ICLEF Contributes $2500 to the Indianapolis Bar Foundation

ICLEF is pleased to announce a contribution of $2500 to the Indianapolis Bar Foundation in support of the Neil E. Shook Scholarship Fund.  The Indianapolis Bar Foundation website lists the Neil E. Shook Scholarship as being available to 2nd year Robert H. McKinney School of Law students who exhibit the following characteristics: 1. academic proficiency; 2. interest in creditors’ rights and bankruptcy law; 3. financial need; 4. exceptional leader­ship skills; 5. demonstrated commitment to excellence; 6. proponent of civility in the legal profession.

We are delighted to be able to provide financial support to this important scholarship fund.

Click here if you would like to make a donation to the Indianapolis Bar Foundation.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Fire Suppression and Alarm Systems – How Much Blame Do They Merit in Fire Litigation?

…Fault allocation, underlying events, owner’s responsibilities, cause of the explosion, liability picture, contractor’s employment, design and installation, damage differentiation problems, local jurisdiction standards….What are the unique issues in each fire litigation case?

Today we are welcoming to Law Tips Thomas J. Jarzyniecki, Jr., Kightlinger & Gray, LLP, Indianapolis. TJ is chair of the firm’s Product Liability Practice Group and routinely deals with the issues of fire-related property damage and fatalities. He warns practitioners about the tendency to put all the blame on fire suppression and alarm systems when litigating fire cases:

There are several types of fire suppression and alarm systems in wide use in the United States. Most jurisdictions have laws, codes, or some type of regulations that govern the requirement for such systems in new construction, as well as the design parameters for systems being installed. Often states adopt, in whole or in part, relevant portions of the National Fire Protection Association (“NFP A”) rules applicable to such systems. The NFP A may be adopted as part of a building code or fire code of a given state, but even if not specially adopted it is recognized in the industry as authoritative on minimum standards of care based on years of testing and experience.

NFP A 13 (and its subparts) provides the standard for installation of Sprinkler Systems and NFP A 25 provides the standard for the regular inspection, testing and maintenance of waterbased fire protection systems. These two standards cover the majority of sprinkler systems in use today. Other portions of the NFPA address particular hazards (storage of flammable liquid or aerosols) and the various means of providing fire protecting beyond water (foams or dry chemicals). In all, the NFPA providers the starting point for analyzing the performance or lack thereof for any litigation wherein the adequacy of a suppression system or alarm system has been called into question.

Fire suppression devices come in a variety of shapes and sizes. From a single hand held fire extinguisher, to the restaurant hood system, to large wet or dry sprinkler systems all the way to specialized industrial fire suppression systems for large industrial machinery or equipment. These various devices and systems are somewhat unique on the fire litigation landscape since they are never the initial cause of a fire or explosive event but they often times may end up receiving all the blame.

Another consistent feature of cases wherein some shortcoming of an alarm or suppression system has been raised is involvement of multiple players regarding the system. Often the system has been in place for a substantial period of time and the original designer, installer or maintenance company have long since departed. In addition, there is invariably other equipment or items involved that can significantly impact the effectiveness of the fire suppression system. For example, the restaurant hood and associated filters must be regularly cleaned to allow the suppression system the opportunity to perform adequately. Another example involves the warehouse that ends up stacking storage too high or too dense, reducing the effectiveness of the suppression system.

In the final analysis, spread of fire cases present some unique challenges but a thorough investigation of the involved suppression or alarm system and the underlying event itself, will provide plenty of available defenses applicable to the claim. The cause of the fire or explosion will still be of great significance to a jury and must be factored into the liability picture and analysis. The scope of an alarm or suppression system contractor’s employment will also play a significant role where an existing poor design or installation is attempted to be foist upon the last company to touch the system. While owners can rely to a degree on the fact that they “hired an expert” to perform work on the involved system they cannot by so doing, turn a blind eye to their own responsibilities and duties as identified by statute, ordinance, codes or standards.

A complete understanding of the applicable codes and standards from the local jurisdiction to universally accepted standards, like the NFPA, will allow you to gain an advantage during the course of discovery, especially during expert depositions. Evaluating how your state will handle some of the thorny fault allocation issues and damage differentiation problems can greatly assist in defending these types of claims and assess your client’s true exposure

Thanks to TJ Jarzyniecki for his contribution to Law Tips. TJ’s CLE presentation during the Litigating Fire Cases seminar delves into a thorough discussion of other important issues, such as, types of systems and alarms, potentially responsible parties, fault allocation and damages. Litigating Fire Cases is available anytime, anywhere as an On Demand Seminar and available statewide as Video Replay Seminars.

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About our Law Tips faculty participant:
Thomas J. Jarzyniecki, Jr., Kightlinger & Gray, LLP, Indianapolis, Indiana.  TJ Jarzyniecki is a senior partner and the chair of the firm’s Product Liability Practice Group.  He has extensive experience dealing with fire-related matters. TJ routinely handles subrogation cases dealing with fire-related property damage and fatalities. He also uses this knowledge to handle product liability cases relating to the defense of fire suppression system installation and the defense of fire suppression system inspectors.  Mr. Jarzyniecki serves as Co-Chair of the Indiana chapter of the National Association of Subrogation Professionals (NASP) and is an active member of the organization.

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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Law Tips: What Do The Courts Say About An Inherited IRA?

Recently Tom Yoder, ICLEF Bankruptcy Law expert, brought his usual scintillating discussion of cases to ICLEF’s 36th Annual Indiana Law Update. The case of Clark v. Rameker, 134 S. Ct. 2242 (2014) is an example of the issues he raised for the attention of practitioners inside and outside the bankruptcy area. His analysis of this case and the path it took from Bankruptcy Court to District Court to U. S. Supreme Court points out how an inherited IRA might have an unexpected end. Be sure to read to the end for the “Yoder Closing.”

Debtor’s mother created a traditional IRA and named Debtor as the beneficiary. After Debtor’s mother passed, Debtor inherited the account. When Debtor and her husband filed for Chapter 7 relief, they alleged the IRA, totaling about $300,000, was excluded from their bankruptcy estate by virtue of the exemption afforded “retirement funds” under § 522(b )(3)(C). The Bankruptcy Court denied the exemption on the basis that an “inherited” IRA is not a “retirement fund.” The District Court reversed, feeling the account was close enough to qualify for the exemption since the funds were originally accumulated for retirement purposes. The 7th Circuit reversed the District Court, noting substantial differences between traditional IRAs and the inherited variety.

Since creating a split in the Circuits, the U.S. Supreme Court agreed to review the case. Speaking for a unanimous Court, Justice Sotomayor agreed with the 7th Circuit’s analysis, focusing primarily on the differences between inherited and traditional IRAs. For the purposes of this case, contributions to traditional IRAs are tax -deductible, but not to inherited IRAs. A withdrawal from a traditional IRA before the account holder reaches the age of 59 ½, is subjected to a ten percent penalty. Once an account holder dies, and the funds are transferred to a beneficiary, the IRA becomes an inherited IRA. If the account is inherited by a person other than the owner’s spouse, the IRA funds may not be “rolled over” into an existing IRA, but instead, must be considered an inherited IRA.

Accordingly, the Court held inherited IRAs do not fall under the “retirement funds” exemption. Justice Sotomayor noted there are three significant differences between the characteristics of a traditional IRA, the “quintessential retirement fund,” and an inherited IRA. First, an inherited IRA, as opposed to a traditional IRA, cannot be contributed or added to regularly over time. Second, account holders are required to withdraw money from inherited IRAs at specific times regardless of whether they qualify as retirement distributions; hence, the Debtor here chose to withdraw yearly distributions over the last ten years. Finally, an account holder of an inherited IRA may withdraw the entire account balance without penalty before the age of 59 ½. Traditional IRAs, of course, are subject to a withdrawal penalty if the account holder is younger than 59 ½.

These aforementioned differences led the Court to conclude inherited IRAs do not fulfill the Code exemption’s intent to help support and protect a debtor’s needs by providing for the future. As elegantly worded, Justice Sotomayor ruled that allowing an inherited IRA to be considered a “retirement fund” under the applicable exemption would shift the Code’s purpose in providing a “fresh start” into a “free pass.”

The Court was not persuaded by Debtors’ statutory construction arguments otherwise, finding Debtors’ arguments contravened the exemption statute’s express language and purpose. Justice Sotomayor ruled “retirement funds,” under normal usage, refers to setting money aside for retirement, not for the benefit of someone else at a later date. Accordingly, she found it contrary to logic for funds deposited in a traditional IRA to be withdrawn, transferred to someone else, and then considered “retirement funds” simply because the funds originally started out as such. Even if an individual uses the inherited IRA for retirement purposes, it does not mean that inherited IRAs have the same legal characteristics as a traditional IRA.

In Tom’s discussion at the Indiana Law Update he provides the following background and personal comment about the decision in Clark v. Ramecker:

“Don’t get fooled by the difference between federal exemptions and state exemptions in this instance. 70% of the states, including Indiana, have opted out of the federal exemptions. However, while the federal exemption exempts retirement funds, the Indiana exemption exempts retirement plans. I am here to tell you that there is no difference as far as I’m concerned between those two concepts. So, the way this case came out is going to be the way I say it will come out if it ever becomes an issue in Indiana. For those of you who do estate planning, if you are dealing with an inherited IRA, if your clients have to file for bankruptcy the IRA will not be exempt”……..Says Yoder.

The Yoder presentation on key bankruptcy issues accompanies other enlightening sessions of the 36th Annual Indiana Law Update. If you haven’t already had the opportunity to attend this year’s seminar, Click Here for On Demand or Video Replay Seminars near you.

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About our Law Tips faculty participant:
Thomas P. Yoder is a partner with law firm of Barrett & McNagny LLP in Fort Wayne, Indiana, and concentrates his practice in the areas of business bankruptcy, creditors’ rights and general insolvency matters. He is a Fellow of the American College of Bankruptcy. He has also written and lectured extensively on bankruptcy and insolvency-related topics and is a co-author of Bankruptcy- A Survival Guide for Lenders (First ed. 1997; Second ed. 2008), published by the American Bankruptcy Institute and winner of the ABI’ s Outstanding Publications Award (1997).

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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Law Tips: 13 Pointers for Improving Your Practice and Keeping Happy Clients!

What competent attorney doesn’t have a goal of “improving your practice and keeping happy clients?” This is an ongoing activity that can always benefit from reminders. With those thoughts in mind, I am happy to have the input of a veteran member of ICLEF’s faculty for the 12th Annual Family Law Institute in this week’s Law Tips. J. David Roellgen is a partner with Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana, who has practiced Family Law for over 33 years. He offers a list of pointers that might bear reviewing by all practitioners, regardless of your practice area.

1. Make sure that you have a full and frank discussion with your client so that expectations can be set and appropriately managed from the beginning. There is nothing less fun than finding yourself arguing with a client about why the law is a certain way or why that is not fair in their particular case.

2. Of course, always return phone calls promptly, hopefully in the same day if at all possible. Good communication is key to lawyer and client happiness.

3. The client is in control of the case and if they are prepared to settle with or without your advice, then the case needs to be settled. If your client is rejecting a reasonable offer and wants to go to trial, it is a good idea to have them sign a document acknowledging that they are acting against your advice and that the results at trial may vary.

4. Self evaluation is difficult but client satisfaction surveys may be a way for them to reflect after some distance from the actual tumult of litigation and for you to reflect on ways to improve your practice.

5. Clients should sign retainer agreements that permit withdrawal within the rules of ethics, in the event you are not paid for services.

6. Use the evergreen approach for retainer fees which means that it periodically needs to be replenished.

7. Determining how you will be paid is important at the initial meeting. This could involve loans, mortgages, notes, family or friends who may guarantee payment.

8. If you give clients homework, make sure they actually do it. If they are not filling out initial client intake forms, they are probably not going to do any homework that you assign them. In our firm, we call clients who’ve been unhappy and sought other counsel as “Second Hand Rose.” If they were unhappy with the first series of representatives, it is only a matter of time before they become unhappy with you.

9. Pay attention to the support staff as they are in the trenches and might be able to point out strength and weaknesses that you have become blind to.

10. Know your limitations. If it is an area of law you want to learn, you might want to do that in an academic setting and not at some client’s expense.

11. If the client doesn’t make you feel right about a position, demand, or tactic, trust your gut.

12. After the attorney client relationship has been established, have the client set out goals in the case that will help you understand what is important to the client and also provide early warnings of client expectations or goals that are unreasonable, unlawful or unethical. Once the goals are completed you can meet with the client and go through those on a line by line basis and focus on attainable ones or one that may need to be modified due to unrealistic expectations or the state of the law.

13. It will likely be necessary to revisit these goals as the case progresses and client dictates set in.

Dave Roellgen’s list does include #14, as well. That would be a thorough “End of Case Questionnaire” that space doesn’t allow us to include here.   Among other topics, the questionnaire provides the client with the opportunity to give feedback on whether their expectations of the firm were met, any improvements they might recommend and future legal needs.

I appreciate Dave sharing his “happy clients” guidelines. ICLEF’s 12th Annual Family Law Institute provides additional valuable advice from Dave Roellgen and 22 of his fellow faculty. You may choose to attend this CLE by Video Replay in the coming weeks, or schedule your own session On Demand by Clicking Here. Or, if you prefer to add the seminar manual to your library, Click Here to download.

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About our Law Tips faculty participant:
J. David Roellgen is a partner with Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana. Having enjoyed the practice of law for over 33 years, Dave was educated at Vincennes University, Indiana State University and Indiana University-Indianapolis Law School, JD, cum laude, 1979. He is a past president of the Knox County Bar Association, a member of the Indiana State; Illinois and American Bar Associations; Fellow, Indiana Bar Foundation; Court of Military Appeals; Retired LTC, Indiana Army National Guard, last serving as the Staff Judge Advocate for the 38th INF. DIV. (MECH), and is City Attorney, City of Vincennes, 1992-1995; 2001- 2007; and 2012-present.

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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