A Grand Rapids lawsuit brought by Johann Deffert made national headlines and brings into question Michigan’s open carry laws and law enforcement’s conduct in handling situations where individuals are open carrying.

Johann Deffert v. Officer William Moe, et al. 

On December 20, 2013 Deffert brought a lawsuit in the United States District Court for the Western District of Michigan against: three officer’s involved in his detainment; Kevin Belk, the Chief of Police for the Grand Rapids Police Department; and the City of Grand Rapids, Michigan. Deffert’s Amended Complaint filed on February 24, 2014 includes the following six counts:

Count I – Fourth and Fourteenth Amendment Violations; 

Count II – Second and Fourteenth Amendment Violations; 

Count III – First and Fourteenth Amendment Violations; 

Count IV – Michigan Constitution Article 1 Section 6 Claim; 

Count V – State Law Assault and Battery; and, 

Count VI – State Law False Imprisonment. 

Also included in the complaint is the plaintiff’s Request for Relief which asks for $100,000, and an additional $500,000 in punitive damages.

The lawsuit is current scheduled for Case Evaluation to be held on July 9, 2014.

What is Case Evaluation? 

Case evaluation in the United States District Court for the Western District of Michigan provides litigants an alternative dispute resolution process similar to the case evaluation method that is used in the state courts of Michigan. (Mich Comp. Laws §§ 600.4951-.4969; Mich. Ct. R. 2.403.)

Case Evaluation principally involves the establishment of the settlement value of a case by a panel of three attorneys. All civil cases in which damages are sought, except social security cases, are eligible for case evaluation (MCR 2.403). Certain tort cases in which the rule of decision is supplied by Michigan law must be submitted to case evaluation, unless the parties have agreed to use a voluntary mediation method.

At the conclusion of the hearing, the panel will make a written evaluation and serve a copy upon each party. After the written evaluation is served each party must accept or reject the written evaluation within 28 days.

In most cases if all of the parties accept the panel’s evaluation, judgment will be entered in the amount of the evaluation. If all or part of the written evaluation is rejected by the parties the action will proceed to trial.

If a party does not accept an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual cost unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also not accepted the evaluation, that party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.

The cloud is a popular tool for transferring data between computers and terminals; however, with recent security concerns cloud storage is not the perfect way to transfer sensitive data. USB drives, the wave of the past, but until security is mastered, USB drives are also the foreseeable future. If you are handling any sensitive data, at any time, use a USB drive, and encrypt it. Here are 5 simple steps you can take to encrypt your drive.

• Step 1: Backup your USB drive; you must erase it to encrypt it.

• Step 2 Mac users open up the “Disk Utilitiy” app (use spotlight or find it in your applications folder under utilities).

Mac Step 3: Select your USB drive, click the erase tab, select “format” “Mac OS Extended (Case-sensitive, Journaled,  Encrypted)”

Mac Step 4: Click “Erase…”

Mac Step 5: Type in a password that you wont forget, and use a hint that only you will understand. Done!

• Step 2 Windows users open up “Bitlocker Drive Encryption” find it in control panel / System and Security / Bitlocker Drive Encryption

Windows Step 3: Turn on Bitlocker for the USB drive.

Windows Step 4: Type in a password that you wont forget, and use a hint that only you will understand. Print off the recovery key and keep it safe.

Windows Step 5: Press encrypt, once it is completed it will be encrypted and you may reinstall your data to the drive.

Now your data is more safe and secure when traveling. All lawyers should do this with any drive containing client information; failure to do so might be a breach of the rules of professional conduct in your state.

A Will is a public document informing a public court how distribution of a decedents assets should pass and to where.

What happens if there is no will?

In Michigan, if there is (1) no will, (2) an invalid will, or (3) a partial will, then the Michigan rules of intestate succession apply. Under intestate (no will) succession essentially the states default rules determine who, receives what money, how much, and when. Generally, the decedents descendants inherit one-half of whatever remains from an estate after a surviving spouse inherits $150,000 or $100,000 (depending) plus one-half of the remaining. If there are no decedents, then the parents of the decedent inherit one-quarter of the balance of the estate after the surviving spouse gets $150,000 plus three-quarters of the balance.

It is clear there are numerous exceptions and specific situations that may trigger a different out-come. Further, there are various other considerations that may influence the inheritance such as: cost of living, waivers of shares, disqualified heirs, slayer statutes, adopted children, step children, foster children, multi-jurisdictional estates, posthumous children, foreign-living descendents, 120-hour rule, and multi-generational families. Finally if there are no familial relations to transfer the estate to, the balance of the estate will escheat to the state.

Many of these complications and risks can be avoided with careful estate planning. Whether you choose a will or a trust planning ahead will make certain that your family and friends get exactly what you want them to get, and no one is left out in the cold.

Requirements of a basic will

Each of the following, on this non-exclusive list, can be expanded with paragraphs of exceptions and nuances, but generally:

(1) The testator (drafter of the will) must be at least 18-years old.

(2) The testator must be of sound mind and sufficient mental capacity.

(3) The testator must intend for the will to be a will (it may be otherwise proven a joke).

(4) The testator and two witnesses must sign the will in a specific manner.

(5) The witnesses must each be of proven competence.

(6) Out of state wills may be admissible in probate court if it meets certain criteria.

(7) The will must not be revoked.

(8) Finally, The testator must be dead.

Following those simple steps it is quite easy to create a will, the hardest part is ensuring that your will does what you want it to do. As life teaches us, those things that are easy to do, are the hardest to do right—and—after you pass, there will be no one to truly explain what you want done with your life’s works.

Other considerations?

What happens if you have more children, or adopt?

What about dower?

How do the courts handle small estates after all expenses paid?

What if my will is not clear and my neighbor demands a share of my estate?

What if my parent was under the pressure of an untrustworthy character when they signed their will?

What happens if you acquire more property after you write your will?

How do you transfer specific property to an heir?

What happens if your spouse divorces you and you forget to update your will?

Where do insurance proceeds go?

What happens if you amend your will?

Who controls my business?

What happens if nefarious circumstances surround your death?

Trusts

Finally, trusts are no longer tools only for the ultra-wealthy, they are now for all people who want privacy and control of their estate—and—for their family to be protected and cared for as they see fit. They are generally more costly and complicated than a will, but you will know exactly what will happen to your estate when you pass. A trust is a relationship demanding a duty of loyalty and care of the trustee, who holds legal title to specific property, to manage, invest, safeguard, and administer the estate. They may last a long time or a very short time.

For more information on estate planning of both trusts and wills contact an experienced licensed attorney.

Recently American businesses, both large and small, have chosen the Limited Liability Company (LLC) entity as a solution to meet its needs—featuring both limited personal liability and ideal tax rates. In Michigan, MCL 450.4101 et. seq., known as the Michigan Limited Liability Act (unsurprisingly) sets out the requirements and procedures involved in forming an LLC. And LLCs, being state law, acquires power from the state, but has its status from federal regulations (primarily IRS).

First, decide if an LLC is right for your business.

If you are a professional with a license, a straight LLC is not available to you in Michigan; you should speak with an attorney about a similar alternative such as a professional limited liability company.

Advantages: LLCs are appealing because (1) they offer limited liability protection at a personal level, which is very similar to a corporation; and, (2) they offer pass-through taxes similar to a partnership or sole-proprietorship. LLCs offer unlimited membership like a C-corporation, and less formalities unlike a C or S-corporation. (“C” and “S” refer to subsections in the internal revenue code).

Disadvantages: LLCs do not allow corporate income splitting or stocks, but a skilled attorney may offer solutions to meet a similar effect. LLC statutes are so young (no earlier than the 1970s) that the law is still open to some interpretation (and misinterpretation); unlike partnerships or corporations that offer a long history for the courts to rely.

For example in Florida: the Fl. Supreme Court found that, in some situations, a judicial lien creditor may use foreclosure on a single-member LLC—this eliminates nearly all asset protection intended by the single-member LLC (this may be avoided by adding a member to a single-member LLC). A new amendment to Florida Statute 605.0401 (2014) makes it easier to add a member to an existing single-member LLC (speak with a licensed Florida attorney for more information). California, New York, and Georgia have followed Florida and questions have been raised in federal bankruptcy courts in Colorado.

Practical Considerations: LLCs may file IRS taxation forms such as 8832 and 2553 and with the help of a licensed accountant (or tax attorney), may maximize your businesses taxes; however, if you anticipate losses for a few years after formation the pass-through taxes by default may better suit your needs. LLCs have far less formal accounting, management, annual meetings, records, and important business decisions—converse—to a S/C-corporation. LLCs are suitable for owning real-estate. LLCs may be filed in any of the 50 states and the District of Columbia. An attorney will advise you on the implications of doing business in multiple-states.

Next, how do you form an LLC in Michigan?
Simply forming an LLC, under the default statute, takes very little paper work. Michigan requires a filing of the entity’s Article of Organization (CSCL/CD-700). That alone will essentially form a raw LLC. A raw LLC, is like sap straight from a maple tree, is necessary, but it is not a finished product (beloved maple syrup). A finished product, must be refined and polished. A professionally constructed LLC will be an entity that accomplishes your goals for the future and today. Some states like Illinois have articles of organization filing fees as high as $600, but others like Michigan cost as little as $50. Many have annual filing fees as well (Michigan $25), but there are some that do not.

Operating Agreements (a contract between the members and the organization) are highly advisable; Federal Tax ID and state tax registration is also in many cases important and necessary. Further, there are several other documents that are used by an experienced attorney to form an ideal LLC—custom designed—for your business.

Finally, through the advisement of professionals your LLC will protect your personal assets from possible risks from your business ventures. It is no coincidence that all high-level companies utilize several professionals to help the business operate smoothly; getting a smooth well-planned start is the prudent thing to do. One of the biggest mistakes that a small business owner falls into, is trying to do everything themselves. A little investment now brings favorable returns in the future.

Is a lawyer right for you?

Whether you choose to use an attorney or not, the internet is a resource that should be used to educate yourself on your legal issue. And if you do use an attorney you will have great questions to ask—fear not—attorneys are more than willing to educate their clients as best they can.

Depending on the complexity and the time available one has to invest, there are many legal services provided by attorneys that non-lawyers can successfully complete without the aid of an attorney. The advent of smart search engines coupled with a prolific online legal community; there are many (not all) very useful do-it-yourself tutorials and legal education resources available for nearly any legal issue that may arise. Although it may seem blurry, these legal education recourses and legal document providers do not offer legal advice. Largely all choices are left to the individual, confined to the construct of the legal document they purchase or based solely upon legal information discovered by the individual.

Educate yourself on your issue.

Begin searches broadly related to your needs, if you think you need a will or trust for your estate, search “what is a will?”; if you have a property line dispute with your neighbor, search “real property boundaries”; if you’re a new start-up and want to be sure you’re on the right track, search “how to start a business” (Obviously there are more than three possible legal issues).

From those searches you will learn the basic outline of the law and most importantly you will discover key words (such as “testamentary intent”, “Cuius est solum, eius est usque ad caelum et ad inferos”, and “limited liability company”). These are national or worldwide terms, useful so that you can use them to refine your search at the state level. Every state has its own specific laws, Michigan, like the rest of the country has laws governing water flow that are so different from New Mexico, that applying the opposite states laws your conclusion would end entirely wrong. So it is very important to search your state.

Finding a lawyer.

Lawyers do far more than provide legal information, lawyers dispense calculated advice on the big-picture; some for example, have extensive business experience, technical experience, and other unique non-legal insight. Ideally a lawyer, or law firm, will compliment your expertise, and become not only your legal guide—but also provide practical advice if needed.

Finding a lawyer that is right for you may not be easy, but it can be done with patience and enough information. Additionally it can be intimidating to cold call an attorney or to simply walk-in. Take assurance, most attorneys will make you feel very welcome and are more than willing to sit down and talk for a few minutes. Don’t expect an attorney to solve your legal issue after your first meeting, nor should you settle for the first attorney you speak with unless you feel it’s a good match. Further, a lawyer will advise you that the attorney-client relationship will not be formed until there is a signed document memorializing such intent; this protects you and the lawyer.