Just got back to our house (rather than stay on the Strip, we decided to rent a private home) from the first day of the ICSC RECon in Las Vegas.  Keeping in mind that I am a first timer, here are some initial impressions.

Thank goodness for the cool weather.  That made walking miles and miles easier.

The morning breakout sessions were even better than I thought they would be.  The panel on workouts gave good, practical advice for dealing with lenders in a variety of distressed situations. I learned some things I will use and I will also probably study up more and blog about what additional things I learn.

The legal special interest group session was also good with practical advice from in-house folks.  Some of the advice was fairly obvious -- keep in touch, let us know about changes, bill regularly and with sufficient detail.  The best advice I think was this: don't buy me lunch - make me want to use your firm.  I was somewhat miffed -- perhaps wrongly so -- by a large firm lawyer saying something like, "You can't compete with the guy working out of his house on price, so you have to develop expertise or make yourself stand out in other ways."  It made me feel cheap, until I learned my billing rates were higher than large companies want to pay for commodity work (not that I really do a lot of that).  It seems like law firms are racing each other to the bottom on hourly rates.  I will not do that. I charge a fair fee, be it hourly or an alternative fee arrangement; I work quickly and efficiently and make the client look good, thus adding value.  So I am comfortable with what I do, and I cannot remember the last time a client complained about my bill.  Like I say: try me once and you will not be disappointed.

http://dirtattorney.blogspot.com/2010/05/icsc-recon-day-one-thoughts-and.html

Postmortem wealth transfers to IRA beneficiaries continues to present estate planning challenges.  Although perhaps not the final word on the matter, the IRS now prevents postmortem trust reformation designed to allow trustees to treat them as designated beneficiary trusts.  The relevant ruling is PLR 201021038.

The broadness of the limited power of appointment was perhaps the most critical flaw in the subject trust.  It was too broad to be able to determine the correct measuring life.  There were other flaws as well, most notably the trust’s naming of charities as potential beneficiaries.

The tax consequences of this ruling are devastating to any similarly-flawed trust:  Beneficiaries cannot stretch out required withdrawals over the lifespan of the oldest beneficiary but would presumably have to withdraw all money from the plan within just a few years.

Unless a tax court modifies this ruling – and until it does – the bar is very high indeed for those who draft trusts for the purpose of receiving postmortem IRA distributions.  In short, get it right the first time!  I would read and reread section 401(a)(9) to ensure the trust conforms to the section’s standards precisely.  Going forward, you may also wish to give grantors an opportunity to review the terms of their trusts to ensure they conform with the changing law on this subject.  A brief look every three-to-five years is appropriate, although factors like ill health or legal developments with dramatic impact may warrant more frequent reviews.

http://www.marathonlegalblog.com/trackback/14

A lawyer for Taylor Lautner says the "Twilight" star has settled a lawsuit with an RV dealership he claims didn't deliver a $300,000 coach in time for a movie shoot.

Attorney Robert Barta said Friday that McMahon RV of Irvine, Calif. will pay $40,000 to Lautner, who will donate it to Lollipop Theater Network, a children's charity.

The 18-year-old Lautner sued the dealership Monday, saying it missed a June deadline to deliver the 2006 Affinity Country Coach for use on the set of the movie "Abduction."

Dealership owner Brent McMahon had offered to compete in a push-up contest to solve the dispute.

A phone message seeking comment on the settlement was not immediately returned.

Lautner will reprise his role as Jacob Black in the two-part "Twilight" finale.

When parties settle a case, there are good feelings all around and relief that the dispute is over. However, parties who have been disagreeable prior to settlement often remain that way after they have compromised their dispute. A recent Fifth Circuit case makes the point that it is important to think about how the settlement will be enforced should the parties go back to feuding.

In SmallBiz Pros, the parties settled a dispute which required turnover of documents among other things. They entered a Stipulation of Dismissal pursuant to Rule 41(a)(1)(A)(ii). This was a non-bankruptcy case. However, the same provision would apply under Bankruptcy Rule 7041. The Stipulation referenced a "Stipulated Settlement Order." The Court signed the Stipulated Settlement Order. However, the order did not contain "so ordered" language and did not provide for the Court to retain jurisdiction to enforce the order.

Disagreements arose and SmallBiz Pros returned to court to have MacDonald held in contempt. The District Court obliged and MacDonald appealed. The Fifth Circuit reversed, finding that the District Court lacked jurisdiction to enforce the settlement.

http://stevesathersbankruptcynews.blogspot.com/

Driving home yesterday afternoon, I was inspired to analogize safe driving practices with prudent business development.  Specifically, I likened good business judgment to following vehicles at a safe distance.  Just as following the next car too closely can result in accidents, mimicking a perceived leader in business can produce calamitous business results.

My analogy is paradoxical.  Being “safe” in business by putting distance between yourself and another leading competitor doesn’t seem very smart.  Intuitively, shouldn’t we be a tailgater, if for no other reason than to prepare to pass our competitor?  Yes, tailgating is risky, but calculated risk is what successful business is all about.

In my view, tailgating is stupid, both on the road and off.  It’s inappropriate and unnecessary risk.  The better risk is trailing at a safe distance. Although beating your competitor at his (or her) own game becomes more difficult, differentiating yourself becomes easier.  In being different, a business can both avoid repeating competitors’ mistakes and, perhaps more importantly, gain the broader market perspective required for novel (or at least rare) insight about better paths to trod.  In street parlance, you can avoid the pile up if you’re not part of it, maybe even spotting a detour with the extra time you’ve afforded yourself.

Pro se representation in divorce cases is popular.  Probably half of everyone getting divorced today will choose to represent themselves.  Money may seem like the obvious reason, because attorneys are expensive.  Then again, cost is not as important if our help is indispensible, or even greatly needed.  So what value can attorneys offer the twenty-first century pro se crowd?

It may help to examine the several factors which explain the current trend toward self-representation.  As I said, money is obviously is motivating factor, but then there’s the Internet, instant communication between friends and colleagues, the sinking repute of lawyers, and the lower birth rate.  I submit that all these factors – and there are others no doubt – combine to explain why pro se representation is increasingly popular.

A recent empirical study by Judith G McMullen and Debra Oswald corroborates my suggestions.  Their study concludes that people prefer self-representation for a variety of reasons, both financial and physiological.  Not surprisingly, those with the most to lose are most likely to seek counsel.  The study also suggests that, in general, people are adept at knowing when they need counsel.  As for the value of counsel, the study was largely inconclusive.

The wisdom of self-representation is debatable – at least in some cases – as is the definition of a “successful” divorce.  More certain is that self-representation in divorce cases will remain popular, if only because some people will never be able to pay even modest fees for legal counsel.  From a business perspective, then, the pro se trend is not necessarily lost opportunity.

On the other hand, I wonder whether, among all cases of self-representation, serious business opportunities exist.  Certainly some people choosing self-representation could afford counsel.  To the extend such people view attorneys as just another (expensive) poker in the fire, those attorneys with adaptable styles of representation may be able to win additional business.

There is some suggestion that traditional legal services actually lengthen divorce contests, and that attorneys may, at best, contribute nothing of value to non-adversarial methods of dispute resolution.  To be known as an attorney who reduces conflict while preserving what is most important to most people – getting through the divorce quickly while minimizing collateral damage – may be the go-to divorce attorney of the new century.

http://www.marathonlegalblog.com/trackback/13