Legally Educated

Knowing is Not Quite Half the Battle

A guest post from my law clerk. Next up, we’ll get the new attorney to write one. Scott’s writing below is kind (and well done), even if he does call me old. Your check is docked!

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My name is Scott Jurchisin, and I am the new law clerk at MKT Law. I went to college at Hamline University, where I majored in Legal Studies and Philosophy. I am now a second-year law student at William Mitchell College of Law. I started competing in mock trial in high school, which is when I decided I wanted to become a lawyer. I continued to compete in mock trial through college, where I was nationally recognized for my performance. One of my mock trial coaches happened to be one of Mark’s former law clerks. So during my first year of law school, when Mark was looking for a new law clerk, my former coach gave him my name. Since then, I have been working for the firm and gaining real-world experience, which law school classes are unable to provide students.

Final exams in law school are supposed to measure how prepared students are to practice law. My final exam for my Contracts course was about whether a business and a building manager had an enforceable lease. I ended up writing nearly twenty pages over the course of three hours. After working at MKT Law, PLC for Mark K. Thompson, I realize that final exams are not a measure of my preparedness to practice law, but only of my knowledge of certain subjects.

Here’s the difference: When studying for my Contracts final, I am working in a closed environment. I could look at my list of all the topics covered in class that semester (offer, acceptance, consideration, promissory estoppel, the statute of frauds, the parol evidence rule, capacity, quantum meruit, etc.) and know that I would only be tested on those, and nothing else. I knew that there would be issues dealing with contract law, and my only obligation was to spot the contracts issues and write about them until my fingers went numb.

In contrast, whenever Mark gets a new client, I do not know exactly what the issue will be. The case will most likely require me to both identify and learn about an aspect of the law I am unfamiliar with. Fortunately, I have access to several resources at work (past cases, statutes, Mark’s years of experience and knowledge) that make the assignments from Mark manageable, unlike at school, where the only tool I have is my own brain.

Since starting work at the firm, I have realized that law school exams cannot mimic this aspect of real life: where the student is completely unaware of what type of issue a client will have. Students have to know the subject of the exam or they will not be able to study for it beforehand. In the legal field, lawyers find out what the problem is and then research it. Because of this difference, final exams measure how much a student knows, while the work of an actual lawyer measures how well a lawyer learns.

This is one of the many reasons my experience with Mark has been so valuable. Working at a firm gives me an opportunity to struggle with and learn the law without being confined to a particular subject area. When Mark hands me a new file, I do not know whether the issue will be regarding employment, securities, a personal injury, default on a loan, the breaking of a contract, a failure to disclose, or contractor services. Law school does not give me the same opportunity to constantly learn and explore the law that this work experience does. Working with Mark allows me access to a resource I never had access to before: the mind of someone who has been working in business litigation for fifteen years.

While Law school exams give me an opportunity to apply my knowledge, the firm constantly gives me opportunities to learn. In a world where “no two days are the same,” as is often fondly observed by Mark, being able to learn is more important than being knowledgeable.

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Legally Educated, Litigation of Business | Business of Litigation

Risky Business—Why you Operate as an LLC or Corporation

“Whenever you see a successful business, someone once made a courageous decision.” ― Peter F. Drucker, Getting Started

Every new venture is as unique as the people trying to start it up and each new business has its own distinct needs and challenges. One thing they all have in common is the people who are willing to take risks.

There are few universal truths in anything , but one that runs through all businesses, is to make sure your personal assets are not at stake. In order for a new business to have the best chance of succeeding, it must start with a rock solid foundation that allows it to take risks and hopefully reap great rewards. In case the risk does what it is inclined to do, there must be built in protection for the risk-taking owners’ personal assets. The key to that protection is to form a business entity to run under before the first Open sign is hung.

Some for You & Some for Me

Law_Firm_ImageMost people that call me about starting up a new business already understand that running it as corporation (Inc.) or a limited liability company (LLC) is what they must do to protect their personal assets. If the business is organized as a corporation or LLC, the possibility of the owners being personally responsible for the business’s debts and liabilities is much diminished. The best way to build in this protection is to take advantage of the liability shields authorized under state law. These laws, usually statutory, authorize the creation of a separate legal entity to conduct business through that will bear the burdens that may befall. On the flip side, the Inc./LLC also bears the benefits, which the government is happy to see created since it gets to relieve you of some of the burdens of those benefits, i.e., taxes.

Personally Protected

The owners of a corporation or LLC can be protected from personal liability for the business’s debts as long as the business is formally organized, operated and maintained under their state’s laws governing businesses. This personal liability protection is commonly called a “liability shield” or “corporate shield” and can be extremely valuable if the new business does not do well.

For instance, if a business has one deal go wrong at the worst time possible (when else does it happen?) it could be financially ruinous to the company. It may force the business to file for bankruptcy. Or if things are bad enough, two or more creditors could file petition for an involuntarily bankruptcy against your company, forcing your business into bankruptcy court so the creditors would have a better chance of recouping what they are owed (at least some). Under either of these scenarios, if the liability shield has been maintained so it is intact and enforceable, your business’s creditors would be unable to get a judgment against the you as the owner personally. This helps to encourage people to take chances and start businesses, something the government sees as a valuable to society.United_States_Bankruptcy_Court_Seal

Doing it for Themselves

A number of businesses I represent seem to be increasingly formed without a lawyer’s assistance. Especially by anyone who has been involved with the ownership of an incorporated/organized small business (or LLC) before. In law school, my Corp Prof explained how you only had to fill out a few lines on a postcard, check a couple of boxes and then pay a fee to form a Minnesota corporation, I was flabbergasted! (Yeah, I said a postcard. And flabbergasted. At the time, the form was the size of a large postcard. And the State didn’t have many decent or useful websites either. I don’t have any excuse for flabbergasted).

Flying Solo

For a single owner just going out and doing her own thing, forming a corporation or LLC in Minnesota is easy and can be done without a lawyer. In fact, the page, “Starting a Business or Nonprofit” at the Minnesota Secretary of State’s website, that has some great information for startups, only mentions the word “lawyer” once, the same number of times it uses “accountant.” If you have the right forms from the Secretary of State, a link to the business filing website and a credit card that is about all you will need (You can use your checkbook, a stamp and a paper application, but it is on 81/2” X 11″ paper—larger than a postcard).

Multiples Need Counsel

If there is more than one owner, I always recommend getting an attorney involved. Usually to make sure the new business gets an operating agreement, control agreement or a buy-sell agreement in place right away that will define the owners’ mutual rights and responsibilities and address how any future disputes will be addressed and handles (a business prenup). After all, business partners get along great when they are broke and just opening the doors to an exciting, promising and unknown future. The fussing and feuding never starts until after they taste some success, want more and ain’t gonna share. Once that point is reached, it can be impossible to agree on anything, let alone how to resolve any disputes like the one going on now!

Here are some more resources to help you startup your Minnesota business so it has a solid foundation and you can feel a bit better about the risks you want to take.

Governmental Resources With More Information

 

Organizing. Planning. Financing. Licensing. Hiring. Managing. Growing.

The Minnesota Department of Employment & Economic Development’s Division’s Small Business Assistance’s website maintains a handy directory of license and permit information. SMALL BUSINESS ASSISTANCE” also puts put out numerous helpful publications for the new business, including an awesome book everyone thinking about starting a business in Minnesota should have, and it is even more awesome as a digital download: “A Guide to Starting a Business in Minnesota.” Simply essential.

In order to pay for all the awesomeness, we cannot forget about the really useful tax info (forms, schedules, instructions, etc.) at the websites for Uncle Sam and Aunt Minnie.

The Three Ds:

DEPARTMENT OF EMPLOYMENT & ECONOMIC DEVELOPMENT or DEED (MN Unemployment Insurance Program);

DEPARTMENT OF LABOR & INDUSTRY affectionately called DOLI (pronounced “Dolly”)(Worker’s Compensation & Trades Licensing for Boiler operators, Building officials, Contractors, Electricians, Elevators and more!); and last but not least:

DEPARTMENT OF COMMERCE (Licensing info for Banks, Credit Unions, Insurance, Securities, you know “commerce” stuff).

Now go forth and start your own business! (and if you get sued, I know this guy that’s a business litigator . . . I think this is that lawyer’s website).

 

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Discovered on Demand, Legally Educated, Publicly Recorded

MNCIS–Minnesota Court Information System

Court Records–More Than You’d Think

Minnesota Trial Court Public Access websites, mote commonly known as “MNCIS,” (Minnesota Court Information System), are a powerful and cost-effective tool for discovering information on anyone involved in the Minnesota trial court system. MNCIS has docket information for Minnesota civil and criminal court cases, judgment records and court calendars. All of these records can be used to determine if an individual has existing, unpaid judgments, is being sued, or has been sued, if there is a criminal court case open, at least one that has resulted in a conviction or guilty plea, if there has been a divorce, child custody case, adoption, name change, probate proceeding and what time and where a court appearance is through the court calendars, and other information.

Free (taxpayer funded) on the Internet

Although MNCIS on the web (Click HERE for Access) is not reliable enough for comprehensive searches and should not be used as your only criminal background check tool (more to come, but in the meantime enjoy this try www.mncriminals.com instead, technically still “free” but slowly and surely being overrun with ads and pay options) it can tell you if a warrant is out for someone. You only need to know the person’s name, but not necessarily even the correct spelling. When performing a search by Party name, try checking the box for Soundex-a  “sounds like” search in English for use when you do not know the proper spelling of a name).

Privacy Concerns

Although you used to be able to get more information, privacy concerns have restricted some data available over the internet on MNCIS, However, when one hand taketh the other hand giveth: A lot of the records that are not available on the web version of MNCIS can be obtained by going to a courthouse and using (for free) the court’s public access computer terminals.

As a non-exclusive example, you can get some home addresses this way with a just name search if the person has been through the court system in a civil or criminal matter. On the web-based MNCIS, you cannot get pre-conviction records (“innocent until proven otherwise”). But at the courthouse you can get the  pre-conviction records for criminal, traffic and petty misdemeanor cases. Likewise, the Violence Against Women Act, a federal law, prevents MNCIS on the internet from displaying information on harassment and domestic abuse cases, but these records can be obtained at the courthouse.  

Garbage In Means Garbage Out

There are errors, people have the same names, records are not always reliably entered or available and the search engine in MNCIS makes you appreciate Google on a whole new level. The current civil court case records are pretty reliable and accurate but be careful of how much you relay on any single source of public data always confirm the information through another source. Or three if possible.

MKT

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Discovered on Demand, Legally Educated, Litigation of Business | Business of Litigation, Publicly Recorded

LOCATING ASSETS–MINNESOTA BUSINESS FILING RECORDS

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Information Available

Businesses are generally required to maintain some records with the Minnesota Secretary of State’s office in order to enjoy the legal benefits of being a corporation or for an out-of-state company to lawfully conduct business in Minnesota.  Sole proprietors also commonly file assumed names or “doing business as” information with the Secretary of State’s office.   Secured creditors also file various secured interest documents, which may provide information regarding any liens or other secured interests in a debtors’ property.  As is true for all public record information, business-filing records are only as accurate and up to date as what was provided to the government.  That being said, a great deal of identification, location and ownership information may be obtained from the Secretary of State’s records.  

Access to Business Registration Information 

The Minnesota Secretary of State’s office is located at: 

Minnesota Secretary of State

180 State Office Building

St. Paul, MN 55155 

And may be contacted by the following means for business registration information:

Phone: (651) 296-2803, Toll Free: 1-877-551-6767 Office Hours: 8:00 A.M. to 4:30 P.M.

www.sos.state.mn.us 

A simple phone call or visit to their website will obtain information about a registered business.  Information available includes proper entity name, registered addresses for service of process (if provided), persons registered to accept service of process (if provided), business location, type of entity, good standing status, year of formation, filing numbers, etc.  All of this information may provide valuable information in locating debtors and their assets.  It is also helpful for properly effecting post judgment remedies.

Access to Secured Transaction (UCC) and Tax Lien Recordslocked money

UCC filings and tax lien filings may provide a wealth of information about particular debtors’ location and assets.  Those records are maintained by the Secretary of State’s office and are accessible in person, by mail or on the Internet.  All manners of access have a minimal processing fee associated with the documents’ retrieval, photocopying and mailing. 

The Minnesota Central Filing System is a combination of the Secretary of State’s office and 80 individual county satellite offices.  Certified searches and inquiry searches (UCC-11 requests form available at http://www.sos.state.mn.us/uccd/ucc11.pdf) can be requested from any county filing office or the Secretary of State’s office. The results provided are inclusive of all county offices.

In order to do a fully comprehensive search, it is recommended creditors’ counsel does not only rely on what is provided by the State.  A much better practice is for creditors’ or their representatives to conduct their own search of the State’s records.  The main point is to run differing name variations searches on the same company.  Of course, this may be done by driving to the Secretary of State’s office, or via its website for a yearly access fee.

MKT

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Appealing Appeals Applied, Attorneys & Lawyers & Counselors, Constitutionally Civil Rights, Contractually Bound, Discovered on Demand, Fraudulently Fooled, Legally Educated, Litigation of Business | Business of Litigation, Technically Lawful, Uncategorized

New Name–New Logo–Same Firm

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Practical Counsel | Aggressive Protection | Creative Solutions

A Blog about Litigation and Business

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Appealing Appeals Applied, Fraudulently Fooled, Legally Educated

Pretrial e-mail Scam Reports from Minnesota Court of Appeals

WARNING, SCAMMER ALERT!

The Minnesota courts website, www.mncourts.gov, reports fraudulent emails appearing to be from the a Court of Appeals has been making the rounds to in-boxes recently.  The official notice is below.

Five More Tips It’s a Fraud

1. No “complaint” originally filed with Court of Appeals

2. E-mail address not governmental

3. No “trial” in Court of Appeals

4. Poor grammar

5. No electronic communications YET from Minnesota Appellate Courts.

They play off fear and ignorance to have you bite on these e-mail scams so that you will open the attachments.  Don’t do it unless you have confirmed the e-mail from other sources first. Be diligent people!!! The fraud will never end but can be beaten with caution, knowledge and education!

MKT

Notice: Pretrial e-mail Scam Reported

The Minnesota Judicial Branch has learned of an e-mail scam where recipients are receiving a pretrial notice regarding a court complaint.  The public should be aware that the e-mails are not coming from the Minnesota Judicial Branch or the Minnesota appellate courts, and they should not open the e-mail or respond.  Official court communications will only be sent by phone or U.S. mail.  An example of the message is included below:

FROM: Minnesota Court of Appeals

Mon 2/3/2014 8:46 PM Pretrial notice Hereby we confirm that your complaint has been received together with enclosures dated January 30, 2014. The complaint will be reviewed in court in the nearest possible time based on the documents and information you have previously provided. You do not have to be present at trial in person if the Court does not suggest otherwise. Please use this link to check your complaint once again and confirm it. If we do not get your confirmation the claim will be cancelled. You will be further notified without delay of any judgement delivered in regard to your complaint. Sincerely, Court secretary

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Attorneys & Lawyers & Counselors, Legally Educated, Litigation of Business | Business of Litigation

Coming soon to a CLE in Bloomington, MN . . .

This coming Friday February 14, 2014 it’s the Judgment Enforcement CLE!!! Come one, Come all!

A Litigator's Blog | MKT Law, PLC

Judgment Enforcement in Minnesota

Bloomington, MN — February 14, 2014

 

Holiday Inn Bloomington I-35, 1201 West 94th Street in Bloomington, MN

Live Seminar 

  • February 14, 2014
  • Bloomington, MN
  • 9:00 am – 4:30 pm

Look below!!! I’m doing it again . . . 

It’s me speaking at a CLE! Click: MKT!

I’m speaking at this Lorman CLE at 9 am. Right in between somebody named Registration and right before Break goes on!

Come on out on Valentines Day and learn about Judgment Enforcement in Minnesota. I’ll speak about ethics issues and cases unique to the collection attorney. I’m even updating my written materials from last year. I might have handouts. Handouts for all!

If you click on my initials above or EVEN RIGHT HERE, you can get 50% off the registration fee! A very lovely discount as a valentine from me (actually I just posted the link). So don’t…

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