Lots of court time this week – sorry if I missed your call

I had some unexpected court time this week, especially yesterday. When that happens, my usual discipline of keeping up with returning calls and responding to emails goes to heck. I’ve made an effort to get back to everybody before saying I’m done for the week – which I am – but if I did not get back to you, please call me or email me again.

I usually am pretty good about actually looking at what my spam filter catches before I delete that mailbox, but on a week like this one I may have been more likely to miss a real message that got caught there. If I did not respond to your email, please send me another one.

The Wisdom of Staying Home during a Blizzard

Well, I’m kind of a “damn the torpedoes, full speed ahead” kind of guy. It’s hard for me to admit limitations. But I just finished a round of phone calls to my children and my Mother-in-Law (age 87, but acts like 57) cancelling tonight’s planned holiday family event.

We’ve had a tradition that some time during the holidays we all get together and head to downtown Minneapolis to go through the display formerly known as the Dayton’s display, now the Macy’s display. Upstairs in the old Dayton’s department store building, since time immemorial going back to at least the 1960s, there has been a wonderful, entertaining and sometimes inspiring display. This year the theme apparently is the Nutcracker.

Earlier in the day during the first round of phone conversations the consensus seemed to be: screw the weather, let’s go anyway. Since then the snow has gotten worse. Then my son reported that his car was covered with snow with ice underneath the snow. When he tried to clear it, he broke off a windshield wiper. After that I found out that one of my daughters is at her boyfriend’s place – which is in Eagan, further away from my place here in Minnetonka than I had figured.

So on with public TV’s version of the weather channel – which at my place is Channel 13. Quite a graphic depiction of the weather radar showed the weather pattern doing a circular thing where there was no sign of it passing by. Looks more like it intends to stick around quite a while.

The storm should be over by Christmas Day. At that time we’ll discuss maybe trying to go to Macy’s another day before the display ends; apparently it runs until New years‘ Eve. I’m disappointed, however, over not being the conquering hero who figured out how to do the event in the face of the nasty adverse conditions. In my business life I have often been that hero, pulling miracle rabbits out of my hat or out of various other places. But upon having given up on the idea of going out in this storm, I am feeling relief.

There’s a whole body of literature on the subject of how if one feels relief after making a decision, that’s a good sign that it was the right decision.

Merry Christmas and Happy Holidays to you all. If you have taken the time to read all this, let me suggest that you turn off the computer now and get face to face with either a family member or a friend. If you can’t get face to face, at least try making use of that quaint and ancient device – the telephone.

Boo!

It’s a quiet day at my office. Lots of people are calling with questions, but nobody wants to actually come see me. Every other day this week, I have lots of appointments. There must be something about Halloween where people think it’s a bad day to see a lawyer.

I certainly know a few lawyers who I felt may have been vampires, and others who seemed at least borderline demonic. It might be also that lawyers as a profession are more nocturnal than those engaged in many lines of work. A few years ago the wags on KS95 were making a point of telling lawyer jokes around 6 am on the theory that the lawyers would not be up yet at that time, which for the most part I believe was true.

I just received a call from a gentleman in the State of Tennessee. He had a bankruptcy question, but I recommended that he find a lawyer from his own state to ask. Bankruptcy law is federal, but the application of it still varies widely from state to state. There are many questions of interpretation of the new law where the individual courts disagree widely. Asset exemptions are set by state law, and that can make a dramatic difference in the outcome concerning what a debtor may be allowed to keep.

Yesterday a gentleman called who had moved within the past two years from Texas to Wisconsin to Minnesota. He wants to file a bankruptcy here. There are provisions of the new law which are intended to discourage shopping for favorable exemptions by moving from state to state. Under those provisions, if this gentleman wanted to file here right now he would probably have to claim the exemptions provided for under Texas law. What a mess! I have never practiced law in Texas, but all of a sudden I may need to know something about their exemption laws. The last time that happened I made a point of consulting with a lawyer from the state in question. Every now and then I get a call from a lawyer in some other state with a similar question about Minnesota exemption laws.

This has been quite a ramble, if you have managed to keep reading to this point. All I meant to say was HAPPY HALLOWEEN.!

Change of Internet Servers in Progress Now

I hope nobody is having trouble getting email through to me today, or having trouble finding my web sites. For the next 24 hours or so there will be new settings propagating across the Internet which will be redirecting traffic for all my stuff to a new server. While this goes on, I might be missing some of your email; and it might appear that one of my sites, or some part of my sites, are down or among the missing.

Having this goes on drives me nuts, and I hope the transfer is completed soon and smoothly. Meanwhile, all I can say is that I apologize for any inconvenience.

While the transition is taking place, please use the following alternative email address to reach me: kellylawoffice@mail.popp.net.

Free Popcorn at the Courthouse – Constitution Day Honored in Shakopee

I had court in Scott County – that’s Shakopee, MN – on Monday September 17th. I headed straight for my courtroom, thinking it strange that someone had set up a theater-size popcorn machine by the entrance to the building and was obviously dishing out free popcorn. I was concentrating on how to get my client’s charge reduced. What was up with that would have to wait.

Later in the morning, after I was finished in the courtroom, I took a look at the table near the popcorn machine, and saw that it was covered with material about the Constitution and Constitution Day. I found out that the woman in charge of the table and the popcorn was one of the librarians from the Scott County Law Library. First she asked me if I wanted some popcorn. I declined. Next she asked if I wanted a free, pocket-sized copy of the U.S. Constitution. I said yes, and could I have two extra for the other two lawyers I office with.

Before I left I had received not only three free pocket-sized Constitutions, but also a tour of the Scott County Law Library. They have two computers set up where the public can access Westlaw, Lexis and Fastcase – three of the leading law research services. They also subscribed to some of the lesser research services as well. I made a mental note: If I can’t find what need the law elsewhere, maybe I should drive down there and try their resources. Before I left I also got one of the librarians to agree to perhaps checking something for me if I asked by phone, provided I was polite and respectful when I called.

I still have not seen or heard of any mention of Constitution Day except that article in the Duluth paper that I mention in my previous posting. I checked Monday’s Star Tribune – there was no mention of it. I want to commend those librarians for their efforts, and suggest that Constitution Day would be something to which we should all give more attention

Constitution Day

I’m taking a couple of days off, and I’ve headed my favorite direction: north. With my wife, my dogs and my camper.

We have the camper set up at the Grand Marais Municipal Campground. This morning was cold and rainy, but now it has cleared and the sun is out. We would usually make coffee – lots of coffee – and sit by the camper first thing in the morning. But this morning, in honor of the misty weather, we headed into town and went to a coffee shop called the Java Moose. The fellowship and the quality coffee resulted in a very rewarding morning. Today’s Duluth News Tribune had already arrived, and I found an interesting article about Constitution Day. It’s this Monday, September 17, 2007.

It seems that on September 17, 1787, the delegates to the Constitutional Convention finished their work on a draft of a Constitution for these United States. It’s not a holiday in the sense that there’s no mail or the courthouses are closed, but it does seem to be observed by several federal agencies – such as the National Archive that has the job of preserving the original document making up the Constitution and the Bill of Rights.

It is often my job to explain to a client who has been arrested for DWI what his or her constitutional rights are. I can run through them pretty fast. In fact, I think I can summarize them sometimes without stopping to take a breath. There’s the right to remain silent – which is why the questioning possible terrorists is such a hot issue. There’s the right to be presumed innocent; and the right to a jury, where all the jurors have to agree or one is considered not guilty.

One of my favorites is the right to confront and cross examine witnesses. When I get to this one I might sometimes stop, because my client has heard it before and it doesn’t sound like that big of a deal. I may take a moment to mention that prior to our constitution, in places like England, is was a rather common practice to hang someone or lob off their head after a trial that was based on written statements. For just a moment, I invite you to think about what that experience would be like.

I found that article in the Duluth paper to be educational and inspiring. Frankly, I had never heard of the observance of Constitution Day before. How could that be I am asking myself, particularly considering the business that I am in. I admit to having no excuse. I did, however, just run a search on the subject at the web site of the paper I usually read, the Star Tribune. So far there’s nothing there. I hope they at least mention it this Monday.

Preferences in Bankruptcy

I often advise my clients that if they are sure they are going to be filing a Chapter 7 bankruptcy, they should stop trying to make payments on the debts that they expect to have discharged. It is surprising how many people just don’t follow that advice, or think it doesn’t apply to them, or believe it shouldn’t apply to some particular bill that they really want to pay. Often they make such payments only to find that after the bankruptcy is filed, the Trustee is demanding that the creditor who they paid must now give the money back – back to the Trustee of course.

One of the principles of bankruptcy law is that all of the creditors are to take their losses equally. In the event that the debtor has paid an unsecured creditor $600 or more in a consumer case or $5,000 or more in a business case within the 90 day period before the case is filed, the Trustee can go to the creditor and demand that money. The trustee will recover the money and, after perhaps using some to pay administrative costs, distribute it equally on a prorata basis to all the unsecured creditors. The term for such a large payment to a creditor within the 90 days before filing is “preference.” It’s not OK for one creditor to be preferred over another.

Another type of preference is a payment made on a debt owing to an “insider.” Insiders are either close relatives or close business associates. There’s no dollar limit on this type of preference, and under Minnesota law the Trustee may be able to go back as far as six years to recover these payments. This insider thing can get very nasty, and you should be sure to disclose any possible problems in this area to your lawyer. There are some defenses to these insider claims, and your lawyer should be able to tell you if one might apply to your situation.

Lifetime Dream Fulfilled – Helping a Friend

I attended a dinner last night which was hosted by my friend and former mentor, now retired attorney Alan Stiegler. He had invited me and several others to thank us for the part we had in getting his law review note, Redemption, finally published. Being on the law review is the highest honor that a law student can have. It is a student publication that reviews and comments on the legal issues of the day, but only about the top one percent or higher of the law students get to have anything to do with it. A “note” is an article, which these days can easily run over 100 pages. Mr. Stiegler’s note, Redemption, was supposed to have been published in the 1949 edition of the University of Minnesota Law review, but it never was. It was excellent work, and it is quite clear that the reason it was kept out of the publication was religious and ethnic discrimination.

I have known Mr. Stiegler for decades, but I heard this story for the first time during a visit I had with him in March, 2007. I asked him if he still had a copy of the transcript. He did. I suggested that these days with the Internet there must be dozens of places it could be published, perhaps even my web site. A few days later he dropped off a copy of the transcript at my office. After reading it, I felt even more strongly that it should be published somewhere. I began looking into possible sites where it could be posted; but Mr. Stielger felt so encouraged by the possibilities that he picked up the phone and called the office of the University of Minnesota Law review.

It was not long before a team of law review students was helping Mr. Stiegler check the citations, retype and edit the text, and prepare the “note” for publication in the current pages of the Law Review. The final form of the note can be found by clicking this link: http://www.law.umn.edu/lawreview/v91stiegler.htm. This brings you to a page with a link to a pdf document at the bottom. That pdf document is the “note.”

My part in this was quite small. Others attending the dinner included several of the students who had been staff of the Law Review, the professor who was their faculty advisor, and the librarian who will be adding Mr. Stiegler’s article to the University of Minnesota Law School’s permanent archives. My understanding is that the librarian also had a hand in helping the students find some of the publications, now in the rare book section of the law library, which had been originally cited by Mr. Stiegler.

An injustice which took place in 1949 has been corrected, and Mr. Stiegler – a well-deserving combat veteran or World War II – is happier and more at peace as a result. I want to thank those at the University Law Review, the law library and the faculty advisers, who choose to see that this was completed.

Back from Vacation – 35W Bridge Concerns

I just got back tonight from a week up north – mostly camping at Grand Marais, right by Lake Superior. It is good for the soul, and I feel refreshed in body and mind.

My wife and I have a 1999 Coleman pop-up camper – the Sun Valley model. In my younger days I was a purist. Camping meant hanging a tiny light-weight tent from my back pack and hiking as far into the woods as I could go. I would spend days out on the trail, and the more isolated it was the better. Now, however, I have gotten used to certain amenities, such as a microwave oven, an air conditioner, a propane heater, cable TV, cell phone service and wireless Internet. I still like to hike, but I don’t think I will ever go back to camping out of a backpack.

Last night after we packed up most of our stuff so we’d be ready to buzz for home this morning, we headed for a restaurant in Grand Marais called “My Sister’s Place.” I highly recommend this place. On our way over there my cell phone rang and it was a good friend, who told me about the collapse of the 35W bridge. Shortly after we got to the restaurant, I noticed that a lot of the people there were receiving cell phone calls. I could overhear a word or two so I knew that most of the calls were about that bridge. A certain subdued mood settled over the place. I imagined that similar scenes might be taking place all over the state, or at least anywhere that people from the Twin Cities might be gathered. Several folks started making calls, obviously to check on family or friends. I made a few of those calls too, but not until after leaving the restaurant.

I have a son in law who works within a few blocks of that bridge, so my daughter – his wife – was the first person I called. He had not yet come home from work, she couldn’t get him one the phone, and she was a bit worried. Eventually he showed up and all was well. Apparently I and the customers of My Sister’s Place were not the only ones making such calls to check on friends and family, and the Twin Cities phone system got really jammed up for a while.

So tomorrow it’s back to the law. I feel that my thinking will be clearer for having taken this trip.

More to life than just the law?

After a couple of bankruptcy hearings this morning, I’m heading to Wisconsin for the weekend where I am scheduled to walk my daughter down the aisle at her wedding. I will admit that the prospect of this event is distracting me from my usual preoccupation with solving legal questions. Could it be that there are a few things in life that are more important than my law practice? I guess so, but a lot of days it is hard to keep a healthy perspective.

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