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Matthew Grantham, an attorney at Bowers, Brewer, Garrett & Wiley, LLP, attended the 2011 Solo and Small Firm Conference in French Lick, Indiana. The conference was sponsored in part by the Indiana State Bar Association. The conference offered opportunities for the attendees to update themselves on recent developments in the law, and also educated them how better to run their businesses and serve their clients.
Mr. Grantham was on a subcommittee that awarded scholarships to several students from Indiana law schools who had expressed a desire to attend this year’s Conference.
Bowers, Brewer, Garrett & Wiley, LLP awarded three scholarships to graduating high school seniors. The Firm awarded its 2011 James W. Bowers Scholarship, in honor of the late Huntington Attorney James W. bowers, to Taylor Mortorff. Mortorff is the son of Kirk and DeAnn Mortorff, of Roanoke, Indiana, and plans to study psychology at the University of Michigan.
The Firm also awarded scholarships to Elizabeth Bolinger and Austin Shoemaker. All three students have roots in Huntington County, Indiana, and graduated from Huntington North High School.
RESULT: Myth, with a caveat. If the system is working correctly, it is an attorney’s job to present the law and the facts of the case in a favorable light for the client, but an attorney should not in a truly just system magically change what the law and the facts are to “create” a better result.
There is an old saying that “an attorney’s time and advice are his stock in trade”. What this means is that it is just important to find an attorney that will listen and give some honest advice (regardless of whether it is “good news”) as it is to find an attorney who will move mountains to advocate a case. In fact, it can happen that an attorney will spend tons of time and attention on a case (and expect payment for the same) when it was pretty obvious from the start what would happen.
The caveat is that sometimes more expensive attorneys are better and sometimes they are not. At times, the added expense means the attorney has more investigative tools at his or her fingertips than would a less expensive attorney. Also, on a related note, sometimes getting a well-known attorney is good not because a judge is more likely to favor that attorney, but for the simple fact that the attorney may have an inside scoop on how the judge thinks and feels in general. That attorney’s predictions as to outcomes may be more accurate as a result.
RESULT: Myth. The Bankruptcy Code specifically requires people under oath to list every single debt they owe, no matter how small, no matter to whom it is owed, and no matter whether the debtor intends to repay it.
It is true that certain debts are commonly “reaffirmed”. In this case, the debtor and creditor agree that the debt will be treated as if the bankruptcy did not apply to the debt. That means that if the debtor gets behind again, the creditor has a free shot until years later when the debtor becomes eligible to file for a bankruptcy again.
Also, the fact that a debt is listed in a bankruptcy does not mean that the debtor cannot out of the goodness of of his or her heart still repay the debt; it just means that the debtor has no legal obligation to pay the debt, and the creditor cannot attempt to collect it.
Bowers, Brewer, Garrett & Wiley, LLP, congratulates Matthew G. Grantham, one of its attorneys, on receiving a 2010 Pro Bono Award for Appreciation for Excellence in Client Service. The award, presented by the Volunteer Lawyer Program of Northeast Indiana, recognizes Grantham for his dedication to those clients who cannot afford full-price legal services and also for his passion for the cause of the underprivileged and underrepresented.
Bankruptcy is in a relatively short list of “enumerated powers” under Article I of the U.S. Constitution. This means that it is one of the few things our Framers specifically wanted the Federal Government to control. From time to time, Congress has overhauled the bankruptcy laws and rules. The last major overhaul was in 2005, and one result was that more people now find themselves required to file a Chapter 13. (The types of bankruptcy are called “Chapters”.)
The most common bankruptcy is still the Chapter 7. Roughly put, in a Chapter 7, the struggling person in effect puts all of his or her “stuff” on the table. The law allows him or her to keep some of his or her own stuff (or, in effect, pull it off the table). Also, those “secured creditors” (e.g., house, car) get to keep their interest in their collateral. What happens next with the collateral depends on a number of things. The rest of the “stuff” still on the table now in theory belongs to creditors. An officer of the United States called a “trustee” is in charge of dividing it fairly. In most cases, when all goes “well”, the debtor gets permanent protection from most of his or her creditors in exchange for giving up excess “stuff” that the law does not return to him or her.
In a Chapter 13, again stated roughly, the debtor enters a federally-sponsored repayment plan that will usually last three to five years with monthly payments. A debtor normally keeps all of his or her “stuff” but has to pay over a certain amount of income each month under a “plan” that the debtor proposes. The debtor must follow certain legal rules that put boundaries on their “plan” (e.g., proposing to pay nothing for 3 years will probably not “cut it”). The bankruptcy court must approve the plan, and the debtor must follow it. If the debtor does so, he or she will get protection from their debts regardless of whether all the creditors got paid off in the plan.
A Chapter 11 is usually used by troubled businesses but it is available for individuals as well. It also involves the use of a “plan”, but the plan focuses more on re-organizing the business so it can repay its debts and get back on the right track. It is like putting a business on “life support”, although normally, the business owner remains in charge of the business subject to the supervision of the bankruptcy court. Not all troubled businesses file a Chapter 11. In hopeless cases, the owner may elect simply to walk away without filing a bankruptcy in the name of the business.
There are advantages and disadvantages to the different types of bankruptcy which an attorney can describe better.
This post is a paraphrase of an article one of our attorneys wrote a few month ago. We hope it will be helpful to those of our readers who are trying to decide whether they have a legal issue that requires a lawyer’s expertise and assistance. These suggestions are just that, suggestions based on one of our attorneys’ experience. We think they are good suggestions, but urge everyone to consult with a lawyer and think carefully before hiring:
1. Consider the cost of not hiring a lawyer— while it may be tempting to handle a legal problem without a lawyer because it costs less up front, people often get in to trouble when they do not count the long-term costs of going at it alone. For example, a homemade contract may be perfect while everyone is getting along, but the pain and suffering really hits home when people stop getting along and the contract cannot or does not cover the situation. By then, though, it is too late, and a person will likely spend a lot more in lawyer fees fixing a problem that could have been headed off up front with less legal expense.
2. Consider the expense of hiring a lawyer– lawyers are expensive, but just like everyone else, are sensitive to economic realities. Prospective clients may be able to negotiate terms of their fee agreement with a lawyer upfront, and should feel free to shop around for a lawyer who is the right “fit” for them. Also, lawyers are often willing and able to come up with affordable solutions short of appearing in court or doing extensive work. A simple chat with a lawyer can be well worth the fee.
3. Honestly consider your own ability and knowledge of the matter at hand relative to that of a lawyer— lots of people know a little bit about the law, and there plenty of Internet forms and other ways of getting what were traditionally legal matters handled without a visit to a law office. However, the beauty of having a lawyer is three-fold. First, and most importantly, a person who holds himself or herself out to be a lawyer has a duty to give correct legal advice. If he or she does not, he or she can be held financially responsible for his or her bad advice. On the other hand, if a person relies on the Internet for legal advice and gets burned, that’s the person’s problem. Two, while many people know or can figure out that certain forms or legal papers do certain things, oftentimes a lawyer can better tell that person what form is necessary or right for his or her situation in the first place. Finally, filling out and even filing a form is usually only the beginning of a legal process, a process which many times gets more and more complicated and risky as it goes on. A lawyer can help ease people’s minds once they process that all-important legal document.
Welcome to our BBGW newsletter. We hope to use this resource to keep our readers informed of interesting legal developments in Indiana and throughout the country. We also may post news and information that we find might be helpful to our clients or of interest to our local region. Please feel free to check in frequently for new posts and to leave an appropriate comment if you desire. The purpose of this newsletter is to give helpful information and commentary on the law, and to promote the interests of BBGW and our clients. BBGW, as a firm, has no opinion on outside political or other issues, and nothing in this newsletter should not be taken as such.
Barnes v. State
This recent case from the Indiana Supreme Court garnered quite a bit of national attention. It even appeared on the Drudge Report. The word on the street is that the highest court in our State– and the highest court period when it comes to the laws of Indiana– has just given law enforcement officers the right to come in to our private homes— justified or not—with impunity. We cannot resist them; we can only sue them after the damage gets done, for whatever that is worth. That notion would make anyone, and it makes me, feel angry and frightened.
These feelings, I’d like to believe, are natural and even good. Our Court’s decision should not just concern criminal defendants but every citizen who may at some point have some contact with law enforcement (i.e., just about everybody). However, before jumping to conclusions (or, as some have unfortunately done, unsavory language and ugly threats) it is important to understand what the Court really said, and what it did not say… At the end of the day, the Court has all but openly invited the General Assembly and the Assembly’s constituents– that is, we the voters— to pass a law that would explicitly make it the will of the people of Indiana to be allowed to resist an unlawful arrest.
As a caveat, I would not have signed on to the majority’s opinion simply because I find the language too broad and easy to misconstrue. It is just not my style of writing. More importantly, I am not a big fan of broad and often ambiguous policy arguments when a simpler, narrower legal argument is available to get the same result. While I have not had the opportunity to read what the lawyers arguing the case wrote in their legal briefs, it would seem to me that this case could more easily have been decided without getting in to a grand discussion about traditional legal rights and the policies behind them. It was a domestic violence complaint that had apparently stirred up the neighborhood. Speaking as a neutral observer, it would seem to me that the police may have had some good legal reasons to enter the home: to check for injuries or on the welfare of the other occupants, for example. And if the police had a right to be in the home to do their jobs, I think there is less of an argument for a right to resist them. No one, after all, is saying that it is okay for people to resist the police when the police are legitimately “policing”.
With that said, at the heart of the matter I don’t think the Court has a problem with people having the right to resist the police if they enter a home unlawfully. The Court’s beef was with the idea that this right had been established by the “common law”, an unwritten law that has been fully developed almost exclusively at the hands of unelected judges who a lot of times just did what they felt was “right” in the case. The common law developed in England, the same monarchical England against which we rebelled. It is a two-edged sword. Yes, it preserves important rights that our constitutions may or may not explicitly protect (like the right to resist an illegal arrest), but it also has in the past been used by judges to in effect create new crimes that happen to fit the facts of an unlucky defendant’s ongoing case. That sort of “common law” does not gel with the notion that it is in the hands of the people to define what a crime is and isn’t. This case may not be so much one of “judicial activism”; in fact, if anything, it may go to the opposite extreme by refusing to maintain a long-established right enjoyed by the people simply because it was originally created by unelected judges.
In any event, the simplest solution, and one that the Court does not seem to oppose, is for all of those concerned with this opinion to contact our state legislators and ask them to pass a law explicitly stating that the people have a right to resist an unlawful arrest. As someone concerned about the implications of this opinion, I certainly don’t intend on waiting for some other judge to correct this when there is a way to resolve this matter now.