Arbitration. Mediation. Settlement Conference. Huh?

March 5, 2014

Arbitration. Mediation. Settlement conference. The same thing? Different? And the answer is (and, attorneys, be quiet):  YES!

Arbitration

With arbitration the parties pay the arbitrator—sometimes there are three—to decide the case, instead of letting the judge—paid with tax dollars—handle things. The decision may or may not be binding; in most instances involving non-binding arbitration, however, the appealing party may be subject to a sanction if the outcome in case #2 is not better by some amount than the arbitrator’s decision. (Some Arizona courts use this system to deal with smaller cases.)

Arbitration clauses show up often in boilerplate consumer contracts. The U.S. Supreme Court loves arbitration, even though—or maybe because—the process costs lots of money and deals poorly with

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The Rabbi, the Airline, and the Supreme Court

March 3, 2014

Got miles? No, not milk, miles!

The U.S. Supreme Court has before it for a decision Northwest, Inc. v. Ginsberg. The case was argued on December 3, 2013, and will almost surely be decided by the end of the Court’s 2013-14 Term.

Rabbi S. Binyomin Ginsberg got fired from the Northwest Airlines frequent-flyer program for calling too often and complaining too much. No more miles, so he sued.

The case involves the Airline Deregulation Act, as amended as recently as 1994. Basically, the law preempts, or bars, claims brought by individuals that relate to “a price, route, or service of an air carrier that may provide air transportation … .” Rabbi Ginsberg sued, claiming Northwest breached its contract with

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Will Basics

March 2, 2014

A Last Will and Testament provides your instructions about your estate, both with respect to administration and distribution. Wills also often include instructions about minor children. If you have minor children you need a will, for sure. Even if you don’t have minor children, having a will should be on your bucket list.

A will addresses administration most directly by identifying a Personal Representative. (Personal Representative is the gender neutral substitute for executor/executrix, and became part of the proper terminology in Arizona when the state adopted the Uniform Probate Code 40 years ago.) The Personal Representative has as his or her tasks, in simple terms, gathering and distributing assets after paying creditors. There’s more to it than that, but those

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Five Chiefs by John Paul Stevens

February 27, 2014

John Paul Stevens served as an Associate Justice on the U.S. Supreme Court from December 1975 until June 2010, about 34 and one-half years. During his tenure—the third longest in Supreme Court history[1]—he served with Chief Justices Warren Burger, William Rehnquist and the current Chief, John Roberts.

Five Chiefs is a delightful, 250-ish page memoir of the first 91.5 years of John Paul Stevens’ life. (He’s alive and fast approaching his 94th birthday.) The five Chiefs include, in addition to the three I already mentioned, Fred Vinson (in place when Justice Stevens clerked for Justice Wiley Rutledge) and Earl Warren, before whom he appeared in his only oral argument before the Court. (Non-attorney readers:  an appearance

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Signing Matters!

February 26, 2014

Signing matters! With attorneys, signature lines often reflect the signor’s capacity, i.e., whether the signor signs as an individual maker or as an authorized signor for a business entity, and whether the signor is guaranteeing the debt of another. In form settings—you are leasing a copier, or buying web or Yellow Pages advertising—much gets murkier. And in the guarantee setting, both borrowers and lenders often pay too little attention to the rules. (We’re talking about extending credit here, so lender/borrower terms are used more broadly, and are not terms limited to situations involved traditional loans.)

Here’s on primer on signing:

Form Contracts.  If the contract involves a business matter, and your business operates through a limited liability company

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Make a Will Month

February 24, 2014

Saturday March 1 marks the beginning of Make a Will Month. I can find no information on the origins of this event, but I believe it’s a creation of the nonprofit sector, having as dual purposes encouraging people to make sure their affairs are in order and leaving some money for those in need.

Whatever its origins, Make a Will Month provides an excellent opportunity to focus on the task that, for far too many of us, always seems to be at the bottom of the “to do” list. For some the delay factor is perceived immortality. For others it is mortality and the fears that attend the certain outcome we all face. And for others the issue becomes “who

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Guardians and Conservators/The Basics, in 663 Words

February 23, 2014

In Arizona guardians look after the person, while conservators take care of their assets. (Labels vary from state to state.) Guardians may be appointed for minors or incapacitated adults. Minors need guardians when their parents have died, or when parental rights have been severed. Incapacitated adults need guardians when they lack capacity, often because of Alzheimer’s or another form of dementia.

Courts appoint conservators for minors, who cannot have money (allowance and a savings account do not count) and for adults who need help with their financial affairs. For children, the most common events that trigger the appointment of a conservator are the receipt of money from an accident settlement and the death of a parent whose will has no

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The Home Buying Process

February 20, 2014

Real estate transactions are process-driven creatures. For many people, however, the process can be a mystery, where steps occur and the deal flows along without any meaningful appreciation for what’s happening. Herewith, a primer:

So you’ve found a home you want to buy in Arizona. Let’s assume you’re working with a real estate agent. You want to pay $450,000, and you’re a cash buyer, i.e., you don’t need financing.

Step one involves a written offer. Your agent can and will help you prepare the offer. Usually, your offer will be on a contract form (provided by the agent), and may be called a Deposit Receipt and Agreement, or a Residential Resale Real Estate Purchase Contract. Read this document, for

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The U.S. Supreme Court Docket

February 17, 2014

My friend the judge—when I call him to go to lunch he answers “this is the judge”—never wants for business. He takes what comes and if he recuses himself because of a conflict—he knows one of the parties, one of the attorneys is a very close friend, etc.—someone else will have to handle the matter. That is the way of judging at the trial level and in most appellate courts.

Alas, the highest appellate courts in the states and the United States Supreme Court control their dockets mostly, deciding which cases to hear and not hear. (Certain states mandate “highest court review” of all cases involving a death sentence.) The United States Supreme Court has original jurisdiction over a very

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Probate!

February 16, 2014

Probate means, most narrowly, “proving a will,” and derives from the Latin verb probare (try, test or prove). In fact, its practical definition is much broader.

Generally, probate refers to the process for handling an estate after death. Thus, probate matters can involve the estate of an individual who dies with a will (testate), or without one (intestate). Probate cases involve the courts, and in most instances are about and only about gathering assets, paying debts, and distributing what is left over.

Probate also refers to the court and laws that exist to:  (a) address the administration of decedent’s estates; (b) handle trust disputes; and (c) appoint and supervise guardians (protectors of the person) and conservators (protectors of property)

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