Legal Commentary by Monte Vines

Category Archives: Litigation

Get at the Roots of a Family Business Conflict

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A family business can be a great thing. Aside from the income it can provide to family members–I’m including extended family in this discussion–it can allow them to participate together in some way in an income-generating enterprise. That could range from actually working side-by-side, to just being co-owners in a business, or any point along that spectrum of participation. And after one generation of a family has built up a business, they can get great satisfaction from passing it on to the next generations. Many family businesses have been very successful, not only financially but also in the intangible ways of generating and preserving family bonds and traditions.

But along with the possibility of happy success comes the potential for problems and conflict. Family businesses are subject not only to the normal business problems and conflicts, but also to the vast array of possible problems and conflicts that can arise in families. The mutual love and care that exists in many families can sometimes be the source of a good solution for conflicts as they arise in the business. But there are often other motivating forces in families, and extended family, aside from love and care. I won’t try listing them here, but just take a moment to think about it and I’m sure you’ll come up with many. Those forces can generate problems in a family business, and can make it harder to resolve the conflicts that arise in that business. Continue Reading

A “No-Contest” Clause—the Nuclear Option for Your Will or Trust

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No one wants their family or other beneficiaries to fight over their estate. But sometimes they do. It can be very frustrating, and expensive, and delay-inducing for all involved. One way to try to avoid a fight over your estate is to put a clause in your will or trust known as a “no-contest” clause. A typical kind of no-contest clause provides that if a beneficiary challenges the validity of the will or trust, or the terms regarding who is to receive particular benefits, or certain actions of the executor or trustee, then that beneficiary is disqualified from receiving whatever benefits they stood to receive through the will or trust. It is like a “nuclear option” for estate planning.

The thinking behind such a clause might go like this: “I want my estate to be a source of joy and good memories for my family and beneficiaries, not the opposite. It’s my right to say how I want my assets to be distributed after my death, and I’ve made that decision. No one should challenge that and say I should have made a different decision. So, as a way to avoid disputes over my estate, I’ll provide that anyone who challenges what I’ve decided won’t be included. That will probably avoid any disputes, and if it doesn’t, then the person challenging what I’ve decided doesn’t deserve to be included.”

I don’t do estate planning. In my firm, others do that. I work with people who find themselves in legal disputes, advising them of ways to get the dispute resolved in a satisfactory way. Over the years some of them have been beneficiaries of wills or trusts, but have a dispute about the estate. In some of those disputes the will or trust had a no-contest clause. So they had to take that into consideration in deciding what to do about the dispute.

In general, the law allows people very wide latitude in determining what happens to their estate after they are gone. So, in general, Kansas law enforces no-contest clauses. But no-contest clauses can be dangerous, and can even be instruments of injustice. Continue Reading

Should You Serve as a Trustee?

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A trust is a common tool of estate planning. It allows a person to provide financially for those people and organizations they want to support, but to do so in ways that provide more structure, oversight, limitations, protection, and direction than would exist through an outright gift or through the tool of a simple will.

A trust is an agreement between a person who owns assets and one or more persons who agree to become the owner of those assets on behalf of the beneficiaries named in the trust agreement. The initial owner is the “settlor” and the resulting owner is the “trustee.” The trust agreement states the terms of the trust—who the trustee is, who the beneficiaries are, and all the rules the settlor establishes governing the trustee in providing the assets to the beneficiaries. Those rules include when and how and under what circumstances the trustee is to provide the assets to the beneficiaries. They also include the amount of discretion the trustee has in doing that, which can range from little discretion to an extensive amount of it.

The terms “trust” and “trustee” reflect the essence of what is happening when a settlor creates a trust and transfers assets to the trustee. The settlor is trusting the trustee to do what the settlor has stated in the trust agreement for providing the assets to the beneficiaries. Trustees often do that work after the settlor has died or is no longer able to make sure their wishes are followed. So the settlor’s selection of the trustee(s) is a very important decision, especially if the trustee is given extensive discretion in providing the assets to the beneficiaries.

It can be quite an honor to be asked to serve as a trustee by a person who is a family member or a good friend. It usually shows that the person places great trust in the trustee. And serving as a trustee is one of the most valuable things a person can do for their family member or friend. But agreeing to serve as a trustee should be done only after careful consideration of the risks and practical problems involved in it, especially if the settlor gives the trustee extensive discretion. Continue Reading

Anger Can Eclipse Good Judgment

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Last week I drove up into Nebraska hoping to find some clear skies in the path of totality of the solar eclipse. And I found some. What an experience! Probably once in a lifetime. So I thought I’d write about a legal topic that would work in the idea of an eclipse. Here’s an analogy I think works pretty well.

When people come to me for help with a legal dispute, they usually say they want to find a good resolution, and to find it as quickly and efficiently as possible. There can be any number of roadblocks in the way of a good resolution, depending on the particular circumstances and people involved.  Some roadblocks are legal issues, some are practical problems, and some are personal issues. One personal issue that comes up sometimes, blocking the way to a good resolution, is the anger one or more of the parties has regarding the dispute.

It shouldn’t surprise anyone that people can get angry over a legal dispute. Legal disputes often involve things that are very important to people—serious injury or death of a loved one; the loss or potential loss of valuable property or large amounts of money; the loss of employment or unfair treatment in employment; injury to a business or to a valuable business relationship; the loss of an important personal relationship, like a marriage; etc.

Anger isn’t a bad thing in itself.  It is a normal human emotion.  It can motivate people to do the hard work necessary to correct something bad that has happened or is about to happen. But anger can be a challenge to handle well. Aristotle had this to say about anger: “Anybody can become angry—that is easy; but to be angry with the right person, and to the right degree, and at the right time, and for the right purpose, and in the right way—that is not within everybody’s power and is not easy.”  Continue Reading

Cringeworthy Comments in Your Files?

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© Piksel | Dreamstime.com
© Piksel | Dreamstime.com

I like that word—“cringeworthy.” It describes something so awkward or embarrassing that you cringe when you see it. That’s part of the fun when watching a TV show like Modern Family, which seems to specialize in moments like that. But when I’m working with a client to help them resolve a dispute, it’s not fun at all to find comments in the client’s file that make me cringe when I see them.

You can imagine some possibilities:

  • You have a customer who is particularly difficult to deal with. So your frustrated employees start to refer to him internally in sarcastic or derogatory ways.
  • You have an employee whose personal issues or problems are dragging down the productivity of others. So your other employees start to express their frustration by private comments between them that would be demeaning or insensitive or offensive to the troubled employee.
  • You have employees whose work is to collect delinquent accounts. After awhile they have heard so many hard-luck stories that they get jaded to them. And they come up with stereotyped names or phrases to refer to those customers by.

Your employees may not be rude, and might never say these things to the customers or other employees involved. They just make these comments privately and with others who would understand or sympathize with the frustration. To them it may be nothing more than a way to release their frustration, or a way for them to show support for one another. But those private or internal comments often find their way into notes to the file or in emails between your employees.

Comments like these in your files can cause a serious problem. Your internal records are not truly “private.” Continue Reading

A Problem-Solving Approach to Legal Disputes

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Photo credit: Wikipedia

Legal disputes can often be resolved by coming to an agreement instead of by a trial in court. But achieving a good agreement between parties at odds with each other can be a challenge. If you approach the dispute like it’s a problem to be solved, rather than as a battle to be fought, it is usually much easier to achieve a good agreement resolving the dispute.

That is easier said than done. It can be very difficult for disputing parties to constructively engage with each other to work through their dispute. But their lawyers can be very helpful to them in accomplishing that. I’ve written an article for lawyers describing how we can help our clients work through their legal dispute toward a good agreed resolution. It was published in the February, 2015 issue of the Kansas Bar Association Journal.

While the article is written for lawyers, I think anyone could benefit from it. You can find it at this link: A Problem-Solving Approach to Legal Disputes.

It’s an approach that has usually worked well for me. I hope it does for you also.

The Fairness Card

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A Euchre hand consisting of the five highest c...
Photo credit: Wikipedia

Fairness is a fundamental concept. It is the right and just way for people to treat each other in light of the facts and the law governing them. Understanding fairness and how it operates can be a key to resolving disputes. Consider these five points about fairness.

  1. Fairness is a basic value in our society.  

We teach our children at a young age to “play fair” and by that we mean to follow the rules of the game and not cheat. They develop a deep sense of fairness that goes beyond their games, for one of their common complaints is “That’s not fair!” Knute Rockne, of Notre Dame football fame, told his teams “Win or lose, do it fairly.” In the legal world, Supreme Court Justice Potter Stewart summed it up this way: “Fairness is what justice really is.” And of course we have the Golden Rule in Matthew 7:12: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” One short phrase that sums up hundreds of pages of the Law and the Prophets—is it any wonder fairness has become a basic value for us?

  1. Life’s not fair.

On the other hand, life isn’t fair. From the very start, the circumstances of one’s birth affect so much about a Continue Reading

Survey Results: Do People Think They Want to Resolve Their Disputes Fairly?

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Justice statue at old courthouse close up
Lady Justice at Old Sedgwick County Courthouse

People in a dispute sometimes believe that their adversary has no concern for finding a resolution that would be fair but is instead determined to get a resolution they know would be unfair. Having an adversary like that could suggest taking a strongly adversarial or “warfare” approach to resolving the dispute. On the other hand, if both parties would like to find a fair resolution but they have very different ideas of what would be fair, then that could suggest the wisdom of taking a much different approach—a problem-solving approach.

Over the years, I’ve observed many different people in their efforts to get resolutions of their legal disputes—and how often a party tries to get a resolution they know would be unfair.

To test my own experience on that, I asked in my last blog post for readers to take a confidential one-question survey about what kind of resolution they would try to get in their own dispute.

Here is the question again.

In a dispute, I would try to get a resolution that is:

  • Fair to both parties
  • Unfair, and to my advantage
  • Unfair, and to the other party’s advantage
  • Other

Continue Reading

Fair or Unfair–What Kind of Resolution Would You Try to Get? A One-Question Survey

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Scales of Justice
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Resolving legal disputes by agreement is a noble goal.  It is often the best way to get a good, timely and cost-effective resolution of the dispute.  But getting a good resolution by an agreement can be a challenge.  The parties have differing interests—sometimes dramatically different.  They may also have different understandings of the facts, or of the law that governs the dispute, or different levels of motivation for dealing with the dispute.  So they usually have different ideas about what the resolution should be.

But there is an even more fundamental issue that should be considered as you work to try to bridge the differences and come to an agreed resolution.  That is the parties’ desires regarding fairness in the resolution.  If both parties are trying to get a resolution that would be fair to both parties, that common goal would be a solid basis for the parties’ discussions about their differences.  Even then, reaching an agreement is often difficult because parties tend to have different ideas about what would be fair in any particular dispute.

But if one or both of the parties is not after a resolution that would be fair to both but is trying to get a resolution that is to their advantage in a way that would be unfair to the other party, reaching an agreed resolution becomes more difficult.  And if the parties do not share the common goal of fairness in a resolution of their dispute, they should probably take a different approach to trying to achieve an agreed resolution than if they both sought a fair resolution.  Continue Reading

Wise Words from Abe Lincoln–For Lawyers

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History honors Abraham Lincoln as one of our greatest Presidents, and for good reason. He proved to be a wise, honorable, courageous man.  Before serving as President, Lincoln was a lawyer.  So I take to heart what he had to say to lawyers:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”

English: Abraham Lincoln, the sixteenth Presid...
Photo credit: Wikipedia

More than 150 years after Lincoln said this, people continue to get into disputes involving their legal rights and obligations.  With more people now, and a much more complicated society, there are many more legal disputes today than there were in Lincoln’s day.  That makes Lincoln’s point even more important now than it was when he said it.

I’m sure Lincoln did not mean that there is no principle worth standing up for, and vindicating in court if necessary.  He meant that when a dispute arises, a lawyer can best serve the client by helping them find a good and timely resolution.  Sometimes the only way to do that is with the help of a judge or jury.  But there are good resolutions that can be found outside the courtroom for many legal disputes if the parties and their lawyers devote themselves to finding them.  And lawyers are in a unique position of trust and confidence with their clients to do that.

For a litigation lawyer, it can be very satisfying to stand up before a judge or jury in court and advocate on behalf of a client.  But to me, one thing even more satisfying than that is to help a client achieve a good and timely resolution without the need for the courtroom drama.

So, thank you, Mr. Lincoln, for your wise advice.

Litigation–Fighting it Out or Working it Out?

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There are two very different ways to resolve legal disputes, and to view the entire litigation process.  Which approach should you take?

 Litigation as Warfare

Some people approach a legal dispute like it’s a war to be fought.  In a war, weapons and military strategy are used to try to defeat an enemy and achieve the objective. When a legal dispute is viewed this way, legal rules and procedures are seen as the weapons to win the dispute by defeating the other party.  The battlefield would usually be the courts, and the victor would end up with a judgment in their favor, sometimes after a hard-fought trial.

Litigation as a Way to Solve a Problem

An alternative is to approach a legal dispute like it’s a problem that needs to be solved.  Problems are solved when people apply their skills, resources and persistence to figure out ways to work through them.  When a legal dispute is viewed this way, legal rules and procedures are seen as tools to be used skillfully to work out the dispute and achieve a good resolution.

The Pros and Cons

Winning a legal dispute after a hard-fought battle can certainly be a good, definitive resolution.  But battles are often expensive and time-consuming, frequently cause collateral damage, and can have long-term consequences for those involved.  Continue Reading

In a Legal Dispute, What is Your Goal?

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When you find yourself in a legal dispute, one of the most important decisions you can make at the outset is to decide what your goal is for resolving the dispute.  There are many factors that go into choosing the resolution you should seek.  But before you focus on a particular resolution, you have a more fundamental goal to decide on.  Should you be determined to “win” this dispute, or should your basic goal be to find an acceptable resolution even if it involves some compromise?

“Winning” a Legal Dispute

Winning a legal dispute would usually involve one of two things.  First, if you could get your adversary to completely back off of a claim they are asserting, or to agree completely to a claim you are asserting, then that would be a win.  You could win your dispute this way either through informal discussions before anyone has filed a lawsuit over the dispute, or if a lawsuit has been filed then you could end the lawsuit with an agreement like that.

A second way to win a legal dispute is to have a court decide that your view of the rights and obligations involved is the correct one and grant you a judgment—often after a trial.

Going for a win—a resolution completely in your favor—is a wise goal in a number of situations.  Here are four examples: Continue Reading

Ten Keys to Resolving Your Dispute–Without Making a Judge or Jury Do it For You

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Keys Hanging
Photo credit: Jenn Durfey

Conflict is inevitable.  Disputes arise in all aspects of life, from business dealings to your family’s estate and everything in between.  If necessary, our legal system will provide a judge or jury to resolve your disputes for you through a trial in court.  Most disputes get resolved without a trial, often without a lawsuit being filed.  And that’s the way it should be.  But many people find it difficult to resolve disputes, and they reach a resolution only after putting themselves through unnecessary grief, expense, delay and missed opportunities along the way.

For over thirty years, I’ve helped people and companies resolve their disputes, both in and out of court. I’ve seen people do things that get in the way of reaching a good, timely resolution.  I’ve also seen how people can facilitate the process, get a good resolution, get it sooner, and get on with their lives or their businesses.  I’ve distilled these observations down to ten key actions.  If you put them to use in your own disputes, they will often help you achieve a good and timely resolution.

  1. Keep your lines of communication open.  This can be hard to do in the midst of a dispute, but it is critical.  Without open communication you cannot effectively work through most disputes.
  2. Don’t view the other party as an enemy (unless they really are).  There is a tendency in human nature to reciprocate and treat someone the same way they are treating you.  So you have an opportunity to set the tone for working through the dispute by treating the other party with respect and with concern for their rights. Continue Reading

Anatomy of a Lawsuit Part 3–Trial

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[Anatomy articles provide a basic overview of the primary aspects of a lawsuit]

The three main stages of a lawsuit are the pleadings, discovery and trial.  The trial stage is the most well-known—when the evidence is presented, the case is argued, and a judgment is entered.  Trials to a judge and jury are known as jury trials, while trials just to a judge are called bench trials.  In most civil cases the parties have a constitutional right to a jury trial, but some cases must be tried only to a judge.  Parties may waive their rights to have a jury decide the case and choose to try their case just to a judge.

In civil cases the plaintiff has the burden of proof and must convince the judge or jury of their case, usually to the standard of proof known as the preponderance of the evidence.  That standard is met if the judge or jury decides that the facts establishing the claim are more probably true than not true, even if they are only 51% convinced.

The trial will proceed according to a court order worked out between the judge and the lawyers in advance, known as the pretrial order.  It identifies the claims and defenses of the parties, establishes the issues to be determined at the trial, the witnesses and exhibits to be presented, and other aspects of the trial.  While a trial is a very important and visible part of a lawsuit, it is the end product of much work behind the scenes.

Opening Aspects of Trials

In a jury trial, the first step is to select the jury from the potential jurors called for service.  That process is called voir dire.  The potential jurors are questioned to determine any biases or prejudices and to give the parties information on which to exercise challenges.  Any potential juror can be challenged for cause if a reason to question their fitness to serve is established.  Then each side will usually excuse three potential jurors with peremptory challenges, for which no reason needs to be given.  Those remaining will be the jury. Continue Reading

Anatomy of a Lawsuit Part 2–Discovery

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[Anatomy articles provide a basic overview of the primary aspects of a lawsuit.]

The three main stages of a lawsuit are the pleadings, discovery and trial.  The discovery stage is to allow the parties to obtain the information and evidence they need to effectively pursue or defend or settle the case.

Legal claims depend on how the law applies to a particular set of circumstances.  There are a number of tools and strategies for obtaining the facts and evidence needed to understand that set of circumstances and resolve the case well.

Sources of Information

There are usually three general sources for the facts and evidence needed.  The first is yourself and those within your control, like your employees.  The second source is the adverse party and those within his control.  The third source is other parties not involved in the dispute.

Much of the information and documents you need can often be obtained informally.  Pulling together the facts you already know, searching your records, and interviewing your employees and searching their records can yield a wealth of good information.

Sometimes the adverse party and third parties are cooperative and willing to informally provide their information as well.  When you cannot get their information that way, or prefer to use more formal means, then the law provides several formal procedures for obtaining that information and evidence.

Discovery Tools

One of the main principles of the rules governing lawsuits is that disputes are best resolved when all parties have the opportunity to be fully informed about the facts and have all the relevant evidence Continue Reading

Anatomy of a Lawsuit Part 1–The Pleadings

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[Anatomy articles provide a basic overview of the primary aspects of a lawsuit.]

There are three primary stages to a lawsuit—pleading, discovery and trial.  The pleading stage is to get all relevant parties into court and for them to formally assert their claims and defenses against each other and determine the scope of the dispute.  The discovery stage is to allow the parties to obtain the information and evidence they need to effectively pursue or defend against or settle the case.  The trial stage is when the parties formally present their evidence to a judge or jury to determine disputed facts and decide the outcome of the case.  This article explains the pleading stage of a lawsuit.

The Petition or Complaint

A lawsuit begins when a plaintiff files a Petition with the court.  (In federal court it is called a Complaint.)  It is the first of the “pleadings.”  The Petition identifies the parties and should provide a short and plain statement of the basic facts that the plaintiff asserts constitute his claim.  It ends with a request for the remedy sought.

The plaintiff can assert multiple claims against the same defendant in one lawsuit.  There can be more than one plaintiff and more than one defendant if each claim arises out of the same situation and has some issue in common with the other claims.

When a Petition is filed, the court issues an order that the defendant must respond to the Petition, usually within 21 days, if he plans to defend against the claim.  This order is called the Summons, as it summons the defendant to appear in court. Continue Reading