Trick-or-Treating Safety Tips from Wiseman Bray

personal injury lawyer memphis tn

Halloween is such a fun time of year, especially for children.   Sadly, it is also a very dangerous night for kids.  On average, twice as many child pedestrians are killed while walking on Halloween compared to other days of the year.  Only 18% of parents use reflective tape on their children’s Halloween costumes, and 12% of children ages 5 or younger are permitted to trick-or-treat alone!  In addition to talking with your kids about Halloween safety, here are some things you can do for a safer night:

 

  • Kids under 12 should trick-or-treat and cross streets with an adult.
  • Use reflective tape on costumes.
  • Walk on sidewalks and paths, and not in the street.
  • If there are no sidewalks, you should walk facing traffic as far to the side as possible.
  • Cross streets at corners only, using traffic signals and crosswalks.
  • Watch for cars that are turning around or backing up.

DRIVERS: If you are driving on Halloween night, be especially vigilant!  Slow down, even more than usual, in residential neighborhoods. Children are excited on Halloween and often move in unpredictable ways.

HOMEOWNERS. If you are a homeowner, here are some ways you can help keep trick-or-treaters safe:

  • Keep Property Well-Lit– Kids will be cutting through all parts of your yard to find your front door, so make sure that your property is well-lit and that it is obvious which door trick-or-treaters should go to.
  • Keep Property Unobstructed– Clean up yard debris, fill gopher holes, wind up hoses, and pick up toys or other equipment left in the yard.
  • Restrain Pets– Be sure to keep your pets away from the front door and porch, where they might get excited and jump on or bite trick-or-treaters. It is best to keep your pet in another room or in the garage during trick-or-treating time.

The attorneys and staff of Wiseman Bray PLLC wish you a very Happy and Safe Halloween!

erin shea injury lawyer memphis tn

Erin Shea, Attorney

What is the difference between a patent and a trademark?

Intellectual property is one of the most obscure areas of law, and many business owners, eager to protect their IP, need to know what protections patents and trademarks offer.  Often, you will be best served by consulting with a Chicago patent attorney about your intellectual property.  However, this provides an overview of the protections afforded by patents and trademarks.

A patent protects inventions.  There are actually three types of patents, utility patents, design patents, and plant patents.  Plant patents protect new asexually reproduced plants, including sports, mutants, hybrids and newly found seedlings, other than tuber propagated plants or plants found in an uncultivated state.

Design patents protect original ornamental designs for articles of manufacture, which includes almost anything that has ever been made, as well as graphical user interfaces for computers, smartphones and tablets as long as a portion of the display is shown.

Utility patents protect inventions that are new and an advancement on the current technology.  A utility patent can be directed to any manufactured good or industrial process based on the function or operation of the product.  Utility patents can be obtained from everything from software applications to transmission systems.  About 90% of the patents that are issued by the United States Patent & Trademark Office are utility patents.

Irrespective of the type of patent, the primary right that is granted by a patent is the right to exclude a competitor from practicing the invention embodied by the patent.

Trademarks, on the other hand, protect a business’s brand.  In particular, trademarks protect brands that are sufficiently distinctive to act as an indicator of the source of goods, services, and other economic activities. Trademark rights can be extremely valuable, and famous marks are frequently copied.  For example, many apparel manufacturers prominently display their marks, and competitors often counterfeit them.

2016-09-20_11-03-21Thanks to our friends and co-contributors at The Law Offices of Konrad Sherinian, LLC for their added insight into patents and trademarks.

Who Says a Judge Can’t Be Funny?

judge While the underlying crime is by no means funny — i.e. an argument over a dog pooping in a neighbor’s yard that led to a machete fight — Judge Jeff Sutton of the United States Court of Appeals for the Sixth Circuit offers up several good “one-liners” in response to the criminal defendant’s arguments, including the following:

 

“‘There is nothing new under the sun.’ Ecclesiastes 1:9. Maybe so. But this is a first for us — a dispute between next-door neighbors about uncollected dog deposits that degenerated into a near-fatal assault with a machete.”

“Walker’s belief, however honest, was emphatically unreasonable. He had no objective indications that his neighbor was about to attack him with the stick. And even if he did, Walker brought a machete to a stick fight and nearly killed his neighbor in the process — all in a dispute over a canine trespass….”

“Walker’s lawyer attempts to downplay her client’s use of a machete, claiming that it is merely a ‘garden implement.’  That is easy for her to say. The neighbor…presumably sees it differently, for the same reason that the victim of a near-fatal knifing would not characterize the weapon as a ‘kitchen utensil.'”

branch-308013__180Responding to arguments that the defendant was otherwise a “model citizen,” Judge Sutton wrote: “Being a model citizen for 364 days of the year is not of much use if this is what happens on the 365th day.”

knife

The opinion is barely 4 pages long and well worth the quick read. United States v. Jeffery T. Walker, No. 14-6490, 819 F.3d 877 (April 11, 2016).

 

 

Need a Lawyer?

We hope you never need help with a case involving a machete!   However, if you need a lawyer, please call us at 901-372-5003. We represent victims in personal injury cases, apartment crime cases, wrongful death cases, auto accidents, and more.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

(901) 372-5003 Office

www.WisemanBray.com

Could an Independent Presidential Candidate Throw the Election to the House of Representatives?

could an independent presidential candidate win the White HouseBy: Lang Wiseman

Let’s talk potential Independent Presidential Candidate, Electoral College, and throwing the election into the House of Representatives.

The short answer?  Even assuming the election gets thrown into the House, only persons who actually receive a vote in the Electoral College would be eligible for consideration by the House.

[Go “Like” Wiseman Bray PLLC on Facebook and “Follow” Wiseman Bray PLLC on Twitter for more free legal tips, news & updates.]

An Independent Candidate?

Many voters and commentators dislike both Clinton and Trump, and are actively seeking an independent candidate or candidates.  For example, last week a leading member of the #NeverTrump movement (Bill Kristol) suggested that David French, a good friend of mine from law school, would be his choice to run as an independent candidate. David is a great guy – smart, principled, patriotic, and down to earth.  And while you wouldn’t necessarily know it from looking at him or reading his work, he loves basketball and actually had a pretty good jumpshot back in law school.  Ultimately, though, David decided not to run.

The path to victory for an independent candidate would be extremely narrow, and shrinking every day, if not already closed as a practical matter.  The various windows for submitting petitions to qualify to appear on state ballots are closing rapidly, leading most of the Anti-Clinton/Trump forces to freely acknowledge that an independent presidential candidate would have little chance to win an election outright.

So what, then, could possibly be the goal?  At least one stated aim is to try to prevent either candidate from securing a majority of Electoral College votes, thus throwing the election into the House of Representatives where a “white knight” candidate could be selected for President.

But is it realistic to think Clinton and Trump could both be prevented from getting a majority of votes in the Electoral College? 

There are 538 total electoral votes, and 270 constitutes a majority.  While it is theoretically possible to have a 269-269 tie – indeed, there are 32 different tie scenarios if you assume 11 battleground states – it is highly unlikely.  Realistically, then, an independent presidential candidate would need to win at least one state in order to prevent both Clinton and Trump from getting to a 270 vote majority in the Electoral College.  However, that is more difficult than you might think.  In 1992, for example, Ross Perot garnered 19% of the vote nationally, but didn’t secure a single Electoral College vote because he failed to actually win a state.  Thus, without major funding or campaign infrastructure, an  independent candidate would likely need to focus almost exclusively on a small handful of states, and then hope for the best in the House of Representatives.

constitutional law memphis

But let’s assume that happens.  What’s next in the House?

The Twelfth Amendment to the United States Constitution spells out the process, and it actually works quite a bit differently than many voters and commentators apparently believe it does.  This has occurred only twice in history – the election of Thomas Jefferson in 1800 and Andrew Jackson in 1824.

First, the House doesn’t vote in a normal fashion where every representative gets to cast his/her separate vote.  The voting takes place by state, with each state getting one vote.  So a state with a majority of Democrat representatives would presumably vote one way, whereas a state with a majority of Republican representatives would presumably vote another way.  This possibly dilutes a Party’s voting strength.  Assume, for example, 3 states that each have 20 representatives.  States 1 and 2 each have 11 Democrats vs. 9 Republicans, compared to State 3 which has 20 Republicans and 0 Democrats.  If you totaled all those votes separately, then the vote of the Republican representatives would win easily: 38-22.  However, in state-by-state voting, the Democrats would lead 2-1.

Second, and perhaps more importantly, the Twelfth Amendment specifically prohibits a true “white knight” outsider scenario, because the House can only vote for a candidate who finishes in the top 3 in the Electoral College votes.  The pertinent part of the Twelfth Amendment states as follows:

“If no person have a majority [in the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for president, the House of Representatives shall choose immediately, by ballot, the president.”

Thus, a “white knight” candidate must have received at least 1 electoral vote in order to be eligible for consideration by the House.  That presumably means no Paul Ryan, no Bernie Sanders, no Mitt Romney, nor any other outsider who failed to participate in the general election process and win at least one state (or portion thereof, since 2 states — Nebraska and Maine — are technically not winner-take-all when it comes to their 3 electoral votes each).

election law lang wiseman

The Faithless Elector — the Last Possible Hail Mary?

The Electoral College technically meets and votes in December following the November election.  Based on the Twelfth Amendment, the only other way to trigger a “white knight” scenario would be for one or more of the electors to disregard the popular vote in his/her particular state and become what is referred to as a “Faithless elector” by casting his/her ballot for an outsider.   Twenty-nine states have laws or political party restrictions that technically require an Elector to conform his/her vote to the popular vote in the state; however, no one has ever actually been prosecuted for becoming a Faithless Elector.  Twenty-one states have no laws at all to require Electors to vote for a pledged candidate.

Barring a situation where an independent candidate actually won an electoral vote, the Anti-Clinton/Trump forces would be hoping for an election night that produced a tie in the Electoral College vote.  They would then hope to peel off one or more Faithless electors to cast votes for a “white knight” candidate in December, thus making him/her eligible for a miracle in the House of Representatives.

election law attorney in memphis

About Lang Wiseman: Lang is the former Chairman of the Shelby County Republican Party and attended the 2012 Republican National Convention.

Lang has substantial experience in the areas of business and commercial litigation; bank litigation and workouts; advising small and closely held businesses; insurance coverage disputes; personal injury; professional, medical and legal malpractice; wrongful death; construction litigation and lien disputes; election law; and government relations/public policy. Lang is also a Tennessee Supreme Court Rule 31 Listed Civil Mediator.

Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United  States  Senate Governmental Affairs Committee. He previously served as Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals.  Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the Top Graduate in the College of Business.

Property Damage by Tree Limbs and Roots

property damage by trees, property damage lawyerHave you ever wondered about property damage caused by tree limbs or roots?

First, let’s talk for a moment about your neighbor’s tree limbs.  Suppose the tree itself is on your neighbor’s property, but the limbs are hanging over your fence, casting unwanted shade or shedding leaves you don’t want to pick up.  This really bothers you. Can you trim the limbs even though the tree belongs to your neighbor and is on his property?

The quick answer is yes. But don’t ask your neighbor to pay for it. And don’t trim the limbs beyond the property line. If it’s a more serious matter, you might have a nuisance action for property damage.

Option 1: Self-Help—Trim the Branches Yourself

Under Tennessee law, you may, at your own expense, cut away intruding vegetation to the property line whether or not it constitutes a nuisance or is otherwise causing harm to your property.

Option 2: Nuisance Action—Bring Suit to Make Your Neighbor Pay Damages and Fix the Problem

In some cases, you may have a cause of action for nuisance. A nuisance lawsuit may be brought when tree branches or roots from the adjacent property encroach upon and damage your property. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 356-57 (Tenn. 2002).

What is a Nuisance?

In Tennessee, a private nuisance is anything which disturbs the free use of your property, or which renders its ordinary use or physical occupation uncomfortable. This extends to problems that endanger life or health, give offense to the senses, violate the laws of decency, or obstruct the reasonable and comfortable use of property.

Encroaching trees and plants are not nuisances just because they cast shade, drop leaves, flowers, or fruit, or just because they intrude upon your property either above or below the ground. However, the problem may be a nuisance if it causes actual harm or poses an imminent danger of actual harm to your property.

Example of a Nuisance Case

The Lane case represents a pretty extreme case of nuisance. In that case, the trees at issue caused a hole in the plaintiff’s roof and water from that hole ruined her ceilings and stove. In addition, the plaintiff had severe plumbing problems as a result of encroaching tree roots. She was not able to use her bathroom sink or tub for two years. Nor could she flush her toilet. Even worse, raw sewage bubbled up into her bathtub and the floor had to be replaced because the toilet continually backed up. The Court stated:

Clearly, the defendant’s encroaching trees have adversely affected the plaintiff’s reasonable and ordinary use and occupation of her home, not to mention posing hazards to the plaintiff’s health and safety. Accordingly, we reject the defendant’s assertion that its trees do not constitute a nuisance.

What’s the end result of a nuisance lawsuit?

The owner of the offending tree may be held responsible for harm caused and may also be required to cut back the encroaching branches or roots if a court finds that the encroaching vegetation is a nuisance.

If you are successful in a private nuisance action, you may be entitled to several types of remedies. A court might order that the nuisance be stopped (injunctive relief). You may also be entitled to money damages for the cost of restoring your property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of your property.

Read more about tree limbs and the law in Tennessee by clicking here and reading our previous blog post titled, “Law FAQ: My Neighbor’s Tree Hangs Over the Property Line. Do I have the right to cut back the branches?” 

Need a Property Damage Lawyer?

Disputes between neighbors can be very uncomfortable. We can help, whether that means facilitating communication, fashioning an amicable resolution, or, if all else fails, filing a lawsuit. We’re here to help you find a solution that works for YOU!  Call us at 901-372-5003 or email us here if you need a property damage lawyer.

Meet the Wiseman Bray PLLC team by clicking here.

 

Have Divorce Questions? Guest Blog by Family Law Attorney, Lucie Brackin

divorce attorney memphisWe hope you never need a divorce. But just in case you have questions about what a divorce in Tennessee involves, we’ve invited Guest Blogger and Family Law Attorney Lucie Brackin to fill you in. Lucie is a partner with The Landers Firm PLC. Here’s what Lucie has to say about getting a divorce in Tennessee:

Filing a Divorce Case

The first step is to file a Complaint for Divorce and pay the filing fee to the Court Clerk’s office.

How Long Does it Take to Get Divorced?

If you have minor children, there’s a 90 day waiting period before the Court can grant a divorce.  If you don’t have minor children, the waiting period is 60 days.

Discovery in a Divorce Case

The first formal phase of a divorce is called “discovery” because that’s what the lawyers are doing – discovering everything they need to know about the parties, the finances, the children, etc.  This usually involves answering a list of questions under oath, producing documents to the other side, and depositions.

Child Custody in Tennessee

In Tennessee, the Court will not use the word “custody” in your case.  The terms now used under Tennessee law are Primary Residential Parent and Alternate Residential Parent.  However, these titles don’t hold the significance you might think.  Regardless of who holds these titles, each parent’s specific rights to make major decisions regarding the children’s education, health, religion, and extra-curricular activities will have to be determined and specifically stated in the Permanent Parenting Plan that must be either agreed upon or ordered by the Court.

Parenting Time (or Visitation)

Courts in Tennessee do not use the term “visitation.”’  The legal term in Tennessee is “parenting time.”’  The Permanent Parenting Plan form outlines the day-to-day and holiday schedules.  This must all be completed before a Court will approve a Permanent Parenting Plan.

Child Support in Tennessee

If minor children are involved, there must be a Child Support Worksheet attached to the Permanent Parenting Plan.

In order to calculate child support, you must include:

  • number of days per year each parent has the children (which is basically the number of overnights the children spend with each parent per year),
  • each parent’s gross monthly income,
  • cost that each parent pays for the children’s insurance,
  • cost of work-related child-care.

After the “guideline support” is determined by the worksheet, there may be deviations (upward or downward) that may be allowable, such as recurring medical expenses, extra-curricular activities, or special lessons.

“Minor children” are defined as children who have not yet turned 18 years of age and graduated from high school. So, child support sometimes has to be paid after a child has turned 18 but has not yet graduated or after a child has graduated but has not yet turned 18.

College Expenses as Child Support

Courts in Tennessee cannot order parents to pay college expenses, although parents can enter into a contractual agreement to pay college expenses for their children.  It is very important to talk to a lawyer before you enter into a contract to pay college expenses for your children.

Division of Assets and Liabilities in a Divorce

The first determination that the Court will make is whether the asset or debt in question is “marital” or “separate.”  Generally, separate assets are those that one of you had before the marriage, that you inherited, or that was given to you as a gift, and which you continued to hold separately.  With the exception of some kinds of retirement funds, increases in value to those separate items will also be separate unless marital efforts have been used to cause the increase in value.  Separate assets are typically retained by their original owner and the other spouse cannot make a claim to those items.  There are, of course, special exceptions that apply to special circumstances.  Marital assets are nearly everything else, including things like closely held businesses or professional practices.

The division of marital assets occurs without considering the fault of a party (“grounds for divorce”), and the guiding principal of division is that the Court is to achieve “equity” with the division, but “equity” does not necessarily mean “equal.”

Alimony (or Spousal Support)

There is no formula to calculate alimony in Tennessee.  To calculate alimony, the Court considers many factors, the most important of which are “need” and “ability to pay.”  While there are no hard and fast rules, you can typically assume that the longer the length of the marriage and the greater the disparity in the parties’ earning capacities, the greater and longer the alimony award.  Conversely, the shorter the marriage and the closer the parties’ earning capacities are, the less likely it is that there will be a significant alimony award or any at all.

The types of alimony available in Tennessee are as follows and they are applied based upon which type best fits the facts, circumstances, and needs in your case:

  • In Futuro Alimony:  This is typically “lifetime” alimony and is reserved for very unusual cases or long-term marriages where one spouse will never be able to fully support himself or herself.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • Rehabilitative Alimony:  This is typically used in circumstances where one spouse needs support to allow him or her to get to a financial place where support is no longer needed – perhaps to complete an education or to allow a minor child to begin school.  It is typically taxable to the recipient, deductible by the payor, and modifiable by both parties under the right circumstances.
  • In Solido Alimony:  This type of alimony is also known as “lump sum alimony” and it is typically used to balance out an unequal division of property or to ensure the transfer of a certain sum of money to a spouse without creating tax consequences and without allowing modifiability.
  • Transitional Alimony:  This form of alimony is typically used in circumstances that don’t fit other types of alimony and “rehabilitation” is either not possible or not needed.  It is typically of short duration, and it may be taxable or non-taxable, and it may also be modifiable or non-modifiable, depending on what is trying to be achieved.

Resolution of a Divorce Case in Tennessee

Most divorce cases will be settled through mediation, which the Courts often order if the parties do not voluntarily attend.  If you are unable to resolve your case, your divorce will be set for trial.

Need a lawyer in Memphis?

We would be honored to help you with your legal issue. View our practice areas here.

In addition to Memphis, we also represent clients in Arlington, Bartlett, Collierville, Cordova, Eads, Germantown, Lakeland, Nashville, Ashland City, Belmont, Hillsboro, Brentwood, Belle Meade, Forest Hills, Franklin, Greenhill, Hendersonville, Nolensville, Nolan’s Park, Oak Hill, and surrounding areas. We also work in Mississippi.

WISEMAN BRAY PLLC

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38103

(901) 372-5003

EMAIL US HERE.

divorce attorney in Memphis

Lucie Brackin, Guest Blogger

 

 

 

Who is the best lawyer near me?

best lawyer in memphis

By:  Lang Wiseman

You may have been hurt in an auto accident or truck accident and wondering:

  • Who is the best injury lawyer or best accident lawyer in Memphis, or Nashville?
  • Who is the best injury attorney near me?
  • Who is the best car wreck lawyer in Cordova, or Bartlett, or Germantown?
  • Who is the best car wreck attorney near me?

You may have been injured and Googled those questions, or perhaps others:

  • Who is the best personal injury attorney or wrongful death lawyer in Memphis?
  • Who is the best spinal cord injury lawyer, or brain injury lawyer near me, or in Memphis, or in Tennessee?
  • Who is the best lawyer to negotiate with an insurance company for damages for your injury?

Right question. Wrong answer.

You won’t ever hear any lawyer or attorney at Wiseman Bray PLLC claim that we are the “best” in Memphis – for a couple of different reasons. First, because there are plenty of fine lawyers and attorneys in the Memphis and Nashville, Tennessee area, including in Cordova, Bartlett, Germantown, Arlington, Millington, Collierville, and Lakeland.  We would seriously question any injury lawyer with the temerity to proclaim himself “the best.”

Second, based on Rule 7 of the Rules of Professional Conduct, the Tennessee Board of Professional Responsibility back in 2004 specifically prohibited such self-serving, subjective statements by attorneys, including statements that a lawyer is “most qualified,” “excellent,” “top,” “most experienced,” “preferred”, or an “expert” in a particular field of law, such as personal injury, auto accident, or wrongful death.  The Board’s opinion was based on provisions of Rule 7 that have since been revised, and thus it is not entirely clear whether an outright prohibition is still technically enforceable. However, most reputable lawyers still find such statements to be highly questionable, and certainly in poor taste.

So, the next time you hear an attorney refer to herself or himself as an expert, or say that he or she is the best lawyer in a Tennessee town – whether on TV or on a website or in marketing materials – you should know that that lawyer is not only humility-challenged, but also possibly in violation of the basic Rules governing attorney conduct.

The right answer?

At Wiseman Bray PLLC, you’ll only hear us talk about our experience in Memphis and Nashville, Tennessee injury claims, and about our unique and selective approach to personal injury and wrongful death claims. When it comes to injury cases, we’re not a high-volume, low-dollar settlement firm. We only take serious claims involving serious injuries or death, and we purposefully keep our caseload small so we can give our clients the attention they deserve.

You can check out our qualifications here, and you can click here to find out more about some of the actual results we’ve achieved in various types of cases, including car wrecks, truck accidents, slip and fall cases, and wrongful death claims. At the end of the day, we’ll allow our client ratings and peer reviews from such public resources as AVVO or Findlaw do the talking for us. Click on those links to see what others have to say about us.

Search our blog or  website for more helpful resources and information, and please call or email about a free consultation. We’ll respond in less than 24 hours to let you know whether we can help. Here’s our contact information.

Top 8 Ways to Save Money on Attorney Fees

attorney fees, attorney's fees, legal fees

Let’s talk about attorney fees. When confronted with a legal claim or issue, some people simply want to “turn it over to the lawyer and be done with it.” Others prefer a more hands-on approach, and they prefer to work closely with legal counsel.  Some clients want to resolve a matter as quickly and cost-efficiently as possible, while others desire vindication and want nothing short of a judicial ruling or jury verdict. However, there is one thing that all clients probably agree on.  The lower the attorney fees, the better. 

How do you keep legal fees in check?

Make sure your goals and legal strategy are clear. Lawyers work for clients, and attorney fees are based on the amount of work the lawyer performs for the client.  Clear communication and responsiveness from both the lawyer and the client is critical.  Above all, you must make sure you communicate clear goals, and then to listen and understand what actions your lawyer is suggesting.

What can I do to save money on attorney fees?

There are also a few things you can do to reduce attorney fees, legal costs, and expenses:

(1)  Come prepared.  Each time you meet with your lawyer, anticipate questions and come prepared with information. Bring a timeline, notes, a list of witnesses and contact information, and relevant documents.  Don’t make your lawyer beg for the information he or she will need in order to best represent you.

(2)  Obtain, review and organize your documents.  The overwhelming majority of cases can be boiled down to a few key documents. You don’t want to pay your lawyer to obtain documents you could get yourself. Nor do you want to pay a lawyer to “find a needle in a haystack” or to review unorganized or unnecessary documents searching for one relevant piece of information.

(3)  Promptly do what your lawyer asks you to do.  Respond quickly to information and discovery requests from your attorney.  Failure to do so drives up costs immeasurably.  It can lead to unnecessary communications between opposing lawyers, and between clients and lawyers, and often leads to unnecessary motions being filed by opposing counsel.

(4)  Stay on top of your case. Keep copies of all papers, letters, and pleadings.  Take notes when you talk to your attorney.  Keep yourself informed about your case.  You’d be shocked at how often clients call and/or ask for meetings to re-review things they should already know, or to get copies of papers they already have.

(5)  Be an “information gatherer.”  This one is especially true for companies and small businesses. You know your business, employees, and contacts better than your lawyer. Utilize your knowledge and relationships. You can often obtain information and documents much more easily and cost efficiently than your lawyer can.

(6)  Utilize your lawyer’s assistant.  Many of your questions and phone calls can be directed to your lawyer’s assistant, most of which is not recorded as billable time.  For example, questions about scheduling, getting copies of documents, or coordinating meetings and events can easily be handled by a legal assistant much more cheaply than talking to the lawyer every time.

(7)  Understand the difference between legal advice and counseling.  It is obviously critical that you communicate effectively with your lawyer, but keep communications to the point. Oftentimes clients complain or vent about the opposing party, the unfairness of the situation and/or the legal process, or the tactics of the other lawyer.  It’s perfectly okay if you want to pay your attorney to be a sympathetic ear for you, but understand that you pay for your attorney’s time, and that you can very likely get a sympathetic ear elsewhere for free.

(8)  Compromise. Litigation is expensive. Realize that “wins” come in varying shapes and sizes, and that negotiating from a position of strength borne out of effective and thorough preparation can lead to the best long-term outcome.  Indeed, a lengthy lawsuit may not be the best long-term strategy even though you think might have a slam dunk case at trial two years from now.  Winning the battle isn’t worth losing the war.  Smart and tactical compromise can be a virtue, particularly when taking into account both the direct and indirect costs of litigation.

Wiseman Bray has offices in Memphis and Nashville, Tennessee.  Call us today at 901-372-5003.

 

Wiseman Bray PLLC

(901) 372-5003

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

Small Firm. Better Focus. Big Results.

 

 

Can I Write My Own Will? Is a Handwritten Will Valid?

handwritten will, holographic will, probate lawyer

In some cases, a handwritten Will can be considered valid and admitted to Probate Court.  Under Tennessee law, a handwritten Will is called a “Holographic Will.”  It is not necessary that the document be witnessed, but all the material provisions and the signature must be in the Testator’s handwriting.

What does “Testator” Mean?

The testator is the person who is making the Will.

How Do You Prove a Valid Handwritten Will?

The Testator’s handwriting must be proven by 2 witnesses.  Before petitioning the Probate Judge to admit the document to Probate Court as a valid Last Will and Testament, the Executor will likely have to find 2 people who can testify that the material provisions and signature are in fact written in the Testator’s handwriting.

Why We Don’t Advise Handwritten Wills

While writing your own Will seems like a simple solution to making sure your assets go where you want them to go after your death, there are many pitfalls. For example:

  • You may mistakenly believe that the disposition of certain assets will be governed by the terms of your handwritten Will.
  • A handwritten document is more easily lost.
  • A handwritten Will requires additional proof to be admitted to Probate Court.
  • When you handwrite a Will, you are likely to amend or rewrite that Will in the future.  You are more likely to leave multiple handwritten documents that contain conflicting provisions.
  • Pertinent provisions may be left out of a handwritten Will, including provisions relating to the disposition of assets or provisions that may ease the burden of administrating the Estate.
  • Many handwritten Wills are not properly executed and are unable to be admitted to Probate Court.

A Will drafted by a Probate Lawyer is likely to more clearly convey your wishes so that it can be correctly interpreted by your Executor and the Probate Court Judge after your death.

Need a Will? Call a Probate Lawyer.

If you would like to speak with a Probate Lawyer about a Will or about how to make sure your wishes are carried out after your death, give us a call at 901-372-5003 or email us here. With offices in Memphis and Nashville, you can also visit our website to learn more about our attorneys and the work that we do for our clients.

 

What does my spouse get when I die? Ask the Probate Lawyer.

will for spouse, ask probate lawyerMany people believe that if you die without a will, that everything passes to your surviving spouse. Did you know that is not necessarily true? Read on to learn more from a probate lawyer about what a surviving spouse is entitled to in Tennessee.

If you die WITHOUT a Will

If you die without a Will, the distribution of your assets will be governed by the Tennessee laws of intestate succession.  If you die “intestate,” it means that you die without leaving a Will. This is what will happen if you die without a Will:

  • If you have a surviving spouse, he or she will receive your entire Estate if you had no descendants at the time of your death.
  • If you are survived by descendants, your spouse is entitled to either (a) one-third (1/3) of your estate, or (b) a child’s share, whichever is greater.

If you die WITH a Will

Even if you die with a Will that does not include your spouse, he or she will still be entitled to a portion of your assets. Your surviving spouse may take what it called an “Elective Share” against your Estate, which is based on the length of the marriage.  There is a sliding scale, but the maximum Elective Share a surviving spouse can take is forty percent (40%) of the net Estate if the couple was married nine (9) years or more.

You Cannot Disinherit Your Spouse in Tennessee

Whether you die with or without a Will, in all but a few rare cases, your spouse will be entitled to a portion of your Estate. Generally, you must be legally divorced from your spouse in order to prevent that person from receiving a share of your Estate.

Other Allowances for Spouses

Other allowances for surviving spouses (which may also apply to minor children) include a $50,000 exemption for personal property, a reasonable allowance for a year’s worth of support according to the previous standard of living, and either the right to the homestead or $5,000 from the proceeds of the sale of the home.  In some cases, a surviving spouse might be entitled to certain accounts of less than $10,000 or wages due to the decedent if no formal probate estate is opened.

Need a Will? Need a Probate Lawyer? 

Please contact Wiseman Bray PLLC at 901-372-5003 or email us here if you have questions about leaving a Will, Estate Planning, or Probate issues.  We have a team of lawyers ready to help you.