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Marketing

2008-03-18T22:18:00.000-07:00

Web-Programming, An Alternative To Unproductive Advertising

The Campaign Killers: 12 People You Need To Fire

2008-03-18T22:09:00.000-07:00

Sometimes it seems like the hardest thing to do in business is to get things done: so little time, so many obstacles. And when it comes to marketing it gets even worse, after all there are all those administrative details that need to be dealt with, emails, inquiries, suppliers, and on and on. Finding the time to devote to creating a sustained, focused marketing effort seems like it's near impossible. But the biggest obstacles of all are some of your trusted colleagues and advisors; you know the ones I'm talking about, the ones that are a royal pain-in-the-ass. So lets just call them on the proverbial carpet and fire their butts; but first let's check the files and find out who they are.

File One: Mr. Inertia

Everybody knows this guy. He's the one who hasn't had a new idea in five years. This is the fellow who thinks everything is just fine the way it is, so let's not rock-the-boat, everything is just hunky-dory, thank you very much.

You have to treat your business like it's a shark: no standing still, if you don't keep moving forward, you won't survive. It's a competitive world out there, and in the Web-centric marketing environment, you're not only competing with the shop down the street, you're competing with the whole world, so standing still is not an option. Mr. Inertia, you're fired!

File Two: Mr. Know-It-All

I love this guy, he knows everything, he's done everything, and if you ask him he'll tell you he invented it. It doesn't matter what it is or even if it relates to your business, he's done it all and seen it all, or so he says. This is Mr. Know-It-All; he stopped learning, stopped improving, and stopped listening years ago.

Despite all his self-proclaimed knowledge and insight, this guy hasn't contributed anything meaningful to the marketing effort since a Blackberry was something you ate. Mr. Know-It-All, you're fired!

File Three: Mr. My-Business-Is-Unique

We all like to feel that we have created something unique, something different, something that no one else does. The fact is business is business; it's very dangerous to think that your company is so unusual that it's irreplaceable, so different that you don't need to market, so special that branding isn't required, and so singular that positioning is a waste of time.

Don't be fooled, finding your 'mark of differentiation' is just as much an exercise in marketing as it is an exercise in product development. Mr. My-Business-Is-Unique, you're fired!

File Four: Mr. We-Always-Do-It-This-Way

At one point in my career I ran a company that manufactured photo albums, we had a large competitor who always undercut our price no matter what we sold our product for. In an effort to find out how they were gaining this advantage, we cut opened one of their new albums and found that they were using cheap corrugated cardboard as a stiffener instead of the more expensive traditional 80-point board everybody in the industry used.

Our sales manager made an appointment with a major photo chain known for only buying quality. He made a dramatic presentation by cutting open our competition's product illustrating the superior nature of our product and demonstrating how they were being duped into buying the inferior junk our competitor was selling them. The buyer, who was also one of the owners looked at the products on his desk, uttered an expletive-deleted and laughed, "Yea," he said, "but they are cheaper."

Just because things were done the same way forever, doesn't mean that you can keep doing it that way. Keep innovating, experimenting, challenging the status quo. Mr. We-Always-Do-It-This Way, you're fired.

File Five: Mr. Everybody-Is-Stupid (But Me)

This clown's a real buzz-kill. In brainstorming sessions this is the guy who shoots down every idea that comes up without offering any alternatives. If some idea is actually adopted he immediately begins to try and change it. You'll usually find him with a coffee in one hand and a donut in the other, standing over someone who is actually trying to work, telling them to move it a pixel to the right or add a little blue or saying stuff like, "I think it needs a pony, ya add a pony." This jerk is like a dog going from hydrant to fencepost depositing his mark without any purpose or validity other than leaving his scent. Not only is this guy unproductive, he makes everybody around him less productive. Mr. Everybody-Is-Stupid (But Me), your fired!

File Six: Mr. I-Know-All-The-Customers-Worth-Knowing

Hard to believe but this guy does exist. I once called on a potential client who told me he didn't need a website because he knew all the customers worth knowing, all six of them. He was a manufacturer and he did sell to the six largest retail buyers of his merchandise but one thing I've learned over the years, you never have enough customers, and as soon as you think you've got them all sewed up, watch out, because every competitor is out to take them away from you. And as good as you are or as good as you think you are clients will eventually be pursued by a competitor offering something better or cheaper. Never stop prospecting, never stop looking for new business, and never be satisfied. Mr. I-Know-All-The-Customers-Worth-Knowing, you're fired.

File Seven: Mr. I-Know-All-The-Benefits

We all could be guilty of this marketing sin if we're not careful. Thinking you know everything that people do with your product or service is a risky mindset and speaks to a lack of vision. This guy goes to the appropriate conventions, listens to all his industry's experts and reads only stuff about his own established market. If it's about something else, he's just not interested, and he doesn't see or understand the relevance.

The fact is all your customers are people who have lives outside of business; they all have problems, insecurities, hobbies, and interests that have nothing to do with business. And they may have a totally different point-of-view as to what you offer and how they can use it. You must pay attention to what's going on in the world and how people think and react to events and situations. The market is an emotional and psychological minefield and you must pay attention to outside forces because if you don't you're limiting your potential. Mr. I-Know-All-The-Benefits, I'm sorry but you're fired!

File Eight: Mr. Everything-Is-Bulls@%t

This employee is not just useless, he's downright destructive; no matter what marketing plan you're considering implementing this guy thinks it's bull. He doesn't believe in branding, positioning, or any form of sophisticated marketing. He doesn't believe that psychology or emotion plays any part in the sales process and is probably the master of wining and dining clients resulting in the biggest expense account in the company but not much else. His clients were customers before he arrived and will probably be there after he leaves unless he pisses them off. This guy still doesn't see the benefit of a website and keeps repeating, 'it's just an electronic brochure.' His answer to a dip in sales is always the same, to cut prices. Mr. Everything-Is-Bulls@%t, you're fired!

File Nine: Mr. I'll-Get-Around-To-It

Nobody really knows what this guy does. He is pleasant, tells good jokes, and he most likely is the guy who brings coffee and cookies to the office for everybody once a week. His desk is always piled high with papers, files, and binders, and when you ask him for something he invariably starts to rummage through this heap of junk ultimately telling you that he'll bring it along as soon as he finds it, he just been 'sooo' busy. It takes him three days to answer an email, a week to return a phone call, and at least two weeks to respond to a request for quotation. This guy just has to go. Mr. I'll-Get-Around-To-It, you're fired!

File Ten: Mr. Automatic Pilot

This chap believes that the great benefit of having a Web-based business is that he doesn't have to work. This guy spent a considerable sum of money having a bunch of programmers, probably from one of those offshore sweatshops, develop a website system that automatically answers emails, fills orders, and processes inquiries. The only problem is that it doesn't matter if a customer has a question or complaint they all get the same email-response that says they can order even more stuff they can't figure out how to use. Mr. Automatic Pilot, you're fired!

File Eleven Mr. I-Don't-Need-No-Stinking-Creativity

This guy doesn't believe in any kind of creativity, he thinks everything is based on rational dollar-and-cents decision-making. His website lists as many features and benefits in 48 point red Times Roman as he can think of; he highlights each point in yellow and underlines them in green with a big purple checkmark beside each one. He adds several royalty-free photographs of fake customers with quotations he made-up while sitting on the john. And just to enhance his special offer page, he tacks-on a bunch of extra bonus gifts like a useless free e-book. This guy's idea of marketing got stuck in the fifties; so Mr. I-Don't-Need-No-Stinking-Creativity, you're fired.

File Twelve: Mr. Get-Me-the-Coast

You run across these types every now and again. I once went to a meeting with this guy who was the Vice President of Whatever Mega Corporation. At first glance, he was very impressive, handsome and tall with a big office and lots of hair, and a voice made for AM radio. He talked faster than anyone I ever met. As we made our presentation, he slammed his hand down on the intercom and bellowed to his secretary to "Get me Johnny on the coast!" Before I knew what hit me, he's talking to his guy in California who's on his way to his dry cleaner to pick up his laundry. He asked him a couple of questions as fast as I ever heard without much reference to anything we were discussing and slammed down the phone with a thud. I had no idea what we were talking about or if this guy heard a single word we said. This guy was the master of taking meetings and impressing people, but with what I am still not sure. Mr. Get-Me-the-Coast, your fired!

A Final Thought

The single most important thing about managing good staff or contractors is that they will only be as good as you let them. So now that you've laid-waste to a staff of deadweight, what's next? You need to hire or outsource the right people; people who are creative, innovative, and talented; people who are interested in getting things done, whether it's filing or creating your next marketing campaign.

by: Jerry Bader

Web-Programming, An Alternative To Unproductive Advertising

2008-03-18T22:07:00.000-07:00

As of this writing the television writers in Hollywood are on strike. The significance of this strike will be felt far beyond the current television season and impact what and where people will get their entertainment in the future. People are now not only embracing the Web for their information needs but are also increasingly turning to it for their entertainment needs as well.

The Web will soon be 'the place' that fills the programming vacuum that network broadcasters have been unwilling and/or unable to fulfill. People were prepared to tolerate constant reruns, dreadful programming, and incessant repetitive ads as long as there was no alternative, but that is no loner the case. Viewers now have an option to bad television and it's the Web, but why should you care and more importantly how can you take advantage of the opportunity it creates?

Why Should You Care?

Information and entertainment have melded in recent years creating what has been dubbed 'infotainment.' It can be argued that the evening news has become more entertainment than hard news and let's not even get into venues like the History Channel where fact and fiction seem to be presented in equal and indistinguishable doses. So what does all this have to do with you and how you deliver your marketing message?

The time is coming, if it is not here already, that companies will not be able to get away with merely uploading online brochures and catalogues, or even extensive screeds singing the praises of every feature and benefit associated with their offering. People demand more, they insist your website be interesting, informative, and entertaining; and it is this aspect of entertainment that potentially makes your marketing presentation memorable.

What Is Web-Programming?

Web-programming takes the creative Web-video campaign concept and pushes it one step further up the evolutionary marketing scale by integrating the message into a programming environment.

This concept is not an entirely new idea, in fact one of the most noted television commercial campaigns of 1991 was the Taster's Choice soap opera-like series of spots that wove the marketing message into a courtship relationship between two apartment neighbors. In an environment where information and entertainment blur, it seems like an ideal solution to capturing an audience's attention and interest, and creating a viral buzz that few products or services can generate by presenting a bulleted list of features.

Build Brand Relationships

James E. Aisner, in his article 'More Than A Name: The Role of Brands in People's Lives' (HBS Working Knowledge For Business Leaders) references the research of Harvard Business School Professor, Susan M. Fournier, "Fournier has created a typology of fifteen different types of relationships between consumers and their brands." These brand relationships include the secret affair, the best friend, kinship, the fling, courtship, the marriage-of-convenience, casual friendship, childhood friendship, mother and child, and master-slave.

What kind of relationship does your brand have with your audience? Is it a short-term fling that starts with a lot of heat and passion and then quickly cools-off, or is it a long-term marriage that will last a lifetime? Finding, and promoting the most appropriate and beneficial brand relationship is the marketing goal of your Web-programming marketing initiative.

Part of the problem many smaller organizations have in developing successful marketing campaigns is that they think in terms of products and services rather than brands; features and benefits rather than relationships. Almost every product or service on the market can be replaced with a competitive substitute, but brands are much harder to replace; brands create a competitive barrier through the development of relationships based on prototypical psychological and emotional factors, the same kinds of factors that govern your personal relationships.

Generate Trust, Confidence, Loyalty and Passion

In his article, "A Brand New You," (Psychology Today), W. Eric Martin tells us that brands came into vogue in the post Civil War era as a response to an increasing mobile population that began to lose touch with local merchants and shopkeepers. Brands became a substitute for the personal relationships that people had with their suppliers. This seemingly minor historic fact helps us understand the significance of brands in today's Web-centric marketplace.

Today's consumer-client, whether retail or business-to-business is more remote, more isolated from the supplier than ever before. The Web allows us to market our products and services anywhere in the world, but in order to actually make a sale, we must establish a relationship that generates a sufficient level of trust, confidence, loyalty and passion. Sneer if you will at the passion and loyalty most Macintosh users have for their computers, but what other computer company can claim such brand allegiance?

Relationships Are Based On Psychological Needs

At the heart of any relationship is the emotional or psychological need that that relationship fulfills. If you haven't found that connection in what you do then you are at a definite competitive disadvantage; and you are competing on the most fickle and transient of factors: price and features. In business, there will always be someone who is prepared to sell a substitute product or service for less, or with more bells and whistles. So why would you ever want to compete on that basis?

It really doesn't matter what business you're in, there is always some emotional or psychological component to what you do. The iPod is the market leader in its category despite numerous competitors; it holds that position not because it's the cheapest, which it definitely isn't, or the product with the most features, which it probably is, but because it's an iPod - not a tool but a status symbol, a badge of intelligence and taste, a brand relationship akin to being a member of the coolest club in town.

Web-programming Development

In short, Web-programming is a marketing campaign based on a series of episodic Web-videos tied together by plotline and character development; an ongoing initiative that weaves into its storyline the marketing pitch. The integration of the marketing pitch can be done subtly using product placement techniques or overtly making the pitch part of the story arc.

This marketing technique is not for everyone; it is certainly not for the unsophisticated or for the marketer who is afraid to experiment or to take a chance.

If you are looking for an instant direct financial return like a big sale sign in your storefront window then you are not looking for marketing, you're looking for promotions. Marketing is all about building a brand relationship with your audience. The more time and effort you invest in marketing, the more solid your brand relationship will be, and the more appropriate the clients you'll attract and keep.

Web-programming - Where To Begin

There are four minimal requirements needed to create an episodic Web-video marketing campaign: need identification, point-of-view, attitude, and transformation. These are the same elements defined by Syd Field, the well-respected author, producer, screenwriter, and lecturer, in his book, "The Screenwriter's Workbook;" and they are the same elements that all top-notch salesmen use to build client-relationships - ask yourself - have you ever met a top salesman who wasn't a great storyteller?

Need Identification

Like all episodic series yours will need a hero or protagonist; this is the person your audience will identify with and who will act as their surrogate.

Your protagonist must be searching for something that relates to the emotional or psychological need fulfilled by your product or service. Anyone who has ever had to deal with an insurance company certainly understands the Geico caveman's need for respect. His frustration is the perfect foil for the company's marketing message, 'it's so easy a caveman can do it.' We are all cavemen at heart, seeking respect from big business bureaucracies that make us jump through hoops just to place an order.

Point-of-View

You must present your material from a particular point-of-view. Is your presentation told from the protagonist's point-of-view or is it told from an objective observer's, perhaps through voice-over. It can even be counter-intuitive and be told from an antagonist's point-of-view.

If your scenario is more procedural based, you can even present it from different points-of-view each delivering alternative perspectives, each highlighting different aspects of the emotional fulfillment.

Attitude

Attitude is especially important for Web-based presentations, but it is also one of the scariest aspects of marketing for the faint-of-heart. All too often businesses shy away from bold statements, or extreme displays for fear of alienating some segment of the audience, but it's attitude that grabs people's attention, makes the presentation memorable, and qualifies leads and inquiries.

Transformation

One of the hardest things a commercial-based episodic series has to deal with is story arc. What change takes place over the life of the series and is the campaign concept strong enough to sustain itself? What transformation takes place? Does your protagonist find fulfillment or does he fail to find the emotional or psychological answer he's looking for. If you're not sure what deep-seated need your product or service satisfies, find the conflict.

All stories are based on conflict, frustration, and desire, whether it's the search for 'whiter whites' or better insurance. If your concept is without conflict, you are not illustrating the need for your solution.

You can show successful transformation based on the adoption of your solution or you can show failure whichever works best for what you're marketing and the audience you are trying to attract.

Conclusion

The Web has from its infancy provided business with enormous marketing opportunities. As the Web's capabilities increase over time, these opportunities increase as well. As much as other media tries to adapt to the competitive pressures created by the Web, old methods and attitudes die-hard; the writer's strike being just one example of a group trying to maintain dominance in an environment they cannot control. The opportunities are there to make your marketing mark if you have the courage to act.

by: Jerry Bader

Legal

2008-03-18T21:47:00.000-07:00

Sex Crimes and Their Defense in Minnesota

White Collar Crime in Minnesota

Rhode Island Divorce From Soup To Nuts by a RI Attorney

Rhode Island Divorce From Soup To Nuts by a RI Attorneyl

2008-03-18T21:41:00.000-07:00

This article explains the Rhode Island divorce process from pre- filing considerations through trial including Rhode Island divorce law strategy.

Finding a Rhode Island Divorce attorney/ lawyer

The first step in obtaining a divorce from your spouse is finding a Rhode Island attorney who you are comfortable with. Many attorneys give free initial consultations while others charge for the first consult. I have always taken the position that the initial consultations will be free.

It is important to ask the proposed lawyer about his or her experience and qualifications to handle your case. It is also crucial to determine the hourly charge and the amount of any initial fee or retainer. Article By David Slepkow (401-437-1100)

Cost of Rhode Island Divorce

It is often impossible to determine how much a divorce will cost from beginning to end. However, it is a good idea to get an educated estimation of the eventual fee. This will never usually be more than a estimation because the cost of the divorce usually depends on several factors. Those factors could include how quickly a settlement is reached, the number of motions that each party will file, the amount / nature and complexity of assets to be equitably divided, the amount of documents involved in the case, the animosity of the parties to each other, the waiting time while you are in court and many other potential issues.

The Golden Rule is that the longer it takes to reach a settlement the more the divorce will cost because the lawyers will spend a lot more time working on the case. If there is no settlement and the case goes to trial or the day of trial, the divorce could get very expensive. If everything is agreed or nearly agreed to and the parties are relatively amicable then the divorce should take a lot less time and therefore be much less expensive.

Uncontested divorces in Rhode Island should be much less expensive then contested divorces. However, there are many different types of uncontested divorces. There are uncontested divorces with no real assets and uncontested divorces with assets to divide. If the divorce is uncontested and there are assets then the lawyer may need to prepare a property settlement agreement, deeds, qualified domestic relation orders etc. Therefore, the cost of an uncontested divorce could vary depending on the circumstances. For example if a lawyer has to draft a property settlement agreement , the lawyer will devote more time to the case.

I believe that a fair price for an uncontested divorce from soup to nuts in Rhode Island with no assets and no property settlement agreement is about $800 flat fee plus costs. The typical costs are a filing fee of $100 and service of process fees of approximately $40.

Intake process and drafting Rhode Island divorce Documents

After you have retained the lawyer there is typically an intake process in which the lawyer gets the basic information so that he or she can properly represent you. The lawyer typically drafts the divorce documents and you sign them in front of him/her or another notary. These documents include a divorce complaint, DR(6) financial statement, statement of children of the marriage, counseling statement, report of divorce, summons and automatic divorce order etc. It is important that the DR6 form otherwise known as financial statement is accurately filled out.

There are many important decisions that may need to be made before you file for divorce in Rhode Island. Strategy is crucial in many instances!

Should I file a motion for temporary Orders in RI?

In some cases, the attorney will file a motion for temporary orders when the divorce complaint is filed. A motion for temporary orders should be filed if the husband or wife is in need of temporary resolution of issues while the case is proceeding. These temporary motions typically request temporary child support, payment / contribution to daycare , contribution to medical bills, alimony, payment of household expenses, payment of the mortgage, taxes and insurance.

A motion for temporary orders can also address child visitation and child custody issues related to the minor children as well as issues concerning exclusive use and possession of the marital home. The temporary motion can also request temporary orders concerning: restraining orders both financial and personal and a myriad of other temporary issues. The motion for temporary orders will typically be heard by the Court within 30-40 days of the filing of the complaint for divorce.

If no temporary orders enter then there is no legal obligation of a spouse to pay anything while the case is proceeding until there is a decision by the judge or the parties sign a property settlement Agreement. If there are no temporary orders, the financial issues, visitation and custody issues will be up to the parties to figure out while the case is proceeding without the benefit of a court order.

Should I file an emergency motion in A Rhode island divorce?

If there is an emergency in which irreparable harm will be caused if the party has to wait for a court date, then an emergency motion should be filed with the complaint. An emergency motion must either be verified under oath or be accompanied by an affidavit. The attorney will bring the emergency motion to the proper judge and ask for an ex parte order. Ex parte means that the other side is not present to object. The Rhode Island judge will only consider the affidavit and documentation before him. If the judge signs the emergency order than it will be served on your spouse by the constable along with the divorce complaint.

These types of emergency motion typically deal with issues concerning abuse of a child, dissipation or unreasonable spending of marital assets, domestic violence, child abuse or a plethora of other potential emergencies. If there is domestic violence involved in which you are in imminent fear of physical harm or have been abused or threatened with abuse please discuss with the attorney the benefits of filing a separate case called a Complaint Protection from Abuse! Please note that the Complaint Protection from Abuse is very different from an Emergency motion.

The timing of whether the divorce or Complaint Protection from Abuse case is filed first or whether they are filed simultaneously could be crucial to your case.

If an emergency motion is granted and emergency orders enter then a hearing will be set approximately 20 days to determine if the order should stay in effect while the divorce case is proceeding. At that hearing your spouse has an opportunity to contest the motion and tell his or her side of the story. At that hearing, the Court will determine whether the emergency relief will stay in effect while the divorce case proceeds.

Nominal or Contested Track?

When a Rhode Island divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in their initial divorce filing designates the track they desire. The vast majority of divorces filed in Rhode Island are placed on the nominal divorce track. A designation on the "nominal track" does not necessarily mean that the divorce will be uncontested. It usually means that the party who filed believes that the case can be settled relatively quickly or wants the divorce to be settled relatively quickly.

Answer to Divorce Complaint

The defendant must file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. If the Defendant does not answer the case he is subject to being defaulted. A default is when the defendant does not answer the case on a timely basis and the Plaintiff will usually get all of the relief that he or she requests.

Nominal divorce

If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing for divorce. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the divorce is not settled by the nominal divorce date then the case will automatically be changed to the contested track

If the matter is not settled by the nominal court date and both parties want to try to resolve the remaining issues in court and believe it is possible to resolve the remaining issues, then the parties can attempt to settle the case in the hallway or conference rooms in the courthouse and put the case through as a nominal uncontested divorce on that date.

If the defendant has not filed an answer, it is dangerous for the defendant to not appear in court at the nominal court date based on representations made by the other party .

I have seen numerous occasions when a souse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the defendant is defaulted and the other spouse gets 100 percent of the assets of the marriage.

On the date of the nominal divorce hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve the remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the judge that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of the next pretrial conference date.

If the parties ask the clerk to hold the matter they will usually get a substantial amount of time to negotiate the remaining issues in the hallway. Upon settling all the remaining family law issues which may include issues of property division, child support, child custody, child visitation, alimony, contempt issues, restraining order issues etc the clerk should be informed that the case is now ready nominal. At that point the clerk and judge will put you back on the list of cases ready for the nominal hearing

Pursuant to Rhode Island General Law a divorce cannot be resolved without a nominal divorce hearing. At the nominal divorce hearing certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify. If you don't have the required witness your case could be delayed or even dismissed and you may waste your time attending court.

For a detailed explanation of whether or not you must have witnesses to testify on your behalf and the residency requirement for filing a Rhode island Divorce please go to my Ezine article ""Rhode Island Divorce Law FAQS How Long Until It's Over? Residency Requirements & No Fault Divorce." EzineArticles 14 March 2007. 15 July 2007 .

Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the Rhode Island divorce process without Rhode Island divorce and family law lawyer.

If the case was originally placed on the contested track calendar, then the clerk did not schedule any automatic nominal court date. If the case later becomes settled then the parties can ask the clerk for permission to come on a particular date for the nominal divorce hearing. Otherwise the parties can wait for a motion date or the pretrial date to do the nominal divorce hearing.

Discovery in RI Divorce. How do I get information about my Spouse?

After the divorce is filed the Plaintiff and or the defendant can at their option proceed with "discovery". Discovery in general is the process by which the parties get information or admissions from the other party. Discovery is most important and perhaps crucial in a case when a spouse is unaware of the nature and extent of the marital property and estate. Discovery can be also useful to obtain documents or other tangible evidence that is needed for settlement or trial.

The Rhode Island discovery process also can be used to obtain admissions of certain allegations. While it is unethical and perhaps immoral for a person to lie about cheating or an affair to their spouse it is not illegal or criminal for a person to lie to their spouse about an affair. If a person lies under oath either in testimony or in a written document under oath they may be committing the crime of perjury.

Also if a judge believes a party is lying under oath there could be stiff sanctions and penalties including a referral to the attorney general for prosecution. However, in reality, most incidents of lying in family court are not prosecuted as crimes. Many attorneys use request for admissions or interrogatories to force the other party to state under oath whether or not they had an affair and the extent and details concerning the extra-marital affair / cheating/ infidelity.

There are several discover mechanisms that can be used: interrogatories, request for production of documents, request for admissions, depositions, subpoena duces tecum, subpoenas etc.

Interrogatories-what are they? are they worth the time and effort?

Interrogatories are written questions that a party may sends to the other party. Each side is allowed up to 32 interrogatories. Interrogatories can be helpful in obtaining lists of assets, allegations that will be made by your spouse or other useful information. This information requested can run the gamut from child support to marital infidelity and may include: child custody issues, child visitation, drug and alcohol abuse, gambling addiction, alimony, health insurance issues, real estate issues, estate planning and trust issues, personal injury claims, domestic violence / restraining orders, criminal history, valuation of assets, mental health history and any Rhode Island family law issues.

Interrogatories must be answered in the time frame set by the Rhode island domestic Court Rules. Interrogatories are usually partially written and also reviewed by your husband or wifes' lawyer. Therefore, while a valuable tool there are some limitations to the usefulness of the information received.

Request for Admissions

Requests for admissions when used appropriately can be a powerful discovery tool in a RI divorce. Request for admissions are written requests usually prepared by the attorney, which the other party must reply within a short period of time. If the party does not reply to the request for admissions within the applicable time the allegation will be deemed admitted.

Should I take the Deposition of my spouse in a RI Divorce?

A Deposition is when a party usually through their lawyer can ask their spouse questions under oath in front of a court reporter. In Rhode Island family Court, a party must obtain leave of court / permission from the court in order to take a deposition. Motions to take deposition of the other party are almost always granted by Family Court Judges. Depositions are powerful yet expensive discovery tools. A deposition usually is effective because the attorney can ask the other party questions face to face. The attorney can ask follow up questions and can ask questions in different ways. This is particularly effective if a party is being evasive or less than forthcoming. There is very little the other attorney can do to help their clients answer the questions during a deposition.

Depositions are very expensive because the Court reporters transcript could cost several hundred dollars. Also the attorney doing the deposition will need perhaps several hours to prepare for the deposition. Also both attorneys will need to attend the deposition, which could take up to several hours. Depositions are usually better ways to get information about sensitive topics then interrogatories.

Request for Production of Documents

Request for production of documents is a list of requested documents that must be responded to within the applicable time period. I find this discovery tool to be particularly successful in obtaining documents and records concerning: pension plan documents, 401k records, retirement accounts, health insurance records, stock accounts, estate planning documents, bank statements, real estate documents etc.

Subpoena

A Subpoena Duces Tecum can be very effective in obtaining documents from third parties such as bank records, stock records, employment and wage records and other documents.

The third part of this three part series which is coming soon addresses preparing for a Divorce trial to the actual divorce trial to the entry of Final Judgment

Trial

If a case cannot be settled, the Court will send the parties a notice of a pretrial conference. At the pretrial conference the Judge may make some effort to help the parties settle the divorce. If the case is not settled then the judge will schedule the matter for a trial.

by: David Slepkow

White Collar Crime in Minnesota

2008-03-18T21:35:00.000-07:00

White Collar Crime is broad in its definition. It does not exist as a criminal category in any statute books. Instead, it is a generic category used to describe crimes that are often committed by professionals in positions of authority or trust. White collar crime encompasses business crimes, computer crimes (including hacking or cracking: the crime of breaking into a computer network), internet crimes, government crimes, graft, corruption and financial frauds. White collar crimes are usually felonies, the most serious category of criminal offenses. Felonies are crimes that may result in incarceration of more than one year and which may be state or federal offenses. Generally, such felonies carry with them severe penalties including lengthy incarcerations and fines.

Unlike many other criminal offenses, white collar crime generally does not involve the use of weapons or physical force. Instead, it is based on deceit, guile or extreme negligence and usually impacts government operations, business operations, industries and individuals.

Who are white collar criminals? In most cases, large and small business owners are at greatest risk. Business by its nature often involves taking financial risks. This sometimes results in business owners cutting corners in times of crisis in order to survive and ultimately succeed. Faced new and ever changing legislation and governmental regulations, it is far to easy for even the an honest business person to run afoul of criminal laws. Each day, newspapers and national magazines are filled with reports of criminal investigations related to business activities. The current Enron fiasco may be the newest and most graphic example of business running afoul of the law. And even before Enron there were junk bond brokers.

To emphasize the seriousness of white collar offenses, the FBI has identified several areas it considers the most egregious and problematic examples of white collar crimes.

Antitrust Violations. Antitrust violations involve conspiracies among competitors that fix prices, rig bids, or allocate markets or customers. Persons found in violation of certain aspects of the Sherman Antitrust Act -- the primary antitrust law -- can be fined or jailed. The antitrust laws affect most industries and apply to every phase of business including manufacturing, transportation, service, distribution, and marketing.

Bankruptcy Fraud. Bankruptcy filings rose to a record high of approximately 1.4 million filings in 1997. Some sources estimate that at least 10 percent of bankruptcy filings involve fraud. Bankruptcy fraud includes schemes such as the concealment of assets, petition mills, multiple filings, false statements, trustee fraud, attorney fraud, forged filings, embezzlement, credit card fraud, and bust-outs.

Computer Crime. The definition of computer crime is constantly evolving as technology advances. However, computer crimes may include:

Hacking (also known as Cracking): Knowingly accessing a computer without authorization or exceeding authorization of a government computer or intentionally accessing a computer without authorization or exceeding authorization to acquire financial information of a bank, business or consumer.

Theft of Technology. Knowingly accessing a computer without the intent to access or acquire technological information or secrets

Fraud. Knowingly, and with intent to defraud, accessing a federal interest computer without authorization or exceeding authorization to further a fraud or obtain anything of value.

Online Child Pornography. Knowingly accessing, possessing or making available pornographic material involving minors.

Computer crime is also specifically addressed as part of Minnesota's and Wisconsin's criminal statutes including:

MSA 609.89 Computer Theft. Computer theft is defined as intentionally and without authorization or claim of right accessing or causing to be accessed any computer, computer system, computer network or any part thereof for the purpose of obtaining services or property; or intentionally and without claim of right, and with intent to deprive the owner of use or possession, taking, transferring, concealing or retaining possession of any computer, computer system, or any computer software or data contained in a computer, computer system, or computer network. The penalties include:

Imprisonment for not more than ten years or to payment of a fine of not more than $50,000, or both, if the loss to the owner, or the owner's agent, or lessee is in excess of $2,500; or

Imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the loss to the owner, or the owner's agent, or lessee is more than $500 but not more than $2,500; or

In all other cases to imprisonment for not more than 90 days or to payment of a fine of not more than $700, or both.

MSA 609.88 Computer damage. Computer damage includes transmitting computer viruses and is defined as intentionally and without authorization damaging or destroying any computer, computer system, computer network, computer software; or intentionally and without authorization or with intent to injure or defraud altering any computer, computer system, computer network, computer software, or any other property; or distributing a destructive computer program, without authorization and with intent to damage or destroy any computer, computer system, computer network, computer software. The penalties include:

Imprisonment for not more than ten years or to payment of a fine of not more than $50,000, or both, if the damage, destruction or alteration results in a loss in excess of $2,500, to the owner, or the owner's agent, or lessee;

Imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if the damage, destruction or alteration results in a loss of more than $500, but not more than $2,500 to the owner, or the owner's agent or lessee; or

In all other cases to imprisonment for not more than 90 days or to payment of a fine of not more than $700, or both.

MSA 609.891 Unauthorized Computer Access. unauthorized computer access may be a misdemeanor, gross misdemeanor or a felony depending on the risk that the access poses to the public A person is guilty of unauthorized computer access if the person intentionally and without authority attempts to or does penetrate a computer security system. It is a felony if the access creates a grave risk of causing death which may result in imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both. A person who is convicted of a second or subsequent gross misdemeanor violation is also guilty of a felony. It is a gross misdemeanor if the access creates a risk to public health and safety and may result in imprisonment for a term of not more than one year or to payment of a fine of not more than $3,000, or both.

Environmental crimes. Crimes regarding the environment include unauthorized disposal of hazardous waste. The FBI and the Environmental Protection Agency Criminal Investigative Division have formed a local task force consisting of various local, state, and federal agencies, to address environmental crimes in the state of Minnesota.

Financial Institution Fraud. The federal government estimates that more than $3 billion in losses occur annually due to fraud committed against federally insured financial institutions. Fraud may include loan fraud including drafting and passing fraudulent negotiable instruments such as checks, money orders, currency, and debit and credit cards. Bank embezzlement may also fall under this category. Embezzlement means taking another's person or party's money and/or property through abuse of a job or position of trust.

Government Fraud. The General Accounting Office estimates that as much as $19 billion is lost to fraud in the federal government's procurement and contracting process. A number of federal statutes also prohibit bribery and extortion. Bribery statutes make it unlawful to seek improper preferential treatment from public officials. They also prevent government officials including elected officials and agency heads from providing preferential treatment for personal gain. Both an official accepting a bribe and the person offering the bribe may be charged with a criminal act. Even aiding or allowing a fraud to be committed may subject a person to prosecution.

Health Care Fraud. In 1997, over $1 trillion were spent on Health Care in the U.S. The federal government conservatively estimates that 10 percent is lost to fraud, which translates to $100 billion a year. This highly prioritized crime problem affects private insurance companies, as well as government-sponsored programs such as Medicare and Medicaid. The FBI remains proactive in its identification and investigation of unscrupulous health care providers who are national in scope, as well as those groups who are organized for the sole purpose of defrauding the Nation's health care system. The FBI investigates fraud schemes relating to suppliers of durable medical equipment, independently owned laboratories, home health agencies, and medical transport companies, to name just a few. The Health Care Fraud problem in Minnesota is being addressed by the Minnesota Health Care Fraud Task Force. Each investigative and prosecuting agency working Health Care Fraud matters meet quarterly to discuss and coordinate Health Care Fraud investigations. The FBI is a member of this task force.

Insurance Fraud. The insurance industry is one of the largest industries in the U.S., consisting of over 5,000 companies with $1.8 trillion in assets. According to industry sources, losses due to insurance fraud amount to approximately $28 billion annually. Schemes include frauds perpetrated by third parties, such as false claim filings and fraudulent asset schemes utilizing offshore corporations. Frauds perpetrated by insiders include premium diversion schemes, as well as misrepresentations by officers and employees designed to prevent regulatory agencies from taking enforcement actions. The FBI works in concert with the insurance industry and various insurance associations to enhance investigative efforts.

Intellectual Property Rights. The United States is the world leader in the development of creative, technical, and intellectual products. These valuable resources, known as intellectual property, have steadily grown as a portion of our domestic output. The copyright industry in the U.S. single-handedly contributed $433.9 billion to the economy in 1996, more than any single manufacturing sector. Because intellectual property has become such a valuable commodity, it has been targeted by unscrupulous criminal organizations throughout the world. The FBI combats intellectual property theft in the area of Economic Espionage, Theft of Trade Secrets, and Copyright and Trademark violations.

Money Laundering. Money laundering is described as the investment or transfer of money generated from criminal activity. Illicit proceeds must be "laundered" to make it appear as thought the funds were generated through some legitimate means. Although difficult to quantify, sources estimate that as much as $500 billion in illegally obtained funds are laundered annually. In addition to developing national strategies to address the mechanisms and industries that are commonly used to launder funds, the FBI conducts multifaceted money laundering investigations in concert with other federal law enforcement agencies.

by: Maury D, Beaulier

Sex Crimes and Their Defense in Minnesota

2008-03-18T21:33:00.000-07:00

Under Minnesota law, criminal sexual conduct or sex crimes may include: rape, statutory rape, unwanted sexual contact, criminal sexual assault, child pornography, child solicitation or child enticement, solicitation of mentally impaired persons, sodomy, incest, fornication, pimping, and prostitution. Some prohibitions, like those against sodomy and fornication, are technically still on the books, but rarely enforced.

The Minnesota Office of the Legislative Auditor has the following statistics on sexual conduct and sexual assault crimes:

The number of reported sex offenses in Minnesota increased almost threefold between 1971 and 1984, but has remained relatively constant since then.

The number of sex offenses (sexual assault, rape, sexual conduct) reported to the police increased from 2,303 offenses in 1971 to 6,589 offenses in 1984. In 1993, 6,439 sex offenses were reported, of which 49 percent resulted in an arrest.

Between 1981 and 1992, adult convictions for sex offenses involving force remained at the level of 145 to 190 each year, but convictions for child sexual abuse nearly tripled, rising from 160 to 461, and convictions for interfamilial sex abuse increasing from 3 to 154.

Reflecting these trends, about 90 percent of the victims of convicted sex offenders were children or adolescents. Nearly all of the victims of adjudicated juvenile offenders were under 18 years old, as were 84 percent of the victims of adult offenders (with 46 percent under age 13). Nearly all convicted sex offenders (97 percent) were male and most of their victims were female, although 18 percent of the victims of juvenile offenders and 13 percent of the victims of adult offenders were male.

Criminal sexual conduct is divided into four degrees depending upon the age of the victim, age of the accused, whether force is used, and the existence of any special relationship between the parties, such as parent-child or physician-patient. In Minnesota, judges are required to double the punishment imposed on a pattern sex offender, which is someone who repeats or is likely to repeat a sex crime, or someone who plans the crime. Moreover, if convicted of a sex crime, offenders must register with police departments across the state.

FIRST DEGREE. First Degree sexual conduct/assault requires sexual penetration with another person. Remember - A mistake regarding the complainant's age or consent by the underage person is not a defense to a sexual conduct crime.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority.

Fear of Great Harm. Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another;

Armed with Weapon. The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit;

Personal Injury. The actor causes personal injury to the complainant, and either of the following circumstances exist:

The actor uses force or coercion to accomplish sexual penetration; or

The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;

The actor is aided or abetted by one or more accomplices and force or coercion is used or the accomplice is armed with a dangerous weapon.

Significant Relationship. A significant relationship generally means that the parties live together. It is a crime if the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration.

Penalty. Not more than 30 years and a fine of not more than $40,000. There is a presumptive executed sentence of 144 months.

SECOND DEGREE. Second degree criminal sexual conduct/assault does not require penetration. Instead, it involves "sexual contact." Sexual contact has been defined by case law to mean touching of the genital area, breast, inner thigh, or buttocks with a sexual intent. The sexual touching may occur on the flesh or through the clothing.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 years of age but less than 16 years of age and the actor is more than 48 months older than the complainant and in a position of authority.

Fear of Great Harm. Circumstances existing at the time of the act cause the complainant to have a reasonable fear of imminent great bodily harm to the complainant or another;

Armed with Weapon. The actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit;

Personal Injury. The actor causes personal injury to the complainant, and either of the following circumstances exist:

The actor uses force or coercion to accomplish sexual penetration; or

The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;

The actor is aided or abetted by one or more accomplices and force or coercion is used or the accomplice is armed with a dangerous weapon.

Significant Relationship. A significant relationship generally means that the parties live together. It is a crime if the actor has a significant relationship to the complainant and the complainant was under 16 years of age at the time of the sexual penetration.

Penalty. Not more than 25 years and payment of a fine of not more than $35,000.

THIRD DEGREE. Third degree criminal sexual conduct is similar to first degree in that it requires sexual penetration. Penetration is liberally construed to included penetration of the anal or genital openings and specifically includes digital and oral penetration. Third degree sexual conduct is generally charged for behavior that is not as extreme as first degree sexual assault.

Age Difference. The complainant is under 13 years of age and the actor is more than 36 months older than the complainant; or the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant. In any such case it shall be an affirmative defense, which must be proved by a preponderance of the evidence, that the actor believes the complainant to be 16 years of age or older. Consent by the complainant is not a defense.

Force or Coercion. the actor uses force or coercion to accomplish the penetration

Mental & Physical Infirmity of Victim. The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

Position of Authority. The complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Penalty. If the actor in such a case is no more than 48 months but more than 24 months older than the complainant, the actor may be sentenced to imprisonment for not more than five years. Otherwise a person convicted may be sentenced to imprisonment for not more than 15 years and a payment of not more than $30,000.

FOURTH DEGREE. A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the fourth degree if any of the following circumstances exists:

Age Difference. The complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age or consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced. Additionally, if the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant fourth degree sexual conduct may be charged. Consent by the complainant to the act is not a defense. In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor believes the complainant to be 16 years of age or older.

Force or Coercion. The actor uses force or coercion to accomplish the sexual contact.

Mental & Physical Infirmity of Victim. The actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

Position of Authority. The complainant is at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant is a defense.

Significant Relationship. The actor has a significant relationship to the complainant and the complainant was at least 16 but under 18 years of age at the time of the sexual contact.

Penalty. A person convicted may be sentenced to not more than ten years and a payment of a fine of not more than $20,000.

FIFTH DEGREE. A person is guilty of criminal sexual conduct in the fifth degree:

(1) if the person engages in nonconsensual sexual contact; or

(2) the person engages in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.

"Sexual contact" does not include the intentional touching of the clothing covering the immediate area of the buttocks. Sexual contact does includes the intentional removal or attempted removal of clothing covering the complainant's intimate parts or undergarments, and the nonconsensual touching by the complainant of the actor's intimate parts, effected by the actor, if the action is performed with sexual or aggressive intent.

. Penalty. A person convicted may be sentenced to imprisonment for not more than one year and payment of a fine of not more than $3,000. The charge may be increased to a felony with imprisonment for not more than five years and payment of $10,000, if the person has prior violations.

AGGRESSIVE DEFENSE

In today's world much hysteria and controversy swirls around sexual abuse. A person accused may find that even if acquitted they are looked upon with suspicion and fear. The allegation itself can carry with significant stigma and social repercussions. Too often, prosecutors charge out criminal sexual conduct cases based solely on an allegation. There is often little physical evidence. Though it may seem the case is weak, an aggressive and proactive defense is necessary. That may include hiring experts to review witness interviews for suggestive language and improper techniques.

If you are accused take these steps:

Do not give any statements to law enforcement and do not discuss the case with any other people until you have retained legal counsel;

Hire an experienced criminal defense lawyer;

Write down the names of potential helpful witnesses;

Only after retaining a lawyer should you make written notes regarding the allegations. these should be provided to your lawyer.

by: Maury D, Beaulier

Employment Based Immigration: 3 Steps to Understanding the Process

2008-03-18T21:23:00.000-07:00

U.S. employers wishing to sponsor a foreign national for permanent residency face the daunting task of navigating through the treacherous waters of U.S. immigration laws. This article seeks to provide employers with a basic outline of the process.

EMPLOYMENT BASED IMMIGRATION

A U.S. employer may sponsor a foreign national who is abroad or currently in the U.S. under their employ for permanent residency (colloquially known as a “greencard.”) through an employment based immigrant petition.

There are 5 categories or preferences within the Employment Based (EB) system, e.g. EB-1, 2, 3, 4, and 5. The vast majority of applicants will likely fall into the EB-2 or EB-3 category. EB-1 petitions involve foreign nationals of extraordinary ability, multi-national executives and managers, and outstanding researchers or professors. EB- 4 and 5 pertain to certain special immigrants and investors respectively.

Generally, EB-2 and EB-3 Petitions require a labor certification from the Department of Labor and a job offer. Workers hoping for permanent residency on the basis of an EB-2 or EB-3 petition must generally undergo a three step process.

STEP 1 - THE LABOR CERTIFICATION

A Labor Certification is a determination made by the Department of Labor that there are no U.S. workers who are qualified and available for a position in which a U.S. employer seeks a foreign worker. To receive such a determination, an employer must show valid recruitment for a prescribed period of time and demonstrate that there are still no qualified and available U.S. workers to fill that position. The Department of Labor then issues a ruling on the application. The application for labor certification is called PERM (Program Electronic Review Management).

A Labor Certification is NOT an Application for Permanent Residency

Time and time again we have seen clients come to our office who have been incorrectly (sometimes wrongfully) led to believe that their labor certification is an application for permanent residency. Merely filing a labor certification DOES NOT provide a foreign worker with immigration status nor give him or her authorization to work for the sponsoring employer. A foreign employee must have an independent basis for work authorization, such as a nonimmigrant visa classification in E, O, L, and, H, etc.

STEP 2 - THE VISA PETITION

Once a labor certification is approved the employer will submit to the United States Citizenship and Immigration Services a petition for alien worker, Form I-140 along with the certified labor certification and the necessary support documents.

The purpose of the visa petition is to establish the relationship between the sponsoring employer and the foreign worker. Often times the employer will be asked to submit financial evidence indicating its financial ability to pay the foreign worker the prevailing wage established under the labor certification. The foreign worker must also demonstrate he or she possesses the required years of experience and educational level required by the labor certification. Depending on the minimum requirements stated on the labor certification, the employer will file a petition for either EB-2 or EB-3 classification.

Who Qualifies for EB-2?

A foreign worker qualifies for an EB-2 petition, if he or she:

1.) Has an approved labor certification, unless waived through a National Interest Waiver; AND

2.) Possesses an advanced degree and the job offer requires a person with an advanced degree. To minimally qualify for an advanced degree the foreign worker must have a baccalaureate degree accompanied by at least 5 years of post-baccalaureate progressive experience; OR

3.) Possesses an exceptional ability and the job offer requires a person of exceptional ability.

Under the EB-2 classification the Labor Certification requirement may be waived if the criteria can be met through documentary evidence that it is in the national interest to do so called the National Interest Waiver.

Who Qualifies for EB-3?

A foreign worker qualifies for EB-3 if he or she:

1.) Has a labor certification approved, AND

2.) is a professional where the worker holds a U.S. baccalaureate degree or equivalent foreign degree and evidence that a baccalaureate degree is required for entry into the profession; OR

3.) Is a skilled worker who possesses the minimum requirement of 2 years of training or experience.

STEP 3 - ADJUSTMENT OF STATUS

A foreign worker may file an application for Adjustment of Status to gain permanent residency if he or she is in the United States, have not been out of nonimmigrant status for 180 days or more, and visa numbers are available to him or her in his or her Employment Based Preference category. Visa numbers represent the numerical limitation established by the State Department of persons allowed to immigrate to the United States within each preference category. If too many petitions are filed subscribing to a particular EB category, then visa numbers for that category may run out resulting in a backlog, i.e. a waiting list develops.

Concurrent Filing of Visa Petition and Application for Adjustment of Status

The visa petition (Form I-140) and application for Adjustment of Status (Form I-485) may be concurrently filed if visa numbers in a particular Employment Based preference are currently available. Otherwise, only the Visa petition (Form I-140) may be filed but not the Application for Adjustment of status (Form I-485).

CONCLUSION

There are many elements to consider when hiring a foreign national. A missed element or mishap in procedure is the difference between a successful and unsuccessful application or petition. A basic understanding of the immigration and labor certification process allows an employer to be become better informed to make decisions in meeting the challenges of global recruitment.

by: John Mei

Kids and Teens

2008-03-15T20:02:00.000-07:00

Teenage Trunking is Dangerous

The oddest coincidence happened to me. I'm doing research on things that are killing our teenagers. It consisted of opening up the websites and going through lists of things. Yes I saw this word; Trunking. In my head I got a picture of climbing into the trunk of some friend's car when I was like 16 years old to sneak into a drive-in movie theater. It brought a smile to my face and some fond summer memories. (readmore)

Teenage Trunking is Dangerous

2008-03-15T19:58:00.000-07:00

So I didn't look at the sites, I moved on. But then I went for a walk and sure enough up by the high school I see not one, but four kids getting into the trunk of some car. I walked right up and said, "Hey, what are you guys doing? Don't you know that teenage trunking is dangerous?" I spluttered at them. They did not even bat an eye, they simply said" we are on our way home from school and there is not enough room in the car, don't worry we do this everyday!"

I was flummoxed and though I didn't do anything about it I did go home and begin my investigation of this new trunking.

What would possess a perfectly sane (well if a teen could ever be considered that) teenager to stuff himself or his friends into the trunk of a car. I didn't have to go far to learn this answer, as my son walked into the house and told me why.

New laws have made it that way, he said. No longer can we look forward to getting our licenses and be able to drive around with our friends. Some states don't allow you to have any one but your family in the car, some you can't drive after midnight till your 18 and still there is the other silly one that says I can only take one friend in my car. "They kind of set it up so we had to start trunking." That was his parting statement.

I followed him into the room after doing some more research. I wanted to be armed with hard facts for him to swallow. I began my lesson to him with. "As a parent I believe I have the right and need to protect you and with that I want to first explain to you why I think trunking is bad and what the consequences will be if you ever are involved with it, in any way shape or form.

He gave me one of those, jeez looks and sat down to listen. So I spent the next say half hour talking to him about getting gassed, suffocated, cold, overheated, squished and tossed out of the trunk. I used the word dying a lot and how much that would upset me.

When we were done, I left knowing I did what I could, and of course my parting shot of ..."Oh and by the way, if I see any one of your teenage friends trunking, I will take their license plate, call the school, call their parents and call the highway patrol because I care what happens to them."

Accidents happen every day. They happen from carelessness and from human error. Teenage trunking is dangerous and not an accident. My teenager knows what he should be doing to help take care of himself and his passengers and if he gets goofy or stupid and trunks, well then I will be there to give out the consequences. Hopefully I will get the chance before a horrible life changing event takes place.

Corinne Bridgewater is a licensed nurse and mom of three sons who is passionate about doing research on any topic that touches her life. If you would like to hear her thoughts on parenting teenagers, then please go to http://www.getfreeparenting.info

By Corinne Bridgewater

Pets and Animals

2008-03-15T19:55:00.001-07:00

Daily Bird Cage Cleaning

Bird Cage Bedding: Changing bedding once, even twice a day, is highly recommended. Doing this, make sure the cage is easily accessible without any risk of bird escaping. No matter if you use newspaper or other paper liners make sure that they will not cause problems to your bird in case of ingesting. Avoid any items that have glue or colored ink on them. You better find safe paper cardboard that could be easily removed and replaced. Depending on the size of your bird you may use several layers for bedding the cage as it gives you the opportunity to change just the top one.(readmore)

Daily Bird Cage Cleaning

2008-03-15T19:43:00.000-07:00

Bird Cage Dishes: All food and water dishes must be cleaned with non-toxic cleansers under a hot water and then thoroughly dried. As doing that make sure no trace of soap, disinfectant or any other cleanser that you use remains on the dishes. Drying is very important step of the clean process because otherwise if the dishes are not absolutely dry that may cause damping and then molding of the seeds or pellets. A good solution to avoid that unpleasant and undesirable situation is to have at least two sets of dishes that you can have on your disposal when the one set is on process of drying. Materials as plastic or stainless steel are very useful for long lasting usage because they can withstand washings over and over again for a long period of time. No matter what item you use as a dish - a bowl, cup, bottle or can, make sure that you have available accessory for perfect cleaning, for example a bottle brush, to avoid any droppings or disinfectant left on the dish surface.

Bird Cage Accessories: Each one of the accessories you placed in the cage should be regularly removed and cleaned with hot soapy water or other cleanser, rinsed and dried thoroughly before they are brought back in the cage. Doing that observe the items carefully for any accumulations of droppings and make sure you remove them all.

Bird Cage Surrounding area: All seed, pellet, hull, feather pickings and other debris should be swept or vacuumed from the bottom of the cage. If the cage is provided with an apron it can help for collecting the pickings. It can be easily removed and clean daily.

Limoeg Veigroeg is owner and editor of http://www.birdcagesblog.com and http://www.birdcagesforum.com where you can find information on every type of pet birds and every type of bird cages and accessories. BirdCagesBlog and BirdCagesForum provides detailed information in decorative, large, custom, acrylic, antique, wooden, and discount bird cages sale, as well as cage covers,bird cage playstands, bird perches, bird toys, bird swings and bird foods.

By Limoeg Veigroeg

Home Improvement

2008-03-10T23:24:00.000-07:00

Getting The Right Vacuum Cleaner For Your Home

Humor

2008-03-10T23:18:00.000-07:00

Advice to King Dave of the Isle of Man

2008-03-10T23:16:00.000-07:00

To HM King David of the Isle of Mann (or Man), cousin to Queen Elizabeth II, come forth, I, your Not-So-Humble Servant to render such Wisdom as I can…

For about ten minutes today, David Howe, a 38 year old businessman from Maryland commanded the front page on FoxNews.Com with the story of his Coronation. In 2006 some Brit genealogist called to tell him that he might have a claim to the throne of the Isle of Mann (or Man). So, he filled out the right forms and sent them to Her Majesty's Stationary Office which after a 90 day review period approved his Royal application. Apparently they sent him a crown, a royal robe and a spoon. Some Kings get swords, others get scepters, but David gets a spoon.

My favorite part of the story is the reaction from the people of the Isle of Man, which I think can best be summed up as: "Who?" The elected government of the Isle of Man is probably still laughing themselves senseless. They are so disrespectful of their new King that the official government website has no mention of his coronation. Well King David, it looks like you'll need to stage an invasion to enforce Your Royal Rights. I recommend you look into some the old laws on how to execute traitors. That's how you get medieval on their butts.

The best part about this story is that HM (that's His Majesty, to you) King David has a lovely website. On his home page under an enormous picture of him, he details his efforts to provide aide for the poor AIDS afflicted children of Insert African Nation Here. Even Americans know you cannot be a Royal unless you have some charity to support. Especially useful are those charities that show you pictures of starving children. Those work best of all. Good choice there, Your Majesty. You hit that nail right on the head.

But if you do a little digging into the Royal website you find his Royal Pedigree. You know, like they do with dogs. Not only does he include his family tree proving his Royal Title, but he also proves that he is a cousin to the Royal Family of Great Britain. Wow, he's cousins with the Queen! Let's get something straight; I'm no genealogist but it seems to me when you cast such an enormous net (like the Cousin's Net), you are probably also related to Cher, Bill Clinton and Dick Cheney. I recommend that you lose the whole Cousins thing. Let's agree that you are only allowed to be a Royal Cousin if they invite you over for tea.

Also, if you take the time to look at his Pedigree you may notice that he has achieved his gentle rank through marriage. Now, that is perfectly legitimate. But, does that mean he's Royal by insertion? If so, then good job King David! I always heard you were supposed to pull your Sword out of the stone. It just goes to show that you cannot trust legends. But it might damage your macho image, so I would dump that webpage too.

Now, there's the matter of Royal Revenue. Until you conquer your island you can't collect taxes. But I have solved that for you! Just sell Knighthoods! There are tons of obnoxious idiots who would pay dearly for a title. I would add a web store and sell them that way. Between the money you can make from titles and the cash that will come in from your charity, you should have a pretty nice war chest.

To invade, you will need an army. And let's face it, no regular mercenary army will do. You need to show your subjects that you mean business and will not tolerate anything but total loyalty. For that mission, I can only recommend Blackwater. It might take up some of the money for the African kids, but you can always pay them back later.

Anyway, I hope you look charitably on Your Servant for his Words of Wisdom and that Your Majesty remembers to send me money when you use any of these ideas.

Sources:

FoxNews Story - http://www.foxnews.com/story/0,2933,317490,00.html

King David's Website - http://www.royaltyofman.com/

King David's Pedigree - http://hmkingdavid.homestead.com/pedigree.html

Isle of Man Government News - http://www.gov.im/allnews.gov

by: Louis Rosas-Guyon III

Getting The Right Vacuum Cleaner For Your Home

2008-03-10T23:13:00.000-07:00

Buying a vacuum cleaner might seem easy, but there are important issues to consider. These include price, features, and what type and size of house a person has. A large house needs a stronger vacuum if the house is carpeted. In addition, pets or children can affect how often a home is vacuumed and how hard a vacuum cleaner will need to work to ensure cleanliness. People with hardwood floors may also want vacuum cleaners, but they will likely be more interested in a canister vacuum as opposed to an upright. A canister vacuum is better designed to handle rugs and draperies, as well as upholstery. These kinds of vacuums do not do well, however, for individuals with wall to wall carpet, because their cleaning power is not the same.

The price of a vacuum cleaner is very important, but not to everyone. Some people have more money than others, and those who are rich simply buy what they want. For the majority of individuals, however, how much a vacuum cleaner costs affects whether a person buys it or not. In addition, many people look at the price of a vacuum cleaner based on several factors, such as the width of the cleaning path, the size of the motor, and what kinds of attachments come along with it. A vacuum with a stronger motor and more attachments should generally cost more. However, there are some discrepancies in price in almost any category of vacuum cleaner, and taking one’s time to find the best deal is often worth it.

The brand of vacuum cleaner that is purchased can also affect price and be very significant for many people. There are some people who swear by a particular brand and will not purchase anything else, just as there are some people who do not care what brand they buy, as long as it works well and is priced right. Most people fall somewhere in the middle. They have certain brands that they like, but they will pick from among those brands based on price and other factors. In addition, they might consider going outside of that group of brands if they find something that seems to be a particularly good deal, or if something else has been recommended to them from someone who they trust.

There are some vacuum choices that a lot of people do not consider, but which are still good options for many people. For those who have multi-story homes, having a vacuum cleaner on each floor is generally a good option, to avoid carrying a vacuum cleaner up and down stairs. Some of these individuals will opt to have a central vacuum cleaner installed in a home so that there is only a very lightweight hose to carry around when vacuuming. In addition, some people use a robotic vacuum if they have a small area of hard floor which they want to clean very easily. These are not designed for large areas, however, or for carpeted areas. There are so many choices for a vacuum cleaner today that people can generally find whatever it is that they are looking for, making their cleaning easier.

by: Dave Roth

Hobbies

2008-03-10T23:11:00.000-07:00

How to Make Warhammer Modeling Flock

2008-03-10T23:06:00.000-07:00

Spending almost $200 of your budget for a modeling flock is too big just to produce a 4' x 4' grassland gaming board. Is always be a problem you will face in making a gaming terrain but this will not be a hindrance for you to experiment on what decision to undertake. Because you want to work on a small budget this is something you had get over.

Doing research on Yahoo or Google on how to create a modeling flock or by just simply asking a friend who knows how to create one. That can lower the $200 to a $10 or less. But be sure to watch and read on the instructions for they will cause you problems in the results of your modeling flock. You should admit that making your first modeling flock will not be that easy for it will not produce similar to the modeling flock that cost $200. You should not be afraid to try every thing every possible way to have your modeling flock be the flock you want.

Without further delay the content of this article is the detailed instruction on how to make a modeling flock.

Step 1 - Get Your Materials Ready

Here is what you’ll be needing:

-a container to mix it in (we use a gallon sized ice cream container)

-a cookie sheet to dry the modeling flock on (don’t use new ones, your mother / wife won’t be happy)

-a tube of green paint (in the picture it shows a tube of blue paint and a tube of yellow paint, but we found it easier to just get a tube of green paint)

-water

-a stirring stick

-sawdust (that’s right, modeling flock is just dyed sawdust!)

-a fine strainer

The tubes of paint that we use are 4 U.S. fl oz, or 118 mL. We buy them at the dollar store for $1.

You can get the sawdust from any lumber mill that near your place. They should be more than happy to hand over a garbage bag full free of charge. If not, then just find someone you know who is a carpenter.

Take note that the sawdust should have been made from sanding, not from cutting wood.

Step 2 - Dilute The Paint

First you will need to dilute the paint that you are going to use to dye the saw dust. The amount of paint that you water down will determine how much flock you will make.

You will discharge the entire 118 mL tube of green paint into the container and then fill the container 3cm (about 1 1/4 inches) full of water.

WARNING: If you water down the paint too much your flock will be brown.

This is the common mistake which will end up with ugly stuff and waste. Even though it started out a nice green it will end up an ugly brown, which was useful only to be used as dirt and not grass. But we are going to create a grassland so better careful.

Mix the water and paint with a stirring stick. You can use any typical stirring sticks that you get from the paint stores, but you can really use anything that you don’t care getting stained with green paint.

(Important Note: The colour of your flock will be slightly browner than the green paint that you mix, so choose a colour paint that is slightly brighter than your desired modeling flock colour.)

Step 3 - Add the Sawdust

The next procedure is to add the sawdust on the paint. First add a small amount just to turn the watered down paint mixture into a compact sludge. Then continue adding more and more sawdust until it is mixed in well with the paint.

The easiest way to tell when to stop adding sawdust is when you add a bit more and it is very hard to mix in (i.e. it is hard to get rid of the brown sawdust). This is the point where you should stop.

Warning: If you stop sooner your flock will not be fine enough.

However, don’t expect your flock to be as fine as the Games Workshop version at this point for they already perfected the mixing of the paint and the sawdust. That will come sooner or later.

Once you have finished mixing the flock you are ready to move to next step.

Step 4 - Spread Out Your Modeling Flock to Dry

You will now need to spread out the modeling flock to dry. You can use two cookie sheets to dry out the amount of flock made with your desired proportions.

In spreading out the damp modeling flock it should be evenly as possible, then put it in a cool dry place and not be hit by strong winds for 24-48 hours. Make sure it is completely dry before proceeding to the next step, or else you will not get the same quality results as what Games Workshop produces.

Step 5 - Screen the Modeling Flock To Make It Finer

A fine strainer with a small openings you will have in doing the last step and that is to screen the modeling flock through it. There may be bunches that are just too hard deal with. You should really work if this happen until you cannot screen a dust from it. This will not be garbage cause it can be use as a mossy rock on another models.

by: Matthew Glanfield

Release Yourself From The Burden Of Debt

2008-03-10T22:45:00.000-07:00

Do you feel like you are in debt prison? Are you in financial turmoil wondering how you can continue to keep everything from imploding on you? Did you know that there were actually debtor prisons in America before the Revolutionary War? Robert Morris, a signer of the Declaration of Independence, was imprisoned in the 1700's for failure to pay debts. The bible also warns against borrowing more than we can afford to pay. Proverbs 22:26-27 says do not be a man who strikes hands in pledge or puts up security for debts; if you lack the means to pay, your very bed will be snatched from under you.

Credit card use has continued to grow in leaps and bounds. From 1996 to 2005, the total number of bank credit cards almost doubled. In 2004 alone, credit card companies generated $43 billion in fee income from late payment, over-limit, and balance transfer fees. The Federal Reserve reports that the total US consumer revolving debt reached 2.46 trillion in 2007. This large increase in card usage has created a "fee feeding frenzy," among credit card issuers. The whole credit card industry has really evolved for the benefit of creditors in recent years, with the industry imposing fees and increasing interest rates if a single payment is late. Penalty interest rates usually are as much as 30-39%, while late fees now often are $39 a month and over-limit fees are as much as $35. If you consider how that can add up over just one year, it could be very expensive. Consider this: late and over-limit fees alone can easily rack up $900, and a 30 percent interest rate on a $3,000 balance can add another $1,000.

The bottom line is, credit card companies want to issue as much credit as possible to as many people as possible and hope you barely make the minimum payment. It’s the exact same way these cash advance companies all over town work. They couldn't care less if you ever pay it off. In fact, they do not want you to pay it off. While most card issuers claim this is the cost of doing business, consumers should not be charged excessively for small errors. Ultimately we are responsible for our own financial choices and credit purchase decisions. However its clear to see that credit card companies will continue to entice and market low teaser rate introductory offers (the bate) and make it easy for us to use the cards. This is attractive to the consumer because they can avoid waiting and have the items or purchases they want now. But what price will we actually pay for these items?

That said, roughly $355 billion in mortgage loans are set to adjust during 2008, to significantly higher interest rates. This means many borrowers may face additional difficulties. Hopefully the Bush administrations plan for a rate freeze for adjusting arms and foreclosure prevention will help many consumers avoid catastrophe. The combination of mortgage woes and credit card debt pileup has made many people feel as though they just walked out on a pirate ship plank with nowhere to turn.

So, what is the best way to find the road to financial prosperity?

First and most importantly, if you are in an adjustable rate arm loan, check the date that it is set to adjust in your paperwork from your title closing. If you closed two or three years ago and took one of these teaser loans it will adjust 24-36 months from the original closing date. This is very important because when it adjusts it can increase by two or three interest points. Your lender should notify you 30 days prior to your reset date and you may get reminders from lenders vying for your business. Don’t get yourself caught in this self destruction.

Mortgage interest rates are anticipated to remain steady or dip slightly in 2008; this may be a good opportunity to refinance into a 30-year fixed-rate. The FHA modernization act will make refinancing a good option for damaged credit borrowers to qualify for up to 95% of their homes value at competitive single digit interest rates and avoid incurring prepay penalties. The teaser arms sold over the past 2-3 years are under extreme scrutiny due to the explosive foreclosure epidemic and its effect on the overall economy. The FHA Secure is also a great option for those who need help to avoid foreclosure, allowing them to roll in the arrearage. The future of sub-prime lending appears to be bleak at best. Many borrowers had little options other than 2 or 3 year fixed rate sub prime arms over the last few years because of credit issues, and aggressive lenders pushing these loans on poor credit borrowers. Unfortunately, these same borrowers are now in trouble and imploding due to a cocktail of housing value depreciation, adjusting rates and maxed out credit cards. The bottom line to most of these issues is proper guidance and good decision making. Additionally, it is prudent that you choose an advisor that will educate you about any loans that are different than the norm, like arm loans, negative amortization loans and loans that do not collect escrows. Now, if that is not upsetting enough, federal regulators pressured credit card issuers to double the minimum payment requirements on credit card balances. This can be both good news and bad news for many Americans burdened by debt. While it may force you to pay the balance down, it can mean disaster for many who cannot afford the extra out-of-pocket expense each month.

Should you use a mortgage refinance as an Option to Debt Consolidation? If you are a homeowner with verifiable income, who pays their bills on time for the most part, but who would sincerely like to be debt-free and financially secure while still young enough to enjoy it, maybe even become wealthy. Whether you've had some credit problems and have a blemished credit report, whether you're struggling now and need immediate help to avoid foreclosure, or are doing okay but wish there was a strategy to get out of debt and build some net worth. Then this could be a possible option.

When you really analyze your financial situation, are you using too much of your income just servicing debt making the minimum payments? You absolutely can not build wealth overusing your credit cards you have to make a conscious decision not to make purchases with credit cards unless you can payoff the balance. While home equity has been reduced dramatically in some declining markets, many people may still be able to benefit from restructuring the way they pay their bills and by using their home's equity as the means of accomplishing this.

Do you have two loans with one of them adjustable? Consider consolidating your 1st and 2nd mortgage loans. Do you have high balance credit card in which you are being charged late fees, over limit fees and excessive interest? Consider paying off obligations such as auto or high rate credit cards, overdue property taxes or insurance premiums.

This will wrap up your existing obligations into one tax-deductible payment and puts you back in control of your debt with one manageable payment. Consult your accountant or tax advisor on this as it could equate to a 20-30% savings in interest and your overall Net Effective Rate. If you can eliminate your credit card payments, late fees and penalties and start enjoying increased monthly disposable cash flow, you may actually be able to make financial choices that will help you build a positive net worth. Another way you can reduce mortgage interest further is by signing up for a biweekly repayment plan that splits your mortgage into two monthly payments, this forces you to pay down your mortgage interest much faster. I know, I know your friend said just make one additional payment per year to accomplish this, seriously! Who does this? I say forced biweekly, kind of like forced property taxes through escrows, you get the idea! Then take the savings, say for example $200 a month, and purchase an equity indexed life insurance policy that will protect your family if you die to cover the mortgage balance. More importantly, if you live, the account your premiums go into is tied to an investment account so that it will accumulate a cash value that could be drawn on at retirement, and essentially you could pay off your mortgage tax free. Imagine the benefits of having fewer bills to deal with every month and simplifying your financial life!

Here are a few things to consider to decide if you could benefit from a refinance consolidation:

Do you have equity based on a current appraised value?

Do you have a home equity line of credit that’s increasing out of control?

Do you have a loan that does not collect escrows for taxes and insurance and have difficulty paying them at the time they are due?

Do you have too many credit cards that are near or above the credit limit?

Do you have an Adjustable Rate Mortgage on the brink of spiking Up?

Do you make minimum payments on credit cards and are unable to make a dent in the balance?

Are you saving and investing less than 15% of your income?

Would you like to take advantage of the FHA Modernization and qualify for a great rate?

Would you like to get out of that high interest rate sub-prime loan and qualify for a single digit 30 year fixed rate loan without a prepay penalty?

Are there tax-deductible savings opportunities like pension plans, IRA, Keogh, Medical Savings Accounts, etc. that you are missing out on because you don't have enough money after paying bills to participate in them?

Would you like to take a really nice vacation or make some improvements to your home this year without going into debt to do it?

Would you like to eliminate years off of your mortgage balance?

Do you have a mortgage protection insurance plan to protect your home and family should you die or become disabled?

If any of these questions apply to you, consider the following:

The average personal savings of a retiree amounts to about $6,500. The average benefit check is about $968.00 according to the Social Security Administration. Baby boomers are expected to enter retirement starting in 2010 and considering people are living longer, it is expected that these funds will be exhausted by the year 2040 and will create a deficit in the trust, only providing 72% of what is needed.

The key thing to consider with proper debt management is to make a conscious effort to avoid using credit cards for unnecessary purchases. If you cannot afford it, do not buy it! More simply said than done, I know. Look for ways to curtail extra activities such as eating out everyday, soft drinks, anything you can do without. Use the extra savings to pay off your high interest cards first. Contact a credible mortgage advisor to see if you qualify for a debt consolidation loan at a competitive interest rate. Transfer non tax deductible interest from other debts to a tax deductible loan. If the loan will not create a tangible benefit to your financial picture do not do it.

by: Christopher D. Beard

Buying Your First Home - A Guide for the Beginner

2008-03-10T22:44:00.000-07:00

Becoming a first-time home buyer is a tremendous step in life. The sense of personal accomplishment, pride, satisfaction, and joy is irreplaceable. It is not without it's challenges, though. Because of the huge number of options available to you as a potential buyer, you need to take the time to become familiar with an overview of the buying process, the terminology used, and how to best approach buying your first home.

My strong suggestion to you as a first-time home buyer would be to seek competent, professional financial guidance. It is relatively inexpensive, and could save you from making a costly mistake. Buying a home is not right for everyone. Even if it is a good choice for your financial future, you may need to take the time to save money for a down payment, or to fix any issues with your credit. Be patient, and make your preparations carefully...

Below is a list outlining the buying process. Review it to become familiar with the steps involved. Oh, and one last, very important bit of information before you get started...Everything, and I do mean everything, in real estate is negotiable. Repeat that over and over to yourself and never forget, everything is negotiable...

Pre-Qualification

After making the commitment to buy a home and getting your finances in order, it is time to speak with a professional in the mortgage business. Ask your friends and family for referrals. Take the time to ask questions and get familiar with the basic terminology used, plus to discover any pitfalls. The terms of your mortgage will have a lasting affect on your financial well-being, so make sure you fully understand what you are being offered. Ultimately, you want to become pre-qualified for a reasonable, affordable amount of money with which you can purchase a home.

I personally recommend speaking to at least three mortgage brokers or banks to get your best deal. Also, I would avoid having your credit run during this process until you are ready for the next step. Most good mortgage brokers should be able to estimate your buying power from a short interview.

Pre-Approval

Prior to beginning an in-depth search for a home, I would suggest going beyond pre-qualification and getting fully pre-approved. In this step, the mortgage lender will take a detailed look at your credit, finances, income, and other factors to solidify the amount of money available to you for a home. The primary difference between pre-qualification and pre-approval is you are shopping for a mortgage lender and getting educated about the loan products available during pre-qualification, but you have decided to commit to a lender and submit to the complete application process during pre-approval.

List of Needs & Wants

Make 2 lists. The first should include items you must have (i.e., the number of bedrooms you need for the size of your family, a one-story house if accessibility is a factor, etc.). The second list is your wishes, things you would like to have (pool, den, etc.) but that are not absolutely necessary. Realistically for first-time buyers, you probably will not get everything on your wish list, but it will keep you on track for what you are looking for.

Representation by a Professional

It is very important that you can communicate clearly, honestly, and openly with any person who will directly affect your decision-making process. I know it is better to work with a real estate professional because of personal experience, plus feedback I constantly receive from clients and customers, so I highly recommend carefully choosing a representative to help you complete this important transaction.

A quick word about buyer representation. In a great majority of situations (95%+), a buyer's agent is compensated out of the seller's equity. In plain English, this means unless your agent requires a small administration fee for services, you will not be responsible for compensating your agent at all for their services. It is very important you fully discuss this with your Realtor®, as there are simple contracts available that will put this information in writing and help protect your interests should a dispute arise.

Also, just to anticipate and answer a question you may have on this topic, these costs are not passed back to the buyer through the sales price of the home. The reason for this is because the market, combined with a ready, willing, and able buyer sets the price for the home. The seller decides on an asking price, and may have a bottom line price, but you as the buyer ultimately decide what the home is worth. So, get a good Realtor®, study the market thoroughly, and make a fair offer based upon the comparable homes in the market. If the seller decides to accept your offer, you will have purchased the home at a fair price, and not one inflated to pay for the seller's costs or Realtor® fees.

Meeting with your Real Estate Agent

Come to the first meeting with your agent with an open mind and lots of questions. You should be doing a majority of the talking and your agent listening to gather all of the information necessary to help you find your ideal home. Make sure you share your list of wants and needs, plus the information you learned from the mortgage broker. Your agent should be taking notes and reiterating accurately whatever is discussed.

I want to talk briefly about the importance of effective communication with your real estate agent. Buying a home should ultimately be a fun, rewarding, educational, exciting experience. It will not be free from challenge, though. You will at times find yourself frustrated, discouraged, and confused. This is completely normal, especially considering the magnitude of the transaction. Your Realtor® needs to know this information, both good and bad. Without knowledge of your feelings and concerns, the usefulness of your agent can be nullified. Make sure you are comfortable enough with your Realtor® to tell them 'no', or to be completely honest with your needs and wants. Make sure your communication is effective by listening to what your agent says and ensuring it is what you are expressing.

Focus & Organization

In a convenient location, keep handy the items that will assist you in maximizing your home search efforts. Such items may include:

1. One or more detailed maps with your areas of interest highlighted.

2. A file of the properties that your agent has shown to you, along with ads you have cut out from the newspaper.

3. Paper and pen, for taking notes as you search.

4. A camera to help refresh your memory on individual properties, especially if you are attending a series of showings.

5. Location: It can be beneficial to look at a potential property as if you are the seller. Would a prospective buyer find it attractive based on school district, crime rate, proximity to positive (shopping, parks, freeway access) and negative (abandoned properties, garbage dump, source of noise) features of the area?

Visualize the House Empty & With Your Decor

Are the rooms laid out to fit your needs? Is there enough light? Will the home require any updating? Are the mechanicals in good shape? What about the roof? Try to keep accurate notes on both your feelings regarding the home, plus objective features that may or may not be positive. Keep in mind that it is always an option to ask the seller to gives allowances for updates or changes as part of the negotiation process, or to make the changes yourself for the right home.

Be Objective

Instead of thinking with your heart when you find a home, think with your head. Does this home really meet your needs? There are many houses on the market, so don't make a hurried decision that you may regret later.

It is important to know your personal strengths and weakness in the home buying process. Some people love the thrill of the hunt and seeing lots of homes looking for a positive feeling, while others are just interested in the facts and objective features the home offers. Some people are a combination of the two. Whatever your style or technique happens to be when searching for your new home, you must be honest with yourself and emphasize your strengths while seeking help with your weaknesses.

I recommend in the initial phases of the home buying process that you try to keep your time in any home you view short and focused on finding positive first impressions. There really is a difference between finding a house and discovering your new home and I believe emotion and feeling plays a role in the process, but don't let emotions cloud your judgment. Be relaxed and aware of your emotions in this initial phase.

Once you have narrowed your choices and become comfortable with the buying process, it is time to schedule second showings and to put on your objective hat. Now you are looking at the details from an investment standpoint, a functionality perspective, and determining whether or not there are any faults that would negate the viability of the home. It is here your Realtor® can be invaluable. Use your Realtor®'s experience and knowledge to help you step back and look at the home through the eyes of an investor. You may be surprised at what you find!

Make an Offer

Once all of the research is complete and you are certain you have found your new home, it is time to put together an offer. Again, the competent guidance of your Realtor® is critical at this point. Together, you must determine a fair amount of money to offer for the home, plus you must complete an accurate, comprehensive, legally-binding Sales and Purchase Agreement. Any mistake, error, or omission at this stage can become very costly in both dollars and emotions later. If you are at all uncertain or uncomfortable, seek professional legal advice before you sign any agreement.

A word about market perceptions. Today, we hear constant talk about it being a "buyer's market". What does that mean to you on the buyer's side of the transaction? I wish it meant that you could offer 15-20% below the asking price of the home and the seller would gladly accept, but that is rarely the case. Very simply, we find ourselves in a buyer's market due to an over-supply of homes and a lack of qualified, motivated buyers. It will affect prices in most areas, but the adjustment will be more in the neighborhood of 1-3%, if anything.

That being the case, what are the advantages of being in a buyer's market? Let me just name a few and you should be able to see many others. Besides the possibility of a reasonable savings on price, sellers are more willing to provide allowances for closing costs, updates, or other incentives to get you to purchase their home. In addition, you have a tremendous variety of homes from which to choose. Plus, fierce competition for the best homes is reduced, thus allowing you a greater chance of not paying an inflated price for the home of your dreams. When you hear talk that we are in a buyer's market, just imagine yourself in the seller's shoes...Most people are not going to give away their home for less than a fair market price, so look to negotiate other benefits from the deal.

Be Thorough

A few extra dollars well spent now may save you big expenses in the long run. Your real estate agent should competently guide you through this phase, but you should be aware that after you have an accepted offer, you still need to perform due diligence to ensure you are making a sound investment. Don't forget such essentials as:

1. Having the property inspected by a professional inspector.

2. Requesting a second walk-through to take place within 24 hours of closing to ensure the home has been left in the agreed upon condition.

Congratulations on your decision to educate yourself thoroughly regarding one of the largest financial transactions you will ever undertake! While the process may seem daunting and a tad overwhelming at first, with the help of a competent Realtor®, plus other industry professionals, you should be well on your way to a satisfying, positive, purchase of your new home. Good luck, and remember... This is supposed to be fun!

by: Joe Hayden

You Can Reduce Your Contracting Risks

2008-03-10T22:40:00.000-07:00

One frustration all risk managers experience is being brought into the contract process when it is too late to reduce the risk. Only yesterday, I was asked to review a contract for the acquisition of health equipment. When I sent my recommendations back to our contract negotiator I was told “But it’s too late – we already told the supplier that the draft they approved was the final version.”

The best time to negotiate contract terms and conditions is before the contract is signed!

Contract law is complicated, involving numerous federal, state and municipal laws (not to mention internal policies, procedures and protocols!) that apply different conditions depending upon the type and cost of the item under consideration.

Terms in the tender document or request for proposal are the starting point for most acquisition processes. The language of the tender or RFP is critical to successfully achieving a satisfactory relationship with the supplier of goods or services. The terms of the tender document, with the terms of the successful bidder’s response, are substantially the terms that will be included in the final contract. Procurement officers need to know the extent of negotiating ability they have upon receipt of bids or proposals. The variety in responses possible from bidders can often lead to very good reasons for going off in a new direction. But, straying too far from the tender specifications can quickly lead to multiple claims from unsuccessful bidders.

Purchasing and Risk Management Departments must work closely with other corporate colleagues to review or create business contracts that limit the organization’s liability exposure. Well-drafted, the indemnification and insurance clauses ensure that if something goes wrong it is clear who will bear financial responsibility.

The Risk Manager’s Role

The importance of risk transfer requires Involving risk management early in the process. The risk manager can help examine the purpose of the contract from an ‘outsider’s perspective. Specifically - what could go wrong with the work (or product/service)? If something were to go wrong – what are the implications of that problem? “Implications” can be financial cost, a delay in using the end result (e.g. a building), negative publicity or any combination of these three outcomes.

Risk manager can provide advice and consultation in structuring tender or RFP, assist colleagues in properly drafting contracts consistent with corporate policies and minimize financial risk by identifying and dealing with possible contingencies. They do this because they know that poorly prepared contracts can lead to nasty surprises. You want to enter into contracts with some assurance that the end result will satisfactorily meet your expectations.

The classic risk management process is helpful in conducting a review of any proposed transaction. To avoid surprises, you need to identify risks by considering what potential downsides can arise from the project. Once this step is complete, assess the risk by determining how likely it is that something will go wrong and if it does, how expensive the problem is likely to be.

The contribution of the risk manager to the contract language is central to successfully achieving risk transfer. Clearly define the circumstances under which the contractor will hold harmless and indemnify the municipality for losses arising from the supply of goods or services. If a serious loss occurs, these clauses can be analyzed word-by-word. Any ambiguity is likely to be held against you. Review and revise both the hold harmless and indemnify clauses until it is absolutely clear to you and to your procurement officer.

The term “Contractual Risk Transfer” is used by risk managers to avoid saying ‘passing the buck’. The goal is to always make the party who has control over the products or services accept financial responsibility.

Usually insurance does not cover problems arising from poorly-drafted contracts, negligence in the procurement process or poor performance of the work described by a contract. For example, there is usually no coverage for situations where unauthorized employees engage in work under an unapproved contract or for breach of contract claims. Poor business judgments and financial mistakes are also the responsibility of the organization. Claims arising from these errors typically must be paid by the municipality as those costs are rarely transferable to insurers or anyone else. The municipality is likely to incur all of their own costs arising from problems, plus any award to the claimant.

Always use written contracts and state terms and conditions clearly. In many situations verbal agreements are legally permissible. Properly drafted written contracts, however, reduce the chance of misunderstandings in the future. Documented business transactions protect the rights of all parties to the contract. The written contract provides an audit trail and authorizes the use of funds when paying invoices. Further, if the subject of the contract becomes an adversarial issue due to a lawsuit, the contract can show the intent of both parties at the outset of the work.

Written agreements ensure both parties have an opportunity to clear up at the negotiation stage any confusion or differing interpretations. The main purpose of written contracts is to prevent conflicts or litigation caused by inadequate documentation of crucial points. It is time-consuming and expensive to take issues to court for interpretation. Judges may interpret the contract differently than either party intended. The courts do not usually consider very great weight to verbal evidence as verbal statements are considered unreliable once a dispute has arisen. When contracts are vague or indefinite, or the intended performance cannot be determined, the court may rule the contract unenforceable - to the disappointment of both parties.

Power does not always prevail – when one party is larger than the other it may make them feel that they can dictate contract terms and conditions. Remember that you want a contract that is enforceable. When unfair bargaining strength is used, it can become contentious later if other problems arise. It is in all parties’ best interest to avoid ambiguous language and unreasonable or unlawful conditions. Always be prepared to be flexible and to take the time required for a good result!

Remember, it is important to note that any language showing a clear intention to negotiate cannot defeat an inherent duty of fairness with which the municipality must conduct themselves at all times. The trade-off is clear: the more extensive the negotiations, the more stress it puts on the municipality’s duty to be fair to all bidders.

To ensure changes are binding make them in writing and have the amendments signed by duly authorized representatives of both parties. This documents the change, provides clarity and binds both parties should problems arise later.

Three clauses complement and support the risk management process. They are hold harmless, indemnification and insurance. I recommend that these clauses be written separately.

In most vendor-provided contract documents, the Indemnification/Hold Harmless provision is far broader than what your organization would want to accept. Many vendor-provided indemnification and hold harmless clauses are limitless. If you accept these clauses you may be accepting responsibilities that your organization never wanted nor intended to assume and may not be able to insure. Usually you want to only sign contracts where the language limits your liability to acts over which the municipality has control and to the extent that it exercises that control. Assuming liability for independent contractors and consultants who are not under the municipality’s control is unwise.

The intention of the hold harmless clause is to describe exactly what type of circumstances the supplier accepts responsibility for. In particular, they specify who will pay for loss or damage arising out of the performance of the work contemplated by the contract. Most corporations will only enter into contracts in which the indemnification language limits their liability to acts over which they have control and to the extent that they exercise control. The hold harmless clause however, is only one clause of the trio needed to adequately protect the parties.

The second clause used is an ‘indemnity clause’. It will state that if something does occur leading to a loss, of a type that I/we have held you harmless for – then we will pay on your behalf (or reimburse you) any costs arising from our negligence. In other words, ‘the buck stops here’.

The final clause of the trio is the insurance clause. The insurance clause promises that the party performing the work (e.g. builder, supplier, etc.) will obtain and maintain the type and amount of insurance that you have stipulated to pay for any claims, losses and related expenses that may arise out of their negligence in performing the work planned in the contract. The intention is to ensure that the contractor has sufficient financial resources to support the indemnification provision in the contract.

With these three clauses, you have obtained a promise from your supplier or contractor to:
1. accept responsibility for their own errors or negligence,
2. pay any costs arising from those errors or negligence, and
3. carry insurance evidencing sufficient resources to keep their promises.

Often, I find that contract document presented by contractors have been written by lawyers or other ‘non-insurance’ professionals. In these cases, the language used may be out-of-date or simply not reflective of terminology used by insurance professionals. When this occurs, it is prudent to revise or replace those clauses with descriptions and phrases commonly used in the insurance industry today. This reduces the chance of ambiguity and difficulty in obtaining evidence of the type of insurance you want the contractor to carry. The most common example I see is the phrase “Additional Insured’ VS ‘Additional Named Insured’.

It is important that this phrase be limited to ‘Additional Insured’. Additional Named Insureds have at least two disadvantages: only Named Insureds are responsible for paying premiums and some policy exclusions apply only to Named Insureds. Benefits to your municipality of being an additional insured are:

 Coverage remains in force for Additional Insureds if a Named Insured breaches a policy condition,
 Reinforces risk transfer agreements in the contract,
 The Additional Insured has a right to claim defense from the insurer, and
 It usually prevents the insurer from subrogating from the Additional Insured.

Certificates of Insurance:

There is much debate amongst the risk management and insurance community about the value of obtaining and maintaining evidence of insurance on contracts. Certificates of Insurance verify the type of insurance that the Named Insured on the policy has purchased and specifies the coverage levels under that policy at the point in time that the certificate is issued. I firmly believe that certificates are of limited value – but they are the best and only evidence available at this time providing some level of comfort that contractors have a source of funds for defined claims situations.

There are two broad categories of certificates, those that you receive coming in and those that your send out to other parties. Municipalities usually receive certificates and infrequently send them to others.

Incoming certificates of Insurance are commonly issued by the contractor’s insurer or insurance broker. To be valid, I want to see the ‘live’ signature of a person authorized by the insurer to issue the certificate. Before issuing a certificate, the insurer wants some information describing reason for the certificate, the length of the subject of the certificate (e.g. a multi-year contract) and specific details of the name of the contact person/mailing address of their and at your organization.

Upon receipt of a certificate in your office, you will want to see at least the following information:

• name and address of the organization to whom the Certificate is being issued,
• brief description of planned activities/work,
• name and address of the Named Insured, (who must match the name on the contract)
• amount and type of insurance in force,
• effective dates of coverage, and
• a statement that your municipality is included as an ‘additional insured’.

When you are asked to issue certificates of insurance you should review the contract to be sure that you provide evidence of the proper type and amount of coverage required. Under no circumstances should you issue a certificate on behalf of any party or other organizations independent of your municipality, no matter how close a working relationship you may have with it.

When reviewing tender or RFP documents and the contracts that arise from them you can effectively use the risk management process to review the proposal and draft appropriate language. Manage exposure in any contract situation by ensuring conformity with generally accepted ‘due diligence’ practices from the very beginning. Be sure that appropriate risk transfer provisions are included at the tender or RFP stage. Finally, once the contract draft is agreed upon, ensure that evidence of insurance (and bonding, if required) is obtained and maintained throughout the life of the contract. As a risk management professional, remember that your training and experience makes YOU an expert who can protect your municipality.

by: R. Joy Jackson, FCIP, RF

Fundamentals Of Design Professional Malpractice

2008-03-10T22:28:00.000-07:00

In today’s litigious society, no profession can escape the cost and aggravation of legal claims and suits. Design Professionals, architects and engineers, are no exception. One important and distinct type of claim or suit is the professional liability or malpractice claim.

A variety of other types of claims and suits may be made against the design professional, such as claims for ordinary negligence, such as automobile liability cases, or slip and falls on the company’s property. There are suits for wrongful employment practices such as discrimination, sexual harassment, or wrongful discharge. Finally, there are suits for commercial disputes over contracts, trade secrets, and patents.

Professional liability claims are unique and distinct from other types of claims because they are made against the professional in relation to the performance of professional services and the specific duties owed by professionals which are not applicable to the public at large. As a result special rules and standards apply to these claims that do not apply to other types of negligence actions.

A claimant may file a claim or suit asserting professional negligence, as a tort, such as negligence or misrepresentation, or may assert the claim as a breach of contract claim or that the design professional was negligent in the performance of its contractual duties.

ELEMENTS OF A CAUSE OF ACTION FOR PROFESSIONAL MALPRACTICE

In the absence of a specific contractual undertaking, the architect or engineer design professional owes legal duties to perform their work in accordance with the standard of practice of their profession.

Generally speaking, in order to prevail on a professional malpractice or professional negligence cause of action, the Plaintiff must assert and establish:

a. what the standard of practice is for the design professional under the circumstances;

b. that the design professional violated the standard of practice, and the way in which the standard of care was violated; and

c. that the Plaintiff suffered damages as a proximate result of the violation of the standard of practice.

STANDARD OF PRACTICE

What does it mean for there to be a standard of practice or a violation of the standard of practice? The standard of practice is the exercise of ordinary skill and care common to the professional under the circumstances. It is not the average performance of all professionals or the best performance of professionals. The standard of practice can relate to any aspect of a design professional’s work, from design to construction administration.

Just because a majority of professionals would do a task a certain way or that the claimant’s expert would do it differently does not mean that the way that the design professional performed the task is wrong or was a violation of the standard of practice.

Professional negligence must be contrasted with ordinary negligence. Professionals, like any other person, can be sued for ordinary negligence for matters not relating to their professional duties and practice. For example, if a person slips and falls on ice on their property of the professional, in the course of driving to or from a construction site, negligently causes a motor vehicle accident, those claims would be ordinary negligence claims where the standard of practice would not be applicable.

The design professional does not guaranty success (unless the design professional contractually or expressly makes a guaranty or warranty), and a bad result does not necessarily constitute a violation of the standard of practice.

Ordinarily, a claimant must present expert testimony to support a claim of professional negligence. There is an exception where the alleged professional negligence is a matter of common knowledge, or if the defendant professional establishes by his/her own testimony the standard of practice and breach.

PROXIMATELY CAUSED DAMAGES

Proximate cause is a legal term that involves elements of forseeability and a close relationship between the conduct alleged to impose liability and the damages.

In the context of claims against design professionals for malpractice, it is often alleged that the design professional should have designed the building or system differently, specified different equipment, or omitted something of significance from the design or specifications.

However, where the alleged damages involve things that should have been provided, but were omitted, or where betterments or improvements should have been specified or designed into the building or system, those may not be proximately caused damages. If the additional work or additional equipment, such as more expensive or sophisticated features or controls, would have been required had the design professional acted properly, then those costs would ordinarily have been incurred by the owner at the time of construction if the professional had not been negligent, and are not proximately caused damages. If the alleged damages involve improvements that make the building or system better or more valuable to the owner, then those betterments may not be proximately caused damages as the owner would benefit from those improvements and would have paid for those betterments.

On the other hand, if the cost of providing those improvements including the cost of the additional equipment or system, or the cost of installation of that additional system or equipment is more than it would have been had the design professional properly designed the system or properly prepared the specifications at the outset of the project, then those additional costs may be recoverable as proximately caused damages. For example, if the price of purchasing the additional HVAC equipment has gone up since the original contract and bidding process, or if it would cost more to install the equipment after the fact because other equipment would have to be remove and reinstalled, then those would be recoverable costs and/or expenses.

BREACH OF CONTRACT VERSUS NEGLIGENCE

Completely apart from the issue of professional malpractice for violating the standard of practice, a design professional may be liable for breach of a specific contractual promise or a specific guaranty or warranty.

However, in the absence of such a contractual undertaking or warranty, to what extent is a design professional liable to a third party under principles of contract or tort?

Historically, Defendants and design professionals were not liable to third parties for property damage or bodily injury, or to other contractors for their economic losses, in the absence of privity of contract, i.e., a direct contractual relationship with the party making the claim.

The principles of privity of contract were eroded over the years both in ordinary negligence cases and in professional liability cases and claims have been allowed in most states against professionals by third parties in spite of the lack of contractual privity.

However, at least in Michigan, recently there has been a movement in the opposite direction limiting the liability of contractors and design professionals to third parties.

The court in Matrix relied upon a Michigan Supreme Court decision in Fultz v Union-Commerce Associates, 470 Mich 460-463 (2004) which held that a third party cannot sue a contractor without having a contractual relationship with the contractor in the absence of proving some duty owed to the claimant independent of the duties undertaken by the contractor under the contract with the owner.

Other states still allow suits by third parties against design professionals in the absence of privity of contract.

Third party Plaintiffs which are not in contractual privity with the design professional may also assert that they are third party beneficiaries of the contract between the design professional and the owner and thus entitled to sue. This approach often does not succeed because a third party beneficiary must establish that the parties to the original contract with the owner intended to benefit the third party.

FRAUD AND MISREPRESENTATION

Claims against design professionals for fraud or misrepresentation are generally considered distinct from ordinary malpractice claims involving breach of the standard of practice. They do not require proof of the standard of practice and violation of the standard of practice, but rather have their own independent elements as follows:

a. a misrepresentation or omission of an important fact;

b. the misrepresentation or omission was made negligently, innocently, or intentionally;

c. the claimant reasonably relied upon the misrepresentation or omission; and

d.the claimant suffered damages as a proximate result of the misrepresentation or omission.

Frequently claimants will assert misrepresentation or omission allegations against design professionals relating to errors or omissions in specifications, or in statements made to the contractors in the course of the bidding process or construction or administration of the contract. In such cases, the third party may not be able to establish the necessary element of reasonable reliance where the design professional’s duty is owed to the owner, not the third party.

Claims for misrepresentation often require a higher level of proof, i.e., proof by clear and convincing evidence.

Misrepresentation claims by third parties may be allowed even where professional liability claims based on breach of contract are not, because they are considered to be a distinct type of claim.

STATUTE OF LIMITATIONS/STATUTE OF REPOSE

One of the different rules applicable to professional liability claims is the time period during which a claimant can sue, or the statute of limitations or in some instances a statute of repose. A statute of limitations usually limits a claimants right to sue after a certain number of years after the claim accrues. The accrual date can be the date of the alleged wrongful act, the completion date of a project, the date of the injury or damage, or in some instances, the last day that the professional performed services for its client.

A statute of repose limits the time after which suit can be performed to a certain number of years after a date, often the completion or occupancy of a project or building, without regard to when the injury or damage occurred or could have been discovered. Thus a statute of repose could preclude a suit even though the damages had not occurred or became manifest or discoverable before the deadline.

COMMON CAUSES OF MALPRACTICE CLAIMS

Malpractice claims can arise out of a variety of situations and causes too numerous to relate. However, some of the more common ones are addressed here.

Many malpractice claims arise out of disputes over the scope of work and claims relating to oral agreements or representations. As a result, it is very important for the design professional to document its scope of work and all agreements or understandings, even for small projects and for clients where there is a long term ongoing relationship.

Too often, after an initial proposal or professional services contract for an initial project, and after an ongoing relationship settles in, informalities arise, where formal documentation of the project and scope of work can go by the wayside. If a major loss or claim arises, that prior close or long term relationship may not prevent disagreements over scope of work and duty issues or prevent one party from asserting revisionist history to support their claim. Good documentation is an important measure to prevent malpractice claims and help defeat them when they arise.

Similarly, informal or oral decisions or changes made in the field without the necessary investigation, communication, and documentation can lead to malpractice claims based on ambiguous decisions or change orders, lack of owner consent, or insufficient information.

Failure to address complaints or issues raised by the owner, or contractors, in a timely fashion and respectfully can cause anger and blow out of proportion a manageable issue that could have been solved early at little expense. Complaints over billings or charges that are ignored or blown off can sometimes lead to other claims of poor work or services and snowball into a malpractice suit.

Where delays are caused by unexpected circumstances or conditions, bad weather or supplier issues, claims may be made against the owner for delay damages and extra expenses or result in litigation against the contractor for delayed or uncompleted work, missed deadlines, and poor workmanship. These claims often result in the design professional being brought into the fray and litigation. It is best to identify and address these issues clearly and directly with the owner and contractor and resolve them before the amount of money and time involved becomes critical to either side making litigation more likely.

by: Randall Phillips

10 Tips You Should Know Before Buying A Used Motorcycle

2008-03-10T22:08:00.000-07:00

Motorcycles are what everyone desires. If you are considering buying a used motorcycle you will need to be savvy so that you do not get taken for a ride. Not all used motorcycles are equal. So before you pay make sure the bike you are buying is the best in its category.

Used motorcycles can be bought from family and friends, online stores, dealers, classifieds in newspapers and more. While buying a known motorcycle is your best option sometimes you may need to buy from unknown sources. Do your research well. Surf the internet and read articles and tips on bikes and what to look for when buying a motorbike. Visit a few dealers and online motorbike websites to see what is on sale in the used motorbike category. In case you are nervy take the help of an auto professional. Find out what the price is for used motorbikes this will give you an idea of brands and price range.

Before you decide on the bike consider:

1. Making a thorough inspection. Check for damage and scratches as well as bends and repair signs.

2. Study the different motorbike models and know what inherent flaws are.

3. Ask whether the bike has been raced and how many owners it has had.

4. Check the lines of the bike and the brake and clutch for smooth operation.

5. Rev the engine and listen to what it has to say. If you are tone deaf take along a biker friend.

6. Check the bike for signs of rust and paint flaking.

7. Check the wheel and tires for wear and tear.

8. Study the service records carefully.

9. Ask pertinent questions to know how the bike has been used and whether the owner takes pride in his bike. Judge whether the owner is being honest about the bikes accident free status and performance.

10. An owner who loves his bike will talk about it clearly and try and judge whether you will care for his old friend. Always make sure no modifications were done and that the service and maintenance were done by an authorized dealer with genuine parts.

Never buy the first bike you see. Buying a bike is like looking for an ever elusive pearl. Take your time and you will get a bike that will give trouble free rides. Always ask for a test ride and go through the papers to check there are no insurance or loan amounts pending. Read through sites like http://www.clarity.net/~adam/buying-bike.html where in depth articles are given for buyers of second hand motorbikes.

Study the bike not once but twice or even thrice before making a decision. Make sure you feel comfortable when seated on the bike. Motorbikes are like horses the owner and the motorbike must both feel as though they are one entity.

by: Timothy Rudon

8 Must Know Tips Before Buying A Radar Detector

2008-03-10T22:02:00.000-07:00

Radar detectors are electronic devices designed to detect radio waves. Radar detectors detect radio signals across a range of wavelengths ---X, K, Ka and Ku. Radar detectors are used for a variety of purposes across the world. Radar detectors help alert motorists regarding speed traps and radar guns. Radar detectors are also used in tracking, fishing, and exploration.

When buying a radar detector consider:

1. What you are going to use it for? State of the art radar detectors are expensive so you would need to have a clear idea of what you would like to spend.

2. Think about whether you are going to install the radar detector yourself or are you going to have it professionally installed.

3. It is important to choose a radar detector manufactured by a well known electronics company and a radar that can detect a wide range: Ka, K, X, and so on.

4. Try and get a radar detection unit that has a minimum of 100db. Ideally a unit with a memory function is desirable.The more sensitive a radar unit is the more beneficial it will be.

5. Look for a radar unit with a clear display that can be seen at night. Find one that has an adjustable volume as well as mute option.

6. Ask for a long range detector with high sensitivity.

7. Find out what the technical specifications are as well as the pros and cons of the radar detector.

8. Try and get a radar detector model that has a city/ highway mode. This will limit false alarms greatly.

9. Look for radar detectors with extra features like Vg-2 Alert and Vg-2 Non-detection. These features are valuable in states where using radar detectors is illegal.

10. Ask whether the detector has a voice feature this will ensure that the driver is not disturbed.

Radar detectors retail between USD 100-200 . choose a well known brand like BEL, Escort, K40, or Valentine One. They manufacture radar detectors using updated technologies and take market competition seriously.

Radar detectors can be bought retail or online. Online sites sell the best radar detectors at the most affordable rates. You can mount radar detector on the windshield, dash, or visor. If you want a radar detector custom mounted you will have to spend over a 1000 dollars. Experts recommend an easy to remove mounting system so that you can use the same radar detector in different cars.

Take the advice of experts on the best detector to buy and its placement. Electronics are being constantly upgraded so find out aspects like the frequency in your area and the kind of speed detectors that are in use by the police before making a purchase.

Before you invest in a radar detector find out what the laws in your state are.

by: Timothy Rudon

10 Benefits Of Defensive Driving You Probably Didn't Know

2008-03-10T21:56:00.000-07:00

Defensive driving teaches safe driving techniques to drivers. At defensive driving classes students learn to overcome mistakes in driving techniques, learn to improve their driving skills; learn to make informed decisions and to anticipate situations while driving.

Defensive driving classes have been set up in every state by the government and police departments to make the world a safer place to live in. The need for speed can kill, it is important to teach driver discipline and safety rules. Defensive driving aims to reduce the risk of driving. Drivers must instinctively anticipate dangerous situations and avoid risks while driving vehicles in normal as well as adverse conditions. Defensive driving courses cover aspects like: emergency care, principles of safety, control of fear and emotions, on the spot decision making, quick reactions, fear, and so on.

More than 50,000 people in the US loose their lives due to road accidents. Accidents can be prevented by following simple rules. There are websites online that teach the rules that can help save lives. See http://www.roadtripamerica.com/DefensiveDriving/Drive-Safe-With-Uncle-Bob.htm .

The benefits of defensive driving classes are many and vary with each state.

1. Most states offer as incentive a reduction of points on your driver’s license following a driving violation ticket and offer the additional incentive of not increasing insurance rates.

2. In some states a defensive driving course would get at least 10% reduction is insurance rates for a period of 3-5 years. This being a considerable saving.

3. A defensive driving course will teach safe and accident free driving techniques.

4. The course will teach protection techniques and how to handle road rage and speeding.

5. The defensive driving course will teach safe driving techniques in bad weather and adverse conditions. The course will hone skills in highway driving, night driving, and extreme weather driving.

6. The course will inculcate critical safety issues and teach emergency action too.

7. By taking a defensive driving course you will not have to appear in court.

8. The driving violation charges will be dismissed and a fine will not be assessed.

9. Defensive driving classes create responsible citizens which mean children and families will remain protected.

10. Most important the defensive driving classes will improve driving skills, reiterate driving laws and rules and make better drivers of people.

A defensive driving class can even be taken virtually. States have set up defensive driving classes both online and offline to create a safe environment for citizens. Defensive driving teaches people to be responsible drivers and take all necessary precautions when seated behind the wheel of a car. It protects not just the driver but pedestrians, animals, and fellow commuters. It makes the roads safer.

Defensive driving saves lives.

by: Timothy Rudon