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Saturday, February 1, 2014

The passage of time has the universal affect on memory – details fade and people remember things differently.  Legal battles often arise and center on parties fighting over what actually occurred way back when.  Archiving events of the past play a pivotal role in avoiding, or prevailing in, legal proceedings.  Simple steps such as drafting and sending letters or emails to follow up and summarize phone conversations at the time they occur, or preserving important documents can help you avoid a legal dispute. 

And, if the dispute cannot be avoided, properly captured history will help a judge or a jury understand what occurred way back when.  Properly captured history helps takes the guess work out of faded memories.  It also helps a judge or a jury to re-live the event.  If you become a party to a lawsuit, you stand a better chance of winning if you can show and tell a judge or jury what occurred.  

Posted by eswartz at 2/1/2014 4:55:00 PM
Saturday, January 18, 2014

 Did you see that?  If so, there is a chance that you can be dragged into someone else’s lawsuit.  Just because you are not a party to a lawsuit, do not assume that participating as a witness is without its risks.    

Before answering any questions, contact your personal attorney or corporate attorney, to inform them of the fact you have been contacted by another attorney.  If you do not have a personal or corporate attorney, you should seek legal counsel and avoid proceeding on your own.  Involving an attorney, even for the most basic request, helps ensure that you understand the full scope of the issues involved.  Having your own counsel is also a good idea because your attorney will be looking after your best interest and help you avoid certain pitfalls of providing testimony.    

The last thing you want to do is get dragged into someone else’s lawsuit.  Going from witness to party is, sometimes, easier than people think.  Giving testimony also potentially implicates your Fifth Amendment Right against self incrimination.   

Depending on the nature of the lawsuit in which you are being asked to give testimony, and your level of involvement, there may be no avoiding being a witness or brought into the lawsuit as a party.  But, consulting with an attorney can help you state just the facts while guarding against sinking your own ship.    

Posted by eswartz at 1/18/2014 5:27:00 PM
Friday, January 10, 2014
Tough times are sometimes made worse by the loss of your job or your partner’s job. One public benefit available to many folks who have lost their job is unemployment compensation. It is the public policy of the state of Idaho that: 
 
Economic insecurity due to unemployment is a serious threat to the well-being of our people. Unemployment is a subject of national and state concern. [Idaho Code Title 72, Chapter 13] addresses this problem by encouraging employers to offer stable employment and by systematically accumulating funds during periods of employment to pay benefits for periods of unemployment. The legislature declares that the general welfare of our citizens requires the enactment of this measure and sets aside unemployment reserves to be used for workers who are unemployed through no fault of their own. I.C. § 1302.
 
In order to receive unemployment compensation you must satisfy certain qualifications. Three of the most prominent qualifications are that: 1) your job loss cannot be due to quitting or leaving voluntarily; 2) being fired cannot be a result of your own misconduct; and 3) you must actively look for a new job following the loss of your job. I.C. §§ 72-1366(5) and (6). Several other criteria must also be met. Contact the Idaho Department of Labor for help filing a claim for unemployment benefits:  www.labor.idaho.gov.
 
If your claim for unemployment benefits is denied, you have the right to appeal that decision. You must file an application for appeal within fourteen days after you receive the denial of benefits. I.C. § 72-1368(3)(c). After filing for the appeal, you will be afforded a reasonable opportunity to a fair hearing. I.C. § 72-1368(6). Both you and your former employer have the opportunity to submit evidence and testimony to the appeals examiner at the hearing. I.C. § 72-1368(6). If you disagree with the decision of the appeals examiner, you would have the opportunity to request a rehearing. But, you must file that request within ten days from receiving the appeals examiner’s decision. I.C. § 72-1368(6). 
 
As an individual claiming unemployment benefits, you have the right to be represented by an attorney, if you so choose. I.C. § 72-1375. However, that attorney would have to be hired by you personally on terms agreed to between you and your legal counsel. The deadlines for filing for an appeal or rehearing are short. If you need legal assistance do not delay in hiring an attorney. 
Posted by eswartz at 1/10/2014 10:30:00 PM
Friday, January 3, 2014
 
In Idaho, two or more people can create legal duties toward one another through their joint actions to make money. A “joint venture” is created when two or more people associate for the purpose of carrying out a business enterprise with the objective of realizing a profit. Costa v. Borges, 145 Idaho 353, 356, 179 P.3d 316, 319 (2008) (quotation omitted). No formal business document has to be created in order for the “joint venturers” to create a fiduciary relationship. The joint venturers do not have to register with the Secretary of State in order to have liability to the other. “[A] joint venture is not an entity separate and apart from the parties composing it.” Costa, 145 Idaho at 357, 179 P.3d at 320 (citation omitted). Through two people’s agreements and course of conduct they can (intentionally or unintentionally) create a business enterprise known as a joint venture, which obligates each with duties that cannot be disregarded or unilaterally altered. 
 
Joint venturers are in a fiduciary relationship. A fiduciary relationship is one where an individual places complete confidence, trust, and reliance in another person who has the fiduciary duty to act for that individual’s benefit. In a joint venture, each venturer owes a fiduciary duty to every other venturer. 
 
As mutual fiduciaries, any action taken by one joint venturer must be for the benefit of the other, and for the benefit of the business. Therefore, a venturer cannot unilaterally change or terminate an agreement between the venuterers. One venturer cannot withhold profits from the other without a mutual agreement. One venturer cannot claim for his own property that was purchased for the business. “Property is presumed to be [joint venture] property if it was purchased with [business] assets.” Costa, 145 Idaho at 358, 179 P.3d at 321. Each joint venturer has legal rights that may be enforced against their fellow venuterers or the joint venture itself. Such claims include, but are not limited to: claims of accounting, breach of contract, breach of fiduciary duties, and breach of the covenant of good faith and fair dealing, etc.
 
A joint venture cannot continue if even one venturer leaves. “[E]ven if the joint venture had three members it could not continue doing business after the withdrawal of one member. Because ‘a joint venture is not an entity separate and apart from the parties composing it,’ a joint venture cannot continue in business as a separate legal entity after one joint venturer withdraws,” dissociates, or where attempts are made to force a member out of the venture. Costa, 145 Idaho at 357-58, 179 P.3d at 320-21 (internal citation omitted). This means that without all of the members, a joint venture cannot legally continue doing business for a profit. 
 
If you have a great idea to make money and want to partner with someone, give consideration to defining what your business is. Establish the roles of each member. Determine who will get paid what and how. And, agree on what will happen to the business and its members if all does not go as planned.  Best approach is to hire an attorney to help in reducing your agreement to writing.
 
Posted by eswartz at 1/3/2014 11:40:00 PM
Saturday, December 21, 2013
In the chaos following an accident, preservation of evidence is one of the last things that you will probably think about. But, if there is a lawsuit, preservation of what happened is the best way to reconstruct and tell an accurate story. Pictures, videos, and journals at the time of an accident or very soon following are the best way of preserving the story. As time goes by, memories fade or become inaccurate through countless retellings. If too much of the story is forgotten, there is too much guess work for the responsible party to be held accountable. Accurately preserving the story can create a powerful case. 
 
In the recent Idaho Supreme Court case, Liberty Northwest Mutual Insurance Co. et al. v. Spudnik Equipment Co., LLC, the Court affirmed a grant of summary judgment for Spudnik by the trial court in a claim for product liability against one of the manufacturers. In Liberty Mutual, a worker was injured by a series of potato conveyor belts, but the insurance company did not accurately capture which conveyor or the condition of the conveyor. In reaching its conclusion, the Court determined that Liberty was unable to show which of the potato conveyors actually caused the injury that gave rise to the lawsuit. Liberty was also unable to show the configuration of the particular conveyors on that day that caused injury. 
 
Liberty only recorded the serial number of one of the seven potato conveyors on site and failed to accurately document which conveyor actually caused the injury. Specifically, there was no evidence to show whether the conveyor that caused the injury was new, used, modified by a previous owner or current owners. Therefore, the court concluded, there was no way to show that there was a design problem with Spudnik's potato conveyor.   
 
With a complex accident, as demonstrated in Liberty Mutual or even a basic fender bender, an accurate preservation and documentation of what actually caused the injury is important. Had photos been taken of the actual configuration of conveyors that caused injury, the proper question could have been possible presented to the jury: Did the design of this particular conveyor injure the plaintiff. Instead, Liberty Mutual tried to present a vague story: one of these conveyors injured the plaintiff and one of them was manufactured by Spudnik. Preservation of a story can remove the speculation when trying to later apportion fault. It can clearly show a jury what caused the injury and who was responsible for that injury. 
Posted by eswartz at 12/21/2013 7:47:00 PM
Entries 16-20 of 30
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Feb 20

New Tax Law and Divorce and Alimony

The new federal tax code that may have significant impacts on divorcing spouses in Idaho beginning in 2019.  Under the old tax code, a spouse paying spousal support to the other spouse either while the divorce was pending or after the divo…

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Nov 17

Unwanted Grabbing Appears to be Wanted - Goodbye Sexual Harassment?

It used to be that unwanted touching was, well, unwanted.  But, apparently, that is not what we want any more.  Maybe we never wanted unwanted touching to be unwanted?    Here we are ? 2017 ? with more laws on the books to prohibit, det…

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Jun 29

Beyond Marriage: Legal Issues Same Sex Couples Face

While the Supreme Court?s decision legalizing same-sex marriage established the law regarding marriage rights, many are wondering what that decision means for same-sex couples in areas of the law extending beyond marriage. The United State…

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Apr 13

Pedestrian-Automobile Injuries in Boise ? Follow the Rules of the Road to Keep the Right-of-W…

Boise has had a large number of pedestrian accidents reported lately.   Be careful out there.   As a driver of a car or a pedestrian, refresh yourself on the rules of the road in Idaho.  Generally speaking, Idaho first requires that driver…

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