Staton Law Blog

In honor of yesterday’s inauguration of the 44th President of the United States of America, we’re having a special event. From now until the end of the month, if you hire the Staton Law Firm to file a trademark application, then I will file a second trademark application for only $44. That’s right, buy one at our already low rates, get the second for $44. This offer only lasts until January 31, 2009, so act now!

You do not need to file your second application by the deadline of January 31, 2009. You can file your second trademark application at any time in the future so long as you apply for the first trademark by the end of the month.

Please note that this offer only covers the fees associated with the preparation and filing of your applications. In the event of an opposition or other inter partes proceeding, my normal hourly rate will apply.

Call me at 704-464-3903 or email me at larry@statonip.com to get started!

Are you looking to start a new business? Nolo provides excellent advice for new business owners looking for a name for their service or product.

North Carolina law allows a person who has been arrested for driving while intoxicated to have a witness observe the arrestee’s breath test. The witness must arrive at the testing facility (usually the police station) within 30 minutes of the phone call and make a reasonable effort to gain access to the arrestee. What’s a “reasonable effort”? NC law, of course, isn’t very clear. Besides, you don’t want to leave that decision to elected judges. To avoid this situation, a witness should make a clear statement when arriving at the testing facility that the witness is there to witness the breath test of the arrestee. The witness should probably make this request several times just to be sure.

Attention North Carolina attorneys! The North Carolina Indigent Defense Service has posted hundreds of pages of training tips and suggestions for those attorneys new to criminal defense. NCIDS has included training on everything from arrest to arraignment through trial.

Check it out!

If you’re thinking of filing bankruptcy, don’t forget that you must attend a credit counseling session from an approved credit counseling agency within 180 days prior to filing your voluntary petition for bankruptcy. After attending the session, you should receive a certificate of attendance that you must attach to Exhibit D to your petition. Here is the list of approved credit counseling agencies in the Western District of North Carolina.

There are, of course, exceptions to this requirement, but many of these must be for “good cause”. Waiting until the last minute to file without first attending a credit counseling session might not be considered good cause, so you should do your best to attend the credit counseling session before filing your petition.

As an avid cyclist, I often get asked by my friends about the law with respect to cycling in North Carolina. Here’s a quick rundown of the relevant laws and regulations:

1. Must a cyclist wear a helmet?

In North Carolina, cyclist age 16 or older are not required to wear a helmet while riding, although the state encourages you to do so. Cyclists that are younger than 16 must wear a helmet when riding.

2. Do cyclists have to ride single-file or two abreast?

North Carolina law does not regulate how cyclists ride in a group, so long as you are riding on the right side of the road with traffic. Because bicycles are considered vehicles under the law, cyclists have the same rights and responsibilities as motor vehicles. Play nice.

3. How close to I have to ride to the right side of the road?

As close as practicable. In general, three feet should be practicable. Cyclists should note that motor vehicles must give at least 2 feet of space when passing on the left and should not move back to the right until the motor vehicle is safely ahead of the cyclist.

4. Do cyclists have to stop at stop signs and red lights?

See the emphasized text above. Bicycles are considered vehicles and cyclists have the same rights and responsibilities as motor vehicles on the road. So, yes, cyclists must stop at stop signs and red lights and otherwise observe all traffic rules. In addition, cyclists may be cited for reckless driving for operating their bike in wanton disregard for the rights and safety of others.

5. Do cyclists have to ride on adjacent bike paths?

No.

6. Can cyclists listen to their iPod while riding?

North Carolina law does not prohibit the wearing of headphones while cycling.

7. Do I need lights while riding at night?

Yes. In North Carolina, a bicycle must be equipped with a front light that is visible from 300 feet while being used at night. The bicycle must also have a rear taillight or reflector that is visible from 200 feet.

8. Can I ride with my child on my bike?

Yes, so long as the child can maintain an erect, seated position on the bicycle and the child is seated alone on a passenger seat as on a tandem bike. Children that weigh less than 40 pounds or are less than 40 inches in height “can be and is properly seated in and adequately secured to a restraining seat.” What this means for cyclists with Xtracycles is uncertain.

Last, but certainly not least, for cyclists in North Carolina: Please, please remember that North Carolina remains one of the few states that retains a concept of tort law called “contributory negligence”. Under this concept of law, if an operator of a motor vehicle hits you and you are even 0.1% at fault, perhaps by riding less than as far a practicable from the right hand side of the road, you cannot recover from the operator of the motor vehicle. I’ll have more on contributory negligence in another post.

North Carolina allows spouses to determine the details of their divorce outside of a courtroom. The spouses can agree to child custody, child support, property distribution, and alimony by way of a separation agreement. The separation agreement has the full force of the law behind it, as with any contract. If either spouse breaches the agreement, the aggrieved spouse can file suit for breach of contract.

To receive a divorce, one spouse must petition the court to grant an “absolute divorce”. The spouse must allege that they have been living separate and apart from the other spouse for at least one year with the intention to cease cohabitation. After serving the complaint for divorce on the other spouse, the other spouse has 30 days in which to file a response. After the response is filed, the court will usually move quickly to grant the divorce. Because North Carolina is a “no-fault” divorce state, so long as the technical requirements are met, the court will grant the divorce.

Two critical caveats: you must petition the court for alimony before the court grants the absolute divorce and you must petition the court for an equitable distribution (”ED” in family law parlance) before the court grants the absolute divorce or you forfeit your rights to receive either alimony or equitable distribution! Petitions for alimony and equitable distribution are typically filed during the one-year separation period. An alternative, as noted above, is to execute a separation agreement that details your rights to alimony and equitable property distribution.

North Carolina is only one of a handful of states that allows a spouse to bring an action against a third-party for interfering with the complaining spouse’s partner and their marriage. North Carolina has two types of these actions.

The first action is called criminal conversation. Criminal conversation is a tort against a third-party for sexual intercourse with a spouse’s partner. This tort is essentially a strict liability tort. If the complaining spouse can show that a third-party had intercourse with the spouse’s partner while the spouses were married, then the third-party is liable for criminal conversation.

The second action is called alienation of affection. In bringing an alienation of affection claim, the complaining spouse states that the marriage entailed love and affection and that this love and affection was destroyed by a third-party’s malicious conduct. The complaining spouse need not show that the third-party had sexual intercourse with the complaining spouse’s partner.

Hundreds of these types of cases get filed every year and large damage awards are not unusual. In 2001, a jury awarded a Mecklenburg County man $1.4 million for criminal conversation and alienation of affection.

In North Carolina, spouses must live separate and apart for one year before a divorce is granted. There is an exception for divorces on grounds of incurable insanity, but most divorces end after a year-long separation.

The ABA has issued Formal Opinion 08-453 on in-house ethics counsel and the potential for conflicts between in-house ethics counsel advising the firm, advising the inquiring attorney, and advising the client.

Download the opinion.

(HT: Legal Ethics Forum)