“The hardest thing in the world to understand is the income tax.” — Albert Einstein
It is generally accepted that the subject of taxation can be difficult to grasp. Luckily, practical resources are available to help individuals better understand the rules and their interpretation. One of the many research databases the Law Library provides as a resource for visitors, students, and faculty is the Tax Practice Series, part of the BNA Premier subscription. The site provides an array of useful materials to aid in researching questions related to tax.
Access the Tax Practice Series database from the Law Library website. Click on Law Library Databases and then select BNA Premier. From the BNA Premier homepage, scroll to the Tax category and select Tax Practice Series. As you can see below, the Tax Practice Series main page is divided into several informational sections related to common tax research needs — Tax Forms, Expert Analysis, Practice Tools, and Source Documents. You also have the option to search Indexes. (Click image to enlarge.)
The Tax Form section is useful if you need to find a specific IRS form. Although the IRS also offers these forms to the public, the Tax Practice Series offers an interactive function that allows you to input information directly into the form and computer calculations based on the provided information.
Another convenient tool on the main page is the “Go To Document By Citation.” Here you can choose to select a source to search (e.g., Internal Revenue Code) using the drop down menu. It’s important to type in the exact citation for the document you wish to locate. For instance, if I want to find the treasury regulations for § 262 (relating to personal, living, and family expenses), I need to know the starting cite is 1.262-1. Of course for those advanced enough to know that the Regs are filled with dashes and dots, this isn’t a problem. But many of us are used to search engines that recognize what we are looking for — even when we don’t state it exactly. However, one solution, if you aren’t clear about the correct citation format, is to click on “Citation Formats” just below the search box (see below). From here you can obtain citation examples for the individual tax collections.
Now the reason I was looking into § 262 in the first place is because I have a question about business related deductions. During a recent conversation with a friend, who happens to be a yoga instructor and also works at a store that sells fancy yoga gear, I learned that she plans to deduct the expense of the clothes she buys from the store. She believes she can deduct this expense because she uses these clothes in her business as a yoga teacher. In the back of my mind I recalled my tax professor telling our tax class that this is a type of deduction that is not allowed because these clothes are suitable for everyday wear — unlike say, police uniforms, which are not, and thus may be deducted. If my friend was my client — or if this situation happened to come up in my practice as a lawyer — I would need to be sure about my answer. I decide to use the Tax Practice Series database as a resource to research how I would answer this question.
I begin by looking under “Expert Analysis, which lists common tax topics. Based on my question, I opt to click on “Deductions.” The page that opens contains a long list of topics related to deductions.
To view the material, I like to use the “split-screen” option (instead of the default full -screen option). The split-screen allows me to easily navigate the sections while also viewing the content. I scroll down the list of sections on deductions to ¶ 2810, which discusses personal, living, and family expenses, and expand the section (see below; click image to enlarge).
By the way, don’t be confused by the ¶ symbols you see. Most loose leaf style services such as this one, which began as print resources, utilize paragraph symbols to identify sections and parts of documents and have retained it in their online formats.
I expand ¶ 2810 and find concise, plain-language explanations relating to personal expense deductions. The materials include citations to the relevant code sections and regulations, along with important case law interpretations. Although I can’t cite to this specific loose leaf as an authority to the court, and although the section and paragraph numbers don’t correspond with the Internal Revenue Code, the information does lead me to the correct code sections, regulations, tax court decisions, and revenue rulings — all of which I can cite as authority.
After reading through the information, I conclude that my friend is not allowed to deduct her yoga clothing as a business expense. Luxury yoga wear is so commonplace and fashionable that it cannot be considered an ordinary and necessary business expense. Because it can be worn in a non-business context for her own personal wear, she shouldn’t be deducting this cost.
Another handy tool, especially for new attorneys, is the “client letter,” which you can find under Practice Aids at ¶ 2810.100. It provides you with a template that you can use to draft a letter to send to your client and includes all of the relevant information related to personal expense deductions (see below; click image to enlarge). Thus, if my yoga teacher friend was also my client, I could use the client letter as a template for the one I would write and send.
It’s pretty clear that BNA Premier’s Tax Practice Series is great if you have an idea of what you are looking for and are familiar with tax law language. However, if you feel you need assistance conducting a search, consider using either Advanced Search or Guided Search. Both provide template-style searching that helps you locate information easily — great when you are new to tax law research.
For example, to use Guided Search open the template and select a collection to search — say, Tax Practice Series, specifically deductions. Then scroll to the bottom of the screen and enter search terms related to your question. Using my client scenario, entering “work clothing” is one possibility (see below; click image to enlarge). Search results bring up the Tax Practice Series: Deductions. When you expand the section you’ll see that you end up in the same place as I located above.
The advanced search option also leads you to the answers you need, but be prepared to sift through information and navigation tabs before you find what you want. Also, don’t forget the Help button located at the top of the screen for more exhaustive assistance. (Click image to enlarge.)
The site has an old-school feel, but contains valuable information for students, practitioners, and faculty. I wish I had known about this database when I was first taking tax courses because it can be used as a supplemental study aid. Now that I do have a basic understanding of how the database works, I can use it for class, work, and personal use.
Authored by Alana Brown, 3L, University of Montana School of Law
Photo credit: 401(k)(2012) via Flickr creative commons
So you consider yourself a well-informed person, generally aware of current events and politics in Montana. You read the newspaper, check out online articles, follow some blogs, and even check in on the Montana Legislature from time to time. But you have this nagging feeling like you might have the opportunity to do more, to get involved, to become part of the process which hands down the rules and regulations that control some of your everyday experiences. After doing a bit of research, you discover that while the Legislature writes the broad laws, the real grunt work of the daily administration of those laws is performed by various executive agencies usually operating under Departments, such as the Department of Revenue and the Department of Justice. These agencies, acting in both legislative and judicial functions, help implement the laws through rule making and adjudication. As part of that process, the agencies regularly ask for input from interested parties and the public in general. But how do you know what’s being proposed, how and where to comment, and what decisions have been made? The good news is you don’t have to look far for a centralized location to investigate and become involved. Welcome to the Administrative Rules of Montana tab on the Montana Secretary of State Website.
Okay, 5 white tabs and 10 tan tabs — that’s a lot of tabs. Luckily, the first tan tab contains answers to FAQs and is filled with helpful information to assist orienting you to the site. For example, you can learn about relationship between the Administrative Rules of Montana (ARM) and the Montana Administrative Register (MAR), the timetable for adoption of new rules by the various state agencies, and a get an explanation of ARM citations. Be sure you don’t miss the visual guide to the rule adoption process under Resources on the FAQ page (click on image to enlarge).
Feeling confident that you have the general idea of what you’re looking at, you decide it’s time to explore the site and learn what’s happening with these agencies. You start with the white tabs — specifically the ARM and MAR tabs on the left.
Having read the FAQ, you know it makes sense to start with the ARM and MAR tabs because of the relationship between them. You know that the ARM contains all the existing rules and that the MAR is a twice-monthly publication for proposed rules, amendments and other pending agency action that will or won’t become part of the ARM depending on the outcome of their particular processes. Aside from the usual straightforward search functions, which allow you to search by text or by rule, chapter, title, or MCA (Montana Code Annotated) number, one section is worth highlighting. Under the ARM section, click on the circled Go button to the left of “By Department, Chapter, and Rules Table of Contents.”
After opening this link, a useful table of contents appears that contains all the current agency rules organized by Department — helpful if you know the Department name and the type of rule you are looking for, or if you just want to browse a particular Agency. For instance, click on Title 36 (Department of Natural Resources & Conservation) and then on Chapter 36.2 (Procedural Rules). Notice in the screenshot below that you can click on the rule links to view in full text or you can use your browser’s ctrl-F function to search the language of the title of rules. You can even click on the “View as eBook” feature to open a user friendly layout with the same information.
Browse back to the main search page for now. Look under the MAR section. In the screenshot below, note the hyperlinks within the red highlighted section — this is the easiest way to find the newest issue of the MAR. Also, if you want to locate past issues, say to look for proposed rules that may not have been adopted, click the second link, “Archived Issues.”
Go ahead and click on the most recent issue link — 2014#7. As you see below, the MAR is neatly organized into a Notice Section, a Rule Section, an Interpretation Section, and a Special Notice and Table Section. As you scan through and read the summaries observe that some are notices for public hearings while others are notices that an agency has made a proposal to amend or repeal and existing agency rule.
If you click on the hyperlink under the Notice No. column, you can view the actual language of the notice. For example, below is the Notice of Public Hearing regarding amendment of the Montana regulation relating to the maximum pricing and printing standards.
- date and location of the hearing
- information for accommodations of persons with disabilities
- the rule language
- information for submitting written or oral comments
- the agency staff conducting the hearing
- other administrative information and hyperlinks to relevant existing rules or the Montana Code Annotated
Proposed rule change notices follow a similar format. However, a public hearing is not always required. It may happen only under certain conditions as specified in the notice itself, such as request from a certain number of person directly affected by the pending agency action. For an example, click on Notice No. 32-14-245 and look over paragraph 6.
Rule Notices are much more concise and contain the relevant rule numbers, whether or not a public hearing happened, whether comments were received (they aren’t always), and the resulting agency response and action taken regarding the rule.
The Interpretation Section gives you a glimpse into one of the ways agencies act in a judicial function, when they interpret the rules of the Enabling Acts (the initial rules for the agency as written by the Montana Legislature), or the rules they’ve promulgated post agency formation. For instance, in one particular ruling, 38-Declaratory Ruling D2014.1.9, the affected party wanted the term “controlling interest” interpreted a certain way. However, the agency declined to do so and issued its own interpretation. The affected party may apply for judicial review outside the agency, but significant deference is usually given to agency decisions.
That’s the MAR in a nutshell. Browsing back to the main page, the remaining three white tabs are worth mentioning briefly.
- Emergency Rule Notices — contain rules adopted by various agencies without notice to meet some imminent concern, such as closures of rivers or bridges.
- Secretary of State Rule Notices — rules regarding the Secretary of State agency itself.
- Tools for State Agencies — provide executive agencies with links for filing, templates, glossaries, and other information to ensure the rule making process conforms to approved standards.
Although the information above really forms the substance of the Administrative section of the Secretary of State website, some of the tan tabs under Additional Resources, aside from the FAQ tab already discussed, merit brief mention.
- Agency Title Numbers is really just a different way to get to the same place as the search by Department mentioned above — with one less click.
- The Deadlines tab provides the dates by which agencies or interested parties must file in order to get into the next publication of MAR. The deadline is usually 10 days before publication date.
- The Review Committee tab outlines which committees are responsible for viewing various agency actions, making recommendations, interacting with the Montana Legislature, and other monitoring and evaluation functions. For example, the Law and Justice Committee provides these services for the Department of Corrections and the Department of Justice.
- The Board Appointments and Board Vacancies tabs take you to the same place. Click on links by month and year to help keep track of changes in positions with the Boards of the agencies. You can also access a searchable database of appointments and vacancies at the Boards & Councils site — it’s the same information, but presented in a more organized drop down menu format.
This overview should give you enough information to get involved with and become part of the Administrative Rule Making Process in Montana. With just a few clicks you can stay informed of pending public hearings, proposed rule changes, adopted rules, agency judicial decisions, and more. And if you really want to take that next step, you can finding existing or future vacancies in an agency and perhaps begin the process of officially becoming part of the Administrative machine.
Authored by Peter Simon, 2L, University of Montana School of Law.
The Montana Water Use Act, passed in 1973, established a framework and an administrative process by which the state could better account for the amount, ownership, and priority of existing water rights. Montana operates under the Prior Appropriations Doctrine which essentially means the earlier a landowner claims a right, the higher priority the right has over “younger” upstream and downstream rights.
Prior to 1973, there was no formal process in Montana for recording a water right. All a user needed to do was put the water to beneficial use (i.e. irrigating crops or livestock) and they were considered to have claimed the right. Because there were no comprehensive collection of water right records, it was impossible to know how much water was being used in each water basin and whether there was any water left to be appropriated to new users. In response, the Montana Legislature created the Montana Water Court in 1979, assigning it the daunting task of adjudicating over 219,000 pre-1973 water rights. Impressively, the court has only about 57,000 claims left to adjudicate.
The Water Court website provides a lot of background information on water law in Montana, the history of the court, and what it does. You can easily find these resources under the General Information box on the homepage. The Outline of Basic Montana Water Law and the Step-by-Step Guidebook are good places to start.
Water right owners often opt to represent themselves in the adjudication process. So you might notice that a lot of the information provided on the site is geared toward assisting individuals in doing so effectively. The most helpful links to this end are also found in General Information under Representing Yourself. Although the water court follows the same rules and laws of the district courts, it also follows its own set of unique rules which can be found under the Local Rules tab.
As you familiarize yourself with the site, you may notice that some of the links on the home page will send you to the Department of Natural Resources (DNRC) Water Resource Division website. This is because the court is paired with the DNRC in certain apsects of its work. The Water Court has exclusive jurisdiction over determining pre-July 1973 water rights and the DNRC has exclusive jurisdiction over post-July 1973 water rights. Although the courts’ jurisdictions do not overlap, DNRC provides technical assistance to the Water Court. For example, DNRC’s Water Adjudication Bureau assists the Water Court by providing it with a summary report of each of the 85 water basins in the state. It also compiles a handy map which shows the status of adjudication across the state. If you wanted to see what the status of the water right adjudication was in your home basin, you would click on the Basin Status Sheet link on the Water Court home page under Adjudication Information.
This will take you to the DNRC’s Water Adjudication Bureau’s page which displays the water basin map. The information is also displayed in a table just below the map.
What does the status of your basin mean and why might it be important? Think of water adjudication as a kind of accounting. The purpose of the adjudication process is to determine how much water is being used and whose rights are superior to others. Downstream users are increasing their usage and demand of water. But until each basin knows exactly how much water it uses as compared to how much it has, existing right holders cannot effectively defend against demands or calls on water from downstream users. In basins that have final decrees, the total amount of water use is concretely known which makes enforcing rights, settling disputes, and planning for future development possible.
Let’s say you are a cattle rancher in Dillon, MT and you are curious about the status of water rights adjudication in your basin. If you locate Dillon on the Basin Location and Adjudication Map above, you will see that you are located in Basin 41B. Find Basin 41B in the table below the map and click on the basin name, Beaverhead River.
This will take you to the summary page for the Beaverhead River Basin. The summary page will include everything you could ever want to know about the court’s findings in the Beaverhead Basin. The Notice link is a good place to start. The Notice of Entry of Preliminary Decree and Notice of Availability is what the court releases after a preliminary decree is issued. It provides a summary of all the water rights in the basin and provides instructions for reviewing the decree and making objections.
For a detailed breakdown of each water right in the basin, go to the Index Instructions and choose how you want the information organized. Organizing by Owner or Water Right Number (if you happen to know yours) is probably the easiest way to search. This dense document will show all the claimed water rights in the basin and information about each right including the priority date (when the right was claimed by beneficial use), the flow rate (how much water is included in the right), the location and source from which the water is diverted, and the owner of the right. For example, the J Bar L Ranch owns an 1856 water right which entitles them to use 201.96 gallons per minute (GPM) from the Beaverhead River, presumably to irrigate their crops or water their livestock.
Now let’s say that you were less interested in the status of water right adjudication, but you had a research paper due for water law on the topic of water right transfer in the State of Montana. The court has a useful case search function that you will find under General Information by clicking on Significant Case Search.
This will take you to a helpful instruction page. When you are ready to commence a search, click the Search button at the bottom of the page.
Although the search page is extensive, don’t feel pressured to fill in all the boxes. You may find that if you narrow your search too much, you will come up empty handed. Remember that this is not a massive database like the ones you may be used to, so start broad and refine as needed. All that the search page requires is that you fill in at least one box.
If you are doing a broad topic search, it is a good idea to start by looking through the KeyWords drop down menu. The topic of your research paper just so happens to be an option, so let’s choose Transfer of Water Rights and see what we get.
This is why you want to keep it broad; and remember, the site does not provide all cases ever decided by the Water Court, it only provides the significant cases. If you click on the case you would like to read, you then have the option of looking at the case Summary or the actual Decision. (Note: some cases will only have a summary or the decision, not both).
The Summary provides a brief synopsis of the case and a list of all applicable statutes, case law, and other authority used to decide the case. The summaries are a great resource and a really nice way to start researching particular topics in an area of water law.
This overview touches on just a few of the many useful features and resources available at the Montana Water Court website. Don’t fear the seemingly murky waters of Montana water law, jump on int! The Montana Water Court is here to help.Authored by Katelyn Hepburn, 2L, University of Montana School of Law. Katelyn is interested in environmental and natural resource law. She used this blog post as an opportunity to learn more about the Montana Water Court as she will be interning there this summer.
Photo Beaverhead River: Stephen J. Conn via photopin.com cc. Remaining photos: courtesy of the Montana Water Court and The DNRC’s Water Resources Division
If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?
- Thomas Jefferson -
Historically, ProQuest Congressional (PQC) was, and still is, a great resource for Congressional information that you won’t find just by reading the text of the law. But PQC is more than just a collection of Congressional publications. It also provides information on members of Congress, Congressional committees, regulations, and political news. In this post we’ll first review how to use PQC to obtain legislative history documents. After that we’ll delve into PQC’s “Members and Committees” feature to illustrate how PQC has incorporated additional features you’ll find both useful and fun.
Searching for Legislative History Using Congressional Publications Search
One way to find out the legislative intent behind a law, or what policies drive the existence of a law, is to research the law’s legislative history. Fortunately, there is a paper trail that links a bill with its history, which provides us with a record of a bill’s trip through Congress right on up to the day the President signs it into law (or, on occasion, vetoes it). PQC coverage for two of the most important legislative history documents (hearings and committee reports) goes back to 1789. For a comprehensive chart listing coverage for everything in PQC, click on Content Coverage Chart on the home page.
PQC provides three search options for Congressional Publications — basic, advanced, and by number. Use the basic search (see below) to perform keyword searches that retrieve documents (often in full-text) where your keyword represents a main theme. If you can’t think of an appropriate keyword to use, click on Index Terms just below the search box. From the window that opens, you have the option to browse for potential keywords by subject, issuing source, or popular name. To enter more than one keyword/phrase, click on the plus sign in the box, to add an additional row for your search. Adding a row also gives you the option to use the Boolean connectors AND, OR, and NOT.
For more complex keyword searches and to refine your search using fields (such as by subject or Congressional source), use advanced search (see below). As with your basic search, you can add additional lines and utilize Boolean connectors if you wish. Notice too that you can narrow your search to document type under the “Limit to” box. Don’t know what some of these categories are? No problem. Click on the yellow “i” to view detailed information about each category. By the way, if you get stuck or lost — or even just curious — click on PQC’s Help at the top right of the screen. Expand the table of contents, consult the index, or search across Help to locate the information you need.
Lastly, you can search by number. Use this search form to retrieve Congressional publications when you know the citation of a document or a related bill or law. Legislative citations include: the bill number, public law number, Statutes at Large citation, chapter, public resolution, or U.S. Code Section! If you don’t have any of these citations, sometimes a Google search can help you out. For instance, if you’d like to see more about the “Obamacare” law, a search for “Obamacare bill number” will probably retrieve what you need. (Hint: it’s H.R. 3590 and was passed in the 111th Congress). Enter the bill number like the example below.
This is great! Look at the information that comes up on your search results page (see below). And the first item is a legislative history of the Obamacare law — more formally known as the Patient Protection and Affordable Care Act. On the right you have options to narrow the results list, but for now let’s open the legislative history.
As you can see in the screenshot below, the legislative history is divided into a number of document segments (see left column). PQC links the segments to help you move quickly through the legislative history and avoid a lot of scrolling. Keep in mind that in a basic subscription, PQC provides only selected transcripts of hearings and you may have to go elsewhere (such as the House or Senate websites) to obtain them. In addition, some transcripts are never published. You should, however, be able to obtain all committee reports.
With “Obamacare” we got lucky and found a legislative history already compiled for us. If your search doesn’t bring up a compiled legislative history, you can still search for Congressional documents related to a bill and create your own. That’s legislative history on PQC in a nutshell!
Additional Cool Features on PQC — Members & Committees
PQC isn’t just legislative history. There is much more. PQC has additional features of interest, such as Members and Committees, which holds a wealth of information on members of Congress. You can find everything from the names and contact information for key staff members to campaign financial information. PQC has a detailed profile for every member of Congress. Think of it as the Facebook page for those in Congress — but one they don’t get to manage!
Not only that, but you can easily round up a list of members who share an attribute and can set the parameters of that group. Further, you can locate specific information on the various Congressional committees. PQC’s Members and Committees has three categories: Member Records, Demographics, and Committees. Let’s begin with Member Records.
Want the Down Low? Search Member Records
What if you have a member of Congress in mind and want some really detailed information about that Congressman? I’m sure most of you reading this post are familiar with Montana’s longtime Senator, Max Baucus. I bet PQC has some stats and information on him that you might not know about. Here’s how you can locate that information.
Go to PQC’s home page and select Members and Committees and then Member Records. Enter his first name and last name in the search boxes (see below). If you aren’t sure of the spelling of a Congressman’s name, click on “Look Up a Member” and browse the list. As we’ve seen before with PQC, there are additional search refinements that we can make. For now, we’ll just search by name.
Our search returns over 11,700 hits! Fortunately, there are several ways to narrow your results, including the “search within results” at the top of the screen and the filters and narrow by options on the right side of the screen. What to do? If you want to view his composite profile, you can click on the first document. Keep in mind that this document references one particular session of Congress — the 107th. If you want a different time period, use the date or Congress filters on the right. In the screenshot below you can get an idea of the information that come with a composite profile. Notice the document segments on the left, similar to what we found with our legislative history document above. And like that document, you can use these segments to move easily from one part of the profile to another.
Maybe you’d like to quote the Senator from a speech he made. On the right, select “Legislative Career-Floor Statements.” From the list that appears, you might be interested in a floor speech he gave in support of a 2002 bill designed to clean up “brownfield sites” — areas that need restoration before they can be used again, most often because they contain high levels of commercially made pollutants. Or perhaps you’re interested in his financial disclosures. Again, look to the right, but this time select “Campaign & Finance Information–Financial Disclosures.” Next, select “Financial Disclosure Statements 2002.” You can browse the information to trace, for example, stocks he purchased and sold in 2002.
If You’ve Ever Wondered — Demographics Search
Have you ever wondered how many members of Congress have a law degree? Or how many who have a law degree graduated from Harvard? This is where a demographics search comes in handy. As you can see below, you can search a variety of demographic categories. Let’s see how many members of Congress do in fact have a law degree from Harvard, a school second only to Yale (notwithstanding the University of Montana School of Law, of course!).
It looks like 29 Congressmen have a law degree from Harvard. Notice in the screen shot below that you can narrow your results further using the filters on the right. A quick glance already tells you that 22 of the 29 Harvard law grads are Democrats and 7 are Republicans. Hmm.
Saving the Best for Last — Comic Relief via Committee Search
Let’s wrap us with a Committee Search that provides a bit of comic relief. Did you know that in September 2010 the satirist Stephen Colbert (silent “t”), host of Comedy Central’s “Colbert Report” testified in front of the House Judiciary committee’s subcommittee on Immigration — in character? Wouldn’t it be fun to get a transcript of that? You can use PQC’s Committee Search to track it down.
To use Committee Search to locate Colbert’s testimony, you need the committee name. We happen to know it’s the Judiciary Committee. Also enter Colbert’s name in the keyword box. (See below).
The search returns exactly one document and it’s the one we want. To locate hearing transcript information, click on the document link and look for Full-Text. Unfortunately, the transcript to this hearing is not available! As mentioned earlier, PQC only offers transcripts of selected hearings and sadly Colbert’s in not one of them. Not to worry, however. Here’s a link to a YouTube video of his 5-1/2 minutes of Congressional testimony. It’s better than reading it. Enjoy!Authored by Drew Dickerson, 2L at the University of Montana School of Law. Drew has a background career working in political campaigns. He is currently interning at Skjelset and Geer in Missoula and plans to practice generally in civil litigation after graduation. Photo credits: U.S. Capitol & Stephen Colbert: wallyg via photopin.com cc
Imagine yourself sitting in your law office working on a motion to dismiss for lack of subject matter jurisdiction when all of a sudden your junior partner, Bill Richardson, interrupts you. He pardons himself for interrupting you and conveys to you he is in dire need of your help. Turns out, Bill is having trouble constructing a particular will clause for your client María Salazar that you tasked him to prepare. Now, María is a famous ukulele legend from Glasgow, Montana and became internationally famous for her 1983 hit song “MisSUITla & TIE,” which made her a tidy fortune. Bill further tells you that he is unsure about creating a bequest clause that will leave the copyrights and royalties for “MisSUITla & TIE” to María’s favorite daughter, Penélope. You look Bill square in the eyes and say, “Fortunately for you, I happen to have the 5-volume set of Murphy’s Will Clauses: Annotations & Forms with Tax Effects (“Murphy’s”) on my shelf right over there.”
You can tell Bill’s mind is racing just by the expression on his face and you reassure him that everything is going to be all right. You proceed to inform Bill that Murphy’s contains over 1,400 will and trust clauses. It is a bi-annually updated legal resource, which includes guidelines, suggestions, checklists, annotated law of all 50 states, and a selection of sample wills and trusts. Like other loose-leaf sets geared to practicing lawyers, Murphy’s collects all you need on will and trust clauses in just one place so you don’t have to consult a ton of different sources. It’s like a one-stop shop.
Bill starts getting excited about using Murphy’s, but admits that he has no clue on how to use it. Without skipping a beat, you raise Bill’s spirit by letting him know that you have time to show him how to use Murphy’s. You let him know that you like the print version because you can flip back and forth among sections, tab pages, jump around volumes or skim through the table of contents for broad topics. Furthermore, you inform Bill that if he is away from the office or dislikes print resources that he can use the online version of Murphy’s on your office’s Lexis Advance subscription, which has the same information and useful finding aids.
Now that you and Bill are on the same page, you place Murphy’s Volume 5 in front of Bill. You proceed to tell Bill that from your own past experiences, Murphy’s Index is a great starting point, which is why you pulled out Volume 5 first because that is where Murphy’s Index is located.
With Murphy’s Index in hand, you and Bill start to think about what terms or phrases to search for to help you find a suitable copyrights and royalties will clause. Music or some similar variation might work. A search under M leads you to “Musical Compositions.” Perfect. María’s song is a musical composition. Below “Musical Compositions” is a sub-entry, “Copyrights, bequests of.” Even better. María wants to bequest the copyright to her composition to Penélope. Bill jots down the entry reference — FM 5.50[c][i]-2.
Bill is feeling more comfortable now and reminds you that María also wants to gift royalties to her hit song to Penélope, so he takes the reins and searches for “Royalties” in Murphy’s Index. You’re happy that Bill is getting the hang of using Murphy’s Index and Bill is happy to see an entry for “Royalties” that includes a sub-entry for “Copyrights and royalties, disposition of.” The citation reference looks very familiar — Bill realizes it’s almost exactly the same as the one he jotted down under Musical Compositions. He makes a note of FM 5.5.[c][i]-1.
You voice to Bill that the term “copyright” keeps popping up in the searches. Bill catches your drift and decides to check Murphy’s Index for “Copyright.” Sure enough, there is a topical entry for “Copyrights” and a sub-entry for “Musical Compositions, gift of copyrights in.” Bill can’t help but smile because once again he sees the same citation reference you two found under “Musical Compositions” — FM 5.5[ci]-2. You tell Bill that you like it when Murphy’s Index refers you to the same form more than once.
Although you two have found references to the same form in a couple of places, you ask Bill, “Do you know of any other phrase to check for?” Bill replies, “I do. Intellectual Property because María’s hit song is the result of musical creativity, which she has the copyright to.” So Bill, still in charge of the Murphy’s Index, searches and finds the entry for “Intellectual Property” and sees two sub-entries on point. Both entries advise you to “see Copyright” and one addresses “specific devises of copyright” — exactly what you two are looking for in María’s case.
As you and Bill review the research notes, you realize you don’t remember how to interpret Murphy’s citation references. You go back to the beginning of the Index and show Bill that it reminds you that references are to section numbers and that FM precedes references to forms.
“That’s all well and good, but what exactly do those numbers and letters refer to?” asks Bill. Then your memory clicks in. You educate Bill that the first 5 in 5.05 refers to Chapter 5. The remaining numbers and letters refer to the specific section in Chapter 5 where you’ll find the either the information or form you want. The term “form” is a bit of a misnomer, you assert to Bill. You explain that forms are really examples or templates of a clause that you can insert into a will.
But time is of the essence you declare, so you instruct Bill that the next step is figuring out which volume contains Chapter 5. You then push Volume 5 to the side and place Volume 1 in front of Bill because you remember that Murphy’s has a set-wide Table of Contents located at the beginning of Volume 1. You show Bill that a quick scan informs him that Chapter 5 is in Volume 2.
It’s all coming back to you. “Eureka!” you cry. A startled Bill inquires why you are crying for joy. You then compose yourself and inform Bill that like all other chapters, Chapter 5 has its own chapter Table of Contents. Furthermore, Murphy’s arranges its chapters with a synopsis of the chapter at the beginning, followed by sections of general information related to chapter topics, and then the forms (examples) are at the end of the chapter. This is what is to be loved about Murphy’s — great index, useful tables of contents, well-organized chapters — making the task of researching and locating a will clause a breeze.
You then tell Bill that it is best to scan the synopsis and look over the general information to get back up to speed. One section in particular that you want to review is section 5.04, which discusses “Devises of Specific Types of Property.” You show Bill that to find section 5.04 easily, it’s most prudent to find it by looking at the top outer page corners for the section number.
You’re glad you remembered to browse through Murphy’s general information and you’re also glad you showed Bill that there really is more to Murphy’s than just a clause example. Another reason why you are glad that you remembered to browse through Murphy’s general information is because you’d forgotten the Copyright Act of 1976, which governs copyrights created after 1977. Since María’s musical composition was written and performed in 1983 that’s important. You pat yourself on the back for having the wisdom to invest in a legal resource that gathers relevant primary and secondary materials in one place so you don’t have to consult the different sources on a topic — and remember which ones to consult.
You’re feeling pretty good about you and Bill having your memories refreshed about understanding specific devises and copyrights, so now you feel that it’s time to show Bill the home stretch, which is tracking down the form citation references that Bill jotted down earlier.
This time Bill steps in and uses the section references on the top outer page corners to find the first form reference — 5.05[c][i-1, “Bequest of Copyrights and Royalties.” Bill also looks at form 5.05[c][i-2, “Gift of Copyrights in Musical Compositions,” which follows. Now all that is left to do is to review both forms and decide if one of them applies to María’s situation.
It looks like the first one might just work. Bill then jots down 5.05[c][i]-1 and leaves to go to his office in order to finalize the bequest of copyrights and royalties clause before inserting it into María’s will.
On a high now that you just taught your junior partner how to use Murphy’s, you sit down in your king-sized office chair, lean back and think about how simple it was to locate a clause for Marías will when a mnemonic expression for searching Murphy’s pops into your head — I Think Cats Savor Good Food. I for Index, where you should start your search. Then T for Table of Contents, your guide to finding which volume contains your chapter. C, of course, for your pertinent chapter. S for Synopsis — the starting point for your chapter overview. G for General Information, the material that can bring you up-to-date and serve as a checklist so you don’t forget something important. Finally, F for Forms — your ultimate research goal — examples of clauses that you can potentially use for clients with special requests, like María.
Murphy’s Will Clauses: Annotations & Forms with Tax Effects — where there is a will, a clause will surely follow.Authored by Fernando Terrones, 3L, University of Montana School of Law. Fernando is interested in contract law. He currently participates in the Montana Legal Services Association Clinic, where he assists low-income taxpayers. Upon graduation from law school he plans to return to his home state of Texas. Photo credit: gonzaleznovoa via photopin.com cc
It almost goes without saying, but insurance policies can be difficult to read and understand — even for the sophisticated business professional. Even if you don’t intend to practice insurance law, insurance policies are a large part of everyone’s personal and business activities. So naturally, regardless of your intended area of practice, you’ll likely find yourself working with these challenging policies at some time or another. When that time comes, you may feel you’re faced with a daunting task.
Imagine if you will — Don Driver walks through your door and informs you that he has been involved in a car accident. While driving the other day, he accidentally struck a man on a bicycle and seriously injured him. Now, the injured-man’s wife, Mary Brown, a witness to the accident, seeks compensation. Mary asserts that she is entitled to the money because Don’s operation of his vehicle caused her emotional distress, which she claims is a form of “bodily injury.” Don wants to know if Mary’s claim for compensation is covered under his personal auto liability insurance.
First, you want to make an initial assessment of Don’s case. Of course, it will be challenging for you to balance Don’s needs (in particular, determining how courts have interpreted any policy language, such as “bodily injury”) with the cost that it will take to make this assessment. Time is money. That’s where Miller’s comes in. It saves you time — and Don money.
So What Is Miller’s Standard Insurance Policies Annotated (aka “Miller’s”)?
At first glance, Miller’s in print can look pretty intimidating. It is a multi-volume loose-leaf legal resource published by West. See all 13 very large print volumes below. Within this massive set of 13 volumes are more than 180,000 federal and state case annotations going back to 1978. Miller’s has an annotation for every policy provision interpreted by a judicial decision and identifies reported decisions that interpret nonstandard policy language. Each annotation indicates who prevailed on the coverage provision — whether the insured, insurer, or a third party. In addition, Miller’s contains more than 100 property and casualty insurance policies and over 1,000 endorsements. These forms are divided into Personal Lines (e.g., personal auto, homeowners, personal umbrella liability) and Commercial Lines (e.g., commercial auto, general liability, commercial property and more).
Yes, it’s a vast amount of information at your fingertips. How will you ever figure out where anything is? Relax, there is good news! Luckily for you, once you understand the general concept of how to search through Miller’s, you’ll be locating policies, endorsements, and case annotations in no time.
There are two approaches to using Millers — the form approach and the index approach.
Using the Form Approach: If you have a specific form (policy or endorsement) and coverage provision in mind and want to find cases interpreting the provision, use the form approach.
Using the Index Approach: If you want to look at more case annotations on similar provisions in other forms, use the index approach.
Keep in mind that not all insurance cases fit neatly within one coverage provision and using the Index Approach helps you double check for case annotations that may not be readily apparent from using the Form Approach. If you opt for the Form Approach initially, you should check your research using the Index Approach as well — at least until you move up from budding lawyer to blooming lawyer.
Putting Miller’s to Use for Don Driver
Now that you know how to use Miller’s it’s time to put it to use. In order to assess whether Don’s personal auto insurance policy will cover him for Mary’s emotional distress under “bodily injury,” one thing you want to figure out is what “bodily injury” actually means and then how courts have interpreted it. This is where Miller’s creates a great platform for an attorney to begin researching relevant case annotations on the topic.
Begin your research using Volume 1 from the collection. You know Don’s issue involves his personal auto policy. Notice in the photo below that Volume 1 contains both the form policies and endorsements and the Miller’s Index.
To begin, locate the “Personal Auto Forms” tab in Volume 1 and find the Definitions section under the Personal Auto Policy forms (Wonderful! It just happens to be on page 1!). In the photo below, notice two things on this page:
First, there is a form identifier, an acronym identifying the category that your form falls within — in this case, it’s PAP — for personal auto policy. It’s always located on the top left or right of each page.
Second, there is a section identifier, which can consist of a combination of letters or letters and numbers. A little more than half way down the page on the left you can see that “bD” is the section identifier you want — it falls under Definitions and serves as the identifier for the definition of “bodily injury” (see the red square box).
Using the Index Approach to Locate Case Annotations
But — before you run off to locate case annotations using the “bD” section identifier don’t forget — you also want to check Miller’s Index for any other similar provisions in other forms related to the definition of “bodily injury” that might exist. In the photo below, you can see where “bodily injury” first appears in the Index. Also note that “PAP bD” shows up on this list.
But are there any other references to PAP in this Index list that include a different section identifier and thus another place that you can look to find additional case annotations on “bodily injury?” Yes! On the following page (see photo below) there is another reference to PAP and a new section identifier — A1A1. Jot it down.
Now that you have identified sections related to the definition of “bodily injury” (bD and A1A1), you are ready to locate the relevant case annotations from Montana. The case law annotations are located in the remaining volumes of the Miller’s collection (II through XIII) and they appear in the order in which the forms are presented in Volume 1. Thus, Policy Definitions Annotations appear at the beginning of Volume II. In addition, the section identifiers (like bD) run alphabetically throughout the volumes for each form. For instance, Personal Auto Policy forms begin with Oa and end with M4B3e.
Once you are in the correct annotation section (in this case, Policy Definitions Annotations and PAP bD), you’ll see that case annotations are arranged by state in alphabetical order and with most recent year first. Again notice that both your form identifier (PAP) and section identifier (bD) appear in the top left or right corner of the page.
It turns out that there are five case annotations for Montana. Now you just need to read through them to see if any are relevant to Don’s situation regarding the definition of “bodily injury.” For example, you might be interested in Treichel v. State Farm Mutual Auto Insurance, where the Montana Supreme Court held that a woman was entitled to the $25,000 per person coverage limit for emotional distress after she witnessed a man’s vehicle hit a man on a bicycle. Amazing! An annotation totally on point! Now you know that you can tell Don that Mary’s emotional distress claim may potentially be covered under his personal auto policy.
And what about PAP A1A1? The process is the same. You’ll find that section A1A1 falls under a different form — Liability Coverage, which happens to be the next tab after Policy Definitions. Look at the top corner of the pages for your section identifier A1A1. After you’ve found it, check to see whether there are any case annotations for Montana. This time there are eleven. Read through the annotations to see if any address the definition of “bodily injury.” That’s all there is to it. If you find you need more help or clarification, take a look at the User’s Guide located at the front of Volume 1. Miller’s — a great guide to insurance policy terms, phrases, and coverage questions — and – simple enough for any budding insurance lawyer!Authored by Alisa Brechbill, 3L, University of Montana School of Law. Alisa came to law school with a construction background. She first became interested in insurance law through her experience managing her own sustainable construction company. This past fall, Alisa enrolled in an insurance law course to help her apply this area of law in her current internship opportunity at Beal Law Firm, where she enjoys engaging in the practice of business defense and litigation.
Photo credit: stickerhelsinki at photopin.com cc
Whether you have joked at work about making a claim for a paper cut, or have had a serious work injury, most of us know something about workman’s compensation. But did you know that Montana has its own Workers’ Compensation Court? Or that every working person, except an independent contractor is considered an employee under Montana work comp laws? Did you know that Montana has a no-fault system, meaning the employee doesn’t have to prove the employer did something wrong? While the work comp laws have a technical and sometimes confusing burden of proof for most employees, the system is not completely unmanageable for someone who wants to navigate through the process themselves.
Established by statute in 1975, the Montana Workers’ Compensation Court is still relatively new. It was created to provide an efficient and effective system for resolving workers’ comp disputes. You can learn more about the laws the legislature enacted regarding workers’ compensation by viewing the Montana Code online. Workers’ compensation statutes are in Title 39 (Labor), chapter 71.
Alright, I think I have a work comp injury; where can I find more information?
Let’s follow Jane Doe. She recently suffered an on-the-job injury. She was at work standing on a ladder cleaning out a large vat when she fell and broke her leg. Now she needs help pursuing her claim, getting her medical bills paid, and recovering her lost wages.
Jane needs to look at how the Workers’ Compensation Court website can help her start the process of filing a claim. The site offers general information to help Jane get an idea of what the process entails and also provides the forms (in printable format) that she will need to file her claim. Best of all, this information is FREE! One suggestion for Jane: click on the Site Map located at the bottom of the homepage and use it as a table of contents to the website. She might also want to scroll down the site map list to “Navigating Our Website” for useful tips on getting around the site. (see below)
At this point, Jane may be saying to herself, this seems like a lot of work! Am I sure I can even get what I need from work comp? What Jane needs to know is that workers’ compensation is an exclusive remedy. Meaning, if her employer carries work comp insurance (most do), the only way an employee can get their medical bills paid and recover lost wages is by filing a work comp claim.
Now that Jane knows this is her only option, she needs to begin researching her next move. From the Workers’ Comp Court homepage, Jane can see that the court is in Helena. But she doesn’t live in Helena; what can she do? Jane should go to the General Information tab on the homepage menu bar. Here she will find trial dates and deadlines information. Jane can rest easy because the work comp court has statewide jurisdiction and holds regular trial terms in 5 Montana cities: Billings, Great Falls, Helena, Kalispell, and Missoula. These trials are held in each city four times a year. Whew! Jane, resident of Great Falls, is covered!
Another great feature that Jane might be interested in is the “Representing Yourself Self-Help Guide,” located under the General Information tab. Some useful information the guide provides includes: a brief synopsis of the court rules that Jane must abide by, a list of the requirements for filing a petition to seek benefits, and a summary of what will take place during the trial. Now Jane has a more complete idea of what she can expect in work comp court.
Okay, so Jane has read through the Self-Help Guide and is beginning to feel more comfortable with her claim. What other useful information can this website provide? Of course, a big question weighing heavily on Jane’s mind is how much will she be paid? For most injured workers this can be the biggest motivator in getting the process moving. As bills begin to pile up and with no paycheck coming in, disability payments become a necessity. The workers comp court website includes a link to the compensation rates an injured worker may be paid. Jane can locate this link by looking under the Legal Information tab and then selecting Compensation Rates from the drop-down. The rates are broken down by time frame and type of disability (temporary total or permanent partial). Jane was hurt in 2014. Using the table (see below), Jane can determine that the maximum amount she can recover for a temporary total disability is $698.00 per week. The type of disability payment (whether temporary total, temporary partial, permanent total, or permanent partial) will be determined by the court.
Next, Jane may be ready to start filling out her forms. After looking at the self-help section of the website, Jane knows what the court will expect of her. But where might she find the forms she needs? How can she be sure she gets all the forms? Oh right, THIS WEBSITE! Forms in a printable version, ready to go for Jane, are located under the same Legal Information tab where she found the compensation rates. (see below)
Jane never imagined it could be this simple! But she may want to look at some older work comp cases to see how her situation compares. Jane can find these easily by clicking on the Case Law tab. But, Jane thinks, there has to be thousands of cases out there. How will she ever find one that is similar to hers?
One option is for Jane to narrow her search using the Topics Index found on the top right of the workers’ comp court homepage. The index lists various work comp-related issues, such as attorney’s fees, causation, and even injuries like asbestosis. Although Jane may wonder whether she picked too broad of a topic to look into, she needn’t worry because each topic has a subtopic. Clicking on a subtopic takes Jane to a list of case law (prior cases that set the standard for the topic) and statutes (the related laws). Cases are presented in an easy-to-read format and are current through November 2010. For decisions after this date, Jane can look at work comp decisions by year by clicking on the the Case Law tab and then selecting Workers’ Comp Court Decisions from the drop-down. Jane can look at cases by year going back to 1993 up through the current year, and alternatively, she can view cases listed alphabetically.
Jane’s second option is to search by keyword. The search option is tucked away in a couple of spots near the bottom of the website’s homepage (see below) (as well as from the Sitemap’s tips to navigating the website).
Jane can enter, for example, the terms broken and leg into the search box. To receive the maximum number of “hits,” she should enter the terms without quotation marks. This way she’ll receive results that include phrases such as “leg was broken” and “broke his leg” — all which may relevant to Jane. The initial list of results is for all of the Montana Department of Labor and Industry. To narrow results to just the workers’ comp court, Jane will need to click on the link to the court. (see below)
Jane now has her documents drafted. But when should she file them? By clicking on the Calendar and Case Status tab and selecting Annual Trial Calendar from the drop-down, Jane can determine when her petition needs to be filed if she wants her case heard in Great Falls. According to the calendar, it looks like Jane will need to have her petition filed by May 19 with trial set to begin on August 4. (see below)
Simply by using the workers’ comp court website, Jane has obtained the information she needs in order to file a workers’ compensation claim for the on-the-job injury she suffered. Jane is on the fast track to recovery and receiving compensation for her injury!Authored by Brittany Santorno, 3L, University of Montana School of Law. Brittany came to law school with a medical background, including a degree in Exercise Science. She first became interested in workers’ compensation law during her employment at an orthopedic surgeon’s clinic. This past spring Brittany enrolled in a work comp course and hopes to incorporate this area of law in to her future practice.