Wading through the Murky Waters of Montana Water Right Adjudication

Beaverhead River, Montana

Beaverhead River, Montana

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.

WC-GenInfo

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.

WC-LocalRules

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.

WC-BasinStatus

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.

WC-BasinMapWhat 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.

WC-Beaverhead

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.

WC-Notice-Index

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.

WC-JBarLWC-signif-case-searchNow 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.

WC-case-search-info-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.

WC-search-transfer-water-rights

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.

WC-2results-case-search

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).

WC-summary-decision-search-resultThe 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.

WC-detail-summary-of-decision

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

 

 

 

 

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ProQuest Congressional: Legislative History … And More!

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 -

pqc-us-capitolHistorically, 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.

pqc-basic-search-1

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.

1-advanced searchLastly, 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 lawLegislative 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.

2-by number search-2

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.

pqc-3590 results list

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.

3-LH 3590

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.

pqc-member-record-serach baucus

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.

pqc-bacus-profile-page

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!).

4-demographic searchIt 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.

pqc-demographics results

Saving the Best for Last — Comic Relief via Committee Search

pqc-colbert-photopinLet’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).

pqc-committee-search-colbertThe 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 
 
 

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Where There’s a Will, There’s a Clause

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 Murphys-Mariayour 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.  Murphys-vol5You 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 Murphys-musical-compositionsclause.  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[3][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 Murphys-royaltiesMurphy’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.[3][c][i]-1.

You voice to Bill that the term “copyright” keeps popping up in the searches.  Bill catches Murphys-copyrightsyour 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[3][c[]i]-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 askMurphys-IP 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.

Murphys-Index-references-are-to“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 Murphys-set-wide-TOCin front of Bill because you remember that  Murphy’s has a set-wide Table of Contents located at the beginning of Volume 1.  You Murphys-vol2show 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 Murphys-sec-5.04to 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.  Murphys-Copyright-ActAnother 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[3][c][i[]-1, “Bequest of Copyrights and Royalties.”  Bill also looks at form 5.05[3][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.

Murphys-formsIt looks like the first one might just work.  Bill then jots down 5.05[3][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
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The Budding Insurance Lawyer’s “Must Have” — Miller’s Standard Insurance Policies Annotated

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 beenaccident-car-bike-person 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.    1- Miller's Volume CollectionWithin 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.

2- Miller's Volume 1Using the Form Approach to Locate Case Annotations

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).

3 - Miller's Form PolicyAccording to the entry for “bD,”  “bodily injury” means “bodily harm, sickness or disease, including death that results.”  You’ll use “bD” to locate case annotations related to this definition.

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. 

4 - Miller's IndexBut 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.

Millers-index-pap-a1a1Finding Montana Case Annotations

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.

5 - Miller's Case AnnotationsIt 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
 
 
 
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Workers’ Compensation … Road to Recovery

photo: freedigitalphotos.net

photo: freedigitalphotos.net

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?

pp-woman-on-ladder

photo: sillydog via photopin cc

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)

_________________________________________________________________

WC-sitemap-tips-navigating__________________________________________________________________

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 WC-self-help-guide-frontpageSelf-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.

WC-compensation-chart-2

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)

WC-court-forms

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?

WC-topic-search-indexOne 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).

WC-search-options

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)

WC-search-results-page______________________________________________________________

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)

WC-deadlines-dates

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. 
 
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EDGAR: It’s Not that Guy Whispering Stock Tips …

search-edgar-promoEDGAR is a free public database of corporate information collected and maintained by the U.S. Securities and Exchange Commission.  Since 1996 all public domestic companies have been required to submit filings on EDGAR and in 2002 all foreign entities were required to submit electronic filings to the EDGAR system.  Currently, there are over 20 million documents available through EDGAR.

Today EDGAR is primarily all electronic file cabinets of filing documents submitted by companies as required by various statutes and regulations.  In an effort to make the data from filed forms more usable, the SEC is currently updating EDGAR to use “interactive data,” which allows users to view and download the actual data from the filings rather than just a copy of the filing.  Most information on EDGAR is about public companies and mutual funds.

You might be surprised to know that there are hundreds of filers in Montana.  Some Montana filers include large publicly traded companies like Glacier Bancorp sharing information with investors, former governor Brian Schweitzer disclosing stock options from Stillwater Mining, and local Missoula business Montgomery Distillery detailing a small private investment offering.

The Available Information

There are many uses for the information found on EDGAR and while much of it may be available from third-party or even news organizations, searching EDGAR directly lets you get the news straight from the horse’s mouth so to speak.  You might search EDGAR if you are interested in investing in a public company or mutual fund or perhaps you are assisting a client with estate planning and need information on some of their investments.

The primary types of information found on EDGAR include disclosure of financial information, executive compensation, insider transactions, shareholder meetings, initial public offerings, and bankruptcies.  Companies submit this information to EDGAR through the use of a variety of forms, many identified by an array of numbers and letters, such as 10-Q and 14-A.  Below are short explanations of some of the most common forms accessed by investors on EDGAR.

Financial information forms include financial statements, earnings announcements, and registration statements for selling investment securities.  Three common financial forms you’ll come across are:

  • Form 10-Q:  Unaudited quarterly financial statements
  • Form 10-K:  Audited annual financial statements
  • Form 8-K:  Current information provided between Form 10-Q filings, including earnings announcements.

The officers and directors of a company and any beneficial owners of more than 10% of any class of a company’s equity securities must file a statement of ownership regarding those securities.  The specific forms they file are:

  • Form 3:  Initial statement of beneficial ownership
  • Form 4:  Statement of changes in beneficial ownership
  • Form 5:  Annual statement of beneficial ownership.

HELP!  10K, 10Q, 8K, S1!  Sorting through Form Soup

There are many more types of forms that companies are required to file besides those few listed above.  You might be thinking — I thought a 10K was a racing distance and how does anybody know where to find some actual information and not just a form!  The good news is that there are many helpful lists, links, and websites that can help you sort out the Form Soup.  A few are listed below:

SEC Guide to Researching Public Companies through EDGAR.  Not only does this guide contain information about EDGAR, search tips, and FAQs, but it also breaks down types of information you may be searching for (such as insider transactions or initial public offerings).  In addition, it tells you which forms contain that information.  I recommend bookmarking or opening a new tab for using this guide, because it contains lots of hyperlinks that can led you to more about specific forms, reading financial statements, and the rules and regulations behind all the information.

SEC Forms List.  As you gain more familiarity with the types of forms companies must file this list can be a helpful resource.  It lists all the forms companies may be required to file on EDGAR.  Also, links are provided to blank versions of the forms that include instructions for completing each form.  Because certain company filings can be hundreds of pages, having the blank form may help you determine what section of the form contains the specific information of interest to you.

Investopedia.  This is a free financial encyclopedia that not only can help explain SEC forms, but also has definitions for terms of art you may encounter while reviewing information on EDGAR or even this blog post!

Search Tips

As with all electronic searches, there are some limitations to watch for.  When conducting a company search on EDGAR, you should use the full name of the company rather than its common name.  For example, searching for IBM (a common name) won’t get you IBM.  But using the full name, International Business Machines, will pull up filings for IBM.  Also, you may need to try searches with and without punctuation that may be part of a company’s name.  Finally, EDGAR uses “Corp” for corporation and “inc” for incorporation.

When you have pulled up a list of a company’s filings, the default listing is chronological, with the most recent filing first.  Also note that in cases where a company amends a filing, the original filing is not pulled off the system.  The amended filing is added and “/A” is added to the filing number.  For instance, a listing for “10-K/A” is a Form 10-K audited annual financial statement that has been amended.  Thus, always check to see whether the filings you are relying on have been amended.

Let’s Actually SEARCH

Now that you know that EDGAR is not a guy whispering stock tips, let’s walk through a company search.  Perhaps you’re interested in investing in a Montana company, so let’s go check out the financial statements for Glacier Bank.

From the SEC Homepage the easiest way to access EDGAR is to click on “Company Filings” at the top right of the page.  See the figure below.

Screen Shot-SECHomepage

Once you’ve reached the company filings search page, you can conduct a basic search or an advanced search.  Click on “More Options” to bring up the advanced search features.  In addition to accessing the company search functions from this page, you can also link to some of the helpful SEC guides on using EDGAR and navigating Form Soup.  See the figure below.

Screen Shot-Search-Guides-FilingTypes-Help

Since I need to enter a company’s full name for my search, I input Glacier Bancorp rather than Glacier Bank to make sure I get closer to my targeted result.  My search results in two “hits.”  I’m interested in the Montana company so I select the first result by clicking on the highlighted red number under the CIK (Central Index Key) column on the left.  See below.

Screen Shot-results-search-GlacierBancorpAfter selecting the first result, the page that comes up provides a list of all the filings Glacier Bancorp has made, with the most recent filing listed first.  In the figure below, notice that you can filter your results to only look for certain filing types, by date, and can choose to include or exclude reports on director and officer ownership.  Because I want to search for financial statements to evaluate the company’s health for a possible investment, I’m going to select the most recent 10-Q (unaudited quarterly financial statements).  Also note that I have the option to view results in either “Documents”” or “Interactive Data” format.

Screen Shot-filings-GlacierBancorp

First, let’s look at the document view format to examine our information, beginning by selecting the 10-Q filed on November 8, 2013.  The figure below shows you all the documents that makeup the parts of the 10-Q filings.  There is the Form 10-Q itself and the CEO and CFO certifications that verify the information in the report is accurate.

Screen Shot-10-Q results-GlacierBancorp

Next, let’s take a look at the Form 10-Q.  The document that comes up is a copy of the form as it was filed with the SEC.  Click on this link to look at Glacier Bancorp’s 10-Q in its entirety, complete with a linked table of contents to assist you in navigating this 62-page filing.

How does the “Interactive Data” format view compare with the “Document” view?  You can access the “Interactive Data” view from either the search results page or from the Form 10-Q page as shown and noted in the figure above.  Once you select “Interactive Data” view, the next screen looks like the figure below.

Screen Shot-InteractiveData-GlacierBancorp

Once here, use the yellow box to view all the different types of information available.  You can print the information or, even better, download it into an Excel spreadsheet where you can format the data to calculate various financial ratios, create charts tracking company revenues, or format the data in a variety of ways useful to your particular situation.

Whew!  With over 20 million company filings made on all kinds of forms, our search has only just touched the tip of the iceberg when it comes to EDGAR.  Go explore — it’s free!

Authored by Amanda Henthorne, 3L, University of Montana School of Law.  Prior to Law School Amanda spent several years working for the SEC and has a close familiarity with EDGAR, the topic of her law resource review.
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What to Write About

question markYou have to write a paper and so far you’ve gotten as far as “what should I write about?”  It’s still the beginning of the semester, so you’re okay, but you need to find a topic soon.  If you’re still stuck on the first step, here are a few hints.

First, think about your paper as more than an assignment.  True, you wouldn’t be writing it if it weren’t an assignment and you will be receiving a grade for work, but more than that, you have the opportunity to add important ideas to the body of legal discourse.  You should be looking for a topic that is novel — you shouldn’t just be summarizing what everyone else has already said but pick a topic that you can say something new about.

Regardless of the topic you choose, you will learn something about the law you didn’t know before and think about the law in a way you never contemplated — your professor knows this; it’s why you were assigned the paper in the first place.  This paper will add something to how you practice law.

Second, write about something that really interests you.  Before you commit to a topic, think about it for a little while, discuss it with your classmates and friends.  If you find yourself getting excited when you talk about it, it’s probably a good topic.  On the other hand, if your mind starts to wander as soon as you sit down to research or you come up with a series of excuses not to start your research, consider finding a new topic, one that sparks your interest more than any of those excuses.

Good advice, but still, where do you find that magic topic?  Start with what you know.  You did something before you came to law school — had a job, a career, studied a subject other than law.  You have hobbies and interests.  For example, you’re an artist — think about intellectual property; you’re a scientist — how do courts treat scientific evidence; an athlete — international sports law.

Talk to your professors, either the one who assigned the paper or one who teaches a subject you’re interested in.  They will know what’s going on in their areas of law, where the controversies are and what’s being discussed on the listservs and blogs.  They can help you take a germ of an idea and turn it into a paper topic, or narrow a broad topic into a concise thesis.

What’s going on in town?  In the state?  In the region?  Read or watch the news.  What makes you yell at the television or puzzle at how something will be resolved?  There are plenty of news stories that are directly legal and plenty of others with legal aspects.

Congress, your state legislature, and your city council are probably up to something, whether it’s something that you support or something you absolutely disagree with.  Congress, state legislatures and even city councils have websites you can look at to track current legislation.  The Library of Congress’s new Congress.gov website is a great place to start researching federal legislation.  In Montana, the legislature meets only every-other year and won’t be in session again until Jan. 2015, but you can research what they did at their last session (and other previous sessions) on the Montana Legislature website.  Legislative hearings are a great way to understand the multiple sides of an issue — likely there will be at least one side you agree with and one that drives you nuts.

See what lawyers are talking about.  If you work at a law firm, ask the lawyers there for an idea — chances are, there are unanswered questions they have been considering.  The American Bar Association sections all have websites with various resources that might make you start thinking about an issue.

If you’re still baffled, peruse legal news and current awareness sources.  Here are a few:

And if after all that you still don’t know what to write about, go visit with your librarian.  We have new books, newsletters, journals, databases, all of which are full of interesting legal issues and controversies.

Selecting a topic and formulating a thesis is part of the writing process; instead of being frustrated by it, think about what you’re learning just by digging into the law.

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