• Slider2
  • Slider1
  • Slider 3
"Competent, Caring and Responsive"

Why You Need an Attorney for Commercial Litigation

Commercial litigation is often a lengthy legal process that stems from a business disagreement.  Commercial litigation may arise between a business and another individual or between organizations.  These disputes may call for the careful examination of many documents and the depositions of individuals.  A business owner may quickly become stressed and overwhelmed while attempting to navigate such a dispute; thus, for commercial litigation, an experienced attorney should quickly be consulted.

In many cases, action must be taken immediately to protect the legal rights of the business and its owners.  For example, time is limited for individuals and businesses to file lawsuits for certain claims.  If these deadlines are missed, the claimants usually lose the right to ever file a lawsuit.

In many cases, with careful negotiation between the parties, the dispute may actually be settled before a lawsuit would need to be filed.  However, if a business owner attempts to settle the dispute without an attorney, the owner may agree to terms that are unfair or unreasonable to the business or personal conflicts develop  causing bitter feeling between the parties which are difficult to overcome later on.  The objective legal advice of an attorney should be sought for such situations.  Good legal representation relieves business owners of stress and worry for the state of their organization, as a settlement is sought for the dispute.

A litigation attorney, skilled in pursuing and defending claims in commercial litigation, will know what evidence is necessary and how to obtain it.  Without their guidance and expertise, a business owner’s claims may be significantly weakened.  Early intervention with an experienced attorney would be a cost savings in the long run.

What to Tell Your Divorce Mediator

Divorce mediation in Idaho has a high rate of success, even in difficult cases.  Divorce mediation is a unique process that is quite different from a family court trial.  You may be wondering what you should disclose to your divorce mediator.In short, the answer is, anything you like.

During mediation, your mediator will first obtain information so they can understand each of your positions in the case.  The mediator will then work with the parties to explore options that may potentially work for both parties, to settle each issue.  The mediator’s goal is to help the parties settle the case in a manner that both can find suitable.  Since the mediator has no decision-making power in the case, they do not weigh the evidence, consider what is admissible in court or advocate a position.  A mediator finds out what is important to each of you and discusses ways to address each concern.

During divorce mediation, any conversation you have with the mediator is kept private and confidential.  Although it is possible that you will discuss the case in the presence of your spouse, you may request to speak with the mediator privately at any time.  The mediator will not disclose any facts to your spouse without your permission.  Therefore, if you have certain concerns that you want addressed but do not want your spouse to know have been disclosed, you will simply ask the mediator to keep these points in mind as he or she helps mediate the case.

You may also have information that you want the mediator to know before you start mediation.Most mediators request or allow for a pre-meditation statement.  In this statement each party or the party’s attorney, may providethe mediator with a property list and who should get each item.  A debt list may also be disclosed listing each debt, the total amount owed, the monthly payment, and who should be responsible for each debt.  If children are involved, you may bring your children’s school calendars for the discussion of custody and visitation, and any other items that you feel are relevant to your case.  The mediator would also benefit from knowing how the two parties communicate with each other and whether there is animosity between them.

David Johnson is an attorney and divorce mediator located in Idaho Falls, Idaho.

Construction Disputes

Construction disputes are notorious for being expensive, time-consuming, and stressful.  Experts must be consulted, lots of unorganized paperwork must be reviewed, and witnesses must be interviewed or deposed.  It is not unusual for these cases to wind through the court system for a long time, costing the parties many thousands of dollars in legal fees.

If you are involved in a potential construction dispute, you should plan to visit with an attorney experienced in handling these types of matters.  Then, begin gathering all the necessary paperwork to review with the attorney.  The attorney needs to know what the contract was between the parties.  This includes what work was promised to be done, who was providing materials, method of payment, time for performance, etc.

Contractors have several hurdles that  they must clear before a contractor has the ability to pursue collection, including filing a lien against the real property.  These requirements include licensing and registration with the state.  Certain disclosures and documents must also be given by the contractor to the owner of the property.  If some of these requirements have not been complied with, the contractor may be completely prohibited from recovering funds.

The landowner also has to do certain things before they can pursue a lawsuit or fire a contractor.  For example, the landowner needs to comply with the Notice and Opportunity to Repair Act.  This law generally requires the homeowner to provide some opportunity for the contractor to make the repairs, before the homeowner can pursue a lawsuit.

After consulting with an attorney you will have better knowledge as to what your options are and how you should proceed.  If your position is weak, common sense might dictate a softer approach. If proper licenses, registrations, notices, disclosures are all in place, the parties may want to consider alternative dispute resolutions such as mediation. Mediation may be scheduled as soon as the parties agree, whereas it may take months to have a trial date scheduled.  Trials may also be postponed for a number of reasons.  Additionally, mediation typically costs a fraction of what a trial would cost the parties.  Most mediated cases are resolved in no more than a handful of mediation sessions.

David Johnson is an attorney located in Idaho Falls, Idaho, who handles construction disputes for both property owners and contractors.  He is a trained mediator and understands how the mediation process works.  He serves clients in most counties in Eastern Idaho including Bonneville, Bingham, Jefferson, Fremont, Madison, Teton, Butte, Custer and Clark Counties.

Avoiding Trouble With Wills and Probate in Idaho

If you have been smart, fortunate, and diligent enough to have amassed some assets in your lifetime that could be going to your children or others, you should take the steps to be sure your assets are handled properly. Common problems include giving young children or grandchildren access to large sums of money before they are mature enough to handle it properly, or not giving clear directions in your will. These, and other issues, can be handled by using an attorney who is familiar with wills and probate in Idaho.

Strategies

When it comes to protecting young beneficiaries from themselves, you might want to consider the use of a testamentary trust. Setting up a trust during your lifetime is often prudent with sizeable estates. For lesser holdings, a testamentary trust may suit your needs. A testamentary trust is one that is created after your passing, but allows you to plan exactly how and when your descendants gain access to any funds. During your lifetime, you do not have to administer the trust or incur the cost of having one set up. A testamentary trust is designated and outlined as part of your will.

Estate planning is a complex and emotional task, and the advice of an experienced attorney and financial planner is essential to making sure all your wishes are followed.

Navigating Private Placement Adoptions in Idaho

Adoption is often a difficult emotional time for all involved. The adopting parents may be doing so out of compassion or a desire to assist either the family giving up the child or the child itself, or may be seeking to compensate for the inability to conceive a child of their own. The family passing on custody may be financially, emotionally, or otherwise unable to care for the child and seeking to place it in a better situation. Either way, private placement adoptions in Idaho involve the voluntary transfer of termination of parenting rights and the placement of custody and adoption with the adoptive parents.

Need for an Attorney

While all adoption cases greatly benefit from the advice and counsel of a qualified and experienced attorney, a private placement adoption offer special legal and emotional considerations and should be assisted by an attorney who understands the pitfalls that can derail the process.

Despite the term ‘private,’ all adoptions in Idaho, except stepparent adoptions, require a home study of the adopting family in order to determine their capability to care properly for the child. This can be conducted by a private firm which the attorney may be aware of or have prior experience with. The state also has other basic requirements for private placement adoptions, including that the adoptive parents be a minimum of fifteen years older than the child being adopted or a minimum of 25 years of age, and that the birth parents’ parental rights be terminated when the adoption is completed.

In order to ensure that these and other requirements are met, an attorney familiar with the current state of adoption law – especially private placement adoptions – in Idaho is a necessity. A life decision of this level of importance requires very careful handling.

Contract Disputes Attorney in Idaho Falls and the Two Side of Contractual Agreements

We all have long contracts given to us and we are expected to sign without having much of a chance to review the same. Entering into a contract can be as simple as signing your name without reading a thing, or as complicated as having an attorney spend many hours reviewing and negotiating the terms of a contract with the other party and their attorney. As long as the contract is written in a reasonably coherent manner and entered into freely, the courts will generally uphold contractual agreements between most parties, including individuals and businesses. However, the ‘reasonably coherent’ aspect is often open to interpretation, and when there are disagreements over what a contract requires it’s past time to hire a contract disputes attorney. A better time to hire one would be before the contract is signed If you sign before you understand, you still may be liable for the what the contract says.

Two Stages of Contract Review

An attorney does not need to read every contract you entered into. However, if you have concerns, you should have an attorney review the contract read before you sign. Sometimes contracts have provisions that you have a certain number of days to rescind the same. If the contract has the same, the person who presented the same to you should be able to point out this specific provision to you. Although it is always better to read beforehand, you can possibly get out of a contract before you accept any benefits from the same. If you are knowing you are going to engage in a contract in the future, you may want to get a copy of the contract and review it before the time you are going to sign.

Getting the advice of a qualified attorney cannot also help you understand what you would be agreeing to. They know what to look for because they have seen what has caused problems in the past. This review is essential to avoiding problems in the future because noting a piece of problem language before signing is a matter of a quick revision, whereas dealing with it after signing off on the contract often involves litigation or alternative dispute resolution such as mediation and arbitration.

Despite the best review, sometimes contract disputes still arise, in which case the attorney who reviewed the contract in the first place is often the ideal choice to deal with the dispute, as they are most familiar with the terms of the contract in the first place.

Although a contract is supposed to define relationships and behaviors in ways that assure certain benefits and responsibilities, the fact is reasonable people can and do disagree all the time. Attorney review and assistance in these scenarios is essential.

The Importance of Advanced Directives for Aging Parents in Idaho.

The fact is we are all living much longer than ever before, and as a result, we are experiencing more diminished physical and mental capacity than our ancestors ever experienced. The best time to approach this subject with aging parents is before they begin to exhibit any sort of decline. Jointly making these decisions before parents become too impaired, can relieve children of anxiety and difficulties if they are faced with needing to appoint a conservator and/or guardian by the Courts.

Peace of Mind

When parents and children have an understanding of their wishes should parents become incapacitated in the future, there is peace of mind. Provisions can be put in place to be sure everyone’s rights, wishes, and intentions are protected.

A power of attorney may be prepared, but not put into effect until the appropriate time. If the aging parents enjoy their golden years without having to deal with mental decline of any perceptible level, the power of attorney may never be used. However, having a power of attorney can be “durable,” meaning that the power of attorney is still be effective after the person becomes incapacitated. There could also be safeguards put in effect, such as limiting the agent’s (called an attorney-in-fact) authority or require two persons to act jointly for certain decisions such as selling real property.

If a conservator and/or guardian become necessary, planning ahead will allow the elderly person to designate who they would want to serve as a guardian and who to serve as the conservator. The guardian and conservator do not need to be the same person(s).

Discretion of the Courts

Lack of planning for the future leaves the resolution of situations involving elderly relatives up to the discretion of the courts, and can be very detrimental to the control of the property and the harmony of the family. The Court may appoint a conservator or guardian who goes against the desires of the family. If there is a strong division in the family, the Court could even appoint a third party who gets paid from the funds of the incapacitated person. If the intentions of elderly parents or other relatives are to be honored, having the necessary paperwork in place is imperative.

Tools to Consider

There are a number of documents for one to consider for the time when aging parents are no longer able to make sound decisions on their own. These include:

  • Living Will. A living will can designate what type of care a person will receive if they become terminally ill and unable to make decisions on their own (e.g. in a coma). A person can designate what they want including: 1) all possible care to keep them alive; 2) hydration and nutrition only; 3) withholding of treatment, fluids and food, allowing the person to pass quicker. (This is the most commonly used); and 4) designate a person or persons who has the medical power of attorney to make the decision. In any one of the alternatives, the terminally ill person does not suffer and receives the necessary medications to make them comfortable.
  • Physician Orders for Scope of Treatment (POST). This replaces the previous “Do Not Resuscitate” and “Comfort One” programs. This is a document prepared by the patient in cooperation with his or her physician to express their wishes regarding medical treatment.
  • Durable Power of Attorney for Health Care. This allows a person to designate one or more persons to make health care decisions for an incapacitated person. This person (or persons) is one who could authorize where the incapacitated person resides, such an assisted living center, in addition to working with health care providers on behalf of the incapacitated person.
  • Durable General Power of Attorney. Also known as a financial power of attorney, this document allows for the attorney-in fact to handle the property and income of the incapacitated person. The scope of authority may be broad or limited, depending upon the language chosen.
  • Trust Agreements. Some individuals use a trust to control assets. A trust is more costly upfront, but may have benefits that those planning may want to consider in cooperation with an experienced attorney in estate planning and elder law.

The Responsibilities of being a Guardian or Conservator

When our parents grow older and begin to exhibit mental or physical decline that erodes their ability to care for themselves or become vulnerable to the improper influences of others (such as scam artists who prey upon the elderly), children sometimes have to make the tough decision to have a conservator and/or guardian appointed. By way of definition, a guardian is one who is responsible for the person. A conservator is responsible for the person’s property. However, few children or other family members who consider becoming guardians to their elderly parents or relatives have a clear understanding of what is involved. Becoming a Guardian to an elderly parent is not a simple matter.

Facts about a Court Appointed Guardianship or Conservatorship

Anyone seeking to gain the status of being a guardian or conservator for an incapacitated person, including an elderly parent, should know:

    • A Guardian makes all legal decisions on behalf of the incapacitated person, including making medical decisions about whether or not to apply treatments or administer medications on the advice of medical professionals. They can decide where that person will live. You will in essence become the parent to that person. The guardian can, unless the Court directs otherwise, decide who can and cannot have contact with the incapacitated person.

 

  • A Conservator manages the incapacitated person’s finances, paying bills and managing investments or other assets, such as property. There must also be an accounting for the funds submitted periodically to the Court Clerk. After the first year, the reporting is done annually.

Costs

Many people are concerned about the costs associated in gaining status as a guardian or conservator of elderly parents in Idaho. Some may believe that they will become personally responsible for huge medical bills, legal bills, and other costs associated with managing someone’s life, which is not the case. A guardian or conservator cannot be looked to use their own income and funds to handle the affairs of their ward, as long as they let the parties know they are dealing with a guardian and/or conservator. Instructions can be given to make sure documents and contacts are signed correctly.

Gaining Guardianship of Elderly Parents.

We would all like to think that our elder years will be spent in peace and quiet, enjoying the fruits of our labors and the company of our friends and family. No one likes to think that they may spend their final years dealing with diminished mental or physical capacity and need to rely on children or others – even total strangers – to care for us and manage our affairs. As a result, many children find themselves in the upsetting scenario of dealing with an aging parent who is in denial about their capabilities. Despite a clear inability to handle themselves, the parents may resist any attempt to wrest control from them, making it difficult for children. Sometimes it becomes necessary to involve the Court in getting a conservator and guardian appointed.

Incompetence/Incapacity

Idaho courts have a mechanism for having an elderly parent (or anyone else exhibiting a decline in their ability to manage their own affairs) declared incompetent, and thus requiring the assistance of someone else appointed as the conservator and/or guardian for elderly parents.

This procedure involves the court which attempts to make a decision in the best interest of the alleged incapacitated person. The process is started by the person(s) seeking the appointment of guardian or conservator filing a petition. The Court will then designate a physician (usually the person’s own physician) to provide their opinion as to whether or not the individual needs either or both, a guardianship or conservatorship. The Court will also insure that the alleged incapacitated person has an attorney to represent his or her interest and will appoint an attorney if the alleged incapacitated person hires their own attorney. The court will also appoint a “visitor” who is a neutral party, who does an investigation on behalf of the court and makes a report and recommendation to the Court.

The Invisible Elder Abuse: Financial.

When people hear the term “elder abuse” they generally imagine a gothic scenario where a caregiver physically or mentally abuses a helpless elderly person, physically or mentally unable to defend themselves. The scenario frequently plays out in the imagination (and all too often in real life) in nursing homes or other elder care facilities. Children often imagine they will be able to ensure their parents never suffer such abuse and indignities.

However, a much more destructive and more insidious form of abuse can be perpetrated on elderly parents – financial abuse. Financial abuse is frighteningly easy to commit when an elderly parent has begun to lose control of their affairs but has not yet been formally recognized as in decline. Sadly, while most financial abuse of the elderly is committed by relatives, even children, it is also often perpetrated by businesses either alone or in collusion with relatives, including the creation of new wills, insurance policies, or agreements to pay for unnecessary services. As a result they maintain full control over their finances, and predators can convince them to sign away assets, make cash payments, add them to bank accounts or credit cards, or simply use personal information to commit identity theft.

Like most other forms of elder abuse, financial abuse can be prevented or mitigated with the proper appointment of conservator or person holding a Durable General Power of Attorney.

Understanding a Material Breach of Contract in Idaho Falls

In law, a “material breach” occurs where a party fails to uphold the contract in a way that renders the agreement ”irreparably broken” which defeats the purpose of it having been drafted in the first place.

A breach of contract in Idaho Falls must go to the heart of the agreement between the parties before they can go to court seeking damages over the matter.

Who Can Seek to Be Compensated for Loss?

If the breach only goes so far as to include things that can be fixed within a reasonable timeframe or within an acceptable budget (whilst keeping the contract in effect), such breach may not be considered material.  In addition, Idaho law requires that aggrieved party does the reasonable thing to correct or mitigate the damages.  For example,  if a car is lacking hubcaps and the radio is not working, the car dealer who sold the car could easily install the hubcaps and install a new radio with relative ease.

What the Affected Party Stands to Lose

Time plays a critical role in determining whether or not a material breach of contract in Idaho Falls or elsewhere has occurred.  For example, if a homeowner hires a contractor to create an outdoor landscape and declares a breach towards the end of project that could have been declared much earlier, the courts will not be sympathetic to the homeowner and may declare the breach to not be material or waived.   In such cases where the majority of a contracted party’s obligations are met, called “substantial performance”) the less likely a material will have occurred, and the courts tend to agree.

David A. Johnson has been providing quality legal services in East Idaho. As both a private attorney and as a former Bonneville County Prosecuting Attorney, Mr. Johnson has substantial courtroom experience. Mr. Johnson has handled cases all over the State of Idaho. His primary areas of practice are in Bonneville, Bingham, Butte, Jefferson, Madison, Fremont Bannock and Jefferson Counties. In addition, to Idaho Falls, we serve residences in the Blackfoot, Shelley, Firth, Rigby, Rexburg, St. Anthony, Ashton, Ammon, Driggs and Victor, Idaho. [Read more..]