Sunday, January 30, 2011

The Probate Process

People tend to not like dealing with dreary matters such as preparing for the death of themselves or a loved one. While it is understandable to avoid such topics, it is in one's best interest to take a proactive approach in dealing with their future demise.

The best way to ensure one's estate is handled properly is to make out and publish a will. However, people often put off doing so and then they suddenly pass away, leaving their loved ones "holding the bag." When a person dies without a will, they are said to have died "intestate" and their estate is subject to probate. Unlike when a will is in place, the estate automatically gets divided up among the next of kin, subject to any outstanding creditors. An administrator must be named in order to facilitate the probate process. The administrator is typically a family member of the deceased. When there are multiple family members that are eligible to receive a portion of the estate, such as a group of siblings, one of said siblings is typically elected among the others to act as administrator. To be named as such, letters of administration must be served upon members of the immediate family and need to be signed off on, allowing the named administrator to proceed accordingly. If there is a dispute within the estate, this is where a "stink" is to be made and then the fun of litigation begins within the family as to who is to get what and how much.

Once an agreed upon administrator is set, that person takes the lead in getting all the assets in order, including bank accounts, real and personal property such as houses, land, cars, baseball card collections, etc. Once things are more or less accounted for, time is needed for creditors to make any and all claims they have against said estate. Claims may include credit card debt, outstanding mortgage and car loans, etc. Typically creditors are given 7 months or so to lay claim. Some states and jurisdictions may vary, however. Once creditors are satisfied, the remainder of the estate gets administered to the next of kin, in equal shares. If the bulk of an estate is in real property, such as a house or land, said property would need to be either sold with proceeds going to the family in equal shares, or one or more family members can keep it and "buy out" the others using a fair market value.

The most practical thing to do when a loved one dies intestate (without a will) is to seek advise from an attorney who regularly practices in this area of law. They will guide you through the process and will absolve a boat load of stress from your shoulders. Typically, an attorney's compensation is a percentage of the overall value of the estate. Between 4 and 5 percent is the norm, but again, it differs among states and jurisdictions. Since an attorney receives a percentage of the estate as payment, the administrator usually does not have to worry about coming up with a huge amount of money up front to pay for legal services. Most probate attorneys will require some sort of initial retainer, with the understanding that they will be fully compensated through the estate in the end, after matters are settled.

As stated, being left with the responsibilities of a loved one's affairs after death is unquestionably a stressful and emotionally compromising ordeal. When faced with this situation, remember to take things step by step, one day at a time. If you start feeling overwhelmed, seek guidance and assistance from an experienced attorney who is familiar with the probate process.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Saturday, January 22, 2011

What's the Big Idea?

When it comes to legally protecting one's ideas with regard to business, things often get a little hairy.

As mentioned in one of my prior blogs, a person cannot technically legally protect their original idea by way of trademark or other means. Instead, they can only lay legal claim to their version of said idea. Imagine, if you will, if the inventor of the wheel made it legally prohibited for another person to create and manufacture a similar circular object.

Once again, I'd like to revisit the topic of Facebook and the recent film, The Social Network. In The Social Network, the creator of Facebook, Mark Zuckerberg was sued by two fellow Harvard students, the Winklevoss twins, who claimed that the basis for Facebook stemmed from their idea, which they in turn shared with Zuckerberg. They shared said idea with an alleged oral contract and understanding that Zuckerberg would use his vast computer skills to help build and cultivate a social networking site. To their chagrin, however, Zuckerberg allegedly took the basis of their idea and created his own version of a social networking site, which ultimately became Facebook. The Winklevoss twins then sued Zuckerberg a few years later and received a reported $65 million settlement.

From a legal standpoint, most experts would say that Zuckerberg didn't break any intellectual property laws. He may not have been very honorable in dealing with his fellow Harvard entrepreneurs, but from a technical standpoint, he arguably broke no laws.

From a prospective juror's viewpoint, however, it may have appeared as though he blatantly stole the social networking site from the Winklevoss brothers. Intellectual property law can be quite verbose and confusing. It was allegedly feared by Zuckerberg's legal team that he would come across as an arrogant "punk" and a none the wiser jury would possibly award the prosecution a lot more money that was ultimately settled for.

It cannot be legally determined that Mark Zuckerberg stole the idea for Facebook from others because the product in which he produced was very different than what was proposed to him originally by the Winklevoss brothers. Their idea centered around a networking site for Harvard alumni, with idea of possibly expanding to other elite universities. It was more of a private "elitist" type medium. Zuckerberg, however, took their idea, stripped it down and used bits and pieces of it, from which he created "The Facebook," that was intended for a more global audience.

As said earlier, one can only lay claim to their unique version of an idea, not someone else's take or version of it. MySpace is similar to Facebook, but has specific differences. Apple computers are similar to "PC's" but have their own unique features and functions. Iconic cartoons from the 1980's such as The Transformers and Gobots had very similar qualities, yet maintained their own specific identities.

What makes a product, slogan, or entity "click" with people is an intangible quality that can't be harnessed. If somebody comes up with an idea that flops and then another person comes along and puts out their version of said idea and strikes gold, the initial "innovator" typically has no legal recourse.

Years ago, there was a man who attempted to sue Sylvester Stallone, claiming he lifted his idea for what ultimately became "Rocky IV" His lawsuit had no standing because Stallone created his own unique and specific version of an "underdog" story, using original character names, story premise, etc. If Stallone took another person's story and blindly copied it and made a movie about it, that in of itself would have grounds for an intellectual property law suit. This, however, simply was not the case and, Rocky's unblemished reputation lives on in all of our hearts.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Thursday, January 13, 2011

Tech Integration with Litigation

Just about everyone nowadays has a cell phone. More specifically, most have "smart phones" such as an iphone, Droid, or Blackberry. With these recent “can't live without” pieces of technology comes the ability to communicate in numerous forms with virtually anyone, anywhere, at any time. Because of this recent technological trend, people are more prone to open themselves up to a greater degree of liability as it pertains to their communications. In other words, we as a society need to really watch what we say within the realm of texts, emails, and social networking sites as said communication could be held against us in a court of law.

Practically everyone, including their mothers (and grandmothers) are on Facebook. Facebook is currently the holy grail of the social networking sites and people post everything on there from how tired they are to how much they enjoy chocolate. Due to its public nature, people don't often realize that when they post their dirty laundry on other peoples "wall," said communication can be taken and interpreted out of context. When parties, such as bickering spouses enter litigation in Family Court, these prior communications can come into play and may prove to be at the detriment of the deponent. More often than not, what people post on sites such as Twitter, Facebook, and MySpace is meant to be taken in jest. However, on its face, the posts could be interpreted differently and the deponent often has an uphill battle in demonstrating the appropriate context in which it was meant to be taken.

Within the last few years, the concept of text messaging has really become popular within the world of communications, so much so that people often text one another when they are in the same room! This is another area where the information provided within the confines of a text could be drastically misleading and misinterpreted. If one goes through the right channels, a transcript of text chats can be obtained and are often submitted in court as evidence during trial. These types of transcripts do not always hold up under scrutiny, but one should be careful when posting on Facebook and similar sites in order to avoid such hassle.

So the next time you text a friend, co-worker, or family member, be sure that it is appropriate and within the boundaries of the law. Some texts can come back to haunt you. Just ask Brett Favre and Tiger Woods.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Saturday, January 8, 2011

Un-Pleading Guilty to a Traffic Ticket

When one gets a traffic ticket, it would appear that the easiest way to deal with it would be to simply plead guilty and mail it back to the court. More often than not, however, this type of lackadaisical attitude proves to be detrimental down the road. People often don't realize that by blindly pleading guilty to a traffic ticket, it opens them up to obtaining a high amount of points on their drivers license. Along with these points come higher fines and increased insurance rates. Also, drivers with a commercial license run the risk of having their privileges revoked much easier than the average driver.

When one pleads guilty to a traffic ticket and then suffers heavy repercussions as a result, they may attempt to have their prior pleading vacated by filing a Coram Nobis. A Coram Nobis is basically a legal "mulligan" or a "do over." It is a motion made to the court requesting that the prior guilty plea be vacated in order to potentially negotiate a plea to a reduced charge.

It is not guaranteed that by filing a Coram Nobis the prior guilty plea will be vacated. It is simply a motion, or request. It is at the judge's discretion to grant the motion. If they deny the motion, one is pretty much out of luck. However, most courts grant said motions, so long as the individual has a decent reason for the request.

Usually one would hire an attorney to draft a Coram Nobis. Once granted, the attorney would then enter into negotiations with the DA or town attorney to a reduced charge.

From a personal stand point, I completely empathize with anyone who gets a traffic ticket. Let's face it, we've all been there and when it happens, it feels like the end of the world to some of us. Truth is its not that big a deal and can easily be dealt with if one puts in the time and effort. I recommend resisting the natural impulse to simply take the path of least resistance and check off "guilty" on the ticket and hope for the best. Instead, confront the issue and take the appropriate steps in avoiding a potential disaster to your driving record.

Bottom line here is to think before pleading guilty to a traffic ticket. If you do hastily plead guilty and wish to "un-plead," make sure you present the court with a good reason for your request. Typical good reasons are based on unfamiliarity of the current traffic laws, or perhaps you are an out of state driver, again, not familiar with the traffic laws of NY.

So in closing, the best way to deal with the negative impact of a regretted guilty plea is to file a Coram Nobis. For additional information on hiring a traffic attorney, please feel free to read one of my prior blogs, "Top 5 Things to Look for in Hiring a Traffic Lawyer."

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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Saturday, January 1, 2011

Foreseeability Factor: The Pantera Tragedy

December 8, 2004 was a very sad day in the world of music as that was the day “Dimebag” Darrell Abbott was murdered while he was literally playing guitar on stage. For those readers that are not a fan of hard rock music, Darrell Abbot was the lead guitarist for legendary heavy metal band Pantera. The band was extremely popular during the 1990’s among heavy metal aficionados and the tragedy that struck in Columbus, Ohio in 2004 remains one of rock’s most tragic deaths.

Pantera broke up in 2003 when singer Phil Anselmo had a falling out with Darrell and his brother, fellow band mate and drummer, Vinnie Paul Abbott. The split was filled with acrimony to say the least and both Anselmo and the Abbott brothers went their separate ways and formed their own respective bands.

Upon the death of Darrell Abbott, Phil Anselmo attempted to attend the funeral of his former band mate but Vinnie Paul and Darrell’s long time girlfriend Rita Haney prevented him from doing so. They harbored great resentment toward Anselmo, as they both felt it was he who was responsible for Pantera’s breakup. Vinnie Paul further held distain for Anselmo due to alleged negative comments he made toward Darrell in the press.

Rita Haney went on the record saying that Anselmo was essentially just as responsible for the murder of Abbott as the man who actually shot him on stage. She went on to claim that if Anselmo did not force the breakup of Pantera, Darrell would not have been playing the small, dismal venue on the night of his murder. At the height of Pantera’s fame, they were playing in much larger arenas with heightened security. Upon investigation of Abbott’s death, it was revealed that the gunman acted out because he was upset about Pantera’s demise and he held Darrell responsible. It was also later determined that the gunman had severe mental issues.

In response to Rita Haney’s claims, the legal issue boils down to reasonable forseeability; more specifically, was it foreseeable that Darrell Abbott would be murdered if Anselmo had not broken up the band.

While it may be factually true that had Anselmo not left Pantera, Abbott would not have formed a new band and would not have been playing in the smaller venue on the night of his murder. However, for anyone, including Rita Haney, to hold Anselmo responsible for the actions of a mentally ill murderer is not legally plausible to say the least.

To be deemed legally responsible for certain actions, whether they are criminal or tort, the issue of foreseability comes into play. If a party acts in a way where it is reasonably foreseeable that said actions would have a negative impact upon another, that party would be deemed legally culpable.

For example, if a person drinks an abundant amount of alcohol and then drives their car home, it is reasonably foreseeable that they may cause an accident and that other people may be injured or killed as a result. In this scenario, it would be justified to hold a drunk driver responsible for the harm they cause to people they hit with their car while under the influence of alcohol. The same cannot be said regarding the actions of Phil Anselmo as they pertain to his departure from the band Pantera.

While it may be true that had Anselmo not left Pantera, Abbott would not have been playing in the smaller venue on the night if his murder. It can also be assumed that the man who shot and killed him would not have done so had Pantera stayed together as a band. However, it was not reasonably foreseeable that Darrell Abbott would have been murdered by a mentally ill fan based on Anselmo’s decision to leave the band. The actions of the crazed gunman on the night of December 8, 2004 superceded anything that Phil Anselmo did with regard to his involvement in the demise of Pantera.

When it comes to legal culpability, reasonable foreseeability is the ultimate measuring stick. Often people want to point fingers and place blame where it doesn’t legally belong. Before they do, they should take a step back and ask themselves whether or not it is reasonable, under the circumstances, to hold said person responsible.

In the case of the Pantera tragedy, both Vinne Paul Abbott and Rita Haney were understandably emotional. In the heat of the moment, they immediately lashed out at Phil Anselmo. While it may be reasonable to be upset with him on a professional level, it is absolutely unreasonable and outright wrong to hold him legally responsible for the death of Darrell Abbott.

As a fan of Pantera, I hope Anselmo and Vinnie Paul make amends, but as of this writing, it doesn’t appear it is going to happen in the foreseeable future.

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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