 |
|
In the Spotlight
|
Ethan W. Smith is a partner in the law firm of Starfield & Smith, P.C., where his areas of practice focus on government guaranteed lending, commercial lending, banking, real estate and commercial law. Ethan has closed thousands of government guaranteed loans on behalf of his lender clients, assists lenders nationwide with SBA guaranty purchase issues and has been retained as an expert witness on SBA related litigation matters. Ethan is a licensed title insurance agent for Chicago Title and Fidelity National Title in both Pennsylvania and New Jersey. He is a member of the National Association of Government Guaranteed Lenders (NAGGL) and is a frequent speaker and serves as a member of its Associate Member Committee. Ethan is also an affiliate member of the National Association of Development Companies (NADCO), is a member of its Attorney Advisory Council and is qualified as a designated closing attorney for the SBA 504 Program. During the years 2005-2011, Ethan was honored by being named a Pennsylvania "Rising Star" by Philadelphia Magazine and is rated by Martindale Hubbell as an "AV Preeminent" attorney. He earned his B.A. degree from Johns Hopkins University, Baltimore, Maryland and J.D. degree from the College of William and Mary School of Law.
ADMISSIONS:
- Pennsylvania
- New York
- Federal District Court for the Middle District of PA
To read more about Ethan, click here.
| |
|
|
|
Starfield & Smith, PC is on LinkedIn!
Link yourself to Starfield & Smith to receive updates, articles and news pertaining to SBA and lending related topics.
|
|
Find us on Facebook!
Become our fan on Facebook to receive updates, articles and news pertaining to SBA and lending related topics.
|
|
|
FEATURED ARTICLE
Best Practices: Settling a Business Dispute Without Fear of Making an Admission
By: Norman E. Greenspan, Esquire
|
| | Norman E. Greenspan, Esquire |
Business persons often want advice regarding their discussions with persons or companies with whom they are embroiled in a dispute. Often the dispute is between two companies that have an ongoing business relationship and have a need to communicate about a variety of matters that arguably touch on the matter that is in dispute. There may be reluctance to get lawyers directly involved because that will be seen as an act of war that will only serve to escalate matters, not get them resolved. From a business perspective there may be good reasons to try and settle a dispute despite the belief that there is no merit to the claim. Yet, there is a legitimate concern in not wanting to say or do anything that is going to hurt "the case" should the dispute not be settled.
From a purely legal perspective, there are rules of evidence in both federal and state courts that make conduct or statements made in compromise negotiations, or offers to compromise or settle a dispute, inadmissible at a trial. See, e.g., Rule 408(a), Federal Rules of Evidence, which is also the model for many state court rules of evidence. The two prerequisites for the application of Rule 408(a) are the existence of a disputed claim and negotiations or discussions whose purpose is to compromise or settle the claim. However, what constitutes an existing dispute? Must there be a pending lawsuit, or a lawyer's demand letter, in order for there to be an existing dispute? At what point do discussions between the parties evolve into compromise negotiations? Can there be compromise negotiation if lawyers are not involved? There are no bright line answers to these questions, or a simple rule to follow.
Nonetheless, there is an underlying public policy that provides the framework for the application of the inadmissibility rule to settlement negotiations and offers to compromise. As a general matter of jurisprudence, rules and laws are interpreted by courts to protect the interests of the public. Courts see the settlement of disputes as being in the public interest, and that disputes are likely to be settled only if there is free and frank discussion toward settling the dispute. There can only be free and frank discussions if the parties are not concerned that whatever they say, or any offer or demand in compromise that they make, will be used against them at a trial if the matter does not settle. The United States Court of Appeals for the Sixth Circuit had this to say about this concern:
There exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations. ...The ability to negotiate and settle a case without trial fosters a more efficient, more cost-effective, and significantly less burdened judicial system. In order for settlement talks to be effective, parties must feel uninhibited in their communications.
Goodyear Tire & Rubber Co. v. Chiles Power Supply, 332 F.3d 976, at 980 (6th Cir. 2003).
Nonetheless, the inadmissibility of the evidence of settlement discussions does not mean that it is beyond discovery in a civil case. For information to be discoverable, it does not have to be admissible. It only needs to be reasonably calculated to lead to the discovery of admissible evidence. Rule 26(b)(1), Fed. R. Civ. P. Indeed, Rule 408(b), FRE, addresses some very limited circumstances where this evidence is admissible. Some courts have allowed the discovery or settlement discussions even though the evidence of those discussions was inadmissible at trial.
Neither Rule 408(a) or the existing case law requires that an attorney be involved in the settlement discussions for the settlement inadmissibility rule to apply. So, here are some practical pointers if you want to try and resolve a dispute without having to unnecessarily worry about what you say or offer coming back to haunt you:
- Address the specific problem directly with the other side, separate and apart from other business issues.
- Have each party agree that the discussion you are going to have is for the purpose of trying to resolve a dispute, and that each side agrees to keep these discussions confidential and limited to only those persons who need to know.
- Both sides should acknowledge that there is a dispute, and that these discussions are for the purpose to trying to settle the dispute.
- Get the agreement in writing.
As with most things in life, there is no guaranty that this will work. However, it should provide you with a significant measure of comfort to allow you to move forward with your business instead of being stymied by a resolvable dispute.
|
EVENTS & SEMINARS 
Closing & Funding the SBA Loan
Presented By: NAGGL
Instructor: Ethan W. Smith
Date: September 14-15, 2015
Location: Indianapolis, IN
For more information about this event and/or to register, click here.
2015 FLAGGL Conference
Presented By: Florida Association of Government Guaranteed Lenders
Date: September 16, 2015 - September 18, 2015
Location: Gaylord Palms Resort, Orlando, Florida
For more information about this event and/or to register, click here.
Date: November 2, 2015 - November 6, 2015
How to get SBA to Honor Its Guaranty
Instructor: Ethan W. Smith
Date: November 5, 2015
For more information about this event and/or to register, click here.
Advanced SBA Loan Closing & Documentation
Instructor: David W. Starfield
Date: November 5, 2015 & November 6, 2015
For more information about this event and/or to register, click here.
|
Mark Danford / President & CEO / Waterstone LSP
I have worked with Starfield & Smith, PC for almost 10 years. Ethan Smith and his team provide the best service and attention to detail that helps our companys continued success. I've never known another lawyer more prepared or focused. He and his team have the ability to dissect a loan, identify the tasks needed to put the lender in a position to protect their SBA guaranty. They provide great service, meeting the needs of our firm as a loan service provider, the lender and the borrower. I highly recommend Starfield & Smith to any lending institution closing SBA loan transactions.
|
|
NAGGL BOARD OF DIRECTORS
VOTING HAS BEGUN
|
| | David W. Starfield, Esquire |
DAVID W. STARFIELD is running for re-election to the Associate seat on the NAGGL Board of Directors and would greatly appreciate your support. His unique experience and clear contributions to NAGGL make him a strong candidate to fill this seat.
- As a NAGGL Board member, David made frequent visits to DC/Herndon advocating enhancements to SBA loan programs.
- NAGGL "Distinguished Service Award" (2012)
- SBA Financial Services Champion (Eastern PA 2009)
- NAGGL "Instructor of the Year" (past recipient)
- Technical Issues Committee (advisor)
- District III Liaison Committee (current member)
- Convention and Education Committee (past member)
- Developer, presenter and writer of numerous courses/seminars/webcasts/articles/roundtables/ breakout sessions on subjects running the gamut, from eligibility through documentation, closing, servicing, liquidation and guarantee purchase.
David would like to represent you in the battle to invigorate SBA loan programs and make them a key factor in our nation's recovery from the recession. He hopes that you will support his efforts with your vote and, in return, he will represent you to the best of his abilities.
|
|
|
