National Elder Care Law Expert Mary T. Schmitt Smith Presents at Second Annual ICLE Elder Law Institute

Schmitt SmithMary T. Schmitt Smith, a Partner at the Lipson Neilson law firm and a nationally recognized Elder Care Law expert, presented “Drafting Your Legal Representation Agreement” at the Institute of Continuing Legal Education’s (ICLE) second annual Elder Care Law Institute. This two-day event was held during September 15-16, 2016. Mary’s presentation provided attendees with valuable insight into topics including identifying who is and who is not your client, establishing the essential terms of the representation agreement, laying the groundwork for timely payments, keeping “the file” and for how long and in what format, and when to end the relationship. Mary also discussed the topic of being involved after the client’s passing, and how an attorney could address this potential with a client and secure consent in advance.

Mary T. Schmitt Smith advises clients about estate planning, tax, and probate options, with a distinct focus on drafting and administration of Special Needs Trusts. She is Michigan’s first Certified Elder Law Attorney. Ms. Smith served on the National Academy of Elder Law Attorneys Board of Directors and was recognized as a Fellow of the Academy in 2003. In 2005, she established the Theresa Law Center PC. She has received an AV-rating from Martindale-Hubbell for the past 17 years, and has been recognized as a Super Lawyer for the past ten years.

Ms. Smith became the ninth annual recipient of the national Theresa Foundation Award in recognition of her community service for people with disabilities in 2003. She received the EP Maxwell J. Schleifer Distinguished Service Award at Disability Awareness Night at Comerica Park in August 2011. Ms. Smith is a past president of the ARC of Oakland County, the nation’s sixth-largest ARC, and served on the Board of Directors for a dozen years, then on the Advisory Board for more than a decade. She is also a member of the ElderCounsel Advisory Board.

Ms. Smith is a founding member of the Special Needs Alliance, a national network of lawyers dedicated to disability and public benefits law. She has presented on probate, tax, estate planning, and special needs trust topics for bar associations and law schools in Michigan, Florida, Wisconsin, Massachusetts, Texas, and New Jersey, as well as NAELA. Ms. Smith is admitted to practice before the U.S. Tax Court and the U.S. Court of Appeals (6th Circuit), where she successfully appealed a federal district court decision interpreting Medicaid law in favor of a Trustee of a Special Needs Trust. She has published numerous articles in such publications as Michigan Bar Journal, the Oakland County Bar Association’s LACHES magazine, and publications distributed by national Elder Care organizations. To learn more please visit www.LipsonNeilson.com.

Contact: Mary T. Schmitt Smith
Phone: 248-593-5000
Email: msmith@lipsonneilson.com

2016 Super Lawyers List Includes Seven Lipson Neilson Lawyers

Bloomfield Hills based Lipson, Neilson, Cole, Seltzer, Garin, P.C., a national law firm with offices also in Las Vegas and Phoenix, is proud to announce that seven attorneys from the firm have been selected to the 2016 Super Lawyers list: Jeffrey Neilson, Steven Cole, Phillip Seltzer, Mary T. Schmitt Smith, Joseph Garin, Jessica Green and Corey Richter. No more than five percent of lawyers in a state are selected as Super Lawyers; and no more than 2.5 percent of lawyers are named to the Rising Stars list.

Jeffrey T. Neilson (Bloomfield Hills) has been selected as a Michigan Super Lawyer for the tenth consecutive year. One of the firm’s founders, Jeffrey is known nationally for his expertise in probate litigation, business counseling, estate planning and domestic and family law liability. In 2014, Jeffrey was reappointed by the Michigan Supreme Court to serve on Michigan’s Attorney Grievance Committee (AGC); this appointment is through October 1, 2017.

Steven R. Cole (Bloomfield Hills) has been selected as a Michigan Super Lawyer for the tenth consecutive year. One of the firm’s founders, Steven has a diverse practice focusing on real estate, business and corporate matters, and estate planning. Steven has previously served as an adjunct instructor of taxation at area business colleges and has taught continuing education courses approved by the Michigan Insurance Bureau for licensed insurance professionals. He has conducted numerous seminars for the Michigan Association of Certified Public Accountants, and has served on the boards of directors of public charities.

Phillip E. Seltzer (Bloomfield Hills) has been selected as a Michigan Super Lawyer for the sixth consecutive year. Phillip is a specialist in the areas of legal malpractice, accounting malpractice, architect and design professional malpractice, real estate broker errors and omissions, directors’ and officers’ liability claims, and complex business tort claims. Phillip is a member of the Litigation Practice and Torts Insurance Practice Sections of the American Bar Association; the Litigation, Business Law, Corporation and Negligence Sections of the State Bar of Michigan; the Defense Research Institute; the Michigan Defense Trial Council (MDTC); and the Professional Liability Underwriting Society (PLUS.)

Mary T. Schmitt Smith (Bloomfield Hills) has been selected as a Michigan Super Lawyer for the tenth consecutive year. Mary advises clients about estate planning, tax and probate options, with a distinct focus on drafting and administration of Special Needs Trusts. Mary is Michigan’s first Certified Elder Law Attorney and is AV-Rated by Martindale Hubbell for the past 17 years. She has served on the Board of Directors of the National Academy of Elder Law Attorneys, and is a charter member of the Special Needs Alliance, a national network of lawyers dedicated to Disability and Public Benefits Law.

Joseph P. Garin (Las Vegas) has been selected to the Mountain States Super Lawyers list for the tenth consecutive year. Joseph was recently selected to serve as a member of the new Professional Liability Advisory Board for the Claims & Litigation Management Alliance (CLM). This board is comprised of industry leaders from across the United States that will guide the development of extensive professional liability resources. The CLM is the only national organization created to meet the needs of more than 35,000 professionals in the claims and litigation management industries. Joseph is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management.

Jessica A. Green (Las Vegas) has been selected as a Mountain States Super Lawyers’ Rising Star for the third consecutive year. Jessica has defended many lawyers and law firms throughout the country during her career and is recognized as an emerging leader in Errors and Omissions (E&O), Employment, and Insurance Coverage law. Jessica is also well versed in education law and she serves as an Educational Surrogate Parent and Transition Specialist for the Legal Aid Center of Southern Nevada. In doing so, she advocates for children with disabilities, ensuring their schools are meeting their disability-related needs. Jessica is a national liaison for the Defense Research Institute Lawyers’ Professionalism and Ethics Committee.

Corey I. Richter (Phoenix) has been selected as a Southwest Super Lawyers’ Rising Star for the third consecutive year. Corey has represented the world’s most prominent manufacturers of automobiles and recreational vehicles in warranty, catastrophic injury and property damage litigation, and he also has experience representing clients in the aerospace and defense industry. He has represented clients in states throughout the country in matters ranging from administrative complaints by the Attorney General to complex multi-million dollar contract disputes.

About Super Lawyers
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

About Lipson, Neilson, Cole, Seltzer, Garin, P.C.
Founded in 1985, the firm has grown from three founding members to thirty-two attorneys located in three states. The firm has also expanded its expertise from its core business, tax and litigation practice areas during its early days, to currently offering a full range of practice areas including complex business tort litigation, professional liability defense, employment law and litigation, international law, real estate, probate litigation, family law and estate planning. Lipson Neilson attorneys represent and provide counsel to clients around the country, and around the world.

To learn more about the firm, please visit www.lipsonneilson.com, or call (248) 593-5000.

Contact: Jeffrey Neilson
Phone: (248) 593-5000
Email: JNeilson@lipsonneilson.com

Attorney Eric Tran Joins Lipson Neilson’s Las Vegas Office

tran-005-web-res-resizedAttorney Eric Tran has joined the firm’s Las Vegas office. Eric’s practice includes commercial litigation, personal injury, general liability defense, insurance coverage, insurance bad faith litigation, and professional liability.

Prior to joining the firm, Eric served as corporate counsel for a startup technology company in Las Vegas. He also previously served as a Deputy Attorney General for the State of Nevada defending state agencies and state employees in civil rights actions in both state and federal court. Eric is admitted to practice in the Nevada, California, and the United States District Court for the District of Nevada.

Eric received a B.A. in Political Science and Asian American Studies from the University of California, Los Angeles, and a J.D. from the Loyola Law School, Los Angeles. In addition to English, Eric is also fluent in the Vietnamese language.

Eric Tran’s Published Cases:

Andrew v. Century Sur. Co., No. 2:12-CV-00978-APG, 2015 WL 5691254, at *1 (D. Nev. Sept. 28, 2015)

  • Obtained summary judgment ruling that a $14,000,000 default judgment against an insured was a reasonably foreseeable consequential damage caused by an insurer’s breach of its duty to defend its insured; that an insurer who breaches its duty to defend its insured will be bound the default judgment against its insured; and that the insurer’s liability is not capped at the $1 million policy limit.

Brady, Vorwerck, Ryder & Caspino v. New Albertson’s Inc., 130 Nev. Adv. Op. 68, 333 P.3d 229, 230 (Aug. 7, 2014)

  • Obtained a favorable ruling in a certified question of law that the statute of limitations in NRS 11.207, as revised by the Nevada Legislature in 1997, is tolled against an action for attorney malpractice, pending the outcome of underlying suit including all appeals in which the malpractice allegedly occurred.

USF Ins. Co. v. Smith’s Food and Drug Center, Inc., 2013 WL 438585, 1 (D. Nev. 2013)

  • Obtained Summary Judgment in favor of Smith’s in a bad faith action arising from USF’s failure to defend and indemnify Smith’s in an underlying action from a third party.




David Michael Featured Speaker at Real Estate Law Seminar for New Lawyers

IMG_1417David Michael, an attorney at Lipson, Neilson, Cole, Seltzer, Garin, P.C., and the immediate Past-Chair of the Oakland County Bar Association’s Real Estate Committee, will be one of two featured speakers during the upcoming “Practical Knowledge Seminar on Real Estate Law.” This seminar will be conducted at 6:00pm on October 13, 2016 at the Oakland County Bar Association in Bloomfield Hills. Part of the OCBA U Practical Knowledge series, this seminar will provide new lawyers with insight into the nuts-and-bolts of real estate law in Michigan.

David Michael specializes in all aspects of real estate law and litigation and remains active in the Oakland County Bar Association’s Real Estate Committee. Most recently, Mr. Michael co-authored an article for the journal Laches titled “Avoiding the Abyss: Environmental Due Diligence in Real Estate” and—along with co-authors Brian Considine, Nicholas Maloof and moderator Philip Grashoff—presented a seminar of the same name on June 15, 2016, at Cooley Law School.

Contact: David Michael
Phone: 248-593-5000
Email: DMichael@lipsonneilson.com

Joe Garin to Speak at the 2016 CLM Claims College – School of Professional Lines

Joseph Garin resize 1Joe Garin, Managing Partner of the firm’s Las Vegas office, will be speaking at the CLM 2016 Claims College School of Professional Lines. The 2016 Claims College will be held in Baltimore, Maryland, September 7-10.

Each school is comprised of three levels and successful completion of all levels in a particular school will earn participants a respected and sought after designation, which will become the industry standard for identifying top-notch claims professionals. For individual schools, levels consist of pre-course reading materials, in-class instruction, group projects and an exam. The Claims College is not an industry seminar or conference, this is a true educational experience designed to help educate and grow the claims profession.

Mr. Garin is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management. He is also experienced in handling complex and commercial litigation matters, including cases involving unfair business practices.

Mr. Garin earned a B.G.S. degree from the University of Michigan and received his J.D. degree cum laude from Michigan State University-Detroit College of Law, where he was a member of the Law Review. He is a member of the State Bar of Nevada, the State Bar of Colorado, the State Bar of Michigan and the State Bar of Illinois. He is admitted before the United States District Court the District of Nevada, the District of Colorado, the Eastern and Western District of Michigan, as well as in the Sixth and Ninth Circuit Court of Appeals.

Mr. Garin is the immediate past Chair to the State Bar of Nevada Standing Committee on Professional Responsibility and Ethics and continues to serve as a member of the Committee. He is a member a co-chair to the Professional Liability Committee for the Claims and Litigation Management Alliance.

About the CLM
The Claims and Litigation Management Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.theclm.org.

David A. Clark Joins Las Vegas Office as a Partner in the Firm

David ClarkJeffrey Neilson, Managing Partner of the Lipson, Neilson, Cole, Seltzer & Garin, P.C. law firm, is proud to announce that former Bar Counsel for the State Bar of Nevada, David A. Clark, has joined the firm as a Partner in its Las Vegas office. Clark’s practice focuses mainly on professional liability defense, discipline defense, ethics opinions and expert witness testimony; he has worked as Of Counsel for the firm since August 2015.

“David has extensive experience in attorney regulation for professional liability, attorney discipline and commercial litigation. He has prosecuted more than 1,000 attorney grievances from the investigation stage through trial and appeal that resulted in reported decisions, and he filed emergency suspension and reciprocal discipline petitions to the Supreme Court. He’s a great addition,” said Jeffrey Neilson.

Clark worked as a prosecutor for the Office of Bar Counsel for 15 years, including five years as the chief discipline counsel for the State Bar. During this time, Clark obtained several injunctions and contempt orders in state court against parties who practiced law without authorization and successfully defended the bar in California and Nevada federal court against actions over prosecutions. He established the training program for the Southern and Northern Disciplinary Boards, obtained numerous changes to the Nevada Rules of Professional Conduct and the Supreme Court’s rules for attorney discipline, and he drafted the Disciplinary Rules of Procedure that were adopted in July 2014 by a task force and the Board of Governors.

Clark has presented during numerous continuing legal education-certified seminars on attorney ethics, has spoken about ethics and attorney discipline to paralegal groups, and taught paralegal ethics and legal research at the College of Southern Nevada since 2004.

He received a law degree from Loyola Law School in Los Angeles in 1990, and graduated with a bachelor’s degree in 1985 from Claremont McKenna College.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Bloomfield Hills, Grand Rapids, Las Vegas and Phoenix. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients across the USA and around the world. You can learn more about the firm at www.lipsonneilson.com.

Lipson Neilson Attorneys to Speak on Professional Liability Topics at 2016 Claims and Litigation Management Conference

Joe Garin, Karen Smyth, and Dax Watson, will be featured on panels of professional liability industry professionals at the 2016 Claims and Litigation Management Boston Conference held on July 14-15, 2016.

Joseph Garin resize 3Joe Garin, Managing Partner of the firm’s Las Vegas office, will discuss “The Lawyers: Global Perspectives on Data Collection, Transfer, Use and Disclosure.” This panel will cover expense and loss exposure to law firms and their clients inherent in data collection, transfer, use and disclosure; describe the emerging legal, regulatory and ethical issues facing the legal profession; and explore techniques to manage and transfer these risks. Joe Garin is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management. He is also experienced in complex and commercial litigation matters, including cases involving breach of contract and unfair business practices. Joe is a graduate of the Litigation Management Institute.

_DSC9496-8_0x10_0-03A-Q01Karen Smyth, a Partner in the firm’s Bloomfield Hills office and President of the Michigan Claims and Litigation Management Chapter, will discuss “Cyber Attacks on Professionals – How Far Will They Raise The Standard of Care?” This session will discuss types of attacks against professionals that give rise to claims by their clients, how to prevent and then defend lawsuits relating to such attacks, and the quandary of the standard of care: The more we improve how we deal with attackers the higher the standard becomes for everyone. Karen Smyth has considerable experience in the defense of professional liability cases, including legal malpractice, medical malpractice, and employment practices litigation. Karen is a graduate of the Litigation Management Institute.

Dax 81 x 81 compressedDax Watson, Managing Partner of the firm’s Phoenix office, will discuss “Ripped From the Headlines, Don’t Be Next!” Panelists will discuss case studies and volunteer commentary on legal issues and ethical implications. This presentation focuses on identifying these social media risks through recent headlines. The panel will emphasize how lawyers, insureds, claim professionals, and risk managers can successfully navigate social media. Dax Watson’s practice is focused in commercial litigation with an emphasis in real estate matters and professional liability defense. He defends professionals in the fields of real estate, law, accounting, architecture, and engineering. He also defends officers, directors and employers in employment practice liability disputes. Dax has appeared and represented clients in every county in Arizona; and has extensive litigation and civil trial experience, having tried dozens of jury trials.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer & Garin, P.C. has offices in Bloomfield Hills, Las Vegas, Phoenix and Grand Rapids. The firm is widely known for its professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients throughout the USA and around the world. You can learn more at www.lipsonneilson.com.

Moving to a New State Can Get Complicated

Mary Schmitt Smith resized 1Mary T. Schmitt Smith is a charter member of the Special Needs Alliance (SNA), and a Past President of the ARC of Oakland County. The SNA is a national non-profit comprised of attorneys who assist individuals with special needs, their families, and the professionals who serve them. SNA is partnering with The Arc – the largest national community-based organization advocating for and serving people with intellectual and developmental disabilities and their families – to provide educational resources, build public awareness, and advocate for policies on behalf of people with intellectual/developmental disabilities and their families. To learn more please contact Mary by calling 248-593-5000, or by email to msmith@lipsonneilson.com.

Moving to a New State Can Get Complicated

By Wendy H. Sheinberg, CELA; July 5, 2016, originally posted on The ARC blog.

Moving to another state is a challenge for most families. If a family member has disabilities, that challenge is even greater. State benefit programs vary, and states administer federal programs at the local level making it even more complex. When a member of your family has disabilities, it pays to do plenty of upfront research and to construct a “safety net” to protect against unanticipated gaps in service, problems and delays.

Health Care

Over the years, you have probably spent considerable time scouting for doctors, therapists, and other service providers to meet your loved one’s specific needs. Be prepared to start over.

First, there’s the question of insurance. If you have a private policy, perhaps through an employer, moving to a new state may mean a new policy with different coverage or different premiums. If you have purchased coverage under the Affordable Care Act (ACA) through a state insurance exchange, you will need to learn what is available in the new location. ACA typically provides for a 60-day special enrollment period when a permanent move requires a change in health plan. To be safe, check on eligibility requirements early.

Medicaid is even more complicated, since you must reapply once you have moved. It can take anywhere from 15 to 90 days for approval to come through, although coverage will be retroactive. In the meantime, you will need to make other arrangements to handle critical needs.

Medicare is a federal program. Moving to a new state should not affect Medicare benefits. However, it is important to review and confirm that your Medicare supplemental policy and your prescription drug plan provide coverage in the new state.

Once you understand how you will be paying for health care, you will need to determine what resources are available. Local advocacy groups─ such as chapters of The Arc─ will likely be a source for advice and referrals. To minimize disruptions, establish as much of your new provider network as possible ahead of time.

Interview early intervention services and doctors before you relocate—ideally face-to-face, or by traditional or video teleconference, if necessary. Have medical records sent ahead to new physicians and schedule visits as soon as possible once you’ve moved. Ask your new insurance provider to pre-authorize prescriptions, and bring at least a 30-day supply of important medications with you.

Special Education

While the Individuals with Disabilities Education Act (IDEA) requires your new school district to provide services and supports comparable to those provided in the existing Individualized Education Program (IEP), you may have to renegotiate the IEP. Additionally, a 504 plan or other modified curriculum may also require renegotiation. The good news is that your existing records should provide a strong foundation for new discussions. In fact, if it’s time for the current plan to be updated, do so before the move so that your assessments and supporting materials are as current as possible. It can be hard to get school files during the summer, if you are moving during the summer, be sure to get the needed copies before classes end.

For military families, who generally relocate every few years, this is a recurring problem. Check out the Department of Defense’s special ed checklist.

Decision-Making Supports and Guardianship

Decision-making support can vary from state to state. If your adult child has executed a power of attorney, health care proxy or a supported decision-making agreement, consult with a special needs attorney in the new state to confirm their validity.

If your family member has a court-appointed guardian, you should consult a special needs attorney in both locations to understand your particular situation. Some states require that the guardian obtain court approval before the person under guardianship moves to another jurisdiction. You may also want to take this opportunity to explore a less restrictive means of providing support in the new state.

Many states do not recognize guardianships granted elsewhere. Unless both states have signed a reciprocity agreement, you could face different definitions of capacity, restrictions on a guardian’s role and more. Even if your new state will recognize a guardianship originated in your home state, most uniform guardianship statutes require some form of filing with the court in the new state.

SSI/SSDI

If you inform the Social Security Administration of your new address early, there should be no disruption to your SSI (Supplemental Security Income) or Social Security disability benefits. However, the amount of your monthly SSI payment could change, since it has both federal and state components. There will be no difference in Social Security disability benefits, based on work history of the individual or their parent.

SNAP (Food Stamps)

Check regulations in your new home state ahead of time, since there are differences in how this federal program is implemented locally. In some areas, there are significant asset limits for people with disabilities.

Social Service Agencies

Day care, in-home services, social programs, career assistance and other supports vary greatly from state to state. Do your research well in advance to understand what awaits you.

Medicaid Waivers

While Medicaid eligibility is based on federal law, the eligibility standards, services, and support available through Medicaid waivers vary dramatically between states. These services include case management, residential services, employment services, and other non-residential services. An important consideration is that many states have years-long waiting lists for services, and new residents must reapply and go to the end of the line.

Housing

  • Home Ownership– Accessibility features may be high on your list, and it could be necessary to make alterations to your new residence. Architects or housing planners may be willing to view properties on your behalf and to advise on costs, which can differ sharply from state to state.
  • Section 8 vouchers – This is a national rent subsidy program, so if you already have a voucher, it will be recognized anywhere in the U.S. However, you will be responsible for letting your current Public Housing Authority know that you wish to move, working with the Public Housing Authority in your new area to locate your own housing, and terminating your current lease in accordance with its terms. “Portability” in Section 8 housing is very complicated and there are many pitfalls. See: https://portal.hud.gov/hudportal/documents/huddoc?id=DOC_35623.pdf

Special Needs Trusts (SNTs)

Have any special needs trusts (SNTs) checked by a special needs attorney in your new home state as soon as possible, since it may be necessary to have technical corrections/amendments made.

ABLE Savings Accounts

At this writing, 46 out of 51 states have enacted ABLE Act legislation, and many states are beginning to launch their ABLE programs. The original ABLE account legislation required the creation of the ABLE account in the individual’s state of residence. The December 15, 2015, amendment of the Able Act, as part of the Tax Extenders Package, removed the residency requirement. If the individual moves to a new state, the move will not affect the validity of the existing ABLE account. When moving, it is important to remember that each individual may only have one ABLE account. While you do not have to open a new account in the new state, if you decide to have a local account, be sure to follow all procedures to transfer the account so that there is only one account in existence.

Disability Parking Permits

To avoid delays in obtaining a disability-parking permit, try to register cars and vans ahead of time by having a family member relocate early. You’d be surprised how long this can take in some states.

The regulations and paperwork involved in crossing state lines can be dizzying. Delays and omissions can have serious repercussions for your loved one’s quality of life. Unfortunately, there’s no way to make this process easy, but if you begin planning early, you can lower your family’s stress level.

Think about keeping a binder with important documents that you update each year. Another option is scanning and filing documents online in a “cloud” account, which will save you from combing through boxes upon arrival in your new home.

To learn more please contact Mary T. Schmitt Smith by calling 248-593-5000, or by email to msmith@lipsonneilson.com.

It is the “Practice” of Real Estate…Not the “Perfection”

Article written by Dax Watson.

Several years ago I was defending a real estate agent in a jury trial down in Tucson. The trial was scheduled for five grueling days. Interestingly, the only claim against the agent was for Fraud. I note this because Fraud is an incredibly serious claim, which carries a high burden of proof.

I really wanted to hammer that ominous note home for the jury and put the actual claim of “fraud” on trial. I needed the jury to understand that it was astonishing that these plaintiffs were claiming that my client had actually set out to intentionally harm them, plotted even. To alert them from the outset that plaintiffs had to prove that she was some sort of a criminal no less.

I had a large paper flip board placed in front of the jury for my opening statement. I use paper flip charts or grease boards quite a lot in trial. During opening statements or when examining a witness I drive home key issues/points by writing on the board. This stimulates additional senses for the jurors and engages them in the trial process. They listen, watch what I am writing and absorb those key points – if it is important enough to write down, it must be important for them to remember. It is an old lawyers’ trick.

So, at the outset of trial – the opening statement – I walk up to the flip board and write, in big bold black letters the word Fraud. I then spend the next forty five minutes putting on my best lawyer show. I was theatrical, impassioned… I was Tom Cruise from “A Few Good Men.” I underlined the word Fraud several times to make a point. I drew arrows, circled it, even put a star next to it. It was a show.

When finished, I walked back to defense table and took a seat. I left my flip board behind, staring at the jury. This is another old lawyer trick…leave it up and make plaintiffs’ counsel remove it. If he or she is paying attention, they will immediately take it down. If not, it will sit there while the trial marches on, reminding the jury of my impassioned plea and, of course, my brilliance. Plaintiffs’ counsel left it there in all of its glory.

I had a young attorney with me at this trial. So, I leaned over and asked him how he thought the opening statement had gone. Dead silence. I looked towards him. He was pale and appeared to be almost shaking. Something was wrong. Frantic, I asked him, “what is it… did I mess up?” Almost quivering, he replied…”you misspelled Fraud.” What? I looked over to the flip board and staring back at me was not Fraud, but FRUAD. And, not only was it staring back it me, it was doing so in all of its disgusting glory – in bold, underlined, starred, with arrows. I think I almost wrote a smiley face up there. How humiliating. What a colossal mistake. The first impression I left with the jury was that I was/am a moron. How can this moron possibly defend this agent and protect her license?

I had five days to stew over this devastating turn of events, caused by my own hand. The trial went on. I vigorously defended my client and we kept with our game plan. But, that lemon of an opening was still hanging out there and weighing on my mind. What to do… what to do?

The next and only other opportunity I would have to directly speak to the jury was during my closing argument. Five days had passed, but, it had felt like five years as I had been yearning for this moment to address the great FRUAD incident.

I calmly stepped up to a now blank flip board. I stood in front of it so as to block the jury’s view. I then proceeded to write in big bold letters: FRUAD. I moved away from the board to show the jury my wondrous work. They looked at me quizzically. I could see it in their eyes, “he did it again!!!”

I began my closing. I acknowledged that I had misspelled the word. I did not run from it. I even commented that it must have puzzled them. It may have even caused them some concern that my poor client did not have the sharpest tool in the shed on her side. I noted they probably had a good laugh about it during breaks in the jury room. I then told them that I had done it on purpose. Once again, their faces contorted and confusion set in. I said… “yes, I did it on purpose. I intentionally wrote Fruad for you, I switched the A and that U. I did so because I am a two time graduate from ASU and an ASU boy – but, I wanted to show my respect down here in Tucson so I switched the A and the U to give a nod to the U of A.”

They laughed. I made a connection and I had successfully moved on from a mistake I had made five days earlier. We won the case.

I practice law. Real estate licensees practice real estate. Neither is a science. Neither is perfect. I like to say real estate licensees are in the mistake business. Licensees are going to make mistakes. You are human and it is inherent in what you do for a living. Your job then, is to work hard at your craft to minimize those mistakes. You do so through education, experience, asking “why” and “how” and seeking HELP. Use your brokers. Use me. We can minimize issues, solve problems and limit when things go sideways.

Perhaps most importantly we need to address mistakes when they happen. We never run from them. I gave myself a lemon in that trial and made it into lemonade. As a team, we can and will address and solve problems and overcome mistakes. We will never turn the practice of real estate into the perfection of real estate…but, we can come darn close!

About the Author
Dax Watson compressedDax Watson has extensive litigation and professional liability defense experience. In addition to his legal practice, Watson is approved to teach legal issues, agency and disclosure, and property management by the Arizona Department of Real Estate. He regularly teaches risk-reduction classes to, and seminars for, real estate Brokers throughout Arizona.

To learn about the Lipson Neilson law firm please visit www.lipsonneilson.com.

Contact: Dax Watson
Phone: 602-626-8888
Email: DWatson@lipsonneilson.com

Dax Watson Teaches Class Titled “An Accountant’s Guide to Minimizing Professional Liability” at 2016 Scaling New Heights Conference

Dax Watson compressedDax Watson, Managing Partner of the Lipson Neilson law firm’s Phoenix office was selected to teach a class titled “An Accountant’s Guide to Minimizing Professional Liability” during the prestigious Woodard Scaling New Heights conference held May 22-25 at the Atlantis on Paradise Island, Bahamas. Joining Dax in teaching this session was John Torvi, Vice President of Marketing & Sales at the Herbert H. Landy Insurance agency.

This session provided an in-depth understanding of specific issues and circumstances that lead to lawsuits and other negative consequences of practice errors as well as practical knowledge and tips to avoid malpractice claims or complaints. The session also covered the “ins & outs” of a professional liability insurance policy so that an insured will be covered, and what to do if your firm is sued or accused of malpractice. This session was approved for 2 Continuing Professional Education (CPE) credits for those attending.

Unfortunately, accounting professionals continue to get sued for common malpractice issues. These include allegations of not applying prudent standards of care (especially when multiple standards may apply), exposure under securities laws, missed deadlines and missed or late filings, failure to develop, implement and consistently practice quality control measures, failure to detect fraud and the negligent preparation of tax returns or giving improper tax advice. In addition, they face a growing threat to their practice in the form of a privacy or cyber security breach.

No longer just a concern for large corporations, the consequences of a privacy breach can be devastating to any business. Whereas a malpractice claim may “only” involve a lawsuit, an event involving loss of data could also include civil penalties and state-mandated notifications and credit monitoring; if your firm practices or has clients in multiple states, the complexities of compliance and remediation can be staggering.

This conference attracted nationally renowned speakers such as Daymond John, star of the business reality show Shark Tank. The overall purpose was to provide education for small business owners and managers, and for accounting professionals that work with small businesses.

Dax Watson has extensive litigation and professional liability defense experience. In addition to his legal practice, Watson is approved to teach legal issues, agency and disclosure, and property management by the Arizona Department of Real Estate. He regularly teaches risk-reduction classes to, and seminars for, real estate Brokers throughout Arizona.

To learn about the Lipson Neilson law firm please visit www.lipsonneilson.com.

Contact: Dax Watson
Phone: 602-626-8888
Email: DWatson@lipsonneilson.com