the SELLER shall be bound to perform this Agreement, paying the first $1,000.00 of the cost of extermination and/or repair.”

Need legal help? Contact justin@jrmccarthy.com

Wire Fraud: How to Spot It and How to Avoid It

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Since 2016 a staggering $26 billion has been stolen through wire fraud. Probably the number one target for these schemes are real estate attorneys and their clients.

The typical wire-fraud scenario involves a criminal either hacking into an attorney’s email or creating an email similar to the one used by the attorney and then sending a request to the client asking that funds to be wire. The wire instructions, of course, are not to the attorney’s escrow account, but to the criminal’s bank account.

The best way to avoid becoming a victim to such a scheme is to always verify wire instructions before sending money. To verify instructions speak directly to your attorney or his paralegal either over the phone or, preferably, in person and have them confirm the account information.

Also, beware of the following red flags: sudden changes in an attorney’s wire instructions, a change in your attorney’s email address, an urgent request that funds be wired immediately, and vague or overly-professional introductions such as “Dear Sir/Madam”.

Need legal help? Email justin@jrmccarthy.com.