Monthly Archives: June 2011

20,000 Librarians Descend on New Orleans

We had a great time exhibiting ALA’s annual conference in New Orleans this year! Of course, we wanted to set up Cafe Du Nolo and serve extra sugary beignets but it turns our new books The Legal Answer Family Book and The Volunteer’s Guide to Fundraising brought an equally satisfying number of librarians to seek us out. We love collecting a wish list from librarians because it always includes “We need more, more, more!” and it helps to determine how else we can serve this passionate market. Our favorite thing from the show was a t-shirt in the Google lettering that said “Librarians: The Original Search Engine.” And we certainly believe it.

 

The Case for Abolishing Probate

Probate, the court supervised process to distribute assets after a person’s death, is a legal relic — a holdover that traces its roots to feudal law. No other country still has an expensive, time-consuming probate system like ours. Even England, the source of our probate law, eliminated its probate court system in the 1920’s.

But in this country, unless you make arrangements during your life to transfer your property by means other than a will, or have a very small estate, the probate court will oversee distribution of your property after you die. The process is an elaborate, often needless legal dance, full of papers to be filed, notices to be served and published, inventories, appraisals and court hearings. Eventually — usually, after nine months or more — the court orders the property to be turned over to the beneficiaries.

But before beneficiaries get a thing, hefty lawyer’s fees are deducted. Depending on your state, fees can consume 5% – 7% of the property—$25.000 to $35,000 of a $500,000 estate. A study by the American Association of Retired Persons estimated that American lawyers receive $1.5 billion a year in probate fees.

In a number of states like California, where the lawyer charges a percentage of the value of the estate, attorney’s fees are often far in excess of what would be reasonable for the work actually done. Unfortunately there is no requirement that unsuspecting heirs be told that they’re legally entitled to negotiate a lower fee. And even where lawyers charge for probate services by the hour, fees are often scandalously high. Many lawyers bill at upwards of $400 an hour, but turn the actual routine paperwork over to paralegals, who are paid a small fraction of that amount.

Probate’s defenders assert that the system protects beneficiaries by making sure they receive property left to them and protects creditors by making sure they are paid from the estate before assets are distributed. The reality is that very few estates need these alleged benefits. Most people adopt simple estate plans leaving their property to a few loved ones and naming a trusted family member or friend to supervise distribution. And few people have serious debt problems when they die. What debts remain can simply be paid by their named personal representative from the property they leave. For the rare estate with tangled finances or complex legal claims, court supervision can be valuable. But that’s no reason to require all wills to go through probate.

Because probate has become widely discredited and mistrusted, a substantial legal industry has grown up to show people how to avoid probate. People who take the time and trouble to plan ahead can take advantage of a number of ways to leave property without having it go through probate. They can hold property in joint tenancy, put money in pay-on-death bank accounts or establish a living trust. With a living trust, property is usually transferred to beneficiaries within a few days or weeks after its owner’s death. No court proceeding of any kind is required.

You would think the fact that living trusts and other probate avoidance devices, such as the ability to name a beneficiary for IRAs, 401(k)s, and other retirement accounts, have proved to be safe and efficient ways to distribute property free of probate would be all the ammunition needed to do away with probate. Better think again. Estate planning lawyers who originally reviled living trusts, have seized on them as a money machine, sometimes even unabashedly advertising that by using one, people can avoid “the horrors of probate.” The fact that lawyers created probate in the first place, and lawyer trade groups fight to keep it on the books is nowhere mentioned.

People who go to lawyers to have a living trust drawn up may end up paying up front much of the money their heirs would have eventually shelled out for probate. Even a basic living trust for a couple is likely to cost upwards of $2,000. Fees are correspondingly higher for fancier trusts. Enough said, we hope.

What to Do

Some states, notably Wisconsin and Maryland, have made efforts toward simplifying probate procedures. They have streamlined procedures and encourage people to handle probate without a lawyer. California and some other states have created fill-in-the-blank forms for probate paperwork and many states have simplified procedures for transferring small amounts of property or property that is left to a surviving spouse. (Learn about Probate Shortcuts in Your State.)

These reforms, however, don’t go nearly far enough. At the least, probate should be abolished for property left (as most is) to spouses and other close family members. But the better solution is to do away with the entire probate system, as England did way back in 1926.

People who inherit property under a will should be allowed to take legal ownership of it without court supervision. In most cases, putting inherited property into the name of the new owner is a simple process, requiring little or no paperwork—just like transferring property when you’re alive. The fact that this is already done everyday via half a dozen probate-avoidance schemes proves it’s safe and effective.

But what if a will is contested, or other irregularities, such as trying to disinherit a spouse, are claimed? Fine. Court proceedings can and should be available. But because such challenges are quite rare, the vast majority of people would never have to face the stress and expense of a needless court proceeding.

Make the Courthouse User-Friendly

It’s obvious, from the moment you walk in, that courthouses do not welcome the public. Unlike most government facilities, there’s rarely a central information desk or consumer-focused window. Although more information is available than a decade ago, in most states the kind of informative pamphlets typically found in a Social Security, motor vehicle registration or IRS office are largely absent. Sometimes there are special lounges, work areas and phones for lawyers, but benches in the hall for everyone else. Court clerks’ offices, where every significant paper must be filed, are with some exceptions, confusing and intimidating. Trying to do business there can seem like a bad dream in which you are lost and need help, only to be faced with perpetually hurrying people, unmarked information windows and long lines of people who don’t speak your language. Rarely will you find a simple sign that says “Non-Lawyer Filing Window” or “Information for the Self-Represented.”

Assuming you get your papers filed and your hearing day arrives, even finding the right courtroom can be exhausting. In many courthouses, hundreds of litigants and lawyers must crowd into a single room every morning while a judge or clerk reads off courtroom assignments in semi-code, with the speed of a tobacco auctioneer. For example, “Smith v. Evans to 17, trailing,” means that case will eventually be heard in Courtroom 17, after some other cases go first. Which raises another big problem for the self-represented. Lawyers can often take advantage of the fact that lots of hearings are scheduled for the same time by scurrying form one courtroom to another, but people who represent themselves must cool their heels while lawyers are served first — sometimes for days.

Lack of respect for the public is also reflected in courtroom procedures. People without lawyers often don’t know exactly where to sit or stand, or how to approach or address the judge. (Check out Nolo’s article Tips for Success in the Courtroom for some helpful hints.) A simple pamphlet with clear instructions on how to accomplish these most basic of tasks would be quick and easy to put together. It has rarely been done.

Most court clerks, lawyers and judges, for whom the current system is familiar and comfortable, don’t even see the many barriers that deny non-lawyers equal access to the legal system. They have been trained to believe that to enter the judicial system, citizens really should pay for a lawyer’s help.

What to Do

Courts must be examined from top to bottom with an eye to eliminating this pervasive and essentially anti-democratic bias. Here are just a few of the things courts need to do:

  • Publish an “access catalog,” designed like a college course catalog, which describes what the court can do for people. It should spell out how much a procedure costs, how long it takes and where to find more information.
  • Like other complicated bureaucracies, every courthouse should have employees — advisors and filing clerks — whose only job is to help ordinary citizens navigate the courts. They could be paid for by filing fees paid by the self-represented.
  • Courts should distribute instructional materials on site and online to help people with routine court procedures. For example, printed forms for a simple divorce, stepparent adoption or guardianship should be available with complete instructions along with the answers to frequently asked questions on the court’s website and in the courthouse. Videotapes that show how the courtroom process works should be readily available at the courthouse.
  • Courthouses should take a look at their designs, with an eye to making them usable by ordinary citizens. Start with simple aids such as clear signs and information booths (which could be staffed by retired lawyers), and move toward providing other services such as work stations, evening court sessions and drop-in childcare for parents who must go to court.
  • To ensure accountability, a non-lawyer board of directors could monitor a courthouse’s treatment of the public. Such a board could also deal with complaints from the public.
  • In larger courthouses, self-help law centers should be routinely available to help self-helpers who need help selecting and completing forms for routine uncontested filings. In some states this has been accomplished (the California Courts Self-Help Center is one of the best), often in Family Law or on a trial basis in a few cities or counties. But unfortunately, this most basic of democratic reforms is not widely available. Money from the filing fees paid by self-represented litigants should be used to pay for these centers rather than being used for general court upkeep.
  • Where public law libraries are available they should be reorganized to best serve consumers as well as lawyers.

This post was co-authored by Jake Warner and Stephen Elias.

40 Years of Copyright Law Changes

Ah, 1971, the good old days when nobody, except for a small group of attorneys and judges, even knew that “intellectual property”(IP) referred to copyrights, patents and trademarks. More importantly, back in 1971, consumers had no means of infringing intellectual property unless they owned a record pressing plant, a printing press, a film processing machine, or some other manufacturing device. Flash forward to 2011 and anyone with a smart phone can copy Nolo books, podcasts and Nolo videos. Intellectual property law has changed so dramatically in the past 40 years that documenting all of the major changes would take a week’s worth of blogs. So, we’re going to just focus on five big changes to IP laws that affected Nolo.

Public Domain and the Never-Ending Copyright. In 1971, when Nolo was founded, the copyright in a Nolo book usually lasted an average of 56 years. But the 1976 Copyright Act initiated a new formula – copyright for the life of the author plus 50 years. For a Nolo author, that could mean that copyright in a book—for example, Patent It Yourself—could last longer than a century. In 1998, spurred on by the Disney Company and its aging mascot Mickey Mouse, the U.S. passed the Sonny Bono Copyright Term Extension Act which extended protection further (life of the author plus 70 years). One effect of this extension – which was challenged and upheld by the courts – is that for a twenty-year period ending January 1, 2019, no new works will fall into the public domain in the U.S.

Fair Use Defined. Five years after Nolo was founded, the U.S. overhauled its copyright law and included a historic first – a section defining fair use and establishing four factors to determine whether an infringement was excused as a fair use. The Supreme Court subsequently reshaped that provision twice.

(1984) The Court ruled in the Betamax decision — thanks to some helpful testimony by TV’s Mr. Rogers—that recording television shows off the air for purposes of later viewing (time-shifting) was a fair use. That was also the first time that the Supreme Court said that copying of a complete work (not just a snippet) was okay. It was also the first copyright case to touch a popular nerve. The Supreme Court received a record number of “friends of the court” briefs (non-parties expressing an interest in the case), and the nascent video industry rallied Betamax owners to lobby their elected officials to prevent legislation that would have nullified the Court’s ruling. The Betamax case was a precursor of the battles over digital copying, most noticeably the Napster case.

(1994) The Supreme Court held in Campbell v. Acuff-Rose Music Inc. that 2 Live Crew’s parody of Roy Orbison’s song, “Pretty Woman,” was a fair use. Prior to this ruling, most courts weighed the four fair use factors and placed the most emphasis on the “money” factor — the effect of the use upon the potential market. But in Campbell, the court mandated that it was the first factor –purpose and character of the use — that was most important. The question to be asked according to Campbell was whether the material taken from the original work was transformed by adding new expression or meaning, by creating new information, new aesthetics, new insights, or new understandings (sometimes referred to as the “transformative factor”). In a recent dispute where Nolo was threatened with a lawsuit over use of an image, Nolo was able to negotiate a settlement by asserting rights under the Supreme Court’s “transformative” standard.

The Intent-To-Use Trademark. Prior to 1998, there was no way for a company developing a new product to reserve a federal trademark. But the Trademark Law Revision Act of 1988 changed that and for the first time permitted applicants to “reserve” a trademark based on a bona fide intent to use the mark in the future. The new applications (dubbed “1b applications” or “intent-to-use applications” or simply ITUs) made it possible for Nolo to reserve one of its marks for a new software product.

Cybersquatters beware. Speaking of trademarks, Nolo was also able to take advantage of another change in trademark law – passage of the Anticybersquatting Consumer Protection Act in 1999. That law enabled Nolo to successfully challenge a Nolo domain name being used in bad faith to siphon web surfers who sought out Nolo but ended up at another site. In another domain name dispute, Nolo was able to successfully use the international arbitration procedures managed by the Internet Corporation for Assigned Names and Numbers (ICANN).

The Provisional Patent Application. At the time Nolo was founded, if you had invented something but you weren’t ready to file a patent application, there was no effective, fast and cheap way to record your discovery at the United States Patent and Trademark Office (USPTO). Then, in 1995, President Clinton signed a law that allowed inventors to file a provisional patent application (PPA) – a simple document consisting of text and drawings that describes how to make and use an invention. Once the inventor sends it to the USPTO, the inventor establishes an effective filing date for the invention and can use the “patent pending” label on the invention—at least for 12 months from the filing date, at which point a regular patent application must be filed. In 2009, Nolo created an online procedure to simplify PPA filing. As a result, hundreds of PPAs have been filed electronically using Nolo’s system.