Buyer beware, the importance of the fine print

Robert Johnson is a grocery store clerk in Huntington Beach, California.
He is also a homeowner with a problem that he perceives as a civil
rights violation and fraud, perpetrated by the city he lives in and a
local developer. Understandably, Johnson has chosen to pursue a legal
solution to his concerns.

He's not alone, either. Dozens of Johnson's neighbors were originally
part of a lawsuit that was brought in an attempt to rectify he
situation. Today, Johnson is the last plaintiff standing. His neighbors
have dropped out of the case for a variety of reasons.

Johnson is not just the last of the plaintiffs to still be pursuing the
case. He is also acting as his own attorney. A recent newspaper article
suggests that the city's attorneys have indicated Johnson may be on the
hook for as much as $10,000 in litigation costs if he loses the case.

It's a fair bet that given the chance, Johnson and each of his
previously fellow plaintiffs would love to have avoided this legal
battle altogether. The city and the developer more than likely share
that sense of regret.

Ironically, perhaps the solution to the issue at the heart of this
lawsuit would have been best implemented before the disagreement even
became a factor in their lives. You see, the disagreement revolves
around legal documents that were signed when the plaintiffs homes were
sold. The same homes that Johnson and his neighbors purchased and moved
in to.

While the purchase of a home is an exciting time, it can also be
stressful, confusing, and in the worst case scenario – the most
debilitating financial mistake of your life. Whether the court finds in
favor of Johnson or not, it is apparent that this litigation has come
about due to a lack of clarity regarding what the various documents
involved in the purchase actually meant.

Was Johnson well informed when he signed that stack of paperwork at the
closing? I have no idea. But the fact that his case has come this far
indicates that he doesn't feel he was well informed, while the litigants
on the other side of the table feel otherwise.

The lesson in this case may be that the best insurance against an
expensive, time consuming litigation may just be having a trusted lawyer
at your side on closing day. A few hours spent discussing options,
asking questions, and clearing the air before closing just might prevent
a lifetime of worry and regret. At least that appears to be the case for
Mr. Johnson and his neighbors, and anyone else who buys real estate
without being absolutely sure what their purchase contracts obligate
them to, or bar them from.

Unfortunately for some, this is a lesson learned too late, and at too
great an expense.

You can read more about Mr. Johnson's case in the Orange County
Register, at:
http://www.ocregister.com/articles/johnson-248980-city-case.html

Communicate, communicate, communicate

Legend has it that Alexander Graham Bell spoke these words during the
first telephone call ever made; "Mr. Watson come here, I want to see
you." There is some dispute about the exact words, however. Mr. Watson's
journal records a slightly different version of the first phone call,
"Mr. Watson, come here, I want you."

The exact words are beside the point, really. What matters to us today
is that a new technology was developed that allowed people to
communicate over long distances, quickly, efficiently, and personally.
That same technology still exists today, and it's in common use. Even
better, that technology has been expanded on to include the Internet,
which allows for a whole new world of communication options.

This matters to us because at some point we all find ourselves needing
to contact friends, family, business associates, merchants, medical
professionals, or anyone else that we need to interact with. The fact
that we aren't in the same room with them does nothing to minimize our
need to speak or otherwise communicate with them in a timely manner.

Admittedly, most of our communications are social, and friendly. Others
are business related. And occasionally we find ourselves using the
technology of communication to reach out and gather information that we
may find daunting, or mysterious.

Have no fear. Everyone who is comfortable working with legal
professionals was once faced with the potentially nerve-wracking task of
making that first phone call. Perhaps they were calling to ask a simple
question, or schedule an appointment. Maybe they were unsure if the
issue on their mind was even worthy of a lawyers time. That's not all
that uncommon a scenario, to be honest. And there is no harm done when
someone calls a lawyer, only to find that the issue that was worrying
them is easily solved through a town, city, or state office that is
dedicated to serving the public.

People who have no had extensive experience with lawyers often are
unsure of whether they should be contacting someone to advise or assist
them with their concerns, or whether they have no choice but to shoulder
their burden alone. I think that's unfortunate, and unnecessary. The law
is intended to benefit the public, not confuse them. And in a very real
way the lawyers role is to be familiar with the law and have the proven
ability to offer viable options to a client, much like a medical
professional, or a financial advisor might. It is the client who knows
what the issue is, and what their goals are. It is the professionals
job, in any field of endeavor, to help them achieve their goals while
controlling the associated risks.

History reminds us of lawyers like Abraham Lincoln who travelled a wide
region on horseback, moving from town to town in order to serve men and
women who were in need of legal advice. Perhaps we more modern people
should be appreciative of scientists like Alexander Graham Bell who made
it possible for professionals who came after Abe Lincoln to put the
horse in the barn, yet maintain an office that had a far wider reach
than the horse ever did. With the advent of the telephone, and then the
Internet – we now have the ability to communicate with almost anyone we
want, at any hour of the day or night, in order to get answers to our
questions.

Now that's progress.

Include your Digital Assets in your Estate Planning

Before we leave the topic of Digital Assets, I have one more excerpt from an article by Dennis Kennedy, who is an information technology lawyer and legal technology writer who publishes a monthly column in the ABA Journal.  You can find the full text of the article at http://www.abanet.org/lpm/lpt/articles/ftr03103.shtml. The rapid explosion of digital information and accounts is making this a topic of interest to nearly everyone of us.

Inventory Your Digital Assets.

I spent a large part of my early legal career as an estate planning lawyer.  In the case of either death or incapacity, the first important step is to track down and identify all of the assets, liabilities and other concerns that must be addressed.  Once an inventory is created, you can move forward with marshalling and collecting assets, identifying outstanding liabilities and paying them in a timely fashion, and dealing with outstanding issues, such as turning off utilities, canceling credit cards, arranging for storage or disposal and the like.

In the real world, your family and designated successors (personal representative of your estate, trustee of your trust or attorney-in-fact under a durable power of attorney) will be aided immensely by any list of assets and liabilities that you can prepare for them and leave in a place that is easy for them to obtain.

In your digital world, you also want to help your successors by creating an inventory.  The more detailed and accurate the better, of course, but even a small start can be of help.  Here are some of the things I suggest that you inventory:

• Hardware.  Inventorying your hardware seems like an easier project that it actually will be.  I suggest that you create a list of your hardware with a summary overview of what is on it.  Creating the inventory is likely to be an eye-opener for you.  You are likely to find that you have important information not only on the computer system you use everyday, but also on multiple other computers.  Many of us have at least one laptop and one or more desktop computers.  Many people keep copies of vital information on their work computers.  Where do you back up information?  You might have many USB flash drives, USB hard drives, backup CDs or DVDs.  There might be important pictures still on digital cameras and even information on iPods or other devices.
• Software.  Do you use Quicken or another financial program?  What income tax preparation programs do you use?  Do you create spreadsheets or Word documents with important financial information?  If you blog, is there a program that someone would need to use to post news to your blog?
• File structures.  Your inventory should sketch out the main folders and places where you keep personal, financial and client files and documents.  For someone like me, I also have audio and video of presentations and podcasts that I’d want someone to be able to locate and deal with.  You might have important collections of family photos or videos or work in progress.
• Online presence.  Create a list of your Web site(s), blog(s), Facebook and other social media accounts, online backup sites, online sites where you store documents, photos or other files, and listservs, groups or other sites to which you belong.
• Online accounts.  Amazon and other shopping sites make it easy for you to create accounts and include credit card information.  You might also have online access to bank and investment accounts.  In fact, in many cases, you might no longer be receiving paper statements for accounts.  If you don’t identify these accounts, it will be difficult for your successors to even know that they exist because there simply will be no paper trail.  Also, make a list of all the e-mail accounts you have and use.  Many of us have several e-mail accounts these days.
• Work information.  Lawyers might have access to client sites, collaboration sites, online document repositories or other information that no one else knows about.  In addition, they might have access to software, online tools or online databases that someone taking over their work will need to have.  In some firms, lawyers might have important network passwords, backup media or other digital assets the existence or value of which is not realized until they are gone.

At this beginning point, you really want to gather and collect as much information as you can for your inventory.  You can work on organizing and prioritizing later.

This is a new area of estate planning, and this information is helpful to trigger our thinking about our digital lives…..and which parts of our internet interaction, our home computer, and our business computer have become our digital assets that should be part of our estate planning.  My suggestion is that digital assets are  well worth organizing and treating as assets of your estate. Your comments or suggestions are welcomed to this blog.  And I am available to discuss  steps for managing your digital assets beyond the above list…..if advisable, let’s talk.

Bankruptcy is misunderstood by many

What do Abraham Lincoln, MC Hammer, Johnny Unitas, and Walt Disney have
in common? They all filed bankruptcy at some point in their lives. These
men were all at the top of their field at some point in their
professional lives. In some cases, such as Lincoln and Disney, the
bankruptcy came relatively early. By taking stock of their situation,
and availing themselves of the legal remedy to shouldering a debt they
felt they could never recover from, Mr. Lincoln and Mr. Disney were able
to start fresh. They both went on to great things afterward.

Johnny Unitas was a superstar quarterback for the Baltimore Colts, while
MC Hammer was an entertainer with a highly lucrative career. But having
a substantial income does not guarantee that business mistakes,
lawsuits, or bad investments won't take their toll. In the case of
Unitas and Hammer, their peak earning years were behind them when their
financial troubles became insurmountable. Each of them sought bankruptcy
protection and both of them were able to recover from their fiscal woes.

Bankruptcy may be one of the most misunderstood, and hotly debated
financial options available when to going gets tough. Perhaps the
misconceptions come from reports in the press that are less than
complete. Or maybe half-heard conversations over the water cooler at
work lead people to believe that bankruptcy law is more difficult, or
restrictive than it really is. Whatever the case, bankruptcy is a real
and potentially viable solution for many people who find themselves in
dire financial straits.

It is likely that much of the public is not aware that bankruptcy can
take multiple forms, depending on whether it is filed under Chapter 7,
Chapter 11, Chapter 12, or Chapter 13. You may be able to determine
which option is best suited to your circumstances by doing a little
independent research. But you should never fear the process based on the
feeling that you are on your own with no where to turn for help. That is
just not the case.

There is also at least a slim possibility that part of the reason some
people are resistant to the idea of filing for bankruptcy protection is
the fear of embarrassment. The idea of being perceived as a deadbeat who
is trying to run out on their obligations may cause some people who
would benefit from the law, to continue to struggle and suffer the
stress of serious monetary shortfalls month after month. Perhaps it
would be worth reminding those people that the intent of the law is to
provide options and solutions, not to ridicule an individual who has
fallen on hard times, in many cases through no fault of their own.

Henry Ford, Mickey Rooney, Kim Basinger, Debbie Reynolds, and Donald
Trump have all filed for bankruptcy protection. Yet their fame, and
their accomplishments are not diminished by the fact that their finances
have left them suffering through sleepless nights, and mounting stress
levels at one time or another.

Seeking bankruptcy protection is certainly nothing to be taken lightly.
But it can be argued that it shouldn't be avoided unnecessarily, either.
Perhaps it is of comfort to some when they realize that they may feel
admiration for others who have found themselves in difficult times and
sought the legal protection afforded by bankruptcy law. Maybe it is
worthwhile to know that we are truly not alone during some of the more
stressful and worrisome periods of our lives.

In Celebration of the 4th of July

While it is Saturday morning as I write this blog entry, there is a
bigger, more impressive label being hung on this weekend. It is
Independence Day, the great American celebration of freedom. Being a
summer holiday, the 4th of July lends itself to family cook-outs, trips
to the beach, and a slew of other recreational options. Some of us will
marvel at the gastronomic capacities of the participants at Nathan's Hot
Dog Eating Contest in Coney Island, New York. Others will enjoy just one
or two hot dogs at the ballpark, while we cheer and cross our fingers
that our team pulls out a win. And literally millions of us will linger
in the evening to watch fireworks explode in the sky above us, turning
the night into a an expansive, brightly colored, booming expression of
wonder and joy.

It doesn't matter if your family is a recent arrival to this continent,
as one set of my great-grandparents were, or if your family has been
here since the Puritan's landed, as another branch of my family seems to
have been. We all share a common bond on the 4th of July. That is a bond
that I take great pride in.

It is only relatively recently in human history that laws have been
enacted to protect the individual, as fervently as laws have
traditionally been enacted to protect the state. One of the great
legacy's of the United States is the individual's legal right to protect
their homes and their belongings for posterity. Each of us has the
opportunity build a life that we put value in, then pass the tangible
assets of that life along to our children, grandchildren, favorite
charities, or dispose of our belongings in any way we choose,
bequeathing our things to whomever we wish to pass them on to.

In the United States, the individual matters, and each of us has rights.
Our system guarantees that every individual benefits from the exact same
rights as every other individual, regardless of wealth, or position, or
family connections. We are all protected by the law.

Sometimes, these are the things I think of as I watch the fireworks
blossom overhead. Of course I also hug my children tight and enjoy the
sound of their giggling, as I try as hard as I can to cement the memory
of the wonder on their faces into my mind, as they witness a nighttime
display that will keep them looking forward to this anniversary every
year, throughout their lives.

I hope your 4th of July celebration is every bit as wonderful. And I am
glad that you and I have the opportunity to celebrate this milestone of
history together, each and every year.