Tuesday, May 29, 2012

Collapse of a Huge National Law Firm

One of Nation's Largest Law Firm Collapses, Files Bankruptcy (link)

          It's amazing to think that a law firm with such an impressive list of clients (L.A. Dodgers, GM, eBay) can be mismanaged to the point where it ceases to be profitable.  The writing has been on the wall for some time now, with over half of the partners leaving the firm so far this year.

Monday, May 28, 2012

For The Heroes, On Memorial Day

“When you see men choke down their fear and dive in after an unexploded bomb so that our planes can land safely, a lump comes in your throat and you know why America wins wars.” –Navy Commander Joseph Blundon, 1942. 

            Most of us don’t truly have an understanding of Memorial Day.  As time separates our country from those 20th century wars that were responsible for the deaths of so many, it gets easier to forget.  Each year, Memorial Day becomes more and more about BBQ, swimming pools, and the unofficial start of summer.  It becomes less and less about remembering and thanking God for our soldiers who paid the ultimate price for our freedom.  Perhaps for those with sons, husbands, daughters, and wives in harm’s way overseas fighting the war against terrorism, Memorial Day hits home again.  But for most of us, myself included, this day has become a good excuse for a long weekend and good food.  At least until recently.  Thankfully, my changed attitude is not because a family member or friend has gone off to war. 

            The quote at the beginning of this post is taken from a book by Winston Groom titled 1942.  This book made its way to my bookshelf in the first place because it belonged to my grandfather, a hero from WW2, who passed away last year.  On a whim, I picked up 1942 several weeks ago and began reading.  At times both horrific and heartening, 1942 offers more meaning to this day that we call Memorial Day than everything else I have learned in my life about our country’s history.  To discover what misery hundreds of thousands of 18-20 year olds suffered in the Pacific theater of WW2, so that we could experience the joy of life in the United States, is…sobering, to say the least. 

What a blessing for the rest of us to experience hot showers, Starbucks, traffic jams, life’s successes, and life’s failures.  For those who never made it back from Guadalcanal, Normandy, Baghdad, Afghanistan, or the countless other lands stained with American blood, we are thankful for these simple things as well as the significant freedoms we enjoy.  America wins wars because of the bravery and honor of those heroes, and we will never forget them, and the heavy price they paid.

Wednesday, May 23, 2012

Why You Should Avoid Co-Signing on a Loan or Lease

Imagine your friend approaches you one day with an idea.  He has found a great deal on a car.  They have the terms hammered out, and now the dealer or bank just needs him to sign the finance documents.  Oh, and he needs someone else with decent credit to co-sign on the loan with him – you.  “It’s really just a technicality,” your friend says.  He assures you that he can easily afford the payments, and it’s 100% his responsibility.  What could go wrong? 

Well, your friend’s statement that the loan is 100% his responsibility is correct – that is unless he stops making the payments.  Then it becomes your responsibility.  All of it.  Under Alabama law, the lender can go after either your friend or you for the money, and it sounds like your buddy’s fresh out of cash.  If you’re lucky, the bank repossesses the car from your friend and everyone goes their separate ways.  In this case, your credit may be trashed, which is no small thing, but you may not be out any money.  If you’re unlucky, the bank sends you a letter informing you of their expectation that you pick up the payments.  In that case, your credit is still trashed and you have a new liability to squeeze into your budget. 

The same situation can arise in an apartment or house rental situation.  Often, a landlord may be uncomfortable with a particular prospective tenant, so he requires another person, with better credit or employment, to co-sign on the lease.  The landlord is not getting the co-signor on board as a character reference for the tenant.  He’s getting another source to go to for money when problems arise.  The co-signor is, in a way, acting as the collateral to the landlord, bearing all of the risk, but enjoying none of the benefit. 

While there are unique situations where it may be acceptable to co-sign on a loan or lease (i.e. for your twenty year old college student’s apartment lease), make sure that you are aware of the risks associated with doing so, and never assume that anybody is “too responsible” to default on their obligation.

Monday, May 21, 2012

Why This November’s Election Matters More Than Ever

           The future of our country could depend on the upcoming election, and it’s not for the reason you are thinking.  As we are all aware, this November our country will choose either Barack Obama or Mitt Romney as our President for the next four years.  We are all aware of how important a presidential election is.  Presidents have the power to push legislation through Congress and to veto legislation they disagree with.  The President has powers of military action abroad, even without a congressional declaration of war, and powers to issue executive orders or signing statements that more or less amount to “executive legislation.” 

            However, one of the most important duties that a President has is the nomination of Supreme Court Justices.  Over the next four years, there is a reasonable chance that multiple Justices currently sitting on the bench will choose to retire.  Currently, four of the nine Justices are 74 years of age or older (2 conservatives, 2 liberals).  It stands to reason that the next President could have the opportunity to change the balance in the Supreme Court, by replacing a retiring conservative Justice with a liberal Justice, or vice versa.  In recent years, a number of monumental cases have seen the Court split the vote by a 5-4 margin. 

For those who believe the Supreme Court would never allow for the banning of handgun possession, the case of D.C. v. Heller ended with the Supreme Court’s 5-4 vote striking down a Washington, D.C. law that attempted to do just that.  For those who believe the Supreme Court would never order 46,000 inmates released from California prisons, it was a 5-4 decision that recently made such a ruling.  It was also a 5-4 ruling that, in 2007, upheld the nationwide ban on partial-birth abortions.  There are dozens of other recent cases of extraordinary importance – that were decided, in essence, by one individual.  A tie-breaking, earth-shattering vote cast by a Justice appointed to the bench by a former President.  A President just like the one who will be leading our country for the next four years. 

Thursday, May 17, 2012

Common Pitfalls in Estate Planning - Part III

          This is the final Estate Planning pitfall in this series of posts.  The first two were using an online company for your estate planning documents and neglecting to review your beneficiaries after important life events.  This last one should be the easiest, however we often have a hard time doing it. It is:

Not discussing your estate plans with your loved ones. 
          This can be a tricky subject matter.  You may not wish to tell your children and other family members about what they will or won’t be getting when you die.  That’s fine.  But they do need to be aware of the existence and location of your estate documents.  It's unfortunate when a family member knows their parent or loved one had a Will, but does not know where it is.  (I always keep a copy of every Will I draft for a client in my office, just in case.  Hopefully their attorney did too.) 

          Further, the person whom you name to be your executor, trustee, or guardian of your children, needs to know about that future role.  Particularly with your guardian, this needs to be the subject of a conversation at some point before you execute your Will.  It is important that the person or persons who will be trusted with your most beloved asset - your children - will willingly and lovingly accept that duty.  It is not necessary to go into detail about gifts being made in your Will, but a little communication about certain things now can save a lot of grief and expense later on. 

Wednesday, May 16, 2012

Common Pitfalls in Estate Planning - Part II

      Yesterday's post was the first in a series of common pitfalls that you should avoid when dealing with your estate planning process.  Today's pitfall is one that most of us know about, but many neglect anyways. 

      Not routinely checking/adjusting your beneficiaries of life insurance policies, retirement plans, etc. 
      Things change.  Divorce happens.  Loved ones pass away.  Children are born.  Because of this, it is important to periodically review the named beneficiaries on your assets, especially after a life changing situation (good or bad).  When dealing with estate planning, some of your assets will be arranged so that they avoid probate, or in other words take care of themselves, without your Will deciding where the asset goes.  An example we are all aware of is life insurance.  If you have a named beneficiary on the policy, such as your spouse, the proceeds will pass to that person directly upon your death.  Many retirement plans, pensions, bank accounts, real property, and other assets are the same way.  Often, a spouse has a statutory right to certain assets, even if you name another person as beneficiary.  If you are not clear about the beneficiary on any of your accounts or assets, call the financial institution holding the asset and find out. 

State law may kick in to automatically disqualify a divorced spouse from being a beneficiary, but it may not.  Even if it does, that just means the asset now has no beneficiary at all and a whole other set of issues crop up.  The best advice is to periodically review your beneficiaries to make sure they align with your current wishes. 

Big Two Days for the Hornsbys

          I want to take a little time out from the regular posts to congratulate a couple of special people. 

          Last night was a big night for my cousin Todd Hornsby and our whole family.  In my family, the husbands love Braves baseball, and I guess the wives put up with it more than anything else.  But we are all proud of Todd and all that he has accomplished while playing collegiate baseball at Jacksonville State.  I could fill a novel with the awards and records he has set over the last several years, but last night was perhaps one of the most significant.  With last night's save against Auburn, Todd Hornsby now holds the record for the most career saves of any pitcher in the history of the Ohio Valley Conference.  In a collegiate career that is winding down in a matter of weeks (Todd graduates soon with a double major, in fields I can't even pronounce), Todd now becomes the best closer in conference history, and he did it in only three years.  Whether he spends the coming years in professional baseball or in a job related to his major, Todd will make us all proud and will continue to be the all-time career leader in saves. 

          Not to be outdone, my sister Abby Hornsby (an eighth grader in Gulf Shores) won first place at her school's talent show today.  There were about 15 contestants in the competition so that's an unbelievable accomplishment to me.  Actually, just getting up in front of the school is unthinkable for me.  I think she may be the first person I have known to ever win at a talent contest at all.  She sang Marry Me by Train, and while I didn't get to hear her live today, I can't wait to see the video.  She is learning how to play the guitar now, so they really better look out for her at the high school talent show next year. 

Tuesday, May 15, 2012

Common Pitfalls in Estate Planning

          As I wrote in my previous post, Legal Documents That Every (Responsible) Adult Should Have, the importance of having a Will can not be overstated.  To take that a step further, the importance of having a solid estate plan overall can not be overstated.  Over the next few days, I will discuss several common pitfalls that occur in estate planning.  Consider these as you plan and execute your estate plan.

      Using an online company to produce your Will and other estate documents.  I’m sure companies such as Legalzoom and others mean well.  (Actually, I don’t even know if that is true).  However, using a site such as that can have tragic consequences later on.  In an effort to save money, many folks are turning to these sites in order to draft their Wills, Power of Attorney, Living Wills, and other legal documents.  The sites often entice you with low prices, while promising professional results.  Like anything else in life, if something sounds too good to be true, it probably is.  These companies will not ensure that the document is properly witnessed and notarized.  It becomes your responsibility to make sure that the attestation and notarizing are properly done and documented.  Without this being done perfectly within the strict requirements of state law, your Will may be useless after your death.

Further, the most critical part of the Will preparation process is meeting with your attorney to discuss your unique situation.  An online questionnaire or drop-down menu from a website is not able to identify the nuances of your financial and familial situation.  When I meet with a client regarding a Will we often discover that while their preconceived estate plan may technically be legal, following through with that particular plan will result in undesired consequences.  Without talking with a human being you may never realize that Legalzoom is leaving you with an inadequate estate plan and a mess for those you leave behind.

Finally, a Will is cheap even if you use an attorney.  In fact, it is probably the cheapest legal task you will ever hire an attorney to do, and maybe the most important.  It also may be your first encounter with an attorney and can be an important step in building a relationship that every person needs. Just like a family doctor, a family attorney is sure to come in handy at some point.  That doesn’t mean you need to have an attorney on retainer – but you do need to know an attorney that you trust when you find yourself in a troublesome situation.  Legalzoom probably won’t answer the phone when you find yourself being sued or your son has been arrested.  Your family attorney will. 

Check back tomorrow for more common pitfalls to avoid during your estate planning.

Thursday, May 10, 2012

Atheists Rally For...What?

          You could call it the Show Rally About Nothing, I guess.  Several weeks ago, more than 20,000 atheists gathered on the National Mall in Washington, D.C.  David Silverman, President of American Atheists, said “We are here to deliver a message to America: We are here and we will never be silent again.”  While I certainly appreciate these folks’ constitutional right to peaceably gather and say what they want…I can’t help feeling puzzled.  What, exactly, are they saying?  I’ve heard of rallies in support of things, in protest of things, rallies to influence politicians, and rallies for redress of infringed upon rights.  In football-crazy Alabama, we have rallied over coaches hired and coaches fired.  But this particular rally of atheists is a contradiction of itself.  A person generally believes in a coach’s ability, or believes a vote should go a certain way, or believes abortion is murder, or believes that George Zimmerman should be arrested.  Their beliefs may be right or wrong, but they believe, therefore they turn out, and they rally.  Now we have a group of atheists, a large group at that, who claims to believe in…nothing, at least not spiritually, yet they rally so strongly and emotionally.  Why waste your limited energy rallying against something that you don’t even believe exists? 

          As human beings, I think we often wage the most violent wars against those things that we know to be true.  So perhaps these rallying atheists are battling that voice inside each of them that tells them there really is something bigger out there.  Or as Shakespeare once penned, “Thou doth protest too much, methinks.” 

Tuesday, May 8, 2012

What Not To Do During a Traffic Stop - Part 2

Here is Part 2 of yesterday's post:

DON’T consent to the officer’s request to search your automobile.  The law allows the officer to require that you step out of your vehicle and to pat you down in order to ensure his own safety.    The law does not allow the officer to search your car without having probable cause of some evidence of a crime therein.  That is, unless you consent to such a search, in which case the officer has free reign.  Upon reading this, your first thought is likely something along the lines of “I’ve got nothing to hide, so what do I care if the police search my car?”   The problem is, while you may not have anything to hide, your passenger may.  A family member who left something in your car may.  Or the person who borrowed your car last week may.  The reality is, none of us can ever be 100% sure of what is in our car at any given time. If something illegal is in your car, it doesn’t matter if it’s yours or not – you can be charged with a number of crimes dealing with possession of drugs, contraband, alcohol, guns, or the all-encompassing “paraphernalia.”  No good can come from consenting to a search.  Lots of trouble can.  The correct response to a request to search you car is something along the lines of “I’d rather you not.  I really do need to be on my way.”    

DON’T argue with the officer.  Getting an attitude or arguing with the allegations he is making won’t change his mind and may result in additional charges.  Say “yes sir” and “no ma’am” and be polite.  If you want to ask for leniency, then do it, but don’t be aggressive, and be polite if he refuses.  If you think you have a case like my client in yesterday’s post, that’s what the courtroom is for.  In the meantime, take your ticket and be on your way. 

DON’T forget that 99% of police officers are solid professionals, just trying to do their jobs and make it home safely to their families. 

Monday, May 7, 2012

What Not To Do During a Traffic Stop – Part 1

There is something intimidating about seeing a police officer all decked out with his gun, handcuffs, pepper spray, radio, and whatever else goes in those leather pouches clipped to his belt.  It’s that feeling of intimidation that makes you feel like you’re doing something wrong, even when you’re not.  For the most part, this is probably a healthy level of respect for a profession that is both underappreciated and underpaid.  However, this same intimidation can get you into a lot of trouble if not checked against reality…and the law.  In that spirit, I have written a 2 part post of several things you should NOT do during a routine traffic stop.  (These points are advice on how to act during a traffic stop, not how to get out of a ticket) 

DON’T pull over in a dangerous location.  That is, don’t pull over in a place where you, the officer, or other drivers will be placed at risk.  Our instinct tells us to pull over immediately or risk facing criminal charges for evading an officer.  However, Alabama law specifically provides a defense to such a charge as long as “the person stop[s] his or her vehicle within a reasonable time and at a reasonable location based on the facts and circumstances of the stop.” Ala. Code §13A-10-53.  I have successfully defended a client in the courtroom against this exact charge after he was signaled to by an officer however continued driving three blocks, pulling into his own driveway.  He was arrested in the driveway and charged with 5 different offenses, including DUI, attempting to evade an officer, reckless endangerment, reckless driving, and running a stop sign (the initial reason for the traffic stop).  We took the case to trial.  He was acquitted (not guilty) of all charges except for running the stop sign, which he freely admitted to.  His behavior during the stop were in line with the points of this post, and he came out on top.  In a nutshell, don’t pull over on a bridge or when the shoulder is narrow.  Don’t pull over in an unlit area at night.  If you are close to a well-lit parking lot or police station, turn on your hazard lights and proceed there.  The key is that your reaction to the officer’s signal be reasonable. 

DON’T unbuckle your seatbelt.  My first instinct after turning the car off is to unbuckle my seatbelt.  Lots of people are the same way, but the best action is to leave your seatbelt buckled throughout the traffic stop, unless the officer asks you to step out of the car.  The officer may have pulled you over because of speeding or a blown tail light.  If your seatbelt is off when he approaches your car, it’s your word against his on whether you were using it or not.

DON’T get out of the car, unless told to do so by the officer.  We see this on TV all the time.  Getting out of the car can make the officer nervous and turn a routine traffic stop into something more.  Stay seated behind the wheel and wait for the officer to approach your vehicle.

Part Two will be posted soon.

Tuesday, May 1, 2012