So you’ve found yourself involved in a legal matter and you’ve decided to represent yourself.  Maybe you’ve just received a copy of a complaint which was filed against you.  Maybe you’ve received a letter from an attorney who claims to represent someone against you.  Perhaps a neighbor who’s borrowed your tools now refuses to return them and you’d like to be reimbursed for their loss.  Regardless of how it happened, you’re facing the prospect of diving headfirst into the legal world.  Where do you begin?

Fortunately, there’s an easy answer.  If you have decided not to hire an attorney to represent you in your legal issues, the first thing you need to do is research.  Research is probably the most critical part of preparing for your case, no matter what the case is actually about.  As it turns out, the legal world can be incredibly complex. Even seasoned attorneys spend a huge chunk of time researching the issues and law involved in a case.  You can bet that any other attorneys involved in the case, their clients and the judge are spending a significant amount of time researching – if you are not prepared to do the same you run the risk of seriously hurting your chances of winning.

First, you need to identify the issues in the case.  Are you being sued because a former business partner thinks that you breached a contract?  Did you get pulled over because you were speeding or because you ran a stop sign, or both?  What facts do you have to prove to show that the person in the Wal-Mart parking lot was negligent when they backed into your car?  Learn what it is that you are trying to prove, or what defenses you have for your conduct before you prepare to make your case.  Once you have identified the issues, it’s time to research.

There are several methods by which you could begin researching the issues in your case.  You could apply to and enroll at a law school, spend three years and significant amount of money learning the basics of law and practice, and pass a bar exam, at which point you might have an idea how to prepare your case.  This is probably not the most cost and time-effective way of going about dealing with a minor legal issue, however.  Instead, rely on the rich variety of resources available at your fingertips.

The most accessible resource is obviously the internet.  There are many excellent sources of information available, free-of-charge, just a mouse-click away.  For example, Cornell University Law School’s Legal Information Institute, found at http://www.law.cornell.edu, provides an enormous amount of information related to the Constitution, federal and state statutes, and information designed to make the law more accessible to non-lawyers.  Likewise, companies such as Westlaw (www.westlaw.com) and LexisNexis (www.lexisnexis.com) publish an exhaustive number of court decisions, statutes, and other resources which are used by lawyers on a regular basis.  These are excellent places for you to begin your search.  Note that some of the best databases such as Westlaw and LexisNexis require a subscription or access to a law library (more on that in a bit).  The Legal Information Institute is free.

A word of warning though: while the internet has tremendous value as a means for locating relevant study materials, you should be extremely careful about the reliability of those materials.  For example, don’t rely on Wikipedia – while information there can be correct and is frequently a way to gain a general understanding of a subject, it is impossible to gauge how accurate that information is.  Always rely on a reputable source.

Another excellent source of legal information is your local law library.  Law libraries frequently have large collections of books containing key case law at both the state and national level, and, more importantly, usually have a public subscription to Internet services such as Westlaw and LexisNexis.  Thus, a visit to a law library can be an extremely cost effective method of doing your research.  Note that not all local law libraries are open to the public.  For example, the Toledo Law Association Library’s computers and online services are only available to members.  On the other hand, the Wood County Law Library, 25 minutes to the south, is open and available to anyone wishing to use its resources.  To locate a law library near you in the state of Ohio, visit http://www.clelaw.lib.oh.us/public/misc/colawlib.html, which contains the address and contact information for county law libraries throughout the state.

Using the types of resources discussed above should give you a head start on understanding the legal issues you face.  If you are representing yourself in a legal matter, take the time to familiarize yourself with these sources of information.  Winning a legal battle requires that you understand the law you are dealing with – now you know where to start looking.  Next time, we’ll discuss the differences between statutes, case law and other types of legal authority in order to help you narrow down your search.

Adam is an associate attorney at Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.  This article is the second in a multi-part series providing practical tips for pro se parties representing themselves in a legal action.

We all have our favorite legal show—whether it’s Law and Order, Judge Joe Brown, or my personal favorite, the Three Stooges classic “Disorder in the Court”—and just about everyone knows (or thinks they know) a little about how the legal system works.  In some of those shows, the people arguing the cases aren’t lawyers; they’re just regular people arguing their own cases in front of a judge without the help of an attorney.  What these people have to do usually isn’t very hard; in fact, you’ve probably even said to yourself, “I could do a better job than he could!”  Maybe you’ve even considered representing yourself in a legal issue—after all, who needs a high-priced attorney when you can go it alone?

Let’s be clear, though: watching Judge Judy once a week or having “TiVoed” a few episodes of Boston Legal does not make you qualified to argue your case in front of a judge or jury—the real-life legal system is not like what you see on television.  There are many factors to take into consideration before deciding to make the (potentially life-altering) decision to represent oneself in court.  In this article and those that follow, I’ll give some tips and point out some potential problems to anyone considering acting as their own lawyer in handling a legal issue.

A person who represents himself or herself in a court of law or another legal capacity is said to be acting pro se (pronounced “pro say”).  Pro se is a Latin term—and get used to Latin if you decide to represent yourself, since many of the legal terms still in use today derive from Latin—defined as “for oneself; on one’s own behalf; without a lawyer” (see Black’s Law Dictionary, 8^th Ed., p. 1258).  People choose to act pro se in legal proceedings for a variety of reasons: they may wish to avoid the expense of hiring an attorney, the issues involved in the case may be simple enough to handle on their own, they may want to control their own case directly, and so on.

There are certainly situations in which it may make sense to act as your own attorney, such as certain legal matters that may be simple enough to handle on your own.  In Small Claims courts, for example, the amounts being disputed are frequently fairly small, while hiring an attorney can cost hundreds of dollars per hour!  If you’ve been sued for a small amount (a few hundred dollars, for example) it may not make sense to pay an attorney—your costs are going to outweigh any potential benefit.  On the other hand, remember that in the legal world there is no such thing as a “one size fits all” approach.  For example, if you’re only being sued for a few hundred dollars but losing the case means that you’ll miss a house payment or a credit card payment, choosing to represent yourself when you have other legal options may not be the best idea.  Remember that even seemingly simple situations can have far-reaching consequences.

Although I’m a bit biased, being an attorney myself and getting to see the advantages and disadvantages of hiring a lawyer from an up-close perspective, I’m a firm believer that at least in situations where a legal action (such as a lawsuit or criminal charge) is pending or may be filed in the future, it is wise to hire an attorney or at the very least to talk with one to get an opinion on whether legal services are needed.

Don’t EVER make the decision to represent yourself without carefully considering the potential outcome of that decision.  If you choose to represent yourself, the odds are that no matter how good your legal position may be (or how good you think it may be), you will be at a serious disadvantage in most situations.  Opposing parties who have hired lawyers will have access to trained professionals who understand the complex and challenging court system, who know how to try cases, who understand judges and juries, and who have access to research and resources that you may not even be aware of.  Even worse, legal professionals—whether they are opposing attorneys, court personnel, or even judges—will assume that you don’t have an understanding of “the way things work.”  They may view you as a burden on their time and energy and anticipate that you will struggle with doing things the “right way,” even if those assumptions are wrong.  While you technically have access to an equal playing field when it comes to representing yourself in a court of law, the reality is that the legal system tends to favor parties who hire attorneys.  You will need to be prepared to face these hurdles if you are to be successful in representing yourself.

My goal in this article and those that follow is not to provide you with a perfect plan in which you are guaranteed success if you represent yourself—there are no guarantees in the law. Every person’s situation is different, and every legal decision is the result of a lot of different factors; what works for one person might not be effective in another person’s case.  So, instead of looking for a foolproof strategy, please use this information as a resource to learn some steps you’ll need to take if you decide to act as your own lawyer.

Remember, no single approach to resolving a legal action is foolproof.  While you can’t guarantee success or even a good likelihood of success, you can improve your chances by using common sense and being well prepared.  Representing yourself in a legal matter is an intimidating thing to do, so you should only make the decision to do so if you’ve carefully considered your options and are prepared for the results.  Consider talking to an attorney to see whether hiring one will even be necessary; many attorneys will offer an initial consultation for this purpose without charging a fee.

Although the articles in this series will be written with those in mind who are actively involved in a legal matter, the concepts they will discuss can be applied to almost any aspect of the law.  If you’ve made it this far and you feel that representing yourself is the best course of action, hopefully the rest of the articles in this series can provide some useful guidance. 

Finally, and most importantly, remember that no article can provide a substitute for legal advice specifically tailored to your situation from a licensed attorney.  Consult a lawyer if you have any questions about the legal issues you are facing.

Adam is an associate attorney at Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.  This article is intended to be the first in a multi-part series providing practical tips for pro se parties representing themselves in a legal action.

              “Medicaid is the single-largest program in the state budget, with funding across several agencies.  The Ohio Department of Job and Family Services has the largest Medicaid line item with recommended GRF (General Revenue Fund) appropriations in FY 2012 of $11.8 Billion and $13.2 billion in FY 2013.”  (Overview of Governor Kasich’s Budget/Budget Summary Book/FY 2012-2013 Biennium)

               As Medicaid is such a large part of Ohio’s budget it should be no surprise that, to the extent possible, the Attorney General of Ohio (AGO) is charged with obtaining repayment of Medicaid benefits once a Medicaid recipient has died.  All assets owned by a Medicaid recipient, at the time of their death, whether real property or personal property, are subject to collection.  This includes but is not limited to property that passes through probate. 

               The executor/fiduciary of the estate of a Medicaid recipient is responsible to notify the AGO of the death of the recipient, at which point the AGO will present a claim.  If the fiduciary does not notify the AGO then the time for presenting a claim (statute of limitations) does not run out.  If funds are distributed prior to informing the AGO or before the AGO finds out about the property, the heirs or family members may be ordered to repay the State.  Over the years many offspring of Medicaid recipients have expressed disappointment that the State has any claim to assets of their deceased parents; those same individuals typically did not have a problem utilizing the Medicaid program to take care of their parents while they were alive.  The law requires, and the other citizens of the State of Ohio need, the family members or heirs to repay those assets deceased recipients had in order for Medicaid to continue to be viable in Ohio.

               If you have a question as to whether a decedent was receiving benefits under the Medicaid Program the Medicaid Estate Recovery Unit of the AGO is located at 150 E. Gay Street, 21st Floor, Columbus, Ohio 43215-3130 or contact me and I will contact the AAG in charge of the program to make the inquiry.  It will often take a couple of months for all of the charges to be posted by ODJFS.

Powers of Attorney need to have language in them regarding disability or they will not be effective after the grantor of the power becomes disabled.

Section 1337.09(A) of the Ohio Revised Code states in part,

Whenever a principal designates another as attorney in fact by a power of attorney in writing and the writing contains the words “This power of attorney shall not be affected by disability of the principal,” “this power of attorney shall not be affected by disability of the principal or lapse of time,” or words of similar import, the authority of the attorney in fact is exercisable by the attorney in fact as provided in the written instrument notwithstanding the later disability, incapacity, or adjudged incompetency of the principal…

In a recent matter handled in our office, our review of a power of attorney, prepared (not by our office)  out of state, failed to contain the above language.  The result requires a guardianship to be established to take care of the principal.  Going through the formality of the guardianship is much more expensive and time consuming than having a properly drafted power of attorney.  If you have a question contact our office to review the document.

Early planning is key when addressing the issue of an owner(s) successfully exiting a business.  In 2003, it was estimated that within 20 years more than 90 million baby boomers will retire and more than $10 trillion will transfer to the next generation.  The largest generational transfer of personal wealth in history will occur during this time.  Seventy percent (70%) of the 12 million privately owned business will change hands.  (MassMutual & Raymond Institute’s American Family Business Survey 2003)

Most of these businesses are short on cash to fund a buyout.  Many of these business owners, because they do not have a family member(s) active in the business or a strong management team in place willing to take on the risk, will chose to sell their businesses because it is the only viable alternative available.  Many of those will have to sell at a price well below what they anticipated to be the fair market value of their business.  Some will find that they will have to operate the business well beyond the age at which they would have preferred to retire.  Others will find that simply closing the business and liquidating the assets is the most viable option.  These options frequently result in dissatisfaction on the part of the owner(s).  They are either unhappy with the net cash realized or the need to work well beyond their desired retirement date; consequently, these issues are often ignored by owners until it is too late for effective planning.

Sometimes, the highest dollar value can be achieved by selling the business to someone already involved in it.  This may also be the most risky.  For example, if the successor fails to operate successfully, the former owner may find he or she is right back in a business from which they thought they had retired.  A spouse of a deceased owner may find that he or she may have to step into a business they know little about when the new owner operator fails to meet payment obligations.  It is even more complicated if the new owner is a family member.  Achieving this higher dollar value means you are not really out of the risks associated with the business, such as the market generally, dependence on the business skills of the successor and the size of the burden assumed in relation to the businesses ability to meet the obligation.

Many of these issues can be effectively addressed if the parties have in place a buy sell agreement that covers the issues well before the event occurs that may trigger a buyout.  An agreement typically addresses value; provides a method of payment and addresses other issues such as divorce, personal bankruptcy, disability, future incompatibility of owners, retirement and death.  If the business owners are multiple generations of family members, the agreement can address the various issues among the members of the generations.  One of those issues often concerns the rights of the operating generation to reinvest in the business, versus the rights of non-operating family members who are looking for a stream of income from the business.  These issues are complex and the right answers change, based on the personal dynamics of the people involved and therefore one size does not fit all.  Because of these competing interests, multiple representatives of the various individuals involved may be required.  The process may be frustrating and expensive.  Discussions will often involve consideration of life insurance, disability insurance, deferred compensation and reasonable payment period and valuation.

However, if done properly, the issues that keep owners up at night can be successfully addressed resulting in a secure retirement from the business.

A well drafted buy sell agreement is a critical document for a closely held business.  It is useful in order to keep ownership within a family or limited group of owners, avoid termination of a Sub-S election or partnership, create a market for an owner’s interest and establish an orderly method for liquidation of an owner’s interest upon death, disability or retirement.

Any business where there is more than one owner should consider the advisability of such an agreement.  Unless registered as a publicly traded company there is generally no market for the ownership of an interest within a company whether it is a corporation, partnership or LLC unless the owners themselves create such a market.  This should be of particular concern if the owner is a minority owner.  A minority owner is one who generally owns less than voting control which in many states is 66 2/3% of the voting power of the company.

Many family businesses employ sons and daughters-in law in the business but are often concerned about other in-laws acquiring an interest who could later pass that interest on to even more distant relation or unknown owners.  The agreement should address these issues through restrictions on transfers, mandatory purchases upon divorce or death of the original owner and conversion of an ownership interest to a non-voting interest upon a triggering event.

The agreement can provide a mechanism for the patriarch to sell control to one or more business children, with payment made over a period of time, so as to treat fairly other non-business children.  More family business have been destroyed, from my observations of over 30 years in practice, by patriarchs dividing ownership evenly among all children whether involved in the business or not so that no one child has control of business decisions.

The agreement can also provide a mechanism for resolving business disputes.  This is especially important if ownership is divided so that no single owner has control.  While minority owners have certain protected rights by law (see my January 2, 2011 blog) enforcing those rights can be expensive and can ultimately harm the business of the company if the majority owners have to be constantly looking over their shoulders to gauge the reaction of a well-heeled minority owner prepared to fight.

A buy sell agreement is a document not easily discussed in one article and has permutations that need to be discussed in detail.  Therefore, over the coming months I will explore the various common provisions of business buy sell agreements on an individual basis through a series of articles.

Over the past few months, I have been approached by a number of clients inquiring about the advantages of a revocable living trust.  Based on information received at various seminars or perhaps advertising pieces received in the mail, some of these folks have developed the erroneous impression that their estate plan would not be complete without the inclusion of a living trust.  Under the right set of circumstances, a living trust may well be the proper estate planning vehicle for the disposition of a client’s assets at death, but there may be other, less costly alternatives for achieving the same result.

 
Generally speaking, legal fees tend to be greater for an estate plan that includes any kind of trust and the fees will vary, depending on whether there are tax issues to address, the overall complexity of the trust, as well as the attorney’s degree of expertise in estate planning.  Other related fees may be incurred in connection with the creation of a trust, including appraisal costs with respect to the assets being transferred, accountant’s fees, and the fees associated with re-titling real estate or other business interests.  Once the trust has been created, trustee fees may be incurred, which may vary widely, depending on whether the grantor has delegated responsibility for the ongoing operation of the trust to a family member, friend or corporate trustee.

 
Notwithstanding the costs associated with the creation and ongoing operation of a trust, there are certain situations where a revocable living trust may serve as the optimal tool for meeting certain client needs during his/her life and for the disposition of client assets at death.  During life, clients may rely upon a trust and the trustee to handle day-to-day finances and the management of trust assets where the client is facing physical and/or mental health issues or where the client’s occupation or extensive travel schedule prevent the client from handling his/her own personal affairs.  Moreover, privacy issues may predispose clients toward using trusts, since items deposited into trusts not only avoid probate, but also avoid becoming matters of public record.  Many times clients in second-marriage situations, where one or both spouses have children from a prior marriage, consider using a trust which, at the client’s death, is managed by an impartial trustee to balance the competing financial interests of the surviving spouse and children from the prior marriage. 

These are but a few reasons why a client may be interested in having a revocable living trust; keep in mind, however, if a client’s primary reason for establishing a living trust is to avoid probate, there are many other devices or techniques available.

Having been licensed to practice law in Florida since 1999 and having worked with Ohio residents who own real estate in Florida, usually when administering an estate; I have been amazed at how many Ohio residents own real estate in the state of Florida.  Many do so because after a short two hour flight you can be in the tropics.  A great break from the harsh Ohio winters.  Others want to spend their retirement years in a place that is warm, income tax free and estate tax free.  Ohio is one of 17 states that still has an estate tax; and now, real estate is relatively cheap in Florida.

Florida has a unique homestead law.  Florida’s homestead law is found in its constitution and was first enacted in 1843.  Because it is in the constitution the state legislature can not change it unless by a constitutional amendment which requires a favorable vote of the citizenry of Florida. It affects three different aspects of real estate ownership in Florida.

• Exemption from creditor’s claims
• Restrictions on alienation
• Tax exemptions and benefits

To qualify for the homestead exemption, the real estate must be owned by a natural person who claims the real estate as their primary residence.  How you own the property or what type of property ownership is usually not an issue.  For example ownership can be in a trust, life estate, leasehold interest, mobile home, condominium, cooperative or boat, but does not apply to any portion of real estate used for a commercial business. Homestead is established by submitting a homestead application (Florida Department of Revenue Form DR-501) to the appropriate Property Appraiser’s office on or before March 1^st of the year for which the exemption is sought.

From a local tax perspective a person claiming homestead has the first $50,000 deducted from the assessed value of a primary residence before taxes are assessed.

Creditors, other than the taxing authority for assessed taxes and the lender with a mortgage on the property, can not force the sale of the real estate or lien the property.  This applies to qualified homestead property for up to one-half acre of contiguous land in a municipality and 160 acres outside a municipality.  Bankruptcy law exemptions and Federal tax liens supersede Florida’s law.

In a like manner, creditors of a decedent can also be forestalled from claiming a decedent’s qualified Homestead, especially if there is a surviving spouse and minor children.

Florida’s favorable homestead laws are certainly one item to consider if you are considering changing your primary residence to Florida.

In December of 2010 a former partner and friend of mine died unexpectedly.  He was only 56 years of age at the time, had gotten divorced a couple of years before his death and had not made the necessary plans for the hard times that faced his parents and children in dealing with the last week of his life.  The fact that he was an accomplished attorney, estate planner, CPA and college business professor, makes this a lesson that all of us should learn from.

I will not hold myself out as an accomplished elder lawyer or estate planner, I have other partners and associates who possess those skills.  While I have written lots of wills and powers of attorney over the years, what life has taught me is that planning should not be put off.  Here is a link to blank Ohio health care power of attorney that I believe almost anyone could fill out.  You should consult an attorney if you have legal questions about the form or for the preparation of wills and trusts, which I believe laymen should not attempt.  In tribute to my friend and former partner please feel free to contact me with your questions and if I can’t answer your questions, I will forward them on to others in my office who can.