Archive Page 2

14
Jan
13

New Year, New Position

With the new year comes a new position as President of the Catawba County Bar Association! I will serve a one year term. Last Friday was our first meeting, with a speaker from Lawyer’s Mutual, Troy Crawford. Next month, we will get an update on the Catawba County Justice Center building expansion. We hope to have two service projects this year and a spring social event.

19
Sep
12

Self help may be less than helpful

Often clients will ask if they can use a self-help site (think Legal Zoom) for their legal needs.  Sometimes they will even be more blunt and ask: “Why should I come to you and pay more?”  The answer is that for very simple and straightforward issues, those sites may be helpful.  However, my experience has taught me that very few issues are simple.  Yes, there is a bit of “cutting and pasting” that goes into document preparation.  However, when you consult with an attorney, you are also paying for their experience and wisdom.  With an attorney, you have a relationship–the ability to follow up and ask questions and negotiate, mediate, or even litigate if necessary.  If you develop that relationship for a “simple” will, that attorney is there when someone contests the will (or you have an unrelated litigation dispute, etc)  Attorneys must follow ethical guidelines and most have malpractice insurance, as opposed to the  multiple disclaimers and waivers of liability you are likely to encounter with an online site.  Obviously, these online sites are of no use in adversarial environments.  So, we litigators won’t be replaced by computers soon.

Hopefully you will be able to address your concerns to an attorney before enlisting their aid.  If it takes you longer than a sentence or two to explain what you want to do (i.e. “I don’t own a house and I want to leave all of my money to my sister”), that’s a good indication that you need to see a lawyer.  I am certainly in favor of saving clients money–IF it is in their best interest–but lawyers are not financial planners.

A related issue for future discussion is the advantages and disadvantages of doing your own research about your type of case online.

Link to the story from “Law Sites”

 

 

17
Sep
12

Helping Hand

Thank you to all of those volunteers who helped out last Friday at the Hickory Soup Kitchen for the Catawba County Bar service project! We served many folks and learned about how the kitchen operates.

13
Jan
12

Do Tell…

Actress sues IMDB for revealing her age.

12
Jan
12

Supreme Court Stays Out

The Supreme Court rules that certain ministerial employees are unable to take advantage of federal discrimination laws:

http://www.washingtonpost.com/politics/supreme-court-discrimination-laws-do-not-protect-certain-employees-of-religious-groups/2012/01/11/gIQAIbO4qP_story.html

 

05
Aug
11

Arbitration

I was sworn in today by Chief District Judge Brady as an arbitrator.

North Carolina has court-ordered arbitration for most types of cases filed in District Court.  The exceptions include: evictions, many family law matters, special proceedings, wills and estates, and those where the sole claim is an action on account.  Parties can also agree to have arbitration in District Court actions (and in Superior Court actions where no more than $15,000 is in dispute).  Then there is binding arbitration, which may use other rules, but is still subject to the ethical restrictions of NC law for arbitration.

Arbitration is often called an “informal” process, but that sells it a bit short.  All sides present their case to the arbitrator in a hearing that lasts one hour.  The arbitrator will usually render his or her decision at the conclusion of the hearing.  This decision is binding and carries the same weight as any other judicial decision, unless it is appealed.  The rules of evidence are a guide, but the arbitration rules say that the arbitrator “shall consider all evidence presented and give it the weight and effect the arbitrator deems appropriate (emphasis added).”

Arbitration has significantly reduced the number of cases that are tried before a District Court judge and/or jury.  Many parties are satisfied that, even if the arbitrator did not rule in their favor, they have had their say.  Either party may appeal within 30 days and have a “trial de novo” (trial with a clean slate in which the arbitration ruling and testimony is inadmissible).  At the conclusion of the arbitration, the parties pay their equal share of the arbitrator’s fee of $100.00.

Sometimes arbitrators are accused of “splitting the baby”–a gruesome phrase, but it’s the one used.  Actually, the rules require the arbitrator to “resolve all issues raised by the pleadings” and award “any amount supported by the evidence.”  The arbitrator can even award more than what was demanded in damages, but is not allowed to award any “equitable relief.”  In short, the arbitrator should not try to play mediator or negotiator–the ruling should be based on the facts and the law, and not, for instance, arbitrarily split in two to encourage settlement or dissuade an appeal.

If the matter is appealed, an interesting system allows for the appealing party to recover their costs.  The first party that files a demand for a trial pays $100.00 to the Clerk of Court, who will hold it until after trial.  If the appealing party does better at trial than at arbitration, then the amount is returned to the appealing party.

I am looking forward to this new addition to the services that Morgan Law, PLLC provides.  In addition, I plan to become a certified Superior Court mediator by the end of January–and that’s a whole other blog for the future.

 

27
Jul
11

A New Path?

There is much debate as to the proper preparation for becoming an attorney.  Personally, I believe that more practical applications of concepts is needed.  Most law students know by their second year (if not sooner) whether they want to focus on civil or criminal law and probably whether they see themselves more as a litigator or transactional attorney.  Why not structure the education to focus on those skills that lawyers will need in their chosen specialties?

This article puts forth the pros and cons of various approaches:

http://www.nytimes.com/roomfordebate/2011/07/21/the-case-against-law-school?scp=5&sq=law%20schools&st=cse

11
Jul
11

Contracts 101

Does it have to be in writing?

Not necessarily!  For the vast majority of exchanged promises (which is what contracts really are), a handshake is good enough.  However, there are some exceptions that require a written contract.  These exceptions come up when someone is trying to defend against enforcement of a contract and they claim that the “Statute of Frauds” requires that the party that is supposed to be bound by the contract had to sign a written contract.  These agreements include:

  • promises to pay the debt of another
  • promises in consideration of marriage (no, you don’t have to write it down on bended knee–but if you are promising something in exchange for that “I do” then it needs to be in writing)
  • land agreements, including leases and easements for more than a year and mortgages
  • any promise that, by its own terms, cannot be performed within one year (this one can get tricky)
  • sale of goods valued at $500 or more (again, there are some exceptions, like specially manufactured goods)

Even if there should have been a writing and there wasn’t, there are other ways that someone can seek a remedy, such as what is called “unjust enrichment” or getting the reasonable value for the goods or services that should have been provided.

More often than not, I see clients that didn’t put it in writing because they were afraid they would offend the other party.  Believe me, they will be much more offended when you have to sue them because something wasn’t made clear in a contract.

Remember: the purpose of contracts is to provide clarity and to allocate risk BEFORE any troubles begin.  They don’t insure that there won’t be a lawsuit, but they may narrow the issues when litigation becomes inevitable.

04
Jul
11

Happy Fourth FAQ

From the NC DOL FAQ (can I add some more acronyms?)

Doesn’t my employer have to pay me time and one-half if I work on a holiday or on the weekend?
No. Unless your employer has promised to pay you extra for working on a holiday or on the weekend, your employer only has to pay you for the total hours you actually worked in the workweek regardless of what day or days you worked. Your employer has to pay you at least the minimum wage or your promised rate of pay (whichever is greater) for all of the hours you work, and your employer must pay you time and one-half overtime pay based on your regular rate of pay for all hours worked in excess of 40 in a workweek unless you are exempt for a specific reason.
What are the legal holidays that my employer has to observe?
None. There is no such thing as required legal holidays that employers have to observe. It is entirely up to your employer to give holiday time off with or without pay, or not to give any time off for holidays at all. However, once your employer does promise to give holiday pay, your employer must put its holiday policy in writing and make it available to its employees as it should with all wage benefit promises. Also, it is entirely up to your employer to decide which holidays it wants to observe if any at all.

29
Jun
11

Employment FAQ

From the NC Department of Labor FAQ page:

Does an employer have to give all of its employees rest breaks and meal breaks?
No. A rest break (generally 10 or 15 minutes) and a meal break (usually 30 minutes or more) are not required by law for anyone who is 16 years of age or older. A 30 minute break after 5 hours is required for youths who are 14 or 15 years of age.
Is there a restriction on how many hours an employer can work an adult employee?
No. Employees 18 years of age and older can be required to work as many hours as an employer wants. The employer has to make sure to pay the employee at least the minimum wage or promised wages (whichever is greater) and pay time and one-half overtime pay based on the employee’s regular rate of pay for all hours worked in excess of 40 in a workweek unless the employee is exempt from overtime pay for a specific reason.




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