HOW FACEBOOK CAN HELP OR HURT YOUR CASE

A client was involved in an ongoing dispute with his neighbor. The neighbor dumped trash into the client’s yard on a number of occasions and verbally harassed the client. The abusive neighbor also injured the client’s dog, resulting in large vet bills. The client decided to sue the neighbor.

To win the case, the attorney needed to show the jury that the neighbor had a history of harassing the client with vulgar language and threats. But when the defendant neighbor took the stand, he testified it was not in his character to use crude and profane language. That is when the attorney pulled up the neighbor’s Facebook page. The attorney had photocopied the neighbor’s Facebook wall, where he had posted many derogatory and offensive comments.

The jury ended up awarding the plaintiff more than $430,000 in damages. Speaking to the jury after the trial, the attorney discovered the Facebook wall postings were a key factor in diminishing the defendant’s credibility.

This case illustrates how social media, like Facebook and Twitter, are changing the legal landscape for defendants and plaintiffs alike. With so much personal information voluntarily being made public, it is no surprise things like wall posts and Tweets are showing up as evidence in court. This is something that all lawyers and their clients need to be aware of.

Attorneys can mine your Facebook and Twitter accounts for evidence.

Deleting your social media accounts during trial can result in penalties.

If you are involved in a lawsuit, talk to your lawyer about how to use social media while your case is ongoing.

Be Careful What You Post!

Over the last few years, social media sites have become bigger than some countries. According to Facebook, there are more than 800 million active users on the site’s network, with more than half of these users logging into the site each day. On average, more than 250 million photos are uploaded to the site each day, while the average user is connected to more than 80 community pages, groups and events. Meanwhile, Twitter sees more than 1 billion Tweets posted per week, with an average of about 140 million per day.

It is the attorney’s obligation and duty to accumulate as much information as he or she can in order to support the client’s case or defend against it. Many lawyers today are learning a lot about the parties and the witnesses through social media sites. This information doesn’t simply evaporate into thin air after it leaves your screen. It can be mined, analyzed and reviewed in civil and criminal cases.

Another example is where a high school varsity football player suffered brain injuries during the course of a game. The player had alerted a coach to a malfunction with his helmet before taking the field, but the coach allegedly brushed off the problem and instructed the student to play anyway. The case was complicated by the fact that by the time the player sued, he was in college where pictures of him fraternizing and partying were taken and posted to his Facebook page.  These pictures gave the wrong impression as to the severity of his brain injury, and negatively impacted his case.

But be careful not to take down your Facebook photos – a measure which could be construed as tampering with evidence. This kind of evidence tampering is referred to as “spoliation” in many states and can result in serious penalties. Instead, attorneys should counsel their clients not post any new information – especially photographs – on their Facebook page while their trial is ongoing.

Making Social Media Work for You

This proliferation of evidence isn’t all bad.  Plaintiffs and defendants can use social media sites to their advantage by using these networks to promote their side of the case.

People can use social media sites to share their stories accurately and truthfully. As long as you have a message to share and it is honest, social media can actually have beneficial ramifications.

Attorneys should leverage the power of social media sites to benefit their clients. As internet access becomes more ubiquitous with the rise of smart phones, the public, and even jurors, are more likely to conduct their own research into a case.

Although individuals need to be aware of the consequences of posting to social media sites, the obligation to remind them of these ramifications falls to the attorneys. Lawyers need to counsel their clients about social media and to instruct them to either stop posting or to update their accounts with honest information about their case. And people involved in a lawsuit should never post anything that references their injury, accident or dispute without first talking to their attorneys.

HOW THE AUTOMATIC STAY HELPS YOU IN BANKRUPTCY

The automatic stay in bankruptcy is the provision in the Bankruptcy Code that creates an immediate “stop” to collection efforts by creditors against you when you file for bankruptcy. When your bankruptcy filing is confirmed, the court will inform your creditors accordingly and enforce the automatic stay. A creditor may try to collect payment after the automatic stay goes into effect, but to do so they would need the judge to grant permission, or “relief from the automatic stay,” in order to proceed with any collection activities. In general, the automatic stay will be in force until the court reverses it or you exit bankruptcy.

The automatic stay gives you more time to handle finances. The provision is especially useful for those who are at risk of eviction, foreclosure, utility disconnection or wage garnishment.  It can prevent you from being evicted if you rent, from being foreclosed on if you own, from your utilities being cut off or your wages being garnished.

Certain payment obligations on your part are exempted from automatic stay, such as alimony payments and child support. When it comes to tax debt many people mistakenly classify it together with alimony and child support thinking that collection efforts by the IRS cannot be stopped by automatic stay. But this is only somewhat true. The fact is the automatic stay can prevent liens or property seizures by the IRS. And while alimony and child support payments are usually not dischargeable under Chapter 7 bankruptcy, certain tax debt may be dischargeable depending on your circumstances. Your tax debt may be eligible for discharge if it has been assessed by the IRS at least 240 days before filing, you have income tax returns filed for the last 2 years and the debt was due at least 3 years prior to filing.

But if the bankruptcy court decides your tax debt is not dischargeable under Chapter 7 bankruptcy, you can choose to file Chapter 13 bankruptcy instead where you pay off your tax debts (along with other debts) under a repayment plan. And it is likely that as long as you are setting up a payment plan under Chapter 13, the IRS will not make collection efforts against you while the automatic stay is in effect.

WHAT SHOULD YOU ALWAYS KEEP IN A SAFE AT HOME?

Most people think the safest place to keep valuable items is in a safe deposit box at a bank.  However, the contents of a safe deposit box are rarely insured, while items in your home are usually covered by your homeowner's or renter's insurance policy.

And any cash you keep in a safe deposit box is not covered under FDIC insurance. The FDIC only insures the deposits in accounts held in banks, but not the contents of their safe deposit boxes.

Certain documents such as passports, wills, powers of attorney, medical directives, etc. should not be kept in a safe deposit box as these document can be needed immediately and should always be readily available. Bank safe deposit boxes are only accessible during bank operating hours. And to complicate matters more, bank safe deposit boxes are typically sealed when the bank receives notice of someone’s death. To open a sealed safe deposit box, estate representatives are required to provide court papers to the bank and this can take valuable time.

For these reasons it's good idea to buy a fireproof safe and keep it in your home. What should you keep in your safe?

Here are some useful suggestions of what you should always keep in your safe at home:

·         Your home owner’s insurance policy. You'll need this information right away if your house suffers damage or loss and you need to file a claim.

·         Passports and original birth certificates. These can be a hassle to replace and will come in handy to establish identity when traveling, especially with children.

·         A list of all treating doctors, prescription medications, and contact information for all pharmacies you use. This information can be helpful to medical emergency personnel if you have a medical emergency.  Someone taking care of you may need this information to get new supplies of medications you need on a regular basis.  Also, this information should be kept on your smart-phone or carried with you in a wallet or purse should you have a medical emergency away from home.

·         An external hard drive or CDs containing digital copies of all family photos. In this day and age, most of our precious memories are in digital format.  It is also a good idea to scan all older family photos and keep a digital copy of them as well. Your family photographs are irreplaceable so remember to back up your photographs from your computer to an external hard drive or on CDs.

·         Your important papers related to your investments, retirement plans and bank accounts.  While you may not need these documents to be readily available, if you are incapacitated and your attorney-in-fact has to access these records, they will be easy for him or her to find in your safe.

·         You should keep some cash on hand for ready access in an emergency.  In an emergency like a power outage or earthquake, the ATMs may be down and stores will not be able to take credit cards, so having readily available cash can be very handy.  Keep at least $500.00 in small bills in your safe for emergencies – and don’t touch it!

·        Original Social Security cards. These can take time to replace and may be needed to establish eligibility for benefits.

·         Copies of your important legal documents, including powers of attorney and health care directives — both for yourself and for anyone else for whom you are designated attorney-in-fact or health care agent. Having easy access to these documents can help make it easier for the person named as your attorney-in-fact or health care agent to provide you with the protection your are entitled to under these documents.

·         Copy of will and trusts, and copies of all wills and trusts in which you are designated the executor or trustee. It is important to have unrestricted access to these documents as safe deposit boxes are typically sealed upon notification of the box owner's death and require involving the court to unseal them.

·         Valuables. Jewelry, coins, etc., that you may want easy access to from time to time.

·         Spare Keys and titles to all vehicles. It helps to know where an extra key and your vehicle title is kept in case you need them.

·         Safe deposit box keys. While it is not advisable to keep the items listed here in a bank safe deposit box, if you chose to use one, or keep other important documents or valuable items in one, you will want to make sure you keep the keys to it in a safe place like the fireproof safe in your home.

CAPACITY REQUIREMENTS FOR SIGNING ESTATE PLANNING DOCUMENTS

Proper execution of all estate planning documents requires the person signing have sufficient mental "capacity" to recognize and comprehend the implications of what they are doing. Most people speak of legal "capacity" or "competence" has something people either have or don’t have. But capacity can depend on many variables, including the person's capabilities and the task at hand for which capacity is required.

When determining capacity to execute estate planning documents, it is important to look at the client's abilities, which may change from day to day (or even hour to hour), depending on their illness, fatigue and the side-effects of medication. On the other hand, greater understanding is required for some legal activities than for others. For instance, the legal capacity required for entering into a contract is considerably higher than that required for executing a will.

The standard definition of capacity for wills is:

Testamentary capacity requires the ability on the part of the testator to understand and comprehend, in a general way, the nature and situation of his property and his relations to those persons who would have some claim to his assets. It requires freedom from delusion, or other psychological conditions which might influence the ability to understand and make decisions about the disposition of his or her property. And it requires the ability at the time of execution of the will to comprehend the nature of the act of making a will.

This is a relatively "low threshold," meaning that signing a will does not require a great deal of capacity. The fact that the next day the testator does not remember signing the will and is not sufficiently "with it" does not invalidate the will if he or she understood at the time what he or she was signing.

The standard of capacity with respect to durable powers of attorney varies from jurisdiction to jurisdiction. Some courts and attorneys argue that this threshold can be quite low. The client may only need to know that he trusts the attorney-in-fact to manage his financial affairs. Others argue that since the attorney-in-fact generally has the right to enter into contracts on behalf of the principal, the principal should have the capacity required to enter into contracts as well.

As a practical matter, in assessing a client's capacity to execute an estate planning document, attorneys must ask, "Is anyone going to challenge this estate planning instrument?" If a client of questionable capacity executes a will giving his or her estate to the spouse, and then to the children if his or her spouse predeceases them, it's unlikely to be challenged. However, if he or she executes a will giving their estate entirely to one child with nothing passing to the other children, the attorney must be more certain of being able to prove the client's capacity because there is a greater likelihood of a challenge by one of the omitted children.

While the standards may seem clear, applying them to a particular client may be difficult. The fact that a client does not know the current year or the name of the current President may mean he or she does not have capacity to enter into a contract, but does not necessarily mean that he or she cannot execute a will or durable power of attorney. The determination mixes medical, psychological and legal judgments. It must be made by the attorney (or a judge, in the case of guardianship and conservatorship determinations) based on information gleaned by the attorney in interactions with the client, from other sources such as family members and social workers, and, if necessary, from medical personnel. Doctors and psychiatrists cannot themselves make a determination as to whether an individual has capacity to undertake a legal commitment like signing a will. But they can provide a professional evaluation of the person that will help an attorney make this decision and substantiate the client’s capacity to execute estate planning documents.

Because of the potential complications when assessing capacity and because you need to be certain that formal legal requirements are followed, it is always advisable to retain an experienced estate planning attorney when preparing and executing any estate planning documents.

CELEBRITY ESTATE PLANNING MISTAKES – DON’ T LET IT HAPPEN TO YOU!

As we are now in the second month of the New Year, how many of your resolutions have you kept?  Well, it’s not too late to keep that resolution to plan your estate or update your existing estate plan.

  

·         Stop Procrastinating and Plan Now

Canadian Olympic skier Sarah Burke was only 29 when she died tragically from injuries sustained in a skiing accident last month.  It’s a dim reality that accidents and serious medical conditions can affect any of us, at any time.  But being prepared can make an awful situation easier on you and your loved ones.

Almost everyone procrastinates preparing a will, trust, or other estate planning document.  Author Stieg Larsson of The Girl With The Dragon Tattoo book series died unexpectedly of a heart attack at age 50, and passed away without a will.  This resulted in a battle between his girlfriend of 32 years and his family.  The family inherited his $40 million estate and still ended up in a lawsuit with the girlfriend for possession of his laptop which contained an unpublished fourth manuscript.  Had Larsson taken steps to plan his estate, the bitter battle and costly lawsuit would have been avoided.

Don’t make the same mistake with your estate. You’ve worked hard your entire life and you should decide who receives your assets.  No one wants their loved ones to fight over their assets, or let state laws determine who receives their estate.

·         Appoint Medical and Financial Decision-Makers

R&B legend Etta James was 72 when she passed away in January after suffering from leukemia, dementia and other medical conditions.  Her final year was marred by controversy between her husband of 42 years and her two adult sons from prior relationships.  Her 2008 Power of Attorney gave legal authority to one of her sons, but her husband claimed it was signed after James already had dementia and was therefore incompetent.  As she was fighting for her life in her final days, her loved ones were battling in court over who would make decisions for her, including how much should be spent to pay for her care. 

Britney Spears is under conservatorship.  Just recently, her father announced he was going to ask the court to terminate the medical/non-financial part of her conservatorship so she can get married without restriction. However, it is reported he will hang onto the financial control.  The reasons for this are suspect, and may be for the purpose of insulating Spears from lawsuits.

Whether you are 30, like Britney Spears, or in your 70′s, like Etta James, it’s critical for you to have a durable power of attorney and advance health care directive in place, in case you should suffer a serious medical condition or accident. Without these documents in place, your family members would have no right to make medical or financial decisions unless they go to court and seek guardianship and/or conservatorship.

As the Etta James case illustrates, this can be a breeding ground for family conflict. Even when there isn’t family fighting, such as in Britney Spears’ case, these court proceedings are still intrusive, public, expensive and very cumbersome.

It’s far better for you to keep yourself and your family out of court by having the proper medical and financial decision-makers appointed in these legal documents. That way you and your family will be protected in case something should happen to you that renders you unable to make your own decisions.

·         Don’t Forget About Updating Wills, Trusts and Other Legal Documents

Think you can stop reading because you already have your will, trust and power of attorney documents in place?  Think again. When was the last time you updated these documents? Have life events occurred like divorce, the birth of new children, starting a new business, or moving between states?  If so, or if you haven’t had these documents reviewed in the last three to five years, you still have work to do.

Heidi Klum and Seal should take notice. When couples — especially those with children like Seal and Klum — file for divorce, it’s important they visit their attorney or financial planner and start the process of updating legal documents as soon as possible. Would you want your ex-spouse to make medical decisions for you or be your life insurance beneficiary? That often happens when documents are not updated.

Author Michael Crichton’s estate highlights this point. He died at the age of 66, when his wife was six months pregnant. He never updated his will to include the new child, and in fact, his will had language excluding any new children.  His adult daughter from a previous marriage and his current wife fought in court over whether the baby should be allowed to inherit. Ultimately, the Judge ruled in favor of the wife, and the baby was allowed a share of the inheritance.  But it never would have gone this far if Michael Crichton had updated his will when his wife became pregnant.

·         Get Your Affairs Organized

Organizing your estate planning affairs is a critical step in the estate planning process which many people overlook. What good are properly-drafted wills, trusts, and power-of-attorney documents if no one can find them? You must know where these documents are at all times and should inform family members where these documents are stored. You should use an estate planning organizer to list out your legal and financial documents and assets, so family members know where to go if tragedy should unexpectedly strike.

Look at the recent Italian cruise ship disaster. There were reports of passengers stuck onboard, calling loved ones to make sure the kids where going to be taken care of and telling people where to find their wills and other legal documents. But, where the will is located is just the start. What about life insurance policies, bank accounts, real estate deeds, and other important information stored in your head that no one else but you know about?

No one should wait for a personal tragedy to strike; prepare ahead of time! Once you organize your legal and financial affairs and let trusted friends or loved ones know where the important legal and financial information is located, you can rest easier and not worry about protecting your family if something should happen to you.

Don’t let these celebrities’ ill-fated stories become your story.  Don’t procrastinate.  Appoint medical and financial decision-makers.  Update existing estate planning documents.  And make sure a trusted family member or friend knows where to find your estate planning documents at all times.  Proper estate planning can go a long way to making your life and your loved one’s lives much easier.

For more information on planning your estate or updating your existing estate plan, go to our website at www.RudolphLegal.com.