Do You Have A Business Dispute? Consider Commercial Courts.

On June 1, 2016 Indiana’s commercial courts project went live. Businesses can benefit from streamlined procedures to resolve disputes. In general, Indiana’s commercial courts can address the following types of cases:

  • Incorporation: formation, governance, dissolution, liquidation
  • Ownership: Rights, and obligations, liabilities and indemnification of limited liability company owners, corporate shareholder, and the like
  • Internal Operations: agreements involving owners, shareholders, employees, etc.
  • Disputes: issues between two or more companies in specifically enumerated areas

Commercial courts do not handle consumer, personal injury, family, and wage/hour cases, as well as other types of cases. Procedural rules unique to the commercial courts also apply. An attorney with business and commercial litigation experience can help your business sift through these issues.

Commercial Courts Established in Indiana

On June 1, 2016 the following courts began accepting specialized dockets of business cases.  Known as “commercial courts,” they are part of a pilot project in which business parties can agree to have their disputes resolved.

  • Allen Superior Civil Division Judge Craig Bobay;
  • Elkhart Superior 2 Judge Stephen Bowers;
  • Vanderburgh Superior Judge Richard D’Amour;
  • Floyd Superior 3 Judge Maria Granger;
  • Lake Superior Judge John Sedia; and
  • Marion Superior Civil Division 1 Judge Heather Welch

This pilot project, established by the Indiana Supreme Court, aims to (1) establish judicial  structures  that  will help  all court users  by  improving court efficiency;  (2)  allow  business and commercial  disputes  to  be  resolved  with expertise, technology, and  efficiency;  (3) enhance the  accuracy, consistency, and  predictability of decisions  in business and commercial cases; (4) enhance economic development  in  Indiana by furthering the efficient, predictable resolution of business and commercial law disputes; and (5) employ and encourage electronic information technologies, such  as  e-filing,  e-discovery, telephone/videoconferencing, and al employ early alternative dispute resolution interventions.

Commercial courts are relatively new, having first appeared in 1993.  They are available in about 20 states.

The Power Behind a Simple Question

Stuck in a rut? Need to brainstorm? You can do this simple exercise with a friend or colleague, or even by yourself.

  1. Ask: “What is on Your Mind?” What are you wondering, dreaming, and/or concerned about? Some people also may say, “what keeps you up at night,” but my thought is that question unnecessarily steers the response to the negative.
  2. Ask: “Why?” Prepare to spend some time on this one. It is helpful to have someone who knows you and with whom you’re comfortable in the conversation—to help define, but also to possibly challenge and then affirm your response. 
  3. State what you want
  4. Ask: What are you going to do to get what you want? I prefer trying to identify this in terms of what is the least you could do in furtherance of what you want?
  5. Ask: What do you need to stop doing?

Finally, ask for some support, it helps to have someone to check in with.

I used the process with a friend recently, concerned that I needed to be more efficient with my time in order to attract and retain the types of clients I want to work with. Among other things, I resolved to: 1) blog regularly, and 2) to unsubscribe from emails that, while perhaps interesting, distract me from my work in favor of those that provide benefit to my life and work.

Hope that helps.

United States Supreme Court: A Warrant Required for Blood Draw of Drunk Driving Arrestees

The United States Supreme Court issued a decision on June 23, 2016 that impacts citizens who have been arrested for DUI/OWI (“drunk driving”) and from whom the police want a blood sample.  “Drunk driving” involves proof that establishes the alcohol concentration of a person’s breath or blood.  Any blood or breath test is a “search” and must be therefore be reasonable under the Fourth Amendment to the United States Constitution.  What is “reasonable” always depends upon a balance between the rights of the individual and the needs of the government to maintain order.

There are also exceptions to the warrant requirement.  One such exception is a search incident to an arrest. 

In Birchfield v. North Dakota, __ U.S. __ (2016) the US Supreme Court found that, while no warrant is necessary for a breath test, the police do need one for a blood test unless a separate exception to the warrant requirement exists.  The Birchfield Court also held that criminal penalties cannot attach for the refusal to submit to a blood test. Indiana does not make it a crime to refuse to submit to a blood test; Indiana uses civil penalties (the loss of a driver’s license, fines) under its implied consent law instead.  

Birchfield could be an important case for people who find themselves under arrest for DUI/OWI and who are facing a blood test.  Those who have been arrested for DUI/OWI and had their blood drawn should seek advice from an attorney to see how the Birchfield decision might impact your defense. Click the “Schedule Now” button in the contact window alongside this post, or call Jill Acklin at 317-848-6187. 

Illegal Possession or Consumption of Alcohol is not like a Traffic Ticket — Hire an Attorney to Protect Your Rights

It’s finally summer in Indiana and time for parties, outdoor concerts and sporting events, and a long break from school. Sometimes these events end with the arrests of individuals under the age of 21 for illegal possession or consumption of alcohol by a minor (sometimes called “underage consumption/possession” or “minor consumption/possession”). If this has happened to your son or daughter, he or she probably received a summons or a ticket with the charge written on it and an order to appear in court on a certain day and time. It might be tempting to look at the ticket and figure that, just like a traffic ticket, it would be easy just to go to court on your own, admit guilt, and pay the fine. However, an illegal possession or consumption of alcohol charge is much more serious than a traffic ticket and having a lawyer from the outset is very important for someone facing this charge. A traffic ticket is an infraction or ordinance violation, but an illegal possession or consumption of alcohol charge is a Class C misdemeanor that can carry up to 60 days in jail and up to a $500 fine. And, if the consumption of alcohol occurred while operating a vehicle, the court may, and in some situations must, suspend the driver’s license for up to one year.

A defense lawyer works only for the person charged and advocates for his or her best interest.  Her sole focus is to obtain the best possible result in the case.  The State must disclose evidence to the person charged; the lawyer should review that carefully to to see what, if any, defenses might be available.   All criminal charges should be taken seriously, even if they may seem minor. Click the “Schedule Now” button in the contact window alongside this post, or call Jill Acklin at 317-848-6187. You may also email gethelp@chrismcgrathlaw.com.

Sobriety Checkpoints Hit Hamilton County–3 Things to Know

 

Wait–a sobriety checkpoint is being publicized on social media or by a big orange sign on the road? These advance warnings are designed to help police comply with the law. Here are three things you should know about Sobriety Checkpoints:

1. Sobriety Checkpoints are legal and constitutional.
Generally, for the police to pull you over, the officer must have some reasonable suspicion to believe that you have done something wrong. However, both the United States Supreme Court and the Indiana Supreme Court have held that sobriety checkpoints are legal, if they are brief, directed at combatting drunk driving, and neutral. Law enforcement agencies have developed strict criteria. (While the precise location isn’t announced in advance, in Hamilton County, Indiana, the prior checkpoints, are available at: http://www.hamiltoncounty.in.gov/503/Checkpoint-Data — note some locations recur).

2. It’s not illegal to take an alternate route to avoid a checkpoint.
If you see a checkpoint and have a safe, legal opportunity to avoid it, nothing prevents you from taking a detour.

3. If you are stopped at a checkpoint, cooperate.
If you are asked to identify yourself, simply cooperate with the request.  If the officer suspects that you are intoxicated and requests that you take a chemical test, refusing to do so carries no real benefit. When you got your Indiana driver’s license you implicitly agreed to take a chemical test if you are suspected of Operating While Intoxicated (“OWI”).  In fact, your refusal can be used as evidence of guilt. Refusing also results in suspension of your driver’s license for 1-2 years; this is above and beyond any sentence for an OWI conviction. The best practice is not to refuse the chemical test but to address any charges that may arise with an attorney later.

If you are cited or arrested for OWI or Operating a Motor Vehicle with a blood-alcohol content (BAC) of at least .08 percent, know your rights.  Click the Schedule Now button in the contact window alongside this point, or Jill Acklin at 317-848-6187.  You may also email gethelp@chrismcgrathlaw.com.  Know your options.  

Alternatives to Lawsuits for Homeowner Association Disputes

Dealing with homeowner’s association (HOA) disputes can be tough.  People just want to go home and enjoy it and their neighborhoods.  But disputes can arise, and they can be time-consuming, expensive, and frustrating for all involved.  

Alternative dispute resolution methods can help quickly resolve these kinds of issues.  These include arbitration, mediation and even online dispute resolution. Arbitration is like court but the parties typically select an arbitrator or arbitration panel, and the matter is tried in in private, instead of in a public court.  Mediation is where a neutral third party, again selected by the parties, helps the parties reach a mutually acceptable agreement to resolve their issues.  Online dispute resolution (ODR) is a small but growing area that can help smaller HOA disputes, like dues. Parties typically submit a single issue to an online platform that facilitates the negotiation process.  

Some advantages to these approaches include:

  • Parties Decide Outcome. Especially with mediation, the outcome is decided by the parties, instead of handed to them by a judge or jury.  Despite advances and experience, litigation outcomes are largely unpredictable, and can lead to unintended consequences. Control is an important hallmark of alternative dispute resolution.
  • Less Delay & Expense. Litigation is time consuming and expensive. Alternative Dispute Resolution methods are often not. And they take less time to complete.
  • Dispute is not Public Record. Typically only settlement agreements are put in writing, proceedings are not a matter of public record, like lawsuits are
  • Cooperation: Most people see solutions to HoA problems as win/win, or win/lose. The mediation process affords the opportunity to explore and fashion solutions that can maximize outcome satisfaction.

So when your neighborhood struggles with that fence, outbuilding or late paid dues, consider whether alternative dispute resolution can resolve the situation, before calling in the “big guns.”

Ruh Roh: Indiana’s RFRA

In response to a number of inquiries over the past week or so, following is some background and context for business owners regarding the Indiana Religious Freedom Restoration Act.

Indiana’s RFRA aims to prevent governmental entities of the State of Indiana from discriminating against those who exercise their religious rights. It does not authorize or provide license in any way for businesses to discriminate against gay, lesbian, bisexual, transgender, or any other, Hoosiers.

Background. 

In 1993, then-President Bill Clinton signed the Federal Religious Freedom Restoration Act. Known as the “Federal RFRA,” it allowed the federal government to substantially burden a person’s exercise of religion only if it (1) demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and (2) it demonstrates that the burden used is the least restrictive means of furthering that compelling governmental interest.

Constitutional law folks refer to this as “strict scrutiny,” one of a few different balancing tests used to determine the validity of a particular law. Law schools teach this to all first year law students, regardless of whether they intend to practice constitutional law or not. Simply put, constitutional balancing tests are conducted to make sure that the government doesn’t always win.

The Federal RFRA applies to all religions, but was enacted amidst concerns largely pertinent to the Native American community, which was experiencing points of conflict with the federal government over use of its lands—especially those parts involving religious ceremonies.

In 1997, in a case called City of Boerne v. Flores, the U.S. Supreme Court held that the Federal RFRA was unconstitutional as applied to laws passed by state and local governments. The conflict in City of Boerne was between the Catholic Archdiocese of San Antonio, which had plans to enlarge a church in Boerne, Texas and the City of Boerne, which had an ordinance that prevented the existing church building from being torn down because it was a historical landmark. After City of Boerne, the States could enact their own provisions regarding their own state laws on the point of religious freedom.

A number of states did. Some developed religious protections through state court decisions. Others, like Indiana, adopted specific laws. Courts that developed RFRA-like protections used the balancing test codified by both the federal and state laws.

Context.

One characteristic of Indiana, which seems to have touched off the vitriol both at and inside the state, has less to do with the language of the state’s RFRA than it does the fact that Indiana, both at the State and many local levels, does not recognize sexual orientation as a class protected from discrimination.

Indiana has a longstanding policy, codified in Ind. Code 22-91-12, against discriminating upon race, religion, color, sex, disability, national origin, ancestry or military service, as such is contrary to the principles of freedom and equality of opportunity and is a burden to the objectives of the public policy. It is also the policy of the state to protect employers, labor organizations, employment agencies, property owners, real estate brokers, builders, and lending institutions from unfounded charges of discrimination.

However, some other states that have RFRA laws, like Kansas, also protect sexual orientation from discrimination. The absence of a similar protection has led some to see the Indiana RFRA as creating a loophole to allow Hoosier business owners to discriminate against those in that class. This is the common “gay wedding photographer” and “cupcake” hypothetical.

In fact, Indiana’s RFRA statute is nearly the same as Federal RFRA. As of July 1, 2015, an Indiana governmental entity may substantially burden a person’s exercise of religion if it demonstrates that the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

Last Friday, lawmakers amended the law to clarify that Indiana’s RFRA does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity or United States military services; or (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military Service.

The clarification adds a couple classes to the others mentioned at the outset.

 

The RFRA is being touted as good for business by larger corporate stakeholders and the convention and sports industry.  While the RFRA looks to some like a niche issue involving the Amish, bakers and wedding photographers, its yet to be seen what happens when the discussion moves to pharmacies, doctors, and real estate, to name a few.  While the law on its face applies only to dealings between governmental entities and businesses, and does not create wholesale causes of actions or defenses, its well to note that it was modified at warp speed in the midst of the Final Four, amidst great pressure and a threatened mass corporate exodus. Some uncertainty can be anticipated, so business owners concerned about the potential impact of a decision about with whom they will do business are best to get some guidance before implementing a particular plan.

Definitions of what a small business is vary according to industry type, sales, growth, employees, ownership, gross income, net income, and profitability.  It varies by who is doing the defining (bank, SBA, VC, etc), and the list goes on.

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But while they fail at an alarming rate (80% don’t’ reach their 18 month birthday), small businesses drive the economy.  Their number has increased significantly since 1982 and small businesses have been creating more than half of all jobs in the United States since the seventies.  In fact, since 1990, corporate America eliminated 4 million jobs; small businesses added double that many to the economy. 

Paul Fouts, dean of the Ageno School of Business at San Francisco’s Ageno Golden Gate University accurately summed it up when he noted “[s]uccessful small businesses are the unsung heroes, because small business is the driving force in the economic community.” 

At first blush it seems hard to reconcile the alarmingly high failure rate with the job contribution.  But if we ask a different question, e.g. “what makes a successful small business,” the answer is clearer. 

Every day in my practice I deal with small businesses owners in a range of industries.  They are men, women, young and not so young, and ethnic backgrounds vary.  Indeed, any number of criteria can be used to differentiate them. 

But the one common denominator, uniquely and somewhat intangibly tied to success, is purpose.  One fellow expressed it in terms of being a good dad.  Another described it as his desire to inspire others to change the world.  I define my as helping others’ advancement and achievement.  Some small businesses aim to be big, others to put food on the table.  Still yet, some to provide for employees.  

What these folks do and what their companies look like may change over time.  How they do what they do may change, too.  But in the end, those who understand their purpose are best equipped to navigate the myriad variables that can grab and tear at our enterprises.  

Thanks for the photo Julia!

https://chrismcgrathlaw.com/627/

Revisiting the Three Laws of Performance

I’m a huge fan of the Three Laws of Performance, by Dave Logan and Steve Zaffron. It deals with what it takes to create sustainable change, and has lessons that apply to both individuals and institutions.

Let’s put this in context.  The three laws are set against the backdrop of what the authors refer to as our “default future,” the product of a complex set of variables inside us, or inside our organizations.  Examining that default is valuable, as it identifies opportunities for change or (better) improvement.  Application of the three laws helps us figure out how to get there.
The first law:  how people perform correlates to how situations occur to them.  It answers questions about “why people do what they do.”  Reflection on this alone can be transformative, considering research on our ability to “rewire” our own brains.
The second law:  how situations occur to people arises in language (verbal and non verbal).  It offers us insight as to “how we improve.”
The third law:  Language that is future-based, or “generative,” transforms how situations occur to people.  When we use generative language, we transform and shape the future, as opposed to simply describing what is occurring or has occurred in the past and predicting the future.
Three Laws has excellent examples to illustrate its theory and some hard acquired research to support it.  Here at the law factory, we’re using the Three Laws to build a law practice that authentically supports the advancement and achievement of our clients.  Just making that statement changes how we approach new clients, and how we counsel them.  Staying true to that sometimes requires us to make some tough choices, such as not taking on matters that are not within the firm’s four core offerings of business counsel, commercial litigation, mediation and family law.  Or adding people who share the essential value of supporting the advancement and achievement of others.
Putting the three laws on your radar seems transformative in and of itself; people thereafter tend toward trying to use generative language.  But there are deeper questions there that challenge leaders to first look inward.
How do the Three Laws play out for you?  Is it the same in all environments?