Kirk Law Office L.L.C.

How To Wednesday… Draft a Deed.

Transferring property to another person should be simple enough but the process often seems confusing and complicated. Take your typical home sale, for example. Many people choose to list a home with a realtor which requires a listing contract, a disclosure of the property condition, offers, counteroffers, purchase agreements. And those documents are all before the house even sells. At closing you will be provided a title insurance policy or abstract, sometimes a satisfaction of mortgage, and, FINALLY, a deed.

The deed is the document that actually transfers the property. But deeds come in many different forms – quit claim, warranty, personal representative, trustee, transfer on death, and I’m sure I’m missing some. What I hope to teach you today is a little bit about the different kinds of deeds and the essential elements of a deed.

Warranty Deed. This deed promises that the property being transferred is actually owned by the person signing the deed.

Quit Claim Deed. This deed makes no promises about ownership. I could give you a quit claim deed to the White House and you would have no recourse for me lying about owning it.

Personal Representative’s Deed. This is a deed used when the estate of a deceased person is selling or transferring property.

Trustee’s Deed. This deed is used when a trust is selling or transferring property.

Transfer on Death Deed. This is a deed that can be signed and recorded but only takes effect when the person making the transfer (the Grantor) dies.

Deeds come in many varieties but all of them have some very basic elements:

Grantor: the person signing the deed, transferring it to whoever the property is going to.

Grantee: the person receiving the property

Property Description: This is the legal description of the property being transferred. It is not the same as the street address. In most of Northern Wisconsin property descriptions are based on the Public Land Survey System that was used centuries ago to map the United States. Each piece of land falls into a Range number, a Section of that Range and a Township of that Section. But when property is described the description goes from the most specific to the broadest category. This is why legal descriptions often read, “The Southern one-half (1/2) of the Eastern one-half (1/2) of the Southwest quarter of Section Ten (10) Township Eighteen (18) North Range Twelve (12) West, Douglas County, State of Wisconsin.” (This is a completely made up description.)

For more information about understanding the Public Land Survey System and property descriptions, read this tutorial from the Wisconsin Department of Revenue. Public Land Survey Tutorial.

Property descriptions can also come in the form of surveys. These could be surveys that are already recorded with the County (Lot 2, Certified Survey Map 231) or in a description called “metes and bounds” (starting at a point at the Southwest Corner of Section 16, then North 250’ at an angle of 89 degrees…) Metes and bounds descriptions use angles and distances to describe the outline of the property.

Usually, the best place to find the legal description of your property is on the deed you received when the property was transferred to you. A word of caution – some old forms of legal descriptions are no longer allowed. For example, a legal description cannot be based upon reference to other deeds or document numbers.

Signature: the person transferring the property must sign the deed.

Authentication or Acknowledgement: the deed must be signed either by an attorney or a notary public. The Grantor should sign the deed in front of the attorney or notary so that it can be signed by them at the same time.

Identification of Drafter: Wisconsin law requires that the person who drafted the deed must identify themselves.

Return To: once the deed is recorded at the local register of deeds office, they return the original to the person identified.

Transfer Return: The State of Wisconsin imposes a tax on certain property transfers. If you are selling or transferring property you should check with the Department of Revenue’s website for information about whether 1) you need to file a Transfer Tax Return; and 2) Whether any tax is actually owed. If you do need to pay the tax, you will have to complete the form online, pay the tax, and submit proof of payment with the deed when you record it in your county.

Register of Deeds Office: Each county has an office that keeps records of deeds and other documents affecting property (mortgages, liens, leases, etc.) The Register of Deeds office is open to the public; it is the place where anyone can find out about who owns what property and whether there is any issue with the ownership. In order for a transfer of property to be complete, it must be recorded so that the world at large knows about the transfer. There is a fee for recording a deed.

I typically don’t advise people to go off and try to do deeds by themselves. There are lots of steps where mistakes can be made. I do tell clients that if they want to start the paperwork and have me review it, I can do that. By having the information ready ahead of time – proper legal names, accurate and current legal description, the job of a lawyer in helping draft a deed is made much simpler. I have had clients ask me to review deeds they drafted which were just perfect and ready to be signed and recorded. It can be done by you, but you would be wise to do your homework first to make certain you are doing it correctly.

For more information about deeds, other real estate documents and how to record them, visit the Wisconsin Register of Deeds Association’s website.

Johanna R Kirk – Attorney

Kirk Law Office, L.L.C. 1418 Tower Ave, Suite #6; Superior, WI 54880 (715) 718-2424

Introducing How-To Wednesdays! How To…. File a small claims suit.

Welcome to the first installment of “How-To Wednesdays.” My hope is to spend these days giving some practical DIY guidance. If you have a topic you’d like addressed, let me know!

Many people are opting to avoid a lawyer’s office and handle small claims cases on their own. In the world of fancy law lingo we call these “pro-se” or “self-represented” parties. They have received a LOT of attention from judges and lawyers who complain that the self-represented party often doesn’t know what they are doing, wasting courts’ time and resources. So if you are thinking about going alone into a small claims case in Wisconsin, here are some tips and helpful information:

1. There are three levels of Courts in Wisconsin. The local, county, trial courts are called Circuit Courts. The second level of courts where appeals are filed are called Appellate Courts. You only get to the appeal court if a judge made a mistake, not just because you don’t like the outcome. Appeals are not do-overs. The Wisconsin Supreme Court is the third layer and decides appeals of cases that have statewide implications. When filing a small claims case you will file in your county with the Circuit Court.

2. Check out the Wisconsin Courts website for prepared, fill-in-the-blanks forms. Some of them come with instructions on them.

3. If you are filing a small claims suit you cannot claim more than $10,000.00. If you think you want to win more than that you will need to file a civil suit which has different procedure from a small claims suit.

4. Suits get filed with the Clerk of Courts Office, which is not the same thing as the Courts. If you go to a courtroom they will send you to the Clerk of Courts. There is a filing fee for bringing a lawsuit. Be prepared to write a check for about $100.

5. Before a court can make any decision about your case the person you are suing is entitled to know about the suit. This is called “service of process.” In some counties the Clerk of Courts office may be willing to do this for you by sending the paperwork via certified mail, for an additional fee. When you file with the Clerk of Court ask them about service options.

6. At the first hearing the Judge or Court Commissioner will determine who the parties are, if service has been made, and if a trial is needed. The only way you will get a win at the first hearing is if the other party does not answer or show up. If you think that may happen, you will need to have additional paperwork ready to give the court such as an Affidavit of Non-Military Service that verifies the party you are suing is not a member of the armed forces.

7. If the other party does fight your suit you will be expected to try to settle it. If it cannot be settled you will have a trial.

8. In the end, even if you win an award, it does not mean you will automatically get paid the money you are owed. Lawyers often say that a Judgment is only worth the $.08 of paper it is printed on. Getting a judgment and getting paid are entirely different matters.

If you are considering a small claims suit and would like to know more about the process, deadlines, and requirements look at the Basic Guide To Wisconsin Small Claims Actions which was designed for self-represented parties. If you’ve browsed the Court website, and the Guide and still feel like you have unanswered questions, it may be time to call an attorney. Many can help out with answering your questions and helping you through the small claims process. Some will even do it for a reasonable price!

Johanna R Kirk

Kirk Law Office, L.L.C. 1418 Tower Avenue Suite #6; Superior, WI 54880 (715) 718-2424

“I wish my employees knew how to…”

In 2013 Wisconsin created the Fast Forward Program that provides grant money to employers to train skilled workers. On March 3, 2014 the program opened a second round of grant applications. If you have a business that needs to train employees to meet your specific needs you should look into the program. It is designed to provide assistance to companies whose employees cannot receive the needed training through other sources. If you have a niche business with some really unique systems, technology, equipment this program could be for you. For more information, or to complete the grant application go to the Wisconsin Fast Forward website.

Johanna R Kirk

Kirk Law Office, L.L.C.; 1418 Tower Ave. Suite #6; Superior, WI 54880 (715) 718-2424

The Times Are Changing for Lawyers.

“The portion of what lawyers

do that absolutely, positively,

nobody else can do is thin

and shrinking.”

Jordan Furlong, Three Ways to Compete in the Marketplace; New Math, New Money: A Lawyer’s Guide to the Changing Business of Law.

It is a warning that has been coming at lawyers for years now. Our system of doing business isn’t going last. Courts offer fill-in-the-blank forms for nearly every matter ranging from small claims to probates. Websites can draft wills at cheaper prices than attorneys. Documents needed to buy and sell a home or property can be found online. Leases, contracts, employee policy manuals all can be found for free or nearly-free in a book at the library. In many ways, it is true. The things that only a lawyer can do are few and the public wonders, “Do I really need a lawyer for this?”

The answer is…maybe. But you should talk to a lawyer first to find out. I agree that the landscape of legal services has changed. Clients are fed up with paying lawyers thousands of dollars before filing for a divorce only to be asked for a few thousand more before an important hearing, only to be asked for more before the trial. And once the client hires the attorney and falls into the world of billable hours, it seems there is no way out. The same complaints are made by insurance companies who pay for defense attorneys, businesses who work with lawyers on a regular basis, and families who just want to settle the estate of a loved one that passed away.

So what are the few key things that a lawyer can actually provide you as a client? Well, one thing is a meeting. That sounds pitiful – some coffee and an hour for you to explain your situation and maybe get some answers. Those initial consultation meetings often seem like a lawyer’s sales pitch. “You’re not my client, but I can get you signed up for X amount of dollars and then we can delve into what our firm needs to do to help you out.” Wouldn’t it be nice if a lawyer just said,

“I think the best steps for you are to do numbers 1, 2, 3, and depending upon whether you think you’ve gotten what you want at that point, we can discuss whether number 4 or 5 is appropriate. In order to get you through that process, I will charge X amount of dollars up through number 3. Once we get to the point of deciding about number 4 or 5, it will cost X to do number 4 or X to do number 5. How do you feel about those costs? Would the decision be easier if I let you make equal monthly payments?”

Here’s some great news. There are lawyers doing just that. Having open conversations about exactly what a lawyer does and exactly how much it will cost. Let’s be fair. If one of the biggest complaints about lawyers is the fee structure, then online services ought to be losing! The benefit to having a real-life, breathing and walking attorney is that the client has the power to negotiate fee arrangements. And any lawyer who won’t discuss them or negotiate them doesn’t deserve the client’s business. This doesn’t mean that clients should get to set the price for legal help, but they certainly should get some input. What’s that age-old saying, two heads are better than one? Your lawyer should adopt that philosophy; a client is part of the legal system, not just the financial support of it.

So if you feel like trying something new and different – a lawyer who considers the client as part of the legal team, contact Kirk Law Office. My mission is to ensure that clients get what they really want from the attorney-client relationship: value. Not just a contract, a signed document, a court-order. Clients deserve more – a true relationship and input into what the attorney does and what it should cost.

Johanna R. KirkAttorney, Superior WI

This Time A Federal Judge Is Throwing The Penalty Flag.

It isn’t news that over 4,500 former NFL players sued the NFL in federal court seeking payment for concussion and concussion-related injuries. What shocked many people was the settlement announcement in August 2013 where both sides agreed to the NFL paying $765 million to end the suit. The settlement was subject to approval by the Court pursuant to rules of federal procedure.

In January 2014 the parties filed a joint motion seeking preliminary approval of the settlement. The motion was nearly 80 pages long and included details of how the money would be used:

to establish a fund for payments to former players
to establish medical testing procedures to determine players’ eligibility for funds
to establish a Baseline Assessment Program that will begin testing retired players for eligibility and monitoring for future eligibility
to establish caps of per-player payments based upon the type and nature of injury/condition
to educate players, youth and the public about cognitive impairments and prevention of them

These are only a few of the details found in the settlement plan. The complete Motion can be found here: Prelim-Approval.

The Settlement Proposal, nearly 180 pages, can be found here: Settlement-Agreement

On January 14, 2014 the judge who reviewed the settlement proposal and the motion refused to give it preliminary approval. Why? If both sides are happy, why isn’t the judge happy? The judge heard arguments from the attorneys and reviewed the settlement plan but had doubts that $765 million was enough to fulfill the promises long term. She’s asked for more financial documentation. In theory, there are more than 20,000 retired NFL players and dividing the pool evenly among them results in equal payments of no more than $38,000.00. That number assumes the fund is divided to the players without any money taken out for management, attorneys’ fees, costs of the suit, or the other programs promised by the settlement.

The attorneys for the players and the NFL will be providing the judge with further documentation about the feasibility of the settlement and details of how the money will be distributed, invested, or used for management and operation of the programs. The deal isn’t dead yet, but it has been moved back about 20 yards and is facing a fourth-down situation. If this deal doesn’t get Court approval, it’s off to trial for both sides, or back to the negotiating table. And if the judge refuses to approve a settlement of $765 million, I can only speculate about how big a settlement amount would need to be in order to get her approval.

If you are following the concussion case you can access various court documents online to read the Complaint, Answer, and motions.

Johanna R. Kirk

Kirk Law Office, L.L.C. 1418 Tower Avenue Suite #6; Superior, WI 54880 (715) 718-2424

Changes In Unemployment Eligibility Are Here!

January 5, 2014 has come and gone and with it came some pretty big changes in Wisconsin’s eligibility for unemployment benefits. There has been an increase in maximum weekly benefits from $363 to $370. Whoop, whoop. I know.

The biggest change isn’t in the benefits a worker may be eligible for, but whether the worker is entitled to benefits at all. Employers now have a new arsenal of tools to challenge whether benefits should be paid. The first is the new two-tiered analysis of whether an employee was terminated for misconduct or substantial fault. According to the Wisconsin Department of Workforce Development,

“An employee’s behavior may be substantial fault when the employee violates a requirement of the employer but the violation does not rise to the level of misconduct. Substantial fault does not include: minor violations of rules unless the employee repeats the violation after warning, unintentional mistakes made by the employee or not performing work because the employee lacks skill, ability, or was not supplied the equipment.”

Previously, an employee who quit was generally ineligible for benefits unless she could show that she fell into one of eighteen exceptions that would reinstate benefits. Those exceptions have changed too. Four of them have been modified and eight have been eliminated.

With new language will come new interpretations and arguments. Cases will work their way through the DWD and off into the Court System to help define these new rules and regulations. The important thing for employers to know right now is that the changes are here. If an employee requests unemployment benefits you should go to the DWD website to see if you might have a basis for challenging the application. Or read through 2013Act20 Plain Language to see if it helps answer your questions. If you are unsure, contact Kirk Law Office of Superior, WI for a no cost consultation on unemployment eligibility, the unemployment claim process and your options as an employer.

Johanna R. Kirk

Cow Manure and Bat Guano. Not All Shit is Treated Equally.

“Manure has long been a normal and necessary part of the operation of a dairy farm. Dairy farmers have cows. Cows produce milk and manure. Dairy farmers utilize both milk and manure as assets to their farm operations: farmers sell milk, and farmers spread manure on their fields as a nutrient. The fields provide feed for the cows who repeat the cycle of milk and manure.”

So said a Wisconsin Court of Appeals on December 11, 2013 in the case of Wilson Mutual Ins. Co. v. Falk.

The case addressed whether manure is a covered “pollutant” under a farm owner’s policy issued by Wilson Mutual. In early 2011 the Falks participated in a manure-use program approved by crop experts and Washington County authorities that permitted them to use their cow manure to fertilize their fields. Later that same year the Department of Natural Resources informed the Falks that their manure had polluted a local water source and neighbors were demanding money. The Falks filed a claim with their insurance company, Wilson Mutual, who denied coverage claiming manure was a “pollutant” and excluded by their policy language. “Pollutant” was defined in the policy as an “irritant or contaminant,” including “waste.” The insurance company was so confident in their position that they filed a suit against the Falks seeking a court declaration that manure is a “pollutant” and excluded from their policy. The county (Circuit) court agreed with Wilson Mutual and the Falks appealed that decision. The Court of Appeals reversed the decision, holding that cow manure is not a “pollutant” and Wilson Mutual must defend any claims against the Falks and pay any damages the Falks are responsible for.

Believe it or not, this is not the first time a Court has had to decide whether crap is a “pollutant.” In Hirschhorn v. Auto-Owners Ins. Co., 2012 WI 20, ¶27, 338 Wis. 2d 761, 809 N.W.2d 529 a Court decided that bat guano that built up in the walls of a home causing enough damage to make the structure a total loss was a pollutant and the homeowners’ insurance company did not have to pay for rebuilding the home.

So what’s the difference between bat poop in 2012 and cow manure in 2013? As the court states, “Manure is a matter of perspective.” Yes, they actually wrote that in the opinion. The Court explained its “perspective”,

“…while an average person may consider cow manure to be “waste,” a farmer sees manure as liquid gold. Manure in normal, customary use by a farmer is not an irritant or a contaminant, it is a nutrient that feeds the farmer’s fields that in turn feeds the cows so as to produce quality grade milk. Manure in the hands of a dairy farmer is not a “waste” product; it is a natural fertilizer. While bat guano is “waste” to a homeowner, and lead paint chips are universally understood by apartment building owners to be dangerous and pollutants, manure is beneficial to a dairy farmer.”

The Court also pointed out Wilson Mutual should have expected that farmers value manure as an asset since it insured a manure holding tank, manure pump and manure spreaders. By assuming liability for the equipment and tools that store and spread manure Wilson Mutual also assumed liability for the claims associated with the manure after it was spread on fields.

So…. bat guano in a home is unexpected, unwanted, and thus, a pollutant. Cow manure on fields is “liquid gold”. That makes it about as clear as… well, mud.

Johanna R. Kirk – ATTORNEY

Kirk Law Office, L.L.C. – 1418 Tower Ave. Suite #6 – Superior, WI 54880

Day One Is Done and the Act 10 Battle Goes On.

My first day at Kirk Law Office is in the books. The office is (mostly) set up and I’ve even had a chance to get some work done for clients! In preparing for this venture I heard that the average solo splits lawyering with business management on a 60% to 40% ratio. That means nearly half of a lawyer’s time is spent running the business, not serving clients. That stinks for those of us who actually love doing the lawyering part. My goal is to be as efficient as possible with the business management stuff so I can get back to doing what I love. Part of what I love, is sharing the wealth of information about changes in the law with you, my readers.

If you know me, you know that I have represented public sector employers and Wisconsin’s Act 10 (passed in 2011) has been an ongoing saga for attorneys who do that type of work. Here’s a recent update. Act 10 requires unions to hold a vote to re-certify their status annually. Earlier this year, the Wisconsin Employment Relations Commission (WERC) put in place an election system so that every local bargaining unit could apply for re-certification and eligible members could vote whether or not they want the union to continue. In late October, a Madison, WI judge (Judge Colas) declared WERC was in contempt of court because he had ruled the re-certification requirement violated the Wisconsin Constitution. He imposed an injunction on WERC ordering them to stop the election process. On November 22, 2013 the Supreme Court of Wisconsin lifted the contempt order and the injunction. For the time being, re-certification elections are back on.

The Colas ruling on the constitutionality of Act 10 is before the Wisconsin Supreme Court right now. Oral arguments on the case were heard in November. A decision on whether Act 10 violates the Wisconsin Constitution is expected sometime between now and June 2014. Stay tuned for more updates.

Johanna R. Kirk

It’s Time To Dream And Take A Jump Into New Waters.

On December 1, 2013 I will be opening my own solo law firm here in Superior, Wisconsin. I have spent the last seven years practicing at Torvinen, Jones, Kirk & Routh, S.C. and will be forever grateful for the experience, wisdom, and relationships I have gained through the years. The decision to leave the firm and start my own has not been an easy one because of the respect and admiration I have for my partners and the legacy and reputation of the firm. Many people have asked me why I’ve decided to go solo.

I’m calling it my own version of a mid-life crisis. That’s the best explanation I have. I’ve always been a person who set out my dreams and benchmarked the goals I needed to achieve to make the dreams come true. I decided to become an attorney when I was fourteen or fifteen years old. (Thank you former Taylor County District Attorney Shawn Mutter for that inspirational and life changing presentation at Gilman High School’s career day!) With my checklist in mind I took the world by storm – graduate high school, graduate college, attend a private law school on the East Coast, pass the Bar Exam, get a job, make partner at a firm. Check, check, check, all done. So now what?

Now I set out to achieve a new dream with a new checklist. My hope is to practice law in a way that goes beyond what clients typically expect and receive from attorneys. I plan to integrate technology in ways that are not expected. You’ve heard of “paperless” offices? While I can’t promise entirely “paperless” I do promise less paper to reduce costs that are usually passed on to clients. You’ve seen those t.v. shows and movies with law offices that have expansive libraries full of books? Not at my office. All of those books have been made digital so I won’t be spending money buying physical books, storing them, and buying new ones to update the old ones. I also plan to use technology to better communicate with clients – fewer letters in the mail that take three days to arrive and more e-mails so that clients’ matters can move faster.

I plan to use new methods for structuring exactly what I do for clients and how I charge them. According to the State Bar of Wisconsin’s 2012 Economics of Law Practice Survey attorneys are recognizing that we aren’t effectively competing with the online providers who offer questionable legal services or documents at minimal prices. You’ve seen the commercials. You know the websites. Yes they are cheaper than most attorneys, but are they really giving you what you need? I plan to move away from the expensive billable hour and incorporate billing systems that take into consideration both what a client is able to pay and the value of the work being performed. Clients are demanding this – quality legal help at reasonable prices. The alternatives include flat rates for standard estate planning documents, set billings for different steps in a lawsuit or divorce, and a return to the traditional “retainer” agreement where a company or person pays a set amount for the attorney to handle all legal matters. The key isn’t how much some legal document or service will cost. The key is that the client gets input into determining the cost and payment plan and understands it from the start. I plan to use all these methods and more to ensure that clients have what they deserve – to know up-front what to expect both in the work I will do and what it will cost.

So back to the question – why go solo? Because I want to be known as an attorney who does more than just provide legal advice or service and send a bill. I dream of being an attorney who clients think of as a friend. I dream of being an attorney who knows your kids’ names and grandkids’ names. I dream of being an attorney who clients trust to be fair and honest. Because to me, the practice of law is more than doing work and getting paid, it’s a life-calling, a vocation, and I want my clients to think I’m more than just a good lawyer.

Johanna R. Kirk – Kirk Law Office, L.L.C. – 1418 Tower Avenue Suite #6 – Superior, WI 54880