Harmless Error Wills

Oregon, like most states, has laws regulating what sorts of documents constitute a “will” and how to execute such documents so they are valid and enforceable. Some examples of the kinds of things different states require are whether every page needs to be signed or initialed, whether it needs to be signed in front of witnesses or a notary, whether a witness can be someone who benefits from the will, and whether witnesses must also sign the will. You can find Oregon’s specific requirements encoded in various provisions of Oregon Revised Statutes (“ORS”) Chapter 112.

Too bad, So sad frc0gbsw

Prior to March of this year, I referred to Oregon as a ‘too bad, so sad’ state with regard to purported wills that failed to meet statutory requirements in one or more respects. Your father wrote a will and signed it but there were no witnesses? Too bad, so sad; it’s not a will and your father’s estate will be administered under the laws of intestacy (what happens without a will in place). This is no longer the automatic result because, effective March 14, 2016, Oregon adopted what has come to be known as the Harmless Error Wills statute, ORS 112.238.


New law

Under ORS 112.238, which applies to the estates of decedents dying after the effective date (03/14/16), when a decedent leaves behind a writing a petitioner can offer it to a court and the court will accept it as the person’s ‘will’ on a showing of clear and convincing evidence that it embodies the decedent’s testamentary intent. A petitioner can also use this statute to offer a writing that appears to partially or completely revoke a will, or to make additions or changes to a will.

If you are considering undertaking some estate planning, the will formalities haven’t changed and still hold so it is best to have an attorney assist you in the preparation of a will or any other estate plan to minimize problems after you are gone, as some view this statute as an open invitation to a flood of probate litigation.

If you are a beneficiary under a ‘will’ that might not meet all of the ordinary requirements, it is important that you consult with a probate attorney who is aware of these changes in Oregon law to discuss your legal options. The clear and convincing standard is a high bar and there are procedures to follow for submitting the purported will to the court, and if a probate case has already been opened your time to do so may be short.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Protecting Deceased Loved Ones from Identity Theft

probate attorney portland oregonIdentity theft is a growing problem and horror stories of the problems suffered by victims are all over the news and the internet.  Unfortunately, it also seems the perpetrators of this kind of fraud are just as clever as those trying to stop them, inventing new and ingenious ways to obtain your private financial information.  And, it isn’t just the living that are affected.  Each year in the United States alone approximately 2.5 MILLION dead people’s identities are stolen.  This is more than a final disrespect to your late family member or friend.  It can wreak havoc on the estate and cause tremendous problems for the heirs or beneficiaries.

What can the family do?

There are steps that the family can and should take, however, to minimize the risk to a deceased loved one’s identity.  The Internal Revenue Service recommends the following:

  • Send the IRS a copy of the death certificate, this is used to flag the account to reflect that the person is deceased
  • Send copies of the death certificate to each credit reporting bureau asking them to put a “deceased alert” on the deceased’s credit report
  • Review the deceased’s credit report for questionable credit card activity
  • Avoid putting too much information in an obituary, such as birth date, address, mother’s maiden name or other personally identifying information that could be useful to identity thieves

(From www.irs.gov)

What can the estate representative do?

In Oregon and many other states the person applying to the court to be appointed as the personal representative of the estate MUST include the deceased’s Social Security number in that initial application (see ORS 113.035(1)).  Fortunately, Oregon courts offer a procedure for filing that information in a protected manner, by ‘segregating’ it from the public record.  This procedure is outlined in the Uniform Trial Court Rules (UTCR’s) under rules 2.100 and 2.110.

When the person seeking appointment as the personal representative first meets with an attorney, he or she should ask the attorney about protecting this information.  Using UTCR 2.100 and 2.110 to segregate Social Security numbers from probate petitions is not a part of all attorneys’ regular practices.  By making sure your attorney understands that you want to take advantage of this procedure to protect the deceased’s identity and the estate, you can potentially avoid serious difficulties down the road.  And, because in the law serious difficulties often mean serious expense, avoiding problems can mean saving more estate assets to distribute to the heirs or beneficiaries.

For more information on how to protect your deceased loved ones or yourself from identity theft, visit www.idtheftcenter.org.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

The ABC’s of Automobile Insurance Coverage – Part 2 – UM and UIM Claims

"Car crash" by La Cara Salma - Own work Nel vero senso della parola! (sic!). Licensed under CC BY-SA 3.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Car_crash.jpg#/media/File:Car_crash.jpgIn a previous personal injury article, we discussed how Personal Injury Protection (PIP) insurance works in Oregon.  We reviewed this system of no-fault automobile insurance coverage developed by the Oregon state legislature to get people quick medical benefits to pay for their auto-related injuries. This week we will be discussing another aspect of personal injury protection related to automobile accidents:  uninsured and underinsured motorist coverage

What are Uninsured (UM) and Underinsured (UIM) Motorist Insurance?

In the typical car accident case you get into a collision with another driver, you exchange insurance information, and you make an insurance claim with either your own insurance company or the other driver’s.  However, in some two-automobile accidents the only insurance available to pay for your damages is your own.  This could be because:

  • the other driver involved in the accident did not have insurance at the time of the accident,
  • the other driver fled the scene of the accident without giving you his or her insurance information,
  • the other driver’s insurance company becomes insolvent.

These are all situations where your own insurance company would pay you benefits under an uninsured motorist (UM) claim.  UM claims are claims pursued against your own insurance company when there is no other insurance policy to draw upon.  An underinsured motorist (UIM) claim is a bit different.  This claim arises when another driver who is at fault hits you and has insurance but the amount of their insurance coverage is not enough to pay for your damages.  In this situation your own insurance may pay for the excess coverage that you require to pay your bills.

Why is it important to have UM and UIM coverage?

Without this type of insurance coverage you can end up paying the medical bills and property damage that were a result of another person’s bad driving.  There are irresponsible people out there who will drive without a valid license or insurance.  They may be driving without insurance because they cannot afford it, forget to pay it, cannot get it (if their license is suspended), or simply choose, against the law, not to purchase it.  There are also individuals who would rather flee the scene of an accident in order to avoid civil or criminal liability than face the consequences of their actions.  Suffering an injury from a negligent driver is bad enough, but having to pay for the treatment yourself is even worse.  It is important to have an experienced attorney represent you on uninsured or underinsured motorist claims because these types of claims are particularly complex and they are the types of claims that the insurance companies love to deny.

What laws regulate UM and UIM insurance in Oregon?

Thankfully, the Oregon legislature understands the importance of this type of insurance and mandates that every auto insurance policy in Oregon include uninsured or underinsured motorist coverage.  This is designed to protect Oregonians from going bankrupt paying the often extremely high medical bills that can result from a severe auto accident.  ORS 742.504 mandates that all Oregon drivers have uninsured and underinsured motorists protection.  Auto policies must provide a $25,000 minimum in coverage for UM/UIM claims.

How are UIM claims different from ordinary auto accident claims?

It is very important to know that in Oregon you must get permission from your own insurance company to settle a UIM claim with an underinsured driver’s insurance company.  If you take a settlement from the other driver’s insurer without first getting permission from your own then you cannot collect money under your own insurance’s UIM policy, thus limiting the total amount of money that you can recover.  If you do get permission from your own insurance company then you may be able to collect from the at-fault driver’s policy and your own, thus maximizing the amount available to cover your costs.

For informational purposes only and not to be relied upon as legal advice.

by David M. Mitchell, John A. Pinzelik, and Brook D. Wood

Hiring the Right Personal Injury Attorney

Personal InjuryThe Road to Hiring a Personal Injury Lawyer

Accidents happen. As nice as it would be to think that the person whose negligent actions caused your injuries would simply offer to compensate you, or that their insurance company would offer a fair settlement, the reality is that almost never happens. More often than not, people fail to take responsibility for their actions, and insurance companies end up profiting by paying victims less because they know that most are unaware of their legal rights. The key to avoiding falling victim to the schemes of insurance companies is to find an experienced personal injury lawyer who can help advise you of your options and take further legal action if necessary. After all, do-it-yourself lawyering can only take you so far. The following steps will guide you through the process of choosing a personal injury lawyer that will best meet your legal needs.  At Owens, Pinzelik, Wood & Schaff, P.C., we are confident our personal injury attorneys can help you tick all the right boxes in your search.

(1)  Understand your case.

Before seeking the help of a lawyer, it is important to know what you are looking for first. Ask yourself: what do you hope to get out of this at the end? Before meeting with any attorney, it is important to know and understand why you are pursuing a lawyer, and what exactly you want to accomplish with their help. How were you injured? Car accident? On the job? The answer to these questions will shape which attorneys you choose to get to know before making your final decision.

The question of cost is an important consideration. Consider whether you would be able to negotiate and recover more than half of what a lawyer would be able to get for you. If you hire an attorney, you will likely end up paying a portion of your recovery to the lawyer. But, chances are, if you have a serious injury or significant financial loss, an attorney will be able to recover a lot more than an unrepresented victim.

(2)  Build a list.

Family, friends, neighbors, and colleagues are your greatest resources when it comes to finding a lawyer. Ask other attorneys for recommendations. Lawyers know other lawyers, and although a family member’s business attorney may not be able to help you with your personal injury case, he or she will probably be able to refer you to an attorney who can.  Your employer or a union you belong to might offer a referral service that even covers your initial consultation or provides some discount on the fees you will pay.

Don’t want to share your legal woes with your inner circle? Hunt on your own and make the most of other resources.  A simple Google search will yield a number of online resources, such as FindLaw, Martindale-Hubbell, and Avvo.

(3)  Do your homework.

Research. Research. Research. Now that you’ve compiled a short list, your next step is to research the potential attorneys, check their backgrounds and evaluate their track records and qualifications as they pertain to your case. Check the websites of the attorneys you are considering and learn about their areas of expertise. Use the Internet to search for blogs written by the attorney that can give you a sense of their personality.

Remember, size matters. As you conduct your research, keep in mind the types of firms the potential attorneys are practicing in. Do they work at a large firm? Small firm? Solo practice? In the case of personal injury, a small firm such as ours can handle your case in a more personal and direct manner.

As you near the point of setting up an initial consultation, do your final due diligence. Some lawyers offer free consultations, others do not. Although personal injury lawyers rarely charge for initial consultations with potential clients, if they do, you will be obligated to pay that fee even if you do not hire them. At Owens, Pinzelik, Wood & Schaff, P.C., we never charge an initial consultation fee to discuss your personal injury matter.

(4)  Schedule the consultation.

If you haven’t already, make sure you create a list of questions to ask each attorney during your meeting. Important questions to consider are:

–      Have you handled similar personal injury cases before? How many? What were the results?

–      Will you be the only attorney who works on the case? If not, who else will work on it?

–      How will I be kept informed about the progress of my case and how often will you communicate with me about my case?

–      Will I be able to speak directly with you if I need you? How quickly do you respond to phone calls and e-mails?

–      How long will it take for this case to be resolved?

–      If I don’t want to accept a settlement offer and you want to settle, will you still go to trial? If I want to accept an offer, but you think we can win more at trial, what will you do?

After you’ve received the answers to all of your questions, at some point before leaving the meeting, make sure you understand how you will be charged. Attorneys generally charge in one of three ways: by the hour, a one-time flat fee or with a contingency fee (a percentage of the recovery amount). Most personal injury lawyers charge a contingency fee. If this is the case, you’ll want to know:

(1)  How likely you are to recover (keeping in mind that there are no guarantees)

(2)  An estimate of how much you will recover

(3)  The percentage the attorney will charge for the contingency fee

(4)  Any additional related expenses you might incur

(5)  The impact to your fees if the case settles immediately or goes to trial

We think you’ll be more than happy with the answers our personal injury attorneys give you for these and any other questions you might have.  If you’ve met with other attorneys that weren’t the right fit for you, contact Owens, Pinzelik, Wood & Schaff, P.C. today to schedule your free personal injury consultation.

(5)  Hire your attorney.

You’ve done your research, met with potential attorneys, and by this time, should generally have an idea of which lawyer will best meet your legal needs. After you make your decision, the next step will be to sign the engagement letter, the contract between you and your lawyer. Be sure to read carefully, as this document will describe the nature of your legal cause, the terms and conditions of your working relationship with your attorney, and any other matters you agreed to. If you are still unsure about anything, ask your questions before signing the letter.

Happy personal injury lawyer hunting.  If you choose to go elsewhere, we understand and respect your decision.  We’d appreciate the chance to earn your business and help you reach the right result with your personal injury matter.

Owens, Pinzelik, Wood & Schaff, P.C. is an Oregon law firm with attorneys licensed to practice in the states of Oregon and Washington.  This article is for informational purposes only and not to be relied upon as legal advice.

by Rachna Hajari, John A. Pinzelik & Brook D. Wood

How to Keep your Legal Fees Down

For most, if not all, clients, minimizing the expense of litigation or other legal services is one of the top priorities.  What many fail to do, however, is to take positive steps to help realize that goal.  Sometimes this can be attributed to highly charged, emotional situations in which it is difficult for the client and make it hard to think about the simple things like “how much is this going to cost me?”  More often than not, though, this failure is simply the result of not knowing HOW they can help themselves in this regard.  Here are 6 key tips to help you keep your legal fees down.

1. Read and Understand the Fee Agreementlegal-fees

The fee agreement is a contract entered into by the client and the lawyer or law firm, and it should be very clear about what charges the client is responsible for, how those charges are calculated, and how they are supposed to be paid.  Do not be afraid to ask questions if there is something you don’t understand or is not worded clearly.  If you are not satisfied with the attorney’s answers, perhaps that is a signal that you should look for representation elsewhere or at least ask another attorney to review and explain the agreement to you before you sign it.

2. Ask about Alternative Billing Methods

Rightly or wrongly, the standard legal billing method is by the “billable hour.”  Attorneys charge clients for the time dedicated to working on their cases and that time is multiplied by the attorney’s hourly rate.  Increasingly, however, lawyers and firms are offering alternatives to the billable hour.  Before you hire your attorney ask him or her if your case would be appropriate for either “flat-fee” or “contingency” consideration.

3. Consider a Limited Representation

For many disputes that are not yet in the litigation/arbitration stage, one option I have found many of my clients to appreciate is the opportunity to hire our firm on a “limited representation” basis.  In this kind of representation, the client hires the attorney to perform very specific services, which are explicitly listed in the fee agreement, such as drafting and mailing a demand letter to a debtor; preparing and recording a deed or other document with county offices; reviewing and providing advice regarding a contract.  the attorney is then not responsible for handling potentially related issues that the client deems unimportant.  this type of representation can then be handled hourly, flat-fee, or contingent.

4. Know if your Attorney Uses MBI’s

Many lawyers use minimum billing increments (MBI’s) to make up for the negative impact on productivity that interruptions can have when one client’s matter necessarily takes attention away from another.  MBI’s are a set minimum amount of time for which a client is charged for an activity regardless of how long the activity actually took for the attorney to perform.  The most common example is for emails and phone calls, where it is fairly standard practice to bill clients a minimum of 0.1 hours (six minutes), 0.2 hrs (12 mins), or even 0.25 hrs (15 mins) for each phone call or email to or from the attorney, even if that phone call lasted only a minute or two, or even less.  Also common are MBI’s of 1 hour for court appearances and of 0.1 or 0.2 hours per page for drafting legal documents.

5. Prioritize and Consolidate your Questions

Many clients simply do not understand the impact of their own communications with their attorney on the bottom line cost of representation, especially if MBI’s are in play.

Example: Steve hires Joan to represent him.  Steve has LOTS of questions.  Steve emails Joan 4 times per day, 5 days per week, for a month.  If Joan’s hourly rate is $200 and her firm bills an MBI of 0.2 for each email, Steve’s bill for these emails alone is $3,200!

Before calling or emailing your attorney, ask yourself if the issue is urgent.  If it is go ahead.  If it’s important but not urgent, write your question or comment down for later.  Once you’ve got a few notes, or the next time something urgent does come up, call or email about ALL of your issues.  In our example, if Steve had emailed Joan once per week instead, his bill would potentially be as low as $160 if the answers to his questions were simple.

6. Listen to your Attorney

When you hire an attorney to represent and advise you in a matter, presumably, you do so because you intend to listen to the advice you are given.  Ultimately, the client does make a lot of decisions about what is important to him or her, how he or she would like to proceed, and whether or not to settle a case, among others.  If your attorney recommends one course of action and you choose another, or if your attorney advises you not to do X and you do X, you can expect your legal fees to increase.  This is not because your attorney wants to punish you but because those are the natural repercussions of your decisions.  In some cases, not only will your own fees increase but you may be made by the court to pay the opposing party’s fees, too.  The only thing worse than paying one attorney is paying two.

In addition to these tips, don’t hesitate to ask your attorney if there are other things you can do to keep your legal fees down.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Oregon Small Claims Court – Getting Started

At our firm we often get calls from people who want to file or need to defend a lawsuit in small claims court, and who want  some basic information regarding the process.  While we do not mind taking these calls, we thought we could help many more people by publishing some of this information here.  Here, then, is some basic information on how to start your Small Claims case.  Mind you, we are aware much of this information is already available elsewhere on the internet but, apparently, it isn’t as easy to locate as it should be.

If you still have questions and would like to schedule an appointment with one of our attorneys to discuss your small claims case, as plaintiff or defendant, click here.Mult.Co.Crthse. Plaque

1. What is ‘Small Claims Court’ anyway?

Small Claims Court is a simplified venue for civil cases in which the amount in dispute is relatively low.  The rules of evidence are relaxed and there are no attorneys to appear on behalf of the parties (though you are permitted to seek the advice of an attorney outside of the courtroom before the hearing).  The purpose of Small Claims Court is to quickly and fairly resolve modest claims, while minimizing the financial burden on the parties often associated with legal disputes and making efficient use of limited judicial resources.

2. What cases can be brought in Small Claims Court?

For a case to be eligible for Small Claims Court in Oregon the amount in dispute, including the value of any property, must be $10,000 or less.  So, if you are a contractor, suing a non-paying client for $10,001, you may not file in Small Claims Court.  If you are suing for more than $10,000, you must file your suit in the Circuit Courts.

Additionally, in Oregon, with some few exceptions all claims of less than $750 must be filed in Small Claims Court.

(So, if the matter in dispute is between $750 and $10,000, you can file in either Small Claims Court or Circuit Court.  Consider discussing your case with an attorney, who can explain the advantages and disadvantages of each system which may impact upon your case.)

Also, to file a Small Claims Court action you must first genuinely attempt to resolve the matter with the opposing party and swear to the Court under penalty of perjury that you did so.

3. Who are the parties in a Small Claims suit?

Just as in Circuit Court civil suits, the party that files the lawsuit is called the Plaintiff and the party being sued is the Defendant.  The Defendant can bring counterclaims against the Plaintiff but is still called the Defendant.

4. How do I file a Small Claims case?

The Plaintiff begins the Small Claims case by filling out a Small Claim and Notice of Small Claim form.  (For Multnomah County forms, click here.)  The Plaintiff files this form with the Small Claims Court of the county where: a) at least one Defendant resides; b) the injury or damage occurred; or, c) the Defendant was supposed to perform some contractual obligation.  In Multnomah County this form is filed at the Small Claims counter in Room 210 of the Multnomah County Courthouse, 1021 SW 4th Avenue, in Portland.

There is a filing fee that must be paid when the form is filed with the Court.  The fee is $53 for claims of $2,500 or less, and $95 for claims between $2,500 and $10,000.

5. What else do I need to do?

Before the Defendant(s) can be made to show up to Small Claims Court, the Plaintiff must serve (provide notice to) the Defendants regarding the lawsuit.  There are a few ways this can be accomplished but generally if you know the Defendant’s home or work address the easiest is to take a true copy of the Small Claim and Notice of Small Claim form to the sheriff’s office of the county where the Defendant resides or works.  The sheriff’s office will deliver the copies to the Defendant and provide you with a Proof of Service that you must file with the Small Claims Court.  There is a fee charged for this service that varies by county.  In Multnomah County, you can call the sheriff’s office at (503) 988-3291 or simply stop by their office on the first floor of the Multnomah County Courthouse.

After doing all of the above, the Plaintiff must then wait to see if the Defendant will voluntarily pay the claim, request a hearing, demand a jury trial (if you are suing for $750 or more the Defendant can demand that you file your suit in Circuit Court), or ignore the whole thing and hope it goes away.

Obviously, this isn’t everything to know about Oregon Small Claims lawsuits.  For more , feel free to check out the information provided by the Multnomah County Circuit Court here, or by the Oregon State Bar here.

Again, if you wish to schedule an appointment with one of our attorneys to discuss your small claims case, as plaintiff or defendant, click here.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Oregon DUII Part 1 – Potential Benefits of the Breathalyzer

A Good Night Suddenly Turned Bad

You’ve just left your friends behind after an enjoyable night and are headed home to the comfort of your own bed.  Then that sinking feeling as you see the red and blue flash in your rear-view mirror.  You have just been pulled over and, though you may feel fine, you know you’re probably in trouble.

This is the first post in a short series of Oregon DUII-related topics.  In future posts we will look at Oregon’s DUII Diversion Program, the “McShane” Plea, and other issues.  For now, however, we  will examine the potential benefits of agreeing to undergo breath analysis, commonly referred to as ‘Breathalyzer.’

Continuing the above scenario, the officer approaches your car and begins to ask you questions.

Do you know why I stopped you? Have you been drinking this evening? How much have you had to drink? When was your last drink?

It all happened so fast and you don’t even remember what you said.  What you do know is that at the end of the conversation the officer indicated he was arresting you for DUII.  You are cuffed and in the back of a squad car on your way to the station.  When you arrive you are asked to voluntarily submit to breath analysis to determine your blood alcohol content (BAC).

intoxilyzer-8000Many people instinctively refuse to ‘blow,’ thinking that if the cops can’t determine their BAC they may have a better chance of getting out of this.  There are situations in which not submitting to the test might be beneficial, given a person’s unique circumstances.  What many people don’t realize, however, is that there are potential benefits to submitting to the Breathalyzer.

Some possible benefits to voluntarily submitting to breath analysis include:

  • Implied Consent Suspension – Under ORS 813.100 and 813.420, refusal to submit to the test will automatically result in suspension of your license for a period of from one to three years.  Compare this to the automatic suspension that results from a ‘failed’ test of only 90 days to one year.
  • Low BAC – Under ORS 813.010 a person is guilty of DUII if the results of breath (or blood, again a different topic) analysis indicate that you were operating a motor vehicle with a BAC of 0.08% or higher.  If the Breathalyzer demonstrates that your BAC is below 0.08% you might not be charged with DUII.  Another future topic will discuss how you may still be charged with DUII even if your BAC is below this limit.
  • High BAC – Under ORS 813.010(6)(d) a person convicted of DUII with a BAC of 0.15% or higher must pay an enhanced fine.  This, obviously, is not a benefit.  However, a high BAC can be indicative of a ‘problem condition involving alcohol’ – legalspeak for alcoholism.  Oregon laws and courts recognize that alcoholism is a problem that may be beyond a person’s control alone and the system allows for people with genuine difficulty, who genuinely wish to receive treatment, to be provided both some measure of leniency and assistance in receiving much-needed treatment.

Only a competent, licensed Oregon attorney can explain your options under these laws to you if you have refused to submit to breath analysis or have submitted and still face criminal prosecution.

To be contacted by an attorney at Owens, Pinzelik, Wood & Schaff, P.C., click here.

For informational purposes only and not to be relied upon as legal advice.

by Victoria Timbrook, David W. Owens, and Brook D. Wood

Understanding the Legal and Practical Risks of Social Media

Facebook, Twitter, Google+, Pinterest, Reddit, blogs, vlogs – today’s social media outlets provide any number of ways for people and businesses to connect, from sharing photos and recipes with friends and family, to planning vacations, to building your customer base or hyping a new song, movie, or product.

Most people and businesses, however, are too busy enjoying this ‘golden age’ of digital inter-connectivity to think about the legal and practical dangers inherent in social media.  The following information is provided as a courtesy to help you understand, and hopefully avoid, some of the more common personal and business pitfalls of social media.


Personal Risks of Social Media

  • Confidentiality –  Information communicated between you and your lawyer, doctor, priest, and others, may be protected by confidentiality or privilege laws.  This means it may not be accessed by others or used against you in court.  Sharing this information online, however, might be seen as a waiver of those protections.  Be careful and think twice about what you are posting.
  • Anonymity –  Many have the false impression that comments posted to online forums, news outlets, or blogs are anonymous.  Just post it under hamm3rtime1981 and nobody will know it’s you, right?  Wrong.  There is no such thing as anonymity on the internet.  Everything online can be traced back to its source.  Any time you post anything online, do so on the assumption that everybody in the world may find out it was you that wrote it.
  • Children –  Nowadays everyone uses the internet to find whatever it is they are looking for, even child predators and bullies.  Be aware of your children’s internet activity and talk to them about online safety and how to handle and report inappropriate behavior.
  • Other Legal Risks –  Increasingly, Facebook updates and Tweets are being used as evidence in divorce, child custody, and criminal cases.  No matter how innocent you may think your posts are, consider what it may look like to others, like a judge or jury.  That photo of you pretending to shotgun a beer outside the football stadium may cost you in court later.

Business Risks of Social Media

  • Intellectual Property and Likeness Rights –  Thought should be given and care exercised before using content created by others to promote your business without their permission.  Using another’s words or graphic designs may violate copyright laws.  Additionally, using someone’s photo (or other identifiable feature) may violate his or her rights of publicity and/or privacy.  In today’s digital age it is easier than ever to fall into these traps.  If you are uncertain, don’t do it until you can speak to your attorney.
  • Company Reviews –  Finally getting around to creating that company Facebook or other site’s page should be considered carefully.  On any site that allows customers to post reviews, sometimes just one bad review, even if undeserved, or worse, completely fabricated, can devastate your business.  Before signing up, be sure to look into things like: Who controls what users see, you or the site?  How long do negative reviews or ratings stay on your business profile?  Is there a way to remove or dispute negative comments?
  • False Advertising and Defamation –  In promoting your own business or products, think twice before engaging in comparisons to your competitors.  In advertising, not only must you speak honestly about your own business but you must also be honest about your competitors.  Opinions about your own products and services are generally okay – “the best full-service laundry in Oregon” – but don’t chance it with your competitors’ – “John Doe’s laundry is the worst.”  Any false claims boosting the qualities or attributes of your business may violate false advertising and/or unfair trade practice laws, while false statements about a competitor that harms his/her/its reputation me be grounds for a defamation suit.
  • Account Ownership –  When you asked your assistant to create social media profiles for your business you probably didn’t think about who would own those profiles when he or she is no longer with the company.  The same is probably also true of content posted on those profiles by your employees.  These are new issues and no bright line rules exist yet in the law.  To protect your business it is generally best, however, that these profiles are set up independent of any actual person’s account if possible, or as alter-egos of your own profile, where necessary, and your employee handbook or employment contracts should explicitly define who owns what.  Additionally, consider provisions stating that it is against company policy to use company social media outlets to discriminate, disparage, defame, or engage in other tortious conduct.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

The College Send Off Done Right

College-PlanningNow is the time many families look forward to the storied day when they send their children off to college.  It is a time to celebrate, as the child and the family have all worked hard toward this goal.  Often, in this hopeful and hectic time, lost among the campus tours, class schedules, text books, and clothes shopping, is the idea that there are legal issues that merit consideration, particularly if your child is 18 or older.  Parents of adult children do not have the same rights to grades and other academic information, or to make medical or financial decisions.  Proper legal planning for these issues can be hard to address but the peace of mind it brings may well be worth it.

  • Will – Thinking about the possible death of your adult child is undoubtedly difficult but is a matter that needs discussing, particularly if he or she owns significant assets outright.  If your adult child were to die without a will, laws of intestacy would determine the distribution of his or her estate.  If your adult child has no children of his or her own, in most states the estate would then pass upward to the parents, which may wreak havoc on their estate plan.
  • Power of Attorney – Statistically, young men are approximately 32%, and young women 147%, more likely to become disabled than die.  Still, if planning for the possible death of a young person is uncommon, planning for possible disability of one is almost unheard of.  If your adult child is the victim of an unfortunate incident resulting in disability, or less tragic, studying abroad, and unable to manage his or her financial affairs, a durable power of attorney can save the time and expense of having a guardian and/or conservator appointed by a court, and allow the nominated parent (or other person) to take care of things like banking, paying bills, and filing taxes.
  • Advanced Directive – As a power of attorney allows the student to designate someone to handle financial affairs, an advanced directive, sometimes called a living will, allows the designation of a person to handle medical decisions and to carry out your child’s wishes regarding life support, ‘heroic measures,’ and the like.

Other Issues:

  • InsuranceHealth – Many college students are included in their parents’ health care coverage and recent reforms allow this until the student graduates from college or turns 26.  If your child is not covered on your policy, check with the college or university, as many offer low-cost plans themselves or have arrangements with insurers that could benefit your child.  Car – If your child isn’t taking a car to college, think twice before automatically removing him or her from your auto policy.  When your child returns home for visits, will he or she be driving your car?  What if, while away at school, your child is asked to be the designated driver for a group of friends?  Talk to your auto policy representative about your options.  Property – What if your child’s laptop is stolen from the dorm?  Talk to your homeowner’s insurance representative about protecting your child’s personal belongings.
  • FERPA (The Family Education Rights and Privacy Act) – Gone are the days when parents had unfettered access to their children’s academic records.  FERPA explicitly prevents a student’s information from being released without his or her permission.  There are exceptions but parents should check with the college or university regarding its FERPA policies and consider asking their children to sign a FERPA release authorizing parents to view the student’s academic records.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Some Helpful Links:

University of Oregon Academic Calendar

Oregon State University Academic Calendar

Portland State University Academic Calendar

Portland Community College Academic Calendar

Lewis & Clark College Academic Calendar

Common Neighborly Disputes

Why Can’t We All Just Get Along?

Robert Frost said, “good fences make good neighbors.”  What he didn’t tell us is that that fence, itself, could be the source of some serious animosity.  In a way, neighbors are like family – rarely do you get to choose them and you will not always get along.

Here are a few common sources of neighborly squabbles, with ideas on resolving similar issues you might be having peacefully and legally.  Remember, however, if resolution is not possible and the fight is taken to the courts, only a competent, licensed attorney is trained to analyze the facts of your specific situation, including any legal claims you or your neighbor(s) might make, and present you with your legal options.

If your property in question is in Oregon or Washington and you would like one of our attorneys to contact you to discuss your dispute, please complete the form here.

Boundary Disputes – The most obvious potential issue between neighbors is disagreement over where your property ends and your neighbor’s begins.  This type of dispute usually arises when one owner decides to build a fence or put up a row of trees along where he believes the property line to be.  If not properly addressed beforehand this type of dispute can result in significant financial losses for the party in the wrong – perhaps tearing down that fence or pulling up those trees only to move them two or three feet.  The easiest way to avoid problems is to request a property survey BEFORE you build that fence.  You may even convince your neighbor to share in the expense of the survey, but shouldn’t expect it.

The Multnomah County Surveyor’s Office provides a FAQ regarding private property surveys here.

Trespassing Trees – Though common enough to be considered an issue of its own, these disputes are really just another type of boundary dispute.  Your neighbor has trees along the property line.  Though the trees are technically on his property, the branches overhang onto yours.  What can you do?  The best course of action is usually to ask your neighbor to trim the trees back and to give him or her permission to come onto your property, if necessary, for that purpose.  Unfortunately, this doesn’t always work.  Some neighbors are too busy, others just too mean.  If after a reasonable period of time your neighbor hasn’t addressed the issue, you might try approaching him again, this time suggesting hiring a tree service, and perhaps offering to chip in.  If this still doesn’t accomplish the desired result, you are generally free to reasonably trim the offending branches or to hire a tree service yourself and ask that your neighbor compensate you for the cost, though are likely unable to force that point.  You are not entitled to kill or cause serious damage to the tree(s) in question, so if you are in doubt the tree service is likely the better idea.

Noise and Other Annoyances – Whether it be a favorite song played over and over and over, an enthusiastic guard dog, or an exceeding affinity for Christmas lights, there are times when most neighbors (even you) get on someone’s nerves.  Again, the best way to deal with these issues is simply to talk it out peaceably, in advance whenever possible.  If that doesn’t get the job done, consider raising the issue with your home-owners or condo association (if you have one), apartment or building management (if applicable), or your neighbor’s landlord (if you know how to contact him or her), before calling the police to make a nuisance complaint.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood