The 27th Edition of The Best Lawyers in America© Recognizes Attorneys Lindsay Jones and Will Patterson

Wiseman Bray PLLC is pleased to announce that attorneys Lindsay Jones and Will Patterson were recently selected by their peers for inclusion in the 27th Edition of The Best Lawyers in America©.

probate lawyer in memphisLindsay Jones was recognized for her high caliber of work in the practice areas of Trusts and Estates and Litigation- Trusts and Estates.

 

 

Will Patterson was recognized for his high caliber of work in the practice area of Commercial Litigation.

 

 

For more than three decades, Best Lawyers has been regarded – by both lawyers and the public – as the most credible measure of legal integrity and distinction in the United States. As such, Lindsay and Will’s recognition by Best Lawyers symbolizes excellence in practice.

Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising more than 9.4 million confidential evaluations by top attorneys. Best Lawyers’ founding principle remains unchanged and forms the basis of their methodology: The best lawyers know who the best lawyers are, and attorneys do not pay to participate or be recognized. Best Lawyers lists are published in top-tier business and legal publications such as The Washington Post, The Wall Street Journal, and The New York Times.

For more information, check out the Best Lawyers website.

 

 

The 27th Edition of The Best Lawyers in America© Recognizes Attorneys Chris Patterson and Austin Rainey

Wiseman Bray PLLC is pleased to announce that attorneys Chris Patterson and Austin Rainey were recently selected by their peers for inclusion in the 27th Edition of The Best Lawyers in America©.

shooting victim attorneyChris Patterson was recognized for his high caliber of work in the practice areas of Commercial Litigation and Municipal Law.

 

 

AUSTIN T. RAINEYAustin Rainey was recognized for his high caliber of work in the practice area of Personal Injury Litigation – Plaintiffs.

 

 

For more than three decades, Best Lawyers has been regarded – by both lawyers and the public – as the most credible measure of legal integrity and distinction in the United States. As such, Chris and Austin’s recognition by Best Lawyers symbolizes excellence in practice.

Inclusion in Best Lawyers is based on a rigorous peer-review survey comprising more than 9.4 million confidential evaluations by top attorneys. Best Lawyers’ founding principle remains unchanged and forms the basis of their methodology: The best lawyers know who the best lawyers are, and attorneys do not pay to participate or be recognized. Best Lawyers lists are published in top-tier business and legal publications such as The Washington Post, The Wall Street Journal, and The New York Times.

For more information, check out the Best Lawyers website, and Mr. Austin Rainey’s profile.

Free money! (Seriously, it’s true!)

Free money! (Seriously, it’s true!)

unclaimed funds

Free money

Literally millions of dollars in unclaimed money gets deposited with the State each year.  And some it may have your name on it:

  • an old utility deposit you forgot about
  • a lease deposit that was never refunded
  • a mileage check from an old job that never got cut

This is referred to as “unclaimed property,” and by law the holder of the funds property must turn it over the State along with information about the name last know address of the owner.  They CANNOT keep the property, but turning it over to the State allows them to avoid the hassle of having to track you down.

The good news:  the state has a website where you can do a simple name search and then claim your property at no cost to you.  Try it out — enter your name, your family members’ names, friends, etc.  We’ve had plenty of friends and clients who’ve found a few hundred dollars here and there.  Give it a shot and then use the comment section to let us know if you get lucky.  And hit the Retweet or Share button to let your friends know to try their luck.

[Many states maintain similar sites, so be sure to Google and check out any sites for other places you may have lived or worked in the past.]

No estate plan: a lesson from the extraordinary life of Aretha Franklin

No estate plan: a lesson from the extraordinary life of Aretha Franklin

It’s been widely reported that Aretha Franklin, The Queen of Soul, died without any sort of Estate Plan leaving many people wondering: “Why would someone so successful not have a financial plan in place?”  We should all pause and THINK about what we’re trying to do with our assets after death.

Unfortunately, it is fairly common for people to die without even the simplest form of an Estate Plan.  Even tremendously successful individuals like Prince and Aretha Franklin have made this mistake.  While Prince and Aretha Franklin certainly have more complex financial affairs than most of us, Estate Plans are not just for rich people.  In fact, a basic plan can be relatively inexpensive, especially when you consider the potential legal fees and costs which arise when there is no plan at all.

WHY HAVE A WILL OR ESTATE PLAN?

Whether we are meeting with potential clients or giving estate planning seminars, we always stress the importance of having an estate plan in place no matter how simple the plan might be.  Even a simple Estate Plan gives your family guidance and allows them to R-E-S-P-E-C-T your wishes.

The only way you can be sure to “get what you want” is to properly (and legally) communicate your wishes. Simply telling someone won’t cut it. After all, neither a judge nor your family will be able to ask you after your death.  Having a plan in place can also help prevent family fights. You may think your family would never fight over your assets after you die. You may be right, but you may also be wrong. There’s no good reason to take a chance. Make your wishes so clear that your family members have nothing to fight about after your death.

An Estate Plan is important irrespective of your financial situation. You do not have to be rich or famous to need a Will. Even if you think you don’t have enough assets to justify an Estate Plan, it is likely that your possessions have real meaning to family members or friends.

WHY PEOPLE DON’T HAVE A WILL OR ESTATE PLAN.

Typically, people put off planning because they are “too busy” or they simply do not want to think about their own mortality. Death can be an unpleasant topic.  It is obviously an uncertain event which makes it is easy to put off and left for another today. However, death is an unfortunate reality for everyone.  As such, we should all learn a lesson from Aretha Franklin’s mistake and plan ahead.

WHAT HAPPENS IF SOMEONE DIES WITHOUT A WILL?

If you don’t have an Estate Plan or Will, your Estate may become subject to state law and Probate Court orders. This is likely to lead to family arguments and legal fees and costs, which in the end reduces the amount of assets remaining for your family members.

NEED A TENNESSEE ESTATE PLANNING LAWYER?

We work hard to make setting up your Estate Plan as easy as possible.  Basic plans can be relatively inexpensive even though they are drafted with your specific needs and concerns in mind.  If you do not have an Estate Plan or have not had your plan reviewed in a number of years, you need an Estate Planning lawyer Memphis trusts to guide you through the process.

Call Wiseman Bray PLLC at 901-372-5003.

Lang Wiseman Sworn in as Member of the University of Tennessee Board of Trustees

Lang Wiseman Sworn in as Member of the University of Tennessee Board of Trustees

Lang Wiseman was sworn in on August 1, 2018, as one of eight members of the University of Tennessee Board of Trustees.  Governor Bill Haslam called the meeting to order, and Chief Justice Jeff Bivens of the Tennessee Supreme Court administered the oath of office.  Others joining the UT Board included Bill Rhodes, the Chairman, President & CEO of Autozone, Donnie Smith, former President & CEO of Tyson Foods; John Compton, former President of PepsiCo and current partner with the investment firm Clayton, Dubilier & RiceJohn; and Amy Miles, former CEO of Regal Entertainment Group.

Lang Wiseman during the UT Board meeting.

Lang Wiseman during the UT Board meeting.

Chief Justice Jeff Bivens administers the oath to the UT Board of Trustees.

Chief Justice Jeff Bivens administers the oath to the UT Board of Trustees.

Chief Justice Jeff Bivens and Lang Wiseman execute the Board oath.

Chief Justice Jeff Bivens and Lang Wiseman execute the Board oath.

Congrats to Lang!

Governor Bill Haslam calls the UT Board meeting to order.

Governor Bill Haslam calls the UT Board meeting to order.

Non-compete agreements in Tennessee

Non-compete agreements in Tennessee

Are non-compete agreements enforceable in Tennessee?

It depends. Generally speaking, non-compete agreements, also called ‘covenants not to compete’, are disfavored in Tennessee. See Hasty v. Rent-A-Driver, Inc., 671 S.W.2d 471 (Tenn. 1984). Courts interpret these agreements strictly in favor of the employee, in part because the agreement is a restraint on trade. Having said that, courts will uphold non-compete agreements if there is a legitimate business interest to be protected and the agreement sets reasonable time and territorial limitations. Id.

What makes a non-compete agreement reasonable?

When deciding whether a non-compete agreement is reasonable, Tennessee courts will consider the following relevant factors:

1. the consideration supporting the agreement;
2. the threatened danger to the employer in the absence of the agreement;
3. the economic hardship imposed on the employee by the agreement; and,
4. whether the agreement is against the public interest.

Additionally, the time and territorial limitations must be no greater than necessary to protect the employer’s legitimate business interest. In other words, a company cannot expect a court to uphold a non-compete agreement which purports to prevent an employee from ever taking a job with another company in the same general line of work.

Does the employer have a legitimate business interest which deserves protection?

Obviously, employers cannot restrain ordinary competition. Therefore, employers must show that without the non-compete agreement, the employee would gain an unfair advantage in future competition with the employer. Id.

Courts consider the following to determine whether an employee would have an unfair advantage:

1. whether the employer provided the employee with specialized training;
2. whether the employee is given access to trade or business secrets or other confidential information; and,
3. whether the employer’s customers tend to associate the employer’s business with the employee due to the employee’s repeated contacts with the customers on behalf of the employer.

Of course, an employer does not have a protectable interest in the general knowledge and skill of an employee. Id. However, an employer can typically prevent former employees from using its trade or business secrets or other confidential information in competition with the employer. While figuring out what constitutes a trade secret is generally easy, determining what constitutes confidential information can be much more difficult. Indeed, in one particular case, a Tennessee court held that customer lists, customer credit information, pricing information, and profit and loss statements did not constitute confidential information because such information is easily available from sources other than the employer. Id.

If you are an employee with a potential non-compete dispute or an employer looking to prevent unfair competition and/or protect confidential information from your competitors, you need a business litigation lawyer Memphis knows and trusts to handle the matter for you.

Call us today at 901.372.5003.

When can a subcontractor file a lien?

When can a subcontractor file a lien?

Under Tennessee law, a subcontractor is considered an indirect lien claimant since he or she typically does not have a contract with the owner of the property. Even though a subcontractor does not have a contract with the owner, he or she might still have lien rights. To determine if a subcontractor has lien rights, you must consider the following: Did the subcontractor contribute to an improvement in real property? Is the improvement part of a residential or commercial project? Has the subcontractor taken the necessary steps to ensure he or she has not lost whatever lien rights he or she may have had?

Improvements

In most situations, this is obvious. The subcontractor has either performed services or delivered materials as part of a construction or renovation project that permanently alters or “improves” the real property.

Residential or commercial property

For subcontractors, Tennessee law treats residential projects and commercial projects differently.

Residential projects

Generally speaking, subcontractors do NOT have lien rights for improvements made to residential property. One exception in which a subcontractor does have lien rights against residential property is when the owner is acting as the general contractor. In that situation, the subcontractor has a direct contract with the owner/general contractor. As an aside, a subcontractor may have a cause of action against an owner that is acting as the general contractor even if their contract is not in writing.

Commercial projects

Subcontractors have lien rights for improvements to commercial property. However, they must follow specific statutory requirements or they risk losing those rights. Subcontractors must send a Notice of Nonpayment to the owner and general contractor to keep their lien rights. Tennessee law has strict requirements for Notices of Nonpayment. Subcontractors must include very specific information and must send their Notice timely otherwise they risk losing their lien rights. After sending a timely Notice of Nonpayment with all the required information, subcontractors must then send a copy of their Notice of Lien to the owner and general contractor too. Once both the Notice of Nonpayment and Notice of Lien have been timely sent, a subcontractor can file his Notice of Lien.

Enforcing a valid lien

To enforce a valid lien claim, a subcontractor must file his or her lawsuit within ninety (90) days of their Notice of Lien. If they fail to file an appropriate lawsuit within that statutory time frame, he or she will lose his or her lien rights.

If you are dealing with a general contractor that has not paid, you need a construction lawyer Memphis trusts to help you through the process.

Injured by a USPS driver? You might be able to sue the USPS.

Injured by a USPS driver? You might be able to sue the USPS.

Claims against the postal service can be tricky because the law with respect to these types of claims is unique.  Unfortunately, injured parties cannot simply file a lawsuit against postal service like you would against any other negligent driver.  Instead, you must comply with the Federal Tort Claims Act (“FTCA”).  Running afoul of the FTCA might negatively affect your rights.  As such, you need an experienced personal injury lawyer Memphis trusts to help you navigate this unique area of law.

United States Postal Service delivery vehicle

A brief history on suits against the federal government

Years ago, people could not even sue the federal government based on the legal doctrine of sovereign immunity, which is basically lawyer-talk for the notion that the government has to give you permission to sue it.  Stated differently, the federal government has to waive its sovereign immunity and consent to being sued.  Thankfully, Congress did just that by passing the Federal Tort Claims Act in 1946. 28 U.S.C. §§ 1346, 2671-2680.

Specifically, the FTCA allows suit against the federal government:

[F]or money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1).

As you can see, the FTCA is broad in that it allows injured parties to bring suit for the negligence of a government employee.  However, there are several unique aspects of the FTCA that can be tricky.

What’s different about claims brought under the FTCA?

  1. Administrative process

The most significant difference between filing a claim against a private individual and bringing one against the federal government for its employee’s negligence is the pre-lawsuit administrative process.  For claims brought under the FTCA, claimants must file a claim with the appropriate federal agency before filing their lawsuit. 28 U.S.C. 2675(a).  If the claimant does not comply with the administrative claims procedure, he or she cannot file suit in federal court and risks losing his or her rights altogether.

  1. Statute of limitations

Another notable difference is the statute of limitations for FTCA claims.  The FTCA replaces the state statute of limitations with a federal statute. See Chomic v. United States, 377 F.3d 607, 610 (6th Cir. 2004).  FTCA claims are subject to two (2) different limitations periods under 28 U.S.C. §§ 1346(b)(1):

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

As you can see, the FTCA essentially has two (2) different statutes of limitations.  One for the administrative claim and another for the eventual lawsuit if the claim is denied or ignored.

  1. Attorney fees

Another significant difference is that the FTCA establishes a cap for attorney fees of 25% for litigated matters and 20% for claims resolved during the administrative process. 28 U.S.C. § 2678.

Exceptions to the waiver of sovereign immunity

Under the FTCA, there are several types of claims for which the federal government retains its sovereign immunity and does not let individuals file suit regardless of whether a federal employee was negligent.  This is commonly referred to as an exception to the waiver of sovereign immunity.  One notable exception is for discretionary functions.  Pursuant to 28 U.S.C. § 2680(a), injured parties cannot sue the federal government for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”  Application of the discretionary function exception can be complex.  At its core, though, the discretionary function applies (meaning the government cannot be sued) when a government employee is exercising permissible policy judgment. Stated differently, the exception does not apply when there is a violation of a mandatory policy. See United States v. Gaubert, 499 U.S. 315, 322-325 (1991).

The discretionary function exception along with several others can be difficult to analyze and tricky to navigate.  If you have been injured in an accident with a USPS employee, you need an attorney that understands the unique requirements for bringing claims under the Federal Tort Claims Act.

If you need help with a potential FTCA claim, call us today at (901) 372-5003 for a free consultation.

Trick-or-Treating Safety Tips from Wiseman Bray

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?

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.

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