Well, I'm sorry if I offended Mr. Wilikins, and likely most the rest of the legal profession, but I chose my words carefully, and specifically, because the OP needs to fully understand what he is dealing with here. I could have said that the corporate legal department was a group of reasonable men, but that would be incorrect, an untruth, if you will, because reasonable men would be open to sitting down and negotiating a reasonable solution. Corporate law departments, on the other hand, are filled with lawyers who view their sole purpose as being to manufacture problems where none exist, so they can justify their salaries by protecting their employer from these imagined liabilities.

The OP hasn't told us exactly what the equipment in question is, but to discuss this hypothetically, it is likely either an insulated tankcar with asbestos contained within a jacket, or a former passenger car that contains a variety asbestos in pipe lagging and possibly cement board products. Needless to say, it is not hazardous now, since the asbestos is contained. Asbestos is only considered a hazard if it becomes friable. If this had been the case, the company would have recognized the problem and dealt with it.

I also think we can all agree that remediation that would allow continued use of the artifact comes at a different price than remediation during scrapping. If done during scrapping, all the bits and pieces that are in the way can be cut off and tossed in the scrap bin, then the "A team" called in to bag the work site while the asbestos is removed, followed by the reduction of the remains to bite sized bits. Remediation where you want to be able to reassemble the carcass is a whole 'nother ball game, and is going to cost significantly more. So, by insisting on full remediation, the law department is essentially insisting the artifact be scrapped.

The only way around this is to convince someone in the corporate hierarchy ABOVE the law department that there is more value in the good will generated by the donation than the potential costs likely to come from it. Possibly, the company should effect repairs before donation to ensure that the asbestos doesn't become friable in the foreseeable future. Possibly the company could even donate some money for future maintenance, so that it remains that way. Possibly they could craft an agreement where they retain ownership, so if neglect sets in, they can scrap it at that time.

But, don't expect these sorts of ideas to originate in the corporate law department.

I think you may have missed the point, Dennis - the corporate legal people have chosen what is, from THEIR perspective, the most reasonable solution: the one that most limits the potential for problems for their client, which is all they are concerned with. they have no need to take any interest in preservation, and won't unless it is in their client's greater interest to do so. It doesn't make them sharks or bad people, just people working towards another goal.

dave

No.

The corporate law department's responsibility, and rightfully so, is to protect the (presumably very deep-pocketed) corporation from having its proverbial socks and underwear sued off by a lawsuit from the museum visitor who fell off the car/loco/whatever and broke his leg and thus feels entitled to $120 million for pain, suffering, and disability, or from the restoration guy who got some form of cancer 20 years after cleaning up the piece they donated--aided and abetted, of course, by a jury of "peers" who were "too stupid to get themselves out of jury duty."

Now, granted, these lawsuits are typically instigated or heavily encouraged by certain "legal teams" that advertise their "1-800-LETS-SUE" or "DeweySuhem&Howe.com" services. So, my apologies, but once again we're back to making some of the attorneys out there look like scum. Not my problem. And if I suggest tort reform, we'll get a whole political thread going here, so........

If I recall, Graham and Robert Claytor did some mighty fine preservation work from inside the legal departments at SR and N&W.

In support of our lawyers posting here and lawyers elsewhere, I have several good friends who work in the legal profession, and all are good folks - including one who sits on our board at the Museum. And recently I received some extremely helpful pro bono advice on a personal family matter from an attorney who was kind enough to answer my call on referral from one of my attorney friends.

Circling all the way back to the OP. You may very well be in a jam if the current owner of the equipment is skittish about liability.

Wesley

The 1875, 3-foot gauge, 4-4-0 named "EUREKA" is owned by Dan Markroff who is a lawyer.

And Wesley points out a good point in Board development -- having a trained legal professional on the Board. Just like having people with finance, human resource, and other important skills on your Boards. Sometimes we get these resources without even trying -- but it points out a reason for having board development/nomination procedures. At Orange Empire we have had a railfan-attorney on our Board for years just because he chose to run and the membership continues to elected him.

I must disagree on that last point. They must also take into contention the legal department of a large and equally deep pocketed insurance company who may me the ones making bringing the suit to recap the money paid out in a claim for said individual who was negatively affected by the piece.

Those folks two are probably completely reasonable people working to make a living by recouping money for their employer, and potentially keeping rates on other policy holders down as well.

First, it's an "old saw" just as you say. Second, it was said about CRIMINAL prosecutions, and is referring to one specific type of criminal defendent: the egomaniac with no self-preservation instinct who has no grasp of how a jury perceives him. OK, so much for that saw.

Legal representation makes sense when the stakes justify it. It is lunacy to retain counsel for a failure-to-appear on a traffic ticket, or a $5000 credit card default. That's just a waste of money, you can do it yourself. The civil court system WANTS to be accessible to the common man, and actively labors to help the citizen self-represent. They want people resolving their differences in court not other ways. Court requires the the citizen "meet it halfway", do your homework and bring your A-game not your pride.

That's what Nolo Press is for. Are all those customers fools?
That's the whole point of small claims court. Is anyone who goes to small claims a fool?
Last time you bought a house, did you have a lawyer throughout the process? Biggest purchase of your life and you DIDN'T HAVE REPRESENTATION? Are you a complete fool?

*chuckle* of course not.

This situation isn't even a court thing, it's a relationship thing and a contracts thing if they're lucky. Where's the risk? What are the contingencies that would lead to exposure for the museum? Only thing I think is if the museum does remediation then balks at the move and you have a 5629 situation. They can have the sales agreement call out exactly what happens in that case. Talk to the other party, sort it out, cast it in agreement (their in-house legal will do the heavy lifting for you for free). If you're that worried abut it, spend $300 and have your litigator bless it. I'll recommend one if you like. Any idea why I said a litigator and not a contracts guy?

Yes, I walk my talk. I have self-represented in a variety of cases and won them all. I have also spent more in the past 2 years on lawyers than rent. Lawyers are a very, very expensive way to do business. You can win the case but you always lose the legal bill, unless --- HAHA, not talking about that. Google it.

They're great when you need them. Often don't need them.

IMO: If this group wants to save the unit, they need to raise money for 2 things. #1 doing asbestos remediation to the satisfaction of the company. #2 moving the unit. Money spent on anything else will be wasted. Be ready to do those things together, they'll get the unit. The lead paint is a non-issue.

You wanna go pro se for everything, have at it.

Once again, check those wordsmithing sites, for ones that exorcise the twin demons of contention and ostentation.

I read a book about was written by a lawyer -- something like "what they don't teach you in ...." book.

He said never send a lawyer to do your negotiation -- do it yourself. They tell your lawyer what you negotiated and have him write it up for you.

I think Mr. MacDowell hit the partially hit nail on the head. Maybe I'm not able to read these posts well, due to my beedy eyes and skullduggerous manner, but it seems to me, as I posted in my original response, that the issue here wasn't really the legal department. They had proposed a solution, remediation then donation. It is the local operation of this company that does not wish to spend their money on the remediation, and would rather let the item in question rot on site than do anything else. With that in mind, any proposed indemnification language (whether written by oneself or through counsel) probably would not make those evil corporate lawyers happy.

With regard to doing the negotiation yourself, that is not a bad idea and always the client's option. However in this case, the legal language is the negotiation itself (the indemnification language).

Seems to me, based on the facts as presented by the OP, the solution is to have the item remediated, and then it could be donated. Maybe paying for the remediation out of pocket for the local operation would be a good way to get them on board. Another option would to be to find someone higher up in the corporation that could champion the cause, and maybe force the local operation's hand with forking over the $$ for the remediation. With regard to the lead paint, while it may not be an issue to me, you, or your organization, as long as it is an issue for the donor, it is an issue that must be addressed.

With regard to the lawyer bashing, my point was and is that it isn't helpful to the current problem at hand. As the OP stated, corporate legal had a solution, that in many ways is workable. It was just the local operation that didn't want to go along with the proposed solution. I understand why people bash attorneys. I have a "Only You Can Prevent Lawsuit Abuse" car card from the Chicago Transit Authority framed and hanging in my office. But, at the end of the day, the lawyer bashing can do little to solve the OP's problem.