Idaho Falls Attorneys Blog Post Feed http://www.beardstclair.com/blog/index.html Idaho Falls Attorneys Blog Post Feed Collecting peach of mind http://www.beardstclair.com/blog-post/collecting-peach-of-mind.html <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>&ldquo;Hello,&rdquo; the man grumbled into the phone.</p> <p>&ldquo;Mr. Samonsite?&rdquo;</p> <p>&ldquo;Yes?&rdquo;</p> <p>&ldquo;This is Lloyd Christmas from Vandelay Industries. Are you still living on First Avenue?&rdquo;</p> <p>&ldquo;Yes. Who is this?&rdquo;</p> <p>&ldquo;I&rsquo;m calling regarding the $58.42 you owe for the Shake Weight Total Fitness Program.&rdquo;</p> <p>&ldquo;I don&rsquo;t have the money right now.&rdquo;</p> <p>&ldquo;Where do you work?&rdquo;</p> <p>&ldquo;I don&rsquo;t have to tell you that.&rdquo;</p> <p>&ldquo;Do you feel good about not paying your bills?&rdquo;</p> <p>&ldquo;I don&rsquo;t have the money right now?&rdquo;</p> <p>&ldquo;If you don&rsquo;t pay we may take further legal action on this claim.&rdquo;</p> <p>&ldquo;For less than $60?&rdquo;</p> <p>&ldquo;So when can you pay?&rdquo;</p> <p>&ldquo;I don&rsquo;t know.&rdquo;</p> <p>&ldquo;I am required to let you know that this is an attempt to collect a debt and any information obtained will be used for that purpose.&rdquo;</p> <p>&ldquo;Huh?&rdquo;</p> <p>&ldquo;You have until this Friday to pay or we may take further legal action.&rdquo;</p> <p>While working as a bill collector during my college years, I quickly learned that not too many people are sympathetic to bill collectors. To some, bill collectors are almost as loathsome as attorneys. In fact, many attorneys are bill collectors. Much like Irwin M. Fletcher, many collectors use an alias due to public disdain for their profession. The alias was my favorite part of being a bill collector. I was so in love with my newlywed wife that I used her maiden name as my alias. While Jeff Brunson was a timid college student, Jeff Price was full of confidence and did his job with panache. I was trained how to make a call, what phrases to uses, how to appeal to the consumer&rsquo;s sense of morality, and, most importantly, to verify the consumer&rsquo;s home address and place of employment. That way, if a lawsuit was filed the collection agency would know where to serve the legal papers and would be set up to garnish wages once judgment was entered.</p> <p>The current economic_________ (insert politically correct term here) has brought increased pressure to collect. With cash down and accounts receivable way up, dealing with bill collectors is becoming common. A federal law called the Fair Debt Collection Practices Act is designed to protect consumers from abusive collectors. The FDCPA requires a collection agency to cease all collection efforts and provide proof of the debt if a consumer requests proof of the debt in writing. Collectors cannot use or threaten violence. Collectors may not use obscene, profane, or abusive language. Collectors can&rsquo;t publish lists of people who owe money. Collectors cannot make repeated telephone calls intended to annoy, abuse, or harass. Collectors cannot use false, deceptive, or misleading methods. </p> <p>Collection agencies are very aware of the law and train their employees to comply with it. Business owners continue to use collection agencies because they get results. This causes some to go right up to the line. Just knowing the law exists, can be a benefit to consumers. Often just the threat of a FDCPA violation is enough for a consumer to get a more favorable deal. The FDCPA allows a consumer to recover actual damages, statutory damages, attorney fees, and costs if a violation occurs. Whether you are seeking to avoid Lloyd Christmas or obtain his services, knowing about the FDCPA puts you in a better position.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. Jeff is a trial lawyer who specializes in business disputes and estate litigation. He can be reached at his Rexburg office (208) 359-5883 or </em><a href="mailto:jeff@beardstclair.com"><em>jeff@beardstclair.com</em></a></p> Tue, 12 Feb 2013 13:17:08 MST A handshake away from litigation http://www.beardstclair.com/blog-post/a-handshake-away-from-litigation.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>There is something noble and virtuous about the handshake. Despite all its righteous might and morality, the handshake is a business person&rsquo;s worst nightmare. Handshake deals are a litigator&rsquo;s dream. Too many sound business professionals live by the practice of consummating deals with nothing more than a handshake. While many contracts do not have to be in writing to be valid, the practice of putting it in writing saves dollars and sleepless nights over a business deal gone bad. <br /> <br /> In its simplest form a contract is nothing more than an exchange of promises. You promise to fix my car and I promise to pay you = contract. Living up to a contract is easy until something bad or unexpected happens. If there is nothing in writing, both sides are left to their own devices to quarrel about what the deal really is. A common saying in the legal profession is, &ldquo;Your client says one thing, my client says another, and the truth is somewhere in the middle.&rdquo; This is true, not because people intentionally lie, but because people have a natural tendency to remember things the way that suits them best (unless I&rsquo;m in a disagreement with my wife in which case I have learned over the years to remember things in a manner consistent with her recollection). <br /> <br /> Take Lincoln and Abe, for example. Abe needs a tractor. Lincoln has a tractor. Lincoln tells Abe, &ldquo;Pay me $1,000 for use of the tractor during the farm season and you can pay me an additional $9,000 for the tractor after the harvest.&rdquo; Abe tells Lincoln, &ldquo;You&rsquo;ve got a deal&rdquo;. They then, of course, shake on it. Abe knows he has just leased the tractor with an option to buy after harvest. Lincoln knows he just sold a tractor to Abe for $10,000. During the farm season the tractor is struck by lighting and vaporized (or other calamity). After harvest, Lincoln goes to his lawyer, Tommy Tort, and sues Abe for $9,000. Abe goes to his lawyer, Seedy Sal, raising the lease with option to buy defense. Tommy Tort and Seedy Sal then duke it out in court the next 18 months generating attorney fees well in excess of the $9,000 in dispute. The whole situation could have been avoided by putting the deal in writing.<br /> <br /> The more you loathe lawyers the more you should seek them out on the front end of a deal so you do not end up paying them more on the back end. While a lawyer cannot foresee every scenario (except for Tommy Tort &ndash; that guy&rsquo;s amazing), a competent lawyer can put you into a much better position to manage the uncertainties of a deal. By putting it in writing first and <em>then</em> shaking on it you maintain the honor of the handshake and the certainty of what you are actually agreeing to. If not, I hear Seedy Sal is taking on new clients.</p> <em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. Jeff is a trial lawyer who specializes in business disputes and estate litigation. He can be reached at his Rexburg office (208) 359-5883 or </em><a href="mailto:jeff@beardstclair.com"><em>jeff@beardstclair.com</em></a><em> </em></div> Tue, 12 Feb 2013 14:57:59 MST Right to farm http://www.beardstclair.com/blog-post/right-to-farm.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>It is a common story in Idaho that has been repeated over and over. Developer buys farm ground outside of City. Developer builds subdivision and sells lots. City folk buy lot and build dream home in subdivision with beautiful views of the neighboring farmer&rsquo;s property.</p> <p>Not long thereafter the city folk&rsquo;s home is full of smoke from farmer burning his ditch. City folk are annoyed and shut the window. Then city folk notice a significant increase in the number of flies around the house and the distinct odor of manure. City folk grumble. Lastly, city folk are awakened at 2:00 in the morning by the steady thudding and clanking of farmer&rsquo;s tractor baling hay. City folk put the pillow over their head and vow to call an attorney in the morning to rid themselves of the nuisance created by their neighbor, the farmer.</p> <p>What the city folk don&rsquo;t know, and what Idaho law protects, is the right of the farmer to operate his farm without the threat of a nuisance lawsuit.</p> <p>The Idaho legislature expanded the protections of Idaho&rsquo;s Right to Farm Act in 2011. The law states that &ldquo;[n]o agricultural operation &hellip; shall be or become a nuisance, private or public, by any changed conditions in or about the surrounding nonagricultural activities after it has been in operation for more than one (1) year, when the operation, facility or expansion was not a nuisance at the time it began, or was constructed.&rdquo; Idaho Code &sect; 22-4503.</p> <p>Normally a landowner could sue a neighboring landowner if the neighbor&rsquo;s activities constituted a nuisance and interfered with the landowner&rsquo;s comfortable enjoyment of his or her property. Idaho Code &sect; 52-111. However, the Idaho legislature has recognized the importance of agriculture to the State of Idaho and has prohibited anyone from suing and making a claim for nuisance where a farmer is engaged in normal farming practices (no protection is given to the farmer who operates his farming activities in an improper or negligent fashion). </p> <p>Activities that are protected by Idaho&rsquo;s right to farm bill include:</p> <p>&bull; plowing, tilling, and preparing soil;</p> <p>&bull; burning fields and ditches as permitted by law;</p> <p>&bull; applying pesticides, herbicides or other chemicals;</p> <p>&bull; planting, irrigating, and harvesting;</p> <p>&bull; breeding, hatching, raising, producing, feeding and keeping livestock;</p> <p>&bull; processing and packing ag products;</p> <p>&bull; noise, odors, dust fumes, light and other conditions associated with an ag operation;</p> <p>&bull; selling ag products at a roadside market.</p> <p>A farmer or rancher sued for his activities can recover his attorney&rsquo;s fees and costs for having to defend himself in an action.</p> <p>In summary, the Right to Farm Act is an important law that protects farmers and ranchers and their agricultural activities. </p> <p>- Lance J. Schuster is an attorney at Beard St. Clair Gaffney. He and his wife raise cattle and kids on their small farm near Idaho Falls. He can be reached at lance@beardstclair.com.</p> Tue, 12 Feb 2013 17:20:11 MST Signing your freedom away http://www.beardstclair.com/blog-post/signing-your-freedom-away.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>&ldquo;Just sign here,&rdquo; my 9-year-old daughter said to her two younger siblings. Her younger brother and sister did not think twice before signing. My 9 year-old was quite pleased with the deal she struck. She now had exclusive access to the optimally located desk while her younger brother and sister were relegated to sharing the older table in the corner across the room. Two lessons can be learned from this example: (1) I need to stop taking my work home with me; and (2) read and consider before signing. While my wife might have something to say about the former, it is the latter I wish to focus on here.</p> <p>One area in which reading and considering is paramount is non-compete agreements. Non-compete agreements are designed to protect employers from the competitive efforts of their former employees. Are non-compete agreements enforceable? I will resist the urge to give the standard lawyer answer of &ldquo;it depends&rdquo;(although that is technically the correct answer as it is religiously taught in law schools across America that if someone asks any question about anything the answer is &ldquo;it depends&rdquo;). Based on an Idaho law passed in 2008, a non-compete agreement is likely enforceable if:</p> <ul> <li>It is limited to 18 months after separation;</li> <li>It is limited to the geographic area where services were provided;</li> <li>It is limited to the type of work provided by the employer; and </li> <li>It seeks to protect customers or other business interests of the employer. </li> </ul> <p>On the front-end of a relationship most employees attach little significance to signing a non-compete agreement. Take Larry and Bob, for example. Larry owns a lemonade stand. Larry hires Bob fresh out of business school to sell lemonade. The lemonade costs 25 cents a cup and Bob gets 3 cents for every cup he sells. Larry presents Bob with a non-compete agreement which was expertly drafted by his attorney, Tommy Tort. Bob signs the non-compete agreement without reading it. For the next few years, Bob sells lots of lemonade. Bob knows he could make much more than 3 cents a cup on his own and announces to Larry that he is leaving to start his own lemonade stand. Larry pulls out the agreement and tells Bob that if he sets up shop in the community he will sue him. Bob is stuck because he does not want to uproot his family and leave the community. If Bob wants to challenge the agreement he will need to pay a lawyer to do so. While non-compete litigation is common, it can be avoided.</p> <p>The best time to deal with a non-compete agreement is before you sign it. Employers can protect their interests by drafting a non-compete agreement that follows the law. By signing a non-compete an employee is giving up some freedom. It may be worth it to sign the non-compete &ndash; the point is you should understand what you are signing. You should not allow the joy and confidence that come from having marketable skills cause you to sign something you will regret later. Otherwise, you may end up stuck in the corner sharing a table with the freedom of your own desk staring you right in the face from across the room.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. Jeff is a trial lawyer who specializes in business disputes and estate litigation. He can be reached at his Rexburg office (208) 359-5883 or </em><a href="mailto:jeff@beardstclair.com"><em>jeff@beardstclair.com</em></a></p> Tue, 12 Feb 2013 15:14:42 MST Noxious weeds http://www.beardstclair.com/blog-post/noxious-weeds.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>June and July are months in which our family dutifully weeds the yard and garden. However, August brings a flurry of family activities. There is the family vacation, the County Fair, the family reunion, the oil change, the flat tire, the raspberries. On top of this school starts soon and there are the backpacks, the shoes, the clothes, the paper, the pencils, the binders, the registration, and don&rsquo;t forget back to school night at the elementary school, the middle school, and the high school.</p> <p>By the time August has come and gone my garden has been transformed from neat rows of vegetables to a solid mat of weeds. Additional weeds line my driveway, grow tall around the barn, and envelope the tractor. Weeds hide my trailer, my canoe, and an old lawn mower. Weeds also line the ditch and the edge of the alfalfa field. </p> <p>A few of the weeds on my property are bona fide noxious weeds. Canada thistle, morning glory, and more.</p> <p>Idaho law obligates me as a landowner to control noxious weeds on my land and property. <em>Idaho Code &sect; 22-2407(1). </em>In addition, the cost of controlling those weeds is my responsibility as the landowner. <em>Id. at (2).</em></p> <p>Counties are given the duty and authority by Idaho law to have noxious weeds controlled within a county. <em>Idaho Code &sect; 22-2406(1). </em>Counties can quarantine a property and stop the movement of noxious weed infested items. If necessary, a County can also destroy crops that are infested with noxious weeds. Usually, however, a County will notify a landowner in writing of a problem and demand that noxious weeds be destroyed, lest the County do the work and bill the landowner for it.</p> <p>Any person who fails to control noxious weeds on their property can, in addition to paying the costs of control, be assessed a civil fine. However, no civil fines can be assessed without first giving a landowner notice and opportunity for a hearing. <em>Idaho Code &sect; 22-2409(2)(b).</em></p> <p>Additionally, and perhaps as a last resort, a landowner who fails to comply with the noxious weed requirements and rules for the State of Idaho can be charged with a misdemeanor. The noxious offender can be fined up to $3,000 and jailed for up to twelve months. <em>Idaho Code &sect; 22-2409(1). </em>Any person who interferes with state or county efforts to control noxious weeds can also be charged.</p> <p>In summary, next summer when the kids complain about weeding the garden, remind them that if they don&rsquo;t, they could go to jail!</p> <p>- Lance J. Schuster is an attorney at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 17:15:59 MST Disposal of dead animals http://www.beardstclair.com/blog-post/disposal-of-dead-animals.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>For any number of reasons, animals up and die. Cows get sick, horses get old, and Idaho winters are hard on any kind of livestock. Inevitably, Idaho farmers and ranchers are faced with the problem of disposing of dead animals.</p> <p>Idaho law requires that dead animals be disposed of within 72 hours. IDAPA 02.04.17.030.</p> <p>This can be accomplished in a number of ways:</p> <p>1. Dead Animal Pit. Dead animals can be hauled to an approved dead animal pit. IDAPA 02.04.17.030.05. Most counties have a dead animal pit that will accept carcasses. Vehicles used for transporting dead animals must be prepared so that no fluids seep from the vehicle during transport, and the dead animal must be concealed from public view during transport. <em>Id</em>. at .040.01-02. Also, vehicles hauling dead animals must travel directly to their destination (no stopping at the grocery store with a dead animal in the back of the pickup).<em> Id</em>. at .040.03. </p> <p>2. Rendering. Dead animals can be taken to a rendering facility. The facility must be licensed and approved. Idaho currently has only one rendering facility located in Boise. IDAPA 02.04.17.030.03. </p> <p>3. Burial. Dead animals can be buried on your land so long as every part of the animal is buried under at least three feet of earth and the animal is buried no closer than 300 feet from any water, well, lake or spring. Additionally, the buried animal must be at least 50 feet from property lines, 300 feet from residences, and 100 feet from roadways. IDAPA 02.04.17.030.04. </p> <p>4. Composting/Incineration. Where approved by the Idaho Department of Agriculture, animals may be composted or incinerated. These methods require pre-approval and are<span style="color: #008000;"> </span>rarely an option. IDAPA 02.04.17.030.06, <em>Id</em>. at .030.08.</p> <p>5. Decomposition. Perhaps the easiest and the least expensive option is letting nature take her course. When animals die on private or state rangeland from causes other than significant infectious disease, they may be left to decompose naturally provided they are at least &frac14; mile from any wells, lakes, ponds, water supplies, streams, public roads, or any residence not owned by the owner of the dead animal. IDAPA 02.04.17.030.10. (It may also be a good idea to make sure your neighbors are upwind of any decomposing animal.)</p> <p>House pets less than one hundred pounds in weight are exempt from the rules (you can bury the cat in the tulips next to the house). IDAPA 02.04.17.011.04<span style="color: #008000;">. </span>Otherwise, any person violating the rules regarding disposal of dead animals may be subject to civil and criminal penalties, and the ire of their neighbors.</p> <p>- Lance J. Schuster is an attorney at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 16:26:01 MST Personal Representatives, Family Feuds http://www.beardstclair.com/blog-post/personal-representatives-family-feuds.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /> </p> <p>&ldquo;It&rsquo;s time to play the Feud!&rdquo; If that phrase does not conjure up some type of emotional reaction out of you, then you probably have not turned a TV on in many years (or you&rsquo;re dead inside). The game show <em>Family Feud</em> has been gracing the television air waves since 1976. It is mildly surprising that a show which pits two families against each other by requiring them to guess the most popular answers to survey questions has been able to stick around for so long. The appeal of <em>Family Feud</em> is not the silly hosts and the snappy music, although that is certainly a contributing factor to its brilliance, it&rsquo;s the families. Family members working together in perfect harmony, often times even huddling like some type of weird family football team, occupy a special place in the American consciousness. Families become stronger in their unified quest for cash. The viewers yearn for that type of family connection.</p> <p>Sadly, in the real world, the opportunity for cash or other assets drives many families apart. The most common situation where family feuds arise is estate disputes. It is common for a family member to be the personal representative (commonly known as the executor) of the estate. The personal representative is the person charged with administering and distributing the estate and is similar to the trustee of a trust. The law imposes certain duties on the personal representative, and if the duties are not met the personal representative may be <em>personally</em> liable to the beneficiaries of the estate.</p> <p>One common pitfall personal representatives fall into is the self-interested transaction. Mom and dad die leaving the family farm in equal shares to the sole heirs, brother and sister. The will is silent as to who operates the farm. Sister is the personal representative and buys the farm from the estate. Brother sues sister because he believes he was supposed to run the farm and disagrees with the purchase price paid by sister. Sister could have avoided this situation if she obtained brother&rsquo;s approval in advance or if she obtained court approval before the sale. Mom and dad could have avoided the situation if they had provided specific direction about the operation or sale of the farm in their wills. </p> <p>Personal representatives are required to deal with estate assets as a &ldquo;prudent&rdquo; person would deal with the property of another. The problem with prudence in most situations is that the personal representative is not &ldquo;dealing with the property of another,&rdquo; but the property of a loved one. Personal representatives have to deal with family members, some of whom are likely resentful because they were not the ones chosen to be the personal representative. It is easy for the personal representative to become a scapegoat of the other family members. A personal representative should hire counsel to help navigate this process if for no other reason than lawyers excel at being scapegoats. Most of us even do so with a smile.</p> <p>So what is the best way to get back at a child who gave you the most difficulty in raising him? <em>Survey says</em> &ndash; make him the personal representative of your will.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. Jeff is a trial lawyer who specializes in business disputes and estate litigation. He can be reached at his Rexburg office (208) 359-5883 or </em><a href="mailto:jeff@beardstclair.com"><em>jeff@beardstclair.com</em></a></p> Tue, 12 Feb 2013 14:49:30 MST Home on the range http://www.beardstclair.com/blog-post/home-on-the-range.html <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p><em>Oh, give me a home<br /></em><em>Where the buffalo roam,<br /></em><em>Where the deer and the antelope play&hellip;</em> </p> <p>Many of our grandparents or great-grandparents came west with the promise of land. They came west to carve a new home out of the land where the deer and the antelope play. They needed land for farming and land for grazing livestock.</p> <p>Today, farmers and ranchers still have a fundamental need for land. While the days of homesteading are over, land may be acquired in several ways:</p> <p>1. <span style="text-decoration: underline;">Purchase:</span> Land can be purchased from those who are selling. The cost of good land can vary depending upon many different factors such as the quality of the soil, the water rights, and the location. Purchasing land can be difficult in today&rsquo;s economy as lenders typically require a significant down payment and will not finance 100% of the purchase price. A 160-acre farm that sells for $5,000 per acre may require a $200,000 down payment to purchase. This may be cost prohibitive to a small family farmer.</p> <p>2. <span style="text-decoration: underline;">Lease:</span> Land may be leased from the owner of the property. A retired farmer may not want to sell his property, but may be willing to lease it for a year, or a period of years. Farm leases are often structured as crop-sharing arrangements where the landowner and the tenant each take a percentage of the crop grown on the property. This arrangement may benefit the tenant as the tenant is thereby guaranteed that his rent will not exceed the value of the crop.</p> <p>Property may also be leased on a cash basis. A farmer may pay a landowner a fixed fee to lease his property. These cash arrangements often call for payment on a &ldquo;per acre&rdquo; basis. For example, a farmer might pay $150 per acre to lease farm ground and will be responsible for the payment amount regardless of the success of his crop.</p> <p>3. <span style="text-decoration: underline;">Blended Arrangements:</span> A lawyer may help a farmer or rancher with a blended arrangement that is part lease and part purchase. For example, a farmer might lease property and structure lease payments so that they are a credit toward the eventual purchase of property. A real estate lawyer may also assist a farmer or rancher with a blended arrangement that takes advantage of government programs designed to assist beginning farmers and ranchers. Tax issues, liability issues, and regulatory issues may all factor into a blended arrangement.</p> <p>Lastly, regardless of the agreement, whether a purchase or a lease, the law typically requires the arrangement to be in writing to be enforceable. A good well-written purchase and sale agreement or lease can be as important to the success of your farming and ranching operation as the land itself. </p> <p> - Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 17:07:04 MST Taking control of your legacy http://www.beardstclair.com/blog-post/taking-control-of-your-legacy.html <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>There I was with my mother-in-law&rsquo;s recently purchased refrigerator ready to return it to the retailer where it was purchased. A friend and I had successfully transported it back to the store. My marching orders were clear: I needed to be prepared to press hard for a return because my mother in-law had already plugged in the refrigerator, an occurrence that ordinarily triggers a restocking fee. After I presented the receipt, the clerk kindly informed me that a return was no problem but they would have to charge the dreaded 15% restocking fee. My normal stoic, reserved public demeanor was transformed as I became a crusader for the oppressed everywhere who were being forced to pay restocking fees. What happened next is somewhat of a blur, but it involved screaming on my part, a phone &ldquo;conversation&rdquo; with the manager who was out of the office at his child&rsquo;s sporting event, and a forceful argument by me that said policy was unenforceable in a court of law. My friend, who was by my side at the start of the conversation, suddenly began to distance himself from me and to feign interest in the oven-cleaning kits that were on the complete opposite end of the store. The clerk stood his ground and refused to waive the fee. I had no choice but to return the refrigerator and pay the restocking fee. The store had all of the control. As I was fretting over my inadequacies as son-in-law and attorney, the clerk told me he was unable to get the computer to process the restocking fee and as a result there would be no restocking fee.</p> <p>When you die without a will, you lose control of something much more significant than a restocking fee; you lose control of your legacy. Misinformation abounds about what happens when you die without a will, i.e. dying intestate. Idaho&rsquo;s intestacy statute details what happens in such a situation. In law school, flow charts are created and studied to try to learn all of the possibilities. If you are married, then your spouse will likely get the bulk of your property. If you are single, then it will likely go to your kids, and if you have no kids then it will likely go to your parents. If you die without a will, you lose control of what you want to happen. If you and your spouse both die and have kids under the age of 18, then you lose control over who will look after them. While your relatives are grieving, they are left in the unfortunate position of trying to agree on what you would have wanted to happen. Ultimately, a judge who knows nothing about you and your family may end up deciding what he thinks is best for your kids.</p> <p>The time of year where gym activity increases and self-improvement activities recommence is at hand. Making a will is a resolution worth committing to. The best practice is to consult with an attorney who focuses on estate planning. However, if you are of limited means, allergic to attorneys, or just do not want to be in the same room as one in fear something undesirable might rub off on you, there is another way. Idaho, like most other states, recognizes holographic wills. A holographic will is a will made in your own handwriting and signed by you. You can dictate where your stuff goes and who you would like to take care of your kids if both you and your spouse die. Similar to the computer glitch that ended up doing away with my mother-in-law&rsquo;s restocking fee, a holographic will is not the best medium to accomplish the sought after result, but it is better than nothing.</p> Fri, 08 Feb 2013 12:43:57 MST Food safety http://www.beardstclair.com/blog-post/food-safety.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Idaho farmers and ranchers raise quality food products. Some of the most important food products produced include dairy, beef, potatoes, wheat and barley.</p> <p>Farmers and ranchers have a duty under the law to make sure these products are safe for human consumption. Listeria-tainted cantaloupe was the source of the most deadly food-borne illness in the U.S. in the last decade. At last count 29 people were dead and 139 were sickened. The cantaloupe was grown in Colorado and lawsuits have been filed against the grower.</p> <p>While state law provides some protection to the consumer, Federal law has been passed to address food safety. The Food Safety Modernization Act (&ldquo;FSMA&rdquo;) was signed into law in 2011 and allows the Food and Drug Administration (&ldquo;FDA&rdquo;) to detain food products which it believes are adulterated (i.e. tainted) or misbranded. It aims to ensure the U.S. food supply is safe by &ldquo;shifting the focus of federal regulators from responding to contamination to preventing it.&rdquo;</p> <p>Owners of most food handling facilities are now required by FSMA to conduct a hazard analysis and identify and evaluate known or reasonably foreseeable hazards and implement preventative controls. Records must be kept of the effectiveness of those controls. The owner of the food handling facility must also have a written plan that documents and describes the procedures used by the facility to comply with FSMA requirements. The FDA will inspect most food handling facilities in the years to come.</p> <p>Also, most manufacturing, processing, packing and holding facilities of food will be required to register with the FDA starting in October &ndash; December, 2012. </p> <p>Farmers and ranchers who fail to comply with the FSMA may have their products detained and may be prohibited from selling their food products. </p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 16:52:46 MST Indivisible Division http://www.beardstclair.com/blog-post/indivisible-division.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>G.I. Joes are awesome. I spent countless hours growing up reveling in their awesomeness. Sure one can line them up and fight, but there are so many other possibilities for diversion with the small army action figures. My favorite was creating opposing football teams with them and then simulating the games complete with play-by-play by me (a fact that was not mentioned to my wife until well after we married). I lined up the Joes according to their respective strengths and weaknesses. For example, the ninjas, Snake Eyes and Storm Shadow, would be wide receivers because they were blazing fast and had ninja-like moves. The two ninjas were prolific scorers and enjoyed many game winning touchdowns. The attachment to my Joes lives on as demonstrated by my continuing to purchase Joes for my own son despite the fact that they sit dormant, gathering dust in his room. I loved my Joes. They were prized property. I enjoyed them long after it was socially acceptable to do so.</p> <p>In addition to contributing to the growing evidence that I am a complete and total dork, my affinity for G.I. Joes demonstrates that people attach different values to different things. Every attorney who does divorce work has a story about the crazy things people fight over. The phrase &ldquo;fighting over the silverware&rdquo; may come to mind. People end up spending significant resources fighting over property that has high sentimental value but low monetary value. </p> <p>The law regarding marital property in Idaho is outwardly simple. Idaho is a community property state. Community property is any property obtained during the marriage. Separate property is property brought into the marriage or property obtained during marriage by gift or inheritance. For example, my G.I. Joes are my separate property because I owned them before marriage, but my wages are community property because I earn them during marriage. The community starts when marriage begins and ends with either a divorce or death. </p> <p>There is a common misconception that when couples separate the community ends. There is no such thing as &ldquo;legal separation&rdquo; in Idaho. The filing of divorce does not end the community. The community does not end until the judge enters a decree dissolving the marriage. Assets acquired after the filing of divorce (but before an official decree of divorce) are community assets and will need to be split up. Unless there are compelling facts requiring a different outcome, the community property will be split 50-50 between husband and wife, and each will get to keep their own separate property. If separate property becomes mixed with community property, then it becomes community property. It is then left up to the party who mixed the separate property with the community property to prove the separate nature of the property. For example, if one spouse uses his or her inheritance to pay for a kitchen remodel in the marital home, the inheritance is no longer separate property.</p> <p>These rules all seem straightforward until someone files for divorce. If the emotion is removed from the equation, a divorce is merely a business transaction. Almost always, emotion is not removed from the equation. Most do not go into a divorce thinking they are going to drag things out or be petty. However, when faced with losing a prized possession, it is easy to lose sight of the big picture. One is not being asked merely to split up his or her possessions; one is being required to give up the memories associated with those possessions. It is not about giving up cheap, replaceable G.I. Joes; rather it is about being required to grow up and replace the certainty of the euphoria the G.I. Joes bring with an uncertain future. </p> <p>No one goes into a marriage hoping for a divorce. If you are faced with such a situation, seek out those you trust, professional or otherwise. They can help you decide if a battle must be waged and which skirmishes within the battle to pursue or avoid. They can also help you put your affairs in order to ensure your G.I. Joes are not irretrievably comingled with your wife&rsquo;s Care Bear collection.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. Jeff is a trial lawyer who specializes in business disputes and estate litigation. He can be reached at his Rexburg office (208) 359-5883 or </em><a href="mailto:jeff@beardstclair.com"><em>jeff@beardstclair.com</em></a></p> Tue, 12 Feb 2013 15:45:53 MST Fences http://www.beardstclair.com/blog-post/fences.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>The grass was greener on the other side. Or at least my cows thought so. They jumped the fence, or went under the fence, or perhaps through the fence, and joined my neighbor&rsquo;s herd. I called my neighbor and told her that it would not hurt my feelings if she fed my cows all winter long. My neighbor laughed, but only briefly and politely. I then promised her that I would fix some fence.</p> <p>Idaho law dictates what constitutes a legal fence. Idaho Code &sect; 35-102 states that a lawful fence may be any of the following:</p> <p><strong>Stone Fence</strong>: Must be four feet high and two feet at the base and one foot thick on top.</p> <p><strong>Worm Fence</strong>: Must be four feet high and the rails must be well laid.</p> <p><strong>Post &amp; Rail: </strong>The posts must be well laid and not more than eight feet apart. There must be at least three six-inch boards, or rails not less than 2 1/2 inches in diameter. The top board or rail must not be less than four feet from the ground. If rails not less than three inches in diameter are used, the posts may be set 12 feet apart.</p> <p><strong>Wire Fence: </strong>Probably most common, a wire fence must have posts set not more than 24 feet apart with three stays placed at equal distances between the posts. All wires must be securely fastened to the post with not less than three strands of barbed wire. The bottom wire must not be more than 21 inches from the ground and the other wires a proper distance apart. The fence must be at least 47 inches high.</p> <p><strong>Other:</strong> If made in whole or in part of brush, ditch, pickets, hedge, or any other materials, the fence must be equal in strength and capacity to turn stock as the fences described above.</p> <p>One purpose of these legal fence requirements is to &ldquo;fence out&rdquo; cattle and other livestock in an open range. However, in a herd district, these same fence requirements dictate the requisite legal fences that must be built to contain livestock. If you live in a herd district, and if your cows escape through your fence, and your fence is not a legal fence, you may be &ldquo;per se&rdquo; negligent and responsible for any damages that may result.</p> <p>Remember that good fences make for good neighbors, and a legal fence will keep you and your cows on the right side of the law.</p> - Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></div> Tue, 12 Feb 2013 16:33:43 MST Agister's liens http://www.beardstclair.com/blog-post/agisters-liens.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>I didn&rsquo;t panic when my small herd of Black Angus cows mutinied and jumped the fence to join my neighbor&rsquo;s much larger herd of cows. Instead<span style="color: #008000;">,</span> I called my neighbor and explained that because of my work schedule I couldn&rsquo;t get my cows until Saturday. I asked if she would feed and care for my wayward animals, to which she graciously agreed. One week turned into two, and then two almost turned into three. When I finally retrieved my cows<span style="color: #008000;"> </span>I offered to pay my neighbor<span style="color: #008000;">,</span> knowing that she was entitled by law to an agister's lien on my mutinous herd.</p> <p>An agister&rsquo;s lien is created when a party takes possession of another&rsquo;s livestock and agrees to assume exclusive care and responsibility for the livestock, including grazing, feeding, or pasturing the livestock. The purpose behind an agister&rsquo;s lien is to protect parties that agree to care for and feed another&rsquo;s livestock. The party that agrees to care for the livestock is considered the <em>lienholder</em> in this arrangement.</p> <p>Idaho Code &sect; 45-805(b) states that &ldquo;[l]ivery or boarding or feed stable proprietors, and persons pasturing livestock of any kind,&rdquo; are entitled to a lien for his or her compensation in caring for the livestock.</p> <p>The agister&rsquo;s lien created by Idaho Code &sect;<ins datetime="2012-02-08T17:25" cite="mailto:Beard%20St.%20Clair%20Gaffney"> </ins>45-805(b) is &ldquo;dependent on possession.&rdquo; This means that a lienholder must maintain possession of the animals in order to preserve the lien. A lienholder will lose the agister&rsquo;s lien on livestock if he or she voluntarily parts with the livestock to which the lien attaches. However, if the lienholder only parts with the livestock conditionally, and with the intention to preserve the lien, the lien survives. Furthermore, if the original owner takes the livestock back through force or fraud, the agister&rsquo;s lien survives.</p> <p>Assuming that the agister&rsquo;s lien is still in place, and the original owner does not pay the lienholder for caring for the owner&rsquo;s livestock, the lienholder is then entitled to sell the livestock at a licensed public livestock market. Before selling the livestock, the lienholder must provide ten-day notice of the sale to both the original owner and the state brand inspector.</p> <p>These notices must contain the following information: the time, place, and date of the auction market; contact information for the lienholder; contact information for the original owner of the livestock; the number, breed, and current brand of the livestock upon which the lien has been placed; and a statement by the lienholder that he or she has complied with the requirements set forth in Idaho Code &sect; 45-805.</p> <p>If the lienholder follows these steps, he or she may then sell the livestock. After paying off any prior perfected security interests, the lienholder is then entitled to use the proceeds to pay off his or her agister&rsquo;s lien. If there are any remaining proceeds after satisfying those debts, the original owner is then entitled to the remaining funds.</p> <p>Remember, the law protects the agister who feeds, and waters, and cares for your animals.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 16:05:54 MST Using a business lawyer without gagging http://www.beardstclair.com/blog-post/using-a-business-lawyer-without-gagging.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>Barf. My eight your old daughter hates everything about it. The smell, the sound, and the consistency cause her great discomfort. Just the thought of it causes her to tremble and brings tears to her eyes. Many feel the same way about lawyers as my daughter feels about barf. While I have never had anyone dry heave at the mere sight of me, I certainly have detected feelings of great discomfort in my interactions with people. Despite their discomfort with lawyers, businesses should use lawyers. </p> <p>One time during a pickup basketball game a gentleman with a military crew cut left a lasting impact on me. His respect for the fundamentals of basketball was impressive. He was an effective communicator on the court, a floor general even. When he would set a screen he would scream (not yell &ndash; scream), &ldquo;USE ME!&rdquo; As a participant I did not feel like I had any choice but to try and &ldquo;use him&rdquo; by utilizing the precision-like screen that had been set for my benefit. I shudder to think what might have happened had I failed to do so. While falling short of an outright demand for use, this article contains the top four benefits of using a business lawyer regularly (as formulated by the smartest business lawyer I have met &ndash; Winston Beard).</p> <p><em>4. Participation in board meetings.</em> The best way for businesses to regularly consult with lawyers is to have the business lawyer participate in regular planning or board meetings. Sound advice is obtained before strategies are formulated or decisions are made. A good business lawyer will not interfere with the business but should alert the business person to potential problems or opportunities. Some law firms offer affordable programs to allow this type of participation in a cost effective manner. Involving a lawyer as part of the planning process makes it less likely that a business will be mired in litigation down the road. </p> <p><em>3. A business lawyer has an understanding of Idaho&rsquo;s complex LLC law.</em> The LLC is the most complex of all business organizations, and Idaho adopted a completely new LLC law in the summer of 2008. It is easy to file a certificate of organization for an LLC, but the simplicity of merely forming the business with the secretary of state belies a complex set of tax regulations and legal rules.</p> <p><em>2. A business lawyer offers advice based on profitability and strategy.</em> A business person can get legal advice from many different sources. However, businesses should avoid relying on improper sources for their legal advice. It is February and my Christmas tree is still decorated and standing in my living room. It is currently functioning as a night light. While there may be some benefit gained from this use, its true purpose has come and gone. Similarly, when businesses rely on accountants and trade associations for legal advice, they could gain some benefit, but these advisers may not focus on, or even be aware of, the right <em>legal</em> issues.</p> <p><em> </em></p> <p><em>1. Simple and concise business documents.</em> A good legal document should be concise, readable, and understandable by the business person for whom it is written. Good business documents are straight-forward, eliminating the possibility of misunderstanding down the road. It is common for a business person to draft his or her own business documents, to copy one from another business, or, even worse, to download legal documents from the internet. Often these documents contain arcane legalese and ambiguities, and they may even be based on another state&rsquo;s laws. These deficiencies invite disputes and costly litigation. If handshake deals are a litigator&rsquo;s dream, ambiguous legal documents pay for a litigator&rsquo;s vacation home.</p> <p><em> </em></p> <p>If you are a business person who feels the same way about lawyers as my daughter does about barf, the reality is you need to find a way to deal with it. So, put on a pair of rubber gloves, keep your hand sanitizer on your person at all times, strap on your surgical mask, and contact a business lawyer. Maybe &ndash; just maybe &ndash; it will not be as bad as you think.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:02:44 MST Gambling on March Madness http://www.beardstclair.com/blog-post/gambling-on-march-madness.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>Henry Weinhard&rsquo;s Root Beer. That beverage is about as good as it gets to a 17 year-old on a warm summer day. &ldquo;Loser buys winner a six pack of Henry&rsquo;s,&rdquo; my friend had said in challenging my other friend and me to a game of basketball. While he was a good player, he was not <em>that</em> good. In hindsight I may have overlooked the fact that I was a scrawny cross-country runner who was probably 130 pounds soaking wet, and my teammate to be was a football player who liked to hit people. Nevertheless, we accepted the challenge and liked our chances in the two-on-one matchup. What ensued was neither pretty nor fun. The game came down to one decisive play which I have absolutely no recollection of. All I remember is that there was a dispute over the rules, which was going to determine the outcome. Both sides became entrenched, and by entrenched I mean I began screaming and losing control over my limbs while our opponent chuckled. I ended up leaving in a huff. &ldquo;What started out as a joke [had] turned into a disaster!&rdquo; (Yes, that is a Rocky IV quote.)</p> <p>My initial foray into gambling left a bad taste in my mouth, not for the moral reasons it probably should have, but instead because I did not like the way I behaved with something riding on the outcome of an otherwise friendly game. Because of that experience, I am still reluctant to this day to put &ldquo;skin in the game.&rdquo; Even when it comes time to do something I love like filling out brackets for March Madness &ndash; there is never any desire on my part to put money on the line because I am afraid of how I will behave when things get tense. Fortunately for CBS, this is not an infirmity afflicting most Americans. The moral implications of putting a few bucks into a March Madness pool could be endlessly debated (and I am certainly not suggesting how that debate should come out). As adeptly pointed out by my partner, John Avondet, there is a separate legal question that one must consider before plunging into the pool of college-basketball-betting-iniquity. Is putting money in a March Madness pool illegal?</p> <p>Let&rsquo;s break it down much like one does when deciding what team to pick in filling out a bracket. Idaho Code &sect; 18-3801 defines gambling as, &ldquo;risking any money . . . or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event . . .&rdquo; So by putting a few dollars into the pool one is &ldquo;risking money&rdquo; on the &ldquo;outcome of an event&rdquo; and clearly meeting the statutory definition of gambling. </p> <p>Idaho Code &sect; 18-3802 further provides that a person is guilty of gambling if he: &ldquo;participates in gambling; or knowingly permits gambling to be played . . . in any real or personal property owned, rented, or under the control of the actor . . . .&rdquo; The statute further provides that gambling is a misdemeanor. So if you participate or are an employer and know about the office pool under the plain terms of the statute you are guilty of a misdemeanor. </p> <p>Idaho Code &sect; 18-3803 goes even further and provides, &ldquo;Every prosecuting attorney, sheriff, constable or police office, must inform against and diligently prosecute persons whom they have reasonable cause to believe offenders against the provisions of this chapter, and every such officer refusing or neglecting to do is guilty of a misdemeanor.&rdquo; So be careful, if law enforcement catches wind of your office pool they have an absolute duty to diligently pursue you or they themselves are guilty of misdemeanors. So if, for example, the prosecutor&rsquo;s office, hypothetically speaking of course, had an office pool, they would be committing a misdemeanor in participating in the pool and an additional misdemeanor for failing to prosecute themselves. </p> <p>So the next time you casually bet a six-pack of Henry&rsquo;s or contribute to the office pool, you might want to make sure you have a prosecutor or two participating so as to avoid prosecution. </p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:48:59 MST Open range http://www.beardstclair.com/blog-post/open-range.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Last summer I stood on my front porch and looked out onto the county road in front of my home. Standing in the middle of the road was a lone Holstein heifer. I chuckled, happy that for once it was not my cow. I then hollered at my kids and we walked out to the road. There were no cars on the road, so we gently walked the heifer back to our neighbor&rsquo;s property and put her in an empty corral. </p> <p>In many parts of Idaho cows, horses and sheep have as much right to be on the road as a car. Idaho is an "open range" state. Idaho law defines "open range" as all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease or permit, are grazed or permitted to roam. Idaho Code &sect; 25-2118. In an open range, livestock may roam freely. If you live in an open range, you are responsible to &ldquo;fence out&rdquo; livestock if you want to keep range animals off of your property (and your front porch).</p> <p>In open range areas cattle and other animals may be grazing on or near a road or highway. Owners of domestic animals are not liable or negligent when their animals cause a highway collision in "open range" or when the animals are "lawfully on any highway." In fact, you may be legally responsible for paying for dead or injured animals that you hit with your vehicle in an open range.</p> <p>Within a city, or a herd district, an animal owner has a duty under the law to fence in animals and keep them off of a highway. However, if an animal is on a highway, and an accident occurs, the owner is not strictly liable. The law looks to the actions of the owner of the animal to determine whether the owner was negligent in allowing an animal to wander onto a highway or roadway. For example, did the owner fail to close a gate, or did the owner fail to erect a lawful fence that would contain livestock? In the latter case, the owner may be negligent and responsible for any accidents or injuries that result.</p> <p>As for my neighbor&rsquo;s cows, we live outside of city limits and outside of a herd district. So maybe my neighbor intended for his cow to be out on the road&hellip; I&rsquo;ll have to ask.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 17:18:16 MST The benefits of courtroom trials http://www.beardstclair.com/blog-post/the-benefits-of-courtroom-trials.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>Last Friday, my client sat next to me, hyperventilating. The jury had returned with its verdict and the judge&rsquo;s clerk was reading it. A three-year process had just culminated with a jury trial . . .</p> <p>His palms are sweaty, knees weak, arms are heavy<br />There's vomit on his sweater already, mom's spaghetti<br />He's nervous, but on the surface he looks calm and ready to drop bombs,<br />but he keeps on forgetting what he wrote down,<br />the whole crowd goes so loud<br />He opens his mouth, but the words won't come out</p> <p>These are the immortal words of Eminem from his celebrated rap song <em>Lose Yourself</em>. Eminem accurately describes the feelings I experience before standing up and making an argument in front of a jury. Jury trials are becoming more and more of a rarity. The entire system is set up to push people out of the courtroom and into settlement. A decent mediator can convince almost anyone, no matter how strong their case is, that they should settle. Settling and avoiding litigation is not always the right move. In the past I have written about avoiding litigation and how to utilize a business lawyer. A good business lawyer will help you evaluate which battles should be waged. However, a business lawyer whose primary objective is to avoid litigation is not a business lawyer worth hiring.</p> <p>Sometimes a trial is required in order for justice to prevail. Other times a trial is required because it is an all-or-nothing deal. A trial may be necessary to make sure you maintain your credibility in the business community. A trial may be necessary to back up promises you have made. A business person that comes into a case needs to be prepared from the outset emotionally, psychologically, and financially to take the matter all the way through trial. Focusing on settlement from the outset sets that business person up to make a bad deal. If you are in litigation or headed there you need a trial attorney. First and foremost, a trial lawyer likes to be in trial. This does not mean a trial lawyer does not get nervous or fear the unknown; rather it means despite all of the stress, a trial lawyer likes being in court and putting on a case. Decent trial attorneys come in all varieties but elements that should always be present are hard work and preparation.</p> <p>When I stood up to do my opening statement to the jury last week, my mind was racing. I represented a business who was suing another business for fraud and breach of contract. On the other side of the equation, my client was being sued for breach of contract and misappropriating trade secrets. My mind was racing because my client&rsquo;s future as a business depended on the 12 jurors seated in front of me. There is nothing louder than the emotionless and silent stares of a jury as you stand before them. Unlike the Eminem song, the words did come out and I was able to present our case. The only reason I was able to do so was because of my client&rsquo;s belief in a jury. My client was pressured from many different people to settle the case and was told to be afraid of the jury trial. She wanted her day in court and resisted attempts to settle the case on terms that were not favorable to her company. It took three years to get the case to trial, yet she persisted.</p> <p>After the evidence had been presented and closing arguments made, we waited for the jury to deliberate. There is no worse time in a trial lawyer&rsquo;s life than waiting for a jury to come back with a verdict. While we waited, not knowing the outcome, my client persisted in her conviction that a jury trial was the best course of action.</p> <p>. . . the clerk finished reading the verdict. When I confirmed to my client we had won on all counts she had difficulty breathing for a different reason. In her case, win or lose, a trial was the best business decision she could have made. My client won the moment she decided she was taking her case to trial.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 13:33:26 MST Field burning in Idaho http://www.beardstclair.com/blog-post/field-burning-in-idaho.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>One of the first signs of spring in Eastern Idaho is the smoke. Farmers and ranchers burn ditches, slash piles, and weeds. While effective at cleaning ditches and getting rid of weeds, burning fields requires prior approval.</p> <p>In 2007, after a northern Idaho group called Safe Air For Everyone challenged Idaho&rsquo;s field burning laws, the Ninth U.S. Circuit Court of Appeals held that the laws were illegal under the Clean Air Act. This resulted in a 2007 ban on field burning in Idaho.</p> <p>The next year, however, the state, farmers, and clean air activists reached an agreement for the burning of crop residue. These rules can be found on the Idaho Department of Environmental Quality (DEQ) website.</p> <p>Under the new rules, crop residue includes vegetative material remaining in the field after harvest or produced on conservation reserve program lands. Crop residue also includes &ldquo;whole fields, pastures, spots within a field or pasture, broken bales in the field that&hellip;were generated during the time of harvest, Conservation Reserve Program lands, food plots, and blanching or flaming operations.&rdquo; http://www.deq.idaho.gov/air-quality/burning/crop-residue-burning.aspx. Crop residue &ldquo;does not include vegetation along ditch banks, fence lines, orchard prunings, or forest slash piles.&rdquo; <em>Id. </em>Farmers can only burn in fields that produced the crop residue.</p> <p>Under the new rules, farmers are required to get approval from the DEQ through registering for a permit at least 30 days before they plan on burning any crop residue. The permit registration requires detailed information about the planned burn. There is also a fee of two dollars per registered acre that must be paid at least seven days before burning.</p> <p>The new rules also limit the days on which field burning can take place to daylight hours on weekdays. No burning is allowed on holidays or weekends.</p> <p>In a draft of its Crop Residue Burning Program 2011 Annual Report, the DEQ stated that last year over 65,000 acres were burned across the state. About two-thirds of these acres were burned in southern Idaho. Despite the wet and cool conditions last spring and early summer, the DEQ was able to approve most of the burn requests made by farmers last year.</p> <p>The new rules and processes governing field burning in Idaho may not be clear of legal problems, however. In its draft 2011 annual report, the DEQ recommends allowing farmers to burn fields on weekends and holidays. If this rule is changed, field burning law may again be facing legal scrutiny from clean air advocates.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></p> Tue, 12 Feb 2013 16:47:13 MST The negatives of unsupervised fun http://www.beardstclair.com/blog-post/the-negatives-of-unsupervised-fun.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>&ldquo;See those big barrels over at the top of the hill?&rdquo; my friend asked me. He was referring to large wood reels used to hold cable wiring. We were 12 at the time and attending a birthday party with about 10 other 12-year-olds. I should have ignored the question and walked away. Instead I found myself at the top of the hill rocking a large wood barrel (the barrel was taller than I was) back and forth. When we let it go, my mind was completely devoid of thought. I was a fairly responsible kid, but for some inexplicable reason when my friend suggested rolling the barrel down the hill, I eagerly complied. As the barrel flew down the street, picking up speed along the way, I realized there was a parked car at the end of the street and the barrel was headed right for it. My feet felt as if they were buried in cement as I helplessly stared at the barrel and prepared for the inevitable. Suddenly, it hit a bump and jumped the curb. Instead of hitting the parked car head on, it merely clipped the side of the car, knocked off the passenger side rearview mirror, and left a nasty scratch on the car as the barrel screeched to a halt. The barrel rolling incident created quite a commotion, and the whole gaggle of pre-teen boys sprinted for the sanctuary of the birthday boy&rsquo;s basement. No further mention of the incident was made during the party, and the barrel was left at the scene of the crime.</p> <p>Kids do stupid things. The barrel-rolling incident brings to mind questions that are debated frequently. At what age should your child be left home alone? At what age should your child be left to supervise younger siblings? You may think your child is capable on his own but even the most responsible of kids may exercise poor judgment when left to supervise younger siblings.</p> <p>State laws vary on when a child can be legally left home alone, and many states do not have any set restrictions whatsoever. The range of ages in the state laws that do exist is 8-14. In Idaho, there is no set age prescribed by law as to when you can leave your child home alone. The decision is left to the parents&rsquo; discretion. The Idaho Department of Health and Welfare has some helpful resources in this regard, which can be accessed easily on their website. Things to consider include maturity level of your child, ability to handle urgent situations, environment, length of time being left alone, and your child&rsquo;s feelings about being left alone. <em>See</em> <a href="http://www.211.idaho.gov/elibrary/HomeAlone.html">http://www.211.idaho.gov/elibrary/HomeAlone.html</a>. Maybe your child is mature for his or her age but is afraid to be left home alone. If this is the case, he or she is probably not ready to be left home alone. It is a decision to be made on a case-by-case basis.</p> <p>Just because your child is ready to be left home alone does not necessarily mean your child is ready to care for younger siblings. When kids are left home alone together, as the barrel rolling fiasco demonstrates, sometimes a fateful plan comes together. The child left in charge not only needs to be able to care for the younger kids but also have the good judgment to prevent the wheels from coming off, or in my case the barrel from hurtling down the hill. I am certain that most kids have more common sense then the 12 year-old version of me, but deciding when a child is ready to be left home alone is something that should be carefully considered.</p> <p>Your careful consideration on the matter will help prevent unfortunate phone calls from the police like the one my dad received about a week after the birthday party. Unfortunately for me, it did not take a crack CSI team to solve the case of the barrel and the car. The crime was committed in broad daylight, was perpetrated by screaming 12-year-olds, and resulted in a very loud collision. I had spent the week internally debating whether I should confess or just see if things would remain quiet &ndash; the call from the police resolved that debate. As you contemplate the decision of whether to leave your child home alone unattended, and when the countenance of his or her angelic face runs through your mind, just remember there is a good chance your child is performing a complex analysis on what he or she can get away with as you do so.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:29:57 MST Rules for the old burn barrel http://www.beardstclair.com/blog-post/rules-for-the-old-burn-barrel.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Out back of the house near the garden, hidden behind a hill of wildflowers, is my burn barrel. The burn barrel has long since lost its coat of paint, smoked away with the first hot fire. The barrel had a former life as a 55 gallon drum containing some forgotten liquid. It now stands ready to consume whatever I might ignite.</p> <p>There are rules in Idaho for what I may, or may not, burn in my burn barrel. It is illegal in Idaho to burn garbage and most human-made substances in your burn barrel, or anywhere else on your proprety. Plastics, hazardous waste, paint, tires, household garbage, and dead animals are all forbidden fodder. The Rules for the Control of Air Pollution in Idaho, IDAPA 58.01.01, also prohibit burning of motor vehicle parts, asphalt, rubber materials, tar, and other human-made substances. These rules are designed to protect air quality in the State.</p> <p>Idaho law does allow for the use of open outdoor fires under certain conditions and for certain purposes. Unless a burn ban is in effect (based on weather and air quality conditions) you may burn rubbish, tree leaves, yard trimmings, and gardening waste. You are also allowed to burn weeds along fence lines, canal banks and ditch banks.</p> <p>Idaho law also allows for fires for food preparation or for recreational purposes, such as barbeques and campfires.</p> <p>Also, keep in mind that if you live within city limits, there may be city ordinances that prohibit open fires on your property.</p> <p>The burn barrel has been a convenient place to stuff a tumbleweed, or a few tree branches until I&rsquo;m ready to light a fire and burn. It&rsquo;s also good for tossing the left-over twine from the hay bales. Just keep in mind when you burn that some things are fine for the burn barrel, and some things belong in the trash can.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 17:22:48 MST Are fireworks immune to the legal system? http://www.beardstclair.com/blog-post/are-fireworks-immune-to-the-legal-system.html <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p>As far as family traditions go, I imagine &ldquo;crowd avoidance&rdquo; is not at the top of most people&rsquo;s list. In my family &ldquo;crowd avoidance&rdquo; is about as American as apple pie. Growing up, almost every Fourth of July was spent camping at Lake Jubilee in the Blue Mountains of Oregon. With only 52 total campsites, our objective of &ldquo;crowd avoidance&rdquo; was well served. We always showed up the week before in order to ensure we would get campsite 13 which was situated close to the lake but far enough off the beaten path so as to avoid unruly camping neighbors. The Fourth of July was spent in relative solitude and peace. No parades, no robust crowds, and certainly no fireworks. Because of this background, I have never quite understood the fascination with lighting off a bunch of mini-explosives shoddily manufactured by underpaid workers in a third-world country. Despite my lack of passion for pyrotechnic displays, I appreciate that for many families, the fireworks are an indispensable part of the Fourth of July.</p> <p>It seems there is always at least one person in every neighborhood that has a reputation for obtaining the &ldquo;good&rdquo; fireworks &ndash; &ldquo;good&rdquo; being synonymous for illegal. Idaho law controls the purchase and sale of fireworks. Unless you have a permit to do otherwise, you can only use &ldquo;nonaerial common fireworks&rdquo; between June 23 and July 5 and December 26 and January 1. &ldquo;Nonaerial common fireworks&rdquo; are unofficially defined as impotent glow makers devoid of anything fun or worthwhile and officially defined as &ldquo;ground spinners, fountains, sparklers, smoke devices or snakes designed to remain on or near ground and not to travel outside a fifteen foot diameter circle or emit sparks or other burning material which land outside a twenty foot diameter circle or above a height of 20 feet.&rdquo; In order to sell fireworks, a permit needs to be obtained, and such permits can only be sold during the previously mentioned time periods. Bottle rockets and fireworks (believed by most people to be the &ldquo;good fireworks&rdquo;) that soar beyond 20 feet are illegal. Despite the fact they are illegal, the &ldquo;good&rdquo; fireworks can be purchased in the state of Idaho as long as you sign something that states you will not be be using them in the state. You read that correctly, you can buy illegal fireworks in the state you just cannot shoot them off in the state. Violation of the fireworks law is a misdemeanor.</p> <p>The fireworks law raises all sorts of perplexing questions like: </p> <ul> <li>Why is it legal to buy illegal fireworks? &ndash; that is akin to telling a small child he can hold your loaded handgun with the safety off, but he better not to pull the trigger.</li> <li>What is the magic of 20 feet? &ndash; 20 feet okay. 21 feet major safety concern. The truth is all fireworks, based on their inherent nature, are a safety and property damage risk. </li> </ul> <p>What is even more perplexing is that the fireworks law is generally ignored with impunity. Getting the &ldquo;good&rdquo; fireworks is a point of pride in most neighborhoods. Other misdemeanor offenses are not treated in such a manner. Take misdemeanor battery, for example. Battery is the unlawful touching of another &ndash; i.e. a slap in the face. Most people would expect a visit from Rexburg&rsquo;s finest if they went around indiscriminately slapping people in the face. However, the Fourth of July norm is the launching of illegal fireworks. It is done proudly in homage to the great country that is the U.S.A. I am as patriotic as the next guy &ndash; I mean during the last Olympics I stayed up until 3 in the morning to watch the U.S.A. men&rsquo;s basketball gold medal game against Spain, even rooting for the undesirable Kobe Bryant in support of our country. Okay maybe that speaks less to my patriotism and more to my sports addiction, but I do love this country we live in, and I do not feel the need to light off a bunch of illegal fireworks to express that sentiment. </p> <p>My guess is that lighting off fireworks is more about thrill seeking than it is about honoring America. Maybe there is another way to satisfy that desire without breaking the law. Then again, this is coming from someone who gets so excited about avoiding the masses that he fails to realize that the reason there is no one else around is because he is probably missing out on something.</p> <p><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 13:46:38 MST Is a crooked fence line the legal boundary line? http://www.beardstclair.com/blog-post/is-a-crooked-fence-line-the-legal-boundary-line.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>It was obvious as I looked down the fenceline that the fence was off. The surveyor had been out the day before and had used his instruments, accurate to within thousands of an inch, to survey the boundary between the two properties. The surveyor had placed his pin flags on the boundary described in the deeds to the adjoining properties. The fence was crooked and was off by a few feet here, a few feet there, and ten feet by the time it had traveled a quarter mile.</p> <p>It was also obvious that the former owners of the adjoining properties had gone to great effort to fence the boundary. Old cedar posts had been carefully trimmed and placed in the ground. Barb wire had been stapled to the fence, but was now sagging and broken in many spots. Perhaps the boundary had been surveyed many years ago, but it was obvious that the old fence had been there for a long, long time.</p> <p>The question now posed by the adjoining land owners, one of whom had just recently purchased his property, is where to put a new fence. If the old fence is to be replaced, should it go on the new surveyed boundary line, or should it go where the old fence was located? If the new fence is installed on the new surveyed boundary line, what to do about the ditches, the headgates, the trees, and even the well which will now be on the other side of the fence?</p> <p>Idaho law recognizes that a fence that has been near the boundary of adjoining properties for a long period of time can become the property line. To establish property ownership under the doctrine of boundary by acquiescence, or &ldquo;implied agreement,&rdquo; there must be a disputed boundary, uncertainty or ignorance of the true boundary line, and an agreement establishing a boundary that is recognized between the parties. The payment of property taxes by the party seeking possession of the disputed land is not required. However, it does require that the parties agree to a boundary. Such an agreement may be established by direct evidence, or it can be inferred from the conduct of the parties or their predecessors in interest, including long acquiescence in an existing fenceline, especially where adjoining landowners treated it as fixing the boundary for such length of time that neither ought to be allowed to deny the correctness of its location.</p> <p>In short, if the old crooked fence has been treated as the boundary between adjoining landowners for a long period of time, it becomes the boundary. The new fence should be placed exactly where the old fence was located.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 15:55:13 MST Lie or lose or lie and lose? http://www.beardstclair.com/blog-post/lie-or-lose-or-lie-and-lose.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Jonny Marray was trying to become the first British man to win a Wimbledon doubles title since 1936. He and his partner were unseeded and the most they had previously won at a competition was $800. Yet, there they were in the 2012 Wimbledon men&rsquo;s doubles finals. They were tied at one set apiece and in a tiebreaker for the third set where every precious point counts. Marray made a nice play on the ball at the net and he and his teammate were awarded a crucial point. Marray had barely grazed the net with his racket on his follow-through which is a technical violation of the rules resulting in loss of the point. No one seemed to have noticed what he had done. Without being asked and without hesitation, Marray told the chair umpire he had hit the net. The chair umpire reversed the call and awarded the point to the other team. Ultimately, Marray&rsquo;s team won the set and the match. </p> <p class="Body1">Compare Marray&rsquo;s actions with those of Dewayne Wise of the Evil Empire a.k.a. the New York Yankees. Wise jumped into the stands and appeared to glove a foul ball. What really happened is that ball bounced out of his glove and rolled to a fan sitting several seats away who proudly held up the ball, as baseball fans often do, in complete ecstasy. The umpire immediately called the third out without requiring Wise to show him the ball. Wise ran back to the dugout without a word to the umpire (classic Yankee move). Wise was quoted as saying, &ldquo;So what was I supposed to do? Run back to left field?&rdquo; It is easy to divine how Jonny Marray would answer that question. The more difficult task is to decipher how you or I would answer that question.</p> <p class="Body1">Litigation is like sports in many ways. There are teams &ndash; Plaintiff v. Defendant. There are umpires: &ldquo;The Honorable . . . .&rdquo; There are lots of rules. Some of them are arcane and of little use, while others make a lot of sense. Like sports, each side presses for every advantage. Just as in sports, often the stakes are high and someone&rsquo;s livelihood is on the line. </p> <p class="Body1">Because of the high stakes, some clients believe a lawyer will do anything, including lie, in order to win. In my experience most lawyers do not lie. Good lawyers determine what the facts are and then do their utmost to argue them to their advantage. Lawyers have a bad reputation for trustworthiness and that reputation has unfortunately been earned by a small minority of bad lawyers that are truly the exceptions to the rule.</p> <p class="Body1">When preparing a witness to testify, the first thing most lawyers tell the witness is to &ldquo;just tell the truth.&rdquo; That is the easiest and simplest way to keep the witness out of trouble. A lawyer would rather identify the weaknesses in his case ahead of time so he can address them head on. But it can be hard for a party in a lawsuit to tell the truth. Litigation can be a lot like a Griswold family vacation. At the start of the journey everyone is excited to go on a cross-country trip in their shiny &ldquo;new&rdquo; green station wagon. The journey is treacherous, your aunt&rsquo;s dog gets dragged to his death, your aunt herself dies, and you may even have to provide financial aid for your degenerate brother-in-law while sampling his real tomato ketchup. You finally get to the end of your journey completely out of money only to find out Wally-World is closed for two weeks in the middle of summer. Desperation and fatigue take over and you point a bb handgun at unsuspecting security guard who looks a lot like John Candy and require him to take your family on all of the rides. </p> <p class="Body1">When you are in a particularly contentious litigation matter you can easily feel like Clark Griswold. It would be easy to stretch the truth just a little in order to paint your case in the best light. In any legal matter neither the attorney nor the client ever needs to create a &ldquo;lie or lose&rdquo; situation. Desperation and fatigue breed poor decision making. It never truly is a &ldquo;lie or lose&rdquo; situation. In a litigation matter the more likely scenario is &ldquo;lie <em>and</em> lose.&rdquo; Credibility is king in court and a demonstrated lack of credibility is the death knell to an otherwise compelling case. Good lawyers know how to catch a witness in a lie and then exploit that lie to their advantage. If you lie in court you are more likely to lose than win. So before rushing to buy a bb gun at the local sporting goods store, take a deep breath. That way you can avoid hijacking your moral code and your chances of a successful outcome.</p> <p class="Body1">I was so shocked when I watched Jonny Marray risk everything he had worked for in order to maintain his personal integrity that I made my wife come in from the other room to watch it. On the other hand, I was not surprised at all that Dewayne Wise took credit for an amazing catch he did not make (and not just because he plays for the dreaded Yankees). Hopefully my reaction is nothing more than my cynical nature coming through and not an indication of moral decay. In any regard, it is probably the only time I would suggest following the Brit and ignoring the Yankee.</p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson.</em></p> Tue, 12 Feb 2013 13:40:19 MST Child labor laws http://www.beardstclair.com/blog-post/child-labor-laws.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Much is required of my children. Especially in the summer when there is so much work to be done. My wife and I expect our children to help mow the lawn, do dishes, weed the garden, and clean the house. In addition, we expect them to work on the farm irrigating, feeding, fixing fence, and taking care of animals. Neighboring farmers who needed help on their farms have also employed our children. Children who are employed on farms or ranches not owned by their parents are subject to state and federal child labor laws.</p> <p>Last October the U.S. Department of Labor proposed changes to child labor laws that would have made it illegal for children to work on farms until they were sixteen years old. On April 26<sup>th</sup> of this year the Department of Labor withdrew these changes due to lack of public support.</p> <p>While children are allowed to work on farms in Idaho, there are important restrictions set forth in the law. For example, children under the age of sixteen are not allowed to be employed in a hazardous agricultural job. Some hazardous jobs include operating a tractor over 20 PTO horsepower or connecting or disconnecting implements; operating a hay baler, potato digger, or post-hold digger; working inside a grain bin or a manure pit; handling explosives or poisonous chemicals; and, working from a ladder or scaffold at a height over 20 feet. In addition, children under fourteen are not allowed to work on farms at night, nor during school hours. </p> <p>Children over the age of 12 can work in agriculture doing non-hazerdous jobs when school is not in session for a period of two weeks or more. For example, it is legal to hire kids over the age of 12 to help with potato harvest, irrigation, and rouging potatoes!</p> <p>The purpose of child labor laws is to protect children. The purpose of good hard work on the farm is to teach children character and habits that will last them the rest of their lives.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> Tue, 12 Feb 2013 16:14:53 MST Mediation - Not always the right answer http://www.beardstclair.com/blog-post/mediation-not-always-the-right-answer.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">When they are not in the backyard competing in potato sack races a la the <em>Brady Bunch</em>, my three kids fight with each other. When a dispute arises there are various methods by which the disputes get worked out. Kid 1 tends to get her way more than Kid 2 and Kid 3. Notwithstanding, Kid 1 would swear an oath that Kid 3 gets her way more than Kids 1-2 combined. When a dispute arises a common practice I employ as the judge, jury, and executioner of my family (don&rsquo;t let my title impress you &ndash; if I&rsquo;m the judge, jury, and executioner, my wife is the Supreme Court) is to judiciously order them to work it out. This is stated in such as manner to suggest I really mean business. Typically what results are more tears and arguments, and I end up having to dole out my own brand of justice anyway.</p> <p class="Body1">Not unlike what I do with my squabbling kids, most judges order parties to mediate their legal disputes. Mediation is an attempt by the individuals involved in a dispute to work out their differences outside of court. Mediation can be court ordered or voluntary. Court ordered mediation means that the judge requires mediation to occur before the case can be tried before a jury. Typically third-parties, such as retired judges or experienced attorneys not working on the case, serve as mediators. Mediators normally charge for their time. The mediator&rsquo;s job is to encourage the opposing parties to compromise and reach settlement. The mediator does not decide the case, but rather tries to persuade the parties to come together to reach an agreement. Mediation should not be confused with arbitration. Arbitration is a process in which a third-party arbitrator actually decides the case. Arbitration is binding on the parties and is done in lieu of formal court proceedings.</p> <p class="Body1">It seems counterintuitive that parties who are entangled in a legal dispute would be receptive to court ordered mediation. However, many cases settle at court-ordered mediation. Experienced mediators are skilled at convincing parties to settle their disputes during mediation. Usually this involves pointing out flaws and weaknesses in a party&rsquo;s case. Sometimes an attorney representing a client and the mediator disagree on legal issues, causing clients to second guess their attorneys. This becomes especially problematic if the case does not settle at mediation. Some mediators will say anything to get a case to settle and are not concerned about the fairness of the outcome. As long as they get a signed settlement agreement at the end of the process they consider their job done. A successful mediation often takes all day. At the start of the day people are fresh, alert, and their defenses are up. By the end of the day people are tired and worn out. Because the mediation process can be akin to an extended police interrogation or a hard sell at a used car lot, it should come as no surprise that parties occasionally become disenchanted with deals that are struck at mediation. Parties&rsquo; dissatisfaction with the mediation process unfortunately adds more ammunition to the argument against a legal system that is often maligned. </p> <p class="Body1">In my opinion, voluntary mediation is beneficial because both parties go into the process wanting to resolve the case. Court ordered mediation, on the other hand, can be problematic, and parties ought to be allowed to choose whether they want to mediate or not. Unfortunately, my opinion in this regard carries about much weight as it does with my kids when I tell them to work out their issues themselves.</p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 14:53:39 MST Trespassing pigs http://www.beardstclair.com/blog-post/trespassing-pigs.html <div> <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Several years ago we brought home from the Bonneville County Fair a pig that my daughter had won in the greased pig contest. We had never raised a pig before, and this pig wasn&rsquo;t very big to begin with. However, when we got home with the pig we quickly built a pen out of some cattle panels, gave it some feed and water, and went to bed. The next morning we awoke and discovered that the pig had evaporated! It was nowhere to be found.</p> <p>We organized a search party and soon discovered that some neighbors had seen the pig wandering through their yard. Another neighbor was surprised to find it peering through her front door. At last we discovered the pig in a neighbor&rsquo;s corral more than a &frac12; mile away from our home. We made some improvements to the pig&rsquo;s pen and were grateful to have found our lost pig.</p> <p>Since 1881 Idaho has legislated against trespassing pigs. Idaho law does not require a landowner to fence out pigs. Rather, when pigs trespass onto someone else&rsquo;s property the owner of the pig is responsible for any damages caused by the pig. <em>Idaho Code &sect; 25-2102. </em></p> <p>A person who finds a trespassing pig on their property may hold the pig and must post three notices in a &ldquo;plain, legible hand&rdquo; giving a correct description of the pig, including a description of marks and brands, and post the notices in a conspicuous place in the precinct where the pig was found.</p> <p>If there is a dispute over the amount of damages owed, the owner and the aggrieved party must each select a disinterested person who then hear all the evidence and determine the amount of damages. The amount determined for damages becomes a lien on the pig any any other non-exempt property of the owner. If the damages are not paid within five days the Sheriff may sell the pig at public auction to satisfy the lien. &sect; 25-2104. Either party feeling aggrieved by the award of the disinterested arbitrators may appeal to the courts, but must first post a bond to cover the cost of all costs and expenses.</p> <p>Lest all of this pig procedure seem a little silly, be advised that it is unlawful to willfully or negligently allow your pigs to run at large within the limits of any city, or within the vicinity of any farm, ranch or dwelling, without a drover (i.e. a person who drives animals). <em>Idaho Code &sect; 25-2107. </em>A violation of this statute is a misdemeanor and punishable by jail time and fines. <em>Id.</em></p> <p>(Note: The Idaho statutes referenced all refer to &ldquo;hogs&rdquo; rather than &ldquo;pigs.&rdquo; However, the technical definition of a hog is a pig in excess of 120 lbs. Therefore, the author believes that his escaped pig was too small to qualify as &ldquo;hog&rdquo; and he is therefore not guilty of having violated the misdemeanor provisions referenced in this article. The author also eventually ate the pig to avoid any additional incidents of trespass.)</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com</em></p> </div> Tue, 12 Feb 2013 17:25:01 MST Appeals - Is the case ever really over? http://www.beardstclair.com/blog-post/appeals-is-the-case-ever-really-over.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">The ball was in the air, less than 30 seconds to go, and it was fourth and 12. BYU quarterback Riley Nelson had thrown up a prayer to his favorite wide receiver Cody Hoffman. The game was over for all practical purposes. Hoffman caught the ball for a 47 yard completion good enough for first down at the Utah 34 yard line. After BYU spiked the ball to stop the clock, eight seconds remained. Suddenly, things had changed. It was not necessarily over. No hope turned into a glimmer of hope. Fifty-one yards was a lengthy field goal for a kicker who had missed from 44 earlier in the game, so BYU opted to run another play. Nelson attempted a pass to the sideline but his arm was hit as he released the ball causing the ball to go high in the air. The ball stayed up for what seemed like an eternity and the clock turned to zero. Utah had won the game and its rabid fans, wearing nothing but red fervor and passion, stormed the field. Nelson adamantly indicated there was still a second left on the clock and the replay officials agreed. One second was put back on the clock and the field was cleared. </p> <p class="Body1">The kicker trotted onto the field. His ensuing kick was cleanly blocked by the Utes and once again the Ute players and fans stormed the field. In the midst of their storming they failed to notice a BYU player running with the ball. The play was not over. The BYU player had picked up the ball after the blocked kick and tried to advance it. Out came the yellow flag. After what seemed like multiple huddles and conferences, an official emerged to state unequivocally that Utah was being assessed a 15-yard penalty for the infrequently called &ldquo;fan/player/coach stupidity&rdquo; (okay &ndash; it was actually for running onto the field during a live play). All hope had been restored. Some of the devout were becoming convinced that higher forces were at work. Instead of a 51-yarder, BYU now had a much easier 36-yarder. The field was cleared again. Out trotted the kicker, up went the kick, and &ldquo;clang!&rdquo; went the ball off the left upright. Utah fans stormed the field for a third time in victory.</p> <p class="Body1">I did not bring the recent BYU v. Utah game up to torment BYU fans or to ridicule Utah fans (okay &ndash; maybe to ridicule them a little bit). The game is very reminiscent of the litigation process. In some cases winning at trial is just the beginning. If you are fortunate enough to win at trial the other side can appeal. In most instances, a party has 42 days from the decision or verdict to appeal. Once an appeal is filed, there is a whole new set of rules that apply. Navigating this process can be difficult and time-consuming. Just like Utah had to win the game three separate times, a party to litigation must win at trial and on appeal. </p> <p class="Body1">An impressive trial verdict is worthless if the Idaho Supreme Court finds that you broke the rules to get it. Having a skilled trial attorney who does not cut corners becomes paramount. Passion is good but being so enamored with the prospect of winning that you miss important details (such as a player running on the field in plain sight with the ball) is not good. </p> <p class="Body1">The decision on whether to appeal should only be made after careful consideration and consultation with a party&rsquo;s attorney. Once the decision to appeal is made, a party must rely on his or her attorney to decide which issues to focus on and what legal maneuvering to make. These decisions are not always obvious. Due to previous kicking woes, perhaps BYU should have opted for a fake field goal on that last play. The two most likely outcomes were: (1) Utah gives up the winning touchdown; or (2) Utah fans run onto the field again as the play is still in progress thereby tacking on additional 15 yards and extending the game even further. The point is a party needs to rely heavily on his or her attorney in navigating the appellate process because the right path is not always obvious.</p> <p class="Body1">It is true that winning at trial is a significant step on the path to winning the case, but it is not always the last step. Some appeals go on for years. The Idaho Supreme Court can decide to agree with the lower court (affirm), disagree with the lower court by sending the case back down to the lower court to fix the problem (remand), disagree with the lower court by actually changing the outcome (reverse), or any combination of the above. If a case is remanded, sometimes an unsatisfied party will appeal the case again. Like trials, appeals sometimes produce surprising outcomes. Attorneys often think they should have won when they have lost. Just as opposing counsel deserves to be congratulated, Utah players, coaches, and fans deserve congratulations. So congratulations Utah! I would have delivered the message in person but every time I try to approach Utah fans they spontaneously run away with their arms in the air. </p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 13:25:35 MST Giving a security interest in farm products http://www.beardstclair.com/blog-post/giving-a-security-interest-in-farm-products.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>Most farmers and ranchers will at one time or another visit with their banker to obtain financing. Most folks are familiar with the fact that when they finance a home or other real property that the bank will demand a mortgage or deed of trust to secure payment of the loan. If you fail to pay the loan, the bank will foreclose on your home.</p> <p>Many people may be surprised to learn that the law also allows the bank to to secure a loan by placing a lien on your crops, your livestock, your equipment and other agricultural products.</p> <p>Many farmers and ranchers obtain an operating loan so that they have money at the beginning of the year to buy seed, equipment, fertilizer, fuel, and to pay for other upfront operating expenses. While the bank may loan you money for such expenses, it will typically request a security interest in the crops, or the livestock, or the equipment that you are purchasing with the money being loaned. </p> <p>At the time that the money is loaned the bank may have you sign a UCC-1F (see sample). This is a farm products financing statement and must be signed by you for the bank to obtain a security interest in farm products. On the form the bank must identify the farm product in which it is taking a secured interest.</p> <p>For example, the bank could take a security interest in your wheat, potatoes, alfalfa, beans, wool, eggs, rabbits or bees wax. Even if you are raising worms, the bank can take a security interest in them little fellers too.</p> <p>After you sign the financing statement it is filed with the Idaho Secretary of State. The Secretary of State records the financing statement and a record is kept which puts any other lenders, or buyers of your product, on notice that there is a secured interest in the product.</p> <p>After the loan is satisfied the bank should sign, date and file with the Secretary of State a termination statement which terminates the secured interest in the agricultural product.</p> <p>A security interest in your crops or livestock provides additional security to assure that the bank will be repaid for the money loaned to assist you in your farming and ranching. However, all of the hard work and sweat is still up to you.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171. Or <em>lance @beardstclair.com</em></p> Tue, 12 Feb 2013 16:56:29 MST Droughts and rain dances http://www.beardstclair.com/blog-post/droughts-and-rain-dances.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>This year has been a record year for lack of rainfall. Eastern Idaho has been affected by drought conditions with rainfall falling behind the yearly average. Even the recent rain and snow has not relieved the drought.</p> <p>Fortunately Eastern Idaho is blessed with mountains where snow tends to fall with abundance in the winter. When that snow melts in the spring much of it runs down our rivers and streams, and much of it is captured in reservoirs.</p> <p>Thanks to the hard work and industry of Eastern Idaho pioneers much of that water is diverted into canals and ditches where we are able to use it to irrigate our crops throughout the summer.</p> <p>However, what happens when there is not enough water in our streams and rivers? What happens when the drought limits the amount of water in our reservoirs?</p> <p>Idaho law states that &ldquo;as between appropriators, the first in time is the first in right.&rdquo; <em>Idaho Code &sect; 42-106. </em>What this means is that the first person to divert water and put it to beneficial use has priority in times of shortage over the next person to divert water and put it to beneficial use.</p> <p>Most water rights have a &ldquo;priority&rdquo; date that establishes when water was first appropriated. For example, your water right might have a 1920 priority date. Your neighbor might have an 1899 priority date. If there is not enough water to go around, you will be cut off from water before your neighbor.</p> <p>As the amount of water decreases due to drought, those with the newest priority dates will be the ones to first lose their water. Those with the oldest priority dates will be the last to lose their water.</p> <p>Meanwhile, we all need to pray for moisture and do a rain dance. Be advised, however, that Idaho even has a law for that. Every person intending to conduct within the state operations to artificially produce rainfall is required to register with the department of agriculture of the State of Idaho. <em>Idaho Code &sect; 22-3201.</em> Go figure.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171. Or <em>lance @beardstclair.com</em></p> Tue, 12 Feb 2013 16:28:29 MST Avoiding hiring entanglements http://www.beardstclair.com/blog-post/avoiding-hiring-entanglements.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">&ldquo;Binders full of women.&rdquo; Governor Mitt Romney&rsquo;s gaffe during the second 2012 presidential debate has become an internet sensation. While attempting to send the message that he was supportive of women in the workplace, Governor Romney&rsquo;s choice of words may have sent the opposite message. President Obama has also made gaffes. When responding to a question about his bowling prowess, President Obama stated, &ldquo;No, no. I have been practicing . . . I bowled a 129. It&rsquo;s like &ndash; it was like Special Olympics, or something.&rdquo; President Obama&rsquo;s attempt at self-deprecating humor came off as insensitive to families with special needs children. </p> <p class="Body1">Just as candidates can run into problems saying too much on the campaign trail, employers can say too much during job interviews. See if you can guess which of the following questions are okay to ask and which ones are not (source material taken from Employment Law Guide, Business and Legal Reports, Inc.).</p> <ul> <li>You have an interesting name where does your family come from originally? &ndash; Not okay to ask. Employers should not ask questions that could indicate the applicant&rsquo;s lineage, ancestry, or national origin.</li> <li>Are you authorized to work in this country? &ndash; Okay to ask.</li> <li>Who should I contact in case of an emergency? &ndash; Not okay to ask before hired. This question could elicit information regarding marital status, domestic partnership status, national origin, or other protected information.</li> <li>How old are you? &ndash; Not okay to ask. May give the impression that applicants of a certain age are preferable leading to a claim of age discrimination. It is permissible to ask whether an applicant has reached the legal working age in order to comply with child labor laws.</li> <li>What was your last job? &ndash; Okay to ask.</li> <li>Have you ever been arrested? &ndash; Not okay to ask. An arrest without a conviction does not evidence any wrongdoing. Blanket policies that exclude any applicant with a history of arrests could violate the law because they tend to exclude members of certain racial or ethnic groups.</li> <li>Have you ever been convicted of a crime? &ndash; Generally okay to ask. You could still run into problems if there were a blanket prohibition. However, some jobs such as child care jobs require inquiry into a criminal background. </li> <li>Can you work on Sundays? &ndash; Not okay to ask. The law prohibits discrimination on the basis of religion. Once the applicant is offered a job it is okay to ask if the applicant will require an accommodation for religious practices.</li> <li>Are you gay? &ndash; Okay to ask in Idaho. Federal law does not expressly prohibit discrimination on the basis of sexual orientation. It is left to the states to legislate. In Idaho, a bill has been proposed that would ban discrimination based on &ldquo;sexual orientation&rdquo;. It has been proposed each year for the last six years and is yet to be given a hearing.</li> </ul> <p class="Body1">No matter how well you did on the quiz, it is still advisable to consult an attorney regarding what questions you can ask during a hiring interview. An employer can ask a question about a prohibited category only if it is reasonably necessary to the operation of the employer&rsquo;s business and there is no less intrusive way to ensure that the applicant will be able to perform the essential functions of the job. Making these determinations can be difficult, and an attorney can help you come up with the right questions to ask.</p> <p class="Body1">If you ever find yourself in a job interview in the middle of the awkward silence that follows after you asked a poorly thought out question, take solace in the fact that at least your gaffe will not be broadcast to millions and can probably be remedied by pulling a reverse Donald Trump and saying, &ldquo;you&rsquo;re hired!&rdquo;</p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:19:35 MST Agricultural commodity dealer liens http://www.beardstclair.com/blog-post/agricultural-commodity-dealer-liens.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>You can&rsquo;t drive down the freeway this time of year without passing a tractor-trailer hauling hay or straw. Eastern Idaho is a large producer of hay and straw, which is often trucked to dairies in western Idaho and elsewhere. </p> <p>When hay or straw is shipped, the buyer and the seller typically have entered into a contract for the purchase and sale of the product. But what happens when the seller delivers the hay or straw to the purchaser and the buyer fails to pay?</p> <p>Idaho law states that an agricultural commodity producer or dealer who sells or delivers agricultural products (such as hay, grain, beans, straw, etc.) has a lien on those products and the proceeds from the subsequent sale of those products. <em>Idaho Code &sect; 45-1802.</em></p> <p>The lien attaches to the agricultural product and any proceeds when the agricultural product is delivered to the purchaser, or on the date that a final payment is due and unpaid, whichever occurs last. <em>Idaho Code &sect; 45-1803.</em></p> <p>The lien on the agricultural product remains in effect for a period of 180 days. If at that point a producer or dealer still hasn&rsquo;t been paid, the producer or dealer must file a written notice of lien with the Idaho Secretary of State in order to preserve the lien for an additional year.</p> <p>Meanwhile, if the contract still has not been paid, the producer or dealer should hire an attorney and file a legal action to foreclose on the lien or the proceeds from the sale of the agricultural product. The law allows the producer or dealer to collect attorney fees in addition to the money owed. <em>Idaho Code &sect; 45-1809.</em></p> <p>Another interesting question is whether the lien only attaches to the product sold (e.g. the hay) or whether it also attaches to the livestock that eat the product. The Idaho Supreme Court will consider this issue after a dairy near Twin Falls defaulted on its obligation to pay for the hay and wheat it fed its dairy cows. A bank, which had a lien on the cows, took possession of them when the dairy also defaulted on its bank loan. The bank then sold the cows at auction.</p> <p>The Idaho Supreme Court will determine whether the agricultural commodity lien takes precedence over the bank&rsquo;s lien on the cows. The Court&rsquo;s decision about the priority of the liens will determine whether the agricultural producers or the bank receives the proceeds from the sale of the cattle.</p> <p>Regardless of how the Idaho Supreme Court rules, however, it is important that agricultural product producers and dealers understand their rights under state law to ensure they get paid for these valuable products.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance @beardstclair.com.</em></p> Tue, 12 Feb 2013 16:10:56 MST Navigating the bar http://www.beardstclair.com/blog-post/navigating-the-bar.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">The &ldquo;Graveyard of the Pacific&rdquo; is what you get when a river spanning 1,243 miles empties into an ocean which covers an area of 60-70 million square miles. These tumultuous waters, located where the Columbia River meets the Pacific Ocean, are known as the Columbia River Bar. Since 1792 approximately 2,000 ships have met their demise in the &ldquo;Graveyard of the Pacific.&rdquo; The water, weather, and geography can cause problems for even the most experienced boat captain. Because of this, all vessels engaged in foreign trade are required to use a licensed Columbia River Bar Pilot when crossing the Columbia River Bar. The pilots actually board the vessel, assume navigational control, and using their experience, they navigate the complex channels of the Columbia River Bar. The pilots rely on their experience and intimate knowledge of the shifting bar.</p> <p class="Body1">Attorneys come in all shapes, sizes, and levels of competency. There are general practice attorneys who dabble in many different areas and there are attorneys who specialize and focus their practice on specific areas. Perhaps the only thing attorneys have in common with each other is their innate ability to annoy people. On a side note, my own parents recognized this trait in me at an early age as I drove my brothers and everyone else around me crazy. They astutely suggested I might consider the practice of law. </p> <p class="Body1">Attorneys are a necessary evil. If you do find yourself in need of one, you would be wise to consider an attorney who specializes. Even the most experienced general practitioner may find difficulty navigating the particulars of your legal issue. For example, if you need some estate planning done, an attorney who specializes in drafting wills and trusts will be much better equipped to help you than an attorney who does a little bit of everything. The specialized attorney is like the bar pilots navigating the Columbia River. Because they deal with, study, and focus on a specific area, they know how to navigate the issues that could potentially cause damage. Like an experienced boat captain, a general practitioner may be skilled at his or her craft, but will not be as familiar with the terrain as a specialist. A specialist is better able to plan an effective route to success because of his or her intimate knowledge of and experience in a particular area of law.</p> <p class="Body1">Like the waters where the Columbia River meets the Pacific Ocean, legal disputes are tumultuous. Just as Bar Pilots navigate the Columbia River Bar to protect a vessel&rsquo;s precious cargo, attorneys guide clients through legal disputes that often imperil family relationships, business opportunities, and even a person&rsquo;s entire livelihood. Finding an attorney who can effectively navigate the tumultuous waters of legal dispute requires more than counting gray hairs. Experience is just one of many factors to consider. Experience dealing with your type of issue is more helpful than general experience. Determining whether your attorney intimately knows the landscape you will be dealing with is paramount to a successful outcome. It is perfectly acceptable to ask your potential attorney questions about his or her knowledge of a particular area of law. Especially during economic uncertainty, some attorneys advertise themselves as experts at everything so they can have enough legal work to pay the bills. It may seem harmless at first, but over time it can create quite a mess when an attorney working out of his league makes a mistake that makes everything blow up. By being diligent in your search for the right attorney at the beginning of your legal issue, you are more likely to avoid capsizing and being sunk by an attorney who finds himself or herself in unknown and treacherous waters.</p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:25:36 MST Make Legal Resolutions for 2013 http://www.beardstclair.com/blog-post/agribusiness-legal-resolutions.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>The new year brings new challenges and the opportunity to make new resolutions. As a farmer or rancher you are faced with many legal issues that affect your ability to make a living and carry on with your lifestyle. Here are just a few challenges that you are faced with:</p> <p>1. <strong>Taxes.</strong> It is unknown at the time I write this as to what Congress will, or will not do with income tax rates or with cuts to social programs like social security, medicare, and medicaid. There are some tax certainites, however.</p> <p>For example, the current Section 179 tax deduction allows small businesses, including farmers and ranchers, to deduct up to $139,000 worth of equipment that is purchased and put into use in 2012. Starting on January 1, 2013, this tax deduction is scheduled to drop to $25,000. In addition, the first year bonus depreciation will drop from 50% to zero. Another major change is the current cap on total equipment purchases will drop from $560,000 to $200,000 in 2013.</p> <p>Resolve to meet with your business attorney to discuss your plan for dealing with state and federal taxes.</p> <p><strong>2. Death / Disability. </strong>Farmers and ranchers know better than most that there is a time and a season to everything and that one day they will pass on. Most would like to leave to their children the ability to work the land, to raise a crop, or tend a herd.</p> <p>In order to assure that the family farm or ranch is passed down to the next generation it is important to do some planning. An estate plan may include a combination of a trust, a will, a family limited partnership, and other estate planning tools to limit estate tax liability. There are other strategies that your attorney can discuss with you to limit your estate tax liability at death. Also, a good estate plan will address issues related to your possible disability and who you want making decisions regarding your farm or ranch if you are unable to do so.</p> <p>In addition, a good estate plan will help you avoid litigation between your heirs and creditors.</p> <p><strong>3. Regulations.</strong> There are many regulations governing farmers and ranchers. You are regulated in how much water you may use, how you apply your pesticides, when and where you can spread manure, and how you handle farm products destined for human consumption. </p> <p>New regulations and laws are regularly enacted. For example, the law now requires most manufacturing, processing, packing and holding facilities of food to register with the FDA. </p> <p>Farmers and ranchers should not wait until they have violated a law or regulation to come into compliance with the law. Resolve to meet with your ag attorney to review your agricultural practices and procedures. Your attorney will &ldquo;audit&rdquo; your operation to make sure you are in compliance with the law.</p> <p><strong>4. Financials. </strong>Many a farmer and rancher has failed by not paying attention to the bottom line. A farm or ranch is more than a way of life &ndash; it is a business. Good decisions require that you have financial information such as an income statement, a budget, and a profit and loss statement.</p> <p>Meet with your attorney and your accountant to review your finances. Your attorney can help you structure your business in way that maximizes profits and minimizes risk.</p> <p>Resolve to make sure your financial house is in order so that you can continue farming and ranching for years to come.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or<em>lance @beardstclair.com.</em></p> </div> Fri, 30 Nov 2012 18:54:05 MST Protecting your trade http://www.beardstclair.com/blog-post/protecting-your-trade.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Tecmo Super Bowl is the best video game of all time. Admittedly, I do not consider myself a &ldquo;gamer&rdquo; or an otherwise great connoisseur of electronic games and gadgets. It was released in 1991 and was the first football video game to use complete NFL players and NFL teams simultaneously. It was the perfect Christmas gift for my football obsessed nine-year-old son. Unlike the video games of today, which require mastery of sophisticated controllers with myriad buttons and triggers, Tecmo Bowl&rsquo;s scaled down features and limited options make it incredibly easy to play. My son had no problem picking up the slightly used original NES controller and winning football games. That is, of course, until he played me. </p> <p class="Body1">These battles often end in tears and destruction of property, subjecting my nine-year-old to discipline from the commissioner (mom &ndash; who does not always share my enthusiasm for the greatest game of all time and its effect on my son). Although the game is simple to play (which is part of its charm) there are certain trade secrets I acquired from having honed my skills in my youth. These methods are valuable to me in keeping the upper hand with my son.</p> <p class="Body1">In Idaho a trade secret is defined as, &ldquo;information, including a formula, pattern, compilation, program, computer program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.&rdquo; Idaho Code &sect; 48-801(5). Translating the legalese, a trade secret is any valuable information or knowledge that someone makes efforts to keep secret.</p> <p class="Body1">The information you want to protect could be a recipe, a customer list, a business plan, or a method of doing business. Many employers spend extensive time, energy, and resources perfecting the information and end up giving it away for free when employees go elsewhere. An employer may be under the mistaken belief that because the process is simple it is not protectable. Anybody can play Tecmo Super Bowl. However, playing Tecmo Super Bowl at a championship level requires certain methods. The value comes from how these methods are employed and not the physical act of employing them. </p> <p class="Body1">Take a business that has repeat customers, for example. Over time the business learns the customer&rsquo;s buying preferences and practices. Anybody can locate the customer, but not anybody knows exactly what the customer wants, when the customer wants it, how the customer wants it, or what would make the customer more likely to want it. This is protectable information. However, no matter how valuable this information is, if the business owner is doing nothing to protect it, it is not a trade secret. Nothing prevents an employee from learning the information and then using it to his or her advantage to leave and compete. If I tell my son all of my methods, it will not be long before he is trouncing me due to his younger reflexes, smaller hands, and better vision.</p> <p class="Body1">Consultation with a good business attorney will allow a business owner to protect his or her valuable information. This may be accomplished with a combination of various agreements between the business and its employees and consultation on what efforts the business owner should make to adequately protect the information. A business owner&rsquo;s failure to protect his or her business information may result in &ldquo;game over&rdquo; for the business. Unlike the virtual world, failure in real life has much longer lasting negative effects, and unfortunately, these negative effects cannot be overcome by merely hitting the reset button.</p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 12 Feb 2013 15:34:03 MST What does it take to make 'organic foods' organic? http://www.beardstclair.com/blog-post/what-does-it-take-to-make-organic-foods-organic.html <p> </p> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="200" /></p> <p>The Organic Trade Association&rsquo;s 2012 annual industry survey found that sales of all organic products grew 9.5 percent in 2011. Organic food and beverage sales totaled more than 29.2 billion dollars in 2011 and continue to grow. There are &ldquo;organic&rdquo; farms in all 50 states and consumers continue to demand safe, natural foods.</p> <p>Organic refers to the way agricultural products are grown and processed. &ldquo;Organic food production is based on a system of farming that maintains and replenishes soil fertility without the use of toxic and persistent pesticides and fertilizers. Organic foods are minimally processed without artificial ingredients, preservatives, or irradiation to maintain the integrity of the food.&rdquo; (http://www.ota.com/definition/quickoverview.html.)</p> <p>The Organic Food Production Act of 1990 (OFPA) set national standards for production, processing, and certification of organic food. Today, food labeled as &ldquo;USDA organic&rdquo; must meet national organic standards. The USDA&rsquo;s National Organic Program oversees the program and certifies that food meets the USDA organic guidelines.</p> <p>Idaho law gives further guidance and direction on the meaning of &ldquo;organic.&rdquo; Chapter 11 of Title 22 defines an &ldquo;organic food product&rdquo; as &ldquo;any food product that is marketed using the term organic, or any derivative of the term organic in its labeling or advertising. Organic foods are those processed, packaged, transported and stored to retain maximum nutritional value, without the use of artificial preservatives, coloring or other additives, irradiation, or synthetic pesticides.&rdquo; <em>Idaho Code</em> &sect; 22-1102(6).</p> <p>Organically grown food products are those &ldquo;which are produced without the use of synthetically compounded fertilizers, pesticides, or growth regulators for a period not less than thirty-six (36) months prior to harvest.&rdquo; <em>Idaho Code </em>&sect; 22-1102(7).</p> <p>Since foods labeled with an &ldquo;organic&rdquo; label can often be sold at a higher price, Idaho law protects the use of the organic label. Idaho law states that &ldquo;[a] producer, vendor or handler shall not sell or resell or offer for sale or resale any food product with the representation that the product is an organically grown food product if the producer, vendor or handler knows, or has reason to know, that the food product has not been grown, raised or produced as an organically grown food product.&rdquo; <em>Idaho Code</em> &sect; 22-1105. A violation of the law can result in a civil fine of up to $10,000. <em>Idaho Code </em>&sect; 22-1104.</p> <p>Idaho farmers and ranchers are faced with an ever-changing market. Many consumers are looking for &ldquo;organic&rdquo; foods in their pursuit of a healthier lifestyle. Farmers and ranchers should be aware of the requirements of state and federal law when it comes to growing, packaging, and selling organic food products.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></p> Fri, 08 Feb 2013 11:44:48 MST Fairness and equality in estate planning http://www.beardstclair.com/blog-post/fairness-and-equality-in-estate-planning.html <div> <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-02-13_at_11.13.52_am.png" alt="" width="150" height="200" /></p> <p>When meeting with me to establish or update their estate plans, my clients often ask me for advice on how to treat their children &ldquo;fairly&rdquo; or &ldquo;equally.&rdquo; The meaning of these terms depends on a client&rsquo;s value system, financial condition, family circumstances, and a variety of other factors. For some parents, it is &ldquo;fair&rdquo; to disinherit a son from their estate because he never repaid substantial loans. For others, it is &ldquo;fair&rdquo; to leave a family business to a daughter because she played a significant role in making it successful. Decisions on how to treat children fairly are among the most difficult and stressful in designing an estate plan. While every situation is unique, below are some helpful tips parents should consider when deciding how to leave their assets to their children.</p> <p><strong>Parents are under no obligation to treat their children exactly equally.</strong></p> <p>It is important for parents to remember <em>they</em> accumulated their wealth and it is <em>their prerogative</em> to transfer it however they wish. Now, I do not recommend that parents arbitrarily favor one child over another in their estate plan. Transparently unequal treatment of a child in a will or trust can cause hurt feelings or damage relationships among siblings. However, I do encourage clients not to worry themselves sick about making sure that every last penny is divided in exactly equal amounts and on equal terms among their children. Anyone who has raised teenagers knows it is nearly impossible to treat them equally. Not surprisingly, teenagers that have run-ins with the law generally are not allowed to take summer road trips to Las Vegas. Responsible teenagers, on the other hand, generally avoid a strict curfew. Just as teenagers occasionally require different treatment, it may be wise to treat adult children differently in an estate plan. For example, an adult child constantly living on the brink of bankruptcy should probably not receive a large inheritance all at once. Instead, it may be preferable to leave his inheritance in a trust from which he is restricted from demanding distributions.</p> <p><strong>Leaving real estate equally to multiple children can cause headaches.</strong></p> <p>Clients frequently insist that a particular piece of property &ldquo;must be kept in the family.&rdquo; They want to be fair to all of their children, so they ask me draft a will leaving a 500-acre piece of farmland equally to all six of their children. There are situations in which joint ownership of property produces fine results. However, in my experience, it often leads to frustration and discord in families. What happens when three of the children wish to sell the property for cash, but the other three wish to &ldquo;keep it in the family?&rdquo; The answer is not always pleasant. If they own the property as tenants in common, a child wishing to sell her interest could sue her siblings and force a partition &ndash; a legal division &ndash; of the property. These disputes are costly, not only in terms of the dollars spent on legal fees and court costs, but also in terms of the emotional toll they take on families. Through thoughtful estate planning, it is usually possible to find a satisfactory solution that avoids intra-family conflicts while providing for all of the children.</p> <p><strong>Make an estate plan.</strong></p> <p>If you do not have a will or a trust, you actually do have an estate plan, believe it or not. Your estate plan is the law of intestacy, which is a collection of statutes that determine what happens to a person&rsquo;s property when he dies without a will. These statutes are designed to approximate what the Idaho legislature believes most people would have done if they had left a will. Generally, these statutes divide property equally among a deceased person&rsquo;s children (unless there is a surviving spouse). While this result may be perfectly acceptable to some, it may be disastrous for others. For example, if a Medicaid recipient&rsquo;s parent dies without a will, the Medicaid recipient could immediately lose Medicaid eligibility due to an inheritance from the parent&rsquo;s estate. While a statutorily required equal distribution of assets may appear &ldquo;fair&rdquo; at first blush, the Medicaid recipient could be required to spend his entire inheritance in order to regain Medicaid eligibility. The parent should instead establish a supplemental needs trust for the Medicaid child in order to avoid loss of eligibility upon the parent&rsquo;s death.</p> <p>While there is no universal answer to the question of what is fair in estate planning, discussing your particular situation with a qualified professional is an excellent first step in discovering the best solution.</p> <em>Michael W. Brown is a shareholder with the law firm of Beard St. Clair Gaffney PA. He concentrates his practice in the areas of trusts, wills, estate administration, and business succession planning. He can be reached at (208) 523-5171 or mbrown@beardstclair.com</em></div> Wed, 13 Feb 2013 12:45:50 MST Food Safety Modernization Act Update http://www.beardstclair.com/blog-post/food-safety-modernization-act-update.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>Idaho farmers may soon be facing new regulations under the Food Safety Modernization Act (FSMA). The Food and Drug Administration (FDA) has been working with food industry stakeholders to address food safety concerns. On January 4, 2013, the FDA announced two proposed rules under the FSMA, including a proposed rule to establish science-based standards for growing, harvesting, packing, and holding produce on domestic and foreign farms.</p> <p>This proposed produce rule, if adopted as currently drafted, will have a mixed impact on Idaho farmers. The proposed rule would apply to farms that grow, harvest, pack, or hold most fruits or vegetables in their raw or unprocessed state. Notably for Idaho farmers, the proposed rule would not apply to produce that is rarely consumed raw, such as potatoes. Furthermore, farmers may be entitled to partial exemptions under the proposed rule if their food sales average less than $500,000 per year during the last three years, and if the majority of their sales are to consumers or retail food establishments.</p> <p>For those farms affected by the proposed rule, the proposed regulations focus on common sources of microbial contamination of produce: agricultural water, manure and other soil additions, worker health and hygiene, domesticated and wild animals, and equipment, tools, and buildings.</p> <p><span style="text-decoration: underline;">Agricultural water.</span> The proposed rule would require that all water that is intended or likely to come into contact with produce or food-contact surfaces be sufficiently sanitary.</p> <p><span style="text-decoration: underline;">Manure and other additions to soil.</span> The proposed rule establishes requirements regarding the types of manure treatment, application methods, and timing necessary to reduce the risk of pathogens from manure and other additions to soil.</p> <p><span style="text-decoration: underline;">Worker health and hygiene.</span> The proposed rule would require farm workers follow prescribed hygiene practices, including hand washing.</p> <p><span style="text-decoration: underline;">Domesticated and wild animals.</span> The proposed rule addresses possible produce contamination by both domestic and wild animals by establishing a waiting period for harvesting produce from a growing area in which domestic animals have grazed, or where wild animals may have intruded.</p> <p><span style="text-decoration: underline;">Equipment, tools, and buildings. </span>The proposed rule establishes sanitation standards for farming equipment, tools, and buildings.</p> <p>If you have any concerns with any of the requirements of this proposed rule, now is your time to act.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></p> <p> </p> <p> </p> Fri, 22 Feb 2013 13:59:33 MST March Madness Party http://www.beardstclair.com/blog-post/march-madness-party.html <div><img src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-03-05_at_12.40.45_pm.png" alt="" width="644" height="390" /></div> Tue, 05 Mar 2013 14:44:14 MST Estate Planning Independence http://www.beardstclair.com/blog-post/estate-planning-independence.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Fifth-grade girls basketball is more intense than most of my courtroom battles. In a recent game my daughter, the point guard for her team, got into foul trouble. One more foul and she would be gone. Her team&rsquo;s seemingly insurmountable lead of seven had dwindled to two points with about three minutes left in the game. My daughter tried to make a steal, got the ball, and then was whistled for a reach-in foul (the moral &ndash; never trust a referee who looks older than Yoda and is wearing protective goggles to officiate a basketball game of 11 year-olds). I felt powerless as she was shown her seat on the bench after fouling out. She sat there with tears running down her face as the other team won and advanced to the championship. </p> <p class="Body1">Any parent whose child participates in sporting events knows that once their kid is on the court the parent is no longer in control. Watching my daughter learn through adversity on the basketball court without stepping in is difficult but necessary for her development as a player and person. Giving up control may be a hard choice to make but undoubtedly is the right choice. </p> <p class="Body1">As part of the estate planning process, families need to decide who will be in charge of taking care of their estate after they are gone. If you are forming a trust this person is known as the successor trustee. If you are forming a will this person is known as the personal representative. For simplicity&rsquo;s sake I will refer to such person as the trustee in this article. Most people appoint another family member as the trustee. Perhaps, this is because they want to keep control of the estate in the family or because they believe it is the privilege of their oldest child. </p> <p class="Body1">While there are some benefits to appointing a family member as trustee, such as understanding family dynamics, there are disadvantages. Most family member trustees are inexperienced with the legal and financial implications of dealing with a trust or estate. Errors in judgment or mismanagement of trust property can leave a trustee personally liable to the other beneficiaries of the trust. Inadvertent mistakes can lead to litigation and unnecessary stress. Litigation will deplete the assets of the trust. Other family members may perceive that the trustee is acting on his or her own behalf, leading to family strife and conflict that could last many years. Being the trustee of a trust is a difficult job.</p> <p class="Body1">Fortunately, there are independent trustees such as financial institutions who are capable of acting as trustees. A competent estate planning attorney can recommend a good independent trustee. Good independent trustees are professionals who understand the process of being a trustee. They know how and under what circumstances to make investments. A good independent trustee is skilled at dealing with the legal process and beneficiaries who do not always see eye to eye. Appointing an independent trustee gives the trust maker the best opportunity to make sure his or her intent is carried out in an impartial fashion. Appointing an independent trustee removes the risk of a cherished family member getting sued when all he or she is trying to do is carry out the intent of the trust maker.</p> <p class="Body1">Just as I give up some control over my daughter every time I allow her to walk on the basketball court, families give up some control when they appoint independent trustees. Giving up control may lead to tears and thoughts of &ldquo;did she not trust me enough to appoint me as trustee?&rdquo; Just as my daughter will be better off from participating in sports, in most circumstances your family members will be better off not carrying the weight of a trustee&rsquo;s obligations. One of the main purposes of estate planning is to protect your family. Appointing an independent trustee provides that protection and grants your family freedom from unnecessary strife. If only there were a way to protect unsuspecting fifth-graders from goggle-wearing octogenarians. </p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Fri, 08 Mar 2013 15:39:31 MST The Ol' Outhouse http://www.beardstclair.com/blog-post/the-ol-outhouse.html <p><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>You can still find an ol' outhouse here and there on Idaho farms and ranchs. Today we have the convenience of indoor plumbing. It is no longer necessary to slip on some shoes and run out back to the outhouse like grandma and grandpa used to do.</p> <p>But are outhouses still legal? Can you build an outhouse next to the barn?</p> <p>The short answer is "no." The way an outhouse used to be built was to dig a deep hole in the ground and then to build a platform over the hole. An outhouse was then constructed around the platform providing some privacy and protection from the elements.</p> <p>Unfortunately, outhouses smell and do little to protect groundwater from contamination. Never mind the flies!</p> <p>Idaho law generally requires that newly constructed homes have indoor plumbing. A home built within a city will usually connect to a sewage system. In the country a permit is required from the State of Idaho before a septic system can be installed.</p> <p>A septic system will generally consist of a concrete tank which then empties liquids into a drainfield. Septic systems must be installed at least 100 feet from a well or spring and 50 feet from a stream or river.</p> <p>If you build a home on your farm or ranch you should first obtain from the District Health Department a permit for the installation of a septic system. You or your contractor must install a system that meets the requirements and specifications of the State. The location of your septic system may dictate where you can build a home, or whether you can build a home on your property.</p> <p>In summary, while you may see an ol' outhouse here and there, it is no longer legal to contruct an outhouse like grandma and grandpa used to do.</p> <p>- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></p> Fri, 05 Apr 2013 17:22:12 MDT Winning Communication http://www.beardstclair.com/blog-post/winning-communication.html <p class="Body1"><img style="float: right; margin: 5px; border: 0px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Screaming, stomping of feet, emphatic clapping of hands, jumping in the air, waiving of arms, reddening of faces, and scissor-kicking of legs. These are not the recently observed behaviors of a toddler throwing a temper tantrum as one might think. Over the past month I have watched numerous coaches exhibit all of those behaviors at the college and high school level. Some coaches will do almost anything to get through to their players. If a coach constantly screams at a player, the message gets drowned out in the noise. Instead of effective communication you end up with player resentment and confidence issues. A coach may need to yell and holler at times to make a point or get a player&rsquo;s attention. The lack of communication occurs when the coach is doing nothing but yelling and hollering.</p> <p class="Body1">A lawyer is a lot like a coach. Like a coach must communicate with his or her players, lawyers must communicate with juries and judges. Just as in coaching, lawyers employ many different methodologies to be persuasive to a judge or jury. However, most judges do not take too kindly to the waiving of arms, stomping of feet, or the raising of voices. Effective lawyers must learn to bridle the passion they feel for their case and present a clear, concise argument or theme. This requires much preparation and thought. A prepared lawyer trumps a charismatic lawyer who failed to prepare and is relying force of personality.</p> <p class="Body1">Because of the hard work that goes into preparation, it is easy to become frustrated when the judge views things differently. A good lawyer finds a way to stay calm in these situations. While a coach may get a technical foul for yelling at an official, a lawyer can end up in jail for contempt of court if things are pushed too far. It can be difficult for lawyers to find the right balance because the very aggressive attributes that make them effective advocates are the ones that can get them in trouble with the judge. It is a balance every lawyer must strive to achieve. I will always be grateful to the judge who pulled me into chambers in the middle of a trial to warn me, without singling me out in front of the jury, when I was approaching (and maybe even inching past) the line separating advocacy and anger. That experience helped me learn the proper balance between passionate communication and the ranting of an over-worked trial lawyer.</p> <p class="Body1">If you need the services of a lawyer, seek one out who is an effective communicator. If your lawyer cannot communicate with you in a clear and easily understandable manner, then chances are he or she will be unable to do so with the judge or jury. If you find yourself getting frustrated due to lack of responsiveness or feel like your lawyer is not listening to you, find one who does. A good legal document should be concise, readable, and understandable. Good lawyers are capable of providing such documents.</p> <p class="Body1">Just as the sign of a great coach is not based on decibel levels emanating from the bench, the sign of a great lawyer is not how many words he or she speaks per minute. It is the words themselves that make all the difference.</p> Fri, 19 Apr 2013 16:22:51 MDT Top Seven Reasons Doctors Get Sued http://www.beardstclair.com/blog-post/top-seven-reasons-doctors-get-sued.html <div> <p><img style="float: right; margin: 5px;" title="Michael D. Gaffney" src="http://www.beardstclair.com/wwwroot/userfiles/images/michael_gaffney.png" alt="Michael D. Gaffney" width="150" height="200" /></p> <p>There are myriad reasons why patients end up suing their physicians. According to the American Academy of Family Physicians here are the seven most common ones and tips for avoiding them.</p> <p> </p> <p><strong>1. Failure to diagnose or a delay in diagnosis</strong></p> <p><span> </span>This is the most common malpractice allegation made by patients. To prevent an incorrect or missed diagnosis, make sure you are diligent in following patients&rsquo; complaints to a full diagnosis. Also, be familiar with the error rates of your diagnostic instruments. The most common problem is over reliance on testing, and overlooking the obvious. Rely on your years of training and most importantly, listen to your patient; sometimes patients are right about what the problem is.</p> <p><strong>2. Negligent &ldquo;handoff&rdquo; care</strong></p> <p><span> </span>The classic story of the failed handoff is the Friday night catastrophe that occurs while the patient&rsquo;s doctor has gone away for the weekend and the covering physician is inadequately informed and has no prior relationship with the patient. This is particularly common with maternity cases. Developing a routine of signing out patients can go a long way toward reducing the risk of a failed handoff. Make sure there is a number at which you can be reached. In order to avoid lawsuits your patient&rsquo;s care must be a high priority.</p> <p><strong>3. Negligent fracture or trauma care</strong></p> <p><span> </span>This problem relates to Reason No. 1 and usually starts in the ER. This typically happens when an injury ends up being worse than initially diagnosed because symptoms go unrecognized. Try to exercise a modicum of care in making the initial diagnosis. Although trauma cases in the ER require split second decisions, many times very basic problems are missed because you are conditioned to follow a rigid protocol that may actually militate against an accurate diagnosis. This is not simply a problem that occurs in medicine, it happens in law, engineering, accounting and so forth. Professionals become so fixated on the process that they miss the substance of what they are looking at, but not seeing. Most of the more egregious medical malpractice cases arise under this scenario, a missed vertebral fracture, an aneurism, a compromised nerve. Listen to your patient or family member's description of what exactly the patient is experiencing.</p> <p><strong>4. Failure to consult or delay in consultation</strong></p> <p>Try using the rule of three: If you haven&rsquo;t figured out and corrected a patient&rsquo;s problem within three visits, enlist someone to help you. It may be a partner across the hall or a specialist down the road. In primary care, it can be a challenge to diagnose vague symptoms for early-stage disease at the first visit. By the second visit, the story becomes better clarified. By the third visit, a clear diagnosis and plan should be decided. The main point is to set a plan for diagnosis; when these have not occurred as planned, then get help. If you cannot figure out a problem and are unwilling to admit it, just like any other profession, you have no business doing what you are doing. After all, you are being paid to solve people's problems, not create or prolong them. There is nothing wrong with simply saying "I don't know."</p> <p><strong>5. Negligent drug treatment</strong></p> <p><span> </span>Drug-related iatrogenic injuries cause thousands of hospital admissions each year. A recent Wall Street Journal article highlighted the unbelievable number of pharmaceutical mistakes made in prescribing drugs, from illegible scripts, to incorrect dosages to pharmacists incorrectly filling prescriptions. Many of these injuries are related to the use of warfarin, perhaps the most dangerous prescription drug in America. Because of the drug&rsquo;s very narrow therapeutic window, the clinical care team needs to use a protocol to insure that patients are well educated about using warfarin and are getting their International Normalized Ratios checked regularly. Another problem is over prescribing because of pressure from pharmaceutical companies and patients. The classic scenario is a drug ad on TV for a drug, the purpose of which is never mentioned, which the patient wants, but rarely needs, e.g. "the purple pill." Make sure the patient needs the "purple pill" before prescribing it. If you have any doubts, look at Fen-Phen and Vioxx&mdash;the science may be out, but the multimillion dollar verdicts are in.</p> <p><strong>6. Negligent procedures</strong></p> <p><span> </span>The most common problem physicians&rsquo; face with procedures is not that they are doing procedures they were not trained for, but that they find themselves doing procedures when they&rsquo;re not at their best &ndash; when they&rsquo;re tired or mentally distracted &ndash; and then the procedure goes badly. Although this may sound basic, the best way to prevent these types of injuries is to be prepared physically, mentally and emotionally for the procedure. Distractions such as sleep depravation and pressing personal problems might be good reason to reschedule or have another physician perform the procedure.</p> <p><strong>7. Failure to obtain true informed consent</strong></p> <p><span> </span>If failure to obtain informed consent is the only allegation a plaintiff makes, it usually suggests a weak case on the merits, and the physician has a good chance of winning the claim. Still, it&rsquo;s best to avoid this risk by actually explaining to patients, then documenting that discussion including expected outcomes, potential risks and reasonable alternatives. Nonetheless, talk to your patient. I recall an anesthesiologist bringing an informed consent form to me to fill out, doing a brief review and holding a pen in front of my face. The first question out of my mouth was "what is your name?" No introduction, no explanation, simply "sign this, I'm busy." Bedside manner, particularly with anesthesiologists and radiologists will save you a plethora of complaints.</p> <p> </p> <p>*Family Practice Management &ndash; www.aafp.org/fpm - March 2003</p> </div> Wed, 26 Jun 2013 16:46:27 MDT Lawsuit Avoidance http://www.beardstclair.com/blog-post/lawsuit-avoidance.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/michael_gaffney.png" alt="" width="150" height="200" /></p> <p>According to John Davenport, M.D., J.D., Chair of the family medicine department and an attorney and risk manager at Kaiser Permanente Orange County in Irvine, Calif., the typical family physician can expect to be sued about once every seven to 10 years. And the reasons for these lawsuits are endless. So what can you do to protect yourself? According to the American Academy of Family Physicians you must develop a risk-management style of practice involving the four Cs: compassion, communication, competence and charting.</p> <p> </p> <p><strong><em>Compassion</em></strong></p> <p>Billing practices say a lot about your level of compassion. It goes without saying that health care costs can place a tremendous burden on families and physician and hospital collection practices can exacerbate those pressures. Contrary to popular myths about bankruptcy abuse, and according to actual statistics published by the federal courts which were summarized in a joint report published in 2005 by Harvard Law School and Harvard Medical School, <em>one half </em> of all bankruptcy filings in the US resulted from catastrophic medical bills. </p> <p> </p> <p>If a patient is not paying his or her bill it means one of two things, a) the patient cannot afford the bill or b) he or she is not happy with the care they received. A recommended policy is to send three letters. The first letter is a gentle reminder, the second is a little more blunt, and the third informs them you are sending them to a collection agency. This third letter should never be sent without you being aware that the collection action is being taken and without you personally speaking to the patient. Patients that are angry appreciate the chance to be heard and are often more willing to work out payment terms. Health care practitioners, like other professionals, need to be more personally involved and proactive in their billing practices. The patient may not agree with the bill, but they are usually happier that you expressed a willingness to discuss it with them. Happier patients are less likely to sue.</p> <p> </p> <p><strong><em>Communication</em></strong></p> <p>Be honest and open with communications, not only with your patients and their family members but with colleagues and staff as well. Don&rsquo;t engage is chart jousting: a nurse writes one observation, a physician notes a conflicting observation, and a consultant offers yet a third observation. Plaintiff&rsquo;s lawyers love to see this as it can be damaging to your defense. It also makes no sense and makes the practitioners appear unprofessional and incompetent.</p> <p> </p> <p><strong><em>Competence</em></strong></p> <p>Remembering everything that is needed for the care of every patient is impossible. You can however, improve your competency by using flow sheets, protocols and other tools that help reduce overlooked items. Also, when a patient isn&rsquo;t recovering as quickly as expected do not be afraid to seek consultation.</p> <p> </p> <p><strong><em>Charting</em></strong></p> <p>The greatest charting mistake physicians make is writing volumes in some type of attempt to avoid litigation but failing to note what is important. This has to be one of the greatest myths sold to physicians, i.e. that more is good. Instead it is like the rambling witness at trial who likely would have stayed out of jail had he or she simply stuck to the facts. There is no need to write a novel, instead get to the heart of the problem. Be as clear and precise as possible. Other common mistakes are altering records after the fact and making personal comments about the patient. If you need to alter a chart or note, always initial and date the change with some type of explanation as to why the alteration was made. Unexplained alterations in documents are one of the most powerful weapons a plaintiff's lawyer has; juries will invariably note the problem and hold it against the practitioner making the alteration. Always approach documentation in an honest and thoughtful manner. Be objective and legible. </p> <p> </p> <p>There is no guaranteed immunity from lawsuits; however, expressing compassion for your patients, developing good communication habits, maintaining clinical competence, and producing accurate charts can go a long way toward reducing liability.<span> </span></p> <p> </p> <p>*Family Practice Management - www.aafp.org/fpm - March 2004</p> </div> Wed, 26 Jun 2013 16:55:32 MDT Crop Insurance http://www.beardstclair.com/blog-post/crop-insurance.html <div> <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>This is the time of year when farmers in Idaho are planting their crops. Common crops include potatoes, barley, wheat, and alfalfa. Thanks to the federal government, affordable crop insurance is available to farmers and ranchers on most crops.</p> <p>There are two types of crop insurance available to farmers: Multiple Peril Crop Insurance ("Multi-Peril") and Crop-Hail Insurance.</p> <p>Multi-Peril Insurance must be purchased prior to planting. It covers the loss of crop yields from all types of natural causes such as drought, excessive moisture, freezing, and disease. Coverage may also include protection against changes in market prices.</p> <p>Multi-Peril Insurance is offered under a unique public-private partnership between private insurance companies and the United States Department of Agriculture Risk Management Agency ("RMA"). The RMA sets the rates that can be charged and determines which crops can be insured in different parts of the country. Private insurance companies are required to sell insurance to every farmer who requests it. Risk is shared between the RMA and the private insurance companies.</p> <p>The federal government subsidizes farmer-paid premiums to reduce the cost to farmers. Through this federal support, crop insurance remains affordable to a majority of Idaho's farmers and ranchers.</p> <p>Crop-Hail policies are not part of the federal crop insurance program and are provided directly to farmers by private insurance companies. Many farmers purchase Crop-Hail coverage to deal with the risk of Idaho thunderstorms. Hail has the unique ability to totally destroy part of a field while leaving the rest undamaged. Unlike Multi-Peril policies, a Crop-Hail policy can be purchased at any time during the growing season. </p> <p>In addition, a Crop-Hail policy will often protect a crop (like barley) against fire, lightning, and windstorms. Grain crops are especially susceptible to loss from fire just before harvest, and a Crop-Hail policy may provide protection.</p> <p>Idaho farmers and ranchers are used to taking risks. However, crop insurance can affordably assist farmers and ranchers in minimizing the financial impact of those risks.</p> <p>Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></p> </div> Fri, 10 May 2013 16:07:49 MDT How to Hold Effective Annual Meetings http://www.beardstclair.com/blog-post/how-to-hold-effective-annual-meetings.html <p><span style="color: #000000;"><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/wvb_blog_pic.png" alt="" width="150" height="200" /></span></p> <p> </p> <p><span style="color: #000000;">A common and potentially costly mistake made by local business owners is not holding annual meetings. Annual meetings allow organizations to better protect themselves from liability and position themselves strategically among their competitors. Failing to hold annual meetings and following other corporate formalities might result in the loss of corporate/limited liability status, leaving owners and shareholders personally responsible for corporate debts, and potential loss of corporate tax benefits. Here are a few pointers and reminders as you plan this year&rsquo;s annual meeting.</span></p> <p><span style="color: #000000;">Your annual meeting agenda should include the following items&hellip;</span></p> <p><span style="color: #000000;"><strong>Review past year</strong> &ndash; Review financial statements, capital acquisitions, education and training, major transactions, and compensation.</span></p> <p><span style="color: #000000;"><strong>Survey coming year</strong> &ndash; Plan for capital acquisitions, set goals for revenue enhancement, decide on organizational changes, and analyze new fringe benefits.</span></p> <p><span style="color: #000000;"><strong>Tax planning</strong> &ndash; Plan to achieve a 10 to 15% profit to build equity and consider year-end expenses, year-end bonuses, pension plans, and fringe benefits.</span></p> <p><span style="color: #000000;"><strong>Distributions planning</strong> &ndash; Plan strategy for incentive compensations, capital retention, S corp dividends, C corp distributions, and loans to shareholders.</span></p> <p><span style="color: #000000;"><strong>Compensation planning</strong> &ndash; Adopt reasonable compensation and bonus programs.</span></p> <p><span style="color: #000000;"><strong>Legal planning</strong> &ndash; Establish and implement policies that are designed to avoid liability and protect intellectual property.</span></p> <p><span style="color: #000000;">And remember, annual meetings should &hellip;</span></p> <p><span style="color: #000000;"><span style="white-space: pre;"> </span>- Be held a month prior to or after fiscal year end<br /><span style="white-space: pre;"> </span>- Have an agenda<br /><span style="white-space: pre;"> </span>- Be documentd with minutes<br /><span style="white-space: pre;"> </span>- Be conducted by the president<br /><span style="white-space: pre;"> </span>- Include legal counsel</span></p> Wed, 22 May 2013 18:33:15 MDT Selling your business? Read this first! http://www.beardstclair.com/blog-post/selling-your-business-read-this-first.html <p><span style="color: #000000;"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/joh_blog_pic.png" alt="" width="150" height="199" /></span></p> <p><span style="color: #000000;">Sooner or later, every business owner will ultimately confront the question, "Should I sell my business?" Deciding to sell your business is often a difficult decision because of the profound emotional, personal, and financial impact. You invested a great deal of your time, energy, and resources to make it what it is today. However, succession is inevitable. Deciding to sell is a decision that must be thought through and carefully planned. There are many reasons business owners find themselves wanting or needing to sell&hellip;</span></p> <p><span style="color: #000000;"><span style="white-space: pre;"> </span>- Retirement<br /><span style="white-space: pre;"> </span>- Relocation<br /></span><span style="white-space: pre;"> </span>- Dispute between partners<br /><span style="white-space: pre;"> </span>- Diminished interest in the business<br /><span style="white-space: pre;"> </span>- Illness or death<br /><span style="white-space: pre;"> </span>- Exposure to business risks<br /><span style="white-space: pre;"> </span>- Divorce<br /><span style="white-space: pre;"> </span>- Desire to pursue other business interests<br /><span style="white-space: pre;"> </span>- Lack of sufficient working capital<br /><span style="white-space: pre;"> </span>- A need within the company for new skills or new philosophy<br /><span style="white-space: pre;"> </span>- Stagnant sales and earnings</p> <p>You must assess your reasons carefully and decide if selling will enable you and the company to reach future goals and objectives. Once you have made the decision to sell your business, consider the following questions:</p> <p><span style="color: #000000;"><strong>Who will I sell my business to?</strong> There are several options to consider. Do you want to sell to your employees? To a competitor? To a larger business? Do you want to turn the business over to your children? Should you move on or retain a role in the business&rsquo;s future? The answers to these questions may impact the long-term success of your business.</span></p> <p><span style="color: #000000;"><strong>What is my business worth?</strong> Typically, a buyer is purchasing a future stream of income. If a business does not generate income the purchase price may be minimal. In determining the value of a business you will need to gather financial information. This may include income statements, balance sheets, records of accounts receivable and payable, etc. You will want to strongly consider getting a business appraisal to determine the potential value of your business. Keep in mind, the value of your business is what a buyer is willing to pay for it.</span></p> <p><span style="color: #000000;"><strong>What payment terms am I willing to accept?</strong> How the purchase price is paid may be driven by your financial needs and lifestyle. In most cases you should insist the buyer pay the full purchase price when you transfer ownership of your business. However, if a buyer is unable to get financing from a bank or other lender for the full purchase price, you may have to finance some amount of the purchase price yourself. This means the buyer would sign a promissory note with you as the lender. You will want to be sure you have adequate security and guarantees from the buyer to protect yourself.</span></p> <p><span style="color: #000000;"><strong>Are there tax savings depending on how the sale is structured?</strong> Yes. In most cases parties structure a sale as an asset sale (assets are exchanged for money) or stock sale (stock is exchanged for money). Both have advantages and disadvantages that need to be considered.</span></p> <p><span style="color: #000000;"><strong>What is due diligence?</strong> It is the buyer&rsquo;s opportunity to evaluate the business. Every business has skeletons. The issue is how big those skeletons are. As a seller you will want to be upfront about these skeletons. If not properly disclosed, a buyer may ask for a reduction in the purchase price later on.</span></p> <p><span style="color: #000000;"><strong>What documents are involved in the sale of a business?</strong> In most cases, the parties will sign the following documents: Nondisclosure Agreement, Letter of Intent (not needed in all cases), Purchase Agreement with exhibits and schedules, and Non-compete Agreement. There may be additional documents depending on the transaction.</span></p> <p><span style="color: #000000;"><strong>Should I involve legal counsel?</strong> Involving legal counsel can be very beneficial to the entire process. An experienced business attorney can help you negotiate the purchase price, structure the sale and draft agreements, and aid in the closing. One of the biggest mistakes we see is a seller entering into an agreement that negatively impacts the seller. This includes too low a purchase price, broad warranties, and inadequate protection on default.</span></p> Wed, 22 May 2013 18:47:30 MDT Trademarks Provide Value to Businesses http://www.beardstclair.com/blog-post/trademarks-provide-value-to-businesses.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Bronchitis diagnosis earlier in the week notwithstanding, I was determined to compete in the Teton Dam 10K. It was a race I had competed in before and like most runners I was hoping to post an improved time. After reaching the top of the brutal Mill Hollow hill, I found myself running alone. As I arrived at a water station, one of the race volunteers indicated to me that the turn-around was still ahead. As I continued to run, I searched intently for a sign or marker indicating where I needed to turn around. A few minutes later, a car approached me from behind and a different volunteer told me that I had missed the turn-around point. I had gone about half-mile out of my way. My will to race was gone knowing that I would be nowhere near my goal time. As I was emotionally and psychologically processing this information, I approached the water station again and came upon the race volunteer who in my mind had failed to give me proper instruction. Some of the volunteers were hastily setting up a sign to designate the turn-around area. The volunteer started to mumble an apology and extended a water cup. In a theatrical manner, I screamed out a swear word and emphatically karate-chopped the water cup out of his hand. After the race, I sought out the volunteer and apologized. However, the damage had been done. I caused someone else&rsquo;s day to go poorly and polluted the God-fearing family community of Rexburg with my coarse language.</p> <p class="Body1">A trademark is a recognizable expression, sign, phrase, or logo that distinguishes products or services of a specific business from those of others. A trademark can be words or a logo and is typically located on a package, label, or product itself. A trademark can be established by registration or by use. In the example above, I trademarked myself as a jerk. Because I acted poorly, everyone around me at that time identified me as a childish malcontent. My picture would appear in the dictionary under the term &ldquo;crazy-pants&rdquo;.</p> <p class="Body1">When a business uses words, logos, catchy phrases, or symbols to identify its products or services it may be establishing a trademark. The mark over time may develop significant value. If a business owner does not register the mark early on, he or she may be unable to defend the mark at a later date. A good business attorney can help businesses register their trademarks. By registering your trademark, it becomes much more defensible and makes it easier to recover damages if someone tries to use your mark.</p> <p class="Body1">Just as I should have been able to rely on proper course markings in the race, a business should be able to rely on the value of its trademarks. Trademarks can drive up the value of a business and make it more attractive to potential buyers. A registered trademark can also be licensed to other businesses for their use. There are many issues that can arise during the registration process. Having a competent business attorney with experience identifying and registering trademarks is critical. </p> <p class="Body1">Just as my post-race apology was too late, it may be too late to defend a trademark if you wait too long after use. You will be able to determine if there are other similar marks and make the necessary adjustments. That is not to say an attorney will absolutely not be able to help you unless you register your trademark early. My apology was better than doing nothing and had the race volunteer not chased me down in his car I might have hit Idaho Falls before I realized it was time to turn around (&ldquo;run Forrest run&rdquo;). The point is that you do not want to try to make amends for a situation that could have easily been prevented. From a business standpoint, making amends usually means spending more money.</p> <p class="Body1">Talk to an attorney about registering your trademarks. If you do, you may be able to karate-chop the competition into submission much like I karate-chopped that unsuspecting water cup. </p> <p class="Body1"><em>Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA. The opinions contained are his own and nothing written should be construed as legal advice. Jeff's practice involves litigation, business disputes, and estate disputes. He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com</em> <em>or follow him on Twitter @jeffbrunson</em>.</p> Tue, 28 May 2013 17:44:43 MDT Law Firm Wins Appeal http://www.beardstclair.com/blog-post/law-firm-wins-appeal.html <div><span style="color: #000000;">On May 23, 2013, Beard St. Clair Gaffney attorney, John Avondet, received a favorable decision in an appeal involving a medical malpractice case. Mr. Avondet represented a radiologist in defending a lawsuit alleging medical malpractice. After obtaining a dismissal of the case before the district court in Bonneville County, Idaho, the Idaho Supreme Court heard oral argument in the appeal on May 7, 2013. The Court only needed 16 days to draft and issue its opinion affirming the district court's dismissal of the case against Mr. Avondet's client.</span></div> <div> </div> <div><span style="color: #000000;">The decision in <em>Taylor v. Chamberlain et al</em>, ISC Docket No. 39378-2011, may be found </span><a href="http://www.isc.idaho.gov//opinions/39378.pdf"><span style="color: #000000;">here</span></a><span style="color: #000000;">.</span></div> Wed, 29 May 2013 12:58:14 MDT The Promotion of Agritourism http://www.beardstclair.com/blog-post/agritourism-promotion.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>Imagine a crisp autumn evening towards the end of October. Halloween is just around the corner, and your corn maze is packed with people enjoying a classic autumn pastime. Suddenly you hear a scream and a father comes running out of the maze with a child in his arms. The child suffered a broken ankle after tripping on a corn stalk. Your heart sinks knowing that you will probably be liable for this <em>accident</em>. However, under the new Idaho Agritourism Promotion Act (IAPA), your liability could be limited.</p> <p>In order to preserve the adventures that Idaho agritourism offers, the Idaho Legislature drafted a new bill (IAPA) that will go into effect July 1, 2013. Agritourism is any activity on a farm or ranch that allows people to get a taste of what Idaho agriculture has to offer. These activities include, but are not limited to, corn mazes, petting zoos, horseback riding, hayrides, and other farming or ranching activities. Agritourism does not need to be a &ldquo;paid-for&rdquo; activity.</p> <p>Inherent risks are inevitable in these activities, and the elimination of these risks would diminish the agritourism experience. For example, imagine having a petting zoo where the animals cannot be petted. Clearly that would not be a &ldquo;petting&rdquo; zoo. Examples of these inherent risks include surface conditions of the land and behavior of wild or domestic animals. Many of these inherent risks on a farm or ranch cannot be completely eliminated.</p> <p>The IAPA will not limit liability, however, for activities that are the result of negligence or gross negligence on the part of the agritourism provider. For example, if a bale of hay falls on a tourist, and the owner was negligent in stacking the hay, IAPA would not limit liability.</p> <p>A person engaging in agritourism must post the following warning in a clearly visible area to avoid liability for the inherent risks explained above. This warning must be posted on a sign with black letters at least one inch in height. The warning must state the following verbatim:</p> <p><strong>WARNING</strong></p> <p><em>Under Idaho law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if such injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to land, equipment and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity. </em></p> <p>Posting this warning will allow agritourism providers to avoid liability for the risks inherent with every farm and ranch.</p> - Lance J. Schuster is a lawyer at Beard St. Clair Gaffney. He and his wife raise kids and cattle on their small farm near Idaho Falls. He can be reached at 523-5171 or <em>lance@beardstclair.com.</em></div> Fri, 07 Jun 2013 15:32:57 MDT The Vanishing Trial Redux, Mediation and the Law of Unintended Consequences http://www.beardstclair.com/blog-post/the-vanishing-trial-redux-mediation-and-the-law-of-unintended-consequences.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/michael_gaffney.png" alt="" width="150" height="200" /></p> <p><strong><em>FROM: The Wyoming Lawyer, June 2013, Vol. 36, No. 3</em></strong></p> <p><a href="http://www.beardstclair.com/wwwroot/userfiles/files/the_vanishing_trial.pdf"><span style="color: #800000;">View article as pdf</span></a></p> <p>A few years back, I attended a CLE in Jackson where Gerry Spence was the keynote speaker. Mr. Spence addressed a room of a hundred lawyers or so, mostly from Wyoming, but also Wyoming bar members from Idaho, Utah and Colorado. At the time I had been practicing law in western Wyoming for over a decade in addition to my practice in Idaho and had developed a good familiarity with the Jackson bar, the Wyoming federal judges and a number of state district court judges.</p> <p>Mr. Spence took an informal survey asking everyone in the room who had tried at least one case in the past year to raise their hand. I would estimate that about one-third of the hands in the room went up. Mr. Spence then asked the same question for two trials, three trials, and so on. By the time he had reached five trials, no hands in the room went up. A case can be made that since that room contained a good representative sample of the most active trial lawyers in the mountain states region, and if these lawyers were not appearing before juries with much regularity, trial practice was indeed on the decline.</p> <p>After the informal survey, a lively discussion took place where Mr. Spence, in his trade-marked, provocative way, attempted to tease out his ultimate point&mdash;that the death of jury trials was a direct reflection of the loss of our fundamental right to a trial by jury, and that as trial lawyers, we were complicit in this death. Mr. Spence&rsquo;s point highlighted one of the most important policy implications of the disappearance of trials and his call to arms was well taken, however polemical his delivery. </p> <p>Mr. Spence&rsquo;s exercise got me thinking about some of the more subtle issues related to the demise of not just jury trials, but trials in general, within the United States. I became interested not only in explanations for the decline in trials, but how the rise of mediation contributed to this decline and the unintended consequences of this phenomenon. The purpose of this short discussion is to attempt to touch the surface of what I feel are some dangerous consequences directly related to the disappearance of trials within the American legal system, regardless of why there are significantly fewer cases going to trial. These unintended consequences bear directly on how we train new generations of lawyers and judges, because the art of trying cases is quickly being lost. I will first briefly touch upon the empirical evidence that has developed related to the decline of trials within the U.S. legal system and then discuss some of the consequences that result from this decline.</p> <p><strong>The Data</strong></p> <p>About the same time Mr. Spence was anecdotally highlighting this phenomenon, the emerging data were proving his case. The empirical support for the hypothesis that trials are indeed &ldquo;vanishing&rdquo; from the American legal landscape is now well established.</p> <p>In 2004, the American Bar Association Litigation Section underwrote an exhaustive study of the historical prevalence of trials in the United States and the results were quite stunning. &ldquo;The Vanishing Trial&rdquo;<a href="#_edn2">[2]</a> authored by Patricia Refo, then chairperson of the American Bar Association litigation section, abstracted what has become the seminal publication touching off the study of the historical disappearance of trials from the legal landscape over the prior four decades. In 2004, Professor Mark Galanter of the University of Wisconsin Law School published an exhaustive, one hundred eleven page study analyzing data from federal and state courts tracking the prevalence of both criminal and civil cases that reached the trial stage from 1962 to 2002.<a href="#_edn3">[3]</a> Galanter found that there were 10,899 reported civil and criminal trials in the federal system in 1962. The number of cases reaching trial peaked in 1985 at 12,529. By 2002, the total number of civil and criminal cases reaching trial had dropped by 35% to 8,143 trials or over 4,000 fewer cases reaching trial than had been tried in 1985 despite a five-fold increase in the number of civil filings and twice the number of criminal filings from the period 1962 to 2002. In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8%. The federal data looked at by Galanter do not break down the percentage of cases reaching trial by jurisdiction, but rather by type of case. For example, in 1962, 1 in 6 tort cases reached trial. By 2002, only 1 in 46 tort cases was tried. </p> <p>Examining the most recent decennial data published by the United States Courts for fiscal year 1990 through fiscal year 2010, the percentage of federal civil cases reaching trial dropped from 4.3% in 1990 to 1.1% in 2010.<a href="#_edn4">[4]</a> This data encompasses all types of cases and covers all U.S. federal districts. This drop in cases reaching trial, again, is occurring despite the fact that the data show a trend of either constant or increased filings by district.<a href="#_edn5">[5]</a> The data for the decline of trials in state court venues is sketchy and more difficult to quantify. In 2009, the U.S. Department of Justice, Bureau of Justice Statistics published a study that sampled 75 of the most populous counties in the country to collect data on tort cases that reach trial in state court venues for the year 2005, the first year that such data was compiled. Although the focus of the study was to look at the various aspects of state tort litigation, e.g. types of cases, amounts of damages awards, etc., one artifact of the study was data showing that the number of tort cases tried in state courts declined by one-third between 1996 and 2005.<a href="#_edn6">[6]</a></p> <p>There have been some naysayers who challenge the notion of the vanishing trial, most notably Professor John Lande of the University of Missouri School of Law. Lande argues that the phenomenon of the &ldquo;vanishing trial&rdquo; is, in fact, a myth and &ldquo;not a particularly helpful one at that&rdquo;.<a href="#_edn7">[7]</a> Interestingly, however, in addressing Galanter&rsquo;s research, Lande concedes that &ldquo;to say that [the vanishing trial] is a myth is not to suggest that the facts or analysis in Professor Galanter&rsquo;s report are fictional or inaccurate&hellip;rather it is a myth defined as a &lsquo;popular belief or story that has become associated with a person, institution or occurrence&hellip;.&rsquo;&rdquo;<a href="#_edn8">[8]</a> After this rather elusive definition of &ldquo;myth&rdquo;, Lande then goes on to parse the definition of a &ldquo;trial&rdquo; in an equally malleable manner order to support his assertion that the phenomenon of the vanishing trial is not really occurring. However, the data cited above post-dating Galanter&rsquo;s study, show an unequivocal continuation of the downward trend for trials. The &ldquo;myth&rdquo; of the vanishing trial, notwithstanding, the overall decline of cases being tried in federal courts been demonstrated empirically and is not open to serious dispute.<a href="#_edn9">[9]</a> The empirical evidence corroborates what Gerry Spence highlighted and, anecdotally, what all experienced trial lawyers have suspected for a number of years.</p> <p><strong>Trials, Mediation and The Law of Unintended Consequences</strong></p> <p>The reasons posited for the decline of cases being tried are myriad, however, one of the most persistent explanations for this decline is the now pervasive use of mediation as part of the litigation arc, and in particular court-ordered mediation.<a href="#_edn10">[10]</a> One reason that the use of mediation, either as an alternative to the litigation process or, more importantly, as a part of the litigation process, is suspect in significantly contributing to the decline of trials is that some studies are beginning to show that the skills and assumptions required to successfully mediate are actually incompatible with the those necessary to achieve success as a trial lawyer. <a href="#_edn11">[11]</a> The problem with this type of finding should be evident&mdash;if mediation becomes an integral and required component of the litigation process, as it increasingly has become, what becomes of the skills and assumptions required to try cases? If, in fact, the basics of mediation and the basics of trying cases are &ldquo;incompatible,&rdquo; how must the focus of legal education and training be fashioned? In probably the most comprehensive discussion of mediation in the litigation context, Professor Thomas Stipanowich of the Pepperdine School of Law&rsquo;s Straus Institute argues that mediation and other forms of ADR are not surrogates for trial.<a href="#_edn12">[12]</a> This suggests two things; first, that mediators and trial lawyers are two different breeds and second, the emergence of an entirely new model of dispute resolution in the courts independent of trials. We appear to be well down the road for both.</p> <p>Although Stipanowich does not present empirical findings demonstrating a cause-effect relationship between the rise of ADR, particularly mediation, and the decline of trials, he does discuss at length various factors that might implicitly explain the decline of trials vis a vis mediation. Most important in Stipanowich&rsquo;s article is the notion that mediation is not a cause per se of the decline of trials, but rather a solution to avoiding the various problems associated with litigation in general and trial in particular, such as delay, cost and unpredictability. This implies (as the name &ldquo;ADR&rdquo; makes explicit) that we are developing a second rail of litigation so to speak, one independent of the adversarial trial procedure. This is dramatically different from the current view of mediation as part of the litigation process, the goal of which is trial. And, in fact, there are scholars that advocate for the view that settlement through mediation is the emerging &ldquo;endpoint&rdquo; of litigation rather than trial.<a href="#_edn13">[13]</a></p> <p>Whether ADR in general or mediation in particular is characterized as an adjunct to the litigation process or viewed as a replacement for the current adversarial process leading ultimately to trial on the merits, the consequences of the decline of trials are serious and create a number of considerations for the legal profession and public policy.</p> <p>First, and foremost, is the point made by Gerry Spence which addresses the philosophical basis of concern about the decline in trials: The right to trial in the American legal system is a <em>fundamental right</em> guaranteed not only by the U.S. Constitution, but by every state constitution. Trials, be they jury trials or bench trials, are not merely an &ldquo;endpoint&rdquo; of litigation, they are raison d&rsquo;etre of the litigation process. Everything that happens in the litigation process is designed to do one thing&mdash;ensure that the parties have their day in court.</p> <p>Secondary, but important, consequences also emerge from the decline of trials. As trials decline, the art and practice of trying cases becomes lost. Lawyers and judges, especially those of recent vintage, understand trials only in the abstract, perhaps through a course in trial practice in law school, or worse, as simply the starting point for appellate cases that comprise legal texts. Law clerks and associates lose the mentoring that comes with watching trials, preparing their bosses for trial, eventually doing parts of trials, then ultimately going solo at trial. Litigation becomes meaningless process, an end in itself.</p> <p>With the loss of trials, the legal community loses precedent, appeals are not taken on the merits, but relate only to arcane pre-trial procedural matters, is such and such document subject to discovery, is so and so expert qualified to give and opinion, has the defendant properly disclosed an expert witness or a privilege log, or myriad other pre-trial matters that have little to do with the merits. Indeed, as Galanter poignantly notes: &ldquo;What increased as trials disappeared was not settlement, but nontrial adjudication.&rdquo;<a href="#_edn14">[14]</a> In fact, judicial involvement as trials decline has not fallen, but <em>increased.</em><a href="#_edn15">[15]</a><em> </em>Judges are more active in the pretrial phase and cases &ldquo;depart&rdquo; the court at an earlier stage,<a href="#_edn16">[16]</a> not through trial or settlement, but for other reasons, chiefly, Rule 12 dismissals or summary judgments.<a href="#_edn17">[17]</a> Whether judges are dismissing cases because they lack merit, more cynically, to clear their dockets and avoid trials, is something many experienced trial lawyers suspect, but cannot ultimately demonstrate empirically.</p> <p>Regardless of why judges may be jettisoning cases at the pretrial stage, another consequence of the decline of trials is loss of predictability of outcomes that trial results provide, particularly for litigants that need resolution on the merits, such as contract or intellectual property disputes, where a verdict clearly decides the rights and duties of each party. Of equal importance, it is disingenuous for a mediator to use, as a mediation tactic, the hackneyed parade of horribles in &ldquo;risking all&rdquo; to the vagaries of a jury in the absence of any actual jury verdicts that are instructive. Apropos mediator tactics, as trials decline, ultimately mediators, lawyers and litigants will have no basis of comparison as to the relative value of a case, the actual risk of trial, how the law will be applied and so forth.</p> <p>Another consequence of the decline of trials is the loss of our basic system of checks and balances in the application of our laws. Without complete adjudication of claims, legislatures cannot determine how the laws they pass are being applied, if those laws are ambiguous or achieving the effects they were designed to achieve.<a href="#_edn18">[18]</a></p> <p>Coming full circle to the potential loss of our right to trial by jury, the decline of trials leads to an equally important constitutional loss&mdash;the public scrutiny of and participation in our courts. Much the way arbitration has become untethered from judicial due process in a public forum and the safeguards of appellate review, more and more cases are being settled in private, court records are lacking in even rudimentary information pertaining to outcomes of cases.</p> <p>Finally, the decline of trials leads to decreased public participation in our courts as jurors. The act of being a juror does more to dispel the hyperbole and misinformation thrust upon the people by sensationalized media and agenda-driven interest groups than any fact-checking organization can.<a href="#_edn19">[19]</a> As much as we pay lip service to the importance of serving as jurors, the reality is much the opposite. We withhold important evidence from jurors because we think they are too easily confused, we take away their ability to determine the real value of cases by imposing damage caps, we allow the media to insult them by calling them irrational and unpredictable; ultimately, with the decline of trials, we will leave them out of the process completely. </p> <p> </p> <p> </p> <div> <hr size="1" /> <div> <p><a href="#_ednref1">[1]</a> Michael D. Gaffney is a shareholder in Beard St. Clair Gaffney, PA, Idaho Falls, Idaho and a member of the Idaho, Wyoming and Oregon bar. He practices law in eastern Idaho and western Wyoming. He is a graduate of the University of Idaho College of Law where he was a member of the Idaho Law Review.</p> </div> <div> <p>[2] Patricia Refo, The Vanishing Trial, 30 <em>Litigation Online: The Journal of The Section of Litigation</em> 1-4 (2004).<a href="#_ednref2"></a></p> </div> <div> <p>[3] Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 <em>Journal of Empirical Legal Studies</em> 459-570 (2004).<a href="#_ednref3"></a></p> </div> <div> <p>[4] United States Courts Judicial Facts and Figures 2010, Table 4.10, available at www.uscourts.gov/Statistics/JudcialFactsAndFigures/JudicialFactsAndFigures2010.aspx.<a href="#_ednref4"></a></p> </div> <div> <p>[5] <em>Id. </em>at Table 4.2. Wyoming, however, has shown a drop in filings in U. S. District Court from 1990 through 2010. In 1990, 411 cases were filed in the U. S. District Court for the District of Wyoming. By 2010, that number had dropped to 294. <a href="#_ednref5"></a></p> <p><a href="#_ednref6">[6]</a> Thomas J. Cohen, Tort Bench and Jury Trials in State Courts, 2005, <em>Bulletin of the Bureau of Justice Statistics, </em>U.S. Department of Justice, November 2009.</p> </div> <div> <p>[7] John Lande, Replace &ldquo;The Vanishing Trial&rdquo; With More Helpful Myths,&rdquo; 23 <em>Alternatives to the High Cost of Litigation</em> 161 (2005).<a href="#_ednref7"></a></p> </div> <div> <p>[8] <em>Id. </em>at 161.<a href="#_ednref8"></a></p> </div> <div> <p>[9] At the most recent Idaho-Wyoming-Utah Federal Bar Association Tri-Bar Conference held in Sun Valley last fall, it was reported that the number of cases reaching trial had fallen to under one percent in Idaho federal court. Data were not presented for Wyoming or Utah.<a href="#_ednref9"></a></p> </div> <div> <p>[10] Numerous reasons are given for the decline trials, from overcrowded courts to the rise of class actions that cannibalize individual claims and make trials unmanageable. Tort reform is another persistent &ldquo;explanation&rdquo; for the decline of trials. However, it is more likely that tort reform, particularly the imposition of damage caps, discourages the filing of lawsuits rather than acting as reason for avoiding trial once a lawsuit is filed.<a href="#_ednref10"></a></p> </div> <div> <p>[11] Dorothy J. Della Noce et al., Assimilative, Autonomous or Synergistic Visions: How Mediation Programs in Florida Address the Dilemma of Court Connection, 3 <em>Pepp. Disp. Resol. L.J.</em> 11 (2002).<a href="#_ednref11"></a></p> </div> <div> <p>[12] <em>See e.g. </em>Thomas J. Stipanowich, ADR and the &ldquo;Vanishing Trial&rdquo;: The Growth and Impact of &ldquo;Alternative Dispute Resolution,&rdquo; 1 <em>Journal of Empirical Legal Studies</em> *** (2004).<a href="#_ednref12"></a></p> </div> <div> <p>[13] Kimberlee K. Kovach, The Vanishing Trial: Land Mine on the Mediation Landscape or Opportunity for Evolution: Rumination on the Future of Mediation Practice, 7 <em>Cardoso J. Conflict Res. 27, </em>46 (2006).<a href="#_ednref13"></a></p> </div> <div> <p>[14] Galanter, <em>supra </em>at 481.<a href="#_ednref14"></a></p> </div> <div> <p>[15] <em>Id. </em>at 481-484.<a href="#_ednref15"></a></p> </div> <div> <p>[16] <em>Id. </em>at 482.<a href="#_ednref16"></a></p> </div> <div> <p>[17] <em>Id. </em>at 482-484.<a href="#_ednref17"></a></p> </div> <div> <p>[18] <em>Ledbetter v. Goodyear Tire &amp; Rubber Co</em>., 550 U.S. 618 (2007) is a perfect example of how after the Eleventh Circuit and the U.S. Supreme Court reversed a pay discrimination jury verdict in favor of Ms. Ledbetter, finding that her claims for unequal pay were time-barred under the Civil Rights Act of 1964 and the Equal Pay Act of 1963, Congress quickly responded by amending the Civil Rights Act of 1964 in 2009 to trigger a new statute of limitations with each pay period. Had the case settled in typical fashion with non-culpability and confidentiality provisions, the lawmakers who originally enacted the pay equity laws might never have discovered that the courts were applying the law in a fashion contrary to the intent of Congress.<a href="#_ednref18"></a></p> </div> <div> <p>[19] The most notorious example being <em>Liebeck v. McDonalds Restaurants</em>, 1994 Extra LEXIS 23 (Bernalillo County, N.M. Dist. Ct. 1994), the spilled coffee case which is one of the most misrepresented cases in American jurisprudence. The reader is encouraged to read the case and its procedural history and compare the actual facts of the case to what has been presented in the media.</p> </div> </div> Tue, 25 Jun 2013 10:31:35 MDT Creating Valid Liens http://www.beardstclair.com/blog-post/creating-valid-liens.html <p><span><em>Lean on me<img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></em></span></p> <p><span><em>When you&rsquo;re not strong</em></span></p> <p><span><em>And I&rsquo;ll be your friend</em></span></p> <p><span><em>I&rsquo;ll help you carry on&hellip;</em></span></p> <p><em>- Bill Withers 1972</em></p> <p>Leaning on a friend for help is one thing. Liening on real property is quite another. It doesn&rsquo;t happen often, but when it does, it happens fast &ndash; a relationship sours or a check bounces and someone is left without payment. All at once you are in a scramble to file a lien to protect yourself and your checkbook. Fortunately, Idaho law allows a person who furnishes labor or materials that are used to improve real property to file a lien on that property. In your attempt to file within the 90-day window of opportunity, don&rsquo;t get your lien thrown out on a technicality. </p> <p><strong>Filing a Valid Lien</strong></p> <p>A proper lien must be filed within 90 days of labor or materials having last been provided and must be recorded with the County Recorder. The lien must contain:</p> <p>- A statement of the amount demanded, after deducting all just credits and offsets.</p> <p><span>-<span> </span>The name of the owner, or reputed owner, if known.</span></p> <p><span>-<span> </span>The name of the person by whom the claimant was employed or to whom he furnished materials.</span></p> <p><span>-<span> </span>A description of the property to be charged with the lien, sufficient for identification.</span></p> <p>The lien must also be verified by oath and contain a statement that the claimant believes the lien to be &ldquo;just.&rdquo; A &ldquo;duly sworn&rdquo; oath or affirmation is not sufficient. Many preprinted forms do not comply with this requirement, so be careful.</p> <p>Lastly, a copy of the lien must be personally delivered to the owner of the property, or mailed via certified mail, within 5 days of the recording of the lien.</p> <p>A defective lien will not be upheld in a court of law and will provide the claimant with nothing to lean on. However, a properly recorded lien will protect the claimant and provide him with some assurance of payment.</p> <p><strong>Foreclosure</strong></p> <p>If the property owner fails to pay the lien then you must file a complaint to foreclose on the lien within 6 months. Courts enforce labor and materialman&rsquo;s liens by foreclosing on the lien. The Court issues an order for the property to be sold by the Sheriff and the proceeds of the sale to be used to satisfy the lien. </p> <p>The priority of all liens and other encumbrances determines who gets paid first from the proceeds of the sale. A labor or materialman&rsquo;s lien is a preferred claim that has priority over any subsequent mortgage or other encumbrances. Because the priority of liens is established when the work was commenced, it is a good idea to clearly document the time you begin work on a project.</p> <p>In most instances, just the threat of losing property prompts owners to pay a lien.</p> <p><strong>Attorney Fees</strong></p> <p>If your lien is valid and you prevail on foreclosing your lien the Court will award you your attorney fees. Even if you prevail on only a portion of your claim, you may be entitled to all of your attorney fees.</p> Wed, 26 Jun 2013 16:22:09 MDT Tips for Selecting Malpractice Insurance http://www.beardstclair.com/blog-post/tips-for-selecting-malpractice-insurance.html <p><img style="float: right; margin: 5px;" title="Michael D. Gaffney" src="http://www.beardstclair.com/wwwroot/userfiles/images/michael_gaffney.png" alt="Michael D. Gaffney" width="150" height="200" /></p> <p>Malpractice insurance is becoming an expense that more and more physicians can not afford. However, the costs a physician could incur to successfully defend a single claim of malpractice would likely exceed the annual premium for liability insurance, and this fact alone makes malpractice insurance a sound business expense. Deciding how much or what type of insurance to purchase is a personal decision based on a number of factors such as (1) your specialty and the risk it entails, (2) practice location, (3) how much of your assets you are willing to risk, and (4) state requirements. The following tips will help you in your search for the right malpractice insurance.</p> <p><strong>Tip #1: Assess Potential Insurance Carriers</strong></p> <p>The American Medical Association warns, &ldquo;Do not buy insurance solely on the basis of the premium charged.&rdquo; Other important factors to consider are&hellip;</p> <p>- Financial stability - to find out a company&rsquo;s financial rating visit ambest.com</p> <p>- Protection against insolvency - find out what state guaranty funds are available if the insurer becomes financially unable to pay claims</p> <p>- Performance record &ndash; state insurance departments can provide useful information about specific insurance carriers licensed within the state</p> <p>- Handling claims &ndash; know and understand the insurer&rsquo;s method of handling claims</p> <p> </p> <p><strong>Tip #2: Compare Coverage and Exclusions</strong></p> <p>Once you&rsquo;ve identified two or more potential insurance carriers ask for a copy of the policy so you can compare the coverage and exclusion sections. Some will cover not only claims of professional negligence but also claims of unprofessional conduct. Most policies exclude claims involving punitive damages, intentional misconduct and contractual indemnity claims. Compare the language of each such exclusion in the policies you are considering and seek advice from your insurance agent or attorney.</p> <p> </p> <p><strong>Tip #3: Carefully Review the &ldquo;Consent to Settle&rdquo; Provision</strong></p> <p>These provisions define the terms under which a settlement might be agreed upon by the insurer and the physician. These clauses should be reviewed carefully. You may find that the provision contains a &ldquo;hammer clause.&rdquo; This clause allows the insurer to &ldquo;cut you loose&rdquo; if you refuse to settle. Leaving you responsible for ongoing defense costs and the amount of any verdict that exceeds the amount of the recommended settlement.</p> <p> </p> <p><strong>Tip #4: Do Not Lie or Shade Your Application</strong></p> <p>When a malpractice suit is filed, your insurer will try to avoid covering the claim by looking for false or missing information on your application. When filling out the application you should always err on the side of full disclosure. To ensure accuracy, you should complete your own application or at the very least review it carefully prior to submission.</p> <p>Understanding your malpractice policy can be complicated yet critical. When shopping for a new policy or renewing a current policy, do your homework and if necessary ask an attorney for advice.</p> <p> </p> <p>*Family Practice Management &ndash; www.aafp.org/fpm - March 2003</p> <p>*American Medical Association &ndash; www.ama-assn.org &ndash; October 2005</p> Wed, 26 Jun 2013 16:50:59 MDT No Glossing Over Indemnification Provisions http://www.beardstclair.com/blog-post/no-glossing-over-indemnification-provisions.html <p>When was the last time you seriously reviewed an indemnification provision in a contract? We recently had clients who were leasing a commercial building. Among other language, the lease agreement&rsquo;s indemnification provision provided that our clients would be responsible for any damage that would occur on the leased property, even if our clients were not responsible for causing the damage. We wrestled with what to do&mdash;our clients did not want to be liable for any damage they did not cause. In the end, we were able to negotiate an agreement that our clients would only indemnify the landlord for damages caused by our clients. In addition, we had our clients&rsquo; insurance company review and agree to pay out on any claims relating to the indemnification provision.</p> <p>Unfortunately, not all indemnification negotiations are that easy. Instead, as attorneys, we need to take time to understand the risks, duties, and strategies that are involved in drafting and reviewing indemnification provisions. This article highlights some of those risks, duties, and strategies attorneys need to be aware of when negotiating and drafting an indemnification provision.</p> <p><strong>Purpose of Indemnification</strong></p> <p>Indemnification stems from &ldquo;the concept that a party should be held responsible for his own wrongs, and if another is compelled to pay damages caused by the wrongdoer, that party is entitled to recover from the wrongdoer.&rdquo;<a href="#_edn1">[i]</a> Indemnification is at once both a risk-shifting mechanism and a deterrent to injurious behavior on the part of the indemnifying party that could otherwise harm the indemnified party.<a href="#_edn2">[ii]</a></p> <p>The obligation to indemnify can arise from an explicit contractual provision or from an implied duty based on the relationship between parties. Numerous types of agreements, including purchase agreements, business entity formation documents, construction agreements, and use agreements, have explicit contractual indemnification provisions. A contractual indemnification provision can be advantageous for both parties. For the indemnifying party, it can spell out and limit the indemnifying party&rsquo;s potential liability. For the indemnified party, it may be ideal because it can provide for recovery of fees and costs associated with enforcing the indemnification.</p> <p>As for common law indemnification in Idaho, &ldquo;[i]t is well established that under the common law, a person who without fault on his part is compelled to pay damages occasioned by the negligence of another is entitled to indemnity.&rdquo;<a href="#_edn3">[iii]</a> However, there are potential problems for both parties in depending on common law indemnification. By relying on common law indemnification, the indemnifying party runs the risk that it might be obligated to provide broad indemnification for a wide range of situations.</p> <p>Conversely, by relying on common law indemnity, the indemnified party risks the possibility that the indemnifying party may not be financially able to indemnify by the time of indemnification, as well as the possibility that the common law indemnification obligation may not cover all of the situations for which the indemnified party wishes to be covered. This innate uncertainty in common law indemnity for both parties can be resolved through carefully drafting a contractual indemnification provision.</p> <p><strong>Indemnification Triggers</strong></p> <p>As a preliminary matter to drafting and agreeing to an indemnification provision, both parties must understand what events will trigger indemnification. Indemnification triggers may include misrepresentation, whether negligent or contractual, such as breach of warranty; breach of contract or damages arising from work performed under a contract; tax related losses; and infringement of intellectual property. Depending on the parties&rsquo; specific contractual relationship, both parties will want to carefully consider what events elicit a claim for indemnification.</p> <p><strong>Drafting Indemnity Clauses</strong></p> <p>Because of the potential pitfalls associated with indemnity clauses for both parties, careful drafting is crucial to avoid unnecessary problems and conflict. A typical indemnity clause covers numerous topics, including the scope of indemnification, the duty to &ldquo;hold harmless,&rdquo; exculpation, defense costs, the duty to defend, procedures, exclusions, and the right of subrogation. With such a vast array of topics to be addressed, clarity in drafting is essential to ensure that both parties have similar understanding of potential indemnification.</p> <p>Buried within these topics is the inherent conflict of interest between the parties: the indemnified party wants broad coverage for as many potential liabilities as possible, while the indemnifying party wants to limit its obligation to indemnify the other party. The parties&rsquo; attorneys can address these competing interests through careful drafting.</p> <p><em>Drafting Concerns for the Indemnifying Party</em></p> <p>The indemnifying party has particular concern in drafting a narrow indemnification clause to limit its potential future obligation. To address this concern, counsel should carefully define what situations require indemnification, as well as the scope and extent of the party&rsquo;s obligation to indemnify.</p> <p>Articulating the scope of its obligation to indemnify is always a major concern. Indemnification provisions often include language requiring the indemnifying party to &ldquo;indemnify and hold harmless&rdquo; the indemnified party.</p> <p>Some courts may look to this phrase as merely redundant, for &ldquo;[w]hen a person promises to hold another harmless, he does not promise to prevent harm from occurring. That would be an impossible promise to keep.&rdquo;<a href="#_edn4">[iv]</a> This line of reasoning instead finds that by agreeing to &ldquo;hold harmless,&rdquo; the indemnifying party &ldquo;promise[s] in the traditional and accepted parlance of the commercial world &hellip; to make things right if harm [does] occur,&rdquo;<a href="#_edn5">[v]</a> or essentially, indemnification.</p> <p>However, other courts, including the Idaho Supreme Court, have looked at indemnification provisions with &ldquo;hold harmless&rdquo; language as indicating the indemnifying party is also obligated to indemnify for loss caused by its negligence: &ldquo;[T]he indemnification provision contains the &lsquo;hold harmless&rsquo; language which, although not talismanic, is nonetheless indicative of a specific intent to encompass indemnification for the indemnitee&rsquo;s negligence.&rdquo;<a href="#_edn6">[vi]</a> Carefully consider inclusion of &ldquo;hold harmless&rdquo; language in an indemnification provision to safeguard against additional and unwanted future obligations.</p> <p>Another related concern is to determine exactly what expenses the indemnifying party must cover. A contractual indemnification provision provides for the indemnifying party to compensate the indemnified party for &ldquo;loss.&rdquo; Consequently, an indemnifying party interested in limiting its potential exposure should define exactly what constitutes a loss under the agreement. Always draft the obligation to limit losses to general damages while excluding punitive and consequential damages under the indemnification provision.</p> <p>Next, establish whether the indemnification provision provides for indemnification of first-party and third-party claims. A first-party indemnification claim is a claim by the indemnified party for a loss suffered directly. A third-party indemnification claim is a claim by the indemnified party for a loss resulting from a claim by a third party. If both first-party and third-party indemnification scenarios are to be addressed, do so in separate clauses of the indemnification provision. By failing to separate these claims, an indemnifying party could unintentionally expand its obligation to indemnify against third-party claims.</p> <p>Address how the indemnified party is to provide notice of an indemnification claim. The provision should define at what point the time period for providing notice begins to run, whether it begins when the triggering event occurs or when the indemnified party discovers the triggering event. Include the deadline for notice of an indemnification claim, whether it is immediately following knowledge of the triggering event, with reasonable promptness after discovering the triggering event, or within some other defined timeframe. Also limit the length of time when an indemnified party can formally bring a claim for indemnification. Make sure the time period is not longer than any applicable statutes of limitations.</p> <p>Finally, check with the indemnifying party&rsquo;s insurance provider to make sure its potential obligations to indemnify are covered under its commercial general liability policy. Broad blanket coverage for indemnification obligations is often available under these policies, but may result in higher premiums. However, for the indemnifying party, higher premiums may be worth the peace of mind in knowing it has coverage for potential indemnification obligations.</p> <p><em>Drafting Concerns for the Indemnified Party </em></p> <p>Given the nature and underlying conflict of their positions, an indemnified party has different objectives and concerns regarding indemnification than those of the indemnifying party. It looks to shift risk to the indemnifying party, and therefore wants an all-inclusive indemnification obligation. Because of this inherent conflict, many of the concerns facing the indemnifying party are also of concern to the indemnified party, but framed differently&mdash;while the indemnifying party will wish to limit its obligation, the indemnified party will seek to increase its coverage.</p> <p>While the indemnified party may not feel the same impetus to narrowly draft terms defining the scope and range of indemnification, it should take special care in drafting an indemnification provision to avoid unfavorable strict judicial construction. In Idaho, courts strictly construe indemnification provisions against the indemnified party, particularly in cases where it drafted the provision.<a href="#_edn7">[vii]</a> This is due to the &ldquo;hazardous&rdquo; and &ldquo;extraordinary&rdquo; character of the indemnification relationship.<a href="#_edn8">[viii]</a> With this warning in mind, an indemnified party must ensure that in its desire for broad indemnification, the provision is still drafted in a way that provides precise direction to any future courts interpreting the provision.</p> <p>During the drafting process, define the indemnifying party&rsquo;s duty to defend the indemnified party against third-party claims to address the indemnified party&rsquo;s potential vulnerabilities in turning over its defense to the indemnifying party. The indemnified party must decide if it wants the indemnifying party to be the sole defender of any third-party claims against it, or if the defense approach will be collaborative. Also articulate at what point in the litigation the indemnified party will take over its own defense.</p> <p>This is an especially important consideration because of the very real possibilities of the indemnifying party lacking the finances to conduct a strong defense, a breakdown in cooperation between the parties regarding handling of the defense, and unsatisfactory counsel hired by the indemnifying party. The indemnified party may determine that it will take over its defense against third-party claims if there is a &ldquo;reasonable possibility&rdquo; or &ldquo;reasonable basis&rdquo; that any of the above concerns impede the indemnifying party&rsquo;s defense.</p> <p>Finally, address the indemnifying party&rsquo;s ability to bind the indemnified party to a settlement agreement. Because of the parties&rsquo; conflicting interests, the indemnified party will want to limit the indemnifying party&rsquo;s ability to agree to a settlement without the indemnified party&rsquo;s consent. Include language prohibiting the indemnifying party from entering into a settlement agreement unless the indemnified party is fully indemnified for all losses, the indemnified party receives an unconditional release for all related claims, the indemnified party does not admit wrongdoing, and there are no material effects for the indemnified party beyond the relief granted by the settlement agreement. By inserting this or similar language into a duty to defend clause, the indemnified party can protect itself from otherwise being bound to an undesirable settlement agreement.</p> <p><em>Special Indemnification Considerations</em></p> <p>Beyond the individual concerns of the parties, additional considerations face both parties to an indemnification agreement. One important issue is drafting reciprocity indemnification clauses. The parties may wish to include language in which each agrees to indemnify the other. For basic reciprocal indemnification provisions, one paragraph may be sufficient to address the mutual indemnification obligations. If, however, the triggering events requiring indemnification are markedly different for each party, the better approach is to draft two separate clauses, one in which the first party is the indemnifying party and the other in which the second party is the indemnifying party. Breaking a reciprocal indemnification provision into two separate clauses permits the parties to be more specific as to what triggers each party&rsquo;s indemnification obligation.</p> <p>Another special consideration is how to handle indemnification for known loss. This concern can arise in real estate transactions when land contaminants are discovered as the parties are drafting the sales agreement.<a href="#_edn9">[ix]</a> If the parties wish to proceed with the sale, they may choose to address the indemnifying party&rsquo;s obligation by adjusting the purchase price to reflect the estimated cost in cleaning up contamination. Another approach is for the indemnifying party to agree to cover any additional cleanup costs beyond an initial agreed-upon amount. Finally, the parties may agree to require the indemnifying party to purchase insurance to cover any contamination costs. Regardless of which approach is taken, both parties will want to incorporate the drafting tips discussed above to ensure their competing interests are protected.</p> <p><strong>Conclusion</strong></p> <p>Because of underlying competing interests, indemnification can be a potential minefield for both parties to an indemnification agreement. Address possible questions regarding the scope of the indemnification provision while drafting, rather than when future conflicts arise. By carefully drafting a clear-cut and precise indemnification provision, counsel for both parties can ensure the parties are better protected against the uncertainties inherent in indemnification.</p> <p><em>Jarin O. Hammer joined Beard St. Clair Gaffney Thomson PA in 1997. His practice focuses on business, tax, and real estate. Jarin received his juris doctorate from the University of Idaho and his LL.M. in taxation from the University of Florida. He advises business owners on a wide array of legal issues including the formation of entities, taxation of business transactions, contract negotiations, land use and planning issues, and mergers and acquisitions.</em></p> <div><em>Lindsay M. Lofgran recently joined Beard St. Clair Gaffney Thomson PA as an associate attorney. Her practice focuses primarily on litigation and education law. Lindsay attended BYU Law School where she appeared multiple times on the Dean's List and served as both an executive editor for the BYU Journal of Public Law and a submissions editor for the BYU Education and Law Journal. </em></div> <div><br /> <hr size="1" /> <div> <p><a href="#_ednref1">[i]</a> <em>Chenery v. Agri-Lines Corp.</em>, 115 Idaho 281, 284, 766 P.2d 751, 754 (1988).</p> </div> <div> <p><a href="#_ednref2">[ii]</a> Throughout this article, the terms &ldquo;indemnifying party&rdquo; and &ldquo;indemnified party&rdquo; will be used to represent the indemnitor and indemnitee, respectively.</p> </div> <div> <p><a href="#_ednref3">[iii]</a> <em>Beitzel v. City of Coeur d&rsquo;Alene</em>, 121 Idaho 709, 717, 827 P.2d 1160, 1168 (1992) (quoting <em>Industrial Indem. Co. v. Columbia Basin Steel &amp; Iron Inc.</em>, 93 Idaho 719, 723, 471 P.2d 574, 578 (1970)). <em>See also Williams v. Johnson</em>, 92 Idaho 292, 294, 442 P.2d 178, 180 (1968).</p> </div> <div> <p><a href="#_ednref4">[iv]</a> <em>Majkowski v. Am. Imaging Mgmt. Servs., LLC</em>, 913 A.2d 572, 591 (Del. Ch. 2006).</p> </div> <div> <p><a href="#_ednref5">[v]</a> <em>Id.</em></p> </div> <div> <p><a href="#_ednref6">[vi]</a> <em>Bonner County v. Panhandle Rodeo Ass&rsquo;n., Inc.</em>, 101 Idaho 772, 775, 620 P.2d 1102, 1105 (1980) (citing <em>United States v. Seckinger</em>, 397 U.S. 203, 213 (1970)).</p> </div> <div> <p><a href="#_ednref7">[vii]</a> <em>R.W. Beck v. Job Line Constr., Inc.</em>, 122 Idaho 92, 96, 831 P.2d 560, 564 (Ct. App. 1992) (internal citations omitted).</p> </div> <div> <p><a href="#_ednref8">[viii]</a> <em>See Perry v. Payne</em>, 66 A. 553, 557 (Pa. 1907).</p> </div> <div> <p><a href="#_ednref9">[ix]</a> <em>See Jones v. Sun Carriers, Inc.</em>, 856 F.2d 1090 (8th Cir. 1988).</p> </div> </div> Tue, 09 Jul 2013 16:52:20 MDT Herbicide Drift http://www.beardstclair.com/blog-post/herbicide-drift.html <div> <p class="Body1"><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="Lance J. Schuster" width="150" height="199" /></p> <p class="Body1">It is not at all uncommon to see a crop-dusting aircraft flying low spraying herbicides on farm fields. Even more common is a tractor with a tank and long booms that extend over 100' and spray herbicides or even fertilizer.</p> <p class="Body1">But what happens when that spraying occurs and the wind is blowing and your crops or garden or trees are affected by an herbicide? What happens when those chemicals drift onto your property and damage your property?</p> <p class="Body1">The law states that you may be compensated for the damages to your crops as the result of herbicide drift.</p> <p class="Body1">For example, a Bingham County jury recently awarded $187,000 in damages to a farmer who suffered losses to his potato crop as the result of herbicide drift. The farmer sued an aerial application company that had flown over adjoining grazing land. The farmer was able to show at trial that the wind direction and a cold air inversion led to herbicide drifting onto his potato crop.</p> <p class="Body1">Herbicide (and pesticide) applicators are responsible for managing and controlling drift of the product they are applying. If is too windy applicators should not apply their product as it may drift onto neighboring property. In addition, other factors such as temperature and humidity may affect the application process.</p> <p class="Body1">Applicators also have a responsibility to make sure that the application of product does not affect streams and rivers and drinking supplies. Generally, commercial applicators must be licensed by the State of Idaho and must receive some training prior to working as an applicator.</p> <p class="Body1">If you believe that your crops may have been damaged by herbicide drift you should call an attorney before the crop is harvested so that tests can be conducted to determine the cause of the problem with the crop. Experts can examine and test your crop to determine the cause of the damage. </p> In short, herbicide drift can cause many thousands of dollars of damage to your crop. The law states that you are entitled to compensation for the damage.</div> Tue, 16 Jul 2013 15:25:42 MDT Gun Trusts http://www.beardstclair.com/blog-post/gun-trusts.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">My dad recently sent out a family-wide email wanting to know which of his five boys had an interest in his guns when his time on this earth ended. My immediate reaction was not, &ldquo;I want the bazooka,&rdquo; but rather &ldquo;Is dad about to die?&rdquo; You see my dad is the type of guy that could be terminally ill and he would not tell anyone about it. In this case, he was healthy but really did want to know whom he should transfer his guns to. To his credit, he was trying to take care of things ahead of time (hopefully many-many years ahead of time). Some of the guns in question were owned by his father and have great sentimental value.</p> <p class="Body1">My dad&rsquo;s inquiry caused me to think about the best way to transfer the guns. Federal and state gun control laws contain many prohibitions on the transfer and possession of guns. My dad lives in Washington and some of his sons, including me, reside out of state. We would be dealing with interstate transfers. Having missed 36 years of NRA meetings, I was not intimately familiar with federal gun transfer laws, but I knew enough to know that interstate transfers are problematic and often times illegal. There is a legal solution to this problem &ndash; gun trusts.</p> <p class="Body1">Gun trusts are designed to allow for the access and transfer of firearms without dealing with unnecessary red tape. Similar to trusts set up for the purposes of estate planning, a gun trust is established specifically to deal with guns, silencers, or other weapons subject to regulation under the National Firearms Act. A gun trust can protect you from unnecessary and unintended law-breaking while allowing you to transfer guns to those you desire.</p> <p class="Body1">Gun trusts are also helpful in dealing with situations in which you want to allow others to have shared access to your guns. Due to federal regulation, even allowing access can be problematic. The problems of federal regulation are solvable with a gun trust. </p> <p class="Body1">Unlike Lieutenant Commander Galloway from <em>A Few Good Men</em>, I was not sick the day they taught law at law school. However, I must admit I am no expert on the particulars of lawfully transferring firearms or drafting gun trusts. There are local attorneys who can assist you in dealing with your guns including my partner, Michael Brown. Not only an excellent tennis player with a defensive game akin to Novak Djokovic, Michael is an accomplished estate planner who can assist you in drafting a gun trust. </p> <p class="Body1">Do not let the potential for federal interference obstruct your desire to carry on the legacy of your guns. Get a gun trust. By doing so you will be able to trust that your guns will be safe for generations to come.</p> Mon, 29 Jul 2013 11:29:40 MDT Congratulations to team Cornerstone Financial/Beard St. Clair Gaffney for a great showing at the annual Great Race for Education. http://www.beardstclair.com/blog-post/great-race-for-education.html <div><img src="http://www.beardstclair.com/wwwroot/userfiles/images/2013_great_race.jpg" alt="" width="350" height="328" /></div> Mon, 29 Jul 2013 12:17:22 MDT Easements http://www.beardstclair.com/blog-post/easements.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>Many Idaho farms and ranches are surrouded by public lands, or by private land. Many times the only way to access a farm or ranch is by crossing public land, or your neighbor's land. What happens when your neighbors put up no trespassing signs or block access across their land? What are your options? Easements are usually the answer.</p> <p>Disputes between landowners often involve easements, which are a &ldquo;right of way.&rdquo; An easement is a limited interest in land that allows one to use another&rsquo;s property in a particular manner. For example, a farmer might have an easement that allows him to cross his neighbor&rsquo;s field to get to his property. Because access is often a cause of dispute between landowners, it is important to note the different ways that they can be formed.</p> <p><strong>Express Easement: </strong> Most easements are express easements which are created by written documents. However, even though the easement may be written, disputes may arise as circumstances change that the drafters of the easement did not anticipate. Having an attorney review or draft an express easement to include all of the current and possible future uses of an easment before purchasing or selling a property can help to alleviate future problems.</p> <p><strong>Prescriptive Easement</strong>: Prescriptive easements are granted when one uses another&rsquo;s property for a particular purpose for an extended period of time without the owner&rsquo;s permission. The requirements to obtain a prescriptive easement are as follows: one must be use the land without the owner&rsquo;s permission; one must use the land often enough that the owner would know of the use; the actions must be open, notorious and continuous under a claim of right, and; for a period twenty years. Prescriptive easements are often used to claim road rights of way.</p> <p><strong>Easement by Necessity</strong>: The common scenario in which an easement by necessity is granted is when a property is landlocked from public roads, and an easement is necessary so that the landowner can get access to his or her property. While the possible scenarios are endless, the main requirement is that an easment must be necessary. Inconvenience is not enough. Having to drive another 20 minutes to access your property through public roads is not a necessity. However, if the only way to get to your property is by catapulting yourself over your neighbor&rsquo;s land, you may have a good case for an easement by necessity.</p> <p><strong>Easement by Implication</strong>:<strong> </strong>An easement by implication requires a showing that the property needing an easement and the property over which an easment is claimed were both owned by the same person. In addition, there must be a continuous use of an access over the neigbhoring property and reasonable necessity of an easement.</p> <p>The law recognizes a number of different easements and different methods for creating an easement. If you are having issues in accessing your property consult with your lawyer regarding an easement.</p> Mon, 05 Aug 2013 10:33:58 MDT John M. Avondet Receives BV Distinguished Rating http://www.beardstclair.com/blog-post/john-m-avondet-receives-bv-distinguished-rating.html <p><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-08-08_at_12.57.15_pm.png" alt="" width="150" height="200" /></p> <p><span>Beard St. Clair Gaffney is pleased to announce that John M. Avondet has been awarded the BV&reg; Distinguished&trade; Peer Review Rating by Martindale-Hubbell&reg;, the country&rsquo;s leading legal directory. This is a well-deserved achievement and demonstrates John&rsquo;s strong legal ability and high professional ethics.</span></p> <p><span><br /></span></p> <p><span><img src="http://www.beardstclair.com/wwwroot/userfiles/images/john_m_avondetmh.png" alt="" width="200" height="110" /><br /></span></p> Thu, 08 Aug 2013 14:59:11 MDT Know the Law on Waterway Rights http://www.beardstclair.com/blog-post/know-the-law-on-waterway-rights.html <p><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="Lance J. Schuster" width="150" height="199" /></p> <p>Water in Idaho and many of the western states is managed under the Prior Appropriation Doctrine. This doctrine follows the principle of "first in time is first in right." That is, a priority is established for water rights where water was first diverted and put to beneficial use.</p> <p>"Diverting" water and delivering it to landowners is the business of irrigation dictricts. While many irrigation districts own canals and deliver water through those canals, myriads of lateral ditchs are privately owned by the landowners who use those ditches to deliver water from the canal to the property being irrigated.</p> <p>Idaho law recognizes that a landowner may claim a right-of-way across the land of another for purposes of obtaining water for irrigation. <em>Idaho Code &sect; 42-1102. </em>The right-of-way is for purposes of building a canal, ditch or conduit to deliver water to the land being irrigated.</p> <p>The right-of-way includes the right to enter upon the land across which the right-of-way extends for the purpose of "cleaning, maintaining and repairing the ditch, canal or conduit." <em>Idaho Code &sect; 42-1102. </em>The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal in order to clean or maintain it.</p> <p>The existence of a visible ditch, canal or conduit is notice to the owner of the land that his or her neighbor has a right-of-way for purposes of irrigation. <em>Idaho Code &sect; 42-1102.</em></p> <p>The owner of a water right will typically negotiate with his neighbors as to the installation of a ditch or canal. However, in case a landowner refuses, Idaho law gives the person who desires a right-of-way the right to proceed in eminant domain so as to condemn adjoining property and obtain a right-of-way for purposes of a ditch, canal or conduit capable of delivering water.</p> <p>In short, the owner of a water right has the ability under Idaho law to claim a right-of-way across his neighbor's property in order to build a ditch, canal or conduit so as to be able to deliver water to his property. Water is the lifeblood of Idaho agriculture. Canals, ditchs and conduits are the means whereby water is delivered and is protected by Idaho law.</p> Mon, 09 Sep 2013 12:34:50 MDT Embracing Litigation http://www.beardstclair.com/blog-post/embracing-litigation.html <p><img style="float: right; margin: 5px;" title="Jeffrey D. Brunson" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="Jeffrey D. Brunson" width="150" height="199" /></p> <p>I sue people. In a conservative place like Idaho that job description could cause me to feel like an outcast. Ralph, from the animated movie <em>Wreck it Ralph</em>, captures this sentiment nicely. Ralph is a video game villain akin to the ghosts from <em>Pac Man</em>. In his video game, his job is to wreck things. In the movie Ralph states, &ldquo;It&rsquo;s kind of hard to do your job when no one likes you for doing it.&rdquo;</p> <p>Society at large dislikes litigation lawyers. They have the reputation of charging too much, causing unnecessary problems, filing frivolous claims, ambulance chasing, and representing unethical businesses and people. Because of this animosity toward litigators, people often resist the legal system as a means of resolving disputes.</p> <p class="Body1">At times I feel like Ralph. It can be hard to do my job when no one likes me for doing it. At a support group involving other like-minded video game villains, the villains all repeat the mantra, &ldquo;I&rsquo;m bad, and that&rsquo;s good. I will never be good, and that&rsquo;s not bad. There&rsquo;s no one I&rsquo;d rather be than me.&rdquo; </p> <p class="Body1">Fortunately, I do not need a support group to see the vital and positive role litigation plays in our society. Yes, you read that correctly, litigation plays a positive role in our society. Litigators fight to protect, enforce, and defend peoples&rsquo; property rights. They seek to enforce the law and at times create new laws for the benefit of society. They prevent unethical business dealings and promote fairness in the judicial system. If there were no litigators, the system would erode and there would not be a forum for people to adequately protect their rights. Without confidence in the legal system, businesspeople would be less willing to take the kinds of risks that lead to economic productivity and prosperity.</p> <p class="Body1">For example, say you enter a business deal with Peter Promise to buy 100 widgets. You pay Peter in full and he delivers defective widgets. You try and make things right with Peter, but he ignores you. You go to the police and they tell you &ldquo;it&rsquo;s a civil matter.&rdquo; You could walk away or you could hire a litigator to sue Peter. If you do nothing then Peter will likely continuing making promises he does not deliver on. However, if you sue him you can be made whole and you can expose Peter for the over-promising fraud that he is. Is it morally wrong to engage in litigation or is it morally wrong to do nothing and allow a predatory businessman such as Peter to continue to hurt others?</p> <p class="Body1">Litigation&rsquo;s bad reputation is earned and reaffirmed by the conduct of a minority of lawyers. Problems arise when your litigator turns out to be of the same moral code as Peter Promise. Carefully selecting a litigator is key and going with the lowest bidder is usually not advisable. Interviewing more than one potential lawyer and researching a lawyer&rsquo;s reputation before you hire will help you hire the right lawyer.</p> <p class="Body1">By the end of <em>Wreck it Ralph</em>, one realizes that Ralph is not &ldquo;bad&rdquo; but rather plays an important and necessary role for everyone&rsquo;s well being. As a litigator, call me bad or call me good, but there is no one I&rsquo;d rather be than me (except maybe the general manager of the Boston Red Sox).</p> Mon, 16 Sep 2013 14:49:51 MDT Bee Aware of the Law http://www.beardstclair.com/blog-post/bee-aware-of-the-law.html <div> <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>There are an estimated 115,000 - 125,000 beekeepers in the United States. Most of those beekeepers are hobbyists with less than 25 hives. Commercial beekeepers are typically those with more than 300 hives. Commercial beekeeping operations are often family businesses that are handed down from generation to generation.</p> <p>In 2012 over 147 million pounds of honey was produced in the United States. It is an important agricultural product in the State of Idaho, and elsewhere.</p> <p>The Idaho Department of Agriculture is authorized by statute to protect Idaho's bee industry. The Department of Agriculture provides a qualified inspection service for certifying bees for transport into other states for pollination, and works to minimize disease and bee pests within the state.</p> <p>Every beekeeper maintaining colonies with the State of Idaho (except for hobbyist beekeepers) is required by statute to pay an annual registration fee of $10, and $.10 per colony for every colony over fifty colonies. <em>Idaho Code &sect; 2510</em>. Beekeepers who wish to move colonies into Idaho temporarilly for pollination purposes must pay a fee and apply for a permit and have their bees inspected for infectious diseases. Fees collected by the Department are used to fund the inspection services provided by the state.</p> <p>The director of the Department of Agriculture is further authorized by state law to destroy disease infected bees, or exotic strains of bees. <em>Idaho Code &sect; 22-2504. </em>All owners or keepers of bees are required by law to follow the directions of the Department of Agriculture in regard to removing or destroying diseased bees. <em>Idaho Code &sect; 22-2505. </em>The director may enter the premises of any beekeeper so as to inspect bees or equipment. <em>Idaho Code &sect; 22-2506.</em></p> <p>Idaho law additionally requires all beekeepers to post their name, address and telephone number on apiaries (i.e. a collection of beehives).</p> Any person who violates Idaho's beekeeping laws may be in a sticky mess. They may be charged with a misdemeanor, and could pay fines or serve time in jail. So, bee aware of the law!</div> Mon, 07 Oct 2013 13:25:29 MDT Be on the Lookout for Fugitive Dust http://www.beardstclair.com/blog-post/fugitive-dust.html <p><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="Lance J. Schuster" width="150" height="199" /></p> <p>The Idaho Right to Farm Act protects Idaho farmers and ranchers in their farming activities. However, that protection only applies to the extent that the farming operation does not break the law. There is no protection under the right to farm law for the "improper or negligent operation of an agricultual operation." <em>Idaho Code &sect; 22-4505. </em>This is defined to mean that the agricultural operation is not undertaken "in conformity with federal, state and local laws and regulations or permits, and adversely affects the public health and safety." <em>Idaho Code &sect; 22-4502(4).</em></p> <p>Creating large amounts of dust in your farming and ranching operation can break the law. Idaho regulates so-called &ldquo;fugitive dust.&rdquo; Like its name implies, fugitive dust is dust that has escaped into the air because of human activities, such as driving a truck down a dirt road or harvesting grain. Fugitive dust consists of small particulate matter suspended in the air.</p> <p>Particulates are dangerous to humans. When inhaled particulates can travel into the lungs and cause lung damage, respiratory illness, and premature death. Particulates are most harmful to children, adults who are active outdoors, and those with respiratory and cardiovascular diseases.</p> <p>The Idaho Department of Environmental Quality requires that all &ldquo;reasonable precautions&rdquo; be taken to prevent particulates from becoming airborne. Reasonable precautions include &ldquo;using water or chemical, applying dust suppressants, using control equipment, covering trucks, paving, and removing materials.&rdquo;</p> <p>Farmers and ranchers typically raise a little dust during normal agricultural activities. Harvesting crops creates dust. Working cattle creates dust. Plowing, discing and tilling create dust. However, farmers and ranchers do not typically take extraordinary efforts to reduce fugitive dust.</p> <p>Under the regulations of the Idaho Department of Environmental Quality farmers and ranchers could be fined as much as $10,000 for a violation of Idaho&rsquo;s air pollution rules. While apparently rare, some fines have been issued. One Idaho farmer was reportedly fined by the Idaho Department of Environmental Quality for the dust created while grinding grain.</p> <div><span style="color: #000000;">However, before you you drive a water truck behind your combine, be advised that Idaho legislators have become aware of the issue and vow to change the law at the next legislative session. Meanwhile, farmers and ranchers should be on the lookout for loose cattle, wandering sheep, and fugitive dust.</span></div> Mon, 11 Nov 2013 09:33:30 MST The Appeal of Zeal http://www.beardstclair.com/blog-post/the-appeal-of-zeal.html <p class="Body1"><img style="float: right; margin: 5px;" title="Jeffrey D. Brunson" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="Jeffrey D. Brunson" width="150" height="199" /></p> <p class="Body1"><span style="color: #000000;">Letterman or Leno? That was the assignment handed out in my freshman year college English course. I was to debate which late-night talk show host was better against another student. We walked to the front of the class and exchanged oratorical parries and deflections. At the end of the carnage, my opponent said something to the effect of, &ldquo;Hey man it&rsquo;s not World War III; we&rsquo;re just talking about late-night talk show hosts here.&rdquo; As my 12-year-old daughter says about everything, &ldquo;Awkward!&rdquo; In my mind, I was passionately and zealously advancing my position. To my fellow student I was creating uncomfortable conflict in regards to an issue that was just not that important and I should give it a rest.</span></p> <p class="Body1"><span style="color: #000000;">This may come as a shock to some, but lawyers have ethical rules that govern their behavior. In the preamble to the ethical rules it provides, &ldquo;As advocate, a lawyer zealously asserts the client&rsquo;s position under the rules of the adversary system.&rdquo; (I.R.P.C. Preamble [2].) A lawyer has an ethical duty to fight passionately for his or her client&rsquo;s position. Too often there is a stigma attached to a lawyer who is passionately representing his or her client. A lawyer&rsquo;s primary focus should not be to make opposing counsel happy and comfortable, but instead to put his or her client in the best position possible.</span></p> <p class="Body1"><span style="color: #000000;">Frequently, lawyers use their passion not for advancing their client&rsquo;s position, but rather for forcing their client to settle the case. While settlement may be a good result in some instances, the desire to settle should not dominate a lawyer&rsquo;s efforts in handling a case. </span></p> <p class="Body1"><span style="color: #000000;">In a system designed to deal with conflict, conflict is going to happen. Combatants in the legal arena should be equipped to deal with this conflict and not allow perceived discomfort to prevent them from zealously advancing the cause. Even judges at times can seem uncomfortable with passionate representation. A lawyer must be ready and willing to step into these situations. In fact, a good lawyer should be causing these &ldquo;awkward&rdquo; situations. </span></p> <p class="Body1"><span style="color: #000000;">The lawyer one sees at church on Sunday should not be the lawyer one sees in the courtroom. I am not suggesting that a lawyer should be running around the courtroom screaming &ldquo;Did you order the Code Red?!&rdquo; but rather that a lawyer should be passionately fighting on his or her client&rsquo;s behalf. At times the comment, &ldquo;he cares a little too much about that issue&rdquo; is used to characterize someone who is overly excited about a subject. A good lawyer should &ldquo;care a little too much&rdquo; about his or her client&rsquo;s case.</span></p> <p class="Body1"><span style="color: #000000;">Zealous representation is not only okay; it should be desired and applauded. A lawyer who seems checked out, distracted, or disengaged is not a lawyer worth hiring. On the other hand, a lawyer who treats your matter like it is World War III is one worth having on your team. A zealous advocate may not be able to solve all of your problems, but, at a minimum, should at least be able to convince you of the incontrovertible truth that what was true in my freshman English course is still true today &ndash; Letterman is better than Leno.</span></p> Mon, 11 Nov 2013 09:52:12 MST Brand Inspection is Vital http://www.beardstclair.com/blog-post/brand-inspection-is-vital.html <div> <p><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="Lance J. Schuster" width="150" height="199" /></p> <p>Some cows have them. Some cows don't. Regardless of whether or not your cows are branded, the law requires brand inspections when cattle are transfered, sold, or slaughtered.</p> <p>The Idaho State Brand Inspector is entrusted with inforcing laws relative to the identificaton and inspection of livestock with an emphasis on reducing the loss of livestock by theft. <em>Idaho Code &sect; 25-116. </em>In short, a brand inspector inspects cattle (and other livestock) when they are sold, transported, or slaughtered so as to reduce the liklihood of cattle thieves easily converting cattle to cash.</p> <p>A person selling or transfering livestock has the primary responsibility to obtain a brand inspection. <em>Idaho Code &sect; 25-1120(2). </em>However, if the seller doesn't do it, the buyer is obligated by law to arrange for a brand inspection. <em>Id. </em>A fee of $2.71 per head is charged for a brand inspection, with a minimum fee of $20 charged when a brand inspector has to travel to do an inspection.</p> <p>The livestock to be inspected should be gathered in a corral and be ready for inspection prior to the arrival of the inspector. Brand inspectors are not responsible for gathering livestock prior to inspection.</p> <p>Idaho law also requires a brand inspection not more than ninety-six (96) hours prior to slaughtering an animal, whether for commercial purposes or for personal consumption. <em>Idaho Code &sect; 25-1120(1).</em></p> <p>Any person transporting or driving livestock outside the boundaries of Idaho are required to obtain a brand inspection. In addition, any person transporting livestock which they do not own within the state require a brand inspection, or a transportation permit. <em>Idaho Code &sect; 25-1121.</em> Failure to obtain the required brand inspection can result in the detention of your cattle.</p> <p>Idaho citizens who are the owners of a brand also have the unique right to require livestock in transit, or which are about to be shipped, to be inspected to determine whether or not a brand inspection has been completed. <em>Idaho Code &sect; 25-1126. </em>In other words, a brand-owning rancher can inspect his neighbors herd to make sure that none of the rancher's cows are being mistakenly hauled off to the auction.</p> <p>If you fail to obtain a brand inspection when required you may receive an infraction for a first offense, and a misdemenor citation for the second offense, punishable by a fine not to exceed $300, and/or six months in jail.</p> <p>Before you peddle a few steers to your neighbor, make sure you call your local brand inspector and request an inspection. It's the law of the land.</p> </div> Mon, 09 Dec 2013 11:40:02 MST Beard St. Clair Gaffney Welcomes Kent W. Gauchay http://www.beardstclair.com/blog-post/beard-st-clair-gaffney-welcomes-kent-w-gauchay.html <div> <p><span>Beard St. Clair Gaffney is pleased to announce that Kent W. Gauchay has joined the firm. Kent has practiced law here in Idaho for over 30 years. He has extensive experience representing clients in business transactions, real estate, debt collection, family law issues, and complex litigation. Kent&rsquo;s broad experience and expertise brings new depth to the firm&rsquo;s already-accomplished team.</span></p> <p><span><img title="Kent W. Gauchay" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2014-01-08_at_12.35.58_pm.png" alt="Kent W. Gauchay" width="450" height="328" /><br /></span></p> </div> Wed, 08 Jan 2014 12:38:19 MST Immigration and Temporary Workers http://www.beardstclair.com/blog-post/immigration-and-temporary-workers.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>Hispanics are vital to the success of Idaho farms and ranches. Hispanics fill many hard-working jobs that other people are unwilling to do. According to government data as many as 1/3 of all Idaho farm workers are Hispanic. Many are U.S. citizens. Others have immigrated to the United States legally, and some have immigrated illegally.</p> <p>The United States has an immigration system that limits the number of lawful permanent immigrants. Most new immigrants to the United States are family members of citizens, such as spouses, children, or parents. </p> <p>However, the United States also provides various ways for immigrants with valuable skills to come to the United States on either a temporary or a permanent basis. There are more than 20 types of visas for temporary nonimmigrant workers. Examples include L visas for intracompany transfers, P visas for athletes, R visas for religious workers, and H visas for special occupations such as nursing and agriculture. </p> <p>Most temporary workers are sponsored by a specific employer for a specific job offer and typically have limitations on the number of visas issued.</p> <p>The H-2A temporary agricultural program provides farmers and ranchers with a means to hire foreign workers when they anticipate a shortage of domestic workers. A farmer or rancher must file an application with the U.S. Department of Labor stating that there are not sufficient workers who are willing, able, qualified, and available, and that the employment of foreign workers will not adversely affect the wages and working conditions of other similarly employed U.S. workers.</p> <p>Any farmer or rancher who has been certified for a specific number of H-2A jobs must have initially attempted to find domestic workers. Even after H-2A workers are recruited an employer must continue to engage in efforts to recruit domestic workers. Employers must offer U.S. workers terms and working conditions which are just as favorable as those offered to H-2A workers.</p> <p>Temporary foreign workers can provide Idaho farmers and ranchers with skilled workers for tough jobs.</p> Mon, 10 Feb 2014 09:37:39 MST The Business of the BBB http://www.beardstclair.com/blog-post/the-business-of-the-bbb.html <p class="Body1"><span style="color: #000000;"><img style="float: right; margin: 5px;" title="Jeffrey D. Brunson" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="Jeffrey D. Brunson" width="150" height="199" /></span></p> <p class="Body1"><span style="color: #000000;">Lawyers get things done. A truism apparently learned by my 10-year-old son. During a recent recess at school he used such knowledge in his negotiations with a local mom who was volunteering her time. The bell had rung and it was time to go back to class. My son decided he needed more time on the playground. The local mom volunteer, who happens to be a family friend, gently told him he needed to go back to class. Additional words were exchanged and ultimately my son proclaimed, &ldquo;My dad is a lawyer, I can convince you!&rdquo; His genetic link to legal prowess notwithstanding, instead of more time on the playground he got a whole lot of laughter and a quick trip back to class.</span></p> <p class="Body1"><span style="color: #000000;">While lawyers may get things done, hiring a lawyer may not be the best way to handle all disputes and issues that arise in life and in your business. One such avenue that is not typically discussed by lawyers is the Better Business Bureau (BBB). In the interest of full disclosure, the author is on the board of the Snake River region of the BBB. </span></p> <p class="Body1"><span style="color: #000000;">The BBB is a non-profit organization whose mission is &ldquo;to be the leader in advancing marketplace trust.&rdquo; Its vision is to have &ldquo;an ethical marketplace where buyers and sellers can trust each other.&rdquo; It accomplishes its mission by:</span></p> <ul> <li><span style="color: #000000;">Creating a community of trustworthy businesses;</span></li> <li><span style="color: #000000;">Setting standards for marketplace trust;</span></li> <li><span style="color: #000000;">Encouraging and supporting best practices;</span></li> <li><span style="color: #000000;">Celebrating marketplace role models; and</span></li> <li><span style="color: #000000;">Denouncing substandard marketplace behavior.</span></li> </ul> <p class="Body1"><span style="color: #000000;">While the BBB is probably not the best avenue for major legal disputes between businesses, it is a very effective way to deal with more minor business disputes. Going through the BBB complaint process can arm a business with information and prepare it for small claims court should the need arise. The complaint process contributes to a business&rsquo;s BBB rating. Most companies take their BBB rating seriously, which validates the complaint process and promotes the BBB mission of having an ethical marketplace. </span></p> <p class="Body1"><span style="color: #000000;">Responsible businesses want to know about customer complaints so they can address them and make any necessary changes. The entire design of the BBB is to allow that to happen. A business can become accredited by the BBB and receive additional benefits including dispute resolution services.</span></p> <p class="Body1"><span style="color: #000000;">Businesses should give the BBB a chance to help. The website is a good place to start: www.snake-river.bbb.org. Convinced yet? You should be, I am a lawyer after all and we get things done &ndash; just ask my son.</span></p> Mon, 24 Feb 2014 09:31:51 MST Michael D. Gaffney Selected to Serve on IF Citizen Review Committee http://www.beardstclair.com/blog-post/michael-d-gaffney-selected-to-serve-on-if-citizen-review-committee.html <p><span style="font-family: 'times new roman', times; font-size: small;"><strong style="font-family: 'book antiqua', palatino; font-size: small;">Members Named &amp; Kickoff Meeting Scheduled for 1st Round of Citizen Review Committees </strong></span></p> <p><span style="font-family: 'times new roman', times; font-size: small;"><span style="color: #000000;"><strong>IDAHO FALLS, Idaho: </strong>Members of the first round of Citizen Review Committees will meet for the first time during a kickoff meeting on <strong>Saturday, February 22</strong><strong>nd</strong><strong>, 2014 from 8:00 a.m. &ndash; 10:00 a.m. </strong>in Council Chambers located inside the City Annex Building, 680 Park Avenue. </span> <span style="color: #000000;">In mid-December, Mayor Casper called for applications from city residents to review basic functions and budget processes of city divisions to improve efficiencies and service delivery. </span> <span style="color: #000000;">Four of the city&rsquo;s eleven divisions will be examined over the next three months, including the Idaho Falls Library, Idaho Falls Regional Airport, Municipal Services, and Planning and Building. The other divisions will be evaluated in the next two years. </span> <span style="color: #000000;">Applicants with various backgrounds and experience were selected based on their area of interest and the criteria of living within city limits. Those who would stand to receive a direct financial benefit from a particular city division were not selected. </span></span></p> Tue, 04 Mar 2014 16:38:21 MST Michael W. Brown Admitted to Utah State Bar http://www.beardstclair.com/blog-post/michael-w-brown-admitted-to-utah-state-bar.html <div><span style="color: #000000;">Beard St. Clair Gaffney is please to announce that attorney Michael W. Brown has been admitted to the Utah State Bar. With attorneys licensed in Idaho, Wyoming, Utah, Colorado, Oregon, and Washington we are positioned to offer our business clients regional representation.</span></div> Wed, 05 Mar 2014 09:11:33 MST The Nuts and Bolts of the Farm Bill http://www.beardstclair.com/blog-post/the-nuts-and-bolts-of-the-farm-bill.html <div class="small"><span style="color: #000000;"><img style="float: right; margin: 5px;" title="Lance J. Schuster" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="Lance J. Schuster" width="150" height="199" /> The first farm bill was passed during the Great Depression in order to give financial assistance to farmers who were struggling due to an excess crop supply, which in turn created low prices. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">Subsequent versions of the farm bill have stabilized prices for farm products and secured the food supply for Americans.</span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">On February 7, 2014 the President signed into law the latest installment of the farm bill. Most of the funding under the farm bill will go toward nutrition programs, while the remainder will go to commodities, conservation programs, university research and risk management. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">For Idaho farmers the benefit will be that crop insurance will become cheaper. The premiums will be less, and benefits will be paid at lower levels of risk. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">In exchange for better crop insurance the government is ending the practice of guaranteed payments that farmers receive regardless of harvest quality or crop prices. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">The farm bill also merges or outright ends many USDA programs, cuts approximately $8 billion in food stamp funding, establishes a new wool trust fund, discusses emergency food supplies, and addressed farm-raised fish and industrial hemp. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">The 2014 farm bill additionally provides additional funding for farmers markets, local food promotion, and community food projects. The farm bill also authorizes a number of "pilot projects" and twenty different grant programs. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">Since fewer and fewer people are taking up farming, the law also puts special focus on new and beginning farmers and ranchers, including our nations veterans, so that we can ensure a new generation of farmers and ranchers. </span></div> <div class="small"> </div> <div class="small"><span style="color: #000000;">Lastly, it took lawmakers more than three years to write and approve the 959-page bill. Maybe if they get started now they will have the next farm bill finished when we need it in another five years! </span></div> Mon, 10 Mar 2014 09:54:05 MDT March Madness Networking Event http://www.beardstclair.com/blog-post/march-madness-networking-event.html <div><img title="March Madness Networking Event" src="http://www.beardstclair.com/wwwroot/userfiles/images/bsg_march_madness_party.jpg" alt="March Madness Networking Event" width="600" height="373" /></div> Mon, 10 Mar 2014 10:29:43 MDT Beard St. Clair Gaffney Welcomes Terri L. Ackerman http://www.beardstclair.com/blog-post/beard-st-clair-gaffney-welcomes-terri-l-ackerman.html <div><span style="color: #000000;"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/terri.png" alt="" width="150" height="200" /></span></div> <div class="small" style="text-align: left;"><span style="color: #000000;">Beard St. Clair Gaffney is pleased to announce that Terri L. Ackerman has joined the firm as a shareholder. Terri has more than twenty years of experience in sophisticated transactional and litigation matters. Terri moved to Idaho Falls from Philadelphia, where she was a partner at Cozen O'Connor, a global, full-service law firm. While a partner at Cozen O'Connor, Terri gained significant experience, both in a hospital setting and in a products liability setting. She worked on a broad range of complex and high-exposure matters in the areas of litigation management, employment law, business law, business litigation, commercial litigation, construction litigation, insurance coverage law, fine art losses, subrogation law, aviation law and insurance regulatory matters.</span></div> <div class="small" style="text-align: left;"> </div> <div class="small" style="text-align: left;"><span style="color: #000000;">Terri earned her Juris Doctor <em>Cum Laude</em> from Villanova Law School, as well as two Bachelor of Arts Degrees <em>Summa Cum Laude</em> from Clarion University in Pennsylvania.</span></div> Wed, 23 Apr 2014 09:15:40 MDT Immigration Seminars for HR Professionals and Business Lawyers http://www.beardstclair.com/blog-post/immigration-seminars-for-hr-professionals-and-business-lawyers.html <div><img src="http://www.beardstclair.com/wwwroot/userfiles/images/immigration_seminars.jpg" alt="" width="650" height="704" /></div> Wed, 04 Jun 2014 16:45:10 MDT Business Defamation: Keep it to yourself http://www.beardstclair.com/blog-post/business-defamation-keep-it-to-yourself.html <p class="Body1"><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_12.50.03_pm.png" alt="" width="150" height="199" /></p> <p class="Body1">Sometimes I catch my 12 year-old daughter intensely muttering things to herself. This typically occurs after my wife or I have committed some perceived wrong, thereby wrecking her pre-teen life. When asked what she is saying she always says, &ldquo;nothing.&rdquo; My daughter wisely knows that the things she is saying to herself will get her in trouble if spoken to her loving parents.</p> <p class="Body1">Things we say out loud can get us all in trouble. Defamation is what is known in the legal world as a tort. In order to prove defamation a plaintiff must show that (1) information was communicated concerning the plaintiff to others; (2) the information was defamatory or untrue; and (3) that the plaintiff was damaged because of the communication. Defamation done in writing is called libel and spoken defamation is called slander.</p> <p class="Body1">For example, let&rsquo;s say Rich Rancher cuts Fred Farmer off in traffic. Upset at Rich, Fred Farmer tells Craig Coffee that Rich Rancher uses illegal performance enhancing drugs to beef up his beef. As a result Rich Rancher loses his cattle contract with a major grocery chain. Rich Rancher can sue Fred Farmer for defamation.</p> <p class="Body1">This example also constitutes what could be considered defamation per se. Defamation per se removes the element of having to show specific harm or damages. Defamation per se exists if someone spreads false information that a person or business has engaged in: 1) criminal conduct; 2) immoral acts (such as adultery), or 3) dishonest activity as a business person.</p> <p class="Body1">Fred Farmer has implicated Rich Rancher in a criminal offense (illegal performance enhancing drugs) and improper business dealings (using the drugs to beef up beef). Rich Rancher just needs to prove that Fred Farmer made the statement to Craig Coffee and that the statement is not true and he can be awarded significant damages for defamation regardless of whether he can show actual damages. Fred Farmer may have a valid defense that his statement was true, but he will be required to prove that Rich Rancher was using illegal performance enhancing drugs to beef up his beef. The process of proving the truth of the statement can be a lengthy and expensive ordeal.</p> <p class="Body1">Often times, those involved in business disputes want to proclaim to others about the actions of a partner in business. To do so runs a high risk due to the fact that these types of statements often either implicate the partner in a crime or attribute the partner with improper business dealings. For example, saying, &ldquo;my partner is a thief,&rdquo; if false, is defamation per se. Proving the falsity or truthfulness of such a statement can be a costly legal battle. By saying those words to others, a business person involved in a dispute is giving leverage to the other side and could end up getting less out of the dispute as a result.</p> <p class="Body1"><span style="color: #262626;">The best advice is to follow the example of my 12-year-old and keep it to yourself. The appearance of schizophrenia notwithstanding, sometimes talking to yourself beats speaking your mind. </span></p> Mon, 11 Aug 2014 08:38:24 MDT Ag-Gag Law http://www.beardstclair.com/blog-post/aggag-law.html <p><img style="float: right; margin: 5px;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></p> <p>On February 28, 2014 a new law protecting Idaho farmers and ranchers was signed into law. Idaho Code &sect; 18-7402 now makes it illegal to interfere with agricultural production. Often referred to as the "ag-gag" bill, the law protects Idaho farmers and ranchers and makes it a crime for a person to:</p> <p>&bull; Enter upon a farm or ranch by force, threat, misrepresentation, or trespass;</p> <p>&bull; Obtain records of a farm or ranch by force, threat, misrepresentation or trespass;</p> <p>&bull; Obtain employment by force, threat or misrepresentation with the intent to cause economic injury or other injury to property;</p> <p>&bull; Without the owners consent, enter a farm or ranch not open to the public and make audio or video recordings; or</p> <p>&bull; Intentionally cause physical damage or injury to farm operations, livestock, crops, personnel, equipment, buildings or premises</p> <p>A person found guilty of committing the crime of interference with agricultural production will be guilty of a misdemeanor and may be jailed for up to one year and given a fine of up to $5,000. In addition, any person found guilty of the crime is required to pay restitution in an amount equal to twice the value of the damage resulting from the crime.</p> <p>Several groups, including The Animal Legal Defense Fund, American Civil Liberties Union of Idaho (ACLU) and People for the Ethical Treatment of Animals have sued the State of Idaho claiming that the law is unconstitutional. Idaho has requested that the federal courts dismiss the lawsuit.</p> <p><span style="color: #262626;">Ultimately the Courts will review the law and decide whether Idaho farmers and ranchers are protected from agricultural interference.</span></p> Mon, 11 Aug 2014 09:19:38 MDT Drafting and Negotiating Employment Contracts Under Idaho Law http://www.beardstclair.com/blog-post/drafting-and-negotiating-employment-contracts-under-idaho-law.html <div><img title="Employment Contracts" src="http://www.beardstclair.com/wwwroot/userfiles/images/employment_contract_ad.jpg" alt="" width="700" height="653" /></div> Thu, 28 Aug 2014 09:37:29 MDT Encroachments on Easements http://www.beardstclair.com/blog-post/encroachments-on-easements.html <div> <p><span style="color: #000000;"><img style="margin: 5px; float: right;" src="http://www.beardstclair.com/wwwroot/userfiles/images/screen_shot_2013-01-30_at_10.27.30_am.png" alt="" width="150" height="199" /></span></p> <p><span style="color: #000000;">Eastern Idaho's climate is arid, with cold winters and hot dry summers. Most snowfall occurs in the surrounding mountains, and then melts in the spring and summer. Pioneers in Eastern Idaho harnessed those waters with canals and ditches that even today carry water to farms and ranches across the Snake River plain.</span></p> <p><span style="color: #000000;">Without irrigation water, farming and ranching in Eastern Idaho would not be possible.</span></p> <p><span style="color: #000000;">To protect the rights of irrigators the law recognizes that canal companies, farmers, and ranchers have easements or rights-of-way for transporting water. Canals and ditches require access for operation and maintenance. Without regular maintenance canal banks can fail and neighboring homes and subdivisions may be flooded.</span></p> <p><span style="color: #000000;">Idaho law prohibits encroachments on easements or rights-of-way that interfere with the operation and maintenance of ditches and canals. Common examples of encroachments that can cause interference include:</span></p> <p><span style="color: #000000;"> &bull; Trees and shrubs</span></p> <p><span style="color: #000000;"> &bull; Fences and gates</span></p> <p><span style="color: #000000;"> &bull; Barns or sheds</span></p> <p><span style="color: #000000;"> &bull; Roads</span></p> <p><span style="color: #000000;"> &bull; Utilities</span></p> <p><span style="color: #000000;">Under Idaho law encroachments that are placed in such easement or right-of-way, without express written permission of the owner of the easement or right-of-way, will be removed at the expense of the person causing or permitting the encroachment if the encroachment interferes with the use of the easement.</span></p> <span style="color: #000000;"> Perhaps the most common problem is with trees that must be trimmed or removed before they damage or destroy ditch banks and canals. Adjoining land owners have frequently complained when they discovered that trees and shrubs adjoining their property have been cut down by the canal company. Be advised that encroachments on easements are not allowed under the law, and irrigators are entitled to remove them.</span></div> Mon, 08 Sep 2014 09:22:57 MDT