O’ the Shame of Legalese!

   I try to write as much as I can in plain English.   As a lawyer, that isn’t always easy.  Lawyers use five words with five syllables where a single two syllable word would do for many reasons — They don’t know any better; i.e., that’s the way it has always been done. They’re afraid they’ll miss some nuance or meaning.  They’re lazy or their client won’t pay for better; i.e.,  the form they used as a template was written that way or the client won’t pay for a decent revision. (I want a lease tomorrow and I want it cheap.) They think it makes them sound like a “real lawyer.”  Other lawyers will criticize them and accuse them of being a poor lawyer if their writing isn’t impenetrable.  Sometimes it is an artifact of the negotiation process with each side adding words to “spell it out a little better” or to “clarify a point.”  The end result is a morass that is neither spelled out nor clear the day a dispute arises.  Here are some particularly egregious examples from The Legalese Hall of Shame.  I’m really terrified by the thought of a four page 1,000 word sentence.  Is such a thing even possible?

I believe that impenetrable legalese creates more problems than it solves.  It can actually breed litigation when documents are so lengthy and ambiguous that they can be read a dozen different ways.  It may take a third party in the form of a judge or jury to decide what it means, and they may not agree with the litigants.  More on this tomorrow.

A Lawyer’s Dream: Michael Jackson’s Estate

Michael Jackson was as much a corporation as a person.  Like any major celebrity or company, he had ongoing litigation and business operations.  “The National Law Journal” has an article detailing the myriad suits Jackson and his company, MJJ Productions, had at the time of his death.  These suits will continue being litigated by his corporation or his estate.  The corporate suits will proceed with nary a hiccup.  The corporation’s existence is unaffected by Jackson’s death.  Unlike a very small corporation that may be little more than a one man band, MJJ Productions probably has full time professional management.  That management will continue to run the company.  However, there may be issues as to who runs MJJ.  Assuming Jackson owned most, if not all, of the shares of MJJ, the person who controls the estate and eventually his heirs will have control of MJJ as well as his other personal assets and business. 

It is unknown whether Jackson had a will or a trust (or trusts).  According to one attorney,most celebrities have living trusts.  If he has a will or if he died intestate, there is likely to be a delay while a personal representative (a/k/a an executor) is appointed.  If he had a living trust, then the successor trustee can more or less immediately take control of all the assets in the trust.  However, if he had some assets in the trust and some not in the trust, then he may still need a personal representative to manage assets outside the trust. 

Numerous sources estimate his debt at $500,000,000.00.  His spending habits were legendary.  The good news is that his one-half interest in the music catalog that includes 250 Beatles tunes is estimated to be worth as much as $500,000,000.00 to $1,000,000,000.00, but may already be encumbered with a $300,000,000.00 loan.   Other sources say the music business is so bad that Jackson’s assets may not cover the debts.  It is also possible that a fire sale could be forced for the Beatles catalog if creditors get greedy and over anxious.

However, Jackson’s estate may earn even more than Jackson.  Even as I write this, radio stations and TV stations are playing Jackson songs and videos and the royalties are pouring in. Itunes is probably sellng Jackson’s music at a record rate and CDs and posters are flying off the shelves at WalMart.  This income is likely to go further without Jackson to spend it faster than it comes in.  It is likely to support an army of lawyers and accountants and still be able to pay debt and a legacy for his three (3) children.  Elvis Presley’s estate earned $52,000,000.00 last year, which may be more than Jackson earned while living.  Jackson’s estate may do better than Presley’s for the next year or two.  On the other hand, a rush is on for refunds of the tickets sold for his upcoming concert tour.  At least some of that is insured, but one wonders whether there will be suits for the lost profits and money spent in expectation of the tour.

We won’t know for some time just how things will shake out.  One thing is for certain, whether Jackson’s estate proves to be flush or broke, his confused finances and personal life are likely to be a bonanza for a cadre of lawyers on both sides of the issues.

How to Clean Up Your Social Networking for Your Case

Texas lawyer, Jeff Rasansky, gives some sound advice on managing your social networking in the event that you become involved in a lawsuit.  Although written in the context of his personal injury practice, this advice pertains to any lawsuit.  If you’ve read some of my other posts, you already know that your online image can affect your case, including even a landlord/tenant case. An opposing lawyer or client can find out more about you in 2 minutes for free than thousands of dollars and hours of private investigator time would have revealed just a few years ago.  Right now Casey Anthony’s online trail is playing a major role in the investigation into her daughter’s murder as well as influencing any potential juror pool.

Of course, my preference would be for you to properly manage your online image to create a positive impression of yourself from the beginning, as I describe here in “MySpace Can Help Your ‘Case’ Too.” However, if all else fails and you find yourself embroiled in a lawsuit, Mr. Rasansky offers some good advice for how to manage your online postings. Step one is no matter what kind of case you’re involved in, let your lawyer know if you maintain any social networking sites or any personal websites.  Step two is to Google yourself and see what comes up.  Other people may have posted things about you that you are not aware of.  Step three is to adjust privacy settings as necessary, delete as necessary, and quit posting or control your posting to create a positive image.

Brian Williams Doesn’t Support the U.S. Economy and He’s an Idiot!

Lately it seems like even those whose income shouldn’t have changed due to the down economy are not spending their money.  That’s why an article about how NBC anchor Brian Williams is not spending his money caught my eye.  It seems that Williams, who makes $10,000,000.00 per year or about $866,000.00 per month, feels it is “not cool” and “not very sensitive” to spend money right now.  Good golly man!  Get up off your wallet and go stimulate the economy fool!  Don’t let your misguided desire to show solidarity with the common working man, take food off that man’s table.

You don’t have to “ostentatious” to spend money.  If you make enough for a Bentley Continental GT like Williams then buy yourself a Cadillac like your average Florida retiree instead.  You’ll be helping the economy, but you still won’t be ostentatious for your income level.  There’s a fine line between reckless spending and wise spending within your means.  But it seems that people have gone from acting like they have bottomless pits of money to behaving like the well is completely dry and they live in the Sahara.  It is true that people were feeling rich and spending like there is no tomorrow, but that doesn’t mean that the penduluum must swing completely the other way.

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How to Get Out of Jury Duty

I’ve written before about the dangers of online postings.  A little self censorship is a good idea.  Now it seems that your Facebook status can get you out of jury duty too.  All one juror had to do is set his Facebook status as:  “Barry Price is sitting in hell … aka jury duty.” It seems that a paralegal for the plaintiff’s attorney in the multi-million dollar lawsuit for which Mr. Price was a potential juror was checking the Facebook pages of the jurors.  He complained to the judge and it was buh-bye Barry.  I’m not sure that should have been enough to get him excused for cause, but it was a high stakes, high profile case.

A juror in England, however, engaged in some egregiously improper conduct.  Jurors are forbidden from discussing cases outside of court while the trial is going on.  In fact, they cannot even discuss it among themselves until all the evidence is presented.  They are supposed to base their verdicts solely on the evidence presented and to not consider outside factors or influences.  They are not allowed to view any news about the trial if it is in the papers or on television.  So what does she do?  She posts details of the criminal sex abuse case online and then polls her Facebook Friends for their opinions. She was, of course, dismissed from the case when her misconduct was discovered.  She was lucky not to have been held in contempt of court.

Why Guardianship Avoidance Tools Don’t Always Work

I had some clients come in recently in need of a guardianship for a family member.  The family member was a retired professional.  He had all the right tools in place to avoid a guardianship — durable power of attorney, health care surrogate, and revocable living trust.  So why did he need a guardianship?  Because he was suffering from dementia and refused to cooperate with his family in making rational decisions that were in his own best interests.  Unfortunately, it seems to me that dementia often magnifies the worst personality aspects of some people.  When you combine a cantankerous, domineering personality with paranoia and delusion, it makes for a difficult situation.

A durable power of attorney lets you manage the person’s property, but not the person.  Sometimes I hear people say, “I’ve got power of attorney over my Aunt Ethel.”  No they don’t.  They have a power of attorney that allows them to deal with Aunt Ethel’s property.  A revocable living trust also allows the management of property but not of a person.  In the narrow area of health care and treatment decisions, a health care surrogate or medical power of attorney does give some control over the person assuming that third parties agree and cooperate.  Therein lies the rub.  Without an adjudication of incapacity, third parties my be reluctant to accept the authority of the attorney-in-fact or surrogate.  This is especially true if the incapacitated person insists that he or she is not incapacitated.  The presumption is that people are competent unless declared incompetent.

Sometimes the alleged incapacitated person has lucid moments or is able to “fake it” for significant periods of time.  This makes third parties even more leery of accepting instructions solely from the attorney-in-fact or surrogate.  Third parties who do not spend a lot of time with the incapacitated person are the most easily deceived.  Thus, you can plan and have all the right tools and still not avoid a guardianship.  The good news is that although you may not avoid a guardianship of the person, you may still avoid a guardianship of the property if you have a properly funded living trust in place.

Will Richard Fuld’s “Scam” Work?

While taking my son to school recently, I heard some DJs prattling on about how Richard Fuld had sold his Jupiter Island mansion to his wife for $10.00.  (Actually, it was $100.)  The DJs dubbed this the “oldest dodge in the book” and opined that he would never get away with it.  Their comments got a little more intelligent when they commented that it might fail because the couple could not prove Florida residency.

Actually, Florida law might allow him to “get away with it.”  First, as one law professor pointed out, real property owned jointly by a married couple in Florida is a tenancy-by-the-entireties.  Entireties property is protected from someone that only one of the spouses owes money too.  Thus, no one who gets a judgment against Richard Fuld could seize the mansion unless they also had a valid claim against Mrs. Fuld.  The property was exempt from creditors of Richard Fuld even before he transferred his interest in it to Mrs. Fuld.  It was not necessary for Fuld to transfer his interest in the home to his wife,  If he had left it in joint names, it would have remained safe from creditors of his.  Perhaps Fuld failed to seek legal advice before transferring the home to his wife?

Second, if  Mrs. Fuld can establish that the Jupiter Island mansion is her primary residence.  She can claim it as her homestead and it will be exempt from creditors of hers.  A person’s homestead under Florida law is completely exempt from the claims of creditors.  Of course, if Mrs. Fuld cannot prove Florida residency, then she cannot claim the constitutional creditor protection for the property and it is subject to claims of any of her creditors.  Thus, the Fulds may have actually decreased the protection the home enjoyed against creditors because now it may be subject to the claims of anyone who Mrs. Fuld owes money.

Campione & Hackney, P.A. Is Born

The good news is that the new name for the firm is Campione & Hackney, P.A.  Our offices remain in Tavares, Florida with the same telephone and fax numbers as before.  The three remaining lawyers in the firm will continue to provide a full range of legal services in most areas, including business law, real estate transactions, probate, guardianships, related litigation, and appeals.

The new website is www.campionehackney.com

The bad news is that Robert Vason has decided to leave the firm.  He will continue to practice law at his office in downtown Mount Dora, Florida.  He will be missed and we wish him the best of luck.

WUI (Walking Under the Influence) Could Get You Sued (in Czechoslovakia)

Here is another example of how the U.S. is far from having a lock on silly lawsuits.  A drunk driving home from a nightclub runs into another drunk walking home.  When he gets home he finds the poor guy in the trunk and drags him into the woods where he leaves him with two broken legs.  Fortunately, the injured pedestrian manages to crawl from the woods and is found.  The drunk driver is charged with and sentenced for attempted murder.  (Because he dragged the injured pedestrian into the woods and abandoned him there, and not just because he ran into someone who was walking in the road.)  So far, so good.  But then the drunk driver’s employer, who owned the car the drunk was driving, sues the hapless drunken walker for damages to the car!

I don’t think this could happen in Florida.  Florida law holds that automobiles (and golf carts too) are dangerous instrumentalities. The owner of a dangerous instrumentality is strictly vicariously liable for damages caused by “negligent entrustment” of the vehicle to a driver who causes injuries.  Thus the car owner would be just as liable as the drunk driver.  Florida law also employs comparative negligence.  If more than one party is responsible, then they are each held liable for their percentage of fault.  The negligence of the drunken pedestrian walking along the road would be weighed against that of the drunken driver who hit him.

I have to admit there has been at least one case in the U.S. where a driver ran over a family’s dog and then sued them for the damage to his car.  However, that guy was not drunk and the dog took off and ran into the street. Florida law makes dog owners strictly liable for damages caused by their pets to people.  If there were no personal injuries, the dog owners may not be strictly liable for damages to a car.  However, the dog owners could still be held liable for negligence.

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WE’VE MOVED!

I’m pleased to announce that I am now a partner at Campione & Vason, P.A. We have two locations — Mount Dora and Tavares. My office is at 2750 Dora Avenue, Tavares, Florida 32778. My phone number is now (352) 343-4561. The fax is (352) 343-7456. My email address is still hthackney@harryhackney.com, but I should have new email address at the www.campionevason.com domain later today.

I will be focusing on litigation and my new partners will continue to handle real property, business law, trusts, estates, and probate.

The following is the office location. Unfortunately, the latest images on Google Earth haven’t kept pace with the changes in this area. We’re directly behind the new Kohl’s department store, which I’ve marked on the map. There are also buildings to the right and left of our building that aren’t shown on the map.