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divorce attorney

7 Questions to Ask In Your First Meeting With a Divorce Attorney

Choosing a divorce attorney is one of the most important divorce-related decisions you will make. Many people choose an attorney based on personal recommendations from family and friends, but it’s still wise to do your research and ask the right questions when considering who to hire.

Family law is a complex specialty and you want to make sure you are working with someone who is qualified and has the experience needed to handle your case. We’ve put together 7 questions to ask in your first meeting with a divorce attorney so you can be sure that attorney is the right one for you and your case.

Questions to Ask In Your First Meeting With a Divorce Attorney:

1. How long have you been practicing family law, and what aspect of family law do you specialize in?

2. What do you need to know from me?

3. What can I expect the divorce process to be like?

4. What is your retainer up front? What will I be charged for and how much?

5. What can I do to keep the cost of my divorce down?

6. What is your strategy for my case, and how long do you expect it will take to resolve?

7. What should my next steps be after this meeting?

There’s no question that going through divorce is challenging and stressful and taxing. When it comes to finding a divorce attorney you can trust, coming prepared for the first meeting with your divorce attorney will help make the process go more smoothly.

How We Can Help

Are you considering separation or divorce? Contact us to schedule a consultation with an experienced divorce attorney who can help guide you through the process.

2021 Pro Bono Virtual Attorney of the Year

Our very own Travis Barrick was selected by Nevada Legal Services as the recipient of the 2021 Pro Bono Virtual Attorney of the Year. Travis consistently gives support and encouragement to his clients, especially in his work in Veterans Affairs. He is dedicated to helping and protecting those people in our community who may have been overlooked and making their lives better. Travis will be honored at a virtual event on August 23rd at the Champions of Justice Reception, hosted by Nevada Legal Services. All proceeds will go directly to helping Nevada residents access free legal services and representation.

If you would like to contribute by attending the event, please email frontdesk@utahcase.com and we will give you the event information.

independent contractor

Employee or Independent Contractor? Avoid the Costs of Misclassification

by Zachary C. Lindley, Esq.

One of the most important questions a business owner faces is how to properly classify its workforce.  Businesses are oftentimes able to choose between whether to classify a worker as an “employee” or “independent contractor.”  The determination, however, must not be reached lightly or without thorough consideration. 

Over the last few years, federal and state agencies (such as the IRS and Workforce Services) have increasingly begun to more closely scrutinize the classification of workforces.  This is because such government bodies, as well as the workforce in general, are being denied important protections, benefits, and revenues.  Oftentimes, businesses simply decide to classify workers as independent contractors to avoid paying into programs such as unemployment, Social Security, Medicare, worker’s compensation, or to avoid withholding other state and federal taxes.  However, in their efforts to avoid such costs, some businesses may be opening themselves up to more costs due to misclassification.  By improperly classifying its workforce as “independent contractors,” rather than “employees,” a business opens itself up to regulatory scrutiny, both federal and state, including imposition of fines and penalties.  The following represents a list of some of the possible liabilities that are associated with misclassification of workers:

  • Worker’s Compensation premiums
  • Unemployment Insurance premiums
  • Social Security and Medicare
  • State and Federal Taxes
  • Overtime and other work-related expenses and benefits

Each agency applies its own intricate test to determine whether a worker should be deemed an “independent contractor” or an “employee,” and a business must be compliant at all levels to avoid fines and penalties.

If you, as a business owner, have been notified by either a federal or state agency that your business is being audited for allegedly misclassifying your workforce, or if you have general questions as to how you should be classifying your workforce, reach out to us at Gallian Welker & Beckstrom, L.C.  Our attorneys have experience in helping various businesses come into compliance with applicable laws and avoid unnecessary expenses.

workers' compensation

Just How Inclusive is Utah’s Workers’ Compensation Statute?

By Zachary C. Lindley

On September 4, 2019, the Utah Supreme Court showed just how inclusive U.C.A. § 34A-2-401 (workers’ compensation statute) really is by clarifying what it takes to satisfy “arising out of” and “in the course of” in determining entitlement to workers’ compensation benefits—elements a claimant is required to establish.   

In Intercontinental Hotels Group v. Utah Labor Commission, 2019 UT 55, the Supreme Court upheld the Utah Labor Commission’s determination of a claimant’s entitlement to workers’ compensation benefits after injuring her foot in the parking lot while walking to work. To fully appreciate the Supreme Court’s analysis, it is important to understand the arguments presented by Intercontinental Hotels Group (“IHG”) in opposition.

IHG argued the elements of § 34A-2-401 had not been satisfied because (1) the claimant’s accident did not arise out of her employment, since the injury did not stem from an employment-related risk, and (2) the accident did not occur in the course of employment, since she was traveling to work at the time and was not on its premises. IHG argued, first, the arising out of element introduces a causation element that limits compensation to only those injuries sustained as a result of exposure to risk to which the general public is not exposed. IHG then argued the “going-and-coming rule” (i.e. not entitled to workers’ compensation while traveling to or from employer’s premises) prevented claimant from satisfying the second element—in the course of—barring entitlement to benefits. It argued the “premises rule,” relied upon by the Utah Labor Commission, is an exception to the going-and-coming rule, and that, after the Supreme Court’s decision in Jex v. Utah Labor Commission, 2013 UT 40, 306 P.3d 799, the Utah Labor Commission failed to satisfy either of the two-factors of the premises rule—benefit conferred and employer control.

First, as to IHG’s arise out of argument, the Supreme Court agreed with IHG that arising out of introduces a causation element to the statute. However, the Supreme Court rejected IHG’s more restrictive view.  Instead, the Supreme Court, citing the two-part test in Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986) (legal and medical causation), stated legal causation is satisfied if the accident occurs as a “natural consequence” of the employee’s employment. More specifically, “a slip-and-fall accident arises out of employment where the employee slips and falls in a place, and at a time, in which the employee would not otherwise have been but for the employee’s employment obligations.” Intercontinental Hotel Groups, 2019 UT 55, ¶18. A standard less restrictive than tort causation.

Next, as to IHG’s in the course of argument, the Supreme Court found IHG erred when it assumed the going-and-coming rule applied to a case involving accidents on an employer’s premises. The going-and-coming rule only applies to injuries occurring off an employer’s premises. In other words, where an injury occurs off-premise, entitlement to workers’ compensation will depend on the two-factor test in Jex—benefit conferred and employer control. The Supreme Court found this assumption understandable, as previous cases discussed the going-and-coming rule as a distinct exception to the premises rule—it is not.  

In so finding, the Supreme Court made it clear:

[W]here an employee is injured on his or her employer’s premises, the going-and-coming rule does not apply, and the employee is considered to be in the course of employment.

* * *

[I]f an employee is injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is compensable.

Intercontinental Hotels Group, 2019 UT 55, ¶¶34, 37 (internal citations and quotations omitted).

Takeaways for L&E practitioners:

  1. Causation in workers’ compensation is a less restrictive standard than that required in causes of action based in tort;
  2. The premises rule is not a distinct exception to the going-and-coming rule;
  3. The going-and-coming rule does not apply if an injury occurred on the employer’s premises; and 
  4. An employer’s premise includes not only that property owned by the employer but also may include any such premises in close proximity. 

 

crosswalks

Invisible Crosswalks

On a cold December night, a young man walks down the sidewalk of a side street to its intersection with a major road. There are no traffic lights, stop signs, painted lines, or markings of any kind at the intersection. A hundred feet down the major road is a traffic signal with a painted crosswalk and electronic signage for pedestrians. The young man intends to cross the major road to a enter shopping plaza directly across the street from where he now stands. Rather than brave the cold to walk down to the controlled intersection, he immediately starts crossing the major road, which contains two lanes of traffic for each direction, plus a middle turn lane, with sidewalks on both sides of the roadway. When he gets to the middle turn lane, suddenly, a vehicle exiting from the roadway at the shopping center across the street turns left onto the major road. Not seeing the young pedestrian, the vehicle hits the young man and sends him flying 20 feet through the air, finally landing on his back in the roadway.

The driver who hit the young man is frantic, frightened, and upset. He thinks, how could this young man jaywalk across the street right here? The driver runs over to the young pedestrian lying on the road and yells that he should have known better.

But was the young pedestrian jaywalking? There was no marked crosswalk where he crossed, and there was an electronic crossing with a painted crosswalk just half a block up the road. However, the lack of a painted crosswalk does not answer the question. In Utah, legal crosswalks do not necessarily have to be painted or otherwise marked as crosswalks. UCA Sections 41-6a-1002(3) and 41-6A-1003(1) expressly reference unmarked, or implied, crosswalks. The cases interpreting the statute have ruled that a legal, unmarked crosswalk exists at an intersection where sidewalk is present on both sides of the intersection. See, e.g., Langlois v. Rees, 951 P. 2d 638 (Utah 1960). Thus, in our example, the lack of a painted crosswalk did not render the young pedestrian a jaywalker.

The young pedestrian was crossing an intersection with vehicular access on both sides of the main road, and with pedestrian sidewalks on both sides of the road. Consequently, the young pedestrian was perfectly within his rights to cross the road where he did. He was not a jaywalker. He did not violate the law. He did nothing wrong. The driver of the car that crashed into the pedestrian is fully at fault for the collision and for the pedestrian’s injuries. The driver’s insurance company will be responsible to pay for the damages of the pedestrian, up to the limit of the driver’s insurance policy. The police officer who investigates the collision will have to decide whether to issue any type of traffic citation or criminal misdemeanor citation to the driver of the vehicle.

Furthermore, as a corollary, one should not presume that drivers on Utah roads have no duty to yield to jaywalkers. UCA §41-6a-1006 specifies that all drivers of vehicles, at all times, must “avoid colliding with a pedestrian.” This statute makes perfect sense. A pedestrian versus a vehicle is not a fair fight. Just because a person is jaywalking does not mean that a driver has no obligation to stop for, or avoid striking, the pedestrian. Because the risk of catastrophic injury and death to a pedestrian if hit by a moving vehicle is so great, the law imposes a duty on all drivers to watch for and avoid pedestrians, regardless of whether the pedestrian should be walking at that particular location or not. If, in the example above, the young pedestrian was not crossing at an unmarked crosswalk but was crossing the street at another location where there was no intersection with pedestrian walkways on both sides, he would have violated the law by jaywalking. And if the same vehicle in our example were to strike him at a location other than in a legal marked or unmarked crosswalk, then liability and fault for the collision likely would be shared by both the driver and the pedestrian. The driver would be at fault for failing to see and avoid a pedestrian, and the pedestrian would also be at fault for jaywalking—crossing the street outside of a legal crosswalk or other designated pedestrian pathway.

In sum, in Utah, the lack of a painted crosswalk or pedestrian markings at an intersection does not mean that no crosswalk exists. At any intersection, even if there is no marked or painted crosswalk, there is an unmarked crosswalk as a matter of law if, at the intersection, there is a pedestrian walkway on both sides of the intersection. As long as the pedestrian crosses approximately where a painted crosswalk would be placed if one were present at that intersection, the pedestrian is wholly within his rights to cross at the unmarked crosswalk. Drivers must always be on the lookout for a pedestrian, whether in an unmarked crosswalk, a marked crosswalk, or anywhere else on the road. If a pedestrian is in a legal, unmarked crosswalk, or other designated, legal crossing zone, a driver striking the pedestrian likely will be fully at fault for the collision.

 

The above article does not constitute legal advice to any person or for any case. It is for general informational purposes only and does not constitute or create any attorney-client relationship between the author and any reader of the article.