The Law in Your Life

Civics as a Valuable Educational Topic

“LAW IN YOUR LIFE”
“How Public Education Can Use Civics Courses as a Way to Make Our Students Better Citizens”

Kristen Morrow,  Attorney
Department of Elementary and Secondary Education
Chair, The Missouri Bar Advisory Committee on Citizenship Education

Question 1.  We hear about how the U.S. compares to other nations in math and science education—how are we doing in civics education?

Question 2.  Kristen, I remember when I was an 8th grader, we had to take the Constitution test to see if we could graduate and go on to high school. We were all scared about that test.  Is that what educators mean when they talk about civics education?

Question 3.  You are a former government teacher—I am a former alderwoman and mayor, and so I also believe that it is a 2-way street.  Government is for everyone, but there has to be that buy-in on both sides.  There has to be that participation from both sides so that it’s more than just rote memorization of the Constitution—it’s about how to apply that in a real-world application.

Question 4.  (For instance) To know how to talk to your alderperson—or to know how to ask about street repairs—or how to talk to your city administrator about how to file a complaint.  There are many things to know.  It’s (civics) about more than learning all the rules of the Constitution.

Question 5. And it is so easy to say “they” quote-unquote….  “Well, they haven’t done this.”  You might, as a citizen be complaining about the wrong department (if you don’t know civics).

Question 6.  Kristen, you are the chair of the Advisory Committee on Citizenship Education for the Missouri Bar.  Why is The Missouri Bar involved in supporting civics education in our public schools?

Question7.  What can adults do if they recognize that they weren't paying attention during social studies class and they really don't know much about the principles and structure of our government?

Question 8.  In this day and age, it’s not always easy to say, “Well I’ll just go attend a city council meeting.”

Question 9.  As a former elected official myself, it always concerned me when people would say, “Can I attend the city council meeting?”  It’s open to everyone—it’s your government.  You have a right to be there.  And if you can’t be there, electronically there are web pages, all minutes are open to the public—and ask to see the minutes, read them online, and then email your elected official and say, “I didn’t understand that vote”…or “Explain how we arrived at that topic on that particular meeting.” They should be knowledgeable.

Protecting Family Treasures and Nursing Homes

“LAW IN YOUR LIFE”
“Protecting Family Treasures & Nursing Homes”

Rusty Fracassa, Attorney,
McCormick & Fracassa
Elder Law and Special Needs Attorneys
Liberty, Missouri                             

Question 1----What happens to a person’s property and savings if he or she has to be cared for in a nursing home?

Question 2 ----Then someone in the family or a caretaker would be in charge of the person’s property or savings to make sure those bills are paid?

Question 3 ----Nursing homes are expensive.  How can a lawyer help a person to legally and ethically not lose everything they’ve worked for to pay for the last years of their life in a nursing home?

Question 4----Sometimes a loved one goes to a nursing home but it’s not for old age.  It may be for a degenerative disease or even a car accident that would send a young person to a nursing home.  Are there any ways to plan for these life-changing events?

Question 5----Hopefully, growing old is inevitable.  How can we financially plan to protect the family treasures we hold onto now if we go into a nursing home? Not personal belongings but those items that do have significant monetary value?

Question 6 ----Do you, as a special attorney for elder law and special needs, have many meetings with siblings who might have opposing opinions on what to do with family treasures when Mom or Dad goes into a nursing home?

Question 7----Bottom line is…plan ahead, right?

 

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Text Transcript of Audio Interview

Shelley Tucker: Welcome to the Law in Your Life, a Missouri Bar podcast for the public.  I'm Shelley Tucker.  Our guest is Russell Fracassa, an attorney whose practice focuses on elder law and special needs.  He's with the law firm of McCormick and Fracassa of Liberty, Missouri.  Rusty, what happens to a person's property or savings if he or she has to be cared for in a nursing home?

Rusty Fracassa:  One thing that it is going to be used for is what they've been probably saving it for all of their life, at least the current generation, and that is that proverbial rainy day.  It's going to be used for No. 1, their current care in the nursing home, and No. 2, if they've retained their home, it's going to be used to continue to maintain that home even though they may not be living there.

Shelley Tucker: There's someone in the family or there'll be a caretaker who will be in charge of the person's property or savings to make sure those bills are paid?

Rusty Fracassa:  Well, ideally, yes.  The first thing to do is always, whether it's somebody in their 30’s or 40’s or somebody that's going to be older than that, is if they have someone available is to have a durable power of attorney in place.  Then that person feels somewhat of an obligation and they're going to take care of the business. That provides an avenue also for the elderly person.  Now, sometimes that stuff just seems to be able to get done, which is never usually a good option. So, if there's no durable power of attorney in place then really the only other option if somebody cannot  -- due to physical reasons or mental reasons -- take care of their business, then that's when there needs to be a conservatorship through the probate court. If there's nobody available to serve in that capacity then every county has a public administrator that takes over that duty  

Shelley Tucker: That’s understandable.  We know nursing homes are expensive.  How can a lawyer help a person to legally and ethically not lose everything they’ve worked for to pay for the last years of their life while in a nursing home?

Rusty Fracassa:     Well really it's just that lawyers can help to plan because we’ve been through it many, many times before and seen many different scenarios and basically know the different options that are available that the law provides.  The first and foremost of course is always advanced planning --  the durable powers of attorney and long-term care insurance are important.  Long-term care insurance is important because it's not just the nursing home that   provides for but it's also in‑home care or assisted living that it provides for.  The next thing that we can do kind of goes along with just knowing what's available because of dealing with it so much. And that is (exploring) the different avenues available to not necessarily preserve the estate for the children just to increase their inheritance but also to continue to care for the community spouse or to kind of cut off or round off those rough edges of being in the nursing home and only living off of $30.00 a month for incidentals or little things to make life a little easier at the end of the stage.

Shelley Tucker: Sometimes a loved one goes to a nursing home, but it's not for old age. It may be for a degenerative disease or even a car accident that would send a young person to a nursing home.  Are there any ways to plan for these life-changing events?

Rusty Fracassa:     Well really it seems to keep coming back to the durable power of attorney and long-term care insurance. Really what's nice in living in a society that does provide, and  I know there are arguments that it doesn't provide enough, although I think some taxpayers may think that it provides too much,  but there are avenues available,  such as for any wartime veterans there's certain benefits available through the Veterans Administration, and then there's also Medicaid which in Missouri is called MO HealthNet.

Shelley Tucker:  Hopefully growing old is inevitable, but how can we financially plan to protect those family treasures, not personal belongings, not what we see around us day to day, but those family treasures that we hold on to now if we go into a nursing home.  Those items that do have some significant monetary value.

Rusty Fracassa:     The one that I think of immediately that we see a lot is the family farm that has been passed down through many generations.  The first issue is for it not to be depleted during a spouse’s nursing home stay. There are a lot of ways to be able to transfer that over to the community spouse that are available.  Some of those are that if it’s an ongoing business providing income to the family then that is an exempt resource.  The income will be considered but the asset itself won’t be considered. Also you might try qualifying the nursing home resident for Medicaid.  If there are monetary items such as cash or CD’s or stocks or bonds, there is also, as long as you have a community spouse, ways that you can increase the amount that is allowed for the community spouse to keep.  I think that’s very important because typically, not always, but typically it’s the 85-year old grandmother who cannot earn any more money and her Social Security is very low because she’s always cared for the family. Now, her household income has dropped significantly if her husband’s income is going to the nursing home, and with some different limitations half of the assets are going to go away.  So we could do things such as transfer the assets to the community spouse and she can purchase an annuity.  That no longer is an asset but now it is an income stream.  Now it can’t just be any annuity, that comes along with just knowing what the law says and what the local practices are, because there are certain criteria for that.  Another option is, is if there is a disabled child.  The law allows for any assets to be transferred to a disabled child and it doesn’t have to be a child who is receiving Social Security disability.  It can be somebody who is just qualified as disabled, which just as many lawyers have clients determined to be disabled through the Social Security Administration. We can do the same thing through Medicaid.  And that’s another very popular option.

Shelley Tucker: As an attorney for elder law and special needs, do you have a lot of meetings with siblings who might have opposing opinions on what to do with the family treasures or the property when mom or dad might go into the nursing home?

Rusty Fracassa:     If you're preserving assets to be later inherited, people don't seem to argue as much about that.  They always seem to be pretty positive even though the children will always says I just want Mom to spend all the money to go on trips.  At least with the world's greatest generation, which is the age bracket that's we're speaking about today, that's not their desire.  Their desires are to know that money is sitting in the bank and to be able to pass it on to the children.  And so there's not a lot of arguing, it doesn't seem, in that fashion.  And I suppose that's one of the reasons that they come to a counselor --  in order to be able to work out some of those differing ideas in a more objective way.  So that is not as common as what I think we see on TV.

Shelly Tucker:   Bottom line is “plan ahead.”

Rusty Fracassa:     Yes.

Shelly Tucker:   And there are resources out there, The Missouri Bar can help out and also law firms such as yours can help out as well.

Rusty Fracassa: Very much so, yes.

Shelly Tucker:   Our guest has been Rusty Fracassa with the law firm of McCormick and Fracassa, elder law and special needs attorneys in Liberty, Missouri.  The Law in Your Life provides general information about the law for the public for your specific legal needs.  Remember you can only get legal advice from your attorney.  We hope you've enjoyed this segment.  If you have any suggestions for future podcast topics let us know at movar.org.  I'm Shelly Tucker for the Missouri Bar and Law in Your Life

PRENUPTIAL AGREEMENTS

“PRENUPTIAL AGREEMENTS”

Gail Berkowitz…………ON Pre-Nuptial Agreements
Law Firm of “Berkowitz, Cook and Gondring” of Kansas City

Question 1. HOW COMMON ARE PRENUPTIAL AGREEMENTS?

Question 2. WHY IS THAT?

Question 3. SOME PEOPLE WOULD SAY THAT IF YOU HAVE TO DO A PRENUPTIAL AGREEMENT, MAYBE YOU DON’T TRUST THE PERSON YOU ARE GOING TO MARRY. YOUR THOUGHTS ON THAT

Question 4. BY DOING A PRENUPTIAL AGREEMENT ARE YOU ALREADY PRE-PLANNING YOUR DIVORCE?

Question 5. ARE PRENUPTIAL AGREEMENTS ONLY FOR CELEBRITIES AND VERY WEALTHY COUPLES?

Question 6. WHAT SORT OF THINGS SHOULD PEOPLE PUT INTO A PRENUPTIAL AGREEMENT?

Question 7. SO IT’S PROTECTION OR A MATTER OF STRATEGIC PLANNING?

Question 8. WHAT ABOUT CERTAIN THINGS YOU CAN’T PUT INTO A PRENUPTIAL AGREEMENT?

Question 9. ARE PRENUPTIAL AGREEMENTS RECOGNIZED AS CONTRACTS IN MISSOURI, OR IS THERE A STATUTE THAT RECOGNIZES THEM?

Question 10. WHAT DO YOU SAY TO THE ROMANTICS AMONG US, WHO SAY, LOVE WILL TAKE CARE OF EVERYTHING?

Question 11. SO THE BRIDE AND GROOM WOULD SIT DOWN WITH THEIR ATTORNEY PRIOR TO THE WEDDING AND MAP OUT A PRENUPTIAL AGREEMENT…..?

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Text Transcript of Audio Interview

Shelley Tucker: Welcome to law in your life a Missouri podcast for the public. I'm Shelley Tucker. Our guest is Gail Berkowitz of Berkowitz, Cooke and Gondring of the law firm in Kansas City. We're discussing prenuptial agreements. How common are prenuptial agreements?

Gail Berkowitz: More and more common. I would say in terms of first marriages probably less common; a second marriage is certainly far more common.

Shelley Tucker: And why is that?

Gail Berkowitz: Most people in their first marriages are marrying younger, they don't have a lot of assets to be concerned with although families where there has been inheritance or there is a concern for an inheritance in that - the near future, you might find that the parents are supportive of a prenuptial agreement.

Shelley Tucker: Well Gail some people might say that - you know, if you have a prenuptial agreement or you go into a marriage with a prenuptial agreement, maybe you're not trusting the person that you're going to marry. Your response on that

Gail Berkowitz: I wouldn't agree with that at all. In fact, I think often times if a prenuptial agreement is being drafted properly both the spouses are receiving counseling. They're really going to be discussing some financial issues that they might not have considered. Prenuptial agreement don't forget not only deal with what occurs upon a divorce but also what occurs upon a death of either party. 

Shelley Tucker: By doing a prenuptial agreement you're not already preplanning your divorce at all, are you?

Gail Berkowitz: I assume there are some people who do go into it with that in mind but that would really be the minority.

Shelley Tucker: Are prenuptial agreements only for celebrities or as you said very wealthy couples?

Gail Berkowitz: Absolutely not. Particularly people who again have been married previously and they may have children from their prior marriage and they would like to protect that there would some other assets that would be set aside for their children.

Shelley Tucker: What are some things that we should put into a prenuptial agreement?

Gail Berkowitz: I'd like to look at prenups as two very distinct issues. One is what would occur upon death and what would occur upon divorce. A lot of people put into their prenups issues regarding maintenance which is what we used to refer to as alimony but more than that it's really to look at what occurs with assets that either party has brought into a marriage or anticipates inheriting during the marriage and how they would like to preserve those for either their children again from a prior marriage -

Shelley Tucker: - It's a protection and it's - it's really strategic planning, isn't it?

Gail Berkowitz: Absolutely. And we often ask our clients to work with an estate planner.

Shelley Tucker: What about certain things you can't put into a prenuptial agreement?

Gail Berkowitz: Anything that relates to your children would be inappropriate because a court would retain jurisdiction to make any decisions relating to your children. My law partner and I have often questioned when a prenuptial agreement does address the lack of support for a spouse particularly when one spouse has been the only - or tends to be the only breadwinner in the family and that makes me very uncomfortable.

Shelley Tucker: Are prenuptial agreements recognized as contracts in Missouri or in some states? Is there a statute that recognizes prenuptial agreements?

Gail Berkowitz: Kansas has passed a uniform act. Missouri does not have the uniform act but they are considered to be contracts as long as you meet all the qualifications. Those qualifications are that both parties have had an opportunity to be represented, that there has been a full disclosure of all the assets, and that there has been what we call consideration. In other words, those parties are receiving a benefit from the contract. Kansas has adopted the uniform act and so long as you can reflect or show that both parties were adequately represented, and that is a gross generalization, but it is much easier to uphold than in Kansas because of the act than it is in Missouri. There are far more qualifications in Missouri.

Shelley Tucker: What do you say to the romantics among us who say that, you know, love will just take care of everything in a marriage?

Gail Berkowitz: Well luckily nobody asks me that question, they have already made the decision by the time they come to me. Again, I think a prenuptial agreement is approached by both parties as a way to not only plan for the future but also to raise issues for today. I think it is a very good mechanism for that. 

Shelley Tucker: How much would one cost? I mean, just go to your attorney as you are getting ready to get married, the bride and the groom, sit down with their attorney before they get married and set this up, right?

Gail Berkowitz: Preferably far before the wedding. First of all, you don't want somebody who is the day before the wedding having to deal with these issues, but it is shocking how many times it does occur. And that is one of the issues to be reviewed in Missouri to determine if the document was conscionable. But both parties would have their individual attorneys, preferably six to seven months before the marriage would be ideal. Your attorney is going to bill you on an hourly basis. 

Shelley Tucker: Our guest has been Gail Berkowitz with the Kansas City law firm of Berkowitz, Cook & Gondring. The Law in Your Life provides general information about the law for the public for your specific legal needs. Remember, you can only get legal advice from your attorney. We hope you have enjoyed this Pod Cast . If you have any suggestions for future Pod Cast topics, let us know at mobar.org. I am Shelly Tucker for the Missouri Bar and Law in Your Life. 

 

Paternity

“LAW IN YOUR LIFE”

“PATERNITY”

With Brandi Byrd, Attorney, The Copeland Law Firm, Columbia

Question 1...Why is paternity still a legal issue? With DNA testing, don’t we know for sure who the father of a child is?
Question 2...What’s the best route?  For the man to request that DNA evidence and resolution or for the woman to do that?
Question 3...If a man fathers a child, what sort of legal responsibilities does he have?
Question 4...We’ve talked about a man finding out through DNA that he’s the father, what are the consequences that a woman and child face if the woman doesn’t determine legally who the father is?
Question 5...What if DNA testing reveals that a man is not the father of t hat child?
Question 6...What is your advice to any woman who is unmarried and ready to have a child?
Question 7...If someone has questions about paternity, the legal side of paternity, where should they go first?

 

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Text Transcript of Audio Interview

Shelley Tucker:   Welcome to Law in Your Life, a Missouri Bar podcast for the public.  I’m Shelley Tucker.  Our guest is Brandi Byrd, an attorney with the Copeland Law Firm in Columbia and we’re discussing paternity issues.  Brandi, we’re talking about paternity.  Why is paternity still a legal issue?  With DNA testing don’t we know for sure who the father of a child is?

Brandi Byrd:     We may know for sure who the father is but paternity is still a legal issue because it’s not necessarily enough to show through DNA that he is the father.  He won’t have legal rights to the child until he is legally established as the father of the child.  So if the parties are married at the time of the birth or at the time of conception then there’s a legal presumption that he’s the father and he has those rights.  But when you have a case where the parties are not married then the father does not have those same legal rights until he is legally established as the child’s father by some means.  By the same token, he also doesn’t have the responsibilities that he would otherwise have so it’s in the child’s best interests and the mother’s too and the father’s as well to have him legally established as the father through a paternity action or if they are in agreement, then by an affidavit acknowledging paternity in order to ensure that the child is supported.

Shelley Tucker:   What’s the best route?  For the man to request that DNA evidence and resolution or for the woman to do that?

Brandi Byrd:   Well it really depends on the particular facts of the case.  If the father is wanting to ensure that he’s got those rights, then I would suggest that he go ahead and move to get this legally established.  But if the father’s kind of wanting out of the picture and the mother wants to make sure that he’s responsible for supporting the child, then she’s probably going to be the one that does that.

Shelley Tucker:  If a man fathers a child what sort of legal responsibilities does he have then?

Brandi Byrd:     He has a duty to support the child, to provide for the child’s basic needs and care and this is going to include things that we generally call child support but more specifically may or may not include things like health insurance and other costs.  It really depends on the particular facts of the case.  He may also be required to pay for some of the costs of prenatal care, birthing expenses, retroactive support depending on when that order is made, things like that.  Again, it’s all dependent upon the particular facts of the case. 
Shelley Tucker:         We talked about a man finding out through DNA that he is the father.  What are the consequences that a woman and child face if the woman doesn’t determine legally who the father is?

Brandi Byrd: Well this really depends again on the facts of the case.  For the mom the consequences are going to be being a single parent, supporting the child on her own, raising the child on her own without another parent in the picture -- of course yshe may have other people in her life, may move on and get into a relationship with someone else who takes that child on.  But there’s definitely the potential there to be a single parent, which is not going to be easy.  In some situations it may be better for her and for the child to do that.  If the mother is not able to support the child on her own and she ends up asking for public aid or assistance, she’s likely going to have to be required to reveal the father’s identity anyway because they’re going to want to recoup some of the money that’s paid because it’s really a parent’s job first and foremost to support a child.  As far as the child is considered, what I would say really matters here: children are the true innocents in these situations and that’s why it’s the court’s main goal to do what’s in the best interests of the child,  sometimes even to the detriment of the parent.  Legally speaking, if the father is not determined, the child loses the support that that father would otherwise provide, including possibly health insurance coverage, etc.  The child also loses the right to inherit from the father, things like that.  Practically speaking, and more importantly in a lot of cases, assuming the father is not legally determined and not otherwise in the picture, then the child loses the relationship that he would otherwise have with his father and even the father’s extended family.  The reality is that this child is going to have questions about that as the child gets older.

Shelley Tucker :   What if DNA testing reveals that a man is not the father of that child?

Brandi Byrd:  In circumstances where the parties were not married and the father has not otherwise acknowledged paternity, then as long as there has not otherwise been a legal determination if he is the father, then that’s going to be evidence to support his claim that he’s not and that he should not be responsible for that child.  I’m sure we’ve all heard of the extreme circumstances where a father is determined  as the legal father , then years and years later, it’s found out that he was not genetically or biologically the father of that child but was still responsible. There are actually some things going on to change certain laws and kind of change the outcomes of those situations. But that’s something that’s still going on right now.  For the most part, if there has been no order and he’s determined through DNA that he’s not the father, then he’s probably not going to be responsible for the support of that child.  Now that doesn’t mean that he might not choose to support that child --  this may be a situation where he wants to be the father anyway and just because he’s not biologically the father doesn’t mean that he and that woman cannot agree that he will practically speaking be that child’s father and take that responsibility on legally as well.

Shelley Tucker :  What’s your advice to any woman who is unmarried and ready to have a child?

Brandi Byrd:  This is really a question that comes down more to personal morals and ethics than to a legal question.  I’ll defer to the woman’s personal decisions based on her specific situation for the most part. But from a legal standpoint I definitely would not advise getting married for the sole purpose of having a child.  If you have someone you want to co-parent with and you don’t necessarily want to be married to that person I would just advise that they both seek a legal determination of the father to protect mom, to protect dad and to protect baby.  On the other hand there may be a woman who just wants to be a single parent and if she’s in a position where she feels that she’s better suited to become pregnant through a method like artificial insemination, that’s her choice,  and  she may not have to worry about things like co-parenting,  and sharing custody,  but she’s also going to face raising the child on her own and answering the child’s questions as the child gets older.  Another woman may be in a position where she’s not able to support the child on her own and that’s going to leave her with a few more ethical and moral considerations and decisions to make. But, again, if she asks for support later and became pregnant through more conventional means and knows who the father is, then she will likely be required to reveal the father’s identity if she does seek public aid or assistance.  My best advice to a woman who is unmarried and ready to become a mother is to think about her situation, whether she wants to be single, a single parent or co-parent with someone else and most importantly to think about the child and what’s going to be best for the child in his her future.

Shelley Tucker:   If someone has questions about  the legal side of paternity, where should they go first?

Brandi Byrd:  Well they’re going to want to find a family law attorney who deals with paternity.  There are resources through The Missouri Bar; you can Google that;  You can look in the yellow pages; or you could go to The Missouri Bar web site and search for an attorney.  I do believe the Missouri Bar has that LawyerSearch online database. There’s also The Missouri Bar Lawyer Referral Service.  They can contact The Missouri Bar to be directed toward a family law attorney  

Shelley Tucker :  Our guest has been Brandi Byrd, an attorney with the Copeland Law Firm in Columbia.  The Law in Your life provides general information about the law for the public.  For your specific legal needs remember you can only get legal advice from your attorney.  We hope you’ve enjoyed this segment.  If you have any suggestions for future pod cast topics let us know at mobar.org.  I’m Shelley Tucker for The Missouri Bar and the Law in Your Life.

 

Human Trafficking

 

“LAW IN YOUR LIFE”
“HUMAN TRAFFICKING”

With DR. DEB HUME, Assistant teaching professor in the Masters of Public Health program at the University of Missouri-Columbia----Co-Chair of the Central Missouri “Stop Human Trafficking” Coalition

  
Question 1...What is human trafficking?
Question 2...How would someone fall victim to Human Trafficking?
Question 3...Is it possible that the person who made your bed in a Missouri hotel is actually a slave?
Question 4...How many human trafficking victims are there in the U.S.
Question 5...What would happen to a victim of human trafficking if he or she reported their situation to the police?
Question 6...What should we be on the lookout for to identify possible victims of human trafficking?
Question 7...What should we do if we believe someone is in dire straits?

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Text Transcript of Audio Interview

Shelly Tucker:   Welcome to the law in your life.  The Missouri Bar podcast for the public.  I'm Shelly Tucker.  Our guest is Dr. Deb Hume, assistant teaching professor in the master's of public health program at the University of Missouri Columbia.  She is also the co‑chair of the Central Missouri Stop Human Trafficking Coalition.  Dr. Hume tell me about human trafficking, -- how do you describe that?

Dr. Hume:        Human trafficking is basically modern-day slavery.  It's profiting from the forced labor of other people, and there are two prominent types:  sex trafficking, which is when someone is commercially profiting from the sex act of someone else. They're forcing that person to work in prostitution, pornography, strip clubs, dancing, whatever it happens to be,  by the use of force, fraud or coercion.  If that person is not an adult, if that person is under 18 years old and they're forced into the commercial sex industry they're considered a victim of human trafficking regardless, even if there was no force, fraud or coercion.  If they're under 18 it is considered human trafficking.  The second type, labor trafficking, is when someone is forced into working in a hotel, working in a restaurant, working domestically in a home as a servant or a housekeeper or nanny where again force, fraud or coercion was used. That person is working involuntarily.  They've been forced to pass a debt; they've been forced because someone is threatening to harm their family; in some form  their work is not freely chosen and they're not free to leave. 

Shelly Tucker:   How would someone fall victim of human trafficking?

Dr. Hume:        Probably the most common situation is where someone is in a vulnerable situation.  They're desperately needing work.  They may be homeless.  They may be a runaway child or in the case of international trafficking,  it's a family that's impoverished and someone's promising to provide their child with an education and a good job. Almost always there's some sort of fraud involved.  Someone's telling you that I've got a job for you; I can give you an education; I can do this for you; and it turns out to be something entirely different.

Shelly Tucker:   Dr. Hume is it possible that the person who made your bed, for instance,  at a Missouri hotel is actually a slave?

Dr. Hume:        Unfortunately, it is possible.  There's a recent case in Kansas City where a number of people that work for this job service were indicted as a labor trafficking organization in putting them to work in hotels, motels, factories and so on, and profiting from their labor.  The people who thought they were coming to the United States legitimately for work were then enslaved by this labor organization.

Shelly Tucker:   How many human trafficking victims are there in the U.S.?

Dr. Hume:        That's actually kind of hard to say.  The U.S. Department of State estimates that about 18,000 to 20,000 are trafficked into or through the United States every year..  The United States is one of the largest destination countries, having one of the highest demands for trafficking.  Other countries are more likely to be countries of origin. We happen to be one that is bringing trafficked individuals in to work.  There's also the problem not just of international trafficking but a problem of U.S. citizens being trafficked. The U.S. Department of Health and Human Services estimates that as many as 100,000 children in the United States are at risk for sex trafficking -- runaway kids, throw away kids, children who happen to be at the mall and someone tells them all, you know, I'll teach you to sell makeup and you can make a lot of money, and then they're tricked into prostitution.  So we have both international victims -- 18,000 to 20,000 perhaps per year -- and domestic victims as well.  And of those 18,000 to 20,000 brought in, probably half of those are children as well.  This is happening to children all over the world including children in our own country.

Shelley Tucker: If someone who is the victim of human trafficking tries to report their situation to the police what would happen to them?

Dr. Hume:        It depends.  If the police are trained and know what to look for, or if the police  are familiar with human trafficking, there is protection both under federal law and under Missouri state law for victims of human trafficking.  That person would be released from the situation and provided with a T‑visa, a visa that’s for trafficking victims in particular that would allow them then to access job services and remake their life in the United States if they wanted to or return to their own country if they wanted to.  The key piece is getting law enforcement trained so that they recognize what might be happening because a lot of times the person who is coming out of such a situation is probably not going to  say I’m a victim of human trafficking. They probably are going to look like they might even be involved in criminal activity if they are involved in prostitution, or if they don’t have their documents and if they’re a foreign born victim, they may be arrested and deported. But if the law enforcement is trained , they may start looking for those clues that are sort of beneath the surface and which indicate that it’s a human trafficking situation.

Shelley Tucker: What should we do to be on the lookout for and to help identify possible victims of human trafficking?

Dr. Hume:        Things to look for are large van loads of people that seem to be under someone’s control, maybe stopping at a rest stop or stopping at a truck stop.  The one thing that traffickers do is if they have a group of victims either in prostitution or in labor  is that they may frequently move them from place to place to make detection more difficult and also to keep those victims isolated and confused.  The victims may not even know where they are in the United States If an individual seems particularly submissive or if they’re very fearful if you try to speak to them and they seem afraid that they’ll be seen talking with someone or if someone else tries to speak for them, tries to control what is said or what they’re allowed to say, if there are signs of physical or emotional abuse, all of those things could indicate something else --  but they also can be signs of trafficking.  So it’s  a matter of keeping your eyes and ears open , and looking for additional information.

Shelley Tucker: What should someone do if he or she thinks someone is in dire straits?

Dr. Hume:        In central Missouri what we’d ask you to do is call one of three numbers.  The first one is the Columbia Police Department tips line, 573‑875‑8477, that’s 875‑TIPS. The Columbia Police Force is aware of the problem and would notify the correct authorities so that an investigation could proceed. The second one is the FBI office in Jefferson City.  They also are, are aware and trained.  That number is 573‑636‑8814. The final number is the national hotline,  and at this hotline they have interpreters so if someone is not an English speaker they could call this number and an interpreter would be arranged. Tthat number is 1‑888‑373‑7888.

Shelley Tucker: Our guest has been Dr. Deb Hume, assistant teaching professor in the Masters of Public Health Program at the University of Missouri, Columbia.  She’s also the co-chair of the Central Missouri Stop Human Trafficking Coalition.  The Law in Your Life provides general information about the law and the public.  For your specific legal needs remember you can only get legal advice from your attorney.  We hope you’ve enjoyed this segment.  If you have any suggestions for future podcast topics let us know at mobar.org.  I’m Shelley Tucker for the Missouri Bar and Law in Your Life.

 

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Lawyer Search

With Jack Wax, Media Relations Director of The Missouri Bar

Question 1... Explain to me “Lawyer Search”.  How can I get involved in that?

Question 2... You can liken it to a medical issue.  You want to find the right person in the quickest amount of time.

Question 3... So, on Lawyer Search, the lawyers sign up for it…and they are those who are willing to take on new clients?

Question 4... When you need to have a legal issue resolved, time is valuable.  Jack, by using Lawyer Search, can a person expert to reduce that time needed to have a legal issue resolved?

Question 5... Why did the Missouri Bar develop Lawyer Search?

Question 6... When I log onto Lawyer Search on the Missouri Bar website, what will I find there?  Lawyers’ addresses, phone numbers, their specialties….a link to their website?

Question 7... But you don’t make your appointment at Lawyer Search, do you? You then must contact the lawyer’s office, right?

Question 8... For that initial interview with the attorney (because you really are interviewing them), what are some things you should ask that person?  Maybe you should write some things down first?

Question 9... Should you base your selection of a lawyer on the price?

Question 10... Jack, after you receive your first bill from your attorney, what should you be looking for on that?  You want to get the most bang for your buck but you also know that perhaps your legal issue isn’t resolved in one visit.  Should you talk to your attorney beforehand about how much it will cost throughout the legal process? 

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Text Transcript of Audio Interview

Shelley Tucker: Welcome to Law in Your Life, a Missouri Bar podcast for the public.  I’m Shelley Tucker.  Our guest is Jack Wax, media relations director with the Missouri Bar.  We’re discussing LawyerSearch.  Explain to me what is LawyerSearch?  How do I get involved in that?

Jack Wax:        Lawyer Search is an online tool created by The Missouri Bar, and you can find it at the Missouri Bar’s web site www.mobar.org.  It’s a way to help find a lawyer. You can then search for a lawyer by their area of practice and that’s real important and we’ll talk about it in a second, and also by their location.  I think a lot of people don’t realize that not all lawyers do all types of law.  Lawyers have special areas that they know more about, that they practice and they focus their practice on.  For instance, you don’t go to a family lawyer if you’ve got an intellectual property problem.

Shelley Tucker: Exactly, you can liken it to if you do need to get a certain kind of  medical expertise, you are going to try to find the person who will give you the answer in the quickest time possible.  Same with a legal issue, because that could take on many different layers, couldn’t it?

Jack Wax:        It’s like going to an orthopedic surgeon as opposed to going to a pediatrician.  You just have to realize that different lawyers handle different sorts of cases, like doctors.

Shelley Tucker:    So on Lawyer Search, lawyers then sign up for the areas of law they practice in?  They let the Missouri Bar know that they’re involved and that they can be contacted and they’ll be taking on new clients.

Jack Wax:        Only those lawyers who are accepting new clients are listed there.  Not every lawyer is on the LawyerSearch, because some lawyers can’t accept clients. You have government lawyers and corporate lawyers who have jobs but they don’t take clients and so they won’t be listed on there.

Shelley Tucker: When you need to have a legal issue resolved the time is valuable.  Jack, by using Lawyer earch then can a person expect to reduce that time needed to find a resolution?

Jack Wax:        Yeah, it really would.  It is important that people address their legal problems as soon as they realize they have them. LawyerSearch does get you  quicker to an attorney. It’s important to realize that when you find an attorney on LawyerSearch, someone who does the sort of law that you have a problem in, you can call that lawyer up;  you can make an appointment, but that doesn’t mean that you should just rely on Lawyer Search.  Everybody should talk to relatives, friends, colleagues, and try and find out something about the lawyer’s reputation.  You  want to find a lawyer who’s familiar with the sort of problem that you have and who has a good reputation.

Shelley Tucker: Why did the Missouri Bar develop LawyerSearch?

Jack Wax:        More and more people are going to the Internet everyday for finding everything and anything.  I think fewer and fewer people are using Yellow Pages, and of course there’s advertisements, but we wanted to make it very convenient for the public to access justice.

Shelly Tucker:               When I log on to LawyerSearch on the Mobar.org web site what will I find there?  Will I find the lawyers name obviously and his or her specialty.  Will there be like a, a physical street address and phone number or is there a link to go to their web page?

Jack Wax:        Each lawyer will put something different there.  They can choose how they want to be contacted.  Some will have their email address, some their phone number, their addresses.  And if they do have a web site they will have a link directly to their web site so that you can learn more about that lawyer.

Shelly Tucker:               But you don’t make your appointment there.  You then contact the lawyer’s office.

Jack Wax:        Yes, that’s right.  You need to contact the lawyer’s office, and it’s very important when you contact the lawyer to find out whether or not they charge for that initial appointment.  Some lawyers do and some lawyers don’t. 

Shelly Tucker:               For that initial interview with the attorney because you really are kind of interviewing them, what are some of the things that you should ask that person?  Maybe it would be a good idea to write some things down prior to actually talking to the lawyer so you’ll know and also you’ll make sure that you get your message there in a concise manner and, and use the least amount of time.

Jack Wax:        I think it’s a great idea before going into a lawyer’s office to rehearse a little bit and write down on paper what it is you’re after, what’s your problem, what are you worried about.  If you have legal documents that relate to the situation bring those documents with you.  When you’re talking to the lawyer, you not only want to find out whether they have knowledge about your particular area and an  interest in that area but also you want to find out whether  you are comfortable with that lawyer.  It doesn’t do you any good if you’ve got a lawyer that’s very knowledgeable but who you  are intimidated by that lawyer, or just don’t feel that lawyer is  comfortable with you either.  You want to find somebody that’s going to be, in a sense , your partner -- and you want somebody you can trust.

Shelly Tucker:               Should you base your selection of a lawyer on the price?

Jack Wax:        I think that each person has a different budget.  Price is important to some people, obviously.  To everybody.  But every person’s legal problems are unique.  If a person is going through a divorce, some people have simpler issues to handle and some people have more complex  situations, and that’s going to be reflected in the price.

Shelly Tucker:                 Jack, after you receive your first bill from your attorney what should you be looking for in that?  You know, you want to get the most bang for your buck but you also know that perhaps your legal issue isn’t resolved in one visit.  Should you really talk to your authority beforehand to know how much it’s going to take throughout the legal process?

Jack Wax:        That’s really important.  When you make your initial contact with the lawyer and after you’ve discussed your situation with that person you should ask for a written fee agreement with that attorney.  That way there will be no surprises.  You’ll know what it’s going to cost you.

Shelly Tucker:               Our guest has been Jack Wax, media relations director with the Missouri Bar.  The Law in Your Life provides general information about the law for the public.  For your specific legal needs remember you can only get legal advice from your attorney.  We hope you’ve enjoyed this segment.  And if you have any suggestions for future podcast topics let us know at Mobar.org.  I’m Shelly Tucker for the Missouri Bar and Law in Your Life.

Mediation

James Keller, chair of The Missouri Bar

Alternative Dispute Resolution Committee

  (Herzog Crebs Law Firm in St. Louis)

 

Question 1 - Most people think of trials going on in a courtroom, but what about mediation?  How do you describe mediation to someone who doesn’t know this exists and doesn’t know it can be an option?

Question 2 - Could the dispute resolution range from anything minor and nuisance to something that’s major and life changing?

Question 3 - That’s true, innocently, because mediation is a “people skill” and sometimes when you strip down all the emotions, and you sit across the table from someone, a compromise may reveal itself, right?

Question 4 - You’ve heard the phrase “Let’s agree to disagree”.  If someone takes part in a mediation, might there be a situation where there’s no winning-no losing---could that be an outcome of a mediation?

Question 5 - Are there situations where mediation may not be the avenue you need to you down?

Question 6 - By and large, are judges willing to ask for the parties to take part in mediation?

Question 7 - If someone is going into mediation, what type of mindset should they have when they sit down at the mediation table?

Question 8 - With mediation, should someone be surprised if their mediation takes place in an office or even a Law School rather than in a courtroom?

  

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Text Transcript of Audio Interview  

Welcome to Law and Your Life, a Missouri Bar Podcast for the public.  I’m Shelly Tucker.  Our guest is Jim Keller of Herzog, Crebs law firm in St. Louis.  Mr. Keller is also the chairman of the Missouri Bar’s Alternative Dispute Resolution Committee.  Mr. Keller most people think of trials going on in a courtroom.  What about mediation?  How do you describe mediation to someone who comes into your office and says  I don’t even know that existed?

Jim Keller:        Well mediation is an attempt to resolve a dispute typically with a neutral, known as a mediator, who will be mediating the dispute between two or more parties to try to get them to reach some kind of settlement or some kind of compromise short of having the dispute ultimately resolved either in a court of law or arbitration or otherwise.  It is a consensual process in the sense that if a matter is mediated and then resolved, that requires the consent of those who participated.  Sometimes you are required either by contract or perhaps even by court order to mediate a case,  but once you’re required to mediate the case that doesn’t mean you’re necessarily required to reach a resolution.  That’s got to be resolved between the parties, and they’ve got to reach an agreement to do that.

Question :And could these dispute resolution issues range from anything minor like a nuisance issue to something that’s  major or could be life changing?

Jim Keller:        Absolutely.  One of the unique things about mediation is you can apply it across the board to virtually any kind of dispute that could exist from something extremely small, extremely minor to obviously something that is very significant -- either legally very significant or monetarily very significant, or otherwise.  We all mediate whether we know it every day.  Take  a typical person at home with her two children and they get into a dispute with each other.  She’s going to participate  -- often reluctantly --  in trying to resolve the dispute, finding out what happened, trying to make some peace between her two children.  That in essence is a form of mediation.

Question:          That’s true. It is a people skill to be able to mediate, and  sometimes when you strip down all the emotions you might need to sit across the table from someone and have that legal element there and  maybe let some elements come through that you weren’t aware of and that you can compromise on, right?

Jim Keller:        That’s absolutely correct.  We typically think of mediators as being lawyers, and I   am a lawyer and a mediator, so I can apply my legal background when I mediate But you don’t have to be a lawyer to mediate.  That’s another thing that’s a little bit unusual and sometimes misunderstood.  People thing you have to be a lawyer and it has to be in a legal setting.  Actually there are very effective mediators who are not lawyers, either not practicing lawyers or perhaps previously in their career they were lawyers but have moved on and no longer are actively practicing law.

Question:          Mr. Keller you've heard the phrase “let's agree to disagree.”  If someone takes part in mediation, might there be a situation where there's no winning, there's no losing.  You just kind of agree to disagree.  Could that be an outcome of mediation?

Mr. Keller:       Absolutely.  I just mediated a case on Monday that we spent all day, the lawyers came in from around the country. Unfortunately the matter did not resolve, but that is only one aspect of what I had hoped to accomplish in the mediation.  The other part is to at least crystallize the issues that the parties cannot yet come together on, the issues they can agree to disagree on. But you have to at least understand the parameters of what the dispute is, what the impediments are and what are the barriers are to being able to get through it.   Once you get those crystallized, although the parties may not want to resolve the dispute at that point,  it at least gives them a skeleton going forward as they go on through discovery and it’s quite likely they are going to come back to some form of settlement in the future.

Question: Are there situations where mediation may not be the avenue you need to go down?

Mr. Keller:       I think there are very few cases that aren't subject to mediation.  Probably where it's misapplied often is in the timing of the mediation.  You’re often forced to mediate a case either because a court or some other reason,  such as the contract,  requires that it be mediated at a specified point in time. Unfortunately, that may not be the correct time for the parties to get together and mediate.  It may be too soon; it may in some instances be too late; too much money has already been spent; the parties are too entrenched and decide that there's too much at stake, so they decide they need to go forward and resolve it through court or otherwise.  So I think more of the focus should be on the timing of the mediation than whether a case is truly worthy of mediation.  I believe almost all cases are.  Now there are some cases that are just not going to settle, and for those cases the courts and arbitration are available.  There are a few cases that are going to be based on principles, new legal precedent, things where you're looking to create law, and those may not be appropriate for mediation either because  mediation is a confidential process  and it's not going to set precedent.  So there are instances where I would suggest mediation may not be appropriate -- but those are rare.  For most cases -- the lion's share --mediation could be a very effective means of trying to get it resolved short of the ultimate, a trial.

Question: By and large are judges willing to ask for the parties to take part in mediation?

Mr. Keller:       I think that really varies and my ADR (Alternative Dispute Resolution) committee has looked into that from time to time. We continue to encourage courts to actively engage in sponsoring ADR, and mediation in particular, as an alternative. But I think that really varies by court and varies by judges.  If you're in federal court, certainly in the State of Missouri,  almost without question the case is going to be sent to mediation at some point and typically pretty early in the discovery process. The federal court system embraces it. It's actually built in and very few, if any, cases can actually go to trial in the federal court that haven't already gone through a mediation process.  By contrast in state court I think it's going to vary.  Some judges may emphasize it a little more.  They may spot a case that seems appropriate for discussion of settlement and recommend that the parties go to mediation. But you won't find it quite as automatic or quite as frequently used as it is in federal court.

Question:  If someone is going to go through a dispute resolution through mediation, what type of mindset should they go into it with -- whether the judge has required you to do this or whether your lawyer has suggested it, or the prosecutor has suggested it.  What type of mindset should you go into when you sit down at the mediation table?

Jim Keller:        I think you need to keep in mind that there are always two sides to the story, and while people get ready for mediation they tend to become entrenched with their own case and often can't see the other side.  So the first thing I would suggest is keep an open mind, listen, understand that there is a differing point of view. Don't look to highlight the differences, look to highlight the common ground.  You have to build from somewhere, so if you start with an open mind you can start to see that there may be things that the two sides can agree on.  They may have some common ground that they can build upon.  That's what I would encourage parties to start to look for, because once you can get that, it gives some basis then to go forward and perhaps  ultimately get the matter resolved.

Question:  If you're asked to take part in mediation, should you be surprised if it takes place in someone's office or in a law school rather than in a courtroom?

Jim Keller:        A mediation almost never, in my opinion, takes place in a courtroom.  It could, but mediations much more typically take place at the mediator's office or at some other place.  They can be at the office of one of the parties involved; they can take place in a home.  There really is no parameter for where mediation will take place.  But I think most people prefer that a mediation take place at what they call "a neutral venue" which often is the mediator's office or some place other than where the parties live or where the parties work. This way you can kind of create a neutral ground, and neither party feels that they're disadvantaged by the setting.

Ending statement: Our guest has been Jim Keller with Herzog Crebs Law Firm in St. Louis.  The Law in Your Life provides general information about the law for the public for your specific legal needs.  Remember, you can only get legal advice from your attorney.  We hope you've enjoyed this segment.  If you have any suggestions for future podcast topics, let us know here at Mobar.org.  I'm Shelly Tucker for the Missouri Bar and Law in Your Life.

Free Legal Help Available to May Storm Victims

LAUREN PERKINS ALLEN, Federal Disaster Assistance Program, Randy James and Associates Law Firm, Lee’s Summit

Question 1 : The early to mid-May storms that swept through Missouri and the southern part of the state did a lot of damage, so much so that the federal government has declared 46 counties eligible for federal disaster assistance.  That’s quite a lot of people.  What does that mean…how do those people know if they are eligible for that help?

Question 2: It’s understood that there are going to be a lot of questions and parameters that are unknown….so, Lauren, when people call that number, what are they asking for…what can they apply for?

Question 3: What I’m hearing is that when a storm victim calls that 800 number, they’re going to hear from the American Bar Association and the Missouri Bar Young Lawyers that there are areas that those victims hadn’t even thought of.

Question 4: When there are times of crisis, devastation or disaster, there are those who prey on victims. Can storm victims call the toll free number if they feel they have fallen victim to a fraud or scam?

Question 5: What type of precautions can we take now to better protect ourselves and minimize those legal problems if we become victims of a storm?

Question 6: What is that 800 number for storm victims to call for legal help and questions about disaster eligibility?

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Text Transcript of Audio Interview

Shelly Tucker:   Welcome to Law in Your Life, The Missouri Bar Broadcast for the Public.  I’m Shelly Tucker.  Our guest is Lauren Perkins-Allen with the law firm of Randy James and Associates of Lee Summit.  We’re discussing the federal government disaster assistance program.  There is an 800 number for the victims of storms to call for legal help.  That number is 1-800-829-4128. 

Lauren with the early to mid-May storms around mid-Missouri, it really swept the southern part of the state and did a lot of damage there -- so much that the federal government is declaring 46 counties eligible for federal disaster assistance.  That’s quite a lot of people.  What does that mean exactly?  How do people know if they’re eligible for that help?

Lauren Perkins Allen:           When the United States President declares a major disaster such as in this case in the southern part of Missouri, FEMA, (Federal Emergency Management Agency)  in cooperation with the American Bar Association’s Young Lawyers Division, establishes a toll-free number for disaster victims to request legal assistance.  Public assistance means assistance for the state and local governments and certain private non-profit organizations for emergency work and the repair or replacement of facilities.  Twenty-eight (28) of those counties have qualified for individual assistance, which is what The Missouri Bar Young Lawyers section has developed a hotline in cooperation with the American Bar to provide legal assistance to individuals and their households.

Shelly Tucker:            It’s understandable that there are going to be a lot of questions and a lot of parameters that are unknown, so Lauren, when people call that number what are they asking for?  What can they apply for?

Lauren Perkins Allen:            A lot of the assistance available includes securing FEMA and other government benefits for the actual disaster victim that become available in these times of disasters.  These storms hit southern Missouri May 8 through the 16th and any kind of damage to your home or property, there are benefits out there that are available and the hotline is there to be utilized by the citizens of the state of Missouri who are in these counties to call. We can help them get that assistance through the government and through FEMA as well as legal assistance regarding life, medical, property insurance claims.  We can also help with home repair contracts and contractors, replacement of wills and other important legal documents that you may have had in your home that were either lost or destroyed in the disaster.  We also are able to assist in consumer protection matters and procedures and also provide counseling on any kind of landlord/tenant problems that you’re having.  If, for instance, your apartment or your rental home is uninhabitable, we can also help facilitate any kind of counseling or issues that you may be having with your landlord and tell you how to handle that in these difficult times.

Shelly Tucker:            Lauren, what I’m hearing is that when a storm victim calls that 800 number, they’re going to hear from the American Bar Association and The Missouri Bar Young Lawyers that there are areas that those victims probably hadn’t even thought about they’re going to need assistance in.  I mean you’re bringing up areas that I hadn’t even thought of and you know the victims really aren’t even thinking about those matters at that time of all that storm damage.

Lauren Perkins Allen:            And that’s really why we have developed this program to come in and help those kinds of victims.  When a disaster strikes and your basement’s flooded and you have important documents such as a will or your insurance policy information that may be destroyed,  most people don’t remember off the top of their head what’s covered in an insurance policy and what isn’t.  There’s going to be claims that need to be made and you’re not sure where to go or how to start the process -- that is the reason why this hotline is so, so important to individuals  when the disaster strikes. They’re trying to clean up their homes and reconstruct their lives and sometimes just want to throw up their hands in the air. That’s just when all these questions that arise and we are there to help.  We can help facilitate questions about insurance claims, with getting your life back together in a legal sense from whatever documentation you may have lost.

 Shelley Tucker:        Lauren, when there are times of crisis and disaster, there are always those who want to prey on the victims. Can people call to find out how to protect themselves or what to do in case they have been a victim of a fraud or a scam?

Lauren Perkins Allen:           You have unscrupulous individuals who try to come into these areas and take advantage of people. It may be someone who needs money upfront to repair a roof or wants you to put down a sum of money to deposit to get some work done on your house. It may seem like a good idea at the time, but there are individuals out there unfortunately who come in and try to take advantage of these situations. A simple call to this 1‑800 hotline set up by The Missouri Bar can really help prevent a lot of things that  could go wrong in the aftermath of a disaster.

Shelley Tucker:          Lauren, what type of precautions can we take now to better protect ourselves and  minimize those legal problems that could come up in the wake of a storm?

Lauren Perkins Allen:            Some things to think about from a preventative standpoint would be to make sure you have secured those important documents that we all have and a lot of us keep in our home: car titles, home mortgage information, your insurance policies, any kind of health directives or wills or estate planning materials.  Another really important thing is any kind of personal identification information, Social Security card, and driver’s license. Sometimes even these essential documents that we have on us every single day get lost or destroyed. Just having copies of those kind of simple cards and that kind of information can really be helpful in putting your life back together. People need to keep those kinds of important papers in a safety deposit box or somewhere they may be able to get to them quickly in case of a tornado that’s bearing down on them, so they can take them with them as they get out of their houses.

Shelley Tucker:          Lauren, what is that 800 number for storm victims to call?

Lauren Perkins Allen:            The 800 number is set up by The Missouri Bar in Jefferson City and it is 1-800-829-4128. A recording will come on; just follow the recording and it will direct you to leave a message regarding the storm.  We need to have your contact information, your name, whatever telephone number is best to contact you, when it is best to contact you, and then just a simple statement from you about what kind of problem you’re encountering.  Once that message has been taken by The Missouri Bar it will be forwarded on to Young Lawyers in the state who are able to help and to provide advice. 

Shelley Tucker:          Our guest has been Lauren Perkins Allen with Randy James and Associates law firm of Lee Summit.  We’ve been talking about federal government disaster assistance.  The Law in Your Life provides general information about the law for the public.  For your specific legal needs remember you can only get legal advice from your attorney.  We hope you’ve enjoyed this segment.  If you have any suggestions for future podcast topics let us know at mobar.org.  I’m Shelley Tucker for the Missouri Bar and Law in Your Life.

The Best Way to Legally Organize Your Small Business

Shelley Tucker interviews Philip Krause of the Kansas City law firm of Polsinelli Shugart. Mr. Krause is also the chair of The Missouri Bar Business Law Committee.

Recorded 5-22-2009

Question 1: When a person decides to start a new business, do they need a lawyer, and if so, what kind of lawyer do they need?

Point 2: When you are starting up a new business, you are going to be calling back to that lawyer many, many times for questions, from very minor to questions that are very complex, and so you’re going to have to have a very good relationship with that lawyer.

Point 3: Bring your lawyer into your plan, so they’ll know more about your products, your services and what your goals are.

Question 4: Once you have a lawyer, what kinds of issues will you be sitting down and talking to your lawyer about regarding organizing your small business?

Point 5: Lawyers also determine how successful your business can be and will be.

Question 6: What are the key issues to consider in selecting the type of legal entity to use for a business?

Point 7: You want that relationship. You want to pick that lawyer who’s going to protect your investment, your good name, and your pocketbook and your future earnings on this business. So I can understand why the selection of that lawyer is so vital.

Question 8: What is the biggest mistake you see people make when they’re starting a business? Maybe they’re overzealous or maybe they’ve got "pie in the sky" dreams that they’re going to make a fortune and that’s not too realistic. What are the biggest mistakes?

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Text Transcript of Audio Interview

Welcome to the Law in Your Life, a Missouri Bar podcast for the public.  I'm Shelly Tucker.  Our guest is Phillip Krause with the Kansas City law firm of Polsinelli  Shughart.  Mr. Krause is also the chair of the Missouri Bar Business Law Committee.  We're discussing the best way to legally organize your small business. 

Mr. Krause, when a person decides to start up a new business, that's a good thing, but do they need a lawyer and if so, what kind of lawyer would they need?

 I believe when you're ready to start a business you definitely need a lawyer, but more than a lawyer, you need a good team of professionals, including an accountant, as early as possible in the process and they will help you avoid some commonly made mistakes from the outset.  You should find a lawyer who specializes in the area of corporate business law and if possible, you'd like to find one who has a lot of experience in doing just this, helping people start businesses.  I recommend that you should interview several lawyers.  That will help you make a better decision.  When you find a lawyer you like, make sure you're clear in understanding what the lawyer will charge you and how he will charge you and when you would be required to pay.  Another thing that I think you should do ─ absolutely even before this ─ is prepare your business plan.  That will be your roadmap.  Now a great resource is provided by the Missouri Secretary of State in their Business Services Division and online they have what they call the Small Business Advocacy Center with really good information, very understandable, and the web site is www.sos.mo.gov/business.

When you are starting up a new business you are going to be calling back to that lawyer many, many times for questions, from very minor to questions that are very complex, and so you'll need to have a very good relationship with that lawyer.

Exactly.  I think you should think of your lawyer as part of your management team, and the more your lawyer knows about your business, the better the lawyer can help you.

Bring your lawyer into your plan so they'll know more about your product, your services and what your goals are.

Exactly.  You want a relationship with your lawyer that is of the kind that says if I need to make an important decision I want my lawyer involved.  You do not want a relationship that says I'm hesitant to call my lawyer because it's just too darn expensive and it may or may not be a good investment for my business.  The client relationships that I have that work the best are when I'm really a part of the team.

So once you have chosen your lawyer, what kind of issues will you be sitting down and talking to your lawyer about regarding organizing your small business?

I like to ask right up front: What is the financial purpose for your business?  We all know business is ─ at its heart ─ to make money.  I divide them into two kinds of businesses.  One kind is a lifestyle business: I like to say it’s a long-term business for income production. In other words, the owner's desire is to make a long-term regular income from the business.  A good example of that would be a retail store.  Another kind, though, is quite different and you might say it’s a shorter term, but the idea is that you’re going to grow substantially a business and then have an exit strategy ─ typically a sale or some kind of a large transaction.  In this type of  business, the goal is not to have an income but to cash out and make a substantial return on the investment within a foreseeable period.  That often happens if you have created some kind of a new or novel product or service.  After I understand what their goal is for the business, then the next issue is: How are you going to structure it? That question is heavily dependent on the first one we just talked about.  Are you going to be a sole proprietor or do you need to create some kind of a legal entity such as a corporation, limited liability company, a partnership?  There are a myriad of kinds of entities.  And then another very important point to consider is that many businesses have some kind of a proprietary new idea or invention or a new kind of know-how and for these businesses it's key to discuss how the business is going to protect for the long term the intellectual property that will drive the business.  There could be multiple strategies such as patent, copyright or trade secrets.  Those are all key building blocks to putting together the business.  You also need to know if  there is going to be more than one owner ─ is it going to be one person, is it going to be a husband or wife, are there going to be outside investors who bring capital to the table?  All of those factors then will help determine how the business is structured.

 They'll also determine how successful it can and will be?

 Lawyers like to think that we are the key factor to make businesses successful.  We’re not, but we can help you if we do a good job helping you put it together.  We can give you the framework through which you can make your business successful.  I can tell you if that part is not done well it can certainly add to a failure of a business.

What are the key issues to consider in selecting the type of legal entity to use for a business?

There are really two categories of issues when you pick whether the business is going to be a corporation or some other type of entity or a sole proprietorship.  The two issues are: liability protection for the business owners; and secondly, how will the business and its owners be taxed.  So liability and taxation.  On the liability side, you have to make a determination whether the business  has a lot of risk factors for the ownership.  If, for example, you are simply writing articles to submit for publication, that’s not a high-risk business. But if  you’re selling a new drug, that could be a very high-risk business.  If it’s a low-risk kind of business and the liability of the owners is not too important, you might pick a partnership, or if there’s just one owner, a sole proprietor.  If there are significant risks, then other legal structures come into play, such as a corporation and limited liability companies that provide very strong liability protection for the owners.  In other words, the business is at risk for the liability of the business, but the owners are not.  In the tax category of these issues, if you don’t do anything special and you do business as a corporation, then the profits of the corporation are likely to be taxed two times. It is taxed the first time when the corporation pays taxes on its profits.  The shareholders, the owners, are also taxed when they receive dividends, so that means the profit of the enterprise gets double taxed.  That’s not necessarily inherently good or bad, it just can be expensive if it’s not appropriate and there are ways to avoid the double tax results.  Some possibilities are partnerships, or a limited liability company, or making an S corporation election for a corporation. This allows the corporation itself or the entity itself not to be a tax paying organization and instead all profits of the business are taxed directly to the owners, incidentally, whether or not those profits get paid to the owners.  So two distinct tax structures: a double level tax structure or a tax flow-through structure.  Another key issue in selecting the kind of legal entity is whether the business is going to have to raise outside money from outside investors.  Some structures are not as useful to raise outside money, others work better.  For example, a partnership tends to be less useful; a limited liability company, and particularly a corporation, are more effective to use to raise outside capital.

 You want that relationship; you want to pick the lawyer who is going to protect your investment, your good name, your pocketbook and your future earnings on this business, so I can understand why the selection of that lawyer is so vital.

 The lawyers in this area do think we have a significant value to add as you create that starting structure to run your business.

 What’s the biggest mistake you see people make when they’re starting out the business?  Maybe they’re overzealous,  or maybe they think they’ve got pie in the sky dreams, that they’re going to make a fortune and it’s not maybe too realistic.   What are some of the mistakes?

 That’s a great question.  It’s something I see often and it’s something I’m not often asked about, but when I am asked, this is what I tell people who start a business.  Presumably you’re starting a business because you’re good at something and the something you’re good at, you believe is going to earn you money. When you’re starting a business, that is a hard thing to do.  Make sure as you do it that you are focusing on the things that you do well, that you think are going to make money, and then identify the things you don’t do as well and find somebody else to do them.  The classic characteristic of entrepreneurs is that they find other things very interesting and fascinating, and often they divert their energy and their attention into areas where they are not as talented.  My recommendation is to find those things you’re not good at and find somebody else to do those.  The legal issues that a new business needs to solve often are not within the range of the talents of the business owner.  Find a good lawyer and ask the lawyer to do those things for you, and then you do the things that really will make your money.  Find a good lawyer early, then use that lawyer wisely and avoid doing those things yourself.

Fishing and the Law

Shelley Tucker Interviews Bill Turner, Fisheries Division Chief with Missouri Dept. of Conservation
Recorded 5-14-2009

#1…..Intro and Why can't a person just go out and put a fishing line in the water?

#2…..What’s the cost of a license and the penalties for fishing without a license?

#3…..What if you only go fishing once a year?

#4…..What are some of the least understood fishing regulations?

#5…..What if your neighbor has a pond….can you fish in it?

#6…..What is “noodling”…and is it legal in Missouri?

#7…..Can you catch anything on the end of your line?

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Text Transcript of Audio Interview

Shelly Tucker:   Welcome to the law in your life.  A Missouri Bar podcast for the public.  I'm Shelly Tucker.  Our guest is Bill Turner, Fisheries Division Chief at the Missouri Department of Conservation. We're discussing fishing regulations.  Mr. Turner why can't a person just go out and put a fishing line in the water and go at it?

Bill Turner:        Like everything else everything has a cost to it and it wouldn't seem that fishing probably would, but  it definitely does.  The Department of Conservation has to employ biologists and conservation agents to enforce regulations and also we operate a number of hatcheries which stock a lot of the fish around the state which people catch and so license fees go to paying for those various costs that we run into in managing our fishing resources.

Question 2:     What’s the cost of a license and the penalties for fishing without a license?

We have a number of options for fishing.  We have a one day tag for $7.00.  We also have an annual tag for $12.00 and non-residents can come into Missouri and fish for the annual fee of $40.00.  The fishing violation of not having a license is considered a Class A Misdemeanor with up to a thousand dollars and one year in jail fine.  Now that is the maximum, those fines and times are set by the courts at the time of sentencing.  And then there would also be some court costs generally added on to those fines.

Question 3:     I understand the need for a fishing license but what if you only go fishing once a year?

For once a year we have a couple of options.  One of course would be that daily tag of $7.00 and then another option is  that each year on the first weekend after the first Monday in June, we have free fishing days for that weekend.  In 2009, that’ll be June 6 and 7 and on those days everybody can fish for free.

Question 4:     What are some of the least understood fishing regulations?  I'm sure you get that question a lot that people just don't understand something about a regulation that's put before them.

Our most commonly misunderstood regulations have to do with what we call length limits.  For instance down in Lake of the Ozarks for crappie fishing, the crappie needs to be over 9 inches long in order to keep the fish. Length limits are used to manage the fishery to spread out the harvest of fish over all the people that want to come and take fish. At the same time what's critical is to sustain the population over the long term.  Those aren't easily understood by the public but they do allow us to manage the fishery for the betterment of all the people that want to fish.

Question 5:     What if the neighbor has a pond and you want to fish in it can you take part in that activity there?
You sure can.  There are a number of variations on whether you need a license or not on private impoundments.  We recognize the contribution that private landowners make to fish and wildlife resources in the state and so if you own a piece of property that has an impoundment on it you do not have to buy a fishing license.  Your neighbors that came in would need to buy a fishing license.  Also if you would happen to have bought your fish and stocked the pond with them rather than obtain the fish from the state -- in that situation also you would not need a fishing license and you would not need to follow the limits and seasons set by the state.

Question 6:     We know that noodling is illegal in Missouri.  What is it?  How do you describe noodling?

Noodling is – goes by a number of different names.  Some people call it hand fishing.  That’s the one that  probably labels it so that it’s most easily understood.  It’s generally directed towards catfish, primarily flathead catfish.  It is the catching of fish with your hands and the reason that’s possible and quite effective with flathead catfish is that these fish spawn in cavities underwater during the early summer and mid summer  and they do that because they lay their eggs in those cavities. Then the male fish guards that nest and fans the eggs with his fins in order to keep them well oxygenated with good water, and then protects the young after the eggs hatch.  And so those fish are large brood stock that are very vulnerable to people who find those cavities and who can take the fish out of them.  That’s what hand fishing is and it, it is illegal in Missouri because we need to protect those brood stock for all of the over 440,000 catfish anglers we have in this state.  It is a legal method in a number of other states, although it is legal for – in most cases – for what is called non-game fish.  And so in other states, catfish are considered what many people call a rough fish or a non-game fish and they just don’t cherish catfish in other states quite like Missourians do.  So there lesser importance put on those fish and they’re allowed to take those fish in those states by hand fishing. 

Question 7:     Mr. Turner, can you just catch anything at the end of your line while you're fishing?

Mr. Turner: Well, yes you can.  There is no restriction on what you can catch.  The restriction comes in what you can keep, so that would be certain species, for instance, our popular game fish like large-mouth bass and catfish, of course you can keep those.  However, an endangered species such as a pallet sturgeon you would not be able to keep.  Same with the various restrictions we have on length limits.  In a lake like Lake of the Ozarks, of course you can keep crappie, but you cannot keep a crappie less than 9 inches.  So it is dependent upon the fisherman to understand the regulations on the body of water they're going to fish on so that they know what's legal to keep and what not to keep.

Shelly Tucker:   Our guest has been Bill Turner, Fisheries Division chief with the Missouri Department of Conservation.  The Law in Your Life provides general information about the law for the public.  For your specific legal needs remember you can only get legal advice from your attorney.  We hope you've enjoyed the segment.  If you have any suggestions for future podcast topics, let us know here at mobar.org.  I'm Shelly Tucker for the Missouri Bar and Law in Your Life.