Blogs & Success Stories

  • CRIMINAL LAW - What to Do If You're Arrested, What If a Victim Doesn't Press Charges

    If you are arrested, there is often a tendency to want to be compliant. You believe that you are innocent and you may want to share your entire story with the police. We are certainly advocates for good police work, but at the same time you want to make sure that you have your rights protected.

    You have a right to get an attorney, someone who understands the law, can be your voice and tell your story in a way that makes sense to the police as well as to the prosecutor. Because, if you are just saying things, unfortunately, the system is set up where all the things you say can be used against you. If you say too much or if you say things in a certain way that can be twisted then you are not going to have the recourse that you’d like to have. Make sure that if you’re arrested you contact an attorney and make sure that you have your rights protected.

    If you’re charged with a crime and the victim decides that they don’t want to testify, people often wonder if that just makes the case go away.  The answer is that it doesn’t.

    Usually, the prosecutor has discretion to determine whether they want to continue to prosecute the case. And that’s going to depend on what evidence is out there. If there is other evidence that they can use to build their case, they may feel like that’s strong enough to continue to prosecute the claim. Just because the victim decides that they don’t want to testify it doesn’t mean that the case necessarily goes away. You’re going to want make sure that you have an attorney that can protect your rights.
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  • FAMILY LAW - Cost of Divorce, Ways to Reduce Costs, Spouse to Pay Attorney Fees

    Everyone who is going to go through a divorce wants to know how much it’s going to cost. The answer is, it depends on several different things; how much your spouse is going to fight you, how many assets and debts you have, and how much parenting time each spouse is going to get. Those things all contribute to how long a divorce will take as well as how much it will cost.

    In a typical divorce, there are several different pieces including negotiations, mediations, and during the discovery process there may be depositions and preparations for a trial. If you go through that entire process, it’s obviously a lot more expensive than if you’re able to settle the case earlier on in that process.

    So, one of the things that you’ll want to look at is the model that the attorney sets up. A lot of attorneys just bill for these types of cases on an hourly basis. While we do bill many of our cases on an hourly basis, we also have a flat rate model so people know they can do certain pieces of the case for a set amount of money, and that’s something that people may have more confidence in.

    People often wonder if there’s something that they can do to reduce the costs of a divorce. And the truth is, there absolutely is.

    If people come here with all of their paperwork in order, make fewer phone calls and communications via email over and over again to the attorney, it will cost less money when billing at an hourly rate.

    With all documents gathered together, we can sit down with them and lay out the process, which will take a lot less time and, therefore, cost them a lot less than someone we have to continually reach out to and say, “we need this, that and the other.” Being prepared can certainly save you a lot of money.

    One of the other questions that people have is what is a retainer and how does that work. A retainer is simply an amount of money that’s placed in a trust and that account is billed against as we go through and work on a case each month. Invoices are sent out and the money that’s in trust is swept into that account and pays for the invoices. People will need to continue to have money set aside in trust to be able to have work done on their case.

    Some people wonder if their spouse will have to pay for their attorney fees if they don’t work. The answer is, there are times when the court can order someone to pay the other spouse’s attorney fees. You can file a motion for temporary orders and request that the court order an allocation of money be given to that person in order for them to pay for their attorney fees. There are specific parameters that govern that.

    Typically, most people are going to have to pay for their own attorney fees going through litigation, and then even at the end of litigation, unless there are significant issues in the case where people are doing things intentionally to drive up costs, or intentionally being unreasonable. It’s a judge-specific issue, but we typically ask that the other side pay for attorney fees. Sometimes the court will allow it and sometimes they won’t.
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  • PERSONAL INJURY - Gaps in Treatment, PIP, UIM & UM Coverages

    If You’re Injured in a Car Accident, Don’t Do This!
    If you’ve been involved in a car accident, one of the things you need to do is get medical treatment. The goal in an auto accident case is to get you better, and to get back to a place where you were as if the accident hadn’t happened.

    Now, in reality is that going to happen?  Likely not. You’re never going to be perfectly back to the position you were in prior to the accident.  But, the goal when it comes to the law is to get you back to the place where you were, or as close to that place as possible.

    Often, one of the things people do that hurts their case and also hurts their wellbeing and their overall health is taking too much time before going to a doctor.  That’s a real problem in the case, and that’s a real problem for their health.  Something you need to do is get competent medical advice, make sure you’re following that advice, and get all of the treatment that you actually need in order to get better and healthy so you’re recovery doesn’t take as long.  Overall, that will also help your case.

    What Is PIP?  What Is the Utah State Minimum Coverage?
    When folks are involved in an auto accident, often there is some confusion as to how their medical bills are going to be paid.  There are a couple of different provisions in insurance coverage that takes care of some of the medical payments, although usually not all of them.

    The first one is personal injury protection, often called PIP, which is required coverage in the state of Utah.  It’s a no-fault provision that, regardless of who caused the accident, will kick in and cover the medical bills up to a certain amount, usually a low threshold like $3,000 or $5,000 or up to $10,000 depending on what you select and what your insurance coverage allows.

    The other coverage you would want to look at is whether your insurance has a medical pay provision, or if the other person’s insurance has it.  A medical pay provision can pay for additional medical bills prior to a settlement or anything done on the bodily injury side of things before the entire case is resolved.

    What Is UIM?  What Is UM?
    If you’ve been injured in an auto accident, one concern is how you’ll get full coverage for your injuries. Often times, in Utah, the amount of damage surpasses what the underlying coverage amount is for the person who hit you. If that person’s insurance, for example, is the low threshold in Utah, the minimum requirement is $25,000.  Many times, someone’s injuries are going to surpass that limit.  If that’s the case, you have two options.  You can accept that limit and then you would be barred from continuing to go after the person who hit you.  Or, you could go after that person individually and try to get some amount in excess of what their policy limit allows.

    If you accept the limits offer from the other insurance, usually people have what’s called underinsured motorist coverage.  That would allow you to pursue your own insurance company’s policy and receive coverage above and beyond what the torfeasor’s policy would cover.

    If somebody hits you who doesn’t have insurance, you can receive coverage if you have uninsured motorist provision on your own insurance policy.  This is a place where people can have better coverage than they realize. People ought to be looking to have higher underinsured and uninsured motorist coverage.  The insurance doesn’t cost that much money, and it’s great to have in the event that you’re hit by someone who doesn’t have a lot of insurance. 
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  • ESTATE PLANNING - Trusts & Wills, Power of Attorney, Probate Issues

    Trusts & Wills
    After someone passes away, their estate has to be probated.  Or, if that person has a trust in place, the trust can operate as an instruction manual for the people who are left behind to then operate and carry out the wishes of the person who passed away.  

    If you have a will in place, then the will goes through the process, called probate, a judge goes through and makes sure that the will is valid and allows the will to work as the instruction manual to determine where all the assets and the different things are distributed to the different heirs.

    They are two different mechanisms to do essentially similar things by taking all of an estate and dividing it up amongst the heirs or beneficiaries, whoever is designated in either that trust or that will.

    What Is a Power of Attorney?
    A power of attorney is typically used in estate planning production. Unlike most other estate planning documents that deal with things that are happening after someone dies, a power of attorney is an instrument that is used while someone is alive but not able to handle their own responsibilities.

    It could be a situation where someone is traveling outside of the United States or an area where they’re able to communicate effectively and they need to have someone to sign documents for them.  A power of attorney could provide the ability for that person to do that type of task.

    It could also be a situation where someone is incapacitated, without the mental ability to sign a document. A power of attorney could allow a person to sign or execute documents on their behalf.  A power of attorney can be very broad in its scope, or it can also be very narrow depending on the need.

    Be Cautious When It Comes to Probate
    We’ve had a few different cases that have involved probate issues where individuals have either tried to draft something themselves, or they’ve taken a form that they’ve found on the internet and have tried to fill it out.   When they have not done everything that they should have done, the children, or heirs, have ended up litigating over those things.

    Unfortunately, those types of cases can drag on and become incredibly expensive.  The people were initially just trying to save a few hundred dollars or up to a couple thousand dollars if they were doing some sort of irrevocable trust.  By doing it themselves they end up costing their heirs tens of thousands of dollars in litigation costs.

    Probate is one of those areas where an ounce of prevention is absolutely worth a pound of cure.  If you can do things proactively on the front end and do them right, you’ll prevent a lot of expense and heartache on the back end.
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  • PERSONAL INJURY - Negligence, Injured at Work, Wrongful Death

    Personal Injury – How to Establish Negligence
    In almost every law school in the country, every first year law student has to take a course called “Torts”.  Within that class, often half of the class is devoted to the subject of negligence. Negligence comprises claims such as wrongful death, slip and falls and car accidents.  Those types of claims happen from someone else’s negligence, not from an intentional act. Negligence is composed of four pieces: a duty, a breach of that duty, causation and damages.  You have to have all four pieces for there to be a valid negligence claim.
    I Was Injured on the Job.  Do I Have a Personal Injury Case?
    A question we get from time to time from clients is, if they were injured in an accident at work, if they have a personal injury claim.  There are two different aspects to these types of cases. On one side, there is the one action rule. Which means that if you’re injured on the job you’re not able to do that except through workers’ compensation.  Workers’ compensation guarantees, no matter who was at fault, you are going to get paid under a specific structure. You are not able to pursue the employer. The other side is that there can be a personal injury action even if you’re injured at work.  If the injury is caused by someone other than one of your employers or employees of that company, then you may have a third party claim which can be run like any other personal injury case.
    Wrongful Death – Can I Bring a Lawsuit Against the Negligent Party?
    If you have a loved one who has passed away as a result of someone else’s negligence, this is called a wrongful death claim.  We handle a lot of these. The claim is brought on behalf of the estate of that person who passed away and it’s also brought on behalf of the individuals who are left behind – parents, siblings, children or others.  These people also may have claims that derive from wrongful death statute in Utah and allow them to receive compensation for the lack of enjoyment they would have had if their loved one had not passed away. Not to mention all of the compensation the decedent would have been entitled to if not for the injuries: their life expectancy, future damages and all of those things that comprise a wrongful death claim.
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  • FAMILY LAW - Taxes, Divorce Decrees & Retirement Accounts

    Taxes on Alimony and Child Support
    In one of our case mediations, a question came up whether the spouse who is receiving child support and alimony will have to pay taxes on that money. As of 2019, alimony is no longer taxable to the person receiving it in the state of Utah. The person paying alimony pays as a post-tax payment on that and also pays the tax on child support. It’s important for those receiving and paying to understand the tax implications.
    Spouse Refuses to Sign a Final Divorce Decree
    Here are a couple of things to consider: First, if the parties settle the case through a stipulation and one spouse will not sign the divorce decree, the other spouse can file a motion to enforce the settlement agreement. The court can then enforce that settlement agreement and finalize the divorce. Second, if there isn’t a stipulation or settlement, you can still push the case through to a trial. If one spouse refuses to respond, unfortunately, it does become more difficult and time consuming to resolve until a divorce decree is in place.
    Splitting Retirement Accounts in Divorce
    An issue that comes up from time to time is whether a spouse will receive a fair share of their spouse’s retirement account in a divorce. This is one of the subtlest pieces of law in Utah. Basically, you split the amount that has accrued during the course of the marriage. This is done through a qualified domestic relations order, or QUADRO, as it’s often referred to, which takes the one account and splits it into two different accounts. This way, there are no immediate tax implications, and both spouses will keep them as their own retirement accounts continuing forward.
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  • BUSINESS LAW - Beware of These 3 Issues

    Here are three common legal issues faced by businesses. The key is to protect your business before things become a problem.

    1. It’s important to make sure that your human resources department and legal professionals are ready to handle issues should they arise when it comes to workplace discrimination and harassment. Hold on to résumés to show that you hire the most qualified candidates regardless of age, gender, or ethnicity.  Have your HR department hold regular trainings so your management team and employees are familiar with discrimination and harassment policies and ethics.  Firing those who violate these policies can be crucial.

    2. If a group of dissatisfied customers decided to band together and file a class action lawsuit against your company, the damage could be irreparable. Stay on top of customer issues by taking care of problems as they arise, continually asking for feedback and even positive reviews, when applicable, to maintain your personal and online reputation.

    3. Should contract or other business disputes arise with employees or other business associates, it’s a good idea to have a legal team to back you up. Good communication and ethics in daily business will also help avoid many, if not all, of these situations.
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  • BUSINESS LAW - How to Handle a Contract Dispute

    When it comes to contract law, a good business attorney has the experience to help clients with contract disputes. If one or multiple parties involved in a contract fail to uphold their side of things, then a breach of contract may have taken place. Also, if there is intentional fraud or misrepresentation, the person asserting this must prove that the other party should have known about it and that the false information was relied upon when entering into the contract.
    However, if a contract is found to be void, then the parties involved may not be held liable for breaches of that contract.
    When possible, a contract should be done in writing. Oral contracts may be enforceable—but not always. Assuming parties to the contract are not coerced and have the mental capacity to enter a contract, there are three main elements of an enforceable contract:
    1. Offer - An offer is presented that is of value to all parties.
    2. Acceptance - All parties agree to the offer.
    3. Consideration - Monetary or other compensation is stipulated.

      photo from freepik

    In order to resolve a contract dispute, there are several options:
    1. Re-read the contract to make sure there are no misunderstandings.
    2. Review the contract with the other party.
    3. Mediation
    4. Arbitration
    5. Litigation

    At Anderson | Hinkins, we have the experience and knowledge to help our clients with these types of issues. In fact, we also have the ability to write legally sound contracts that can help avoid these situations in the first place. If things have gotten to the point where disputes cannot be resolved between the parties to a contract, please reach out to us. We’ll help you get a favorable outcome to your legal obstacle.
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  • BUSINESS LAW - Which Organizational Structure Is Best for My Business?

    When forming a business, the first couple of steps to consider are: choosing a name for your business and registering your business. A good business law attorney can assist in verifying the availability of your chosen name and can ensure that it’s registered and reserved with the appropriate state agency. In addition to the legal name you choose, you may want to choose a “Doing Business As” (DBA) name. For example, consider this scenario: John Smith sets up a painting business. Rather than operate under his own name, John instead chooses to name his business: “John Smith Painting.” This name is considered a DBA.

    A corporation, nonprofit organization, limited liability company, and partnership are required to register with the appropriate state agency, and an attorney will know which organizational structure will work best for your business. Here are the main factors to consider:

    1. Tax Preferences
    2. Capitalization of the Business
    3. Whether You Plan to Issue and Trade Stock
    4. Management Structure
    5. Liability

    Choosing the correct structure provides you with a level of protection from personal liability for your business’s activities. Attorneys understand which operating documents, such as bylaws or an operating agreement, can help solidify the protection and functionality of your business.

    Finally, many businesses are required to obtain proper licenses before doing business. We typically do not assist in obtaining this license, but we can help identify the appropriate entity from which to obtain one.
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  • ESTATE PLANNING - Who Will Raise My Children If I Die?

    Often, parents don’t fully plan for what would happen if they unexpectedly passed away and left
    their children behind. If you die without a will or estate plan in place, the courts will decide who will raise your children. Likely, they will choose a family member. But if you have no close family, or if you don’t want a certain family member to be the one to raise your children, you will not have a say without a named guardian. If you prefer a family friend to be their guardian, someone who has a close relationship with your children, the courts will have no way of knowing this without an estate plan in place.

    Things to consider when it comes to selecting guardians include:

    1. How close they live to where your children currently reside (proximity).
    2. How closely their lifestyle aligns with your children’s interests.
    3. A similar religious background can help to maintain consistency for children.
    4. Taking on children is also a major financial responsibility and is important to consider.

    Additionally, an estate plan provides options to manage your children’s inheritance effectively. If not stipulated in an estate plan, available funds would be automatically distributed to your children once they turn 18 years old, whether or not they are capable of managing the inheritance properly. A minor’s trust could be established. The trustee would manage the inheritance and disbursements, not necessarily ending when the children reach the age of majority.

    It’s much easier to avoid probate and costly legal fees for your heirs by getting an estate plan in place now, and we have experience to help in either situation. There are many obstacles in life; let Anderson | Hinkins provide you with the legal solutions to overcome them.
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