“Baby You Can Drive My Car” – How to Keep Your Car Out of Probate

By Sam Ventola,

Losing a loved one is difficult.  Having to deal with probate matters can only increase that anxiety.  By adding a trusted person on your car title, upon your death, the ownership of your car will transfer automatically to them.  In Colorado, setting this up in advance may allow the car to be transferred outside of probate.

First step is to find the right person – It is important to determine the right person to add to your car title.  Not only will this person inherit your car if you die, but even if you don’t die, this person (or their creditors) may try to assert a right to your car.
Next, complete page 2 of Form 2395 found here.  All Colorado vehicle owners are required to declare their intent to have the Certificate of Title issued in Joint Tenancy with Rights of Survivorship.

Lastly, visit your local DMV to make your changes on the car title.  To find the one closest to you, click here.

At Ventola Law, we provide a variety of solutions for all probate and estate planning needs.  We would appreciate the opportunity to meet and exceed your expectations.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Was Madonna “Over the Borderline?”

By Sam Ventola,

Image by Getty Images via BBC News

Image by Getty Images via BBC News

At a recent protest march, the singer Madonna made the following statement: “Yes, I have thought an awful lot about blowing up the White House.  But I know that this won’t change anything.”  Some have called for her to be prosecuted for making such a statement.  Commentator Piers Morgan writes that “[a]ny ordinary person who said that would be arrested, charged and jailed.”  Is he right, and would such a prosecution be constitutional?

The cases interpreting the First Amendment make a distinction between advocacy of violence, which is protected, and threats or incitement of violence, which are not.  In this case, Madonna states only that she thought about blowing up the White House – not that she was going to do it or that she was encouraging anybody else to immediately do it.  The Supreme Court decision in Brandenburg v. Ohio involves an extreme example of speech that was found to be protected advocacy.  Brandenburg, a Ku Klux Klan leader, appeared at rallies along with burning crosses and firearms, stating that “vengeance” may be brought against Jews and black people.  Although he was convicted and his conviction was affirmed though the Ohio courts, the Supreme Court held that Brandenburg had merely suggested or advocated violence – because he did not threaten violence or immediately incite violence, his speech was protected.

The First Amendment protects speech, even repugnant and foolish speech.  Although we don’t like it, the solution under our system is to denounce these messages with our own speech.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

“But He Started It!” – Workplace Altercations

By Sam Ventola,

Just the Facts, Ma’am

The story of actor Thomas Gibson of the television show “Criminal Minds” has been in the news recently.  According to news reports, he had a disagreement with writer-producer Virgil Williams.  The altercation escalated with Mr. Gibson kicking Mr. Williams in the shins.  Williams filed a complaint with the studio’s human resource representative.  Initially, Gibson was suspended for two shows.  However, when news of the altercation came out, he was ultimately fired.

News reports indicate that Gibson has “lawyered up” and they are evaluating a claim against the production company.  Of course, you probably will not win if you get fired for kicking somebody.  However, Gibson may have a contract that limits the grounds for which he may be fired.

What Does Colorado Say About This?

Some may wonder what liability an employer may have for a physical altercation between employees.  Under Colorado law, as in most places, such an injury would be covered by workers compensation insurance, if the employee’s dispute was related to work issues (as this one seems to have been).  When a claim is covered by workers compensation, then that system sets the limits of the claim.  The injured employee cannot bring other claims against the employer.  On the other hand, if an employee’s injuries are not related to work issues, workers compensation does not apply. However, the employer could still be possible if the injured employee could prove that the employer was negligent in hiring, retaining or supervising the employee that committed the assault.

Before workplace issues get to this point, however, employers should consider workplace mediation to resolve disputes between employers, or claims of unfair or illegal treatment by employees.  Getting an early resolution is always better than waiting until somebody gets sued.  Or kicked.

 

smv profile newSam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

3 Ways to Determine if You are in a Hostile Work Environment

By Sam Ventola,

shutterstock_313040297

The term “hostile work environment” gets used frequently but it is rarely defined.  Not every hostile action at work is prohibited by the law.  True hostile environment claims must be based on discrimination – that is, being targeted based upon a protected class.  Gender, race and religion are a few of the protected classes.  For additional examples of protected classes, see Employment Law Definitions.  To see if you are in a hostile work environment, consider these questions:

1. What actions have been directed against me? If the actions are significant, and make it more difficult to work, they might support a hostile work environment claim.
2. Why am I being singled out?  If you are receiving harsh treatment at work, determine whether it is because of your gender, race or another protected class.  If your boss calls you dumb but then they call everyone dumb, this may not be actionable hostile work environment.
3. How can I prove it? Proving discrimination can be difficult.  If this treatment is happening to everyone who falls into a certain protected class such as race, it can be easier to prove.

While this article is not a substitute for legal advice, if you feel that you are the victim of discrimination at work, it is best to seek out qualified legal representation to review your case.

smv8Sam Ventola has a wide variety of experience in employment, litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

 

Classic Literature Edited?

By Sam Ventola,

book-cover-huck-finn

“Please take it,” says I, “and don’t ask me nothing—then I won’t have to tell no lies.”

 –Huckleberry Finn

You may have heard a major media frenzy awhile back over the decision by “the publisher” of Huckleberry Finn to change some of the words, especially the racial epithets. Every news story I read about this published this the same way – hook, line and sinker. And people were incensed that future generations would be deprived of Huckleberry Finn as originally written by Mark Twain.

It was all a crock. Go down to your neighborhood book store and check Huck Finn for the bad words – you will probably find them right there same as they always were. How did the media get this so wrong? It was either ignorance of the law, or perhaps a desire to make the story bigger than it really was.

You see, there is no “the publisher” of Huckleberry Finn. Because of its age, Huckleberry Finn is “public domain,” and therefore can be published by anyone. What happened is that one publisher decided to change the words, but there are hundreds of others of publishers of the book that made no such decision.

When does a book become public domain? Well, the question is a bit complicated, and depends on the date of first publication. For works created in 1978 or after, the copy right expires seventy years after the author’s death. Works published from 1964 to 1977 have their copyrights expire in 28 years, but they can be renewed. Works published from 1925 to 1963 have copyrights expire 95 years after publication. All publications from before 1925 have expired copyrights and are public domain.

One would hope that at least some media outlets would have legal advice on staff that would have caught this. The more cynical conclusion is that they knew full well that they were misleading, but didn’t let that get in the way of a good story.

If you have questions about copyright law or any other legal issues, please visit us at www.samventola.com or contact our office at (303) 864-9797.

 

Sam VentolaSam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Free Speech in Schools? Well…sort of…

By Sam Ventola,

school deskMany people worry that they may be breaking a rule in their public school if their child carries a Bible in class, or wears a cross or Star of David. We will cover freedom of religion in schools in a later article. Today we consider a recent decision on a related topic, free speech in schools.

In 2011, the federal court of appeals for the seventh circuit (which includes Chicago) decided Zamecnik v. Indian Prairie School District # 204. There, the school district permitted students to participate in a “day of silence” to celebrate homosexuality. On the day of silence participating students would remain silent except when called on in class, and would wear pro-gay t-shirts.

On the next day of school, students against homosexuality participated in a “day of truth,” which included the wearing of t-shirts against homosexuality, stating “be happy not gay.” The school disciplined students wearing the anti-homosexuality t-shirts by requiring their removal or sending them home. The school district’s claim was that they should be able to censor the anti-homosexuality messages because they made other students feel bad.

The federal court of appeals held in favor of the students. Noting that the school had allowed the pro-homosexual messages, they could not censor anti-homosexual messages based on a concern of hard feelings. The court stated “people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.

In many ways Zamecnik was an easy case, because the school was allowing one set of messages while trying to silence the opposing view. Harder cases are presented where the school district claims that it is limiting all messages in order to preserve school order. Watch this space for other developments in free speech and religion in public schools.

If you have questions regarding the First Amendment, free speech or any other legal issue, contact our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Sam Ventola

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

 

Can you speak freely on the internet? Ask Courtney Love

By Sam Ventola,

gossipA while back, news reports indicated that musician(?) Courtney Love was stuck paying $430,000 plus interest to a designer about whom she had unkind words on MySpace and Twitter. That’s an expensive tweet. Ms. Love stated things such as that her designer was a “nasty lying hosebag,” “thief,” and other invective not suitable to be repeated here.

Wait a minute – isn’t there First Amendment protection for opinion expressed on the internet? Well, yes and no. There is broad First Amendment protection for expression of opinion if it is clear that by giving your “opinion,” you are not basing it on undisclosed facts. Here are some examples of statements that were found to be constitutionally protected opinion:

– that a developer’s negotiating position was “blackmail”

– that investors would “sour on” a project in a “stock tip” column

– that a reporter’s story was “sloppy journalism

– that a loudspeaker system did not have “high accuracy”

– describing a fund’s ads as “lies, damn lies, and fund advertisements

– stating that the sale of living wills was a “scam”

– an accusation of “blatant mismanagement”

– that buyers of stock have been “duped” into a “scam”

Normally, the kind of hyperbole in which Ms. Love engaged is the kind of thing that would fall into this constitutionally protect opinion. Ms. Love’s problem was that her statements appeared to be based on undisclosed facts regarding her personal dealings with the designer. When the expression of opinion appears to be based on undisclosed facts, then it is moved from the realm of constitutionally-protected opinion, and the speaker may be liable if the implied facts are not true.

Also, the strong protection of opinion works best in areas of “public interest.” Not knowing all the facts, it is not clear whether Ms. Love’s beef with the designer involved issues that would have been of interest to the designer’s other customers or potential customers.

The lesson here is that when you want to express an opinion about someone on the internet, or anywhere else, make it clear that you are stating all the facts on which your opinion is based. Use publicly available facts, such as link’s to the person’s own statements or other web sites. Also make sure you are speaking on an area of public interest. Having an attorney experienced in First Amendment issues review the communication before it goes out is always a good idea.

If you have questions regarding the First Amendment, free speech or any other legal issue, contact our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Sam VentolaSam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

 

Am I in a Ponzi Scheme?

By Sam Ventola,

pyramid dollar Some have asked whether multi-level-marketing (“MLM”) schemes are considered Ponzis. The answer is not simple. Although some MLM’s may not be Ponzi schemes under legal definitions, they are often actually Ponzi schemes for all practical purposes.

A Ponzi, named after Charles Ponzi, or pyramid scheme, involves getting people to pay into a system that allows them to profit from others brought in after them, who they are often expected to recruit. Theoretically you can recover your payment or even profit in a Ponzi scheme by obtaining payments from people below you in the pyramid. The problem with all Ponzi schemes is that eventually they run out of victims, and the people who came in later or have not been able to recruit enough new victims will have lost their payment.

Are MLM’s Ponzis? Regulations differ from state to state, but generally a MLM will be considered legal if it involves substantial sale of products and services to people outside the organization. However, an MLM is still a Ponzi for all intents and purposes if success in the venture DEPENDS on bringing more people in. If you are considering getting involved in an MLM ask yourself and the promoters this question: is it realistic to expect this business to succeed by just selling the product? If the answer is no – that you NEED to bring new people in to make any significant amount of money – it’s really a pyramid scheme, even though it may be legal.

One formerly popular MLM you probably have heard about was the “Three Step Plan.” They do not tell you until later into the process that the Three Step Plan is supposed to be about selling mangosteen juice. Now, mangosteen juice may be wonderful stuff, but it is also available from hundreds of sources. If you were interested in buying mangosteen juice, would it make sense to buy it through the Three Step Plan, which involves all the expense of advertising and payment along the uplines? Of course not. If it doesn’t make sense to you as a potential buyer, it doesn’t make sense as a business.

Please visit us at www.samventola.com if you want to know more about Ponzi schemes or consumer scams in general.

Sam Ventola Sam Ventola has a wide variety of experience in litigation, legal education, and   mediation. He has been an attorney on both sides in business litigation, employment   disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Have your legal questions answered by contacting our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Honor Scalia By Honoring the Constitution in the Nomination Process

By Sam Ventola,

supreme-court-546279_960_720

With the death of Justice Scalia, some Republicans are already committing to a policy of refusing to consider any replacement nominated by President Obama, or state that President Obama should not try to nominate anyone. Meanwhile, Democrats are demanding that any nomination for Justice be considered immediately.

Who is right? If we still had Justice Scalia to advise us, I believe he would have us look at the Constitution. Article 2, section 2, paragraph 2 states that “[The President] shall… nominate, and by and with the Advice and Consent of the Senate… shall appoint Judges of the Supreme Court….”

The language is mandatory. The President “shall” nominate Justices, and by implication the Senate shall either give or refuse its advice and consent regarding that nomination. This is a constitutional duty. There is no excuse for failure to meet it.

Republicans point out that in the past, when we had Republican presidents and Democrat Senates, Democrats refused to bring Justices and judges up for a vote. However, the fact that somebody may have acted unconstitutionally in the past is no excuse for failure to follow the constitution now. Somebody has to break the policy of this cycle of refusal of the Senate to meet its constitutional duty. Now would be the perfect time, as the Republicans have a solid majority.

This brings me to the final point. Although the Senate has a constitutional duty to consider any Justice nominated, they have no obligation to approve an inappropriate nominee. Rather than a craven attempt to drag feet and avoid the issue, the Senate could forthrightly refuse any nominee who is not committed to Justice Scalia’s judicial philosophy of originalism. It would be a far greater tribute to Justice Scalia to stand on his judicial philosophy than to unconstitutionally avoid the issue.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.

Have your legal questions answered by contacting our office by telephone at (303) 864-9797 or email at sam@samventola.com.

Sharing the Wealth?

By Sam Ventola,

money

 

Now that the Powerball jackpot is up so high, you may have seen a rash of posts on social media offering to share a Powerball jackpot with anyone who “likes” or “shares” a post. Some have asked us if such an offer is enforceable.

The short answer is yes – if you can prove it. These posts constitute an offer to make a contract under the law. You “liking” or “sharing” constitutes your acceptance of the contract, and it is now enforceable. You’d have to somehow prove that you did what was asked, with screen shots, etc.

We once had a client who had won a giveaway at a convenience store for a new car. After they won, the convenience store told them that they actually had intended to only give them use of a car for six months. Sorry but no – the contract was for a car, and the convenience store was informed that unless a car was delivered they would be liable not just for the car, but also for triple damages and attorney’s fees for false advertising. Of course, the car was then delivered.

Just because the contract would be enforceable, however, doesn’t mean the “liking” or “sharing” is a good idea. Of course, the odds against the ticket in question winning are astronomical. Meanwhile when you “like” or “share” a post like that you give your Facebook information to hundreds of advertisers.

 

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation. He has been an attorney on both sides in business litigation, employment disputes, probate litigation, and personal injury cases. In addition to being an attorney, he has been a mediator, hearing officer, labor relations professor, and lecturer on litigation, employment and First Amendment issues. He has also achieved the rating of AV Preeminent® by Martindale Hubbell.