Showing posts with label Law Blog. Show all posts
Showing posts with label Law Blog. Show all posts

Thursday, August 11, 2011

How to Prepare for a Consultation

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Your Frequently Asked Questions
For your Thursday post, I want to highlight one of the FAQ sections from the New Client Welcome Center on the main law firm webpage.

When should I make an appointment?
We recommend that you plan to make an appointment 2 days in advance.  This will give us greater flexibility in creating our schedule and allows us to prepare for our meeting.

If you have a pressing matter and need to meet sooner, we will do our absolute best to accommodate your schedule.

How should I dress for our meeting?
If you need to make an appearance in court, we’ll discuss your wardrobe; but until then just dress comfortably and avoid anything with offensive slogans or images.

What should I bring with me?
Make sure that you bring all of the relevant documents that might help us to evaluate your case.  This includes any court documents, letters, pictures, reports, and medical records.

Bring the necessary documents so that you can fill out the Client Intake Form (Fig. 1).  Also, please bring any contact information you have for people that are associated with your case (both for and against).

Who else should come with me?
The Attorney-Client Privilege allows you and your attorney to discuss the gritty details of your case without fear of someone forcing your attorney to disclose anything you have revealed.

At Matthew Harris Law, we take the Attorney-Client Privilege very seriously and hold your information in the strictest of confidences.  If we allow people that aren’t directly related to your case, such as family members and friends, then you may inadvertently waive that privilege and your attorney could be forced to disclose what you have revealed.

So in an effort to preserve your rights, we ask that you not bring family members or friends to your meetings with us.  If you must bring someone else with you, then explain to them why they must sit in the waiting room instead of sitting in the meeting.

Are my children allowed to come to my meeting?
Because much of our practice is devoted to Family Law, we love spending time with kids and truly look forward to helping their legal situations. 

We aren’t like other law firms that prohibit children from the office, but we do encourage you to leave children with a caregiver, if they are not directly involved in the case, during your meeting so we can focus on your legal issues. 


Matthew Harris Law - New Client Welcome Center
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 702-4852 

Monday, July 18, 2011

Your Accident Prone Baby Business


A Dream Come True
When you were just a kid, you knew that you wanted one someday.  You talked about all of the great things it would do for you one day.  You even went as far as picking out a name.

We're talking about owning your own business of course.  However, just like a baby, new businesses are sometimes prone to accidents too.

Except, when your baby has an accident, you don’t lose sleep wondering whether you’ll be able to keep your house.

Cover Your Assets
If you’re considering owning, or if you already own, your own business, then you should consider protecting yourself from the liabilities of your business.  Otherwise, you may find yourself paying for a long time for a simple business decision.

Under Texas law, you can organize your business structure in a manner that protects you personally from the debts of your company.  Some of these structures are: Corporations (Inc.), Limited Partnerships (Ltd.), and Limited Liability Companies (LLC).

Selecting a business structure depends on your Management plan, long-term goals, investment options, and desired tax methods.  (Personally, I prefer paying fewer taxes)

How Bad Could it Be?
Let’s pretend for a moment that you’re considering opening up your own flower shop.  You enter into a 1-year lease for your storefront, you negotiate a contract for a steady supply of daisies, and you lease a billboard for advertisement.

Since you don’t want to waste time with limiting your liabilities, you decide to just start ordering everything with personal checks, signing leases in your name, and entering into contracts as an individual.

Unfortunately, business isn’t doing so hot and after a few months you have to close up your shop.  After closing the doors, your business mail starts showing up at your house and those companies are demanding that you are personally liable for the company’s debts since on paper, it just looks like you’re an eccentric individual with a serious flower addiction.

What Else Could You Do?
Let’s go back and imagine that before you started signing your life away, you organized as a Limited Liability Company (LLC).  Then, instead of signing your own name on all of those leases and contracts, you signed your company’s name as the responsible party.

Now fast forward to you closing your doors; it’s like the business was the one that entered into all of those obligations instead of you.  When the creditors come calling, they come looking to liquidate the company’s assets and not your personal assets.

Get yourself some protection from your baby and you’ll get a little better sleep at night.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Business Law Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 702-4852 

Thursday, July 14, 2011

Trust Me!



Trusts Aren’t for Rich People
When I try to convince my family and friends that they should consider setting up a Trust Fund for their children, I always get the same reaction. 

That reaction is a puzzled look followed by, “What the heck are you talking about?  I ain’t rich!”

Most people are under the impression that a Trust is only needed if you have great wealth, but I realize the reason they’ve fallen under that belief is because they do not realize what a Trust is, or what the purpose is behind the creation of a Trust.

What is a Trust?
Very simply, a Trust is created when you give something to Person A (usually money), so that Person B can use it.  Person A, who manages and protects the thing given, is called the Trustee, and Person B, who gets the benefit of the thing given, is called the Beneficiary.

I got my son a piggy bank, (he calls it his “money pig”), and I occasionally put loose change into it.  With every dime I drop in, he tells me of all the things he’s going to buy, but I remind him that all of this money is for college.  The money pig is a Trustee, and my son is a Beneficiary.

When you create a Trust, you get to set the conditions on which the Trustee can give the benefits to the Beneficiary.  Just as above, I set the conditions so that my son only gets the benefits if he is using it for education.

Why Should I Create a Trust?
Most often, Trusts are created in a Will so any money that is passed on to heirs will have some management.  You wouldn’t give a teenager a big pile of cash and just tell them to spend it wisely would you?  Setting conditions on your terms creates security even when you’re gone.

A very common Trust scheme is the HEMS Trust, which allows the Trustee to provide benefits to the Beneficiary for Health, Education, Maintenance, and Support.  When the Beneficiary has to justify the expenses, it prevents them from blowing it all on a fancy car or letting them put it all in their bank account where creditors can come after it.

What if I Don’t Have a Lot of Money?
You don’t have to have a lot of money to want to protect your future heirs.  Also, consider that just because you don’t have much money now, doesn’t mean that you won’t have a lot of money when you pass away.

When you pass away, there could be a life insurance policy, retirement account, or your estate could receive a large settlement if you pass away in an accident at someone else’s hands. 

The point is, setting up a Trust doesn’t take a lot of time or money and provides many benefits and protections for your loved ones when you’re no longer here to look after them.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Estate Management Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 
(806) 702-4852 


Monday, July 11, 2011

Lien On Me

The Scenario
You notice your brakes are squeaking so you take your car to the shop to have them checked. You and the mechanic discuss what work needs to be done and he gives you a written estimate.

A few days later, the mechanic calls you and informs you that your car is ready.  You arrive at the shop and the mechanic hands you a bill for the price you both agreed on.  However, during the last several days, a family emergency has arisen and you can no longer afford to pay the total.  So, now what?

Mechanic’s Lien
A mechanic’s lien may have been created.  In Texas, if a person has furnished labor and repairs and has not been paid for those services, a lien arises against the vehicle.

A mechanic’s lien is only created when the registered owner of the vehicle is given a written statement of the services and charges and the mechanic has only completed that work which was previously agreed upon by the customer.

Enforcement
Mechanic’s liens are enforced through judicial foreclosure sales.  Therefore, the mechanic must file suit asserting the lien against the registered owner.

The court must then determine if all of the statutory requirements have been met and that no other party has a superior right to the property.  If the court finds the mechanic has first priority and the requirements have been met, the court will order the vehicle to be sold at a foreclosure sale.

The proceeds of the sale will then be applied to the amount owed to the mechanic and any amount left over will be given to the registered owner.

Types of Property
The scenario above only discusses a lien with regard to a car in a repair shop.  However, a mechanic’s lien may also be created in regard to other property.

Regarding real property, a mechanic’s lien may be known as a "construction lien."  For those who provide supplies and materials to other’s without payment, a materialman’s lien or "supplier’s lien" may attach.  All of these liens are created and enforced exactly the same but have different names to clarify what property they attach to.

What Can You Do?
You should discuss your situation with the mechanic and work out a payment plan if possible.  Most companies and individuals will understand that situations arise that cause financial hardships and are willing to work with you on payments.

It is important to know that these liens exist and that the mechanic may in fact have a superior right to your property than you do.  When I say “superior right,” I mean that the mechanic can keep your vehicle until you pay off the balance.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Property Law Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 702-4852 

Thursday, July 7, 2011

Non-Police Interrogations

Use of Interrogation
When the police interrogate you, they must inform you of certain rights (remain silent, attorney, etc.), but not all interrogations are performed by police.  Sometimes interrogations are performed by store employees, your boss, or even a neighbor, and they aren't required to inform you of your constitutional rights. 

However, even though the police aren't conducting these interrogations, and you haven't been informed of your rights, confessions obtained in this manner can still be used against you in a criminal trial.

The Confession
Let's imagine you are shopping with a friend, and unbeknownst to you, the friend decides to shoplift.  As you are leaving the store, an employee grabs you both and takes you to an interrogation room.

Part of their interrogation includes a "Civil Recovery Form" where they list the things that they suspect you or your friend of taking and have you sign it.  At the bottom of this form is a small disclaimer that says that you understand that this form "will be used in criminal prosecution."

It amounts to a written confession and is very persuasive to a jury. 

Officers, not Police
As merchants, they do have a limited power to detain you if they suspect you of shoplifting, but you're better off demanding that they call the police instead of letting a retail employee convert your words into a report, coerce you into signing it, and then letting a jury of your peers decide your fate upon hearing it.

The Loss Prevention Officers are not Police Officers.  They are merely private citizens and you do not have to talk to them any more than you have to talk to a neighbor that accuses you of stealing his newspaper.  On that same note, your neighbor doesn't have to inform you of your constitutional rights before attempting to interrogate you.

The Solution
The person in the best position to protect your rights is you.  Know your rights and do not be afraid to exercise them regardless of whether it is a retail employee, your boss, or the police.  After identifying yourself; Remain Silent, Do Not Consent to Searches, and Demand Your Attorney Be Present During Any Questioning.


--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Criminal Law Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 702-4852

Monday, June 27, 2011

Civil Defense

When you hear "Civil Litigation," your first thoughts probably go to those flashy Personal Injury commercials featuring an aggressive attorney with an absurd nickname.  However, not all civil litigation involves a lawsuit against a large corporation. 

Sometimes, that civil litigation machine gets pointed at an individual like you; and sometimes, the best defense is just a good defense.  Today we're going to discuss your options in defending a civil case.

Pretrial Settlement
Fewer than 5% of lawsuits end in a trial.  Often, the attorneys for both sides are able to meet and discuss the demands of each side and negotiate a settlement that both sides can live with.  This most likely involves drafting a new agreement to bind each side to the terms of the settlement. 

If both sides aren't able to find a middle ground to agree upon, then they may pursue Alternative Dispute Resolution to avoid the costly expense of a trial.

Alternative Dispute Resolution
One of the tools in your Civil Defense Attorney's toolkit is ADR.  ADR provides structure to encourage both sides to settle the dispute without the need for a trial.

Mediation is a form of ADR and is basically a settlement negotiation where a third party, the Mediator, is present to encourage both sides to work towards a settlement goal.  However, the Mediator doesn't offer an opinion or make any binding decisions.

Arbitration is a form of ADR and operates like a mini-trial where a third party, the Arbitrator, hears the arguments from both sides and offers an opinion on the likely outcome.  Arbitration is often included in contract terms to avoid trials, but it can be either binding or nonbinding on the parties.

Criminal Trial v. Civil Trial
If the parties in a civil lawsuit aren't able to come to an agreement, then they may press forward with a trial on the merits of the case. 

Defending a civil lawsuit is much different than a criminal defense case because unlike the criminal case, there is no right to remain silent.  The 5th Amendment only provides protection from incrimination, and if you aren't being asked questions that will incriminate you, then the Judge may compel you to take the stand and answer questions.

Another large difference between civil defense and criminal defense is the burden of proof that the Plaintiff has to show to win their case.  In criminal defense, you are presumed innocent and the jury has to find you guilty "beyond a reasonable doubt."  In most civil defense cases, the jury just has to find that you committed the act "by a preponderance of the evidence," which is just 51% sure that you did it.

Settlement v. Trial
Your civil defense attorney will make recommendations of which course of action is best for you, but that decision will ultimately fall upon you.  

Settlement has its benefits because it is likely less than you would pay if you lose the trial; but the downside is that you're definitely paying something.  

Trial has its benefits because if you win, you're off the hook; but the downside is that if you lose, you may end up paying more than the settlement offer AND the other side's attorney's fees.

Discuss your options with your civil defense attorney and at least be prepared to consider the settlement options.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Civil Litigation Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 702-4852

Monday, June 6, 2011

Where to Sue After a Wreck?

Hold On!
That was the last thing you yelled before the tempered automotive glass exploded around you and the loose change in your console took flight.  As the twisted mass of steel that was your trusty car only moments ago comes to a stop, you slowly realize what's happening; you're in a car wreck.

The 5 Ws.
If you've ever had a reason to consider a lawsuit, you probably focused your time on the other 4 Ws (Who, What, When, & Why), but I bet you didn't spend much time considering the "Where."  However, knowing where you can file your lawsuit can sometimes be just as important as knowing who you can sue.

Since you're the person initiating the lawsuit, you get first choice in where to file the suit and as any real estate agent will tell you; the key is location, location, location.  When you challenged someone to a race as a kid, you wanted it in your own backyard because you knew where every dip, hill, and pothole was.  You want this same advantage in court.

Where Did He Come From?
Those are your first words to yourself as the airbag smoke clears the air.  That is, IF you can even speak with lungs full of that pungent chemical concoction that feels like you're inhaling sand.  Those of you that have smelled it know exactly what I'm talking about.  Although it may seem like he just came out of nowhere, you know that he didn't magically appear out of thin air; and that's our first clue of where to file the lawsuit.

That's right, where does he live?  One of your first options in choosing where to file is the other guy's county of residence.  I won't go into the endless possibilities for his county of residence being beneficial for you, perhaps he has a bad reputation at home and you know that it will work to your advantage, but that's the sort of strategy that you and your attorney need to discuss.

(Alternatively, if the other guy was driving a company truck and you're suing the company, you can choose to file your suit in the county of that company's principal office in Texas.)

Where Am I?
Your passenger hit her head terribly hard during the wreck and doesn't know what just happened.  You two were on a road trip far from home; still in Texas, but in a different county.  This is our second clue of where to file the lawsuit.

Where did the wreck take place?  Under Texas law, you can choose to file your lawsuit "in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred."  Depending on your facts, you'll have to decide whether this county gives you some advantage, but it's important to know your options.

Where Do You Live?
As you're being loaded onto a stretcher while being swarmed over by paramedics, they're yelling questions at you and trying to determine how badly you're injured.  One of the questions they ask as they load you on an air ambulance is about your home address to test your short term memory; and that's our third clue of where to file the lawsuit.

Where is your county of residence?  If neither of the above apply to your situation, then you turn to the county where you resided when the wreck happened.  For most people, this is the county they want to turn to first but Texas law saves it as a last resort.

Trial Strategy
This is by no means an all inclusive summary of Texas law on Venue, but it should be enough to get you thinking about a legal topic that you hadn't considered before.  Choosing the location of your coming fight isn't cheating or even dishonest because it is a well preserved right outlined by your legislature.

Just as you would with any other fight, you want to choose the time and place that gives you the best tactical advantage over your adversary.  I can't tell you which of the above works best because as with any situation, differing facts require differing strategies.  Make sure that you discuss your trial strategy with your attorney at your initial consultation.


***Special Thanks to Tammy Fisher of Sonora, Texas for helping choose today's topic and to everyone else that participated in this week's Reader's Choice Poll on Facebook and Twitter.***

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Civil Litigation Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 318-8482 


Thursday, June 2, 2011

You are NOT the Father!

The Nightmare
If you've ever watched daytime talk shows, you've witnessed a nightmare.  A Mom confesses to cheating and reveals that the Dad might not be the genetic-father.  Sadly, these stories rarely end well.  The host pulls the DNA results out of an envelope and proclaims, "You are NOT the Father!"  

The Dad had no idea that he was raising another man's child and may have even been ordered to pay child support for years before being embarrassed on national TV.

Old Law
The long standing tradition in Texas in such situations has been to require Dad to continue paying the child-support even after such a revelation.  

There was a small exception that allowed another man to step in his place as the child's father, but often the Mom didn't know, or wouldn't tell, who she suspected the actual genetic-father was.  

Basically, the Dad was duped and was required to pay child support on someone else's child for 18+ years.

New Law
Well a couple of weeks ago, May 12, 2011, the 82nd Texas Legislature made a HUGE change in this area of the law under SB 785; effective immediately.  

This bill has now become law and basically says that if the Dad finds out that he might not be the father, gets a DNA test that excludes him as the father, then he can have the parent-child relationship terminated and is no longer obligated to pay child support.  WOW!

Exceptions
Obviously there are some exceptions to follow this monumental change to the law.  If the father adopted the child, participated in assisted reproduction, or he was the intended father under a gestational agreement then he can't ditch his parental-duties.  

These exceptions are obviously necessary because he isn't surprised that he isn't the genetic-father and this isn't intended to be a Baby Lemon Law.

Filing Deadline
Generally, this suit must be filed within 1 year of Dad finding out that he might not be the genetic-father, however, that requirement is quite relaxed right now and won't take effect until September 1, 2012.  

Basically, if a Dad finds out he may not be the genetic-father ANY time before September 1, 2012, then he can file the Termination Suit up until September 1, 2013.

Public Reaction
I know some of you may become outraged and proclaim that this law hurts children and mothers because it takes away a much needed source of child-support.  Some are even referring to it as the "Bastard Bill" because it allows a child to be left without a father.  

I can't tell you how to feel about it, but if you look at it from the Dad's perspective, he has been lied to and been forced to pay child-support for a child that he didn't even father.

However, you know as well as I do that there is a difference between a Dad and a genetic-father.  This new law doesn't just dismiss a Dad that wants to be a part of that child's life.  

On rare occasions, that very same tragic story on that daytime talk-show does have a happy ending when the Dad says, "I don't care what those results say, that's my son/daughter and I'm not going anywhere.

Conclusion
Since this is a brand new law that, as far as I can tell, hasn't had a chance to see the inside of a courtroom yet, it remains to be seen how the courts are going to interpret it.  The above is my opinion on the matter and is only meant for informational purposes and not as legal advice.  If you think this law applies to you, I strongly recommend speaking with an attorney instead of trying to pursue it on your own.


--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Family Law Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322
(806) 318-8482 


Monday, May 23, 2011

Can I Adopt an Adult?


When you hear the word "adoption," the first image in your head is likely one that involves a small child being introduced into a new home.  Perhaps you imagine an aunt or a relative adopting a family member whose parent's need time to organize their lives.  But what we're talking about today are the adoptions of adults.  Yes, we are talking about grown-ups and not even necessarily adults with special needs.  Full-grown, fully capable members of the community that may even have children of their own already.

In today's world, it's a harsh reality that our society has a high divorce rate; 40-50% depending on the study.  After that divorce, about 75% of those couples remarry, not to each other; and most of those second marriages create a step-parent scenario for either mom, dad, or both. 

I'm not going to bore you with any more statistics or science (aka black magic) but ultimately, many children find themselves living more years with their step-parent than they did with their biological parent.  The same is also true with foster-parents.

After living most of their formative years with the step-parent, more and more children are finding that they have formed a stronger parent-child relationship with their step-parent than with their biological parent.  To further unite and strengthen the familial ties in infant situations, the families seek an adoption.  Many people do not realize that when a child turns 18 years old and is no longer a "child," adoption is still possible.

Just as with infants, step-parents seek adoption of their adult step-children to unite and strengthen their familial ties.  The adult children desire to legally cement the relationship with the step-parent that stepped in when their biological parent abandoned them instead of forever living under the shadow of an absent parent.  You're probably wondering what kind of paperwork nightmare pursuing such a solution might create.

In fact, the legalities behind processing the adoption of an adult are less complicated than the adoption of a minor child.  Our Courts focus on the "best interest of the child" and strive to protect those minor children that can't protect themselves.  However, with an adult there is little need for that protection since an adult can make his/her own decisions.  In this day and age, with all the choices we can make, why shouldn't you be able to decide whether the person that has always been there for you must preface their title with "step?"

Statistically speaking (okay, sorry I lied about not bringing it up again), it is most likely that you have a step-parent, you are a step-parent, or both.  For some, the above discussion about a bond with a step-parent being stronger than with the biological parent is simply unimaginable, but for many of you, I've just described your parental relationship to a tee. 

If you want more information about an Adult-Adoption, whether you're the "child," the step-parent, or the foster-parent, contact your attorney to find out what steps you need to take to get started.  No attorney can tell you if this is the right decision for you and your family, but your attorney should ensure that you are able to make an informed decision once you know your options.  

***Special Thanks to those that participated in the poll for this Reader-Selected Entry on Facebook and Twitter, especially Kama Lawrence, J.D., for being the first voter***


--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Family Law Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 
(806) 318-8482 

Thursday, May 19, 2011

Do I Need a Will?

One of the most common legal questions asked of me is, “Do I need a Will?”  It’s a very simple question, and my very simple reply is, “I don’t know, do you?”  Sounds painfully vague doesn’t it?  Well it really depends on what type of person you are.  I’ve devised a simple test to see if you would benefit from writing a Will.  Choose which one suits you the best:

A)    I trust the government to know what’s best for my property after I pass away and I trust that they will distribute my property to my family members equally and fairly.

B)    I’ve worked hard to earn everything I own and I want certain friends and family members to receive specific items with sentimental value after I pass away so there is no bickering among them.

If you chose A) then congratulations because you’ve just saved a few minutes that you would have wasted thinking about writing a Will and you can stop reading now.  If you chose B), then I regret to inform you that you are going to have to set aside a few minutes of your day thinking about your Will.

You might be confused with my measurement of “Will writing” in minutes, but don’t worry, it isn’t a typo.  A Will doesn’t have to be a difficult thing to write and I’m certain that you could write a legally effective Will for yourself without having to ever step inside of a lawyer’s office, however, I wouldn’t advise it.  If you’re anything like me, you’re probably going to stop reading in the next 5 words and get started with writing a Will.  Trust me, I know how you feel because I’m hard-headed and I like to figure things out on my own too. 

Unfortunately, writing a Will isn’t like cooking stew where you can add ingredients and spices in between tastes until it is just right.  Writing a Will is more like baking a cake where you put ingredients in a pan, pop it in the oven, and then 30 minutes later you get to see if you did everything right.  Just like the cake, you only get one chance with the Will and if you forget one of the elements then it reverts back to as if there never had been a Will. 

Therefore, I recommend speaking with an attorney about writing a “Simple Will.”  A Simple Will isn’t expensive and doesn’t take much of your time or effort.  Your attorney should be able to explain the necessary parts to a Will and describe the steps that you need to take to execute one that will stand firm after you've passed on.

So pop a cake in the oven, spend that waiting time making a list of your most prized possessions along with who should receive it, and while that cake is cooling call your friendly neighborhood attorney to arrange a consultation.



--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law - Estate Management Division
1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322, 
(806) 318-8482