Doing Business With Us
Litigation
- Accounting Malpractice
- Alternative Dispute Resolution (ADR)
- Appellate Advocacy
- Boundary/Easement Disputes
- Catastrophic Personal Injury
- Civil Rights
- Commercial/Business Disputes
- Community Associations
- Condemnation
- Construction
- Discrimination
- Employment Matters
- Trust & Estate Disputes
- Medical Malpractice
- Qui Tam
- Real Estate Disputes
- Will Caveats
Business
- Business Formation
- Dissolution
- Operations
- Ownership Transfer
Real Estate
- Real Estate Development
- Zoning
Estate Planning
- Wills
- Trusts
- Powers of Attorney
- Advance Health Directives
- Tax Planning
- Charitable Gift Planning
- Lifetime Gift Planning
Estate Administration
- Probate
- Trust Administration
- "Executor" or "Administrator"
- Estate Disputes
- Trust Disputes
- Will Caveats
Negotiation and Alternative Dispute Resolution (ADR)
Commencing the Engagement FAQs
- Q.At what point do I know I have engaged Marshall, Roth & Gregory to help me with my legal matter?
- A.
Absent very extraordinary circumstances, the Firm undertakes the representation of a client only after the client has read and signed an Engagement Letter, and returned the signature page to our office along with any requisite retainer.
The Engagement Letter you receive from the firm typically follows one or more telephone conversations, emails or conferences with the attorney or his/her paralegal evaluating your legal matter.
Simply communicating with lawyers and staff at the Firm through these various methods does not establish or ensure and ongoing agreement to represent you. It is important to understand, however, that even if you or the Firm ultimately decide not to go forward with the engagement, any communications you have made to the attorney or paralegal are subject to the attorney-client privilege -- meaning that Marshall, Roth & Gregory will keep those communications strictly confidential and may not otherwise be compelled to reveal those communications to third parties. Again, this is true even though either you or the Firm decide not to go forward with the representation.
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- Q.What types of fee agreements are possible?
- A.
In most cases the method by which you compensate the firm for its legal services depends on the nature of the action. Generally, the firm is compensated on an "hourly" basis, the actual rate depending upon the attorney(s) and paralegal(s) assigned to your matter. For some types of cases -- primarily personal injury and civil rights matters -- the firm will charge a "contingent fee" Finally, you may be charged a "fixed fee" in certain real estate and estate planning engagements. Each of these compensation types are described in more detail below.
Hourly fees are charged at the billing rate in effect for the attorney, legal assistant or administrative assistant at the time the services are rendered. We review our billing rates annually. If any changes to those rates occur, they will be effective for services rendered on or after January 1. However, for currently active matters, the new rates will be effective for services rendered after March 31. Although rate changes are automatic, we will endeavor to notify clients having active matters prior to the time the change becomes effective. If so specified in your Engagement Letter, the hourly fees may be charged at a “Blended Rate,” which is one hourly rate that is used for all persons in the office, irrespective of who provides the actual service.
Fixed fees are offered in some matters, and represent the fees to be charged for certain specified services. Fixed fees are different from "estimates," which may be provided in hourly fee arrangements. In a fixed fee arrangement, additional fees may be charged if the information provided to us is incomplete or inaccurate, where services over and above the services ordinarily provided in the fixed fee are required or in other extraordinary circumstances.
Contingent fee arrangements, offered in some matters, provide that all or some portion of the chargeable fee will depend on the amount of money saved or recovered by us. Costs will be chargeable on contingent fee matters irrespective of the amount, if any, saved or recovered. There are limited circumstances in which we are ethically permitted to offer contingent fee arrangements.
Finally, regardless of the nature of the fee arragement, you are responsible for any "costs" which the firm incurs in the course of representing you.
Please refer to our Representation and Billing Policies for more information on what kinds of "costs" are typically involved as well further information about our fee arrangements.
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- Q.What is a "retainer"?
- A.
On most matters the Firm requires payment of a specific amount of money, a "retainer," against which the Firm will apply fees and costs as they are incurred. When a retainer is required, the Firm is not engaged until the Retainer is paid.
After any reductions for currently outstanding fees (including "advances") and costs, the retainer is deposited to the Firm's trust account, a specially-designated account called an "Interest On Lawyers' Trust Accounts" program (IOLTA). This program is regulated by the North Carolina State Bar. No interest is payable to you or this Firm on funds in the Firm’s IOLTA trust account. Rather, the interest generated on funds deposited in an IOLTA account is paid to the State Bar to fund programs for the public benefit.
At any time when a fee balance is outstanding, we may apply any portion of the trust account toward that balance, and mail you an invoice or statement reflecting this application. The invoice or statement will also reflect the amount that you must pay to replenish the funds in our trust account to the minimum level of the retainer.
It is important to understand that a retainer constitutes neither a minimum nor a maximum fee in a given matter. It serves only to ensure timely payment of fees and costs as they accrue. Indeed, upon completion of a matter, after all fees and costs have been paid, any funds remaining in our trust account from the retainer will be returned.
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- Q.What is a "Catastrophic Personal Injury"?
- A.
“Catastrophic personal injury” refers to injuries which result in death, or injuries which require significant medical treatment and which usually have a long-term or permanent effect on the injured person's life. Such injuries are often the result of a serious car or tractor-trailer accident, product failure, fire, land owner negligence or professional malpractice. When another person is at fault for such injury, you may be entitled to receive compensation for the injury.
One of the true tragedies of life is that many people are catastrophically injured, but cannot recover adequately for their injuries. Legislatures throughout the country have imposed ridiculously-low limits on "non-economic" damages such as pain and suffering. Ironically, studies indicate that huge jury verdicts are rare, and that most injury victims are under compensated. The amount of suffering that results from living a lifetime with disfiguring scars, or with a spinal cord or brain injury, is inconceivable. Our society really should do more to take care of its own -- to make sure that people who suffer catastrophic injuries do not effectively lose their right to a reasonably normal life just because an insurance company successfully lobbied for limitations in personal injury or professional malpractice actions. By misrepresenting the exceptional case as the norm, insurance companies have successfully protected their wealth at the expense of society's most vulnerable injury victims.
Attorney(s):Kip Marshall and Philip Roth
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- Q.What types of catastrophic personal injury case does your firm handle?
- A.
We provide our experience and professional counsel in such cases as:
• Fatalities
• Closed head / brain injuries
• Significant burns and scarring
• Electrocutions
• Spinal cord injuries including quadriplegia
• Multiple bone fractures
• Amputation
• Neurological disorder
• Life care planningIf you or a loved one face recovery from a catastrophic injury, seek assistance from an attorney who has experience with your type of injury, and who knows how to find every possible source of recovery. The lawyers of Marshall, Roth & Gregory litigate all types of personal injury and catastrophic injury claims including wrongful death cases. We have significant experience handling claims against the negligent driver, medical practitioner, Federal Tort Claims actions and private first and third party lawsuits. Our clients can rest assured that our most qualified and experienced lawyers are ready and able to perform.
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- Q.What type of compensation is possible?
- A.
A range of compensation is available depending on the exact circumstances under which an injury occurs. Among the more common aspects of personal injury compensation include reimbursement of your medical expenses and lost wages for time spent out of work recovering from the injury, but the potential types of compensation to which you might be entitled is much greater than just these two, again depending on the nature of the injury.
With good medical attention, the victim of a catastrophic personal injury can make an excellent recovery. But even with good medical care, the victim may require repeated surgeries, be left permanently disabled, or experiencing significant or chronic pain and suffering, or both. For example, a severely burned child may require repeated surgeries to accommodate growth, in addition to various cosmetic surgeries. A child with a bone fracture that affects a growth plate may face difficult bone-stretching procedures, and may never have normal use of an affected limb.
These injuries significantly compromise the injured person’s quality of life and may even substantially shorten the injured person's lifespan. At the same time, the spouse or parent of the spouse or parent of the victim may be required to devote a signficant amount of their time caring for the victim, resulting in a loss of income or other opportunity. Each of these injuries is potentially compensable, and it is helpful to have an attorney who understands the treatment and recovery process.
Aside from the expense of medical care, both present and future, there is the related issue of lost income. It can take many months and even years to recover from a serious injury which means time away from your work. In still more serious cases, the victim may never return to work at all, or perhaps no longer be able to work in his or her chosen job or profession and instead be forced into a lower-paying position. Regardless of whether your injury is the result of a serious motor vehicle or tractor trailer accident, defective product, construction/landowner negligence or medical malpractice, you may be entitled to recover lost wages for the time you miss work and/or diminished "earning capacity" if you can no longer work in your prior job or profession.
Attorney(s):Kip Marshall and Philip Roth
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- Q.What type of Commercial Litigation cases do we take?
- A.
MRG's attorneys have successfully litigated a vast array of commercial disputes -- typically but not always based on allegations of a breach of contract between two or more parties. But we also prosecute and defend cases involving allegations of Unfair and Deceptive Trade Practices, disputes among health care providers and/or the government, violations of non-competition agreements and other so-called business "torts."
Attorney(s):Kip Marshall and Philip Roth
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- Q.What sorts of Employer-Employee issues does your firm handle?
- A.
The relationship between an employer and its employees over the last half century has become increasingly complex. We represent both employers and employees as they strive to navigate through the labyrinth of federal and state laws and regulations, ranging from wage and hour issues like overtime and whether the individual is an "employee" or "independent contractor" for tax withholding purposes, to issues in which an employer or one of its employees is accused of some type of "disparate treatment" or "harassment" of one employee versus another employee -- or group of employees -- whether based upon the employee's age, disability, gender, family status, race or national origin, and so on.
Attorney(s): Philip Roth
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- Q.What is a Qui Tam Action?
- A.
Brought under the federal False Claims Act, qui tam lawsuits are a type of civil lawsuit that allows private citizen "whistleblowers" to assist the government in investigating and prosecuting companies and individuals engaged in defrauding the government in its numerous programs -- -- Medicare/Medicaid and defense procurement to name just two such programs. This fraud endangers patients, U.S. soldiers and others while also draining the U.S. treasury. Qui tam actions have helped the government recover billions of dollars.Attorney(s): Kip MarshallBack to Top
- Q.How does the "whistleblower" benefit from a Qui Tam action?
- A.
Back to TopRecognizing that a whistleblower may take a professional and personal risk by exposing fraud against the government, qui tam lawsuits allow whistleblowers to be financially rewarded for helping the government fight fraud.- Q.How does a "whistleblower" bring a Qui Tam action?
- A.
Back to TopUnder the False Claims Act, a private citizen may sue an individual or a company that the citizen believes is defrauding the government, and recover funds on the government's behalf. The qui tam lawsuit is filed "under seal," meaning that it is kept secret from everyone but the government. Not even the target of the investigation and the lawsuit is informed of the allegations. The case must remain under seal for at least the first 60 days, but courts usually extend the seal multiple times to give the United States sufficient time to investigate the allegations. The qui tam lawsuit and supporting documents should provide the government with detailed information about the fraud.- Q.What happens during the government investigation?
- A.
Back to TopThe government investigates the allegations, sometimes with the assistance of the whistleblower and his or her attorney, and decides whether it will intervene in the case and pursue it directly. The government intervenes in only a small percentage of qui tam lawsuits, but whistleblowers may pursue the case independently if the government chooses not to intervene.- Q.How much is the "reward" if the qui tam action is successful?
- A.
Back to TopThe amount a whistleblower may receive as a reward depends on a number of factors, including the quality of the case as presented to the United States, and the work of the whistleblower's attorney in his or her assistance to the government. If the government intervenes in the case and recovers funds through a settlement or a trial, the whistleblower, or "relator," is entitled to between 15 and 25 percent of the recovery of the actual loss. If the government chooses not to intervene in the case and the relator pursues the matter privately, the whistleblower reward is between 25-30 percent of the actual recovery. Keep in mind that the sums involved in the fraud are typically quite substantial. Moreover, Defendants found liable under the False Claims Act may have to pay as much as three times the government's actual losses together with penalties for each false claim made.- Q.I believe I have uncovered fraud against the government. What should I do?
- A.
Once a person has evidence of fraud against the government and decides to blow the whistle, that person needs to find a lawyer to represent him/her. These are typically very complex cases involving large numbers of documents. Thorough research should be done and careful consideration should be given to selecting the right attorney for the case as the work done by that lawyer will be key to the success of the qui tam case, and will be a major factor in determining whether the whistleblower will receive a reward and the amount of the reward. To better understand how Marshall, Roth & Gregory pursues False Claims and Qui Tam matters, please contact us. Clifford “Kip” Marshall and his staff in our office handles these matters. When Kip was Civil Chief of the United States Attorney’s office in the Western District of North Carolina he was responsible for overseeing the government’s investigation of false claims act cases filed in the Western District.Attorney(s): Kip MarshallBack to TopBusiness Formation FAQs
- Q.Choosing the legal form of your new business
- A.
The legal form of your company is, or should be, determined by examining a myriad of factors including, but not necessarily limited to: the number of principals who will own it, the level of business "formality" with which you are comfortable, the extent to which -- given your particular industry -- the law will allow you to insulate yourself from personal liability, and what is the most tax-advantaged form for a firm of its type. Once you reach a decision on the legal form of your business, your attorney will draft the necessary documents and file them, as may be necessary, with the appropriate governmental entitites.Attorney(s): Greg GregoryBack to Top- Q.What is my liability risk if I open my own business?
- A.
Back to TopWhen an individual opens a business, by default, the owner is a sole proprietor. The owner has unlimited liability for the obligations and wrongful acts of the business. This exposure can be quite hazardous. For example, if an employee of a sole proprietor injures another person while performing his employment duties, the owner may be held liable for that injury.- Q.What is my liability risk if I open a business with other people?
- A.
Back to TopWhen two or more individuals open a business, by default, the owners are in a general partnership. The owners have unlimited liability for the obligations and wrongful acts of the business. This exposure can be quite hazardous. For example, if one general partner incurs a large debt on behalf of the business, all partners are liable for repayment.- Q.What types of business entities limit my liability as a business owner?
- A.
Back to TopThe most popular limited liability entities are corporations and limited liability companies. For both of these entities, the owners are not personally liable for the acts or debts of the business.- Q.What is business owner indemnification?
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Back to TopBoth corporations and limited liability companies provide protection for those who manage the business. In corporations, the managers are the directors and the officers, who are often also the owning shareholders. When a director or officer is sued because of her status as a director or officer, the corporation must indemnify her against, that is, pay for, expenses and losses incurred in defending the lawsuit, so long as she was acting in good faith in the best interest of the business. In limited liability companies, those responsible for management are called managers, who are often the owning members as well. When a member or manager is sued because of his status as a member or manager, the limited liability company must indemnify him in a manner substantially the same as corporate indemnification.- Q.Can I still be personally liable as a business owner even if I have formed a corporation or limited liability company?
- A.
Back to TopIn general, the owners of corporations or limited liability companies are not personally liable for the acts or debts of the business. There are, however, some exceptions to the limited liability shield of business entities as follows:• An owner’s personal investment of capital into the business is at-risk with no guarantee of its return. If that investment is necessary to settle a lawsuit claim or pay a debt, the owner cannot get it back. However, the owner is not required to invest more to cover a claim. With limits, owners may reduce their at-risk capital by loaning money to their own business instead of investing it directly.
• If business owners do not run the business properly, a court may order a “piercing of the veil” such that the owners are personally liable for claims against the business. Factors that may lead to “piercing the veil” are failure to follow the record-keeping and report-filing requirements of the business, and, especially, commingling business and personal assets and debts.
• If the business provides a professional service, such as law, medicine, or accounting, there is no liability shield for the professional malpractice of the licensed business owner.
• If a creditor requires an owner to sign a personal guaranty for a business debt, as lenders almost always do, the owner is personally liable for repayment of that debt.
- Q.What factors should I consider when choosing a business entity”
- A.
Business owners need to consider many factors when choosing a business entity. Among those to consider are the following:• limitation of liability • tax treatment of the entity • tax treatment of the investors and employees • management structure • restrictions on transfer of ownership interests • capital structure • financing structure • formation costs • maintenance costs • requirements for record-keeping and administrative formalities • personal and family considerations of the owners • regulatory requirements • availability of employee benefits • method for resolution of deadlocks in management • ease of changing or merging the entity • type of business activity contemplated • influence of custom on entity choice
For these reasons, owners should consult their legal, accounting, and financial advisors when forming a business entity.
Attorney(s): Greg GregoryBack to TopReal Estate Closing FAQs
- Q.What is meant by the terms "Closing" or "Settlement"?
- A.
The terms, "Closing" or "Settlement," are often used interchangeably to refer to the completion of the sale and purchase of real estate, or any other sale and purchase transaction. In the standard North Carolina residential sales contract, there is a slight distinction. Settlement means the proper execution and delivery to the closing attorney of all documents necessary to complete the transaction, and the closing attorney's receipt of all funds necessary to complete such transaction. Closing means the completion of the legal process which results in the transfer of title to the property from seller to buyer, which includes the settlement, the closing attorney's receipt of authorization to disburse all necessary funds, and recordation in the Register of Deeds of the deed and deed of trust, if any. Closing follows settlement.Attorney(s): Greg GregoryBack to Top- Q.Do I have to attend my Closing?
- A.
Back to TopIn general, any individual who is signing loan documents and who is going to be an owner of the property must attend closing. However, It may be possible to complete a closing through an attorney-in-fact with a valid power of attorney authorizing the attorney-in-fact to act as agent for another. If there is a lender, the lender must approve closing with a power of attorney, and lenders frequently do not grant such approval. It may also be possible to arrange for signing elsewhere if documents can be returned by overnight delivery, and the lender approves signing on a different date. Sellers more frequently do not attend closings because their documents are easier to prepare, sign, and deliver ahead of the closing.- Q.How do I deliver funds at Closing?
- A.
Back to TopUnder North Carolina law, all amounts due at closing must be in the form of either certified funds or confirmed wire transfer of funds. The funds go into a special bank account called an attorney’s trust account that holds client funds separate from other funds of the firm in accordance with regulations of the State Bar.- Q.How do I make all of the payments I am required to make during my home purchase?
- A.
Back to TopOur firm will handle all receipts and disbursements of funds made at closing through the trust account. To comply with the requirements of state law and lender closing instructions, no funds are disbursed until after the deed and deed of trust for the closing are recorded in the Register of Deeds.- Q.Who do you, as the attorney, represent at the closing?
- A.
Back to TopI represent you to the extent of ensuring that you acquire good and marketable title to the property. However, I can advise you on only legal questions concerning title to your property, title insurance, and the terms and conditions of your loan documentation. I represent the lender to the extent of assuring full compliance with its loan closing instructions. In the event of a dispute between you and the lender, I will not attempt to represent either party.I do not represent you with respect to the terms of your loan agreement with your lender (i.e. your loan amount, interest rate, conditions for later conversion or refinancing, necessity or amount of mortgage insurance, etc.). Therefore, I ask that you obtain a copy of your loan terms from your lender a sufficient amount of time prior to closing to enable you to carefully review them and promptly resolve any disagreements with the lender.
I may also represent you in any contract disputes or disagreements with the seller.
- Q.What closing services do you provide to Buyers?
- A.
Back to TopI am responsible for examining the title to the property, ensuring that the deed of conveyance and the loan documents have been properly prepared and executed, that the closing funds are properly received and disbursed pursuant to the HUD-1 Settlement Statement to be prepared by me and reviewed by you at or prior to closing, that the transaction is properly closed and the deed and deed of trust are duly recorded and that the owners’ and lender’s policies of title insurance are issued and delivered. I will furnish payoffs of the outstanding liens, along with cancellation instructions to the proper creditors; however, if the creditor does not comply with my cancellation instructions, I will not pursue the creditor without being further retained by the buyer or seller.- Q.What closing services do you provide to Sellers?
- A.
Back to TopI will frequently be requested by the sellers or their realtor to prepare the deed of conveyance and lien affidavit for the seller. North Carolina law allows me to do this work if the buyers do not object. I prepare the documents in accordance with the contract terms and do not undertake dual representation of the sellers.- Q.What is a title examination?
- A.
Back to TopA title examination starts with the current owners of the property. I determine if they have done anything to affect or impair title from the date they acquired the property to the date of the search. I note any information discovered and make plans to clear any liens, judgments, or other problems at or before closing. I then determine who was the previous owner of the property and check for actions they may have taken to impair title during their period of ownership.Normally, I continue this process for each previous owner until I complete a full title examination of the property in compliance with the North Carolina Marketable Title Act. This means that I will search the title for a period of no less than thirty years prior to closing. However, if I discover a previous title insurance policy on the property, I may exercise my professional discretion to “tack” to that policy. “Tacking” means that my title examination would begin with the date and time of issuance of the previous policy. Title examination does not include any investigation into zoning or building code compliance for the property. These issues are for your property inspectors to investigate.
- Q.What is title insurance?
- A.
Back to TopTitle insurance covers you against title defects on the property you are buying up to the full purchase price of the property. You pay a one time premium for the coverage for as long as you own the property. You rarely need title insurance, but if you do need it, it is very worthwhile because of the value of your property.For example, assume you buy your property and then you discover your neighbor using your driveway to access her property. You ask her to stop and she refuses. She claims she has an easement and produces a signed document from your seller granting her an easement. At this point, you can make a claim against your title insurance company for payment of the legal costs of defense and the payment of any loss you suffer if you are unsuccessful. You must use an attorney to file a claim under your title insurance policy, and I can assist in that process if it ever becomes necessary.
I will obtain a policy of owner’s title insurance in your favor and a policy of mortgagee insurance in favor of the lender. You will be required to pay the title insurance premium. I will do my best to obtain the policies at the rate most favorable to you.
- Q.Do I need a new survey?
- A.
Back to TopLenders normally no longer require a current survey of the property because the lender’s policy of title insurance will offer coverage from loss or damage resulting from a condition which would have been reflected on an accurate survey. Your title policy will not offer this coverage. If there is a recent survey available, you may obtain title insurance coverage by obtaining a survey affidavit signed by the current owners which certifies that there have been no changes to the lot dimensions or the outer dimensions of the improvements on the property since the date of that survey. If there is not an existing survey, the cost of a new one would be borne by you and would be paid at closing. You will, of course, be given copies of the survey.It is important that you understand the consequences of not ordering a survey or receiving a survey affidavit attached to a prior survey. Not obtaining a survey means that any problems which would have been revealed on a survey will become your responsibility and liability. You will not have title insurance coverage for matters of survey, and this is a frequently used exception for title insurers to deny claims.
- Q.What type of inspections do I need?
- A.
Back to TopYour real estate broker will assist you in obtaining inspections of the property you are buying. Standard inspections you may select are a home inspection by a licensed inspector, a wood-destroying insect inspection, a radon inspection, and a lead-based paint inspection. The inspections you select are your choice. If there is past termite damage, you may also choose to have a structural engineer inspect the property. You should also coordinate your inspection decisions with your lender in case there are any lender requirements.- Q.What type of homeowners insurance do I need?
- A.
You or your real estate agent should ensure that the improvements on the property will be insured against flood, fire, and other casualties with a reputable company and that the insurance will be in place as of the date and time of closing. You or your real estate agent should order the policy and see that it is delivered to my office and the lender at least three days before closing so that there will be adequate time to review it and have time to resolve any problems that may be indicated. It is very important that you give your insurance agent permission to speak with my office about your policy as soon as possible.Attorney(s): Greg GregoryBack to TopNegotiation FAQs
- Q.Isn't trying to settle a case a sign of weakness?
- A.
One of the great misconceptions under which laypersons labor within the legal system is the idea that if their lawyers even suggest the possibility of settling a dispute, the other side will immediately seize upon the suggestion as a sign of "weakness" on the other side's part.While the party on the other side may suffer from the misconception, his or her attorney will not. The vast majority of cases in our civil justice system settle rather than go to trial and that presupposes that one of the litigants' attorneys picked up the phone and broached the possibility of settlement or, alternatively, the court has mandated that the parties discuss settlement. In other words, lawyers themselves are habitutated to exploring avenues toward settlement. The days of the pure "hired-gun" litigator who takes the case to trial, come what may, are over -- or should be. Because litigation is profoundly expensive and lawyers disserve their clients by adopting such a self-serving approach to dispute resolution.
- Q.Shouldn't I have the meanest SOB in town to litigate and negotiate for me?
- A.
Back to TopThat depends on your goal. If the cost of the litigation is no object, and your true intention is to make the other party -- and its attorney -- miserable, than by all means find the most unpleasant lawyer you can. On the other hand, if you are trying to resolve your legal dispute as cost-effectively as you can, then the "bull in the china shop" many not be your smartest choice.This is not to say that you should not be firm in your negotiation positions, but one can do that without all the melodrama a bully can bring to the negotiating table. If you have ever heard the expression, "the lawyers got in the way of the settlement," a bully is often involved.
Our experience counsels that a negotiation is far more likely to succeed where each side pursues "common ground" by recognizing that, however unreasonable the other side may be, the other side does usually have a legitimate dispute to some degree. In other words, "win-win" negotiations frequently carry the day while more bombastic behavior, although occasionally and superfiically cathartic, more likely means a wasted legal fees and the promise of more litigation expenses to come.
- Q.Well, how much is my case worth?
- A.
Back to TopThat is the eternal "$25 question." There are virtually an infinite number of factors that may come into play in valuing a case: quality of the documentary or physical evidence, the nature of the case and how interesting a judge or jury will find it, the law that the court will apply to the facts of the case, the credibility of the parties and witnesses, even how "likeable" the litigants -- or their lawyers -- may be to a jury.Whether we are representing the plaintiff or defendant in a given case, one truism our litigators keep in mind is that a plaintiff's "best day" is the day he or she files the lawsuit. That is because the "complaint" initiating the lawsuit is a cleverly-crafted set of allegations that tell a compelling "story" reflecting the plaintiff's views of what happened in his or her case. From that point on, however, the defendant's lawyers will be devoted to "tearing down" that story with contrary evidence and a compelling, if different story reflecting the defendant's view of what happened. These competing versions of the story -- changing day by day based on developments in the case -- necessitate constant re-appraisals of how much the case is worth.
ADR FAQs
- Q.What is "Alternative Dispute Resolution"?
- A.
Alternative Dispute Resolution,” or "ADR," refers conceptually to various means by which parties can legally resolve their differences without resorting to going to trial much less filing a lawsuit at all.
Although there are any number of types of ADR, ADR tyically encompasses "mediation" and/or "arbitration." These terms are more fully explained below.
Attorney(s):Kip Marshall and Philip Roth
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- Q.What is the difference between "mediation" and "arbitration"?
- A.
In a Mediation the parties may, or may not, resolve their dispute. The mediator has no authority to resolve it for them. Rather, the parties reach an entirely voluntary agreement to settle their differences. Or not, in which case they proceed to litigation.
By contrast, in an Arbitration, the parties essentially put on an informal trial before the Arbitrator who, at the conclusion of the parties' evidence, decides the outcome of the case, much like a judge or jury.
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- Q.Is ADR preferable to litigation?
- A.
As the civil justice system became increasingly clogged with cases, courts and legislatures established ADR as a means to expedite resolution of disputes outside the formal court system.
Mediation is particularly cost-effective because cases frequently are resolved following a mediation and each party has much more control over the nature and scope of the resolution than what that party may otherwise have when the resolution is left to a judge or jury (or arbitrator, for that matter).
Attorney(s):Kip Marshall and Philip Roth
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- Q.What is arbitration?
- A.
"Arbitration" involves presenting a legal dispute to a neutral third party (the "arbitrator") -- outside a formal court proceeding -- and agreeing to be bound by the Arbitrator's decision once he or she has heard the evidence from both sides of the dispute.
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- Q.Is Arbitration better than going to trial?
- A.
Maybe but not certainly. At its inception, Arbitration was intended to provide parties with a resolution sooner, and at far less cost, than they would achieve litigating and trying their dispute in a court of law. Depending on the arbitrator, however, the dispute may take just as long, and cost just as much, as a trial. In part how much time and expense an arbitration will consume depends on the scope and depth of evidence-gathering (called "discovery") the arbitrator grants each party. Although difficult to generalize, the trend seems to be that arbitrators are allowing parties to conduct thorough discovery -- which means more time and expense.
Attorney(s):Kip Marshall and Philip Roth
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- Q.What is mediation?
- A.
"Mediation" is a voluntary settlement conference presided over by a professional mediator. Parties with a legal dispute can elect to mediate that dispute at any time -- even before, or instead of, filing a lawsuit. Once a lawsuit is filed, however, many courts require the parties to mediate before allowing the dispute to go to trial. In fact, such a policy is immensely successful with the vast majority of cases settling at, or shortly following, the mediated settlement conference.
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- Q.Is mediation better than going to trial? Or Arbitration?
- A.
If a case can be resolved at mediation, our experience suggests that it is almost always preferable to litigation or arbitration. The reason for this is that, because it is a purely voluntary process, the parties have the most flexibility in terms of crafting a mutually-acceptable resolution to their dispute. Courts, in particular, are comparatively limited in what relief they can grant to the winning litigant: usually, a monetary award. By contrast, a mediated resolution can include anything to which the parties agree so long as their agreement does not entail something expressly illegal. That provides a huge amount of flexibility
Another compelling reaons to resolve differences during mediation is that it eliminates risk. One cannot overstate the value of eliminating risk. No matter how good one thinks one's case is, and one's chances that a judge or jury will agree with them, the reality is that there is always a significant possibility of losing at trial. Mediation, by contrast, presents one with an opportunity to achieve "a bird in the hand" if not the "two in the bush."
Attorney(s):Kip Marshall and Philip Roth
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- Q.What is a "Community Association"?
- A.
"Community Associations" are specially organized real estate developments -- typically a condominium or subdivision -- governed by a not-for-profit "association" working within an entire statutory scheme. In North Carolina that means the North Carolina Condominium Act or North Carolina Planned Community Act, respectively. Our attorneys have covered nearly every conceivable aspect of Community Association law whether the issue involves the Association, the Developer or an owner.
- Q.How do I become a member of the "Community Association"?
- A.
Membership in a community association is mandatory and automatic with the purchase of a unit (in the case of a Condominimu) or lot (in the case of a planned community). Membership automatically terminates, morever, when you sell your unit or lot.
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- Q.What are the advantages and disadvantages of living in a "Community Association"?
- A.
Community Associations are condominiums or private subdivisions in which the property owners agree to be bound by a set of "restrictions and covenants" unique to the real estate involved. These Associasions are perceived as a way to control the "look and feel" of a neighborhood by imposing affirmative obligations on all owners of property within the association, or prohibiting certain activities which owners might otherwise be able to do outside the community association. For example, a community association might prohibit mobile homes while requiring all homes within the community to be "stick-built" or of a minimum square footage, or painted in a specific palette of colors.
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- Q.How do I know what the restrictions and covenants in the community association are?
- A.
The scope of a community association's restrictions and covenants is usually -- but not always -- set out in a so-called "Declaration of Restrictions and Covenants." The Declaration, which is a matter of public record, may be found in the office of the Register of Deeds for the county in which the community association is found.
- Q.Why should I have a Will?
- A.
A Will is typically used to give your instructions as to: (1) Where you want your property to go at your death, and (2) Who you want to handle the transfer of your property and the settling of your debts and other obligations. If you have minor children, a Will is also where you tell the Court who you want to serve as guardian of your children, if the appointment of a guardian is necessary. If you do not have a valid Will at the time of your death, the State may decide these questions for you, and the State’s answers may not be consistent with your wishes. With a valid Will, you are the one who decides where your property goes and who handles your estate matters–instead of the State of North Carolina.
- Q.What happens if I do not have a Will?
- A.
If you do not have a valid Will at the time of your death, the State may decide these questions for you under the "intestacy" laws, and the State’s answers may not be consistent with your wishes.
- Q.Can you give me an example illustrating the difference?
- A.
Let's say you are married but do not have a Will. You may believe -- and desire -- that upon your death your spouse will inherit all of your property under the intestacy laws. But this is not the case if, in addition to your spouse, you are survived by children or parents. In that case, only a portion of your property will pass under the intestacy statutes to your spouse. And if you have minor children at the time of your death, a costly guardianship proceeding will likely be required to appoint a guardian of the property, in order to handle the property passing to the minor children.
- Q.Should I name a charity as a beneficiary of my IRA?
- A.
Naming a charitable organization as beneficiary of your IRA should only be considered if you want to make charitable gifts. You may instead want to leave all your assets to your spouse, or to your children, or others--you may not want to include charities in your estate planning. And even if you want to make charitable gifts, there may be reasons you want to leave your IRAs to other beneficiaries. (For instance, in the example above, A may view the IRA as a way to trigger her nephew’s interest in retirement planning.) This is something to discuss with your estate planning attorney.
- Q.Can I designate a charity as a contingent beneficiary?
- A.
Yes. If you are considering naming a charity as a beneficiary, you must decide whether to name the charity as a primary or as a secondary (or “contingent”) beneficiary. For example, an IRA owner with a spouse will likely want to make retirement benefits available to the surviving spouse, but may want to designate a charity as the contingent beneficiary, in case the spouse is not surviving at the time of the IRA owner’s death. This should be discussed with your estate planning attorney.
- Q.Must I make a charitable gift of my enitre IRA?
- A.
No. All or a portion of an IRA can be designated to a charity, but if a portion is designated, care must be taken in order to avoid unfavorable tax consequences for the non-charitable beneficiaries. One way to avoid worrying about this complication is to go ahead and split your IRA into separate IRAs for the charitable and non-charitable beneficiaries.
- Q.What about my Roth IRA?
- A.
The income tax component of retirement plan distributions being discussed applies only to tax-deferred (“tax-qualified”) plans, and does not apply to Roth IRAs or other non-qualified plans. Distributions from inherited Roth IRAs and other non-qualified plans are not income-taxable to individual beneficiaries. Traditional IRAs and other retirement plans which consist of pre-tax contributions and associated earnings are the only plans we are talking about.
- Q.How often should I review my beneficiary designations?
- A.
Periodic review of beneficiary designations is recommended, to make sure the designations continue to conform to the retirement plan owner’s wishes. There are often changes in value of retirement plans over time, so one item to check is whether the amount of the account governed by the beneficiary designation is still consistent with your intended gift. Review of beneficiary designations is also recommended whenever you have a change in your personal situation. For instance, beneficiary designations should be carefully reviewed at the death of a spouse or other beneficiary designee.
- Q.What is the difference between an "Executor" and an "Administrator"?
- A.
An Executor is someone named in a Will and appointed by the Clerk of Court to handle the administration of a decedent’s estate. An Administrator is someone appointed by the Clerk of Court to handle the administration of a decedent’s estate when, at the time of death, the decedent either had no valid Will, or none of the Executors named in the Will are able to serve as the Executor of the decedent's estate.
- Q.What is a "will caveat"?
- A.
A "will caveat" proceeding is a lawsuit challenging the validity of a will that has been submitted for probate to the clerk of superior court. The purpose of a caveat is to determine whether the paper writing purporting to be a will is, in fact, the last will and testament of the person for whom it is propounded. At the heart of a dispute regarding an estate (or a trust) almost always centers on one or more of the parties disagreeing as to the disposition of another person’s property. The issues that arise include: -- Does the document of disposition reflect the testator’s intentions? -- Was the testator mentally or physically competent to understand the import of the well he or she executed? -- Whether the testator was coerced, forced, or unduly influenced by another to execute the controlling document, or is the will a valid manifestation of the testamentary wishes of the testator? -- Are the terms of a will contrary to North Carolina law? -- Do provisions of the document conflict with one another? A caveat proceeding is not a typical civil action, but is instead a special proceeding in rem. The Superior Court presides over the caveat proceedings before a jury, and the issue for the jury is the question of “devisavit vel non” (“he devises or not.”) Such disputes, which are becoming more and more frequent, require careful handling.
- Q.On what grounds may a Will Caveat be brought?
- A.
There are many potential grounds for a caveat. Most commonly the challenger (“caveator”) alleges that the will was procured by "undue influence" or that the testator did not have "testamentary capacity". In some cases, only one writing will be in issue; in other cases, the caveator may present another writing as the purported valid will. It is also possible for three or more writings to be in issue. The jury may decide that one of the wills is valid. If not, the estate will be administered by intestate succession. A dispute may also arise regarding the ability or competency of the personal representative (also known as an "executor") or Trustee to properly administer and fulfill their responsibilities. Trustees and personal representatives are fiduciaries. As fiduciaries they owe certain duties to the trust beneficiaries, the estate and its beneficiaries. These duties are known as “fiduciary duties” and include specific duties imposed by North Carolina law and other fiduciary acts in general. Among the duties fiduciaries owe are: loyalty, disclosure and reasonable care. The duty of loyalty requires that a fiduciary may not use his position to benefit himself at the expense of the beneficiaries of the estate or trust. He or she stands in the place of the grantor or decedent and owes his undivided loyalty to the beneficiaries of the will or trust. The duty of disclosure requires the fiduciary to disclose all material facts to the beneficiaries of the trust or estate. The duty of reasonable care imposes obligations upon the fiduciary to exercise at least the degree of care that a reasonably prudent person would devote to her own affairs.
- Q.Can Marshall, Roth & Gregory help?
- A.
If you are involved in a dispute over the settling of a loved one's estate or concerned about the treatment of a family member who has become incapacitated, you need an experienced attorney who understands the laws of probate and trust, elder abuse, diminished capacity and undue influence, and who is prepared to diligently protect your or your loved one’s interests in court.
A thorough knowledge of the substantive laws governing trusts and estates and the rules of evidence and procedure are required to successfully defend or prosecute these disputes.
The lawyers of Marshall, Roth & Gregory, PC are frequently called upon to handle Will Caveats, trust contests, fiduciary claims against trustees, constructive trust claims, financial elder abuse and other trust litigation matters. If you believe that your loved one was coerced or unduly influenced in making, changing or executing a Last Will and Testament, a fiduciary is neglecting their responsibilities and duties, or that a loved one has been financially abused by someone with a power of attorney or anyone else in a position of trust, we can help.
Community Association FAQs
Attorney(s): Greg Gregory and Philip RothBack to TopAttorney(s): Greg Gregory and Philip RothBack to TopWill FAQs
Attorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopIf you intend to make gifts to charities at your death, you might want to consider using your IRA or other tax-deferred retirement plan (or a portion of it) to do so. When tax deferred (“tax-qualified”) retirement benefits are passed on to an individual, income tax liability attaches to distributions made to that person, based on his or her tax rate--and the amount reaching the beneficiary’s pocket is reduced accordingly. A notable exception to this usual income tax component of tax-qualified distributions is where the designated beneficiary is a qualified, tax-exempt charitable organization. After your death, distributions from your IRA to a tax-exempt charity are received in full by the organization--without a portion going to the IRS. So, with careful planning, you may be able to effectively increase the size of your estate available for receipt by your chosen beneficiaries, by removing the IRS as an unwanted “beneficiary” of a portion of the tax-deferred funds.Charitable Gift Planning FAQs
For example, if A leaves a $5,000 IRA to her nephew and a $5,000 bequest to her favorite charity, the total amount actually received by these beneficiaries will be reduced by the amount the nephew is required to pay in income taxes on distribution(s) from the IRA. If, instead, A switches the assets and leaves a $5,000 bequest to her nephew and the $5,000 IRA to the charity, the income tax related to IRA distributions is eliminated, and the total amount received by A’s beneficiaries is the full $10,000 of A’s assets. The income component--and potential savings--can be especially significant where a person’s non-charitable beneficiary (A’s nephew) is in a high income tax bracket. There may be state income tax savings as well.
Attorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopAttorney(s): Gay VinsonBack to TopCaveat: IRS rules and regulations and retirement plan administrators’ policies concerning retirement plan distributions are complex, and there are a number of considerations for any particular person making decisions regarding his or her retirement plan beneficiary designations. The foregoing FAQs provide generalizations only, and are not intended to provide advice for any particular retirement plan designation situation or decision. Please consult with your estate planning attorney, and with your retirement plan administrator, with respect to beneficiary designations for your tax-deferred retirement plan benefits.Attorney(s): Gay VinsonBack to TopEstate Administration FAQs
Attorney(s): Gay VinsonBack to TopWill Caveat FAQs
Attorney(s): Kip MarshallBack to TopAttorney(s): Kip MarshallBack to TopAttorney(s): Kip MarshallBack to TopBack to TopInformation on the WebsiteDisclaimer
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