Law Tips: Elder Law: A Rock Steady Approach to Clients Challenged by Progressive Disease

Your approach to a client with age or disability challenges is crucial to their peace of mind. During ICLEF’s recent Elder Law Institute this subject received a unique type of attention. Attendees learned of Indiana’s Rock Steady Boxing program where people fight their disease with vigor. Our expert Elder Law faculty member, Scott Severns, offers candid impressions of his encounter with The Rock Steady Approach and his Top Three Aha’s:

As Elder Law Attorneys, we help our clients face a variety of challenges from disability and aging. We devise sophisticated trusts and draft other documents to enable family members to legally accomplish the important goals of and for the person in need of care. We guide clients through baffling Medicaid law and an even more baffling bureaucracy.

The way that we approach our work with a client and family can have major impact on the choices they make. When we are at our best, we strengthen the ability of the individual and family care givers to meet the challenges successfully together, preserving the values most dear to them.

Every once-in-a-while, we encounter something that startles us to a new understanding of effective help. For me, the Rock Steady Boxing program for people with Parkinson’s Disease has been such a startling–and inspiring–encounter.

Here are some questions to ask yourself as you watch the video and hear the description of this program (below). I will follow up with Severns’ Top Three Aha’s from the Rock Steady Approach.

  • Is this just another form of therapy or exercise?   What’s different about it?
  • What is the primary focus of the coaches?
  • At Rock Steady, boxers work out with others who are engaged in the same battle. How important is the “common cause?”
  • What most surprised you about Rock Steady?
  • What client(s) in your case load might benefit from a program like Rock Steady?
  • Are there aspects to the Rock Steady approach that could improve the way we counsel, represent, strategize with our clients?

Joyce B. Johnson, Executive Director, Rock Steady Boxing, offers this video with an insightful message:
Purdue Parkinson’s Disease Research and Rock Steady Gym

Severns’ Top Three Aha’s from the Rock Steady approach:
Boxers engage with their disease as a challenge, not a death sentence. By coming together with others facing similar challenge to fight back, boxers overcome isolation and depression. No boxer is written off or permitted to give up. They collaborate; they don’t commiserate.

How do we as lawyers encourage clients to engage rather than to become passive or succumb? I’m aware that I am tempted to be the “man with the answers” or even a rescuer. My most rewarding client relationships, however, are those where I’m in the client’s corner as the client meets hers or his challenge.

I have often witnessed the spiral toward isolation and depression that often accompanies a chronic degenerative disease, so I listen for what relationships and activities are and have been most meaningful in the client’s life. I can then explore how those can be maintained, enhanced or re-cast in a new setting. Staying independent and alone at home is not the ultimate goal for everyone and certainly entry to a facility that treats residents as problems is not the right alternative, either. I must be aware of the trajectory that Medicaid planning, for instance, creates. I must help family care givers to become effective advocates when facility practices or staff hit below the belt.

Boxers are “boxers,” not “Parkinson’s victims.” Family members and friends are “corner-men” rather than guardians, spokespersons or even care givers.

In counseling, what words do I use to refer to and describe my client? My client’s corner-men? Can the documents I draft be better-worded to enhance self-image of the client and the “better angels” of family members’ character?

Coaches are encouragers, accommodating each boxer’s limitations while focusing on their strengths. Coaches help each boxer discover and enhance capacities that the boxer may not have even known s/he had.

When we meet with clients with diminished capacity, how well do we accommodate limitations without emphasizing them, and help the client recognize and build upon what is strong in him/her? Even more challenging, we’ve all had experiences where family members’ manner of speaking treats the client with mental or physical impairment as a problem, rather than a person with deep values and strengths. I have to remind myself at times not to talk over a client with dementia, to ask questions scaled to the client’s capacity-to involve the client in decisions to the extent possible. Sometimes I simply keep my eyes focused on the client and ignore the interruption of a family-member who seeks to take over the conversation from the client.

By modeling deference and true concern for the views of the client with an impairment, we can sometimes help everyone discover the right relationship to meet their challenges together.

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I appreciate the support of Law Tips from Scott Severns and Joyce Johnson. Their Rock Steady Approach is definitely inspirational. You may hear their CLE presentation by registering for the Elder Law Institute at your convenience through ICLEF’s On Demand programming. Also available is our 2015 Advanced Elder Law Seminar,  a Masters Series Seminar, August 14-15 at the Canyon Inn at McCormick’s Creek State Park in beautiful southern Indiana.

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About our Law Tips faculty participants:
Scott R. Severns, Partner, Severns Associates, P.C., Indianapolis
Known by many in Indiana as the “Father of Elder Law,” Scott Severns is a founding member and Past President of the National Academy of Elder Law Attorneys. His professional career has focused on legal and health care issues that confront older adults and people with disabilities. A Past President of the National Citizens’ Coalition for Nursing Home Reform and a former policy analyst for United Senior Action, he has successfully lobbied for nursing home reform laws and was a primary architect of Indiana’s home health care legislation known as the CHOICE program. He is a regular faculty member for the Indiana Continuing Legal Education Forum, the American Bar Association, and the National Academy of Elder Law Attorneys.

Joyce B. Johnson, Executive Director, Rock Steady Boxing, Indianapolis
Joyce Johnson leads the RSB team as its Executive Director. She has more than 30 years experience managing organizational change and growth. Johnson was Vice-President of the Greater Educational Opportunities Foundation. She is the editor of “Key Things Parents Should Know about Education in Indiana,” published in 2004.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Indiana Trade Secret Litigation: Precision Drone Sues Channel Masters for Misappropriating Trade Secrets

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Indianapolis, Indiana – Indiana intellectual property lawyers for Precision Drone, LLC of Hamilton County, Indiana (“Precision”) commenced trade secret litigation in Hamilton County Superior Court alleging that Channel Masters, LLC of Wisconsin (“Channel”) breached its contract with Precision by improperly misappropriating and revealing trade secrets belonging to Precision.

Precision designs, engineers, manufactures and sells drones for use by farmers to monitor crops. It also develops and sells related software. Defendant Channel connects companies offering products to dealers of those products.

According to the complaint, in September 2014, Precision engaged Channel to sell the PaceSetter™ Drone to dealers of such products. To assist in Channel’s sales efforts, Precision provided Channel with equipment and training, some of which Precision contends is protected by Indiana trade secret law. As part of the sales agreement that the parties entered into, Precision states that Channel was prohibited from disclosing any of Precision’s confidential information without written authorization. The agreement also prohibited Channel from adversely interfering with Precision’s customers and prospective customers.

Plaintiff Precision alleges that, while Channel was working for Precision, it was also promoting and selling crop-imaging drones offered by AgriImage, a company that competes with Precision. Plaintiff also contends that Channel used Plaintiff’s images and training manual to demonstrate the competing AgriImage drones.

Precision claims copyright protection for the website that it uses to promote and advertise its products, as well as contending that at least one of its images was improperly displayed at a trade show by Channel, but the complaint listed no overt assertion of copyright infringement. The complaint, filed by Indiana intellectual property attorneys for Precision, instead alleges the following:

• Count I: Breach of Contract
• Count II: Misappropriation of Trade Secrets

Precision seeks judgment in its favor including damages, attorneys’ fees and costs.

Indiana copyright lawyers for Channel have removed the case to the Southern District of Indiana, arguing that such a removal is proper based both on federal question jurisdiction and diversity of citizenship.

The case has been removed from the Hamilton County Superior Court to the Southern District of Indiana. The case was assigned to Judge Larry J. McKinney and Magistrate Judge Timothy A. Baker and assigned Case No. 1:15-cv-00476-LJM-TAB.

Complaint


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By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Family Law Blog: Trial Court Properly Refused to Set Aside Divorce Decree

Case: Parviz Jahangirizadeh v. Fatemeh Pazouki

by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court properly refused to set aside divorce decree, six years after it was issued, based upon allegations by Husband that Wife failed to disclose marital assets.

FACTS AND PROCEDURAL HISTORY:
Wife filed for dissolution in 2007. Prior to a final hearing, Wife filed a financial declaration listing various assets. In 2008, the trial court issued a decree that divided the marital estate, and required a property equalization payment from Husband, to Wife, in the amount of approximately $57,000.

Six years later, in 2014, Husband filed a motion to set aside the Decree. The motion alleged that, a month after the Decree was issued, Wife opened a bank account with an initial deposit of $50,000, which Husband reasoned could not have been done without Wife failing to disclose all of her assets in her financial declaration.

Wife moved to dismiss, arguing that the motion to set aside was untimely under Trial Rule 60(B)(3). The trial court agreed, and dismissed Husband’s petition with prejudice. Husband then filed a motion to reconsider, which referenced recent litigation in a California court between Wife and her brother, in which the California order concluded that Wife “was not a credible witness and lied on the witness stand….”

The trial court denied Husband’s motion to reconsider, from which Husband appealed.

The Court of Appeals reviewed Trial Rule 60(B)(3),  noting that a motion based upon fraud generally needs to be filed within one year, but there is also a “savings clause” that gives the court the authority to entertain an independent action arising from fraud after a year has passed.

Reviewing all of Husband’s options with regard to his fraud assertion, the Court of Appeals concluded that, assuming all of Husband’s assertions to be true, at most, Wife had engaged in “ordinary” fraud by not disclosing all of her assets. Only extraordinarily egregious cases of fraud (e.g., a showing of intentional misconduct, a direct assault on the integrity of the judicial process, etc.) allow a party to circumvent the one-year time limitation that generally applies to Trial Rule 60(B)(3).

The trial court’s denial of Husband’s motion to set aside the Decree was affirmed.

To view the text of this opinion in its entirety, click here: Parviz Jahangirizadeh v. Fatemeh Pazouki

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Law Tips: Collaborative Law, Part 3: The Future

Welcome back to our Law Tips series featuring Claire Emswiller Short’s practical insights on Collaborative Law. As a closing for this topic, she has a discerning look at the future:

Is Collaborative Law divorce what mediation was 15 years ago? Will it spread throughout the country and permeate into other areas of law for alternative dispute resolution? There is certainly a possibility.

To grow in Indiana, in the family law arena and beyond, the challenge lies in getting enough professionals interested, trained and actively educating their clients about the option of a Collaborative Law divorce. While it is believed by many to result in better outcomes for all parties when conducted successfully, there may be some attorneys and professionals who simply are not willing or not able to make such a paradigm shift in their own professions.

Fortunately, in family law practice, there seems to be no slowing down the continued stream of young professionals coming through the area. With the divorce rate in Indiana teetering between 49% and 50% the supply of work is pretty steady and rarely ends after the final decree. Exposure to the collaborative commitment to civility and cooperation and it’s process for achieving that from a client will not be difficult for a new professional to accept and embrace. They are not deeply invested with years of experience in the traditional models and the shift into collaborative practice will not be a dramatic overhaul of what they have become familiar. The challenge will come in the permeation into other areas of law and disputes.

One of the reasons that family law has been the medium for the Collaborative process is because the interactions between the clients are not done at arm’s length-and more than likely, there is going to be some sort of a continued relationship or interaction between the parties. That creates incentive and motivations for the required commitment to civility and cooperation of the process. Further, many of the interests align between the individual parties, so it is easier to find common ground on the important issues.

Labor/employment, family and partnership business disputes and restructurings, healthcare conflicts and construction claims may be other areas that could benefit from a Collaborative Law approach. Another area of law where there are similar characteristics is in estate and trust administration/ litigation, though the main challenge in this area of law is one of the most demonstrative examples of the type of challenge that would require a more collective effort by practitioners and professionals in the legal arena.

Trust/estate litigation can be a substantially costly endeavor for an individual, non-business entity, as is usually the party in these matters, and often, wronged parties are not financially able to address disputes. The inhibiting expenses come from the same sources as in divorce cases, just often on a multiplied scale depending on the number of family members involved: Mainly discovery/information gathering and valuation of assets.

For example: Decedent dies with an adult brother, and three adult surviving children. Decedent owned and operated a business that owned land, buildings, merchandise, services, and several other complicating factors for valuation and his brother was his second in command. Decedent leaves a will dividing his entire estate (including his business) equally to each child and to his brother. However, disputes arise about what would be considered an equal division, operation of the business, etc. and each party hires his own counsel. That is five attorneys who are each conducting his or her own discovery, communication, settlement negotiations, etc., with four other attorneys. Not to mention that if the dispute involves the valuation of assets, you have five different appraisals for each type of asset involved in the dispute (land expert, business valuation experts, and asset valuation experts).

So either the parties go ahead with traditional litigation and spend most of the estate assets on litigation expenses that may or may not save the business or, do nothing. And, because of the disputes, mistrust and discord that emerges, the business is unable to continue and the relationships between the parties and respective families are ruined.

This would be a perfect scenario for a Collaborative Law process. The parties could agree to hire one set of neutral experts, while discovery and information gathering could be streamlined and done more efficiently. The focus could remain on the true issues at hand with the option of addressing family rivalries and side disputes that may really be fueling the impasse that often standstills progress towards settlement. It will most likely save the future relationship of the parties as well as effectively preserving the estate assets.

The biggest challenge for growth in areas like estate/trust litigation comes back to enticing professionals in that area to make that shift and to be trained, but on a more difficult level. Here, since the repeal of the Indiana Inheritance Tax and the large exception amount reached for Federal Estate Tax, the stream of newly practicing attorneys into this area has slowed. There just simply is not as much work to go around to support a purely trust and estate practice. This means that those in this area are likely very invested in the old model in which they have probably been practicing in for a long time. It would be a tough transition to change this kind of professional’s mindset but surely not impossible

Again, the key is to educating practitioners, the judiciary, and the public of the advantages and possibilities surrounding this type of method. That is more likely to be achieved by the profession as a whole, not by individual practice areas.

Many thanks to Claire Emswiller Short for this intriguing look inside the ripening Collaborative Law arena. If you are interested in Claire’s CLE presentation on Collaborative Law, ICLEF still has a few Video Replay Seminars of, “Epic Change: The Evolution of the Legal Profession.” Simply Click Here and we’ll guide you through the easy steps to enroll.

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About our Law Tips faculty participant:
Claire Emswiller ShortEmswiller, Williams, Noland & Clarke, PC, Indianapolis, is a third generation attorney, following in the footsteps of both her grandfather, Byron Emswiller, and her father, Kent Emswiller. She practices in the areas of estate planning, estate administration, estate/trust litigation as well as family law. Her family law practice includes divorce, post-decree modification, paternity, child support/custody, premarital agreements and she is a trained Collaborative Law professional. She also is devoted to assisting families or individuals develop plans and solutions for the care of family members who are aging, or have special needs, such as in the mental health or substance abuses areas. She  has substantial experience with guardianship proceedings and long term planning in trusts and adoptions.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments