Legal Forms for Everyone

Preface

We live in an extremely complex society, and our interactions with other people and with countless institutions are becoming even more complex. If there is any doubt about the validity of this observation, you need only consider that ours is the most litigious society in the world. With this in mind, it has become clear that the protection and enforcement of individual rights, the need to solve disputes, and the management of legal affairs are rapidly becoming the routine concerns of each and every one of us.

It is a deeply rooted principle in American law that ignorance of the law is no excuse. Therefore, it is imperative that you have a basic understanding of law to protect your legal rights and interests and to conduct your legal affairs properly.

Renting an apartment? Buying your first home? Thinking about a will? Starting your own business? This book was designed for your use with these questions and many others in mind. While not designed to replace in any way the advice and services of a lawyer, this book is a self-help guide dedicated to the proposition that the information revolution has finally reached the courthouse and the lawyer’s office.

Included here are detailed and easy-tofollow forms, instructions, and advice for individual representation in areas such as wills, leases, patents, copyrights, trademarks, small claims court, name changes, divorce, bankruptcy, and IRS audits—each accompanied by a concise and lucid presentation of the relevant laws and rules. Other forms and discussions explain how to close on your house, make an assignment, prepare a power of attorney, contract for repairs and services, and several other very useful and potentially expense-saving procedures.

The idea here is to put together in a simple, non-threatening form the kinds of things you might need in your daily life. This book should provide you with a basic familiarity with the laws, legal forms, and procedures such that you can manage your simple legal affairs, or make an informed decision to seek appropriate legal counsel. This book also provides in many cases an estimated cost for typical legal services if you decide you need a lawyer.

This edition of Legal Forms for Everyone reflects important changes in the law since publication of the prior edition in 2001. As the laws are constantly changing, you are advised to check with the court clerk or an attorney in your jurisdiction for new developments. The sample forms and instructions in this book are appropriate for most, if not all, states and jurisdictions. You can typically call or write your court clerk for specific court rules and requirements.

Chapter

1 Managing Your Legal Affairs

Your Participation in the American Legal System

Do you have faith in the American legal system? A large number of people would probably answer this question with a resounding No. But despite a lack of public confidence, the American legal system is one of the best in the world.

Although it may appear to suffer from many problems and inequities, our legal system is remarkable. Our Constitution, the bedrock of our legal system, is a brilliantly crafted document designed to safeguard individual interests and freedoms while concurrently promoting public, societal needs. Our judicial and legislative processes assure that the intent of the Constitution is carried out. Our country has a well-trained and active judiciary. Our legal profession has an abundance of talent and resources. But to work most effectively, our legal system requires public awareness and participation.

Our legal system needs a public desirous of being knowledgeable of the law. It needs a public willing to monitor, evaluate, and formulate legal policies. Further, it needs public confidence and support. American democracy cannot flourish without the will of the people. The American legal system cannot, and will not, function effectively without you.

The American legal system affects virtually every aspect of our daily lives. Laws regulate our family relationships, commercial activities and social conduct. Regulations govern the food we eat, the garbage we throw away, and the places we park our cars. While our individual liberties, such as freedom of speech, press, and assembly, are protected by the Constitution, our legal system regulates countless aspects of our daily lives.

The laws regulating American society do not necessarily represent a destruction of individual rights. Many of the laws were enacted for the very purpose of protecting such rights. The protection of the law may be lost, however, because of lack of public awareness and mismanagement of legal affairs. Because an unwanted lawsuit or loss of important legal rights can destroy families, fortunes, and lives, you need to manage your legal affairs as routinely and carefully as you balance your checkbook. The magic formula is simply knowing your legal rights and knowing how to enforce them. For example, always read the fine print in an agreement before you sign it. Also, make sure important legal transactions are reduced to writing. A written document, such as a contract, a deed, or a will, can be extremely important as evidence of your legal rights and obligations. Never rely on oral promises or handshakes to protect your rights.

The importance of an informed public cannot be overemphasized. The growing popularity of televised trials and increasing news coverage of these events has resulted in many people now seeing our legal system at work. But despite this greater exposure through our mass media, many people still do not have a clear understanding of how the legal system operates and how cases are won or lost in court. You may want to personally attend court proceedings to see first-hand how the court system functions. Serving as a juror on a civil or criminal trial is another excellent way to see how the legal system works.

Your Right to Represent Yourself

More and more people are starting to take the law into their own hands. People are becoming hungry for information about law and self-help legal material. The 1980s and 90s will be remembered as the era of self-help. Many people are taking the do-it-yourself route in auto repairs, carpentry, home improvements, and many other areas. You also need to take the self-help approach in handling your simple legal affairs. Hiring a lawyer simply is not necessary for many of your routine legal matters.

The right to represent yourself is a basic concept of federal constitutional law. Although this right is nowhere spelled out in the Constitution, its existence is recognized by the courts as fundamental to our system of individual liberties. However, the right to represent yourself is not advantageous unless you have knowledge of the law. This includes knowing how to prepare legal forms and other documents, as well as how to safeguard and enforce legal rights.

Moreover, knowledge of the law encourages more public participation in the legal system. It eliminates the dependence that people have on lawyers in handling legal matters. Also, if you are familiar with the law, you will be better able to monitor a lawyer’s work if you need to hire one.

Some areas of law can be very complex and may require the services of a good lawyer. But, to the extent that you can, try to represent yourself in your simple legal matters. You may consider consulting with an attorney only for guidance as you prepare to handle the matter yourself.

Using This Book as a Legal Resource

The material in this book will enable you to manage many of your legal affairs by yourself. Each chapter covers a legal issue you are likely to encounter in your personal or professional life, such as how to prepare a will, how to hire a contractor, how to deal with a suit in small claims court, or other important legal topics. Following most chapters are sample forms and checklists to help you organize the steps you should take and the papers you need to prepare. At the back of the book are sources of additional information which can provide you with further help and information. Finally, your local law library and court clerks can be very helpful. You are encouraged to use all these resources. This book is not intended to replace the advice of legal counsel.

Even with all the help available from this book and other sources, at times you may find that handling a legal problem by yourself is too difficult. Some issues are just too complex, or perhaps you do not have enough time. There may be instances when you find it best to hire an attorney. The next chapter discusses the steps you should take when engaging the services of an attorney.

Chapter

2 Finding the Best Lawyer for You

Which Lawyer Is Right for You?

With the complexities of life and the laws governing us, the need for competent and effective legal advice arises on many occasions. Finding a good lawyer who is right for you and your particular situation can sometimes be difficult. There are, however, several sources you can use in helping you locate good legal counsel.

In searching for a good lawyer, you should use your personal contacts, local bar associations, telephone directories, legal publications, and community organizations. Each of these may be a good source of information and assistance in obtaining the right lawyer. Your final selection of a lawyer should involve an analysis of your specific facts, the complexity of your case, and the character and experience of the individual lawyer.

Unquestionably, the best approach for you in choosing a suitable lawyer is through personal contacts with relatives, friends, and business associates. Relatives and friends who have had similar legal matters satisfactorily handled can recommend their own personal lawyers. Such recommendations are the truest measure of a lawyer’s reputation and zeal. Moreover, relatives and friends will generally have your best interests at heart and are less likely to do a disservice in referring you to a lawyer.

Local bar associations usually maintain a lawyer referral service which can be employed in directing you to appropriate legal counsel. Specific information on these services can be obtained by calling or writing to the bar association in your area. They are usually listed in the telephone directory under Association or Professional Organization. The referral services typically involve a brief telephone discussion with a lawyer who reviews the general facts and refers you to one or more lawyers handling such cases.

Although this service does help in narrowing your search for the proper lawyer, it gives little aid in measuring a lawyer’s eagerness, character, and integrity. All lawyers are required to meet the standards of the Code of Professional Responsibility, such as zealously representing you, safeguarding your confidential discussions, and providing competent legal services. You need to find a lawyer who measures up to these standards.

As a supplement to their referral services, the bar associations in many cities provide taped lectures over the telephone. This is a good program for providing some basic legal information to the public. The taped lectures usually run from five to fifteen minutes and cover a variety of subjects such as criminal law, divorce, landlord/tenant relationships, and much more. The law tapes can be a valuable resource for helping you understand your legal problems and make informed decisions to seek legal advice. You can usually find these services in the telephone directory under such names as Lawline, TeleLaw, or the like. Also, you can generally contact your bar association for information on these law tapes.

As you can see, your local telephone directory is a very good source to use in locating a lawyer. The Yellow Pages, in particular, gives an extensive listing of lawyers and law firms. These can typically be found under the heading of Attorneys or Lawyers. Many Yellow Pages listings present basic information such as telephone numbers, office hours, fee schedules, and areas of concentration.

Legal directories, publications, and community organizations are additional sources for help in finding a lawyer. Many large urban areas have directories of lawyers, which often give information on both educational background and training. Legal magazines and newspapers frequently carry articles and advertisements by and about lawyers which may be useful to you. Community organizations such as neighborhood centers, local chapters of the American Civil Liberties Union, legal aid societies, law school clinical programs, consumer agencies, and tenants associations can also be excellent references.

In many areas, legal services plans can provide relatively inexpensive legal services for monthly membership fees of about $10-20. Many employers, unions, and associations offer legal services plans as part of their benefits packages. Legal services plans typically provide a list of plan lawyers who are available to you for handling some simple, routine legal matters at no additional cost. Examples of some normal services are the following:

•  legal consultation and advice in person, by phone, or mail during normal business hours;

•  legal letters and phone calls on your behalf;

•  preparation of a simple will;

•  review of documents, such as leases, real estate papers, contracts, etc., up to a specified number of pages;

•  advice in representing yourself in small claims court;

•  advice on your rights under government programs, such as Social Security and veterans’ programs; and

•  emergency bail service.

Check the telephone directory or your employee benefit manual for legal services plans that may be available in your area. Directories of legal services may also be available on the on-line computer services such as CompuServe, Prodigy, and America Online.

Legal clinics can also be a source for relatively inexpensive routine legal services. These clinics usually handle high volumes of simple cases such as bankruptcies, wills, uncontested divorces, personal injuries, and many others.

Your search for legal counsel should always focus on finding the right lawyer for you. This necessarily will involve an evaluation of many factors, such as the lawyer’s reputation, experience, loyalty, personality, and fees. You should always choose a lawyer that you can afford and trust.

You should try to find a lawyer who is experienced in handling cases such as yours. This is especially true in cases involving complex areas such as taxes, patents, malpractice, immigration, commercial activities, and other specialized areas.

It is important that you find out as much as possible about a lawyer before retaining him or her. Explore the lawyer’s reputation in the community and with former clients. Is the lawyer honest and loyal to clients? Is the lawyer responsible and conscientious about his or her work? To assist you in answering these questions, ask the lawyer for references and then contact them to investigate the lawyer’s reputation.

It is important that you review and understand fully all financial aspects of your case with your lawyer. You should get information on the lawyer’s fees, witness fees, court costs, and other charges in writing from the lawyer in advance. Avoid lawyers who are unwilling to discuss fees and charges up front. Try to get the lawyer to handle your case on a contingency basis, if possible. On this basis, you only pay your lawyer a percentage (typically one third) of your actual recovery. Lawyers typically handle accidents, personal injury, property damage, collections, and some estate cases on a contingency-fee basis.

You should review the merits of your case with the lawyer in detail. He or she should be willing to explain the legal issues and procedures to you. Watch out for lawyers who guarantee to win your case for you. Although a lawyer may be able to give you an estimated probability of success, he or she cannot ensure the outcome in any case.

If you have done your homework by becoming generally familiar with the law, you will be better able to monitor the lawyer’s work. All too often, however, people retain lawyers in complete ignorance of their legal rights and remedies, and with no understanding of what the lawyer is to do. There is no substitute for an informed client in ensuring proper integrity and performance by a lawyer.

Using the Sample Attorney’s Retainer Agreement

When hiring a lawyer, be sure to enter into a written retainer agreement. A sample Attorney’s Retainer Agreement is provided at the end of this chapter. Item 1 of the sample Attorney’s Retainer Agreement should be filled in by giving the date, the client’s name and address, and the lawyer’s name and office address. Item 1 should also describe as completely as possible the transaction or matter for which legal representation is sought.

Item 2 should include a complete listing of the duties and services the lawyer is to perform. This can become a handy checklist for gauging the lawyer’s performance.

Item 3 should set forth the manner in which you will pay the lawyer for legal services. This should include amounts, payment dates, and all other terms and conditions regarding payment of legal fees. The agreement may provide for a retainer or flat fee to be paid to the lawyer for handling the entire matter. Many times, the retainer is only a first payment or advance against an hourly or contingency fee. Alternately, provisions can be made to pay the lawyer an hourly rate, with the lawyer providing an accounting for his or her time. Also, the lawyer may accept payment on a contingency arrangement based on a certain percentage of any funds received.

Payment for costs and expenses such as court fees, filing fees, witness fees, long distance telephone calls, travel, copying of documents, and investigative services should be provided for in item 4. Generally, the client pays for these costs, but agreement may be made otherwise. In any event, try to obtain a good faith estimate of these costs from your lawyer and list them in item 4. You should require that the lawyer obtain your approval before incurring any costs and expenses greater than some specified amount.

Item 5 provides that you can terminate your attorney retainer agreement at any time and for any reason. Your lawyer can terminate the agreement for valid cause, such as your noncooperation or nonpayment, or with your consent. In any event, termination of the agreement should not be allowed when it would harm or prejudice your case.

Item 6 provides for the immediate refund of the money paid to your lawyer if the agreement is terminated, except that you and your lawyer may agree to deduct payment for time, costs, and expenses from your refund or credit.

Item 7 obligates your lawyer to give you or any new attorney a copy of all documents in your file at your request. Any additional terms that you or your lawyer may have can be added to item 8.

The agreement should be signed by both you and your lawyer. It is also recommended that the Attorney’s Retainer Agreement, as well as any other agrements or documents used from this book, be initialed and dated on each page to prevent fraud and substitution of pages. You should keep a copy for your records.

Chapter

3 Preparing Your Will

What Is a Will?

A will is a legal document which is prepared with certain formalities and under which you direct what will happen to your property after your death. Your will is effective only upon your death and it can be modified or revoked by you at any time during your life. If you should die without leaving a will, your property will be distributed according to state law and will generally go to your spouse and children or other next of kin.

There are several good reasons why you should prepare a will. Your will expresses