January 27, 2016 In Estate Planning

Estate Planning And Divorce

Let’s talk about Estate Planning and Divorce. Will a divorce affect your Will? Over the years, many people have asked us about how a divorce will affect a Will or Estate Plan. Sometimes the question comes out of curiosity, and at other times, the person asking has just gone through a divorce. The best time to review or establish an estate plan is after the occurrence of a major life event. In fact, these are often the only times many people even think about estate planning.

Major life events may include marriage, the birth of a child, or the death of a family member. Unfortunately, divorce is also a major life.

Beneficiary and Executor Designations

Typically, married couples have their estate plans drafted at the same time, and the terms of each plan are very similar. More often than not, one spouse has named the other as the executor of his or her Estate, as well as the sole beneficiary of his or her Estate. While Tennessee law contains a statute that essentially disinherits a person’s spouse in the event of divorce, that statute does not affect beneficiary designations or the titling or re-titling of assets. Therefore, we do not advise that you rely on this statute alone.

In addition to reviewing your Will and other estate planning documents after a divorce, it is also important to review the ownership structure and beneficiary designations of any assets that will not pass under the terms of your Will, such as retirement plans or life insurance policies. Many assets, such as these, do not pass pursuant to the terms of a person’s Will, but rather will be distributed according to beneficiary designations.

Legal Guardians for Minor Children

In Tennessee, the only way to designate a legal guardian for a minor child in the event that something should happen to you is under the terms of your Will. The person you choose to designate as the guardian of your child while you are married may greatly differ from whom you would select to fulfill the role after a divorce.

Let us help you with Estate Planning and Divorce Issues

As you can see, it is extremely important to undergo a comprehensive review of your assets and estate plan in the event of a divorce. If you have recently experienced a divorce or other major life event, or if you would like us to create or review an estate plan for you, please call us at 901-372-5003. We’re ready to help you.

January 26, 2016 In Business Litigation, Civil Litigation, Contracts, General

Get it in writing: A handshake probably won’t do.

The Dangers of Unwritten Agreements

You’ve heard it before: “If it’s not in writing, it doesn’t exist.” While that is not technically true, we don’t recommend entering into an unwritten agreement or contract of any significance. If it is important to you or to your business, get it in writing. Unwritten agreements, or oral contracts, can be legally enforceable in Tennessee in certain cases, but they are extremely difficult to prove in court.

Contracts Required to be in Writing

According to a legal rule called the “statute of frauds,” there are some agreements that are required to be in writing in Tennessee, including:

An agreement to pay someone else’s debt
An agreement concerning the sale of real property or land
A lease with a term longer than a year
A contract that can’t be performed or concluded in a year
A contract for the sale of goods for over $500.00

What Should a Contract Say?

Any contract should contain the essential terms of the agreement. The contract should clearly spell out what each party is going to do in plain language. Say what you mean, and mean what you say. If you don’t clearly spell out your intentions in a contract, then you run the risk of having a judge decide what your agreement means. You wouldn’t believe the number of cases in Tennessee where courts have had to interpret contract terms and agreements because of drafting failures on the front end. Do you really want a judge telling you what your contract says?

Be Smart: Hire an Attorney During Contract Negotiations

Contract law and litigation can be complicated, but it doesn’t have to be. One way to avoid disagreements, misunderstandings, and the high cost of contract litigation is to involve an experienced lawyer during contract negotiations. Many people believe that hiring a lawyer during contract negotiations will signal distrust of the other party, but that is not true in today’s business world. It is common, and usually expected, that attorneys will be involved. We are often successful in obtaining favorable contract language for our clients that they would have never known to request had they not involved an attorney. It is sometimes a matter of knowing what to ask for, and we can help you with that.

We are not only experienced in drafting and reviewing agreements and contracts, but we are trial attorneys. Call us today at 901-372-5003 if you need help with a contract or agreement.

January 22, 2016 In Auto Accident, Civil Litigation, Personal Injury

Bad Road Conditions- Who is Liable for Car Accident?

Curious about who is responsible for an accident during bad road conditions?

Many of us in Memphis went to bed last night expecting to wake up to a Winter Wonderland. While weather experts predicted several inches of snow and most local schools and businesses announced closures in advance, what we ended up with was just a small dusting of snow. Enough to make our neighborhoods sparkle, but not even enough to build a good snowman.

However, with all the warnings on the news to stay at home and avoid the roads, you might be wondering what the law is concerning car accidents that occur in icy or snowy conditions. What if another driver slides into you, causing significant damage to your car? What about the cars you always see speeding by in icy conditions, without a care in the world? Are they excused from liability just because of the road conditions?

Drivers Are Responsible, Even in Icy or Snowy Conditions

Tennessee Code Annotated § 55-8-136 requires drivers to exercise due care “under the existing circumstances” to avoid crashing into any other vehicle.

This duty was clarified by the Tennessee Court of Appeals in the case of MacLeod v. McKenzie. In MacLeod, a driver lost control of her car in wet road conditions. While the driver argued that she was driving carefully, she admitted that she was driving at or slightly above the speed limit and that she panicked and hit the brakes when her car started to slide. The injured party argued that the driver was driving too fast for the wet condition of the road (even if she was driving the speed limit), and in panicking and losing control of the car once it started to skid. The Court stated that the question of whether a driver exercised due care under the circumstances is a question of fact, which means that a jury should decide.

So, what’s the lesson for driving in bad road conditions?

If you are involved in an accident during bad road conditions, don’t just assume that the other driver is not at fault. Icy, snowy, or wet road conditions don’t provide a “get out of jail free” card for the other driver. Drivers in Tennessee are always responsible for their actions while driving, regardless of the road conditions. If a person chooses to drive when road conditions are bad, then he or she is responsible for driving safely and avoiding collisions.

The determination of who is legally responsible for the car accident will depend on a number of factors and there may not be a clear answer. Even if the other driver was going the speed limit, he or she may still be responsible for the collision, but an insurance adjuster is unlikely to tell you that. This is why you need an experienced lawyer on your side. If you need help with a car accident that occurred in rainy, snowy, or icy road conditions, call us at 901-372-5003. We know the law and we can help you maximize your claim.

January 20, 2016 In Auto Accident, Business Litigation, Civil Litigation, Contracts, General, Personal Injury

Can I Represent Myself in General Sessions Court?

Can you represent yourself in General Sessions Court?

Yes, you may always represent yourself in any court matter – it’s called proceeding pro se. However, you may only represent yourself.

If the true party in the case is actually a corporation or limited liability company (LLC) – even if you are the sole shareholder/owner/member – then you may not represent “yourself” because, technically-speaking, a business organization is a distinct legal entity separate and apart from you as a natural person. And unless you are a lawyer, you cannot represent another person or entity, or else you would be guilty of the unauthorized practice of law, and no Judge will allow that.

Should you represent yourself in General Sessions Court?

If you are the party in the case as an individual, or as a sole proprietorship, then you may always represent yourself. The real question, though, is should you? Many people believe General Sessions Court is a “small claims court” similar to the TV court shows where two parties stand at podiums and, with great drama, show or tell the Judge whatever they want. While it is true that General Sessions Court disputes are typically limited to smaller matters under $25,000, and further that any judgment can be appealed to Circuit Court, it would be a mistake to assume that General Sessions Court is somehow informal or easy.

In many cases, litigating in General Sessions Court is easier and less expensive than litigating in Circuit Court. However, General Sessions Court is serious. All parties, even those representing themselves, must follow the Rules of Court and the Tennessee Rules of Evidence and must observe the proper rules of courtroom decorum. You cannot simply tell or show the Judge whatever you want.

So the question really is this: do you know the Tennessee Rules of Evidence? Do you know what makes a piece of evidence objectionable? Do you know how to lay a proper foundation to get a document or a witness’s testimony admitted in evidence? Attorneys are trained to know the rules and to use them to their client’s advantage. You may have a perfectly winnable case and lose it because you do not know how to properly present evidence. We’ve seen it hundreds of times.

Many people say they cannot afford an attorney, while others simply don’t want to pay an attorney to handle something they believe they can handle themselves. However, is the potential of recovering nothing on your claim – or, conversely, subjecting yourself to a judgment that will be reported to creditors – preferable to paying an attorney fee?

**Helpful Resources for pro se litigants**

If you truly can’t afford to hire an attorney, here are a few resources you may find helpful:

Rules of General Sessions Court (Shelby County)

General Sessions Court–Civil Case Forms

Attorney of the Day Courthouse Project. Each Thursday Memphis Area Legal Services hosts an advice clinic at the Shelby County Courthouse at 140 Adams Avenue in Memphis. Volunteer attorneys meet with walk-in clients and provide advice and counsel. The clinic starts at 1:30 p.m. in Room 134 of the Courthouse.

Saturday Legal Clinics. These clinics, also hosted by Memphis Area Legal Services, operate on a first come, first served basis and provide opportunity for members of the community to meet with an attorney to discuss their legal issues. Volunteer attorneys provide advice, counsel, referrals. Memphis clinics are held the second Saturday of every month at the Benjamin Hooks Main Library, 3030 Poplar Avenue, starting at 9:30 a.m. until 12:30 p.m. Covington clinics are held on a Saturday every other month at First Presbyterian Church, 403 S. Main Street, starting at 10:30 a.m. until 1:30 p.m.

We practice in General Sessions Court.

The attorneys at Patterson Bray regularly practice in General Sessions Courts in Memphis, Shelby County. We know the rules and we will use them to effectively present your case or defense to the Judge. We represent both Plaintiffs and Defendants. If you have a pending General Sessions case, or if you are thinking of suing someone in General Sessions Court, and you’d like to talk to us about it, please call us at 901-372-5003.

January 14, 2016 In Civil Litigation, Personal Injury

Dog Bite Lawyer: Loose Dogs Can Mean Strict Liability for Injuries.

Dog Bite Lawyer

More advice from a dog bite lawyer. A few days ago, we posted about dog bites that occur on the property of the dog owner and how, in order for the dog owner to be held liable, the injured person must show that the dog owner had some kind of notice of the dog’s dangerous tendencies. But what happens if, for example, you are walking down the sidewalk or enjoying a run in the park and a dog attacks you? What if your own dog breaks loose, runs away from home, and later bites a stranger down the street?

The Tennessee dog bite statute ( Tenn. Code Ann. 44-8-413) treats dog bites differently depending on where they occur. Injuries that occur when a dog is running loose in a public place result in the strict liability of the dog owner. Dog owners have a duty to keep their dogs under reasonable control at all times and to keep them from “running at large.” “Running at large” essentially means the dog is loose and uncontrolled either on public property or on someone else’s private property. Unlike in cases where a dog bite occurs on the dog owner’s property, liability for a dog “running at large” does not hinge upon whether the dog’s owner knew or should have known of any dangerous tendencies of the dog. As usual, there are exceptions to this general rule, such as when the injured person harasses or provokes the dog.

Important Points to Consider

It is a huge risk to allow your dog to run free without a leash. If your dog bites or injures another person while running free and uncontrolled, you will most likely be held liable, even if your dog has never injured or bitten anyone before. Your insurance company may or may not assign a dog bite lawyer to represent you.

If you are bitten by a dog who is running loose, you are probably entitled to compensation for your injuries by the dog’s owner. Call a dog bite lawyer. Don’t be lulled into feeling sorry for the dog’s owner, who may be frantically and actively trying to regain control of the dog. The owner will probably be very apologetic, will be very upset, and will tell you that the dog has never bitten anyone before. None of this matters, though. Most likely, the dog’s owner will have applicable liability insurance. You should not be saddled with medical expenses you incurred through no fault of your own and the Tennessee legislature has provided you with the means to achieve fair compensation. Business is business, even if you are a dog lover yourself.

I am a Dog Bite Lawyer if you need help.

If you have questions about a dog bite or other injuries caused by a dog or other animal, please call me or one of the other lawyers at Patterson Bray at 901-372-5003. We have experience representing both dog owners and people who have been injured by dogs.

January 13, 2016 In Business Litigation, Civil Litigation, Contracts, General

Can We Make Them Pay My Attorney Fees?

Can we make them pay my attorney fees? This is one of the most common questions we receive from our clients who find themselves involved in lawsuits. Unfortunately, the answer in most cases is no. Tennessee follows the “American Rule” which means that each party in a lawsuit pays their own attorney fees, no matter who wins. There are, however, exceptions to this rule. Two of the most common exceptions are as follows:
(1) Certain state and federal statutes allow the prevailing party to recover attorney fees. Examples: certain consumer protection, civil rights, and employment claims, etc.

(2) A contract provision where the parties to a contract have agreed that the prevailing party in a dispute will be entitled to recover attorney fees. Examples: leases, commercial contracts, collections, home sale contracts, etc.

Your attorney should examine the allegations in the lawsuit and any contracts that may apply to determine whether it is possible for you to recover your attorney fees. If you are a business person and you don’t have attorney fee provisions in your contracts, consider adding them. Here are some answers to additional questions we are frequently asked about attorney fees:

“This lawsuit is frivolous! Can we make them pay for all the money I have to spend dealing with this?” The standard for “frivolous” is pretty high. Even lawsuits that are eventually determined to have no merit are not necessarily frivolous. Very few cases are. Unless your case meets one of the exceptions, you probably can’t recover your attorney fees, even if you win.

“My contract provides for attorney fees. What are the chances I actually recover them?” If you are the prevailing party and you obtain a judgment, that judgment should include an award of what the judge deems a reasonable attorney fee. Your award may or may not equal what you actually paid your attorney. If your case is resolved through settlement, the attorney fee provision is often used as a negotiation point to increase the overall amount of money you recover.

“If the judge awards me an attorney fee of less than what I actually paid my lawyer, does my lawyer have to give my money back?” It depends on what your fee agreement is with your lawyer, but in most cases, the answer is probably no. Your fee agreement with your lawyer is independent of any judgment you may recover from the opposing party.

If you need help drafting an appropriate attorney fee provision for your contracts, or if you have a question about recovery of attorney fees in a lawsuit, please call us at 901-372-5003.

January 12, 2016 In Civil Litigation, Personal Injury

Apartment Complex Crime – Memphis Attorneys

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We continue to read about apartment complex shootings in Memphis and can’t help but wonder what kind of security measures were in place at these complexes. Could a more thoughtful security plan have prevented these tragic deaths and injuries?

Recent Apartment Complex Shootings in Memphis

Edison Apartments: Man Shot at Downtown Apartments

Alden Gate Apartments: Two in critical condition after shooting

Abandoned Apartment Complex: Double Shooting at Memphis Apartment Complex

Whitehaven View Apartments: Woman Shot in South Memphis Apartment Complex

Duty to Provide Reasonable Security in Tennessee

Did you know that in TN, apartment complexes usually have a duty to provide reasonable security measures? Each case is different, but in some cases, a crime victim injured on apartment complex property may be entitled to money damages from the apartment complex or its owner.

Wait a Minute— I Can Recover Against the Apartment Complex Even Though a Criminal Shot Me?

Yes, in some cases. It depends on the facts of your case and the security measures that were or were not in place at the apartment complex. Every case is unique. It is important to call an experienced apartment complex shooting lawyer to discuss your car.

We Represent Victims of Apartment Complex Shootings.

Do you have questions about a potential case against an apartment complex based on the acts of a criminal assailant? Our law firm has significant experience in this type of case. We have represented clients who have been shot at apartment complexes and we’ve helped them obtain compensation for their injuries. Not only do we have the necessary experience in this kind of case, but we treat our clients like family. You will never feel like a “file on a shelf” at Patterson Bray.

Call us today at (901) 372-5003 or email us here.

January 8, 2016 In Estate Planning

No More Tennessee Inheritance Tax

As of January 1, 2016, the Tennessee inheritance tax is repealed. What this means is that families of persons who pass away in 2016 or later will not owe any Tennessee inheritance taxes. Looking forward, estate planning in Tennessee, in many cases, will be simplified because there will no longer be a need to develop strategies to avoid the Tennessee inheritance tax.

Do I need to make changes if I already have estate planning documents in place?

Probably not, but you can simplify your current documents to eliminate language that is unnecessary now that the tax has been eliminated.

Is there a federal inheritance tax?

Yes. For 2016, the federal estate tax exemption is $5,450,000 per person, meaning that families are not taxed unless the estate of the deceased family member exceeds that amount. A married couple will therefore have an exemption of $10.9 million between them.

Tennessee Inheritance Tax Question?

We are Estate Planning and Probate Attorneys and we prepare Wills, Trusts, and other Estate Planning Documents. Please call us at 901-372-5003 if you’d like to speak with one of our attorneys.

January 7, 2016 In Civil Litigation, General, Personal Injury

Tennessee Dog Bite Cases: No “Big Dog” Exception

Our firm handles Tennessee dog bite cases. In the recent case of Moore v. Gaut, the Tennessee Court of Appeals interpreted Tennessee’s 2007 dog bite statute and declined to create a “big dog exception” to the rule generally limiting a dog owner’s liability.

In 1914, the Tennessee Supreme Court ruled that a dog owner is only liable for injuries caused by a dog if the owner knew about the dog’s vicious tendencies. In fact, contrary to popular belief, there never has been any rule that an injured person prove that a dog previously bit someone before he could recover, although that fact would certainly help to show that a dog owner knew about the tendency of his dog. In 2007, the Tennessee General Assembly enacted Tenn. Code Ann. § 44-8-413 to address and tweak the law of injuries caused by dogs. That statute created a distinction between whether injuries by a dog bite occurred on or off the dog owner’s property, for example where a dog is running loose in a neighborhood. When a dog bite occurs on the dog owner’s property, the statute clearly retains and codifies the common law requirement that the injured person prove that the dog’s owner knew or should have known of the dog’s dangerous propensities. By comparison, when a dog is running loose, there is no such requirement.

So what’s the big deal about big dogs?

Nothing according to the Tennessee Court of Appeals. In Moore v. Gaut, the plaintiff came to repair a satellite dish on the defendant dog owner’s property. The defendant had a large Great Dane, which was kept in a fenced-in area of the yard. The plaintiff did not enter the fenced-in portion of the yard where the dog was; however, while the plaintiff was walking beside the fence, the dog jumped up, leaned over the fence, and bit the plaintiff’s face. In his defense, the dog owner filed a motion for summary judgment (i.e. dismissal) by submitting a sworn affidavit stating that the dog had never bitten or attacked anyone. Since the dog bite occurred on the dog owner’s property, the Court of Appeals agreed that the dog owner was not liable because the owner had been able to show that he had no knowledge or notice that the dog had ever bitten or attacked anyone. The plaintiff, unable to dispute that testimony, urged the Court of Appeals to adopt a “big dog exception” to the rule. Specifically, the plaintiff argued that because Great Danes are an extraordinarily large breed, that the dogs are naturally dangerous based on their size, weight, and strength and that this alone should place the owner on notice of a dangerous propensity.

The Court of Appeals didn’t bite, and declined to carve out an exception for big dogs.

Moral of the Story for Tennessee Dog Bite Cases

If you are bitten or injured by a dog on the dog owner’s property, it is critical to investigate and discover whether the owner knew of the dog’s vicious or dangerous tendencies. That does not necessarily mean that you have to prove that the dog has bitten or injured someone before, but rather some knowledge of the owner of mischievous or potentially rough or dangerous behavior that might cause an injury.

We Represent Dog Bite Victims.

We accept dog bite cases. Hopefully you will never be injured by a dog, but if you are, you need a good lawyer on your side because the proof you need isn’t likely to be the sort of thing the dog owner, or his insurance company, is likely to volunteer. Our team at Patterson Bray can help you properly investigate your claim and get the information you need in order to determine if your injury is compensable under Tennessee dog bite law. If you need help, call us at 901-372-5003.

December 30, 2015 In Civil Litigation, Personal Injury

Do I Have a “Slip and Fall” Claim?

Do you have a slip and fall claim?

You slipped and fell in a store. You felt embarrassed and hoped no one saw you. All you wanted was to hurry up and get out of there. Once you reach the privacy of your car, though, you realize you are hurting pretty badly. But you’re able to drive home where you try to rest, suck it up, and tough it out. At the urging of a loved one, though, you finally give in and go to the emergency room later that night, or maybe the next day, or a couple days later, because the pain just won’t go away. Once you get to the ER, tests and x-rays show that you have a small fracture or other problem that will require follow-up care. You begin to wonder if the store is at fault, and whether you might have a claim.

This scenario isn’t uncommon. Similar thoughts go through the minds of many people who are injured in slip and fall accidents in Tennessee. To be quite honest, due to the state of the law, it can be difficult to recover for a slip and fall in Tennessee. Sometimes people who are seriously injured in a slip and fall through no fault of their own are simply unable to recover for a variety of reasons. This is why you need a good lawyer on your side as soon as possible after a slip and fall accident.

Elements of a Slip and Fall Claim in Tennessee

slip and fall lawyer To recover in a slip and fall case, in addition to the general elements of negligence, you must prove either that: (1) the condition that caused your fall was created by the property owner; or (2) the property owner had actual or constructive notice that the condition existed before your fall. It is absolutely critical that you prove the condition or object that caused the fall.

Speculation about the cause of an injury is not enough to establish liability. The Tennessee Court of Appeals, in Willis v. McDonald’s Restaurants of Tennessee, Inc., recently granted summary judgment to a McDonald’s restaurant because the plaintiff could only say that she stepped on a hard, sharp object, which caused her to fall. Because she could not identify what specifically caused her to fall, she could not prove that the restaurant either created the condition or knew or should have known about it before she fell. Therefore, McDonald’s won and the jury never even got to hear the plaintiff’s case.

Why do I need a Slip and Fall Attorney?

An attorney can increase your chances of recovery by taking immediate steps to help you gather and preserve evidence that may help you prove your claim. For example, our firm regularly sends out “spoliation letters” notifying property owners of a potential claim against them and demanding that they preserve any and all evidence concerning that claim. Nowadays, many businesses have video surveillance that can sometimes show when and how a dangerous condition was created and how long it existed before an accident.

If you are injured in a slip and fall accident, feel free to call us at 901-372-5003 or email us here. Every case is unique and our personal injury attorneys– Chris Patterson, Erin Shea, and Will Patterson— can help you navigate your particular circumstances.

What should I do if I am involved in a slip and fall?

Determine WHAT caused you to fall and document it. Take a picture or write down the specific details.
Report your accident. Don’t be embarrassed and just leave. Ask for a manager and explain what happened so that your claim is documented. Before you leave, ask for copies of the accident report and other forms created by the business in response to your report. Even if you later decide not to pursue a claim, go ahead and report your accident as soon as it happens.
Ask that any relevant video surveillance be preserved, including footage for the two (2) hour period of time before your fall.
Take photographs or video of the scene. Do not worry about the quality.
Take note of whether there are any warning signs or barricades in the area of your injury.
Write down the contact information for any witnesses. Other customers can sometimes be helpful. Write down the names of the employees in the area and of those who help you.
Take photos of your injuries.
Seek medical attention as needed.

Click here to see other Frequently Asked Questions and Answers about injury claims.