Monday, October 30, 2017

What to do and know before your first meeting with a lawyer

Meeting with lawyers is often something that makes people anxious. I thought it would be helpful if I put together some tips for those meeting with a lawyer for the first time, based on my experience in working with clients. Some are dos and don'ts from meetings that have gone well or gone very poorly. Hope that you find them helpful.

1. Remember that lawyers are just people. There's no reason to be anxious or intimidated. We're here to help try to help you.

2. Schedule an appointment. Lawyers aren't Burger King. You don't get to just walk in and meet with a lawyer. Attorneys have other hearings and meetings, and projects to work on. Schedule an appointment so that you have the lawyer's full attention.

3. Know how long your appointment is scheduled for, so that you can be respectful of the attorney's time and other commitments.

4. Be on-time for your appointment. Again this is a way to be respectful of the attorney's time and other commitments.

5. If you can't make it to your appointment, or have hired another attorney, call and let the staff know that you are cancelling. Don't just no-show. It's rude.

6. If you think that documents, e-mails, text messages, photos, or anything similar are important to your case (or might be), bring them with you.

7. If there are particular people who know something about your case, bring their contact information (name, address, telephone number) with you, so that the attorney can get in touch if need be.

8. If your issue deals with a case already on file, bring the pleadings that you were served with. At a minimum, it is best if the attorney knows where the case is filed, and what the case number is.

9. Be respectful to attorneys and staff. Remember that we're all just people trying to do the best jobs that we can.

10. Don't be afraid to ask about the costs. But remember that attorneys may need to get some information from you about your case before they can set fees, retainers, etc.

11. If you don't understand what the lawyer means, say so and ask questions. Lawyers sometimes use jargon or terminology specific to an area of law, and may not realize that you don't understand.

12. Don't bring children, pets or other distractions to your appointment. Come ready to focus on the issue at hand

13. Remember that lawyers can't change the facts or the law. We can give you the best legal advice possible, and give you an idea of what you can expect. But we can't change the underlying facts or the law that applies to those facts, so we can't always give you what you want to hear.

Wednesday, September 13, 2017

What Happens if My Will Cannot be Located in Time?

I recently read a Nebraska Supreme Court decision, In Re Estate of Gilbert Fuchs, Deceased, 297 Neb. 667 (2017) in which Mr. Fuchs's will wasn't located until quite some time after he passed away. The Court had to decide what to do with this situation, and whether the will could even be probated.

Apparently Mr. Fuchs kept his paperwork in quite a state of disarray, with paperwork in vehicles, in totes, and all over his home. When vehicles would be sold, the buyers would package up all of the paperwork to be returned to Mr. Fuchs's Personal Representative.

The family was pretty sure that Mr. Fuchs had a will, but couldn't locate a copy after contacting local attorneys and the County Court (as Wills can be filed with the County Courts in Nebraska for safekeeping). Ultimately the Personal Representative, Mr. Fuchs's son, found the original will several months after he passed away, and several months after the probate proceedings had begun. This will differed substantially from how the law of intestacy distributed Mr. Fuchs's property. Unfortunately for Mr. Fuchs, and for his intended beneficiaries, the will was located too late. In Nebraska, the Uniform Probate Code requires that probate proceedings be commenced within 3 years of the date of death. Informal probate proceedings alleging that Mr. Fuchs died intestate (without a will) were begun shortly after his death. But a request to probate the will was commenced more than 3 years after his death. This subsequent request was denied as coming too late, and the Supreme Court upheld the lower court's finding.

It's an interesting case, but what does this mean for the rest of us? Well, it means that we need to make sure that our wills and other important paperwork is kept in a secure area, and that our loved ones know where this important paperwork is kept. Because if our loved ones cannot locate our will, then our wishes may not be carried out upon our deaths.

Tuesday, June 6, 2017

Oh No! My Loved One Was Arrested...What Do I Do?

This is a scenario that no one wants to find themselves in, but it unfortunately does happen. So your loved one is being/has been arrested, and you're trying to figure out what to do. Here are a few things to keep in mind and be aware of in the early stages of what appear to be likely criminal charges.

1. Don't interfere with law enforcement. If law enforcement is going to arrest someone, either on a warrant or because of conduct that they've been made aware of through an investigation, there is nothing that you can do to stop this. Don't hide a person that law enforcement is looking for, as that can be Obstructing a Peace Officer or Aiding and Abetting a Fugitive. Don't get in the middle of an arrest, as that can be Resisting Arrest or Obstructing. Let the arrest happen, and then deal with it after the fact. If you get in the middle of the situation, you can only make things worse, both for your loved one and for yourself.

2. Don't make statements to law enforcement, and advise your loved one not to either. I can't even tell you how many of my cases are proven largely by my client admitting to violations of the law, or by family members making statements that end up being harmful to my client. So the best course of action is to keep your mouth closed, and to advise your loved one being arrest to not make any statements either.

3. Hire an attorney as soon as possible. This should go without saying, but having an attorney involved at the earliest stages of a criminal case is important. Bond is set by the Court, and it's always helpful for the defendant to have an attorney to make a bond argument on his/her behalf. If there is no attorney involved, the defendant has to provide information to the Court directly, and could mistakenly make statements that can later be used against him/her. So the involvement of an attorney early on is important.

4. If the defendant can't afford an attorney, request a public defender as soon as possible. In most of the areas where I practice law, the public defenders are extremely qualified and excellent attorneys. So if a private attorney isn't in the cards financially, applying for the public defender is the next best option. And not delaying this application means that the public defender can begin working on the case as early as possible.

5. But don't think that a hired attorney or a PD can get a defendant out of jail in the middle of the night or on the weekend. In some low level cases, bonds are set by a schedule adopted in advance, so that people can post bonds and get out of jail right away. But for felonies or higher level misdemeanors, there aren't bond schedules. And it isn't required that defendants be brought before the Court for a bond setting until 48 hours. It simply isn't realistic to expect hired attorneys or PDs to be able to get defendants out of jail in the middle of the night or on weekends. Often we don't have the judge's cell phone number. And if we do, it won't do any good to make a call, as they're not going to set bond after a telephone call from one attorney. A hearing has to occur, where both the State and the defendant can make bond arguments. So don't expect middle of the night or weekend results. And don't buy into the hype from lawyers who tell you that they can achieve middle of the night or weekend results.

6. Be patient. I know that this is exactly the type of thing that people don't want to hear when their loved one has been arrested. But it's probably the single most important piece of advice. The wheels of justice turn slowly. Dismissals usually don't happen at the first hearing; and trials aren't immediate. It takes time to get discovery (police reports, photos, recordings, etc.) and plea offers. And it takes time for a criminal defense attorney to review this information and discuss it with a defendant. So even though it's terribly difficult, be patient.

Tuesday, May 16, 2017

Interpreters: How to Work Well Together

I've written previously about speaking for court reporters, and the advice that I had then applies very much the same when speaking for interpreters. However, there are some differences. And there is more to working with an interpreter than simply speaking clearly. I thought it would be appropriate to devoting a blog post to this topic, as it comes up fairly regularly in my practice, but also would be useful information for other people as well.

#1: Speak slowly.
Most people speak too quickly, especially when they are nervous.  People are more likely to be nervous when in court or in a deposition, and this is when interpreters are trying to convey every word that you say.  Therefore, if the interpreter is going to be able to repeat everything in another language, you need to speak slowly.  Chances are that you are probably still speaking more quickly than you think, anyway.  This rule is even more important if you are using medical terminology or other specialized terms which the interpreter is not likely to encounter very often, or for which there may not be a direct translation and which may need to be explained to convey the meaning.

#2: Read even more slowly.  
People read much more quickly than they typically speak.  If the document that you are reading is important (and it probably is, or you wouldn't bother to read from it), then you should slow down while reading to make sure that the words are translated.

#3: Don't go off on tangents.  
If the interpreter asks you to repeat something that you have said, do just that—repeat only what you said.  Do not go off on a tangent explaining the concept or background story to the interpreter. The interpreter was not asking you to repeat yourself because s/he did not understand the concept, but only because s/he did not hear or understand the words that you said.  

#4: Do not interrupt or speak over another person.  
An interpreter can only take interpret the words of one speaker at a time.  When people talk over one another or interrupt each other, the record becomes muddled and the interpreter cannot keep up.  Wait until one person has finished speaking before you speak.  

#5: Answer out loud, using real words.  
Do not nod or shake your head, as an interpreter cannot convey this.  Try to minimize mmm-hmm, hmm-mmm, uh-huh, and huh-uh, as these are often difficult to hear, and may lack direct translations.  Use "yes," "no," and other real word verbal responses.  

#6: Minimize the use of slang.
Slang often cannot be directly translated, or even conveyed in a meaningful way to speakers of other languages. Minimize the use of slang, making the interpreter's job easier, and making for language easier to understand by the listener.

#7: There is a difference between a translator and an interpreter.
Did you know this? I didn't until an interpreter explained the difference. A translator changes language from one to another in written form. An interpreter changes language from one to another in verbal form.  

#8: Court certified interpreters really are better.
Interpreters who have gone through the process to become court certified interpreters really do a better job. They have the skills necessary to convey meaning from language to language, and understand that the role of an interpreter simply is to repeat what is said (to the extent possible). When it is possible to use a court certified interpreter, I recommend it.

#9: Interpreters are not lawyers, however.
So we cannot assume that interpreters understand legal concepts well enough to explain them if there is no direct translation. Some interpreters have been working in the court system that they do understand, but not all will. So attorneys need to ensure that they are explaining concepts, and not just trusting or assuming that the interpreter can or will.

Tuesday, May 9, 2017

Non-Profit Series: 10. Applying for a Liquor License as a Non-Profit

Written by Sagan L. Carman-Downer

It is common for non-profit organizations to host events or fundraisers where they wish to serve alcohol. State laws will dictate what the organization needs to do to be able to serve alcohol at these events. This article will focus on the requirements in Nebraska for certain non-profit organizations to apply for a liquor license.

In Nebraska, an organization that is planning to have alcohol available at an event is required to get a liquor license, with only a few very limited exceptions. In the vast majority of situations, if there will be alcohol available for consumption or sale at the event, a license is required. Obtaining a traditional liquor license can be a very involved and costly process. Nebraska, though, provides a less intensive process for certain non-profits that are seeking a liquor license for only one or a few events throughout the year.

Non-profits that qualify, can apply for a Special Designated License (SDL), instead of a more traditional liquor license. Normally, a liquor license allows an organization to serve alcohol on an ongoing basis. The SDL, though, approves liquor service for only a single event.  In order to qualify for this less intensive application, the non-profit organization must be 1) formed as a corporation under state law, and 2) exempted from paying federal income tax (this is commonly achieved by receiving 501(c)(3) status as explained in installment 6 in this series).

If the non-profit meets these two requirements, they are able to apply for the SDL. The application is submitted to the Nebraska Liquor Control Commission to determine whether it will be approved. In order for the application to be approved, the non-profit must show that they are taking certain precautions to ensure that alcohol is being served only to people aged 21 or older, and being served in a safe and responsible manner.

For more detailed information on what specific precautions are required, and to access copies of the forms required to be submitted for the SDL application, this website is a great resource,

Tuesday, April 25, 2017

Non-Profit Series: 9. Additional Applications and Accounts for Non-Profits

Written by Sagan L. Carman-Downer

Once you have made the decision to start a non-profit organization and completed the steps to officially form an entity (filing Articles of Incorporation, for example), there are additional steps that may be necessary. This article will explain some of those additional steps.

Apply for Federal Employer Identification Number
One of the next steps will be applying for an Employer Identification Number (EIN or federal tax id). This is a unique number assigned to the organization by the IRS. An EIN will be used for things like opening bank accounts and identifying the organization for tax purposes. The organization will complete a form called an SS-4, which can now be completed online through the IRS website. If completed online, the organization can receive the EIN immediately after the application is submitted.

Set Up EFTPS Account
Your organization may also need to set up an account with the Electronic Federal Tax Payment System. This is a system for the organization to deposit tax money withheld from any employees the organization may have. This will include money withheld from employees’ paychecks for FICA taxes and income taxes. The organization should automatically receive instructions in the mail for setting up this account after they have received their EIN.

Apply for State Identification Number
Even if you have received an EIN through the IRS, you may still be required to obtain an additional tax identification number through the state where your organization is located. Many states require the organization to apply for this additional identification number for state tax purposes. This is likely necessary if you will have employees that the organization will be required to withhold state income tax for, or if you will be required to collect a sales tax or other state tax. This can typically be done by submitting an application for an identification number through the state’s department of revenue.

Additional State Requirements
There may be additional requirements that vary by state. For example, in Nebraska, the organization may have to purchase a workers’ compensation insurance policy. This is an insurance policy that provides benefits to employees who are injured during their employment. Unless the organization meets certain exceptions, they may have to provide this type of insurance for its employees or officers. Another example in Nebraska, is the requirement that the organization complete an application through the Department of Labor for unemployment insurance. If the organization will have employees, they may be required to complete this to provide unemployment benefits to employees.

This list provides information on some of the next steps that the non-profit organization will need to take once they have officially formed an entity. There may be additional requirements depending on the state in which the organization is located, and the type and size of the organization. To ensure that you have completed the necessary steps, submitted the necessary applications, and created the necessary accounts, it is best to speak with an attorney in your state.

Wednesday, April 12, 2017

Non-Profit Series: 8. Tax-deductible Contributions

Written by Sagan L. Carman-Downer

The previous article in this series explained that one of the benefits of a non-profit organization obtaining 501(c)(3) status, is that contributions made by others are tax deductible. This means that the person or business that donates (the donor), can deduct that amount from their taxable income, which may help lower their tax burden. The non-profit that is receiving the donation (the donee), and the donor, must comply with certain federal rules regarding disclosures and recordkeeping. This article will explain some of those requirements for cash contributions. It’s important to note that the requirements discussed in this article are for cash contributions, and will differ if the contribution is in the form of goods or services.

Requirements of Donor
To take the tax deduction, the donor is required to keep a record of the contribution. For a cash contributions (which includes cash, checks, electronics funds transfers, debit cards, credit cards, and payroll deductions), the donor must keep one of the following: a bank record (canceled check, bank statement or credit card statement); a receipt from the donee; or a payroll deduction record. Simply keeping track in a check register will not be enough, one of the above records must be retained in order to deduct the contribution from the donor’s taxable income.

If the donor makes a cash contribution of $250 or more, they must also get an acknowledgment from the donee. This acknowledgment is explained in more detail below.

Requirements of Donee
If the donee receives a contribution of more than $75 from one individual or business, they must provide a disclosure statement to the donor. The disclosure must be written, must note the value of the contribution, and must inform the donee that the contribution is tax-deductible. If the donee does not provide this disclosure statement, the IRS may impose a fine on them.

As mentioned above, if the donee receives a cash contribution of $250 or more, they must provide an acknowledgment to the donor. The acknowledgment must meet the following requirements:

·         It must be written;
·         It must include the amount of cash contributed;
·         It must indicate whether the donor received goods or services for the contribution (including the value of the goods or services); and
·         It must be received by the donee before their tax return for that year is due.

This article provides a general guideline of the disclosure and record keeping requirements for cash contributions to non-profit organizations that have qualified for tax-exempt status under 501(c)(3). There may be additional requirements for larger cash contributions, and the requirements for contributions of goods or services will differ significantly. There are also additional rules on whether the donor can deduct these contributions, and if they can, how much can be deducted. The extent to which contribution is deductible will depend on each individual’s circumstances, so it would be best to speak with an attorney or other tax professional to discuss your specific situation.