Ranking Legal Processes by Cost

The television show “20/20” is planning a story about couples that are staying together only because they cannot afford to get divorced.  (They are actually looking for couples to share their stories on the topic if you are interested).  There are certainly people that are so financially strapped that they cannot afford to properly address their family related legal issues. However, I suspect that most people think that they cannot afford to resolve these issues because they do not know about the range of processes and costs available to them.

The fact is that you have many options to choose from.  Each has advantages and disadvantages.  And the costs involved with each process will differ from case to case.  But, in general, they can be roughly ranked from least to most expensive.  The options and their rough cost are as follows (from lowest cost to highest cost):

1.  Work It Out at the Kitchen Table:  This is by far the least expensive option.  It involves you and your spouse or ex-spouse sitting down and coming to an agreement on your own.  You don’t have to pay lawyers if you choose this method.  While there may be costs down the road due to the lack of a formal agreement, the up front costs, at least, are nil.

 

2.  Private Party Mediation:  This involves you and your spouse or ex-spouse hiring a third party (can be a lawyer or a non-lawyer) who is trained as a mediator to help you identify the issues to be resolved and possible resolutions to those issues.  You both meet with the mediator in one or more conferences to try to come to an agreement on the issues.  If your mediator is a non-lawyer,  then both parties may hire their own attorney to review and advise them regarding any proposed agreements that are reached.  There is some cost involved in hiring a mediator and potentially attorneys to review an agreement.  However, limiting a lawyer’s involvement to reviewing a potential agreement will generally reduce your legal costs.

 

3.  Private Arbitration:  Arbitration involves hiring a neutral third party (usually an attorney) to hear each side of your case and then make a decision that both parties have agreed to accept.  You can go through this process with or without a lawyer.  The cost is obviously lower if you do not hire attorneys to help present your side of the issues.  However, due to the looser rules and less formal procedures of arbitration, this process is generally a cheaper means of obtaining a decision than going to court.

 

4.  Collaborative Law:  Collaborative Law requires each party to hire an attorney trained in the Collaborative Process.  But, it does not involve paying for a neutral party to mediate or arbitrate your case.  Further, Collaborative cases generally reach a resolution in far less time than other processes.  So, clients pay significantly less in attorney fees in the end.

 

5.  Mediation with Attorneys:  This process is just like private mediation, but both parties hire attorneys to help them present their case.  This requires legal fees that would not be incurred in private party mediation.  And, it requires the parties to hire a neutral third party mediator.  But, the efficiency compared to litigation makes this a relatively economical choice.

 

6.  Attorney Negotiation:  This process can vary in cost.  It involves hiring attorneys to negotiate for you.  This typically involves the attorneys exchanging proposals over the phone or in writing.  So, you will pay legal fees.  Sometimes this process works quickly, and costs are kept relatively low.  However, unless both attorneys are truly skilled negotiators (see earlier posts on this topic), then this process can drag on for a long time.  The longer this takes, the more expensive it gets.  My experience is that without the structure of mediation or arbitration, this process can gradually become very expensive.

 

7.  Litigation:  This is, by far, the most expensive option.  Each party typically hires an attorney.  The amount of work that each attorney must put into a case to prepare it for a trial is enormous.  Most attorneys charge by the hour in these cases ($200 to $400+ per hour in Raleigh).  So, legal fees can skyrocket.  Few, if any costs are shared by the parties in litigation.  Simply put:  War is expensive.

 

Each person’s case is different.  The facts of your particular situation determine which of the above processes will be the most cost effective for your case.  But, you should investigate and consider all of the less expensive options for resolving your case instead of assuming that you cannot afford to properly address your legal issues. 

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

When Should You File a Lawsuit?

 

I spend a lot of time telling people why they should not go to court in this blog.  That is because in most cases, going to court serves no one’s best interests.  However, sometimes going to court is the best way to deal with an issue.  While it is always best to consult an attorney before making a decision to file a lawsuit, the following situations may require court intervention:

1.  Domestic Violence:  If one party has been violent or has threatened violence against another party or a child, then negotiation may not be an option.  Sometimes domestic violence protective orders are negotiated and entered with the approval of both parties.  However, that only occurs AFTER a temporary protective order has been put in place.  When violence is an issue, there is no time to negotiate until everybody feels safe.

2.  Child Abuse:  If a child is being abused, then negotiation goes out of the window.  The child has to be protected no matter the cost.

3.  Child is in Serious Danger of Being Harmed:  Like child abuse, there is no time to wait in this situation. You need to seek an emergency custody order from the court to protect the child.

4.  Unilateral Financial Actions:  If one party has taken large amounts of money from a joint account, taken out a credit line using a marital asset as collateral, or otherwise taken unilateral actions with marital funds or property, then court action may be necessary.  In this situation, a temporary restraining order or an interim distribution of marital property may be necessary to protect one party from financial damage. Unilateral actions can be as blatant as hiding marital funds or as subtle as running up a joint credit card balance or equity line of credit.

5.  Addiction:  If one party has a drug, alcohol, gambling or other addiction, then court action may be required.  People with addictions can burn through marital financial resources very rapidly.  And once those resources have been spent to support an addiction, they are gone.  Further, addicts are less likely to be able to productively participate in a good faith negotiation.

6.  Parental Relocation:  In custody cases, when a parent moves far away from the child’s hometown, things can get complicated.  This typically occurs when the parents are sharing custody while they live in the same city, and then one parent needs to move far away.  This can happen for military, career or personal reasons.  But, when one parent needs to move out of town or out of state, sharing custody becomes much more difficult.  Typically, the parent that is moving wants the child to go with them, and the parent that is staying put wants the child to stay.  Since it is more difficult to split custody in these situations, these cases may require a neutral party to make a decision.  That being said, many of these cases can still be resolved without court intervention.

7.  Serious Denial of Access to Children:  When one parent denies the other access to the children, there may be no way to obtain that access without a court order.  Each case has to be evaluated to determine whether the degree of access being denied merits a lawsuit.  But, in serious cases the power of the court may be necessary to obtain access to the children.

These are some of the more common situations that cause cases to end up in court.  Since each case is unique, there are countless situations that may require court action.  But, if any of these situations are present in your case, then going to court should at least be seriously discussed with your attorney.

 

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

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How to Avoid the Long Goodbye

Most of my clients are shocked to learn how long it can take to have their case heard in court.  Right now it can take four months or more to get into court on a short motion in Wake County family court.  Many clients assume that it will take a week or two.  Thus, they are discouraged and upset to learn that the court will not hear even simple matters quickly.  However, collaborative law, mediation and other alternatives to the courthouse offer faster and more efficient resolutions of your matter.

Taking a case to court involves a lot of scheduling uncertainty and delays.  Even when you get a court date for your matter, there is no guarantee that your case will be heard.  Wake County family courts schedule cases for a particular week, not a particular day.  Attorneys and clients appear in court on Monday mornings for a “calendar call.”  This is a court session in which the judge in that particular court room hears from each attorney on each case and then determines which matters will be heard that week and when.  It is not until sometime later on Monday morning that you will know if and when your matter will be heard.

It is very common for a judge to determine that she cannot hear all of the matters that have been set for that week.  The cases that cannot be heard are “continued” until another court date.  The next available court date is typically months down the road.  The lower your case is on the calendar for a particular week, the more likely it is that your case will be continued.

Even if you or your attorney have thought ahead, and placed the matter on a calendar for a week in which you are very likely to be heard, things can go wrong.  I recently arrived in court with a client on Monday morning ready to argue a case that was important and time sensitive.  However, when we arrived we discovered that the judge had called in sick.  Thus, our hearing was pushed back over two months.  And there was nothing that we could do about it.

If your case involves complicated issues for trial, you can expect a long period of information gathering (“discovery” in legalese) and planning before your case is ready to be heard by a judge.  That only adds to the delay in resolving your case.

In contrast, collaborative law and mediation frequently resolve cases much sooner than litigation in the courtroom.  The information gathering necessary for Collaborative Law and mediation typically occurs much faster than the rigid pace of discovery.  In Collaborative Law, the speed of the process is facilitated because both parties are dividing the workload by sharing the information gathering duties. And, the only scheduling variable is that of the parties and the attorneys.  There are no overloaded court calendars to slow down the process.

Most people involved in a divorce or custody dispute want the process to end as quickly as possible.  Long delays and rigid court schedules only prolong the emotional trauma and agony of a divorce.  But alternative processes such as Collaborative Law and mediation save valuable time, money and emotional energy by providing faster, more efficient resolutions to family law issues.

Divorce in a Financial Crunch: Consider Private Mediation

Times are tight. Everybody is trying to find ways to save money in every possible area. If you need to separate from your spouse, or you have a child custody dispute or other family law issue complicating your life, you don’t have to wait until the economy picks up to address them.

One of the most popular ways to resolve family disputes without the expense of protracted court battles or even prolonged attorney involvement is private mediation.

Private mediation is when both parties agree to hire a neutral mediator to help them resolve their disputes. This saves money in that the parties are splitting the cost of one mediator instead of each paying their own attorney to reach a resolution. Further, the mediator’s job is to help the parties reach a resolution, instead of helping the parties go to war, as many attorneys will do.

The mediator frequently is an attorney that knows the family related laws in North Carolina. An attorney mediator provides great value by helping the parties reach an agreement that require less legal revision later. Non-attorney mediators can be very effective. However, agreements reached through non-attorney mediators sometimes requires significant revision to comply with the law.

The end result of a successful mediation can be a full separation agreement or settlement agreement. Some mediators prefer to draft a memorandum of agreement that sets forth the terms of the agreement, but is not binding on the parties. This allows each party to consult an attorney for the limited purpose of reviewing the terms of the agreement before it is made official. This has the advantage of maximizing the money spent on an attorney. The parties get expert legal advice regarding their agreement before they sign anything; but, they do not have to pay an attorney’s rate to negotiate the agreement itself.

The parties may hire their own attorneys at any point even during a private mediation. However, the most cost conscience clients only hire any attorney to review the agreement reached at a mediation. Their attorney can then educate the party on the legal effect of the agreement and identify any problems with the mediated agreement before the agreement is made official.

In addition to the substantial cost savings, parties often find that the anger and acrimony between them is lowered by the mediation process. Mediation forces the parties to work with each other to solve their problems instead of against each other. This is perhaps the biggest non-financial benefit of private mediation.

I am currently working with a client who went through the private mediation process. She and her spouse decided that they did not want to have an “ugly” divorce because of their teenage daughter. They chose a private mediator to help them sort through the legal issues. The reached an agreement and the mediator drafted a memorandum of their agreement. My client then hired me to review the agreement and draft a formal Separation Agreement. Her spouse also hired an attorney to advise him and to help finalize the agreement. She has been very pleased with the process and has saved thousands of dollars so far by choosing private mediation.

So, if you need to resolve family related legal issues in this difficult economy, you should strongly consider a private mediation. It can be an ideal way to resolve the issues while saving substantial legal fees.

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Tre’ Morgan is a North Carolina Dispute Resolution Commission Certified Mediator, a licensed experienced attorney practicing family law and a member of the North Carolina Association of Professional Family Mediators. He offers private mediation services to clients who wish to resolve their family law disputes without the cost and emotional toll of an ugly divorce.

If you are interested in legal representation or mediation services, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

Want to Save Money on Legal Fees? Negotiate Early.

This is a very common scenario in family law cases: The parties enter litigation when someone files a lawsuit. The lawsuit begins an endless stream of legal pleadings, court appearances, document preparation, depositions and all of the other parts of litigation that drive up legal bills. The parties are too mad or stubborn to really try to work out a resolution for fear of appearing weak in the eyes of the other side. So, everybody builds up their arsenals in preparation for mutually assured destruction in the courtroom.

On the day of hearing or trial, the judge asks the attorneys where the parties stand on a settlement. The judge then recommends that the parties either try to work something out in the hall or in chambers with the judge.

Then the lawyers seriously discuss the hard issues in the case and try to work out an agreement. You would be amazed at how many settlements are reached on the day of a hearing or a trial.

Sometimes this is unavoidable. But, most often it can and should be avoided. If the parties had instructed their attorneys to really explore a resolution at the beginning of the case, then much of the huge legal expense of preparing for the courtroom would have been avoided.

Is it always possible resolve a case without going to court? No. Some cases and issues are so tough and so complex that a judge needs to make a decision for the parties. However, in the majority of cases, clients can save thousands, if not tens of thousands of dollars by instructing their attorney to really work at exploring settlement options at the beginning of the case, rather than on the day of trial.

After all, if you are going to settle the case on the day of your court appearance after months (or years) of litigation and tens of thousands of dollars of legal fees, why not cut to the chase and seriously explore settlement up front?

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

Proof that Ugly Divorces are Bad for Your Health


I have been on my soapbox for a long time about the terrible and often hidden effects of ugly divorces. Now science is making my point for me. This Newsweek article explains how a divorce can affect a person’s health.

The case for collaborative law, mediation and other means of cooperatively resolving family law issues is made by the researcher’s conclusion that “‘anything we can do to help people mitigate the stress if they get divorced…’ would be like treating an acute illness.”

One of the most effective ways to lessen the stress in a divorce is to keep hostility to a minimum and work towards a reasonable legal resolution that allows both parties to move on in peace.

If divorce in general is like “an acute illness”, then you can imagine how bad an ugly divorce would be for your health. If that is not reason enough choose to resolve your family issues outside of court, then I don’t know what is.

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

How to Reach a Truly Valuable Separation Agreement

A wise man once told me “If a man’s handshake is no good, neither is his signature.”

This a brilliantly succinct way of stating what many family law clients and lawyers ignore: An agreement is worth no more than the parties’ intent to live up to it.

Actually, this rule applies to all areas of the law, and all agreements. But, family lawyers and their clients are particularly susceptible to forgetting this rule because they become obsessed with “winning”. The winner quickly becomes the loser when they find themselves spending more money on attorneys to enforce a bad agreement. So, what can you do to ensure that the agreement that you reach in your case sticks? How do you avoid spending more time in court trying to make the other party do what they agreed to do? Focus on the following points, and your agreement will likely be honored by both parties:

1. Redefine “winning”: Family law cases are not a competition and your kids are not a trophy. Winning involves having your needs met, not denying the other party’s happiness. So, focus on finding solutions that meet your needs, and less on winning a battle of wills with your ex-spouse. It is a good thing if the other side gets what they want; as long as your needs are met as well.

2. Focus on meeting everybody’s needs: The bottom line is that if you are the only one that is happy about an agreement, then you are the only one that is going to live up to it. Having a piece of paper in your hand that says you won will not mean much if you have to spend more money to enforce it. You can try to beat down the other side, or strong arm them into an agreement. But, ultimately, if that agreement does not work for them, then they are not going to live up to it. And then you will have another trip to court on your calendar, and another batch of attorney bills in your mailbox. Having an agreement that both parties honor is the goal.

3. Be realistic about what you can and cannot live with: This keeps you from agreeing to something that you will not honor down the road. If you feel that you cannot live with some part of an agreement, you are probably right. It is better to let it be known while there is time to find a solution than end up in court later because you failed to meet an obligation.

4. Stay flexible: Keep your mind open to all possible solutions. Try not to rigidly adhere to a particular structure of an agreement. Force yourself and your attorney to really think about alternative means of meeting everybody’s goals. Every family is different, so every agreement will be different. Staying open to all solutions allows you to tailor an agreement to your particular family and situation. That in turn makes it easier for both parties to fulfill their obligations.

A common myth is that a good family lawyer can force the other side to agree to anything the client wants. In reality, a good family lawyer finds solutions that help clients agree to something that everybody can live with. By doing this, the lawyer saves clients untold amounts of time, money and stress trying to enforce worthless agreements.

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

What’s It Like to Go to Court? See For Yourself.

One of the biggest decisions that any family law client will have to make is whether they want to accept the negotiated resolution that is available or take their chances in court.

No one can make that decision for you. Your attorney should provide you with all of the information possible to help you make your decision. This includes talking about the strengths and weaknesses of your case, the judge’s inclinations, and other factors that may influence the outcome.

However, no attorney can or should guarantee a particular outcome. So, there is always an element of risk in allowing your case to be resolved by a judge. One of the factors that has to be considered in your decision is whether you are willing to endure the process of a courtroom trial. A hearing or trial can be emotionally grueling. Further, the intimate details of your life will be on display for anybody that happens to wander into the courtroom. Many clients are surprised to find out that anybody can sit in the courtroom to listen to their case.

In order to get a true idea of what a domestic trial is like, I advise clients to take a day off and go to the family court in their county (In Wake County, family courts are located on the 9th floor of the courthouse). If you go, you should watch a hearing or a trial. That, in turn, will give you the best idea of what it will be like to go through a trial in your case. And, more importantly, it will give you a very good idea of whether you want to push your case to court, or resolve it through negotiation.

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

How to Prepare for Your First Meeting With Your Lawyer

Many clients are completely overwhelmed by their first meeting with a family lawyer. They are frequently emotionally distraught by the potential end of their marriage, scared by the possibility of losing control over their children, afraid of their economic future or all of the above. Thus, many people are unprepared for their initial conference with an attorney. This leads to an inefficient use of time with an attorney, and wasted money. I have found that having specific tasks helps clients focus on resolving their problems and lessens anxiety about the unknown future. Further, being prepared for your meeting with an attorney saves money in two ways: The attorney spends less time mining you for information, and you will have done much of the work that you would have paid the attorney to do for you. Following these five steps in preparing for your first attorney meeting will save you time, money and probably some anxiety as well:

1. Create a Budget: In the event that you are going to be separated from your spouse, you need to know how much money you need to survive until the financial issues are resolved. This requires a budget. If a lawsuit is filed, you may very well be required to submit a budget to the court, so you might as well get started on this right away. You should include every monthly expense that you incur in your budget. If you incur a cost quarterly, then divide the total annual cost by 12 to obtain a monthly amount. You may have to estimate things like rent and utilities if you are still living in the marital home. The legal form that attorneys in Wake County use to submit budgets to the court can be found here. This form provides a useful guide to budget items that may not occur to you.

2. Create a List of Assets and Debts: Having an inventory of assets and debts is absolutely crucial to your ability to make educated decisions about dividing marital assets. Do you know what your net worth is? Do you know whether you have more assets than debts? Include homes, vehicles, art, collectibles, retirement accounts, bank accounts, insurance benefits, stocks, bonds, business interests and other assets. You do not necessarily need to inventory the silverware, dishes, linens and other smaller items unless they are especially valuable. Also include all debts including credit cards, loans, mortgages, credit lines, equity lines and other financial liabilities. You can find a fairly extensive list of assets on this form. Having a list of assets and debts (and when possible amounts for each) will save your attorney a lot of time, and you a lot of money. It will also help you and your attorney formulate a strategy for resolving your case at an earlier stage.

3. Estate Planning Issues: Review your papers so that you can inform your attorney of any Wills and Powers of Attorney that you have created. If possible, have copies of those documents for your attorney. Your attorney will want to discuss these documents with you. Also, tell your attorney if your spouse is designated as the beneficiary of any insurance policies or financial accounts. Identifying these issues will prevent your attorney from having to dig for this information later. Again, this saves you money in legal fees.

4. Organize Your Documents: You will probably encounter a lot of paper while you create a budget and a list of assets and debts. As you find this paperwork, organize it by account/asset/debt and statement date. Even if you don’t bring these documents to the first meeting, you will need them eventually. Lawyers and paralegals spend untold hours digging through boxes of random unorganized documents supplied by clients. If you can organize the documents as you go through them, you will save a lot of money in legal fees. And, you will have a much clearer view of your own financial picture.

5. Make a List of Questions for Your Attorney: No matter what you do, you will likely be emotionally charged during this first conference. This causes clients to lose their focus and forget to ask the questions that they really want answered. So, make a list of your questions before you arrive for the meeting. Using this list, you can make sure that you leave your meeting with the information that you were seeking.

If you take all or even some of these steps prior to meeting with an attorney, then you will be much better prepared to get what you need out of that meeting. If you are going to be divorced, you will need to take charge of your own financial life. This is the first step in that process. Even if you reconcile (and I hope that you do), many clients find that taking these steps opens their eyes to their real financial situation. And, you will have saved thousands of dollars in legal fees by doing the grunt work yourself.

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

What About the Dog?


Of all the property that has to be divided in a divorce, the property that tends to stir the most emotion is a pet. I am a dog guy (I own two big dopes) and I get it. I don’t ever want to give up my dogs. But, many clients are shocked to find out that the dog is treated like any other property in a divorce; they are either marital or separate property and are distributed accordingly.

Rest assured that the parties can always agree to visitation with pets, and they frequently do. Some people even exchange custody of the dog every week and share dog related expenses.

But, if a court is making the decision about the dog, the court will have to determine whether the dog was owned by a party prior to the marriage or it was acquired during the marriage. The court may also have to determine whether one spouse gave the other spouse the pet as a gift. If the pet was given as a gift, then the pet may be considered the sole property of the receiving spouse.

Frankly, judges do not like to make decisions about who gets the dog. They typically have larger issues to sort out (I mean that in a financial sense. There aren’t many larger emotional issues than a pet.) But, if the case goes to court, the dog is legally an asset and has to be given to one of the spouses.

In a similar vein, I get the occasional phone call from someone that wants to sue for the death of or injury to a pet. Even if the person that injured or killed your pet is legally responsible, the damages in those cases are generally limited to the value of the pet. In most cases, the value of the family pet is no more than a few hundred dollars.

For those of you that own horses, things get a little more complicated. We recently handled a case involving a horse that went lame during transport to North Carolina. Horses can be worth a lot of money, and damages in those cases can be much higher. Cases involving horses may well justify legal action. However, horses, like other pets, are still considered simple property in the eyes of the law.

Unfortunately, the law does not yet recognize the unique emotional value of a pet. Thus, the emotional trauma from the injury to or loss of a pet is generally not a strong basis for a lawsuit or the collection of money in court. And, for most pets, their legal value is insufficient to justify the expense of a lawsuit.

Add to Technorati FavoritesIf you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.