PACER and Online Legal Research

PACER stands for Public Access to Court Electronic Records. It is an Internet based service that lets a legal research professional or anyone else to have access to case and docket information from District and Bankruptcy courts, the U.S. Party/Case Index and the Federal Appellate. Being a service of the US judiciary, the PACER service center offers links to all US courts and the different data bases that are maintained by each one of them. It is also a very quick and easy service and one can get many important case details at PACER. What are the types of details available?
Day wise listing of cases

Case record dates and details

Claims registry

Cause of action/ money demanded etc

List of all judges, attorneys trustees etc

Judgments

Case document type details

Copies of documents

Court opinions

The United States Congress has given the Judicial Conference of the United States the authority to collect a fee for electronic access to information on a case. Thus all the individuals or agencies who register are charged a user fee. This paid service offered by PACER is very useful for the litigators, legal research and law communities. Instant registration can be done online on the official pacer website. During legal or litigation research, services like PACER are very convenient because it is an inexpensive method of accessing precedent database that is for ever growing.

Each court maintains its own databases with case information and a small subset of information from each case is transferred to the U.S. Party/Case Index that is located in San Antonio, Texas at the PACER Service Center, server on a daily basis. How are the records sent? Records are submitted to individual courts using the (CM/ECF) system (Federal Judiciary’s Case Management/Electronic Case Files) and usually accept the filing of documents in PDF Format through the courts’ electronic filing system.

How to Use Legal Briefs to Conduct Legal Research

There are many ways to conduct legal research, but perhaps the most powerful is through the utilization of one specific document: the legal brief. A brief is a document submitted at the beginning of a case that essentially summarizes exactly what a lawyer will argue on behalf of his or her client throughout that case. Lawyers will spend hundreds of hours preparing their briefs by conducting research in case law in order to find the specific cases that establish precedent for the specific argued. Aside from citing case law within them, legal briefs also provide lawyers with an opportunity to showcase their creativity and ability to write. There have been many famous briefs written, such as the brief written by Louis Brandeis, referred to now as the “Brandeis Brief”, which was the first brief to use empirical evidence collected through scientific processes to prove a case. There have also been many amicus briefs filed, which are filed by a third party, such as an NGO, to show support for an issue at hand. Of late, a few notable amicus briefs have been filed in the issues surrounding gay marriage. Further, different types of briefs are filed at different levels of the court. Briefs flow throughout the court system, but vary in terms of their format and objectives amongst different courses. For example, a legal brief submitted at the beginning of a case in a trial court will be arguing why a case should be ruled in favor of the party filing the brief, while a case filed at the appellate level will argue why a case should or should not be upheld.

There are a few primary steps in terms of writing a legal brief:

1) Fully understand the purpose of preparing a brief
a. The ultimate purpose is to persuade the court that your views and rationale is correct
b. A brief must present the issues at hand in a methodical way

2) Adhere to the proper format of your specific jurisdiction
a. Various courts have various ways and requirements they follow in terms of filing a brief. Make sure yours strictly adheres to these requirements.

Aside from simply writing a brief, a lawyer can utilize them for research purposes too. Searching other briefs previously filed that won a case with the same issues at hand provides a way to speed-up the research process-essentially, lawyers can use briefs to augment their own research by finding briefs filed historically with similar issues to their own. One significant aspect of this process to understand is the validity of case law used in previous briefs. If lawyers use briefs to find a relevant topic, they should make sure to check that the cases cited in that brief are still good law-in other words, that the opinions cited haven’t been overturned since the brief was filed.

Online Incorporation and LLC Formation Services – Advantages and Disadvantages, Pros and Cons

Online incorporation services tout easy, fast, and cheap online incorporation and limited liability company (LLC) formation services. Examples include LegalZoom.com, MyCorporation.com, and IncorporateTime.com. Storefront and virtual paralegal services such as We the People and those found in the legal services section of your local craigslist also offer similar services. Their web sites and radio and TV sales pitches indicate that forming a corporation or LLC is as quick, easy, and inexpensive as filling out an online questionnaire and paying a fee of $100-150 for the completion of the paperwork and the filing of the documents with the secretary of state (plus the filing fees charged by the state). This article reviews the advantages and disadvantages of these services overall – for specific reviews of a particular provider, you should look elsewhere (and preferably to those with direct experience using the service, as well as at least a year of business operations thereafter).

No legal advice

In the fine print, many document preparation services state they are not law firms, cannot provide legal advice, and recommend that you consult an attorney for legal advice. Here’s a word for word example from one web site: “This site is not a substitute for legal counsel…. You should consult legal counsel to determine applicable law for your situation.” And from another: “[Our document preparation service] is not a substitute for an attorney or law firm.” Only licensed attorneys can practice law and provide legal advice to clients, so these firms are wisely protecting themselves by making it clear that they are not in the business of providing legal advice; they are in the business of preparing whatever forms or filing you tell them to. Thus, the computer programmer’s old adage, Garbage In, Garbage Out, applies. If you tell them to form a Nevada LLC, when you really need a California S corporation, they will in all likelihood produce a technically sufficient LLC, but it won’t meet your actual business legal needs. Likewise, if you choose not to elect S-corporation status, and end up paying higher taxes as a C-corporation, this is not their fault; they are counting on you to know what you need, or to have consulted a lawyer and/or tax accountant before coming to them.

Many incorporation services would apparently seem to remedy this situation with lengthy FAQs and learning centers, but, frankly, a few minutes or even a few hours of research is not a substitute for a lawyer’s college degree, three years of law school, and additional on-the-job training and annual continuing legal education. Any paralegal or incorporation service whose employees do provide legal advice is engaged in the unethical practice of law without a license, a crime in most jurisdictions, and their legal advice, for more reasons than one, should be taken with a grain of salt. Better yet, terminate your relationship with any such person immediately.

The other ‘remedy’ is to portray incorporation as a one size fits all, cookie cutter purchase, rather than explaining the reality that can be summed up the quote sometimes heard in law school, “The general rule applies to no one in particular.” In other words, your circumstances and needs are not those of your friends, neighbors, or other online entity formation customers.

Other Legal Issues

Attorneys will focus not just on forming an entity you have ordered them to, but in taking a step back, assessing your overall business plan and goals, and making sure the legal structure takes into account your particular circumstances, rather than assuming you and your business are exactly the same as the next guy and his business. They will also at least point out, and suggest options for best addressing, legal issues that arise tangentially to forming a corporation or LLC. Such issues that the average incorporation service customer may be blissfully unaware of include securities laws compliance, promissory notes, trademark and service mark issues, and employee and independent contractor law. (Tax issues are also inherent in incorporating, so working with a CPA or accountant is something I always recommend to clients before and after incorporating.) Agreements typical of new corporations or existing business which are growing and have decided to incorporate include employment agreements, independent contractor agreements, supplier agreements, web site terms of use and privacy policies, and shareholder buy-sell agreements. All of these should be customized to your needs, not fill in the blank forms, just as corporate bylaws and LLC operating agreements should be customized, not one size fits all.

Lack of Follow-Through

A good business attorney will also assist you in following through in the formation of your corporation or LLC. By this I mean making sure the meeting minutes are appropriately customized to your needs and the corp. or LLC’s formation documents are actually completed, signed, shares are actually issued to shareholders, and appropriate federal, state, and local filings are made. After having reviewed numerous incorporation service companies, usually a year or more later after problems have arisen, but also often times in the course of transactions such as sale of the business or part of it to a new shareholder, member, or partner, I have yet to see a company that was correctly set up. I can say the same of do-it-yourself incorporations, where the owner(s) didn’t hire anyone and did it themselves. In most cases, the articles of incorporation (for LLCs, the articles of organization) have been completed and filed in an adequate, if not optimal, manner, and the bylaws or operating agreement is likewise present. However, such documents are generally never executed – they just sit on the shelf in a binder, as they have since they were mailed out by the incorporation service, and thus without any force or effect whatsoever. Frequently, they contain numerous blanks that the owner was supposed to fill in, but didn’t because they didn’t know how to, or just never got around to it.

These defects are not the fault of the incorporation service per se, but they are indicative of the different level of service provided by such companies, in comparison to an attorney. Such lack of completion can and does lead to problem later, however, because the company’s limited liability status and good standing with the state can be jeopardized by missing or incomplete corporate documents, or by failure to create annual minuets and file initial and annual state level filings. Difficulties also occur when disputes among partners or co-owners later arise, and upon review of the bylaws or operating agreement, the parties find that the documents were never signed (and thus may not control), that they lack buyout procedures, or that they are vague or silent on how to handle disputes. It goes without saying that most of these disputes are much more costly to resolve later, once the proverbial horse of improper documentation and agreements has left the barn.

Hidden fees

The main benefit of incorporation services is costs savings; they charge less than attorneys do. However, the actual fees charged by incorporation services often ends up being as much as two or three times higher as they low rates they advertise, once such “add-ons” (which in many cases are needed to achieve your legal aims) as name reservations, corporate minute books, expedited or rush service, EIN numbers, S-corp election, first meeting minutes, and initial statement of information, sales tax reseller’s permit, business license, or other state or federal filings are made. So be sure to check what a complete package costs in making comparison amongst various providers and versus law firm fees. Some services I’ve seen on craigslist.org offer rates so low, they do not even account for the minimum level of costs that must be expended to properly set up a company! (E.g., $125 including costs for a California incorporation – the government fees alone are at least this high, let alone any third party service fee.) In many but not all instances, law firms offering flat fee incorporations do not have hidden fees.

In any case, the important consideration here is that incorporation service prices cannot and do not include legal advice on the incorporation process or related legal issues, hand-holding, referrals to other professionals such as accountants and insurance agents, or follow-through to ensure that the business entity is actually implemented correctly. Upon seeing all the work that goes into an incorporation or LLC organization, the most common remark from my clients is not, ‘That was easy; I should have used an incorporation service, saved your legal fees, and done it myself.’ Rather, it is, ‘I can’t believe some people try to do all this themselves!’ You should keep in mind the difference in the level or services provided when evaluating price, be on the lookout for hidden or additional fees beyond the base rate, and realize that if you are choose to select an attorney over an incorporation service, you are paying not only for that attorney’s time and end work product, but also his education, experience, skill, and legal advice and counsel for your business.

Relationship with a lawyer

In deciding to go it alone, you should keep in mind that sooner or later, if your business grows, you will need a business attorney. It may be more prudent to establish that relationship now via an incorporation and set yourself up for future growth and success, rather than wait until a legal emergency arises, only to find you don’t know any attorneys, or that the attorney you do retain finds that there are numerous steps you could have taken in the past to avoid current fees, taxes, problems, and disputes.

The fact that these problems don’t become apparent until months or years after the company’s formation (especially if professionals such as attorneys and accountants are never hired and thereby given the opportunity to review the company and spot issues) means that many customers of incorporation services are initially well pleased with the service they have received. If you don’t know what you didn’t get, you have no reason to be unhappy about; instead focusing on the money saved now.

In my experience, rarely does money saved on legal services now pay off in long-term savings. More often, it’s the old, pay now, or pay (more) later situation. Some errors, such as choice of entity decisions that were not tax favorable, cannot be undone, they can only be changed going forward. Likewise, after a shareholder or partnership dispute has arisen, it’s usually too late for proper buy-sell provisions in the bylaws or operating agreement, a separate buy sell agreement, or an arbitration clause. If you don’t have enough money to afford an attorney at the outset, perhaps you and your partners should consider committing additional funds to the enterprise, utilizing loans or credit cards to access additional funds, or wait until more financing can be accumulated or obtained, before proceeding in a less than optimal way. Most entrepreneurs are convinced of the future growth and profit prospects of their companies; thus, it is surprising they often don’t follow in the footsteps of other successful enterprises and allocate appropriate funds for legal services. The adage, “Failing to plan is planning to fail” applies here.

A good business attorney will also be able to provide referrals to reliable accountants, insurance agents, and others services new businesses are likely to need.

Volume business

Incorporating services are sometimes called incorporation mills. By their very nature, they are in a volume business; they cannot charge low prices and provide personalized attention or service. In general, they make their profits by selling a non-customized or a minimally customized product over and over to as many customers as possible. Law firms, on the other hand, provide customized legal advice and services to each client on an individual basis. Law firms can handle unusual capital, profit, loss, or other allocation issues that fully and correctly utilize corporations and LLCs, and advise when such use is appropriate and when it is not. Incorporation mills will, for the most part, sell you whatever you ask for; it’s your responsibility to determine whether you are ordering the right product from them.

But aren’t you, as a California incorporation lawyer, biased?

That’s certainly a legitimate question, and I obviously have a strong opinion on the matters discussed. It’s up to you to take to heart or disregard the opinions and advice in this article, but I would answer it this way: Because I am a business attorney, I have seen the result of using these services in a way most lay people would not, and as a result cannot recommend that most people use an incorporation service. And although incorporation legal services is part of my business law practice, I would encourage most readers to use an attorney of their choosing, in their state – it need not be me and obviously I don’t benefit from you using another attorney any more than I benefit from you using an incorporation service. In fact, incorporation services are probably in the long run good for my practice; they provide a steady stream of repair work and dispute resolution for me, that typically cost $1000s more than my flat fee incorporation services.

Summary and Conclusion

In short, comparing incorporation services to a business lawyer is an apples to oranges comparison. One option provides more services and costs more; one provides less and costs less. Neither is a “rip-off” or the definitive solution for everyone. You are more likely to get things right by choosing either than choosing neither and going it alone. The lawyer is licensed by the state to provide legal advice, is subject to numerous ethical rules, forms an attorney-client relationship with his clients, and keeps up to date on changes in the law through mandatory continuing legal education. The incorporation service simply executes on your instructions, no advice, no hand-holding, no legal review of your situation or legal needs. If your instructions do not comport with what’s best for your situation, then your result will be less than optimal.

There may be a small group of people who know what they need, and how to do it, but just lack the time, and who are thus well served by incorporation services. (Ironically, most of these people probably realize the value of an attorney’s input and would generally hire one to take care of their legal needs, while spending their own time on what they do best, improving their business. This explains why I have business entity formation clients who are attorneys and law firms!). Or who have been advised by their accountant to form a particular type of simple entity (simple being defined as an entity to be formed in their home state jurisdiction and with only one owner). But, in my opinion, the vast majority of potential incorporation service customers would be better served by investing an additional $500 or so to have their entity selected, formed, and set up correctly, with all of their questions answered along the way, with due attention to related legal issues, and to establish a relationship with an attorney for ongoing or future legal services.

Appraisal Vs Opinion of Value

On my last Alaska cruise as an art auctioneer, my friend Tamara, the ships’ Port Shopping Ambassador, related the following story: a passenger purchased an item of jewelry from a store in Skagway for around $10,000. The following day, the passenger got a serious case of buyers remorse, and sought to return the jewelry on the basis that the item was misrepresented and overpriced. To prove the item was overpriced, she took the item to a second jewelry shop to ask the shopkeeper to appraise the item. The appraisal offered was nowhere near what she paid for the item. In fact, the second shopkeeper told her that she had overpaid, and that she should return the item and then come back, because he could offer her a higher quality item at a lower price.

I’m sure that this situation is as transparent to you as it was to me: the second shopkeeper was trying to make a sale at the expense of the first shopkeeper. That this sales tactic could work is rooted in the passengers ignorance of the difference between an appraisal and an opinion of value. The ignorance of this difference has cost clients of mine thousands of dollars in lost insurance claims and missed opportunities. Knowing the difference between an appraisal and an opinion of value will be to your advantage.

An opinion of value is an opinion offered on the basis of experience and expertise. Such opinions may or may not be valid, depending on the qualifications and ethics of the person offering the opinion. The persons offering such opinions are not required to be independent, impartial or objective. They can, and often do, have conflicts of interest and hidden agendas. An opinion of value has no requirements for documentation or evidence. Those offering an opinion of value are not held to the same legal and ethical requirements as a certified appraiser. Let’s say that you took a Picasso etching to an art dealer who gave you his opinion of its value, called the opinion an appraisal, and then offered to buy the painting for the appraised price. The dealer would have offered you no evidence to back up his claim of value, and clearly had a conflict of interest. His opinion of value is worthless.

The value offered in an appraisal, on the other hand, has been researched and evidence is offered to support the value claimed. Most often, evidence is offered in the form of comparable sales; that is, what items like yours have actually sold for recently in your market. In addition, a proper appraisal follows the format of the Uniform Standards of Professional Appraisal Practice (USPAP) which has been authorized by Congress as the source of appraisal standards and appraiser qualifications. USPAP is generally recognized by the courts and by the IRS. A USPAP-compliant appraisal clearly establishes the details of the appraisal, the appraiser, the intent of the report, assumptions, limiting conditions, and all evidence supporting the conclusion. When done, the appraiser must sign and certify the report. Such a report will stand up to legal and IRS scrutiny and the value offered can be trusted.

Now that I’ve established what an appraisal is and isn’t, let me throw a wrench in the works. If you called five appraisers to appraise the same item, you may get five different appraised values for the item. How can that be? An appraiser must make certain assumptions and adjustments in arriving at the value of your item. Unless sales evidence can be found for an item exactly like yours, adjustments will have to be made to compensate for differences in age and condition. Making adjustments is more art than science, and ultimately depends on the skill and experience of the appraiser. Also, the intent of an appraisal will have a bearing on the value. Appraisals for insurance replacement, estate liquidation, fair market value and cash value will all yield different numbers. If the value of your tangible personal property is important for estate, tax, divorce, or other legal consideration, please don’t rely on an opinion of value to make your claim. Call a certified personal property appraiser.