- What is Collaborative Law?
Posted July 22, 2008, 12:26 pm
Collaborative law is a dispute resolution technique that differs substantially from mediation or arbitration. In collaborative law, the parties to the dispute and their lawyers work toward a solution together. If the parties are unable to resolve their issues and go to court, the lawyers for the collaboration disengage. If the parties abandon the attempt at collaboration, they must find new counsel. The following article provides an excellent discussion of collaborative law and whether it will...
- Agreement Held Not Binding on the Parties
Posted July 15, 2008, 12:44 pm
In this divorce case, the parties and attorneys met for depositions. Before the depositions began they were able to work out a settlement. They read the agreement on the record with the court reporter that was present. However, this is not good enough to make the agreement enforceable under Arkansas law. Arkansas law requires that the agreement be read into the record "in open court" and the Court of Appeals decided that a deposition was not open court. The agreement was invalidated. Here's the...
- HIPAA Rights Violated? Do you Have a Remedy?
Posted July 15, 2008, 12:12 pm
HIPAA was enacted to protect your health information from being disclosed to unauthorized parties. Sometimes it gets disclosed to such parties anyway. Has this happened to you? If so, here's a link that will help you with filing a complaint with the Department of Health and Human Services. http://www.healthprivacy.org/usr_doc/Privacy_Complaint_Form.pdf
- New Spouse’s Actions are Relevant in Change of Custody Case
Posted July 8, 2008, 12:25 pm
The actions of step-parents are relevant evidence in change of custody cases. The step-parent is part of the child's home environment and therefore contributes to that environment - for better or worse. In this case, the mother lost custody of the children to her ex-husband largely as a result of the actions of her new spouse. The new spouse was abusive towards her including one instance where he intentionally stabbed her with a barbecue fork in the stomach while he was high on methamphetamine...
- Have Complaints About Your Attorney?
Posted July 3, 2008, 12:16 pm
Many clients feel that their attorney is not handling their case properly. The best thing to do is schedule an appointment with the attorney and let your thoughts be known. The attorney can't fix what he doesn't know is broken. Still having problems? Or has your case been completed and you think your attorney has acted negligently or improperly? You may need to take your concerns to the group that oversees attorney ethics. In Arkansas it is called the Committee on Professional Conduct. Here's a...
- Homeowner vs. Lender: No Longer An Automatic Win for Lender
Posted July 1, 2008, 12:41 pm
We've all heard about the housing crunch and the poor status of the economy. Lenders have been getting aggressive with their foreclosure actions against homeowners. Homeowners are continuing to seek legal advice - and they are fighting back with much more regularity. Check out this article… http://www.abajournal.com/magazine/homing_in_on_foreclosure
- Arkansas Supreme Court Rejects Eastern District's Prempro Decision; Affirms Certification of Nationwide Class Action
Posted June 30, 2008, 3:42 pm
In a powerful example of Arkansas's "liberalized" class-action procedure, the Arkansas Supreme Court affirmed Miller County Circuit Court Judge James Scott Hudson's certification of a nationwide product-liability class action. General Motors Corporation v. Boyd Bryant, et al., No. 07-437. In so doing, the Court expressly rejected the reasoning of a recent federal decision out of the Eastern District of Arkansas, In Re Prempro Products Liability Litigation, 230 F.R.D. 555 (E.D. Ark. 2005)...
- Arkansas Court of Appeals Upholds Dismissal of Breach of Sales Contract Based On Forum Selection Clause; Counterclaim for Equitable Value of Use of Property Did Not Waive Clause
Posted June 30, 2008, 3:38 pm
The Arkansas Court of Appeals affirmed Sebastian County Circuit Judge James O. Cox's dismissal based on a forum-selection clause in New Life Beauty Center, Inc.'s v. Palomar Medical Technologies, LLC. New Life sued Palomar for breach of a sales contract, apparently medical equipment. The one-page sales contract did not have a forum-selection clause, but the contract incorporated another document, "Palomar Medical's Terms and Conditions . . . as stated on reverse or attached hereto." The...
- What is a Common Law Marriage?
Posted June 26, 2008, 12:22 pm
The following link provides a great discussion about common law marriage… http://www.ago.state.co.us/FAQ/CLM_FAQ.cfm.html Practice Note: Arkansas does NOT have common law marriage. Special thanks to our Summer intern Jane Van for her research on this and other blog posts this Summer!
- Executions Reserved for Murderers, Not Child Rapists
Posted June 25, 2008, 9:30 pm
U.S. Supreme Court holds that child rape convictions do not justify the death penalty. Here's a link to the article… http://www.cnn.com/2008/CRIME/06/25/scotus.child.rape/index.html
- Thinking of Ignoring the Judge’s Ruling? Think Again.
Posted June 24, 2008, 12:01 pm
Many times parties are not happy with the final ruling handed down by the judge in their case. Judges are able to enforce their orders by using their contempt powers. The following case illustrates what can happen when a person decides to deviate from what has been ordered by the court. Here's the link… http://courts.arkansas.gov/unpublished/2008a/20080514/ca07-1116.pdf
- Variances in State Laws Have no Effect on Arkansas Class Action Certification
Posted June 20, 2008, 3:02 pm
The Arkansas Supreme Court handed out a big decision on Arkansas class action law: General Motors Corp. v. Bryant, No. 07-437 (6/19/08). The claim is that General Motors sold trucks and SUVs with a defective parking brake system. The class involves 4 million consumers in all 50 states bringing claims for breach of express warranty, implied warranty, and the Magnuson-Moss Warranty Act. GM argued the variances in state law would prevent certification, but the trial court disagreed and certified...
- What Does It Take to Prove a Change in Circumstances?
Posted June 19, 2008, 12:46 pm
To change custody the non-custodial parent must show a material change in circumstances. What does that mean and what kind of proof is needed to qualify? The following case gives a good discussion of the law and plenty of facts. Here's the link… http://courts.arkansas.gov/unpublished/2008a/20080521/ca07-810.pdf
- The Best Defense is a Good Offense
Posted June 17, 2008, 1:08 pm
These Florida homeowners, and mortgage bearers, decided to turn the tables on their lenders. Facing potential foreclosure suits in the near future, they decided to sue their lenders first for fraud and violating federal lending laws. Here's the link to the article… http://www.abajournal.com/news/fearing_foreclosure_debtors_sue_lenders_over_excessive_mortgages/#When:13:27:00Z
- How Long Must I Live in Arkansas in Order to Get a Divorce in Arkansas?
Posted June 12, 2008, 8:59 pm
Is the following language clear to you? "A residence in the state by either the plaintiff or defendant for sixty (60) days next before the commencement of the action and a residence in the state for three (3) full months before the final judgment granting the decree of divorce." A.C.A. 9-12-307 The following case focuses on the last part of the above statute - the part that mentions the 3 months requirement. Does it appear that the plaintiff must live in Arkansas for the 3 months immediately...
- Microsoft Files Arkansas Trademark and Copyright Infringement Case
Posted June 11, 2008, 3:18 pm
Microsoft has filed a lawsuit alleging trademark infringement and copyright infringement. See Microsoft Corp. v. Delta Computer Experts, LLC, No. 08-0168 (E.D. Ark., filed 6/9/08). According to the complaint, defendants distributed unauthorized copies of Microsoft software like Word and Power Point. Microsoft is seeking an extensive array of damages.
- Arkansas Deceptive Trade Practices Act Cannot Apply to the Practice of Law
Posted June 6, 2008, 1:50 pm
The Arkansas Supreme Court affirmed dismissal in Preston v. Stoops, No. 07-805 (6/5/08). Stoops filed a lawsuit on behalf of Preston in Pulaski County. The case was dismissed because Stoops, an Oklahoma attorney, was not licensed to practice in Arkansas. Preston filed this action, claiming violation of the Arkansas Deceptive Trade Practices Act, Ark. Code Ann. § 4-88-101, et seq. Preston also included a count for breach of the covenant of good faith as a tort. The trial court dismissed both...
- Summary Judgment Reversed in Another MBNA America Case
Posted June 5, 2008, 2:35 pm
This time the case is Helton v. MBNA America Bank, N.A., No. 07-759 (6/4/08), another MBNA America arbitration case that follows Danner v. MBNA, (previously posted 4/27/07), MBNA v. Blanks (previously posted 9/19/07) and MBNA v. Gilbert (previously posted 10/31/07). This time MBNA obtained an arbitration award against Helton based upon the arbitration provision in the amendment to the cardholder agreement and filed a petition in Cross County Circuit Court to confirm the award. Helton claimed he...
- Arkansas Has Jurisdiction Over Virginia Resident
Posted June 5, 2008, 1:45 pm
The Arkansas Court of Appeals reversed dismissal for lack of personal jurisdiction in Roberts v. Bendos, No. 07-903 (6/4/08). Bendos lives in Virginia; she hired Roberts to pursue a wrongful death action on behalf of her sister's estate in Saline County. After Roberts procured a favorable result, Bendos refused to pay him. After Roberts filed suit, the trial court dismissed the case for lack of personal jurisdiction. The court of appeals easily reversed. Not only had Bendos traveled to Arkansas...
- U.S. Supreme Court Denies Certiorari in Baseball Statistics Right of Publicity Case
Posted June 3, 2008, 8:03 am
We previously posted (10/16/07) the Eighth Circuit's decision in C.B.C Distribution and Marketing, Inc. v. MLB Advanced Media, L.P., holding that use of baseball players' names and statistics in fantasy games did not violate the players' rights of publicity. Yesterday the U.S. Supreme Court denied certiorari to review the case. This decision will remain the controlling law in the Eighth Circuit, and it will be interesting to see how other circuits treat this issue.