Practical Law

In the posts we call “Practical Law”, we look at legal issues through the filter of common sense in managing your own circumstances, and a matrix that overlays case law across statutory law and woven into the general state of legal status throughout the various states around America.

Thus, we are not here offering legal advice per se, but rather analysis of the law, with recommendations on applying the law to your own needs. While the law is constantly changing, the practical means of pursuing an outcome often stays the same, or only changes a little.

So, in other words, if local law concerning the formation of a new business changes significantly in a given year, the means and methods of forming a new business overall, do not. If an LLC made sense when you started the process, it likely makes sense even in the face of a change in the law. And that is true when federal tax law changes too – as it did this year.

Good lawyers are accustomed to commenting on changes in the law but maintaining similar advice on what to do, that they may have given for years. The way you structure a transaction, or litigation, doesn’t tend to change much based on a change in the law.

Generally, when new laws are enacted, the legislatively body that is changing them is reacting to a problem that exists in the larger culture, a problem lawyers already know exists, and they have addressed before. When it’s presented following a change in the law, the lawyer will continue to try to achieve the same outcome for you he would have before the law changed, but addressing the nuances created by the new law. This tends to be much more consequential to the way he goes about his work, than it does for the advice he gives to you. Good outcomes are good outcomes regardless of how the law prescribes how to get there.

Case law, on the other hand, can affect the advice a lawyer gives more than a new statute typically will, but even then, the direction remains focused on the same outcome you were seeking before a new case made a change in the law.

For example, there was a case decided in Indiana a few years ago regarding the application of the rules of evidence in “summary judgment” proceedings, which are, ostensibly, not evidentiary proceedings, but rather a procedural tool used to get to judgment short of going to trial when relevant and material evidence is not in dispute.

Whatever the law, every case must have some underlying facts that establish the law that applies to the case. So, in the particular case I mentioned above, the Indiana Court of Appeals established a new rule that clarified the procedural rules regarding how the evidence is presented to the court outside the ordinary process involved when there is a trial.

The court’s ruling raised the bar for creditors to establish the existence of debt by using affidavits of employees regarding records kept in the ordinary course of business and attesting to the debt itself.

Any lawyer applying this case law must now be sure his client includes the necessary statements in an affidavit to make it usable in the courtroom. The end goal, or the larger process for getting to that goal, however, remains the same in spite of the new precedent that exists.

The better news is that the new precedent has implications for every civil case brought in the state of Indiana. The rule applies regardless of whether you are talking about collecting a debt, a real estate transaction, or even a family law matter. It involves a rule of evidence that affects all areas of the law.

Practical law essentially means figuring out how the legal environment shapes the means you utilize for getting to a worthy goal. It may vary a bit from state to state, or from time to time, but in the end, the focus remains on achieving the worthwhile goals you have already established.

Don’t underestimate the value of good legal consultation in the process of determining what will work for you. You don’t always have to put an attorney on retainer to achieve the outcomes you’re seeking, you may be able to pay for one or two hours of his time and get what you need from the attorney, at least for the moment.

At Landmark Legal Services, we strive to be effective advisors in every situation our clients need our assistance. Often litigation isn’t the answer to a legal problem. But good negotiation, built around good strategy, is always a wise direction to pursue.

If we can assist you with solutions or direction regarding the legal issues that arise in your own affairs, please contact us today at (317) 564-4976 or via email to: andrew@landmaradv.com. We’re happy to help!

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Landmark Legal Services

Landmark Legal Services