Blog – Bennett Law and Mediation Services LLC

The Art of Negotiation: Tips from a Mediation Expert

Wed, 21 May 2025 20:10:35 GMT

Negotiation is not just about getting what you want—it's about finding common ground, building relationships, and crafting solutions that benefit all parties involved. Whether you're discussing a business deal, resolving a conflict with a coworker, or deciding where to go on vacation with your partner, negotiation is a daily part of life.

To master the art of negotiation, we turned to insights from a seasoned mediation expert. With years of experience helping people navigate conflict and reach mutual agreements, they offer timeless strategies that anyone can apply. Here are some of their top tips:

1. Prepare with Purpose

Before entering any negotiation, preparation is key. This means understanding:

Your goals : What do you really want? What’s non-negotiable?
The other party’s goals : What might they value most? What are their constraints?
The context : Are there external pressures, deadlines, or relationships to consider?

A mediator always enters the room with a clear picture of all stakeholders’ needs, allowing them to guide discussions with clarity and empathy.

2. Listen Actively and Empathetically

True negotiation isn’t just about talking—it’s about listening. Active listening involves:

Nodding or giving verbal cues to show you’re engaged
Summarizing the other person's points to ensure understanding
Asking open-ended questions to explore their perspective

A mediation expert emphasizes that people are more willing to compromise when they feel heard and respected.

3. Manage Emotions—Yours and Theirs

Emotions are natural in negotiation, especially when stakes are high. A skilled negotiator:

Stays calm and composed under pressure
Recognizes emotional triggers and avoids escalating conflict
Helps others regulate their emotions by staying empathetic and non-reactive

The mediator’s advice? "Don’t aim to win the argument; aim to win trust."

4. Focus on Interests, Not Positions

Positions are what people say they want; interests are why they want them. For example:

Position: "I need a 10% raise."
Interest: "I want to feel recognized and secure in my role."

By uncovering interests, you open the door to more creative solutions. Mediation often involves reframing problems in a way that aligns both parties’ deeper needs.

5. Know Your BATNA

BATNA stands for Best Alternative to a Negotiated Agreement . It’s your fallback plan if negotiations fail. Knowing your BATNA gives you confidence and prevents you from accepting a poor deal.

The expert reminds us: “A strong BATNA is like a safety net. It keeps you grounded.”

6. Be Willing to Walk Away

Sometimes, the best negotiation is the one you don’t finalize. If the terms aren’t fair, or the relationship is too damaged to continue productively, it’s okay to walk away. The key is knowing in advance what your red lines are—and respecting them.

7. Aim for Win-Win Outcomes

The best negotiators don’t aim to dominate—they aim to collaborate. A win-win outcome:

Strengthens relationships
Builds trust for future negotiations
Leaves all parties feeling valued

Mediators are trained to help people see that mutual benefit is not only possible—it’s often easier to achieve than expected.

Need Help Navigating a Dispute?

If you're seeking mediation, Bennett Law & Mediation Services is here to support you. Give us a call today to schedule a consultation—let's find a resolution that works for everyone.

Georgia Senate Bill 68: A Win for Businesses and Everyday Georgians

Mon, 24 Feb 2025 15:48:35 GMT

Georgia Senate Bill 68 (SB 68) strikes a balance between protecting businesses from frivolous lawsuits and ensuring fairness for everyday Georgians. By reforming the state’s tort system, SB 68 fosters a predictable legal environment that benefits small businesses, large employers, and consumers alike.

Why Georgia Needs Tort Reform

Georgia has become known for its high-dollar lawsuit awards and litigation-friendly environment, driving up insurance costs for businesses and increasing the price of goods and services for consumers.

According to industry reports, business liability insurance premiums in Georgia are among the highest in the Southeast, largely due to excessive lawsuit awards and unpredictable litigation outcomes. This burden trickles down to consumers, who face higher costs for goods and services as businesses offset these rising expenses. Additionally, small businesses—already operating on thin profit margins—are particularly vulnerable to the financial strain of lawsuits, often being forced into costly settlements regardless of merit.

By implementing common-sense legal standards, SB 68 helps to ensure that the judicial system is fair, reasonable, and sustainable for businesses and individuals alike.

Key Benefits of SB 68 for Businesses

Lower Business Costs and Consumer Prices

By limiting excessive lawsuit awards, SB 68 helps reduce business liability insurance costs.
Lower insurance expenses allow businesses to invest in growth, hire more employees, and keep prices competitive for consumers.
With fewer unwarranted legal expenses, businesses can focus on innovation, expansion, and improving employee benefits rather than litigation defense.

Protection from Frivolous Lawsuits

The bill introduces safeguards against “nuclear verdicts”—jury awards that far exceed actual damages.
Preventing manipulative legal tactics, like suggesting arbitrary pain-and-suffering damage amounts, ensures verdicts are based on facts, not emotion.
By requiring stricter evidentiary standards, SB 68 discourages the exploitation of legal loopholes that encourage excessive claims.

Encourages Job Growth and Economic Investment

A fairer legal system makes Georgia more attractive to investors and new businesses, leading to job creation and economic expansion.
States with tort reform tend to see higher business confidence and lower unemployment rates.
When businesses no longer have to fear runaway litigation costs, they are more likely to invest in hiring, infrastructure, and local communities.

Why SB 68 Doesn’t Harm Everyday Georgians

While businesses benefit from these reforms, everyday Georgians still maintain their right to fair compensation in legitimate injury cases. The bill introduces common-sense legal standards to prevent abuse of the system, not to block rightful claims.

Injured Georgians Still Get Fair Compensation

The bill does not cap damages—it simply prevents inflated, unrealistic claims.
Georgians can still sue for legitimate medical expenses, lost wages, and actual pain and suffering.
The legal system remains open for genuine victims, while reducing incentives for opportunistic or exaggerated claims.

Encourages Personal Responsibility

Allowing seat belt usage as evidence in car accident cases means that individuals who take safety precautions aren’t penalized unfairly.
This helps ensure liability is assigned fairly and accurately, rather than imposing unnecessary costs on businesses and insurers.

Ensures Property Owners Aren’t Unfairly Blamed for Crime

Businesses and property owners are not automatically liable for crimes they couldn’t reasonably prevent.
This helps small businesses avoid unfair lawsuits that could bankrupt them while still holding negligent landlords accountable.
By focusing liability on preventable and foreseeable risks, SB 68 ensures fair outcomes for both plaintiffs and defendants.

Real-World Examples Where SB 68 Would Have Made a Difference

Samson Tours Case

Samson Tours, an Atlanta-based business, was sued after a mother and child were struck by another driver at a school bus stop—despite Samson Tours having no direct involvement in the incident.
The company was dragged into litigation and saw insurance premiums spike by 400%, illustrating how excessive lawsuits harm small businesses.
SB 68’s stricter liability standards could have prevented such an unfair outcome.

Coen v. Aptean

In this case, a plaintiff pursued an abusive litigation claim seeking excessive punitive damages against his employer.
Courts ultimately limited his ability to claim punitive damages without substantial justification.
SB 68 ensures that punitive damages are awarded only when warranted, discouraging retaliatory lawsuits against businesses.

Conclusion

Georgia Senate Bill 68 is a pro-business, pro-consumer reform that ensures fairness in the legal system. It reduces unnecessary costs for businesses while ensuring legitimate victims still receive fair compensation.

By preventing lawsuit abuse, SB 68 helps keep prices low, create jobs, and protect Georgia’s economic future—without taking away anyone’s rights.

If Georgia wants to remain a thriving, competitive business hub, passing SB 68 is a necessary step toward a fair and balanced legal system for all.

Understanding Beneficial Ownership Filing: What Business Owners Need to Know

Tue, 14 Jan 2025 23:01:46 GMT

If you’re a business owner, you’ve likely heard about the Beneficial Ownership Information (BOI) filing requirements recently introduced under the Corporate Transparency Act (CTA). This new federal rule is designed to combat financial crimes like money laundering and terrorism financing by increasing transparency in business ownership. However, not all businesses are required to file, and some are exempt from these requirements. Here's what you need to know.

What Is the BOI Filing Requirement?

The BOI filing requirement, as outlined in the Corporate Transparency Act and implemented by the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN), mandates that certain entities report information about their beneficial owners. Beneficial owners are individuals who:

Exercise substantial control over the entity, or

Own or control at least 25% of the ownership interests in the entity.

The BOI filings are confidential and will be accessible only to authorized government agencies and financial institutions for specific purposes.

Who Must File?

The BOI filing requirement applies to most corporations, limited liability companies (LLCs), and similar entities created or registered to do business in the United States. If your business falls into this category, you are likely required to comply with the rule.

Who Is Exempt?

While many entities are required to file, the law provides several exemptions under 31 CFR § 1010.380(c)(2). Notable exemptions include:

Large operating companies : Entities with more than 20 full-time employees, over $5 million in gross receipts or sales, and a physical office in the U.S.

Certain regulated entities : Banks, credit unions, insurance companies, and other entities already heavily regulated by federal or state authorities.

Tax-exempt organizations : Nonprofits, including 501(c)(3) organizations.

Inactive entities : Companies that were in existence for over a year before January 1, 2020, have no ongoing business activity, and meet other specific criteria.

For a complete list of exemptions, refer to the regulation directly: 31 CFR § 1010.380(c)(2).

Recent Developments: Injunction on BOI Filing

As of December 2023, the U.S. District Court for the Eastern District of Texas issued an injunction in the case National Small Business Association et al. v. Janet Yellen et al., temporarily halting the enforcement of the BOI filing requirements. This decision stems from litigation challenging the implementation of the Corporate Transparency Act. Business owners should stay informed about updates, as this injunction may delay filing deadlines or impact compliance requirements.

For more information, visit the FinCEN website’s Corporate Transparency Act page or review the court’s decision here.

What Should Business Owners Do Now?

While the injunction provides temporary relief, business owners should prepare for compliance by:

Identifying whether their business is subject to the BOI filing requirement.

Gathering information about beneficial owners, including names, dates of birth, addresses, and identification numbers.

Monitoring updates from FinCEN and other official sources for changes to the rule or deadlines.

Final Thoughts

The BOI filing requirement marks a significant shift in corporate transparency in the United States. Understanding whether your business must comply—or qualifies for an exemption—is crucial to avoid penalties. Given the current legal developments, now is an excellent time to consult a legal or compliance professional to ensure your business is ready for whatever comes next.

For more detailed guidance, visit FinCEN’s official page on the Corporate Transparency Act or speak with your legal counsel.

Understanding Business Liabilities and Personal Asset Protection

Wed, 27 Nov 2024 16:27:00 GMT

Before delving into strategies for protecting your personal assets, it's essential to understand what you're safeguarding them from. Business liabilities are the debts or legal claims that a company faces, while personal assets refer to anything you own outside of your business—such as your home, car, or personal savings. Although business and personal finances may seem like separate entities, business liabilities can potentially put your personal assets at risk.

What Are Business Liabilities?

Business liabilities can take various forms, including unpaid debts, lawsuits, or damages caused by products or services. As a business owner, you are often personally responsible for your company's liabilities. This means that if your business is sued or fails to cover its debts, your personal assets may be used to settle these liabilities.

To mitigate this risk, many business owners turn to strategies like forming a Limited Liability Company (LLC) or a Corporation . These business structures create a legal separation between your personal assets and business obligations, offering a layer of protection should your company face financial or legal issues.

Understanding Personal Assets

Personal assets include items owned outside the scope of your business, such as real estate, savings accounts, and investments . The goal is to shield these personal assets from business liabilities, ensuring they remain untouchable in the event of a legal claim or financial fallout.

Liability insurance is a popular tool that can protect both your business and personal assets from lawsuits. Be sure to review and update your insurance policy regularly as your business grows and evolves.

Another protective measure is creating a trust —a legal arrangement where a trustee manages and holds assets on behalf of a beneficiary. By transferring ownership of personal assets into a trust, business owners can often shield these assets from being seized in the event of a business liability.

Choosing the Right Business Structure

The way you structure your business plays a pivotal role in protecting your personal assets. Below are a few common business structures and how they impact liability protection:

Sole Proprietorship

A sole proprietorship is the simplest form of business ownership. While easy to set up, it offers minimal liability protection . For example, if you run a bakery and a customer sues you for food poisoning, your personal assets (such as your home or savings) could be at risk, since you are personally liable for the business's debts and claims.

Partnership

A partnership involves two or more individuals sharing ownership, profits, and liabilities. This structure also exposes personal assets to risk. For example, if one partner in a landscaping business causes damage to a client’s property, both partners could be held liable, putting their personal assets in jeopardy.

Limited Liability Company (LLC)

An LLC offers greater protection for personal assets. This structure separates business liabilities from personal ones, meaning only the assets owned by the business are at risk in a lawsuit or financial dispute. For example, if your online clothing store faces a legal claim, only the business’s assets would be at stake, not your personal property.

Corporation

A corporation is a separate legal entity that shields its shareholders from personal liability. Personal assets are generally safe from business-related claims. For instance, if a software company faces a patent infringement lawsuit, the corporation’s assets—rather than the owners’ personal assets—would be at risk.

Separating Personal and Business Finances

Keeping personal and business finances distinct is key to protecting your assets. Here are some practical tips to help you achieve that:

1. Open a Business Bank Account

A dedicated business bank account helps you clearly separate business and personal finances. This not only simplifies tracking business expenses and income but also reinforces the separation of personal and business assets.

2. Use a Business Credit Card

Applying for a business credit card allows you to separate business-related spending from personal expenses. This also builds your business’s credit profile while protecting your personal assets.

3. Maintain Accurate Financial Records

Careful recordkeeping is essential for both legal and financial reasons. Use accounting software (like QuickBooks or Xero) to track income and expenses, and consider hiring an accountant to help manage your finances.

Obtaining the Right Insurance Coverage

Insurance is a vital tool in managing business risks and protecting personal assets. Here are some key types of insurance for business owners:

General Liability Insurance

This covers claims for bodily injury or property damage that occur on your business premises or as a result of your products or services. It helps pay for medical expenses and legal fees associated with lawsuits.

Professional Liability Insurance

Also known as Errors and Omissions (E&O) insurance, this coverage protects against claims resulting from the professional services you provide. For instance, if a financial advisor makes a recommendation that leads to client losses, this insurance can cover legal defense and settlement costs.

Property Insurance

This protects your business property, including buildings, equipment, and inventory, against damage or loss. For example, if a fire destroys your office, property insurance can help cover repairs and replacement costs.

Workers’ Compensation Insurance

This type of insurance covers medical expenses and lost wages for employees injured on the job. It also protects you from lawsuits arising from work-related injuries.

Implementing Asset Protection Strategies

Beyond choosing the right business structure and insurance, there are proactive steps to safeguard your personal assets:

1. Develop an Asset Protection Plan

A comprehensive plan should identify potential risks and outline strategies to minimize them. Consulting with a legal professional is crucial in creating an effective strategy tailored to your specific needs.

2. Utilize Trusts and Retirement Accounts

Transferring personal assets into a trust or contributing to a retirement account (such as a 401(k) or IRA) can shield your assets from creditors and legal claims. These accounts are generally protected from lawsuits, making them an effective asset protection tool.

3. Invest in Real Estate

Real estate offers both financial growth and protection. Since real estate is typically shielded from creditors, owning property can serve as a long-term asset protection strategy.

Regularly Review and Update Your Asset Protection Plan

Asset protection is not a one-time task. To ensure your plan remains effective:

Monitor legal changes : Stay informed about changes in asset protection laws that might affect your business.

Adapt as your business grows : Update your plan as your business expands, acquires new assets, or enters new markets.

Evaluate effectiveness : Regularly assess whether your protection strategies are still viable and make adjustments as necessary.

Conclusion

Protecting your personal assets from business liabilities is a fundamental aspect of owning and running a business. By selecting the right business structure, separating your personal and business finances, obtaining sufficient insurance, and utilizing asset protection strategies, you can ensure your personal wealth remains safeguarded. Regularly reviewing and updating your plan is essential to adapting to business growth and changes in the law.

For expert legal guidance on asset protection, business structures, and other legal matters, contact Bennett Law Mediation Services LLC today. Our experienced team is here to provide you with the legal support you need to protect your personal and business assets. Reach out to us to discuss how we can help you navigate the complexities of business law and safeguard your financial future.

Navigating Business Disputes: The Importance of Legal Guidance

Tue, 10 Oct 2023 16:46:23 GMT

Written By: Muskaan Patel

Running a business with a partner, be it a friend or family member, can be a rewarding venture. However, the reality is that not all business partnerships are smooth sailing. Conflicting viewpoints on how the business should be operated, divergent ethics, and disagreements on crucial decisions are not uncommon. When disputes arise, it's crucial for business owners to prioritize the protection of assets and the business's reputation.

Addressing disputes in a timely and effective manner is essential to safeguarding the interests of the business. Many business owners may hesitate to take the matter to court, fearing potential repercussions on the business or relationships with partners. However, delaying legal action can have more detrimental effects in the long run.

One valuable resource for resolving business disputes is a skilled business attorney. These professionals bring astute litigation skills and legal expertise to the table, making them invaluable when navigating complex disagreements. Here are a few reasons why engaging a business attorney is a wise decision:

1. **Protection of Business Assets:**

A business's assets are its lifeblood. In times of dispute, it's crucial to ensure that these assets are protected. A business attorney can guide you through the legal processes necessary to safeguard the financial interests and assets of the business.

2. **Preservation of Business Reputation:**

The reputation of a business is often as valuable as its tangible assets. Public disputes or legal battles can tarnish the image of a business. An experienced business attorney can help devise strategies to minimize the impact on the business's reputation while effectively addressing the underlying issues.

3. **Timely Resolution of Disputes:**

Procrastination in addressing disputes can exacerbate the situation. The longer a dispute persists without resolution, the greater the potential harm to the business. A business attorney can facilitate a swift and efficient resolution, mitigating the negative consequences of prolonged conflicts.

4. **Legal Expertise in Business Matters:**

Business law is intricate and varies across jurisdictions. A business attorney brings a wealth of legal knowledge specific to business operations, contracts, and dispute resolution. This expertise is invaluable in crafting effective legal strategies tailored to the unique circumstances of your business.

5. **Mediation and Alternative Dispute Resolution:**

Litigation is not always the only option. Business attorneys are adept at employing alternative dispute resolution methods such as mediation or arbitration. These approaches can provide a more amicable and cost-effective way to resolve conflicts without resorting to lengthy court proceedings.

In conclusion, while disputes among business partners are inevitable, the manner in which they are addressed can significantly impact the future of the business. Engaging a business attorney early on demonstrates a commitment to a fair and swift resolution, safeguarding the assets, reputation, and overall success of your business. Don't let disputes fester—seek legal guidance to navigate the complexities of business disagreements effectively.

"Breach of Contract: What You Need to Know"

Mon, 25 Sep 2023 17:09:13 GMT

Written by: Muskaan Patel

A breach of contract is a violation of any of the agreed-upon terms and conditions of a binding contract. When a party that signs the contract neither performs their contract nor tenders performance, or when the performance is defective, there is a breach of contract. The non-breaching party must prove that there is a breach of contract and that the contract that was breached was legally valid and enforceable.

There are two types of breaches of contract:

1) Anticipatory Breach of Contract

2) Actual Breach of Contract

An anticipatory breach of contract occurs when the party that signed the contract refuses altogether to perform their promises and signifies their unwillingness to fulfill the contract, even before the time of performance has arrived. By declaring an anticipatory breach, the opposing party may begin legal action immediately, rather than waiting until the contract's terms and conditions are broken.

An actual breach of contract occurs when the party that signed the contract refuses to perform the promise on the scheduled date. When one of the parties breaks the contract by refusing to keep the promise when it falls due, it is an actual breach.

It's important to note that the information provided here is for general informational purposes only and is not legal advice. If you have specific questions or concerns about contract issues, it is advisable to consult with an attorney who can provide you with guidance tailored to your situation.

Independent Contractors in Georgia and Non-Compete Agreements: What you need to know

Fri, 15 Sep 2023 13:00:01 GMT

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Many businesses in Georgia hire independent contractors to perform various functions, including marketing, IT support, and accounting. However, when businesses engage independent contractors, there is often a concern about protecting confidential information and preventing the independent contractor from competing with the business. In this blog post, we'll explore the key issues surrounding independent contractors in Georgia and non-compete agreements.

What is an Independent Contractor?

An independent contractor is a person or business that provides services to another entity under a contract, but who is not an employee of that entity. Independent contractors are not subject to the same tax and employment laws as employees and are generally responsible for their own taxes and benefits.

What is a Non-Compete Agreement?

A non-compete agreement is a contract between an employer and an employee (or independent contractor) that prohibits the employee or contractor from competing with the employer's business for a certain period of time after the employment or contract relationship ends. Non-compete agreements are typically used to protect confidential information, trade secrets, and client relationships.

Are Non-Compete Agreements Enforceable in Georgia?

In Georgia, non-compete agreements are generally enforceable if they are reasonable in scope and duration. This means that the agreement must be narrowly tailored to protect the employer's legitimate business interests, such as trade secrets or confidential information, and cannot be overly broad in its restrictions.

Additionally, the duration of the non-compete agreement must be reasonable. Georgia courts have generally held that a non-compete agreement of up to two years is reasonable, but longer durations may not be enforceable.

How Should Independent Contractors Approach Non-Compete Agreements?

Independent contractors in Georgia should carefully review any non-compete agreements before signing them. It is important to understand the scope of the agreement and how it could impact your ability to work in your field.

If you have concerns about the scope or duration of the non-compete agreement, you may want to negotiate with the employer to modify the agreement. Alternatively, you may want to seek legal advice to determine if the agreement is enforceable and what your options are if you decide to pursue other work opportunities.

Conclusion

Independent contractors are a valuable resource for many businesses in Georgia, but it is important to carefully consider the terms of any non-compete agreements before entering into them. Non-compete agreements must be reasonable in scope and duration to be enforceable in Georgia, and independent contractors should be aware of their rights and options under the law. If you have questions or concerns about independent contractors and non-compete agreements in Georgia, contact an experienced attorney for guidance.

LawCall Macon, GA – Divorce & Retirement Funds – 2023

Tue, 11 Jul 2023 23:36:14 GMT

Confidentiality v. Privilege

Tue, 16 May 2023 14:46:17 GMT

What’s the Difference?

While you may hear the terms confidentiality and privilege used interchangeably, they have distinct meanings and applications.

Confidentiality

When lawyers use the term confidentiality, he or she is referring to information that a client gives them during a meeting, phone call, or other form of communication which is expected to be held in confidence. This confidential information is actually an ethical rule in which lawyers are obligated to follow during representation and in some instances—beyond the time of representation. In other words, confidential information is a rule that applies to lawyers when handling client information and is not applicable only in the courtroom.

If the rule of confidentiality did not exist, then clients would likely not feel comfortable in discussing sensitive (or even incriminating) topics with their lawyers. This would have a detrimental effect on the relationship between lawyers and clients and would likely have a negative impact on the outcome of legal cases whether criminal or civil in nature. It is this confidentiality rule that allows clients to speak openly and honestly with their lawyer.

Privilege

The term privilege is short for the commonly used phrase “attorney-client privilege” which refers to the evidentiary rule that prohibits evidence that is protected or privileged information between a lawyer and their client from being admitted in court. This rule only applies during court proceedings and is not applicable during out of court proceedings such as consultation or mediation. Now this does not mean that information is not protected outside of the courtroom. This simply means that the specific rule of privilege does not apply.

This rule must be invoked by the representing lawyer in the courtroom for it to protect the desired information. Lawyers invoke this rule by objecting to the information being presented to the court. If the lawyer does not object, then the information can be admitted. Sometimes objections are made and overruled by the court and sometimes the objection is sustained. For this reason, information that clients believe is privileged could still be admitted if the court decides it does not rise to the level of privileged information.

Conclusion

It is important to know that while information is entrusted to your lawyer, and there may be an overlap between confidentiality and privilege, there is a distinct difference between when each applies. Knowing the difference can help clients better understand and communicate with their lawyers.

Myth-Busting: Common Myths About Contracts

Wed, 06 Jul 2022 16:37:49 GMT

By: Audrey Vincent, Law Clerk

Contracts play a critical role in protecting your business and yourself. Whether it is signing new employees, starting a new business, getting married, or subscribing to a new phone service, contracts are an essential part of daily life. Despite the abundance of contracts, a variety of myths still surround them that can affect their validity and your position as an employee, as a consumer, or as a business. The following information will bust the most commonly heard myths about contracts that you may unknowingly believe yourself.

What is a contract?

Before getting into the common myths about contracts, it is important to understand what a contract is. A contract is a promise or set of promises for the breach of which the law gives a remedy. So, what are the most common contract myths?

10 Most Common Contract Myths:

1. A contract is only valid if it is signed.

Somewhat of a Myth. Not all contracts need a signature to be valid. Some contracts can be verbal or even expressed through a handshake in business practices. Intention to create a contract can be proven by the conduct of the parties even if a formal written agreement has not been signed.

There are some kinds of contracts that need signatures — contracts that fall under the “Statute of Frauds.” Some examples of these types of contracts are: contracts that include terms that cannot be performed within one year; contracts for the sale of land; and contracts formed in the consideration of marriage (ex: prenups).

2. A contract is written and signed, so it is valid.

Myth. Even if a contract is written and signed, it still may not be valid. A contract’s terms must be fair in order to be considered legally binding. If it is not, a contract can be legally challenged in court. If you are unsure whether the terms of your contract are fair, it is important to seek legal advice.

3. Context surrounding the contract can help explain a conflict.

Myth. The most important part of a contract are the terms written. In most instances, the judge will not take into account any argument or verbal agreement outside of what is written in the contract. There is a belief that when parties adopt a written contract, it is reasonable to assume that they have incorporated all the terms of their agreement in writing. So, make sure that you or your attorney include all the terms you agreed to in the contract before signing.

4. Contracts should be full of complicated “legal jargon.”

Myth. We have all seen the overly complicated contracts that are full of legal jargon and unnecessary “legalese” that is hard to understand. Not all contracts need to be such complicated agreements. Contracts just need to be clear, concise, and address all the relevant terms of the agreement.

5. I trust the other party; I do not need to write a contract.

Although we wish the world was this kind, every lawyer has heard these words said by a client who ended up regretting it later.

Without a written contract, your rights will be harder to enforce, and the terms of the contract (ex: price, duration, payment, etc.) will be harder to prove. Having a contract in place will more times than not benefit yourself or your business.

6. Even though I did not accept how they wanted me to, I accepted their offer, so we have a contract!

Myth. If an offer states the time, place, or manner in which you need to accept the contract, it must be complied with in order to create a contract. If you do not accept in the manner in which the offeror provides, you may not have an enforceable contract. Likewise, if you turn down the offer and later change your mind and want to accept, you have terminated the original agreement, and there is no contract.

7. Parties are bound to the terms of the contract.

Somewhat of a myth. This is true, generally, but contract terms that violate the law will not be enforced. Examples of these kinds of contracts include: terms that are against public policy; terms that are impossible to perform; terms that would cause a party to go to extreme hardship or expense to perform; contracts that are against the law (ex: contracts to buy/sell drugs); and contracts that violate licensing statutes (ex: practicing law without a license/degree). If you are unsure whether the terms of your contract can be enforced, it is important to seek legal advice.

8. The other party can change the terms of the contract.

Somewhat of a myth. A party cannot make a new contract and promise to do what they were already legally obligated to do. For example, a party cannot make a new agreement asking for more money to perform the same duty under an existing contract. An exception to this would be modifying the contract where neither party has fully performed their duty under the contract.

9. Anyone can enter into a contract.

Myth. There are certain people who do not have the capacity to enter a contract. These people include: those under the age of 18; those who are mentally incapable of reasonably understanding a contract due to mental illness or disease; and in some circumstances, people who are intoxicated.

10. Parties can hide unfair terms in the fine print.

Myth. While it is expected that you read everything in the contract before signing, parties cannot use fine print to hide terms that are “unconscionable.” This means that the term is so unfair or one-sided that it would shock the conscious of the court. If you are unsure whether the terms of your contract are unconscionable, it is important to seek legal advice.

Contracts are used all around us, but there are complex rules surrounding them. An expert attorney can help draft, refine, review, and defend your contract in order to serve your needs.

Bennett Law & Mediation Services LLC is a Best of Georgia® Winner

Wed, 02 Feb 2022 20:40:18 GMT

The votes have been counted and the results are in! Bennett Law & Mediation Services LLC is a 2021 Best of Georgia® winner in Georgia Business Journal’s annual readers’ poll.

Georgia Business Journal readers and editors have weighed in on the best of everything in Georgia, honoring thousands of businesses and organizations in more than 25 broad business and community sectors.

The process starts with a nomination on the Best of Georgia website. Voting remains open throughout the year, with tens of thousands of votes ultimately received. The process culminates with the publishing of the annual Best of Georgia Keepsake Annual along with a statewide publicity campaign.

Best of Georgia winners and nominees are chosen by a combination of readers’ votes and editors’ input, and are vetted through several ranking sites, Better Business Bureau complaint reports, and voting pattern analysis reports.

Winners are named in hundreds of individual categories, providing Georgia Business Journal readers with a go-to-guide for the best of everything in Georgia. Georgia Business Journal recognizes three levels of winners: The Best of Georgia, Best of Georgia Regional Winners and Honorable Mentions. Within each category, there are multiple honorees named in each tier, depending on the size of the market sector.

You can view the full list of Best of Georgia winners at BESTofGEORGIA.com/winners

Pro Se Divorce: The Advantages and Disadvantages of Representing Yourself

Thu, 30 Sep 2021 23:20:22 GMT

Emotionally and financially, a divorce can be incredibly taxing and can lead to increased stress not only for spouses, but also any children between them. A question often considered at the onset of a divorce is “what now? Do I need to get an attorney?” Simply put, the answer is no you do not need to get an attorney. However, you may want to get an attorney to ensure all of your interests are adequately protected in the divorce.

What does “Pro Se” Mean?

Pro Se representation is when a person represents themselves in court as compared to hiring a lawyer to represent them. This will include the time from the initial complaint being filed all the way to the final hearing or settlement for divorce. All filing of documents and communication with the court must be done by that person and that person must be timely on all documents required by the court.

What are the Advantages of a Pro Se Divorce?

Simply put, there is truly only one “advantage” to representing yourself in court—cost savings. However, there is a tradeoff to any savings from representing yourself. In a perfect world, both spouses agree as to all provisions of the divorce and there is no argument as to any property/debt distribution, alimony, spousal and child support, custody and visitation, and any other issues related to the marriage. In this above described scenario, both parties should be able to get a divorce and be content with the agreement between them without the need of a lawyer. However, as commonly seen, there is at least one issue amongst those areas that the parties disagree on.

When there is an issue between any of the parties on any of the above factors listed, pro se representation may be hindered.

What are the Disadvantages of a Pro Se Divorce?

When there is an issue concerning property/debt distribution, alimony, spousal and child support, custody and visitation, and any other issues related to the marriage, the divorce is considered “contested.” A contested divorce likely requires the expert handling of the divorce by a lawyer to ensure their clients interests are protected and that they are receiving what they want in the divorce. Any time court is involved for any person it can be complicated and knowing the law can go a long way in achieving the best outcome for whomever is obtaining a lawyer. This can include staying on top of all the time requirements in a divorce, communicating with the other spouses attorney, researching and applying the law specific to the case, having readily accessible information concerning the law, and fiercely advocating in the court room without the worry of violating some unknown rule that the pro se litigant may not be aware of.

Not acquiring a lawyer, especially when the other spouse has gotten a lawyer, can be adverse to the unrepresented spouse and the case than if they had retained a lawyer for themselves. Not only is there an increased risk of losing out on some aspect of the divorce (custody, alimony, assets), there is a chance the pro se litigant will violate a court rule that is unknown to them and could hinder their case or even result in contempt of court.

So What is the Bottom Line?

While representing yourself in a divorce is an option—it is not the best option. It is always recommended to seek legal representation from an attorney to analyze the case and protect your interest.

LawCall-Macon, GA 8-29-21

Mon, 30 Aug 2021 20:23:28 GMT

COVID-19, Your Job & the Law

THE $2.13 SERVER MINIMUM WAGE: EXPLAINED.

Fri, 20 Aug 2021 14:07:17 GMT

Get schooled on Tips.

Many believe that the minimum wage for individuals in the service industry is too low or even “illegal.” This is absolutely NOT true. Let's find out why.

An employer of a tipped employee is only required to pay $2.13 per hour in direct wages if that amount combined with the tips received at least equals the federal minimum wage. If the employee's tips combined with the employer's direct wages of at least $2.13 per hour do not equal the federal minimum hourly wage, the employer must make up the difference. Employers know this as the “Minimum Wage Differential.” Put plainly, Employers must make up the difference between the federal minimum wage and the service minimum wage ($2.13) if the server does not make at least the federal minimum wage. This is reflected and paid on the Employee’s paycheck.

For example, if Suzie Server makes only $10.00 in tips during a 5 hour shift while clocked in at $2.13 per hour, this means she made $4.13 per hour. Math below.

$2.13 x 5 hours= $10.65

+ 10.00 (tips)

_____________

$ 20.65 (total wages for the day)

$20.65 (total wages for the day) ÷ 5 (total hours worked) = $4.13 per hour

This means that Suzie made BELOW the Federal Minimum Wage ($7.25) and her Employer must pay her $3.12 per hour worked to make up the difference between the amount she made and the Federal Minimum Wage. Here is the math:

Difference between

Federal Minimum Wage $7.25-$4.13= $3.12

and amount Suzie made

Minimum Wage Differential $3.12 x 5= $15.60

That means Suzie will be paid $20.65 in minimum wage from her Employer plus tips AND an additional $15.60 from her Employer. This equals -- $36.25 for 5 hour shift . This means that Suzie will ALWAYS at LEAST make the Federal Minimum Wage ($7.25x5=$36.25).

In fact, most servers make far MORE than the Federal Minimum Wage. The average salary for a server in Georgia is $13.55 per hour —that is equal to $108.40 per day . $13.55 is almost twice the amount of the Federal Minimum Wage. Some companies, such as Steak n Shake , have been rated “Top Companies for Servers in Georgia” where servers make approximately $27.63 per hour! That comes out to an annual salary of $53,049.60. This is one of the reasons many college students work as servers while going to school. They can literally pay for college while attending school. This does not even account for those servers who do not report ALL of their tips. Since most tipped wages are in cash directly to the server, some wages go unreported.

So next time you hear someone claiming $2.13 is not enough for servers—now you know the difference !

Best of Georgia

Tue, 25 May 2021 21:47:26 GMT

Four innovative Georgia-grown businesses you've never heard of; These Warner Robins attorneys advocate through both litigation and mediation

"You don't drown by falling in the water; you drown by staying there." ― Edwin Louis Cole

BUSINESS SPOTLIGHT

BENNETT LAW & MEDIATION: BRINGING PASSION AND COMPASSION INTO PRACTICE

As a married couple, Brittany and Andrew Bennett are each other’s greatest strength. Whether involved in a community event, attending church, or making wine—one of their favorite hobbies—they’re side-byside through it all, and that doesn’t change throughout the work week. Like most parents, the Bennetts tag team, getting their two young children fed and packed up with activities and snacks before dropping them off to their morning destination, which often includes grandma and grandpa’s house.

But unlike most couples, the pair doesn’t part ways when the morning hustle ends. Instead, they pack into their car, follow one route, and stroll into the same office building, where they head up their own operation: Bennett Law & Mediation. “It is really incredible to have a partner to lean on,” says Ms. Bennett. “Someone to share in the successes and the challenges.”

The firm became an ambition of Ms. Bennett’s, founder of Bennett Law & Mediation, when it became apparent that she had more to offer than what she felt she was able to through her previous role as associate attorney. A born leader, she was confident she could cultivate a practice centered around what clients really wanted. “I wanted to be the one making all of the decisions and the one to build a brand centered on honesty, integrity, collegiality, and zealous advocacy,” says Bennett.

With Mr. Bennett on board as her partner in life and law practice, the duo has conquered myriad challenges for clients and—having launched in 2018, they’re only just gaining momentum. Together, the couple cover vast ground in a unique mix of practice areas, including business law, employment law, wills and estates, family law, military family law and criminal law. Their specializations may be similar to other law firms, but what sets Bennett Law & Mediation apart from the rest is that every attorney in their office is also a Certified Mediator. “Mediation has helped us find unique solutions to the most complicated legal issues,” says Bennett. “And we believe that not every case needs to be

litigated."

This distinction signals the firm’s desire to place both clients’ interests and pocketbooks first. Mediation not only helps clients avoid dumping money and time into lengthy, stressful court cases, but presenting it as an option also boosts the firm's ability to tailor the representation and trajectory of resolution to each client’s need.

The Bennetts’s unique focus on client satisfaction is attributed in part to their long background in the hospitality industry, including retail and restaurants, which has shaped their client-first mindset and empowers them to connect with clientele naturally and in a meaningful way that delivers reassurance and comfort. “To us,” says Bennett, “Every client is a human being first, and a client second.”

As the Bennetts plunge into each day conducting initial client consultations and determining the best gameplan for every case, one apparent value of theirs is their accessibility and responsiveness.

“We never miss a phone call and we are always available,” says Bennett. But the Bennetts take care and responsiveness to another level: if they can’t take your case, they’ll find someone who can. “Everyone’s case is important,” says Bennett. “And we are dedicated to assisting in any way we can.”

Since its establishment three years ago, the firm has already made waves on a national scale. Ms. Bennett won a large sum for a client in a dispute against an insurance company―a case that garnered attention from across the country. And Mr. Bennett was awarded the Houston County Bar Association President’s Award in 2020.

In addition to winning several cases on dispositive motions, the firm has also attained remarkable results i n child custody representation. “There is little more important in life than one’s family,” says Bennett. And she speaks from experience.

The Bennetts attribute their growth and success in large part to both sides of the family. “Being able to pick up the kids from grandma’s has really made it possible for the business to thrive,” says Bennett. “Without the support of both parents on each side and each other, our practice would not be able to achieve what it has. Our parents have instilled in us both work ethic and respect for people, which are implemented in our practice every day. For us, family keeps us grounded and lifts us up when we need it. That balance is crucial to success.”

To schedule a consultation with Bennett Law & Mediation, call 478-328-8316 or email info@bennettlawga.com. Learn more at bennettlawga.com.

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Divorce: Uncontested or Contested?

Mon, 12 Apr 2021 19:13:05 GMT

Pursuing a divorce can be a daunting task, as it requires couples to sort through a variety of complicated and emotional issues stemming from their marriage. From dividing finances and property to determining custody over children, divorce can be both overwhelming and stressful. If you feel stuck, a good place to start is determining which of the two categorical umbrellas your divorce may fall under. Divorces can be either uncontested or contested, and the category of a divorce will determine the cost, duration, and other details.

What is an Uncontested Divorce?

The easier and much simpler of the two types of divorce is an uncontested divorce. A divorce is considered uncontested when the spouses come to an agreement on the issues of a divorce prior to the filing of the divorce and agree on how the issues should be handled without court involvement. These issues can include the four major areas of a divorce: (1) child custody (2) child support, (3) spousal support, and (4) property division, as well as any other issues specific to each case. Since there are no disputes between the spouses, there is no need for the court to make a determination in these areas prior to granting a divorce.

A party must still initiate or file a divorce action, and both spouses should hire an attorney to help with the process to make sure the divorce is filed properly and will be accepted by the court. However, uncontested divorces are, on average, quicker, cheaper, more private, and less stressful than contested divorces. The parties of an uncontested divorce can avoid the increased court costs and attorneys’ fees that often accompany a contested action.

Quicker

An uncontested divorce negates the lengthy litigation process entirely. With a contested divorce (litigation) each party must file certain documents with the court within certain time frames and allow the other party 30 days (or more) to respond to each filing. In addition, the case will be set for hearings on dates determined by the court. Therefore, if the court has 100 cases to hear before another has been filed, then the parties to a newly filed divorce must simply wait to be heard. Aside from the availability of the court, the parties must also engage in an often lengthy “discovery” process which requires the parties to exchange financial and other relevant information in preparation for trial within a certain period of time. Discovery includes both written and oral processes such as Requests for Production and Depositions. An uncontested divorce, however, skips the Discovery process altogether because it is simply unnecessary.

Cheaper

As one can imagine, when less time is spent on a case—money is saved. When attorneys represent a party in a divorce, it is the attorney that prepares all written discovery, drafts documents for filing, and argues in front of the court. This all takes time which the attorney bills for on an hourly basis.

More Private

Unless the record is sealed (which is not common in a divorce) every document and exhibit filed with the court is open to the public. In addition, each hearing is recorded by a court reporter and open to the public. An uncontested divorce, while still open to the public, far less details are shared throughout the proceedings because the parties have already agreed to how the divorce should move forward. Many details of the marriage (such as infidelity) become entirely irrelevant and are not displayed during the proceedings as they would be during a contested divorce.

Less Stressful

When parties spend less time and money on attorneys’ fees and other costs of litigation, it is usually coupled with far less stress. Instead of worrying about being deposed or whether the other spouse will find out about a lie or unfaithfulness during the course of the marriage, the parties are able to agree to certain terms and move on with life.

As you can see, an uncontested divorce can save both parties time and emotional stress, reducing lengthy conflict and bringing closure to both the marriage and the case. While an uncontested divorce may offer a few pros over a contested divorce, there are times when a contested divorce makes more sense or is necessary to protect each spouses interests or the interest of the children.

What is a Contested Divorce?

A divorce becomes contested when the parties are unable to agree on one or more of the issues in their case. In this type of divorce, the parties usually (and should) hire attorneys to represent their interests, and the issues will ultimately be presented to and resolved by the court. Contested divorces can be more costly and stressful than their uncontested counterparts, but the issues of a divorce can often be so complex that the parties cannot find an optimal solution themselves. Think about it – couples often acquire property together, pool their funds into joint bank accounts, raise children together, and make important sacrifices and life decisions together that have long-lasting impacts on both parties and their children. Coming to an agreement on these issues may be difficult or even impossible.

When a divorce is contested, the legal process becomes much more complicated. The court will be making the final decision, so all relevant facts and information need to be brought forth for the court to make an informed decision. In a contested divorce, the parties may need to complete:

• Divorce Discovery, where the spouses and other parties will provide important information through written discovery such as interrogatories, requests for production of documents, requests for admission, subpoenas, and oral discovery such as depositions.

• Pre-Trial Hearings, where the court will attempt to resolve pressing temporary issues such as child custody and support and reduce the number of issues to be discussed at trial.

• Alternative Dispute Resolution, such as attempts at mediation, settlement proposals, and negotiations, or even arbitration in some cases.

• A Trial, where the court will issue a final order, resolving the remaining issues in a divorce case.

These legal steps all come with additional costs and time requirements, but they are necessary to resolve contested divorces. It is usually not easy for parties to decide what is fair and best for all interested individuals of a divorce – especially if the parties have children. In these divorces, the court must make the final decision and settle the case so the couple can move forward.

How do I know if my divorce will be uncontested or contested?

It is important to be proactive and speak with your spouse about the details and potential issues of your divorce. Remember the four major areas – child support, spousal support, property division, and child custody. If you anticipate a disagreement over any of those areas or any case-specific issues, you may need to prepare for a contested divorce. It is also common for an uncontested divorce to become contested once a divorce action is filed.

If either type of divorce is on the table for you, you should contact an attorney to help guide you through the process and offer advice. Having a lawyer on your side to advocate for your interests and present your case can help you achieve the results you want and set you up for success moving forward. Divorces can be complex and confusing, but having an attorney working for you will help you sort through the issues and fight for the best solution during a difficult time.

KEMP’S LATEST COVID ORDER RELAXES RESTRICTIONS FOR BUSINESSES

Mon, 05 Apr 2021 19:23:28 GMT

Lives and livelihoods must be protected.

The governor signed an executive order that as of April 8 ends a ban on large gatherings, eliminates shelter-in-place requirements for vulnerable populations, and pares down a lengthy list of safety guidelines that businesses such as bars, retail stores and entertainment venues are supposed to follow.

Kemp issued a separate order Wednesday that could end Georgia’s state of emergency on April 30th – although, Kemp could decide to extend that declaration, as he has done over the past year.

Kemp said Wednesday he worried businesses couldn’t survive an extension of economic limits. His order will allow restaurants to greatly expand capacity, by reducing spacing requirements between indoor tables. It also relaxes spacing rules in gyms and fitness centers and removes the 50-attendee cap on in-person gatherings. However, many hygiene rules will remain in place. Servers and restaurant staff, for example, will still have to wear masks when interacting with customers.

Here's are the highlights of the Order:

• State of Emergency will end April 30, 2021 (unless the order is extended)

• Residents/Visitors shall practice social distancing

• Residents/Visitors strongly encourages to wear masks

• Sanitation procedures must be followed

• Staff must wear masks

• 6 feet no longer required between tables in restaurants

For full text of the Order click here .

Defending Against Traffic Citations

Wed, 03 Feb 2021 20:16:48 GMT

What exactly is a traffic citation? Traffic citations are traffic tickets. The two terms are interchangeable. However, most courts call them citations.

If you are like most drivers, you have probably received at least one traffic citation in your driving history, likely in the form of a speeding ticket. Once cited, you can try to decrease your penalty by doing things such as attending traffic school, paying a fine, or possibly just fighting the ticket in court.

But, what you need to know is this—the rules of the road differ from state to state. A single citation in the state of Georgia is usually more costly than the same from other states. Georgia’s citation fines are actually some of the highest in the nation, not to mention the long-term penalties that may come with them. There are plenty of things you need to know about traffic citations before you decide to dispute one in court. We will briefly discuss just a few here.

Citations are Costly

Citations can eat at your pockets, especially after fees and surcharges are tacked onto them. They can be up to a few hundred dollars, depending on the severity of the violation. Then, there are the non-monetary penalties such as license suspensions and revocations that could come with them. To make things even better, citations have the potential to increase your insurance premiums which is even more costly in the long run. So, it pays to slow down on the roads and be attentive to try to avoid citations altogether.

Points Anyone?

When you receive a citation in Georgia, one penalty you will face is the state’s point system. Points are added to your driver’s license if you are found guilty of a traffic violation. More points equals more problems. You should also know that collecting more than 14 points on your license within a 24-month period will cause your license to be suspended. Think about this—a single citation can land you up to 6 points on your license with each additional citation landing even more points. So, if you have received multiple citations within a 2-year period of time, it is best to seek legal advice on where you stand Be sure to reach out to an attorney for assistance if you are faced with such a penalty.

How do you plead?

If your citation is more than a minor violation, or you decide to dispute your citation, you will likely be facing a judge to state your case. If your citation makes it to the courtroom, there are three plea options available for you in Georgia:

Guilty;
No contest; or
Not guilty

Each plea option comes with its own pros and cons. In order to maximize your odds of a positive outcome, you should contact a lawyer to assist you throughout the process. Even if your case does not have the potential to be dismissed entirely, many attorneys are still able to negotiate lower penalties on your behalf and can sometimes prevent a court appearance altogether. Just remember, your lawyer will need to know everything about your case in order to get you the best result. That means pictures, videos, and any other evidence can really come in handy.

If you or someone you know need legal assistance with a traffic citation, contact an attorney immediately to get the best results.

For helpful information from the Georgia Department of Driver Services, visit https://dds.georgia.gov/organization/about-us/contact-us.

What is the Difference Between a Misdemeanor and a Felony?

Thu, 17 Sep 2020 19:01:00 GMT

By: Ollena Bennett, Esq.

When you hear that someone has been charged of a crime, the first thing most people wonder is, “Was it a felony or misdemeanor?” Well, let’s briefly explore the difference between the two.

MISDEMEANOR

While it is best to stay out of trouble altogether, you would rather be charged with a misdemeanor instead of a felony because a misdemeanor charge is less severe than a felony charge. You can go to jail for up to one year for a misdemeanor conviction in addition to being fined for up to $1,000.00. It is also important to note that some misdemeanor crimes can be upgraded to what is called a “high and aggravated misdemeanor offense” under certain circumstances. This usually happens when someone has been convicted of the same offense multiple times within a certain time period.

Misdemeanor crimes in Georgia include, but are not limited to:

FELONY

A felony is the worst level of crime that you can be charged with. Being convicted of a felony crime typically results in serving more than one year in prison. When most people think of felony crimes, they immediately think of crimes like murder and robbery. But even less severe crimes, like fraud, can be classified as felonies. Speaking with a criminal defense lawyer will assist you in understanding the breakdown of the different levels of crime.

Felony crimes in Georgia include, but are not limited to:

No matter the offense, a criminal defense attorney will do their best to keep someone charged with a crime out of prison while utilizing the rights provided to citizens by the United States Constitution. It is important to contact a defense attorney as soon as you have been arrested and/or charged with any crime, even if you do not think it is severe. Your record, reputation, and freedom is at stake, and there is no time to waste.

The post What is the Difference Between a Misdemeanor and a Felony? appeared first on Bennett Law and Mediation Services LLC .

What does “Probate” mean?- The Georgia Probate Process

Fri, 11 Sep 2020 01:57:00 GMT

By: Brittany E. Bennett, Esq.

What is Probate?

The term “Probate” refers to the court procedure by which a Will is proved to be the valid last Will of a decedent (the person who has passed); also used generically to refer to the legal process of administering a decedent’s estate.

Although Probate refers to the court procedure, the procedure itself has several different paths that a person may follow. The correct path depends on the circumstances. For example, there may be a Will, there may be a Will that was lost, or there may be no Will at all. While each of these examples requires the Probate process, there are different petitions or initial filings that will need to be selected by the person filing (known as the “Petitioner”). The Petitioner is usually the executor (person named in the Will to handle the estate) but can be someone else such as a beneficiary (someone named in the Will or someone who would be considered a beneficiary under the law). The Petitioner must select the right filing or petition to file with the Probate Court.

Common Form or Solemn Form?

The most common forms are “Solemn Form” and “Common Form” Solemn Form requires notice to all heirs and becomes binding upon all parties immediately upon entry of the final order. “Heirs” are those persons who would inherit the estate if there were no lawful Will; heirs may or may not be beneficiaries under the Will. The notice requires anyone having a legal cause to object to or contest the alleged Will to file the objection or contest before a certain deadline. The original Will must be filed with the petition, and proof of the proper execution of the will must be provided by either a self-proving affidavit, Interrogatories or Proof of Witness. All heirs must be duly served or must acknowledge service. The Court will appoint a guardian-ad-litem for each minor or incapacitated heir.

Common Form may be done without notice to heirs but does not become binding for four years after the appointment of the Executor. The requirements of providing the original Will and proof of proper execution are the same as with the Solemn Form Probate. Heirs and others may file an objection or contest at any time up to four years after common form probate.

Letters Testamentary

One of the BIGGEST reasons you may need to file a Petition to Probate a Will is to obtain Letters Testamentary. This is the official document issued by the Probate Court evidencing the authority of an executor or an administrator. This will be the document that you must show the bank and other entities that you are the Executor and have legal authority to access the decedent’s bank accounts or other property, such as a safety deposit box, and grants you the legal authority to disburse property in accordance with the Will. This can only be obtained after the probate process has begun.

Although the Houston County Probate Court (and all other counties in Georgia) provide statutory forms to follow for filing, the forms can be tricky and difficult to understand. It is best to seek legal advice from an experienced Probate attorney when you are seeking Letters Testamentary or have a Will that must be probated.

The post What does “Probate” mean?- The Georgia Probate Process appeared first on Bennett Law and Mediation Services LLC .

Georgia COVID-19 Pandemic Business Safety Act Protects Businesses from Coronavirus Liability

Fri, 07 Aug 2020 19:16:00 GMT

By: Brittany E. Bennett, Esq.

Governor Brian Kemp recently signed new legislation, S.B. 359 , known as the “Georgia COVID-19 Pandemic Business Safety Act” limiting liability claims brought by customers, employees, or members of the public who contract or allege exposure to the virus. The new law took effect immediately and is set to expire in July 2021. It applies broadly to claims brought against businesses, nonprofits, and individuals, while also specifically protecting health-care providers.

The new Georgia law allows liability claims to succeed only in cases where the business or other organization showed gross negligence or similar disregard for health and safety standards. The Act protects businesses from liability related to the coronavirus.

The Act even outlines the following language for businesses to use on its receipts or other forms of proof of purchase (“receipt warning”):

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

OR the following warning posted on the outside of the premises (“outside warning”):

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-4.

(The font for the “receipt warning” must be at least ten-point Arial font placed apart from any other text. The font for the “outside warning” must be at least one-inch Arial font placed apart from any other text.)

The Act does not protect businesses from gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, in an action involving a COVID-19 liability claim. This basically means that if a business (through its agents or otherwise) does not follow State and local safety procedures/protocols at all, or intentionally infects a patron/employee with COVID-19 then a claimant could recover against the business.

The Act also does not prevent an individual from filing a lawsuit. The Act simply limits liability by creating a “rebuttable presumption” against liability. This means that it is automatically presumed that the claimant assumed the risk of harm when he/she entered the premises. This assumption can be overcome by the claimant but is more difficult to do so. If a claimant cannot overcome the assumption, then the claim fails, and the business is not liable.

The rebuttable presumption is only given if the business follows the safety procedures and protocols and posts a warning as described above.

The post Georgia COVID-19 Pandemic Business Safety Act Protects Businesses from Coronavirus Liability appeared first on Bennett Law and Mediation Services LLC .

Last Will and Testament: What is a Self-Proving Affidavit?

Thu, 30 Jul 2020 17:33:00 GMT

By: Brittany E. Bennett, Esq.

When you have your Last Will and Testament drafted, you may think you only need a couple of witnesses for it to be valid, however, there’s another document that you SHOULD have drafted. The self-proving affidavit. The self-proving affidavit (the “Affidavit”) is a document that allows your Will to be probated faster.

The Affidavit consists of statements made (under oath) by each witness to your will. Specifically, the Affidavit will state at least the following:

If you do not have a self-proving affidavit :

The judge will need proof that the above-listed items occurred during the Will signing. This will require filing more documents to prove to the court that the Will is valid. One of the ways this is accomplished is through “interrogatories.” Interrogatories are a series of questions submitted to each witness of a Will which must be answered (under oath) and submitted to the probate court where the Will is being probated. This can be problematic if the witnesses are unable to be located or if the witnesses have also passed. Remember, when a Will is drafted it could be many years before the Testator passes. Therefore, he/she could outlive the witnesses to the Will.

If you have a self-proving affidavit :

The Affidavit avoids the need for further proof of the validity of the Will to the probate court, which ultimately saves time and money! Avoid the hassle of tracking down witnesses. Avoid the headache of what to do when witnesses have passed before the Testator.

Hiring an experienced probate attorney can help you and your loved ones avoid potential pitfalls and unnecessary hurdles in the probate process.

Tip of the day: When you have your Will drafted—sign a self-proving affidavit!

The post Last Will and Testament: What is a Self-Proving Affidavit? appeared first on Bennett Law and Mediation Services LLC .

Your Constitutional Right to an Attorney

Thu, 30 Jul 2020 17:06:00 GMT

By: Ollena Bennett, Esq.

A criminal defendant’s right to an attorney is found in both the Fifth and Sixth Amendments to the U.S. Constitution. So, it is good for everyone to familiarize themselves with their constitutional rights to have an attorney present. Here is a brief explanation of your rights to an attorney.

Fifth Amendment Right to Counsel

The right to counsel within the Fifth Amendment was first recognized in the famous Miranda v. Arizona case where the Court lists the Miranda warnings which states that a defendant is required to be informed that he or she has the right to the presence of an attorney, and if he or she cannot afford an attorney one is to be appointed prior to any questioning if so desired. [1] This gives a criminal defendant the right to have an attorney present before and during a custodial interrogation by any government official. The Court in Miranda recognized the need to establish safeguards to protect individuals while they are being questioned or given the “third-degree” by officers, investigators, or anyone acting as a government agent. The right to ask for an attorney while being questioned assures that any statements made by an individual is of their free will and not by force or coersion. A defendant can only waive this right knowingly and intelligently in agreeing to move forward without an attorney. [2]

It is important to remember that your right to an attorney kicks in as soon as a custodial interrogation begins. “Custody” may have a different meaning based on the particular circumstances in each situation. So, if you are being questioned, ask yourself the following:

1) Am I in a position where I do not feel free to leave when I want?

2) Am I being questioned as if I am a suspect?

3) Am I being questioned by someone who is a government agent?

If the answer is “yes” for all three, you have the right to ask for an attorney before answering any questions or making any statements. As soon as you have openly invoked your right to an attorney, you should not be questioned again until an attorney is present with you.

Sixth Amendment Right to Counsel

The right to counsel within the Sixth Amendment is triggered as soon as formal charges are in place. This gives a criminal defendant the right to have an attorney present during all “critical stages” of their criminal proceedings for the offenses that they have been charged. Criminal proceedings typically begin after a suspect is formally charged by the court. So, this means that a defendant may have an attorney present from the time that formal charges are in place through the end of their trial, or the last proceeding held if the case settles before reaching the trial stage. The U.S. Supreme Court has held that critical stages will include arraignment, post indictment line-ups, post indictment interrogation, plea negotiations, and entering a plea.

So, while the Fifth Amendment right to an attorney can apply before an individual is arrested, the Sixth Amendment right to an attorney is not triggered until after criminal proceedings have begun. [3] An experienced criminal defense attorney can explain your rights in more detail, tailored to your unique situation. If you are being investigated or have already been charged with a crime, contact our office to speak with a criminal defense attorney that will help you determine your rights and possible defenses.

[1] Miranda v. Ariz. , 384 U.S. 436, 474 (1966).

[2] See NOTE: WHEN SILENCE OUGHT TO BE GOLDEN: WHY THE SUPREME COURT SHOULD UPHOLD THE SELECTIVE SILENCE DOCTRINE IN THE WAKE OF SALINAS V. TEXAS, 48 Ga. L. Rev. 623, 628 (2014).

[3] Constitution of the United States ( https://www.senate.gov/civics/constitution_item/constitution.htm )

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5 Reasons Not to Use LegalZoom (or other DIY legal document preparing services)

Sat, 04 Jul 2020 02:31:00 GMT

July 3, 2020

By: Brittany E. Bennett, Esq.

Although it can be tempting, do it yourself (“DIY”) legal document preparing services can create more problems and headaches and end up costing you more than if you would have just hired an attorney to draft the documents for you in the first place. There are many reasons you should avoid using these services, but I have narrowed it down to the 5 main reasons.

When seeking legal advice, a lawyer will ask certain questions to analyze the matter in its entirety. Although online documents services, such as Legal Zoom, attempt to replicate this, certain information may never be uncovered through online prompts. Without relevant information, the necessary documents cannot be produced.

In addition to missed information, you might think you know what document you need but a different document might be more effective or more appropriate. For example, say you want to purchase a business. What documents do you think you need? A purchase agreement? Is that all you need? No. You may also need other documents such as a letter of intent, landlord consents, and a Note.

Not only are other documents likely needed, a lawyer can give you advice on the best documents to use and the best language to use in your situation. Documents created online use “form language” which is equivalent to the clothing industry’s “one size fits all.” Experience will tell you that one size, in fact, does NOT fit all!

A lawyer is there to advise you on the nuances of your situation and let you know the legal implications and legal meaning of certain provisions of documents drafted for your legal matter. A lawyer will also tell you the best provisions to use and what provisions are not necessary.

Online legal document preparing services do not guarantee the accuracy or legal sufficiency of their documents. In fact, LegalZoom even publishes a disclaimer at the bottom of their website that states, “We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.”

Services such as LegalZoom are based on the sole direction of the user. Think of it as being handed the keys to a vehicle before you have been instructed on how to drive. Could you make it go? Probably. Would it be a smooth ride? Probably not. Even LegalZoom admits that their site is not a substitute for a lawyer. So why spend the money on making a mess that will result in needing legal advice anyway?

Laws change constantly. While a service can be up to date on new forms and statutory requirements, a representative from the company is likely not going to call you if your documents should be updated at some point. When you hire a lawyer to draft documents you can ask to be updated on new laws that are passed or you can call their office to check periodically. If you draft a document online on your own, the service is complete and no continued relationship exists.

Even though online services use form language, forms could still be incomplete if information is left out by the drafter (you). In addition, clerical and grammatical errors happen all the time. Without a skilled drafter reviewing the document, these errors can be missed completely. While many errors have no legal significance, some may seem small but could have significant legal consequences. It is best to have a lawyer draft and review documents for this reason.

You may look at your newly drafted documents and feel satisfied with the completed product without knowing that they are riddled with flaws. These flaws could be a source of confusion and unnecessary litigation down the road.

For example, say you draft an operating agreement that clearly states that a partner will be expelled from the partnership if he “embezzles” money from the business. Seems pretty straight forward, right? Well, what if the word “embezzle” is not defined in the operating agreement and a partner takes funds from the business for his personal use? Is this embezzlement? Perhaps it should have been clearly defined in the operating agreement.

Sometimes ignorance is bliss, and sometimes it can be risky.

When you hire a lawyer, you are paying for their legal knowledge, experience, and expertise. These unquantifiable qualities simply cannot be reduced to fillable prompts that spit out your responses on a form.

While LegalZoom and other online services can be less expensive than hiring a lawyer, the accuracy and legal sufficiency of your documents is too important to trust an online service that issues a disclaimer about its own services.

In short, hire a lawyer. It’s worth it.

The post 5 Reasons Not to Use LegalZoom (or other DIY legal document preparing services) appeared first on Bennett Law and Mediation Services LLC .

U.S. Supreme Court bans discrimination based on sexual orientation or gender identity: 5 Tips for Employers

Tue, 16 Jun 2020 04:41:00 GMT

June 16, 2020

By: Brittany E. Bennett, Esq.

The U.S. Supreme Court on recently ruled that employment discrimination on the basis of sexual orientation or gender identity is prohibited under federal civil rights law.

Title VII of the 1964 Civil Rights Act prohibits discrimination in the workplace on the basis of race, religion, national origin and sex. The Supreme Courts ruling confirms that “sex” includes sexual orientation. In the majority opinion, Justice Neil Gorsuch, wrote that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and distinguishable role in the decision, exactly what Title VII forbids.”

Sexual orientation discrimination in the workplace occurs when an employee is subjected to negative employment action, harassment, or denial of certain benefits because of their sexual orientation. Although employers cannot guard against every employee’s actions or conduct toward another employee, there are steps every employer can take to reduce the risk of liability for sexual orientation discrimination or harassment. It’s no secret that some discrimination suits are be brought against employers by disgruntled employees who are looking for a way to retaliate against an employer. Here are a few tips for employers to reduce risk of liability.

Employers should ensure that hiring and firing practices on not based on sexual orientation of an applicant or employee. In addition, employers should implement policies and training practices to educate employees on what could be considered discrimination based on sexual orientation. Although the Supreme Court has made it clear that “sex” includes “sexual orientation” the factual scenarios that could be considered discriminatory or related to sexual orientation or gender identity could be endless.

The infinite factual settings could open many employers up to more liability. The way to minimize the risk of liability is to make sure that hiring and firing decisions are made without considering the sexual orientation or gender identity of an applicant or employee. This will reduce risk of liability and ensure a nondiscriminatory workplace.

In addition to hiring and firing, employers should make sure wages, promotions, and other company benefits are not based on sexual orientation or gender identity of an employee. Many employers dole out raises, bonuses, and vacation time based on performance or years of tenure. These benefits should be based solely on nondiscriminatory factors and employers should take it a step further and avoid any appearances of discrimination. One-way employers can accomplish this is to pay employees by job title and tenure.

Employees should be instructed on the type of behavior that could be considered discrimination or harassment based on sexual orientation or gender identity of another employee. Although many forms of discrimination or harassment are obvious, many others are not.

For example, jokes or slurs about sexual orientation may be considered a form of harassment, which courts have held is a form of discrimination under the law. However, federal law and the laws of most states does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion.

An employer may have employees that do not intend to discriminate or harass another, but the EEOC or a court may find otherwise depending on the circumstances. The best way to handle this is to make sure employees know and understand what could be considered discrimination or harassment so they can avoid this conduct.

No matter how large or small the employer is, employees should be encouraged to talk to their supervisors if they are having a problem. If an employee is being discriminated against or harassed because of his/her sexual orientation but does not feel comfortable approaching a supervisor, the discrimination or harassment could continue. Not only does this result in a bad situation for the employee, but it also increases the risk of liability for the employer.

An employer should have an open-door policy that encourages employees to talk to their supervisor if any problem arises in the workplace. This will allow employers to take action if necessary and respond quickly to eliminate discrimination or harassment. Swift action also reduces risk of liability.

In a discrimination suit, an employer must be able to show a nondiscriminatory reason for an employment decision. If an employer does not give warnings and other forms of disciplinary action in writing, it could be very difficult to show the Equal Employment Opportunity Commission or a court that an employee was fired or not promoted for a reason other than the reason that the employee is claiming.

Disciplinary action in written form memorializes the reasons for an adverse employment decision. For example, if an employee arrives to work late repeatedly and refuses to wear the proper uniform, he or she will likely be fired. Now let’s assume that this same employee is also a member of the LBGTQ community and brings a discrimination suit against the employer after being fired. He claims that he was fired for his sexual orientation. The employer knows that the employee was fired for tardiness and insubordination as described above, but the employer never reduced any disciplinary action to writing. This makes the case a “he said she said” scenario. If the employer would have documented the tardiness and insubordination, then it would have these documents to show the Equal Employment Opportunity Commission or the court a nondiscriminatory reason for firing the employee.

If you are an employer and have more questions about the recent Supreme Court ruling or best employment practices, consult with an employment law attorney today!

The post U.S. Supreme Court bans discrimination based on sexual orientation or gender identity: 5 Tips for Employers appeared first on Bennett Law and Mediation Services LLC .

Business Court: Bennett Law Submits Comment to Georgia Supreme Court

Mon, 15 Jun 2020 19:17:00 GMT

June 15, 2020

By: Brittany E. Bennett, Esq.

On November 6, 2018, voters in Georgia approved Georgia Amendment 2, which established a state business court and procedures and rules for judicial selection, term length, and judge qualifications for the court. In 2019, the Georgia State Legislature approved HB 239, laying out the details of the statewide business court and officially amending Georgia law. The court will begin taking cases on August 1, 2020 [1] .

Georgia had two local business courts that had been implemented as pilot programs in Fulton County and Gwinnett County. The Fulton County business court had been operating since October 2005 and expanded to serve Gwinnett Superior and Gwinnett State Courts in July 2016. The purpose of the business court was “to provide judicial attention and expertise to certain complex business cases and to facilitate the timely and appropriate resolution of such disputes. [2]

The Georgia State-wide Business Court has concurrent jurisdiction with the Georgia Superior Courts over equity cases and cases involving securities, the commercial code, internal business affairs, professional malpractice resulting from a business dispute, breach of contract claims between businesses, and more as provided by law.

The judge of the Georgia State-wide Business Court has drafted a new set of rules for the Business Court, in consultation with a commission of eight Georgia attorneys. That draft has been submitted to the Supreme Court for approval. [3] The Supreme Court solicited comments from the bench, bar, and public regarding these draft rules. The purpose of such comment is to solicit feedback and input from the community these rules will affect.

As members of the Georgia State Bar and as attorneys who frequently represent clients in business disputes, Bennett Law & Mediation Services LLC has submitted a comment for consideration by the Georgia Supreme Court. In drafting a comment, Bennett Law has remained committed to serving its clients in a meaningful and impactful way, not only though litigation but through any means necessary. Bennett Law has made recommendations to the Georgia Supreme Court that, if implemented, will save clients in a business dispute time and money. Some of our key recommendations include the following:

By requiring mediation, the parties will be more likely to reach a settlement instead of wasting valuable time and money in litigation. Statistics show that 55% of court ordered mediations result in settlement! If the majority of cases settle, then clients will save thousands of dollars by avoiding litigation all together.

Requiring Initial Disclosures will allow parties to exchange basic information before entering the discovery period of litigation. This will narrow the scope of discovery and, again, save time and money.

In addition to saving time and money when in a business dispute, we support our client’s right to choose counsel, whether that counsel is local or from out of State. We proposed a rule that would protect that right and would not interfere with a party’s right to select outside counsel who may have scheduling conflicts.

This is a very brief overview of our recommendations to the Georgia Supreme Court. If you would like to view our full Comment, please click here .

[1] Georgia State Legislature, “2019-2020 Regular Session – HB 239: Georgia Business Court,” accessed June 5, 2020.

[2] Fulton Court, “Metro Atlanta Business Court- General Information,” accessed June 10, 2020.

[3] Ga. Const. Art. VI, Sec. IX, Para. I.

The post Business Court: Bennett Law Submits Comment to Georgia Supreme Court appeared first on Bennett Law and Mediation Services LLC .

COVID-19—INSURANCE COVERAGE FOR BUSINESS INTERRUPTION

Wed, 03 Jun 2020 18:54:00 GMT

By: Brittany E. Bennett, Esq.

Business interruption claims stemming from COVID-19 are currently an intense legal and political issue. However, blanket denials of business interruption claims could be problematic for insurance carriers, which have a duty of good faith and fair dealing.

The duty of good faith requires insurance carriers to:

Failure to properly investigate claims or issuance of blanket denial letters could trigger bad faith claims in all jurisdictions.

Bad faith lawsuits have already been filed by policyholders across the nation alleging wrongful denial of business interruption claims stemming from COVID-19. Restaurateurs who received denials of their business interruption claims in the wake of mandatory business closures due to COVID-19, for instance, have filed suit against their insurers.

Bad faith law is also jurisdictional-dependent. There is no set of common law principles universally applicable to bad faith claims. The majority of jurisdictions require a “covered” claim as a prerequisite to a successful bad faith claim, but in others, bad faith can exist absent a “covered” claim. Consequently, an insurance carrier could be subject to bad faith or extra-contractual damages for failure to properly investigate a claim regardless of whether the claim is covered by the policy. It is therefore paramount that insurance carriers fully investigate and evaluate their policyholder’s COVID-19 claims and thoroughly explain coverage determinations.

In addition to bad faith claims, Georgia courts have held that if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied. When a provision of an insurance contract is ambiguous, a well-known rule of construction is that it will be construed against the party preparing it and in favor of coverage .

Ambiguity in an insurance policy may also be defined as duplicity, indistinctness, an uncertainty of meaning or expression. Lee v. Mercury Ins. Co. , 343 Ga. App. 729, 729, 808 S.E.2d 116, 120 (2017). Insurance policies, even when ambiguous, are to be construed by the court, and no jury question is presented unless an ambiguity remains after application of the applicable rules of contract construction. Because insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. The insurer, in preparing the language of its policy, has the burden of using language that is clear and precise. The test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. Lee v. Mercury Ins. Co ., 343 Ga. App. 729, 729, 808 S.E.2d 116, 120 (2017).

All of this means that if you own a business and suffered losses due to COVID-19 and have insurance coverage—you should have a lawyer look at your insurance policy. You could have a case against your insurance carrier for denying your claim in bad faith.

The post COVID-19—INSURANCE COVERAGE FOR BUSINESS INTERRUPTION appeared first on Bennett Law and Mediation Services LLC .

Trump Administration Enters into EEOC Supreme Court Case– What Could this Mean for Employers?

Thu, 29 Aug 2019 16:00:00 GMT

By: Brittany E. Bennett, Esq.

The Trump administration last week filed an amicus brief in an Equal Employment Opportunity Commission “EEOC” case pending at the Supreme Court based on alleged sexual orientation discrimination.

The administration’s brief in the joint cases of Bostock v. Clayton County , Ga. and Altitude Express v. Zarda argues that Title VII — a landmark provision of the Civil Rights Act of 1964 banning many forms of discrimination in the workplace — does not cover discrimination based on sexual orientation.

The Equal Employment Opportunity Commission has concluded in the past that Title VII — which forbids many employment actions taken “because of” a person’s “sex” — does protect against discrimination based on sexual orientation.

Bostock and Altitude Express are two of three cases concerning gay and transgender rights that the Supreme Court will hear Oct. 8 and decide no later than June.

Federal lawyers argue that “Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation.” The brief draws a distinction between sex and sexual identity, arguing that sexual orientation—sexual identity—is not the same as “sex” and is, therefore, not protected under Title VII.

The brief goes on to assert that discriminating against same-sex couples is not discriminatory on the basis of sex — arguing that employers are only required to apply similar treatments to people in male-male relationships and female-female relationships. In other words, as long as male and female members of the gay community are treated equally, the brief appears to argue, it is not a violation of Title VII to treat them differently than people in heterosexual relationships.

“Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department argued, “but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”

The Justice Department’s amicus brief states that it is up to Congress to amend Title VII to cover anti-gay discrimination, should it choose to do so. “Congress has amended other statutes expressly to cover sexual-orientation discrimination, and it remains free to do the same with Title VII,” it says. “But until it does, this Court should enforce the statute as it is written.” Essentially the Justice Department is requesting that the Supreme Court interpret the law as written without extending the interpretation of language that is not in the black letter law.

Aside from the polarizing debate on whether sexual orientation should be protected under Title VII, the decision on these two court cases will likely have a significant impact on employers whether the Supreme Court rules in favor of the Plaintiffs or in support of the Justice Department.

If the Supreme Court rules that Title VII includes discrimination on the basis of sexual orientation, employers will likely see an increase in EEOC charges filed against them by employees who feel they have been discriminated against in the workplace based on sexual orientation. This decision would also result in an increase in human resource training to include sexual orientation descriptions and complaint procedures.

If the Supreme Court rules in favor of the Justice Department and that Title VII does not include discrimination on the basis of sexual orientation, employers will likely see a decrease in EEOC charges. This will be the result because the EEOC will no longer be able to accept these types of EEOC claims that allege discrimination and have been deemed unprotected or excluded under Title VII.

The post Trump Administration Enters into EEOC Supreme Court Case– What Could this Mean for Employers? appeared first on Bennett Law and Mediation Services LLC .

What is involved in the “Best Interests of the Child” standard?

Wed, 28 Aug 2019 15:48:00 GMT

By: Andrew T. Bennett, Esq.

Individuals facing a divorce with custody or any custody action generally, question the types of information a Judge will consider when making a temporary or final custody determination. O.C.G.A. § 19-9-3(3) contains the judicial test known as the best interests of the child test . A Superior Court Judge sitting in Georgia is in no way limited to the statutorily enumerated provisions outlined therein (note the bolded text below) yet, they do provide some insight into what types of information are considered. The statute specifically states:

(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent’s knowledge and familiarity of the child and the child’s needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;

(I) The mental and physical health of each parent, except to the extent as provided in Code Section 30-4-5 and paragraph (3) of subsection (a) of Code Section 19-9-3 and such factors as provided in Code Section 15-11-26;

(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;

(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.

O.C.G.A. § 19-9-3

It is important for individuals involved in actions of this type to understand that decisions made and actions taken by parents once an action is filed (or the Defendant is otherwise served with notice of an action) is relevant and will likely be used to either sides advantage in a custody proceeding. That is most certainly the case when parents: 1) Attempt to involve the child in the divorce 2) Attempt to alienate the child from the other parent; 3) Use the child as a weapon in the proceedings; 4) Neglect or otherwise do not care for the child in a way that is appropriate.

Some jurisdictions within Georgia have what is known as a Standing Order. That Order goes into effect once an action is filed for the Plaintiff and it applies to the Defendant once they are served with notice of that action. Often, and unfortunately, parents faced with the potential loss of custody wish to rally the child to their side in the face of a claim of adultery or other transgression during the marriage or relationship. This may appear to be a good idea good idea at the time, but often, those actions come back to haunt the parent later in the proceedings. Further, in Houston County, our Standing Order ( link ) covers a variety of issues that can be addressed by filing a Motion for Contempt.

Custody cases are frequently contentious and heavily litigated. The actions of the parents throughout the course of the proceedings matter. Take the time to seek advice before hitting send on that emotional response via text or email. Be wary of the fact that Georgia is a one-party state for the purposes of phone conversations. The goal is, as it should be, is to establish yourself and the environment you offer as what is in the child’s best interest.

The post What is involved in the “Best Interests of the Child” standard? appeared first on Bennett Law and Mediation Services LLC .

WHY SHOULD PARTIES MEDIATE?

Tue, 20 Aug 2019 17:26:00 GMT

Written By: Brittany E. Bennett, Esq.

Although litigation can be an effective way to recover monetary losses, fight for custody, or prevent further damages by another party, litigation can be time consuming and expensive. In addition, litigation puts your case in the hand of a judge or a jury. Mediation can offer a solution to legal disputes of every variety without the cost of litigation and while putting control of your case in your own hands.

Summary

Mediation can be an effective alternative to litigation because it allows parties to have more control over their case, save money, and communicate without restrictions.

The post WHY SHOULD PARTIES MEDIATE? appeared first on Bennett Law and Mediation Services LLC .

Electronic Discovery and Six Steps to Ensuring Your Data is Safe.

Tue, 06 Aug 2019 18:12:00 GMT

Written By: Andrew T. Bennett, Esq.

The world is changing, and the law is not immune. Where love letters and notes to a paramour identified through handwriting were previously a smoking gun; now, IP traces, hardware forensics, and cell phone records have now begun to take their place. Most attorneys in the field will tell you that it takes the law time to catch up with technology but, that is only part of the problem and what do you do until the law catches up? Technology does not stand still, and determinations are made every day that influence the admissibility of certain types of evidence in divorce cases. Be that as it may, a lot of evidence that exists in our digital world is currently untapped. The question is, where do you find the information, even if you do know where to look, can you get to this veritable treasure trove with the bevy of privacy laws that exist in the State of Georgia?

Changes to the Georgia Rules of Evidence have made these items, often procurable through subpoena, a formidable weapon as well as an equally formidable defense in a divorce proceeding where a spouse has been unfaithful. In many instances, this information can be procured and utilized without the costs associated with an Expert. Divorce tends to expose skeletons that exist in both parties’ closets, that is assuming the other party knows the general location of the closet itself.

Everyday there are new messaging applications for Android and Apple phones, social media sites, hook up sites, and other secure platforms that allow individuals to essentially avoid the discovery process altogether. End to End encryption and decentralized servers hosted by private individuals make getting at the information that does exist far more difficult. The perils and costs associated with living in a digital society are numerous and the information that can be gleaned from an individual’s online persona incredibly valuable in a divorce. However, engaging in such discovery can be an exceptionally costly endeavor, especially if your lawyer(s) are not familiar with the technology.

This post seeks to inform you as a user of various programs or sites that your personal information may not be as safe as you believe it to be, especially in a divorce proceeding. There are a few initial points that need to be made that may sound common sense but are often overlooked by parties.

The facts of each piece of evidence, much like each case, are unique and one minor detail can influence whether evidence will be admissible. It helps if your attorney is well versed in the subject matter at issue in your case, beyond just a general understanding as this will guide them to information that may not otherwise be obtained.

The post Electronic Discovery and Six Steps to Ensuring Your Data is Safe. appeared first on Bennett Law and Mediation Services LLC .

When Should You Seek Legal Advice?

Thu, 25 Jul 2019 17:55:00 GMT

By: Ollena Bennett, J.D.

Do you have a legal issue that needs to be resolved? Have you attempted to do research on your own only to run into a legal explanation that requires you to do even more research just to understand what the first explanation means? Are you unsure if you have a legal issue that requires assistance from an attorney? If any of these questions are familiar to you, it is best that you seek advice from an attorney to prevent an even bigger problem.

Although hiring an attorney is not a requirement to resolve all legal matters, moving forward without a licensed attorney puts you at risk for mishandling your case that could ultimately lead to an undesirable outcome for you, including a complete dismissal of your case. Licensed attorneys are required to complete a number of continuing legal education courses that allows them to stay up-to-date on the law as it pertains to their areas of practice. Additionally, attorneys have access to legal resources that are not readily accessible to non-lawyers, which helps assist with analyzing and resolving legal matters. So, you will benefit from seeking the assistance of a licensed and skilled attorney who can properly analyze your issue, apply the most recent law, and help you reach the solution that best suits you.

Here are just a few situations that may require you to seek legal advice:

It is very important that you act fast when you are faced with a legal issue. Most legal issues have a statute of limitation , meaning you have a limited amount of time to file your claim or you lose the opportunity to do so. So, you do not want to wait too long before seeking legal advice. If you are conflicted on whether you need legal advice or not, it is best to go ahead and do so to be sure that your rights and interests are protected.

If an attorney is unable to assist you, they will likely be able to point you in the right direction so that you may get the assistance that you need to properly and effectively resolve your issue. In essence, the sooner you contact an attorney, the better!

The post When Should You Seek Legal Advice? appeared first on Bennett Law and Mediation Services LLC .

The Georgia Assembly Forms A Business Court— What Does This Mean for Business Litigants?

Mon, 22 Jul 2019 17:56:00 GMT

By: Brittany E. Bennett, Esq.

Amendment 2 was designed to allow the creation of a statewide business court with a statewide jurisdiction for use under certain circumstances. Under the amendment, the court’s judges are to be appointed by the governor and approved by a majority vote of the Senate and House judiciary committees. Judges would serve a term of five years. Judges on the court would be eligible to be reappointed for any number of terms under the measure.

Georgia Governor Nathan Deal (R) said, “A constitutional created business court would provide an efficient and dependable forum for litigants in every corner of our state. ¹

The Law Office of Ichter Davis, a law firm tracking this legislative action, lists the key points of the Court Reform Council’s recommendations. They are as follows: ²

This formation of Business Court means business litigants will have the opportunity to remove their cases to a forum where judges are familiar with complex corporate/business issues and will become more familiar with the types of cases that need special attention and possibly a business background to properly rule on the law. This will streamline the types of cases a judge will preside over and likely result in more fair outcomes for litigants.

In the past judges have presided over business cases, but while also presiding over divorces, murders, and property disputes. Business Court will allow judges to become more familiar with the type of disputes that arise between business partners, non-compete disagreements, and other complex business cases. A more knowledgeable and experienced judge in one area of the law will allow the parties to more effectively communicate the actual legal issues to be resolved.

The Business Court has received state-wide support and will likely result in more efficient litigation with shorter timelines for all parties involved.

The post The Georgia Assembly Forms A Business Court— What Does This Mean for Business Litigants? appeared first on Bennett Law and Mediation Services LLC .

Welcome to our new website!

Wed, 02 Jan 2019 05:41:00 GMT

Welcome to our new website! This site has been professionally designed to be responsive and mobile friendly, so it looks great and is accessible no matter what type or size of device you are using.

Our new website also has an integrated Client Portal, meaning you are able access your case documents, correspondence and calendars directly from our website!

If you have any questions, don’t hesitate to contact us today.

The post Welcome to our new website! appeared first on Bennett Law and Mediation Services LLC .

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