Law Firm Clients Benefit From Technology

Until a few years ago, I didn't have a cell phone because my early experiences with cell phones were terrible. Spending hours every month dissecting my mobile phone bills and changing my rate plan was an exercise in anger management. I never knew whether my bill was going to be eighty dollars or three hundred dollars. I was disgusted, so I stopped using a mobile phone. My clients were disgusted. They offered to buy one for me. I declined; however, I finally relented when I thought I might lose clients. My new wireless rate plan was good. My clients were happy. Fast forward to today. Now, I not only have a cell phone, I also have a pocket PC that is connected to the office servers. I have a laptop with mobile high-speed internet connectivity. I have web-based server email, mobile and home VPN, Gmail, eFax, .pdf client files on the server, and the list goes on. All of this means that I can do legal work anywhere and at any time, and faster than ever before. Technology allows me to pack substantial amounts of work into each billed hour. Technology also allows me to work after hours and on weekends, which often does not get billed.

Score one for the clients!

Andrew Jones

(214) 979-0101

ajones@tiptonjoneslaw.com

Simplified Probate in Texas

With simplified techniques allowed by Texas law, taking care of probate issues of a loved one’s estate can be relatively quick, easy, and inexpensive. This is true whether or not the deceased died with a will.

Generally, probate is the process of gathering assets of someone who has died, paying their debts, and distributing the assets to the heirs. If the deceased left a residence or other land including any oil and gas interests, it will almost certainly be necessary to do some kind of probate procedure to clear title to these properties. It may also be necessary to obtain a court's authority to act for the deceased and distribute assets of the estate. Almost universally, it is simpler and less expensive to take care of probate issues sooner rather than later.

A significant benefit in Texas is that often abbreviated procedures may be used, limiting probate within the court to as little as 3-6 weeks, and avoiding excessive cost and paperwork. The method which is most prudent depends on whether or not a Will was used and the size and complexity of the estate, as well as other factors. The attorneys at Tipton Jones handle these simplified methods very often, and have worked hard to devise systems to minimize the cost and time required. Because of this, we generally handle these matter on a flat fee basis (in the $2,000 range in an ordinary case), and the procedure is most often complete in around six weeks, depending on the courts’ schedules.

The Tipton Jones attorneys who practice in this area can quickly advise you on whether any probate procedure at all might be necessary and, if so, the applicable shortcuts that may be helpful.

Paul Tipton

(214) 890-0991

ptipton@tiptonjoneslaw.com

BEYOND BRIEFS: Part Three

If you’re ready to dive into the world of writing fiction -- I mean commercial fiction; I’ve seen many a brief that might also qualify -- a basic decision you’ve got to make at the start is the genre in which you’re writing. Genre simply defines the type of book you’ve written. It’s important because knowing the genre sets the tone for the reader. Mentally, a reader approaches a thriller differently than a romance. From a publisher’s standpoint, it has an even bigger meaning: It determines on which shelf the book will go at the bookstore. It can even drive the publisher’s decision whether to acquire a new novel in the first place, and it certainly is important in helping you target which publishers to submit to.

Genres generally break down this way:

· Commercial fiction: Basically a broad catch-all for fiction that doesn’t fit neatly into other genres, but books for which there is a wide readership potential. Think Dan Brown’s The Da Vinci Code.

· Crime fiction: Stories that revolve around the crime—caper stories, for example—and are often noirish or written from the viewpoint of the criminal. Think Elmore Leonard.

· Detective fiction: Once considered a sub-genre of mystery, this features private or police detective procedurals. Think Ed McBain, James Lee Burke, Robert Crais, Robert Parker.

· Fantasy: Usually involving the same types of elements as found in old legends and folk tales, often with past or future otherworldly settings. Think Lord of the Rings. Again, I sometimes think of briefs I have read.

· Horror: A combination of fantasy and terror, usually fast-paced and often invoking the use of the supernatural. Think Stephen King, Dean Koontz.

· Literary fiction: Can fit in any or all genres, but features the written word as art. Think Joyce Carol Oates, Ayn Rand.

· Mainstream: Another catch-all, novels that don’t fit other genres but which don’t have the same wide commercial appeal as those that would fall into the commercial category. Think Alice Sebold, Wally Lamb.

· Mystery: Mystery doesn’t really have a hard and fast definition. It’s the term that used to be applied to detective stories, but now seems to have a broader definition. At its most basic, it involves the solving of a crime by uncovering clues, ultimately leading to the unknown criminal. There are cozies, which usually involve an amateur sleuth and are somewhat milder in tone, language, and action, and hard-boiled, which usually involve a private eye or police detective and which tend to be more graphic in terms of violence, sex, and language. Think Sue Grafton, Agatha Christie, Mary Higgins Clark.

· Romance: Love stories, often formulaic, that can take on a number of sub-genres: historical romance, time travel romance, romantic suspense, Victorian romance, etc. Think Nora Roberts, Johanna Lindsey.

· Science fiction: This involves fiction arising out of the use of science or technology, often set in the future. Think Michael Crichton.

· Suspense: This crosses a broad range of genres, but always involves creating and maintaining suspense. Think Alfred Hitchcock.

· Thriller: Sometimes viewed as a sub-category of mystery or a hybrid of suspense, thrillers often involve a hunt or chase, usually with the protagonist or someone close to the protagonist placed in jeopardy. They can involve espionage, international intrigue, the medical or legal fields—or just about any other. The idea is that, where the mystery creates uncertainly and suspense, the thriller creates…well, thrills. Think Thomas Harris (Silence of the Lambs), James Patterson, John Grisham.

· Western: Tales of the old west, usually post-Civil War, and extending even into the early 1900s. Think Louis L’Amour, Zane Grey, Elmer Kelton.

· Women’s Fiction: A broad catch-all for books that largely appeal to women readers, but don’t fit into the romance category. They often feature strong female characters and are often told from a female point of view. Think Danielle Steele, Nicholas Sparks.


Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

OF SUGAR CANE AND QUEENS: Sovereignty in the Sandwich Islands: Part Two

I’ve heard from several folks in response to my last entry wanting to know just what in the heck that Hawaiian sovereignty stuff is all about, and what on earth would make President Clinton sign something called The Apology Bill. Well, to paraphrase Keanu Reeves in Bill and Ted’s Excellent Adventure, “Something is afoot in the Sandwich Islands.” (The movie line is actually “Something is afoot at the Circle K.”) You only have to read cases like Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 177 P.3rd 884 (HI 2008) and Rice v. Cayetano, 528 U.S. 495 (2000), and study the history and debate over “The Native Hawaiian Government Reorganization Act of 2007,” also known as the Akaka Bill (after its sponsor, Hawaii Senator Daniel Akaka) currently pending in the United States Congress, to know that.

And not only is something afoot today, it has its origins in history. So some with me now as we step into Mr. Peabody’s Wayback Machine and set it for Hawaii. (Is the reference to the world famous Sherman and Mr. Peabody from The Rocky and Bullwinkle Show too obscure? Or am I just showing my age?)

Believe it or not, Hawaii was once a royal kingdom, governed by a monarchy. The islands were divided into separate kingdoms, and the notion of private land ownership was an alien concept. Instead of “owning” the land, the people were essentially trustees of the land, administering it on behalf of the gods. It really wasn’t until the advent of the haoles, the white interlopers I mentioned before, that land ownership crept into the culture.

As an aside, haole comes from the Hawaiian words ha, which means breath, and ‘ole, which means without, so the literal translation is “without breath” or “breathless.” One etymologist says it’s a reference to the fact that when the white people in Hawaii said their prayers, they didn’t breathe three times as the ancient Hawaiians customarily did. Another story, though, says that the Hawaiians found it hard to believe that people could be that pale and actually be alive, or draw breath. Whatever its origin, though, it’s rarely used fondly. According to Wikipedia (so take it for what it’s worth), a tradition began in Hawaii’s public schools in 1950s of calling the last day of school before the summer break “Kill Haole Day,” when native Hawaiian children would harass and sometimes assault white children. An article in the Honolulu Star Bulletin published on March 24, 1999, bore this headline: “’Kill Haole Day’ linked to hate-crime bill.”

Nope, rarely used fondly.

Now where were we? Oh, yeah, no private ownership of land. At last not officially, but the haoles were already gobbling up real estate wherever and however they could. In 1839, King Kamehameha III issued a Declaration of Rights that said that property couldn’t be taken “except by express provision of law.” Sounds good, as far as it goes. But hard on the heels of that, the King also granted the first constitution to Hawaii, which changed the nation’s absolute monarchy to a constitutional monarchy. The constitution set up a bicameral legislature and a supreme court.

It also did something that was the first real crack in the dam: it declared that, even though all land belonged to the King, it was not the King’s private property. Instead, the common people also had some claim to ownership, even though they still couldn’t acquire absolute ownership. In 1845, a Land Commission was established to investigate claims to private ownership of land that were being made by some folks, particularly haoles. The Land Commission recommended to King Kamehameha III a system of land distribution, under which the King would retain his private lands, but the remaining land would be divided equally into thirds among the Hawaiian government, the chiefs (the ali’i) and the tenants or common people.

Three years later, after much debate over this recommendation, came what’s known as The Great Mahele, or the Great Division. It began in January of 1848, but it wasn’t the equitable 1/3-1/3-1/3 originally recommended. Instead, the King ended up holding almost 2.5 million acres (roughly 60%) (it’s good to be king) and the chiefs got about 1.5 million acres. The King then divided his share into two parts, setting aside 1.5 million acres as government lands and keeping 1 million acres as “crown lands.” So the ultimate result was 1.5 million to the chiefs, 1.5 million to the government, 1 million for the king and, -- you do the math -- the good old common folks got screwed, ending up with about 28,600 acres.

And here’s where it gets interesting: an 1846 law had authorized the sale of government lands, and a second law in 1850 authorized any resident of Hawaii to own and convey land, citizen or not. By 1864, Westerners had bought over 320,000 acres of government lands. According to the Native Hawaiian Handbook (University of Hawaii Press 1991), edited by Melody Kapilialoha MacKenzie, by 1890, “Of a total population near 90,000, fewer than 5,000 actually owned land. Hawaiians, if they had any lands, owned small acreages. Consequently, for every four acres belonging to private owners, three were held by Westerners. The relatively small number of Westerners owned over a million acres.”

And something was afoot at the Circle K. Stay tuned for part three.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

BEYOND BRIEFS: Part Two

In my last entry on this topic, I raised the question of why you, as a lawyer, want to write. Assuming you’ve done the necessary soul-searching and you still want to, let me know alert you to some of the dangers you face. Dangers, I might add, that can be somewhat specific to lawyers.

Too wordy—Believe it or not, being a lawyer poses some disadvantages for you as you turn to other forms of writing fiction. Unfortunately, you’ve probably learned some habits in law school and in practice that you’ll have to overcome as you turn to the written word for the masses. After all, that’s who will be reading what you write, not other lawyers and judges. Fact is, most lawyers are not good writers.

I know what you’re thinking: “Moi, not a good writer? Surely you jest.”

Okay, let’s just see. In Texas, we have what’s known as a General Denial, which lawyers assert in defensive pleadings. The typical lawyer files a General Denial that reads like this: “Defendant generally denies each and every, all and singular, the material allegations in Plaintiff’s Original Petition and demands strict proof thereof.”

Sounds good, doesn’t it? Very lawyerly. Did you know that this would have worked just as well: “Defendant generally denies the allegations in Plaintiff’s Original Petition.” Nine words accomplished the same thing that twenty-one words accomplished in the preceding paragraph.

Let me run another one by you. You’re filing a pleading in a lawsuit and need to attach a document to the pleading as an exhibit. Most lawyers refer to the document, then write this: “A true and correct copy of the aforementioned document is attached hereto as Exhibit A and is incorporated herein by reference for all purposes the same as if fully set forth herein.”

Compare that to this: “A copy is attached as Exhibit A.” Seven words versus thirty-two—and you accomplished the same thing.

You’ve probably heard the expression “less is more;” well, it’s true. Unfortunately most lawyers write as if they’re being paid by the word instead of by the hour. The problem with that is that the meaning of what you’re saying can get lost in the avalanche of words, or the emotional impact can be diluted. Better to use fewer, but more direct and powerful, words. Where most lawyers tend to use three where one will suffice, as writers of fiction you need to get into the habit of doing just the opposite. Did you know that “null” means “void,” and “void” means “null”? You don’t have to say “null and void,” and you really don’t have to say “null and void, and without effect.”

Too technical—While we’re on the subject, let’s talk about another of my pet peeves with “lawyerly” writing and that’s the use of jargon where plain English not only will suffice but also will far surpass jargon. Jargon is okay, to a point. In writing fiction, you’ll want to sprinkle your dialogue and exposition with enough jargon to create an aura of authenticity around the world you have created on paper, but not so much that the reader either loses track of what you’re saying or becomes distracted. We all know that lawyers say things like “jurisdictional limits of the court,” and “limine” and “directed verdict,” but if your reader doesn’t understand what these mean, important plot points can get lost.

For an example of how this can work well, study the movie Body Heat. When you were in law school taking Property Law, did it ever occur to you that the Rule Against Perpetuities could ever form the key plot point in a major motion picture? But that’s exactly what screenwriter Lawrence Kasden did—and did it masterfully. The audience may not have known all the finer points of the Rule as articulated in the movie, but they understood generally that because of that rule, the will William Hurt drew up for Kathleen Turner's husband was invalid and, as a result, she stood to inherit all of her husband’s wealth rather than share it with her niece. Result? Motive for murder.

Too autobiographical—Another problem is one shared by most new writers, not just lawyers: The story is too autobiographical. Yes, you are admonished to write what you know, and you certainly know your own life and your own cases. And, yes, your life is surely fascinating to you and your family, but that doesn’t mean your life and your cases are of any real interest to the rest of the world. That doesn’t mean that parts of your life can’t inspire or inform your stories, but you’ve got to view this as an outsider looking in would. Use events and people in your life to inspire your creative thinking, then put them in a world you know intimately—the world of law—but write fiction! Ultimately your creativity will likely be far more interesting to readers than your real life, hard as that may be to believe.

Too bombastic—Now, I’m treading lightly here because I know a lot of lawyers who think their writing is just brilliant because it sounds so…intelligent? You know, two-dollar, multi-syllable, “educated” words. After all, who isn’t more impressed with a letter that begins with “The Undersigned,” instead of “I”? I hate to be the bearer of bad news to you, but just as it’s better to use one word when you might otherwise want to use three, it’s better to use a two-cent word when you might want to use a two-dollar word. Why? It’s clearer and more to the point. And it just sounds better.

Oh, really? All right, let’s compare (with apologies to police officers everywhere). Which is better? I saw the car driving down the street; or I observed the vehicle proceeding down the boulevard.

I rest my case.

But there is an exception to this general rule against being less bombastic, and it applies to dialogue. Dialogue reveals character—so a snooty, pseudo-intellectual character’s dialogue may well be peppered with bombastic speech. Or a highly educated scientist who has very little social interaction may speak in almost undecipherable scientific language even when thrust out of his laboratory. I’m sure you can think of other examples yourself, but the point is that bombastic language has its uses.

Further on the subject the writer sayeth naught.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers do well; lawyers do good

As a fourth generation Texas trial lawyer, the hackles on the back of my neck always stand up when someone I meet at a cocktail party decides it’s a good idea to share his or her repertoire of lawyer jokes with me. Lawyers occupy a unique position in our system of law and government, and can affect positive changes more so than almost any other profession. My immediate retort is usually along the lines of - “so what do you do for a living that is so damn beneficial for the human race?” (hoping that the offender is a bond trader and not a teacher or social services worker) or “lawyers are like proctologists – everyone hates them until they really need one!”



I now have a better retort. More than 400 Texas lawyers, from all over the state and from diverse areas of specialization, have volunteered to serve as ad litems for the 416 children who were recently removed from the polygamist ranch in Eldorado, Texas. They are traveling to San Angelo at their own expense to carry out a much needed task that will benefit hundreds of children. They will not get a dime for their services. In fact, there are more volunteers than needed. Lawyers are paid well for their services, generally. I think that on the whole, they give back to society in an amount commensurate with the privilege of being licensed to practice law.



Now, where are those cocktail franks I saw being passed around?

Murray Camp

(214) 979-0100

mcamp@tiptonjoneslaw.com

Taxation of Limited Liability Companies

Doing business as a Limited Liability Company is popular because, similar to a corporation, owners (members) have limited personal liability for the debts and actions of the LLC. At the same time there is great management flexibility, and LLCs enjoy the benefit of pass-through taxation. Members may be individuals, corporations, other LLCs and foreign entities. There can be only one member of an LLC (in most states), or there can be an unlimited number of members. We are frequently asked how LLCs are taxed.

If an LLC has only one member (a single member LLC), the default taxation is that the member files as if the LLC does not exist. So if the single member is an individual, LLC income and expenses are reported on schedule C, E or F of the member’s 1040 return. If the single member is a corporation, the LLC income and expenses are reported on the corporation’s return (usually Form 1120 or 1120S). If an individual LLC single member prefers the LLC to be taxed as a corporation, the LLC must submit IRS Form 8832 to change the default and select the corporate form of taxation.

If an LLC has multiple members, the default is for the LLC to be taxed as a partnership (Form 1065). If the LLC prefers to be taxed as a corporation, the LLC must submit IRS Form 8832 to change the default and select the corporate form of taxation.

Remember that LLCs are subject to withholding of employment tax. Members of single member LLCs are subject to self-employment taxes on earnings. Also, members of multiple member LLCs pay self-employment taxes on their share of partnership earnings.

We would be happy to be of assistance in solidly planning and properly setting up a business entity for your venture.

Paul Tipton

(214) 890-0991

ptipton@tiptonjoneslaw.com

BEYOND BRIEFS

Over the years, I’ve heard from a lot of lawyers who want to write. Goodness knows plenty have made the successful transition: John Grisham, Scott Turow, James Grippando, Steve Martini -- and the list goes on. So this is for all you lawyers out there who want to tap into that storytelling urge buried deep in your soul.

Let’s start with this inquiry for starters: Why do you want to write?

That seems like a pretty basic question, but it’s one you really need to answer before you get started. After all, you’ve poured three precious years of your life into law school -- too late to get it back now -- and embarked on a noble legal career. An esteemed member of society, you are “Lawyer,” successful in your chosen profession, respected by your peers, king of all you survey. So why would you want to chase after a writing career? One that is sure to frustrate you; one in which success is never guaranteed but, rather, chances are huge that you will fail in the ultimate goal of either being a published novelist or produced screenwriter.

That’s right, chances are good that you’ll never be published or produced. Truth be told, chances are good you may never finish writing the great American novel or completing that screenplay. You might even have better chances of success if you were to enter the space program with aspirations of becoming a space shuttle astronaut.

So let me repeat the question: Why do you want to write?

There are probably as many motivations for you to write as there are lawyers writing, but I suspect most of them can be boiled down into several broad categories. For some of you, a writing career may offer an opportunity to leave the practice of law, to simply walk away from billable hours, depositions, contentious partners meetings, cranky judges, uncooperative clients, and opposing counsel from the pits of hell. Yeah, staying at home, controlling your own time -- and not keeping track of those hours -- while hunched over your computer, spinning yarns, holds great appeal.

For others, it may all be about ego. Go figure -- a lawyer with an ego. You want to see your name on the cover of books in the bookstore, your smiling face peering out from the photo on the book jacket, or your name splashed in huge letters across a silver screen. If that’s your motivation, my advice is to keep practicing law. Believe me when I say that law practice will better fuel the fires of your ego than will writing. If you don’t believe me, just wait until you have enough rejection letters from agents, publishers, and producers to paper the walls of your house. And your second house at the beach. And your kids’ dorm rooms.

Yeah, writing can be an experience in ego-shattering humility.

Some of you want to get rich. Three and four and five hundred dollars an hour, or forty-percent contingencies, just doesn’t seem to be getting you there. You see some author’s name in Forbes Magazine and say to yourself, “Yeah, I could live on thirty million dollars a year.” Or you read about the latest spec screenplay sale for three million dollars and figure that’s not a bad return on 110 pages. If you’re in this to get rich, I’ve got advice for you as well: Buy a lottery ticket; your chances of untold wealth by winning the lottery are better.

But some of you may feel you have a story to tell. It’s been rattling around in your head for years, monopolizing valuable brain cells, distracting you from your law practice, your family, your friends. You’ve got to get it out of your head and down on paper. If someone buys it, that’s just gravy; the reward for you will be in the writing. If that’s your motivation, then go for it.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

OF SUGAR CANE AND QUEENS: Sovereignty in the Sandwich Islands

“The time has come,” the Walrus said,
“To talk of many things:
Of shoes – and ships – and sealing wax –
Of cabbages and kings –
And why the sea is boiling hot –
and whether pigs have wings.”

The Walrus and the Carpenter
by Lewis Carroll


Hawaii!

The very word evokes visions of Paradise – white, sandy beaches; swaying palm trees; silver waterfalls, hula girls; mai tais; and luaus. Each year, millions flock to the islands to soak up rays, splash in the surf, play golf, and lounge around luxury resorts. But beneath the surface of this tourist Mecca, a simmering resentment threatens to boil over at any moment as a proud people, the native Hawaiians, find themselves servants in their own home, waiting hand and foot on these white interlopers – the dreaded haoles (pronounced “how-li”).

Believe it or not, there are really two Hawaii’s. One is the “tourist” ideal, consisting of the aforementioned (nice legal term, don’tcha think?) white beaches, resort hotels and golf courses, luaus, and hula dancers. The other is the “real” Hawaii – the native peoples living in near poverty because the tourism industry has created prices for food, shelter, and land that they can’t afford. They work in the taro fields, fish in the ocean, and clean up the messes tourists leave behind in hotels and restaurants. They have become second class citizens in their own land.

So what happened? Well, that takes us into a little history lesson.

On January 17, 1993, the Hawaiian people observed the one hundredth anniversary of the overthrow of the Hawaiian monarchy. On that date, one hundred years earlier, the self-proclaimed Committee of Safety, a group of haole businessmen heavily interested in Hawaii’s major crop, sugar, declared that the “Hawaiian Monarchial [sic] system of Government is hereby abrogated” and replaced by a provisional government “for the protection of the public peace . . .” Yeah, right!

That same day, the Hawaiian monarch, Queen Lili’uokalani, temporarily surrendered her sovereignty, not to the provisional government, but “to the superior force of the United States of America, whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support said Provisional Government.” Although she expressly intended her surrender to be temporary, “until such time as the Government of the United States shall . . . undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands,” the monarchy has never been restored.

While we, in the United States, celebrate the anniversary of the overthrow of English rule, for many native Hawaiians, the anniversary of the Hawaiian monarchy’s overthrow provides no basis to celebrate. Rather, they lament not only the loss of their form of government, but also the loss of a sacred way of life. Instead of reveling in their U.S. citizenship, they vilify the haoles who stripped them of their queen and their land. They demand reparations from the United States for their loss, and demand a return of their sovereignty for the Hawaiian people -- restoration of citizenship in a reconstituted Hawaiian nation, with rights of self-determination, to exercise independent control over their lands and lives. That includes a return to their native language, customs and religions. Harsh words are written and spoken, decrying the illegality of the overthrow and the unlawful intervention by the United States. These Hawaiians believe themselves to be living in a “stolen kingdom” and believe that now is the time to reclaim what was wrongfully taken.

Is this nothing more than chauvinistic saber-rattling from disgruntled natives, or is there something more to what they claim? The words of our own President, Grover Cleveland, about the question may be instructive. On December 18, 1893, he told a joint session of Congress:

"Hawaii is ours. As I look back upon the first steps in this miserable business, and as I contemplate the means used to complete the outrage, I am ashamed of the whole affair.

. . .

It appears that Hawaii was taken possession of by the United States forces without the consent or wish of the government of the islands, or of anybody else so far as shown, except the United States Minister.

Therefore the military occupation of Honolulu by the United States . . . was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.

. . .

By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair."

One hundred years later, President Bill Clinton signed Public Law 103 - 150 into effect. Known to native Hawaiians as The Apology Bill, it said:

"The Congress –
(1) on the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people;
(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians;
(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination;
(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and
(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people."

So maybe the native Hawaiians have a point. Maybe it would do us well to hear them out. To put a spin on Carroll’s Walrus, “the time has come to talk of many things . . . of sugar cane and queens.”

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

The California Talent Agencies Act and Personal Managers:

Are They or Aren’t They Covered?


Under the heading of “no good deed goes unpunished” comes Marathon Entertainment v. Blasi, 42 Cal. 4th 974, 174 P.3d 741 (Cal. 2008), which reached some conclusions about the application of the California Talent Agencies Act (Cal. Lab. Code, § 1700 et seq.) to personal managers. That statute governs talent agents in the entertainment world – those people who engage in the occupation of “procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists,” (§ 1700.4(a)) but conventional wisdom has long held that the Act doesn’t apply to personal managers. As is so often the case, conventional wisdom missed it by a mile.

In 1998, Marathon and actress Rosa Blasi entered into an oral contract for Marathon to act as Blasi’s personal manager, providing a variety of management and counseling services, in exchange for a 15% commission from all her entertainment employment income. Over the next three years, Blasi obtained a role in the film Noriega: God’s Favorite and a lead role in the television series Strong Medicine. Among the management services Marathon said it provided during that time were making the down payment on Blasi’s home, paying her business manager’s salary, paying her travel expenses, and giving her professional and personal advice.

So far, so good – right?

Wrong! By the summer of 2001, Blasi unilaterally reduced the commissions she paid Marathon from 15% to 10%, and later stopped paying commissions altogether and terminated the management contract. Marathon then sued her on theories ranging from breach of contract to unfair business practices. As damages, they wanted to recover their unpaid commissions from Blasi’s role in Strong Medicine. Blasi got the action stayed, then filed a petition with the California Labor Commissioner and claimed that – and you could probably see this coming from a mile away – Marathon had violated the Talent Agencies Act by procuring work for her as an actress on Strong Medicine without being licensed as a talent agency. The Labor Commissioner agreed and invalidated the entire management contract between Blasi and Marathon.

Holy mackerel! Let me see if I got that straight: She said that Marathon got her a paying gig as an actress on a TV series, but by doing so, they violated the law so she doesn’t have to pay them for getting her the job in the first place because it was illegal for them to get her that job. And, in fact, the Labor Commissioner essentially said she didn’t have to pay them for anything they had done for her because the entire contract was invalid. If so, that would mean Blasi could have counterclaimed in the lawsuit to recover back all commissions she had already paid, wouldn’t it?

Fortunately, the California Supreme Court ultimately injected a heavy dose of common sense. In Marathon, the Court held that: (1) the Talent Agencies Act regulates conduct, not titles, so if a manager “procures employment” for a client, he/she is performing the services of a talent agency and must be licensed under the Act; but (2) although the Labor Commissioner may invalidate an entire management contract, it doesn’t have to; thus, applying the doctrine of severability, the courts and/or Commissioner may uphold those portions of a management contract that don’t violate the Act while only invalidating those that do.

The Court said: “A personal manager who spends 99 percent of his time engaged in counseling a client and organizing the client’s affairs is not insulated from the Act’s strictures if he spends 1 percent of his time procuring or soliciting; conversely, however, the 1 percent he spends soliciting or procuring does not thereby render illegal the 99 percent of the time spent in conduct that requires no license and that may involve a level of personal service and attention far beyond what a talent agency might have time to provide. Courts are empowered under the severability doctrine to consider the central purposes of a contract; if they determine in a given instance that the parties intended for the representative to function as an unlicensed talent agency or that the representative engaged in substantial procurement activities that are inseparable from managerial services, they may void the entire contract. For the personal manager who truly acts as a personal manager, however, an isolated instance of procurement does not automatically bar recovery for services that could lawfully be provided without a license.” 42 Cal. 4th at 997-98.

The Court also said that it was not deciding, nor did the Act define, what “procure employment” actually meant, leaving open the question of whether Marathon had actually procured for Blasi the acting job on Strong Medicine. Noting that both parties to the case, as well as letters and briefs the Court received from personal managers, “indicate a uniform dissatisfaction with the Act’s application,” it then concluded by nudging the California Legislature: “We, of course, have no authority to rewrite the regulatory scheme. In the end, whether the present state of affairs is satisfactory is for the Legislature to decide, and we leave that question to the Legislature’s considered judgment.” Id. at 998-99.

Mike Farris

(214) 979-0100

http://www.tiptonjoneslaw.com/contact

Score One for the Investors: Employers Liable for Retirement Plan Mismanagement

The United States Supreme Court ruled in favor of investors this week.

In LaRue v. DeWolff, Boberg & Associates, the court ruled that employees can sue employers under the Employee Retirement Income Security Act for mismanaging their 401(k) retirement plans. Companies are no longer protected from these claims. Business groups have strenuously argued that the law did not allow for individual claims.

James LaRue sued his employer DeWolff, Boberg, a Dallas consulting firm, claiming that the company failed to carry out his investment instructions for his 401(k), resulting in a loss of $150,000 in the value of his plan. Justice John Paul Stevens, writing for a unanimous court, said the law does allow for lawsuits to recover “fiduciary breaches that impair the value of plan assets” in individual accounts.

Murray W. Camp

(214) 979-0100

mcamp@tiptonjoneslaw.com

Super Bowl XLV

Hopefully, the Cowboys willplay in Super Bowl XLV in 2011 at the Dallas Cowboys' new stadium in Arlington, Texas. Every year, the Super Bowl creates millions of dollars of business, and many lawsuits that only the lawyers win. Litigation and trial cost exponentially more than good legal planning ("an ounce of prevention..."), so review www.TiptonJonesLaw.com and consult with the quality attorneys at Tipton Jones in preparation for and during good business with good people. If a lawsuit is filed, settle it quickly or prepare to pay substantial legal fees and don't expect to "win" because lawsuits are usually wars of attrition to find out who loses the least. Nevertheless, lawsuits are sometimes necessary when another party is unreasonable. Tipton Jones stands ready to help at all stages of business cycles, from due diligence to transactions, and to litigation and trial if necessary.

Go Cowboys!

Andrew Jones

(214) 979-0100

ajones@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT SIX

The civil justice system had turned into a game with both sides only interested in winning. It didn’t matter to the fourth lawyer what the truth was; he had to win if he wanted to get his money. And it didn’t matter to the first and second lawyers in the big firm what the truth was; they had to win to keep the rich and powerful happy – and paying them money.

But the lawyers all made money so, even though they were unhappy with each other, they were happy with the civil justice system.

All, that is, but one. The only lawyer who wasn’t happy with the system was the third lawyer. He believed that winning wasn’t as important as justice. He believed that sometimes the truth and the facts dictated that his clients were supposed to lose. He believed his job wasn’t just to win, but also to counsel. He believed that was why lawyers were also called “counselors.” And that was how he approached his cases.

The problem for the third lawyer was that the fourth lawyer took advantage of his beliefs. The third lawyer found that it was difficult dealing with dishonesty and a lack of ethics if he was, himself, honest and ethical. His partners didn’t have that problem. They did whatever it took – whatever it took – to beat the fourth lawyer, who did whatever it took – whatever it took – to beat the big firm lawyers.

The rich and powerful liked the first and second lawyers, who did whatever it took to win, because if they could oppress the poor and lowly and still win, that was what they wanted. They weren’t interested in justice, just in winning.

So the third lawyer’s hours continued to dwindle, as did his compensation. His two partners’ hours went up, as did their compensation. The fourth lawyers’ compensation also went up. All the lawyers got rich, except the third lawyer.

And the people suffered. The rich and powerful paid millions in lawyers’ fees to defend the scams of the poor and lowly. The poor and lowly exacted their revenge by scamming the rich and powerful even more. And the lawyers just got richer and richer.

Except the third lawyer. The third lawyer quit being a lawyer. He left the big firm and went away from the city to live on an island.

The other three lawyers carried on, business as usual. And got richer and richer, and more powerful.

And the people cried out to God for deliverance.

God heard their cries, but had no compassion. God said, “I gave you lawyers, and the lawyers have done what you wanted. You reap what you sow.”

And to the lawyers, God said, “Woe unto you, you lawyers, for you load people down with burdens too grievous to bear, and you, yourselves, lift not a finger to help them.”

And the third lawyer lived on an island and was happy.


Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT FIVE

Soon the people learned what the lawyers were learning. The poor and lowly learned a new way to scam the rich and powerful – hiring the fourth lawyer to file lawsuits against the rich and powerful, even though they weren’t really hurt.

The rich and powerful began to believe that everyone who filed a lawsuit against them was trying to scam them. But they paid more and more money to settle the lawsuits and then passed along the costs to all the people by raising prices on their products and services.

Meanwhile, the third lawyer continued to have trouble in the big firm. His partners told him he had to bill more hours if he wanted to raise his compensation back up. His partners told him to “market” himself and the big firm to find more work. “Sell the sizzle,” they told him. They would not give him any of their work because that would take away from their own hours and their own compensation.

So the third lawyer set out to market himself and the big firm, but he found that it detracted from practicing law. He didn’t want to be a salesman; he wanted to be a lawyer. Meanwhile his billable hours continued to dwindle, even though – and maybe because – he continued to be efficient. His compensation continued to dwindle, as well. He found himself growing dissatisfied with being a lawyer.

The first lawyer marketed himself, but he didn’t really market the firm. He figured he could someday leave the big firm and start his own firm. He wanted his clients to be loyal to him, not to his partners. As he spent more time “selling the sizzle,” it cut into his time for actually practicing law. So he started billing for hours he spent marketing, only he called it something else when he sent out his bills. Working with the second lawyer, he helped cut the third lawyer’s compensation, and they split the extra money between themselves. He still made more than the second lawyer because, after all, he had more clients and made more money for the big firm. He just threatened to take his clients and leave the big firm, so the second lawyer went along with him.

The second lawyer also wasn’t happy with the third lawyer because he didn’t think he was billing enough hours. The second lawyer billed lots and lots of hours, and played lots and lots of golf. He and the first lawyer made an uneasy alliance based on money, working to make sure they both made more money than the third lawyer. He helped the first lawyer in “selling the sizzle” but, like the first lawyer, he marketed himself, not the big firm. He didn’t want to have to share his clients or his money with the other two lawyers.

None of the lawyers in the big firm were happy with the fourth lawyer. He had started filing frivolous lawsuits along with good lawsuits, which made it hard to figure out which was which. He played tricks, hid facts, and coached his clients to lie. He, himself, was willing to lie in order to win. After all, that was the name of the game. If he couldn’t win, he couldn’t get his forty percent.

And as unhappy as the big firm lawyers were with the fourth lawyer, he was equally as unhappy with them. They buried him with paperwork and, since he was only one lawyer, he didn’t have time to respond to everything the big firm threw at him. That was one of the reasons he did some of the things he did to the lawyers in the big firm.

And God saw that it was bad.


Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT FOUR

Over time, the civil justice system changed. The changes were subtle at first, starting with changes in the lawyers. Then the changes made their way to the people.

The third lawyer continued to read fast, learn quickly, think well, and work efficiently. The rich and powerful still liked him because he gave them better results for less money. And that was the problem for the third lawyer – the “less money” part. His partners saw that he billed fewer hours and therefore brought in less money to the big firm than they did. They decided that if he billed fewer hours and brought in less money than they, then he should also make less money than they.

So they voted to reduce his compensation.

The first lawyer continued to work very hard. He worked long hours and worked late every day and kept working on Saturdays. The rich and powerful still liked him because he worked so hard and devoted himself to their cases. He began to think that his way was the only way to do things, and that his two partners should work as long and hard as he did. He began to check their offices at night and on Saturdays to see if they were working. Because they weren’t, he decided that they shouldn’t make as much money as he.

He thought the second lawyer should still make more than the third lawyer because he billed more hours and brought in more money to the firm. But since he didn’t believe the second lawyer actually worked all those hours, he should make a little less than the first lawyer.

The second lawyer continued to bill lots and lots of hours. He kept good records and wrote down lots of time. But the rich and powerful began to suspect that he wasn’t actually working all those hours. And he wasn’t – he had discovered golf. So he golfed on afternoons and on weekends, but he still wrote down lots of time.

The rich and powerful started to question his bills, and his two partners found themselves scrambling to justify charging the rich and powerful for all those unworked hours. But, by and large, the rich and powerful still paid most of the bills. So the first lawyer was happy as long as the money came in, but the third lawyer wasn’t happy. He thought his two partners were ignoring an ethical problem with the second lawyer.

The fourth lawyer continued to be a champion for the poor and lowly. He continued to get them money for their pain when they were hurt and continued to right wrongs when they were wronged, and to get them money for the wrongs. He continued to get money for the poor and lowly from the rich and powerful, and to get forty cents for himself for every dollar he got for them.

He learned that the worse he made their injuries sound, the more money he could get for them – and for himself. He also learned that they didn’t even have to be hurt if he could make it sound like they were. So he started advertising, trying to drum up more business that he could get money for. The big firm started calling him an “ambulance chaser” or, worse yet, a “TV Guide lawyer,” since he advertised in the TV Guide.

And God saw that it was not so good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT THREE

Things went well with the big firm for a while. The three lawyers got along famously.

The third lawyer was very smart. He read fast, learned quickly, thought well, and worked efficiently. In half the time, he could do the same amount of work as his two partners. The rich and powerful liked him because he was smart and efficient. With him, they got more work and better results for less money, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the third lawyer.

The first lawyer worked very hard. He didn’t mind working long hours, and so he worked late every day. He even worked on Saturdays. The rich and powerful liked him because he worked very hard and was not afraid to devote himself to their causes, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the first lawyer.

The second lawyer billed lots of hours. No one was sure when he actually worked those hours because they didn’t see him late at night or on Saturdays. But he kept good records and he wrote down lots of time. The rich and powerful liked him because when they looked at his bills, they saw that he was spending lots of time on their cases, so they sent him more business. His partners liked him because the rich and powerful sent him more business, and so they all made more money.

Everyone was happy with the second lawyer.

Things went well with the fourth lawyer for a while. When they were hurt, he got them money for their pain. When they were wronged, he got the wrongs righted – and got them money for the wrongs. The poor and lowly liked him because he got money for them from the rich and powerful, so they sent him more business. He liked the poor and lowly because, for every dollar he got for them, he got forty cents for himself.

The big firm liked him because when he sued the rich and powerful, the rich and powerful sent the cases to them, and that created more business for them, and so they all made more money.

Everyone was happy with the fourth lawyer.

Life went on in the big city. Justice replaced injustice.

The rich and powerful didn’t oppress the poor and lowly as much anymore because when they did, the plaintiff’s lawyer sued them and took some of their money. The poor and lowly didn’t scam the rich and powerful as much anymore because when they did, the big firm stepped in and saved the rich and powerful from the scams. A prayer of praise went up from the people, thanking God for giving them lawyers.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT TWO

Two of the new lawyers banded together with the first lawyer to create a firm, and they lived in one of the tall buildings downtown. They decided that their mission from God was to help the rich and powerful get richer and more powerful – and by so doing, to help themselves become rich and powerful. The rich and powerful promised to pay them for every hour the three lawyers in the firm spent working for them, provided the lawyers kept track of their hours very carefully.

It was a match made in heaven, for the rich and powerful had lots of money to spend on hours, and the lawyers had lots of hours to sell – sometimes as many as twenty-four in a day; sometimes more.

The fourth lawyer decided to stay by himself, so he set up an office in an old house on the fringes of downtown, in the shadows of the tall buildings. He decided that his mission from God was to help the poor and lowly become rich and powerful – and by so doing, to help himself become rich and powerful. The poor and lowly had no money, so he devised a scheme whereby he would make the rich and powerful pay money to the poor and lowly, and they, in turn, would pay him forty percent of everything they got from the rich and powerful – and he wouldn’t have to keep track of his hours.

It was a match made in heaven, for the poor and lowly had lots of claims to make against the rich and powerful, and he had all the time in the world to devote to the poor and needy.

The fourth lawyer called the first three lawyers a “big firm.” The first three lawyers called the fourth lawyer a “plaintiff’s lawyer.” Together they formed the civil justice system.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

Lawyers (A Morality Tale in 6 Acts)

ACT ONE

Once upon a time in a big city with tall buildings downtown, the rich and powerful lived side-by-side with the poor and lowly. And injustice reigned.

The rich and powerful oppressed the poor and lowly.

The poor and lowly scammed the rich and powerful.

And a mighty cry for deliverance went out from the people, a prayer to God to save them from themselves.

God heard the cries of the people and had compassion. So God created a lawyer. The lawyer created a system of laws to govern the big city. He imposed that system of laws upon both the rich and powerful and upon the poor and lowly. And the injustice subsided.

And God saw that it was good.

But the rich and powerful soon saw a chance to use the system for their own ends. The lawyer needed money to live, so he agreed to sell his services to the highest bidder. The rich and powerful had money to pay, while the poor and lowly had none, so the rich and powerful hired the lawyer as their own.

Soon the rich and powerful again oppressed the poor and lowly, but this time under the weight of the law. So the poor and lowly cried out for deliverance from the rich and powerful and their lawyer. “There are too many people for one lawyer,” they cried. “Please give us more lawyers.”

God heard the cries of the poor and lowly, and had compassion. So God created three more lawyers.

And God saw that it was good.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

HOW TO GET REJECTED

The road to publication, just like the road to hell, is paved with good intentions. Most writers don’t intend to shoot themselves in the feet, but somehow that gun just seems to go off when they least expect it. While the crippling shot may occur during the actual writing of the manuscript, it often occurs during the query or the submission stage. Either way, it can undermine the best of intentions and derail the publication train before it ever leaves the platform.

On the other hand, some writers seem deliberately determined to shortchange themselves and their chances, particularly when querying agents. They don’t accidentally shoot themselves in the feet; instead, they appear to intentionally pull the trigger and fire as many shots in rapid succession as possible. So, if you’re one of those writers who fears success – who wants your query letter to exuberantly leap into the large “rejection” pile instead of finding its way into the much smaller “please submit” pile – this article will give you helpful hints for achieving rejection.

Tell your potential agent or editor you’ve written a fiction novel. Even though a novel is fiction by definition, calling it a fiction novel allows you to destroy, up front, any confidence they might have that you know what you’re doing. Better yet, call it a fictional novel – that means your novel doesn’t actually exist and they can send a fictional rejection.

Tell your potential agent or editor too much about yourself. Sure, they’d like to know what writing experience you have and how your background gives you credibility for your subject, but I’m not talking about that kind of information. I’m talking about information like this from an actual query: “I’m 34, having trouble finding work & am living with my parents.” George Costanza, is that you?

Tell your potential agent or editor that your book is a surefire bestseller. Or tell them how much money you’ll make for them. “Send for my screenplay, read as much as you like, then when you see how great it is and how much money we’ll win, put it on your schedule to market it. I would like at least $800,000. (It’s that good.)” Most agents move e-mails like these into a special mailbox along with other “special” e-mails. Then, at the end of the day, they’ll sit back with a steaming cup of Kona coffee and read about winning the UK lottery, opportunities to help Nigerians invest money in the U.S., and the promise of untold wealth from commissions off your future bestseller. They’ve already got the money spent.

Badmouth yourself or your own work. This is the converse to the previous tip. I saw one query that said, “I never made it out of high school and have been in the army since the age of 17 so my actual writing skills may not be up to par with what you would be used to.” Another said, “My writing style needs a lot of assistance, please do not reject the story based upon my ability to tell it on paper.” Yet another said, “I do not consider myself a good writer, my key board [sic] skills are poor, my spelling is awful and I have forgotten most of what I learned about punctuation.” Need I point out the irony of these correspondents seeking representation as writers?

Misspell as many words as possible. Pretend your computer doesn’t have Spellcheck. Consider this actual e-query: “I have just complete my frist drama script of a series of twenty. I want an anget who can work with me until it gets to the move production house.” Or consider this: “I, am writeing ahorror story. Ti is about a teenage girl that is hoving dream,s about people walking to her with there arm,s out crying asking her to help them.” I pitty the pour riters who kan’t spel or punkchuate any better then that.

Conversely, rely too heavily on Spellcheck. A writer who was writing about the world of magic wrote: “My family holds patents on some elusions reviled in this novel. They were performed during their world wild acts.” I’m just guessing, but I think the writer meant “illusions revealed.” I’m open as to whether “world wild acts” is correct or should have been “worldwide acts.”

Don’t follow submission guidelines. One query started, “Yes, I know it was recommended that I not exceed one page. However, I do not believe the ‘four or five sentences’ of the ‘preferably one paragraph’ is enough to communicate what I am asking you to consider.” Just look at the genius of this statement: This writer went so far as to let the agent know he was intentionally disregarding the submission guidelines. That way the agent wouldn’t think he was simply making an innocent mistake. Genius, I tell you – pure genius.

Respond unprofessionally to rejection. Don’t just accept rejection with grace and dignity. No, instead fire off a reply that says something like “Your loss” or “Your mistake” or better yet, “You strike me as pathetic.” (So what does that make the writer? After all, he’s the one who got rejected by the pathetic.) Or perhaps best, “I’m a 69 year old retired man, who used to chew people like you up and spit them out for practice.” Yikes! I’m not ashamed to admit I actually trembled when I got that one. I still tremble today when I re-read it.

Be overanxious. If you haven’t gotten a response to your e-query within 48 hours, send something like this: “Is it that no one reads e-mail or you just don’t answer any? I find your agency to be totally lacking in business ethics – typical of an attorney who couldn’t make it in private practice.” What a low blow – attacking an attorney when he’s down. That one made me weep. Even today, my self-esteem is so low I can’t look myself in the mirror. Excuse me – I’m getting a little misty here.

Be partially incoherent: “I Am A Freelance Journalist and Columnist writes to YOURS from remote India REGARDING FOR HELP FROM YOURS LITERARY AGENCY HELP – FOR A BREAK TO MY FUTURE AND RECOGNITION FOR MY WORKS.” I think I know what this writer is asking. It’s in the subtext, you know. Plus there’s that subliminal thing of slipping the word HELP in there twice HELP. And don’t we all want a break to our futures and recognition for our works?

If being partially incoherent won’t get you rejected, try being totally incoherent: “Writers address learning, personal &fundamental issues. Some plagued by elusive,idealized understanding. Fears, doubts &mystery . . . Not able to find &use worthy self-venture set-void in endeavor often-obligated &omenous-pulled in,unsettling intent of a writer. In a difficult outstandingly, taught world.” No clue what this one means. Then again, I am a mere mortal and perhaps not on the same intellectual level as the writer. I particularly liked the creative spacing and punctuation. Are mind-altering drugs at work here, perhaps? Groovy, man!

This is by no means an exhaustive listing of ways to ensure rejection. After all, success isn’t for everyone.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

WHAT’S THE DIFFERENCE BETWEEN MEDICARE AND MEDICAID?

Generally, Medicare is a federal program which bases eligibility solely on age and/or disability. In terms of nursing home care, Medicare is limited to covering care in skilled nursing facilities, after a patient has been in the hospital for at least three days. Coverage is restricted to a finite period of time, up to 100 days, but in practice usually only about 10-20 days for rehabilitation.

Coverage through Medicaid, a joint federal and state program administered by the states, is quite a bit broader. Eligibility is based on age, disability, and/or income and financial resources. Medicaid will potentially cover long-term “custodial” nursing home care for eligible individuals. If Medicaid is invoked based on financial eligibility, a “look-back period” of 3-5 years will be used to see if any assets have been transferred for less than market value in an attempt to become eligible. If so, a penalty in the form of a period of denied eligibility may be enforced. The Deficit Reduction Act of 2005, passed by Senate in December of 2005, has tightened the regulations on this.

If you would like more information or would like to speak to an experienced lawyer, please contact Tipton Jones.

Paul W. Tipton

(214) 890-09941

ptipton@tiptonjoneslaw.com

Asbestos Disclosure in Commercial Leases

Landlords and tenants very often overlook asbestos disclosures in leasing commercial real estate. Owners and managers of commercial buildings constructed before 1981 must notify their tenants of the presence and location of known asbestos containing materials and presumed asbestos containing materials that the tenant’s contractors or employees may encounter. Tenants must in turn notify their employees and contractors of such materials. Asbestos in buildings constructed after 1981 must also be disclosed as well. Failure to make asbestos disclosures can subject a landlord or tenant to fines and other penalties by OSHA and/or the EPA. The federal rules are set out in 59 Fed. Reg. 40964, 29 C.F.R. Section 1910.1001, 1926.1101, and 60 Fed. Reg. 33974. OSHA has published plain English discussions of its rule for general industry and the construction industry. For more information and to contact experienced legal professionals please visit our website.

Paul W. Tipton

(214) 890-0991

ptipton@tiptonjonesllp.com

Domain Name Disputes – No Uniformity

It is amazing to me how non-uniform the decisions issued under the Uniform Domain Name Dispute Resolution (UDRP) procedure can be. I have handled many of these disputes, with a substantial degree of success, but the lack of uniform, predictable decisions still concerns me. ICANN (the Internet Corporation for Assignment of Names and Numbers) has received numerous complaints regarding the lack of fairness in the process, but incremental changes (if any) have been the result.

I have not seen any outright bias or conflict of interest in the dispute resolution process, at least yet, and I think the panelists appointed to determine disputes over ownership of domain names try to do their best. They are certainly required to be impartial. (See UDRP Rule 7 – “A Panelist shall be impartial and independent and shall have, before accepting appointment, disclosed to the Provider any circumstances giving rise to justifiable doubt as to the Panelist's impartiality or independence.”) In all fairness to ICANN, with a global dispute resolution process such as this one, there will always be a certain degree of non-uniformity in the process. It certainly exists in the courts, so we should not hold WIPO or NAF (the two non-Asian arbitration organizations that handle UDRP disputes) to a different standard. However, the amount of contradictory opinions involving almost identical domain names and arguments can be shocking. The unfairness of the situation is enhanced by the absence of an effective appeal process.

Many suggestions to make fundamental changes to, or eliminate altogether, ICAAN have been advocated, and each one would have a massive impact on the ways that disputed ownership of domain names are determined. These include letting the US Government perform ICANN's tasks directly, assigning ICANN's tasks − including administration of the UDRP − to the International Telecommunication Union, and creating a new non-profit organization to take over for ICANN. I think I would rather have to deal with the U.S. government than the ITU, but that's not a ringing endorsement of either option. A new non-profit entity would be faced with the same challenges regarding domain name dispute resolution as ICANN. The problem lies with a lack of clear direction, akin to stare decisis in the common law, establishing concrete substantive principles under the UDRP, coupled with the absence of an effective appellate process. To contact experienced legal professionals please visit our website.

Murray Camp

(214) 979-0100

mcamp@tiptonjoneslaw.com

Welcome

Welcome to the revised Tipton Jones website and to our blog. We hope you’ll check out our website and learn a bit about us and our practice. We also hope you’ll stop by our blog from time to time to see what’s on our collective mind. Various of our attorneys will post here, on topics ranging from changes in the law and recent cases to comments on current events and how the law can affect your life. We might even venture an opinion or two about the Cowboys. It’s our goal to enlighten, help, educate, and maybe – just maybe – to entertain. So please feel free to come back. Thank you.
Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com