Ag Law

Nebraska has long been a leading producer of livestock and other commodities. But today the State agricultural economy is changing from small, family owned farms and ranches to larger operations, managed to meet goals of feeding a hungry world while protecting the land for future generations. The Knudsen Law Firm formed its Agricultural Law Practice Group to better serve our agricultural clients in this new environment.

To meet these challenges our Agricultural Law Practice Group is a collection of professionals with broad and diverse expertise. They know real estate, insurance, asset protection, lending, business planning, water law, land use planning, permitting, estate and succession planning, bankruptcy, and litigation—legal issues facing farmers, ranchers and agribusinesses in today’s agricultural economy.

For over 30 years as a trial lawyer with the Knudsen Law Firm, Rodney Confer has handled many suits involving agriculture and agribusiness for farmers, ranchers, banks, natural resources and irrigation districts, insurance companies, the State of Nebraska, and animal pharmaceutical and feed manufacturers. His cases have involved a wide range of agricultural problems: crop insurance, feedlots and hog confinement operations, ag loans, Nebraska’s anti-corporate constitutional provision, water law, irrigation, drainage, county and township zoning, animal feed and supplements, veterinary medicine, and damage to crops, pastures, poultry and livestock. Rod’s record of success has led to being named a Super Lawyer of the Great Plains, and receiving the highest rating in Martindale-Hubble, the most widely recognized legal directory in the country.

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Richard R. Endacott has been active in the livestock industry for 40 years. He owns and manages a purebred Charolais herd that has produced top-gaining bulls at test stations, the Nebraska Beef Cattle Improvement Association's Sire of the Year and Grand and Reserve Grand Champion bulls at Nebraska’s largest beef cattle show. He has been an officer and on the board of the Nebraska Charolais Association and belongs to the Nebraska Cattlemen’s Association. Richard has applied his hands-on experience during 43 years as a trial attorney in cases running the gamut of livestock problems. He incorporated the first Maine-Anjou Cattle Association and a national hybrid cattle association, represented one of the Midwest’s largest semen sales companies, and even the American Goat Society. Richard's rare combination of legal experience and livestock knowledge allows him to represent livestock breeders competently and aggressively. He's one lawyer who won’t give you a blank stare when you mention A.I., EPD’s, or Gomer bulls.

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Jeanelle R. Lust gained her first familiarity with the ag economy growing up in rural South Dakota. Today she’s an experienced trial lawyer and Managing Partner of the Knudsen Law Firm whose clients come from all over the State. Jeanelle has done extensive study of crop and livestock lien protection in Nebraska. Some of her notable verdicts include a $3.5 million judgment arbitration arising from a feedlot embezzlement and $5.7 million against a lender for fraud in the downfall of a custom cattle feeder. Jeanelle was one of the first lawyers to become a Fellow of the Litigation Counsel of America.

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Trev E. Peterson has practiced in real estate law, business planning, commercial litigation and bankruptcy since he joined the firm nearly 30 years ago. He lectures extensively on real estate, commercial loan documentation and bankruptcy. A lifelong Nebraskan, Trev has represented agricultural lenders and producers through the upswings and downturns that are all too common in the agricultural economy, and he brings practical insight to agricultural issues. Trev can help farm owners take advantage of corporations and other legal entities to limit their personal liability and aid in succession planning. He provides advice in farm purchases and sales, boundary disputes, adverse possession matters, and leasing. Farmers and ranchers may also profit from Trev’s bankruptcy expertise in reorganizing their operations, where his extensive experience in representing lenders provides an invaluable contribution.

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Richard C. Reier focuses on commercial and real estate lending and has extensive experience in agricultural loans, representing both lenders and borrowers across Nebraska. Rick is familiar with loan and security structuring and documentation, farm leases, and real estate sales and purchase agreements. He has extensive experience in advising confined livestock operations on problems including permitting, zoning and environmental matters. Rick has done extensive work structuring agricultural businesses to comply with Nebraska’s Initiative 300, which restricted corporate farming before being declared unconstitutional.

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For nearly 25 years LeRoy W. Sievers has represented farmers and ranchers, irrigation districts, political subdivisions and the State of Nebraska in water and environmental law matters, such as water rights, challenges to federal agency and state actions, inverse condemnations and land use planning. LeRoy has practiced at every level of state and federal court including the U.S. Supreme Court and he has worked with farmers and ranchers from Mitchell to Tekamah and from the Niobrara to the Republican River. As part owner and active operator of a tree farm himself, LeRoy has personal experience with issues that face ag producers: boundary issues, hunting rights and chemical migration problems.

Jeanelle R. Lust

(visit our NEW website: www.knudsenlaw.com)

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New Employment book by the Knudsen Law Firm Lawyers

(Lincoln, NE – October 11, 2007) – The Nebraska Chamber of Commerce & Industry has released the 2008 Nebraska Human Resources Manual and the Model Policies and Forms for Nebraska Employers. The Model Policies and Forms for Nebraska Employers, written by the attorneys at Knudsen Law Firm, explain employment laws in plain English, using language everyone can understand.

Kevin McManaman, editor of the Model Policies and Forms and partner at Knudsen Law Firm added, “Unfortunately, it’s often hard to know which laws are applicable, how to find them, and most importantly, what they mean to an employer. This is a concise and easy-to-use resource that everyone can navigate.”

“We are constantly striving to make Nebraska the best place to do business,” said James Berringer, Vice President of Membership and Marketing at the Nebraska Chamber of Commerce & Industry. “This is just one more way the State Chamber is looking to help your business.”

The Model Policies and Forms for Nebraska Employers provides the employer with more than 100 forms and model policies and comes with a bonus CD-ROM which allows the user to personalize and print policies, taking the effort out of creating employee handbooks, new employee paperwork, and termination and resignation documents. The Nebraska Human Resources Manual covers important workplace issues, such as how to avoid and respond to claims of discrimination, required health and safety regulations, and lawful discipline and termination procedures. The set is priced at $99 for Nebraska Chamber members and is available to order by calling 866-439-2227. A full chapter from each book is available at the publisher’s website: www.accr.biz/publications/nebraska/nebraska.

About Nebraska Chamber of Commerce & Industry:

The Chamber is the state’s largest statewide business organization and the instrument through which business leaders can express their needs and seek sound, workable solutions to their common problems. The Chamber is dedicated to helping business grow and prosper across Nebraska. Visit: www.nechamber.com.

About Knudsen Law Firm:

Knudsen Law Firm is a multi-specialty firm with extensive experience in employment-related matters. Its employment practice ranges from day-to-day problem solving for its clients to major litigation. Visit: www.knudsenlaw.com

 

Jeanelle R. Lust

(visit our  NEW website: www.knudsenlaw.com)

 

 

 

Today the Knudsen Law Firm launched its new web-site.  Please follow the link below to find the new user friendly lay-out and to check out a few pictures of the team here at the Knudsen Law Firm.

 

Jeanelle R. Lust

(visit our  NEW website: www.knudsenlaw.com)

 

 

 

Are you afraid of E-discovery?

You should be.

The federal rules are attempting to mirror modern society and provide
mechanisms for the the discovery of electronic documents. This only
makes sense. However, the cost and potential damage rendered by
E-discovery are incalculable. E-mail and text messages are the new
telephone calls. People treat e-mail as an INFORMAL means of
communication and often little thought is given to the content of an
e-mail. Speed is valued over content. The problem: People are putting
things in e-mail that should NEVER be put in writing- EVER. And unlike
hard copy documents that may eventually be shredded under an appropriate
document destruction policy, an opponent with enough resources can
always recover deleted e-mail. E-mail is forever, and tone and context
are no longer considerations 5 years down the road, when you are trying
to justify nasty comments in an e-mail. Many companies are investing a
lot of money in E-mail retention policies, content policies etc.
However, the cheapest, easiest and best solution: PICK UP THE PHONE or
WALK DOWN THE HALL.

THINK BEFORE YOU E-MAIL!

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Estate Planning

I spent most of this week in Aberdeen SD. The big news there was the
plane crash that killed a local doctor and his son. It started me
thinking about the amount of Holiday Travel in this country and how
there is always at least one tragic accident each Holiday. Maybe there
is another thing to add to your Holiday to do list: Check on your estate
plan. No one expects tragedy, but if you are going to be travelling for
the Holidays you may sleep better knowing your affairs are in order
should something happen. Happy Holidays and Safe Travels.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Statutes of Limitation

The first and foremost consideration in bringing a personal injury action is to evaluate it for any statute of limitations issues which would serve as a bar to bringing the suit.
Nebraska statutory law provides the relevant limitations provisions which apply to personal injury matters.
The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) an action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the discovery of the fraud, except as provided in sections 30-2206 and 76-288 to 76-298.
Neb. Rev. Stat. § 25-207 (Reissue 1995).
The statute of limitations period provided in § 25-207 is tolled under certain circumstances.
Except as provided in sections 76-288 to 76-298, if a person entitled to bring any action mentioned in this chapter, the Political Subdivisions Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims Act, or the State Tort Claims Act, except for a penalty or forfeiture, for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages thereon, is, at the time of the cause of action accrued, within the age of twenty years, a person with a mental disorder, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability is removed. For the recovery of the title or possession of lands, tenements, or hereditaments or for the foreclosure of mortgages thereon, every such person shall be entitled to bring such action within twenty years from the accrual thereof but in no case longer than ten years after the termination of such disability. Absence from the state, death, or other disability shall not operate to extend the period within which actions in rem are to be commenced by and against a nonresident or his or her representative.
Neb. Rev. Stat. § 25-213 (Reissue 1995).

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Understanding non-economic damages

Non-economic damage under Nebraska statutory law is defined as meaning "subjective, nonmonetary losses, including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation, but shall not include economic damages." Neb. Rev. Stat. § 25-21,185.08(3).
Damages for pain and suffering are a somewhat difficult value to assign to a plaintiff.
The amount of damages for pain and suffering, both that suffered and that which will reasonably be suffered in the future, is peculiarly for the determination of the jury. There is no yardstick by which damages for pain and suffering can be measured and compensated. If the verdict of the jury bears a reasonable relationship to the injuries sustained, the court will not disturb it.
LeMiuex v. Sanderson, 180 Neb. 311, 317-18, 142 N.W.2d 557, 562 (1966) (citing Peacock v. J.L. Brandeis & Sons, 157 Neb. 514, 60 N.W.2d 643 (1953); Morford v. Lipsey Meat Co., Inc., 179 Neb. 420, 138 N.W.2d 653 (1965)).
With regard to the personal injury of a nonfatally injured plaintiff, a spouse may also be joined in an action under the theory of loss of consortium. Consortium has been defined by the Supreme Court of Nebraska as meaning "comfort, society, love, and protection." Guenther by Guenther v. Stollberg, 242 Neb. 415, 495 N.W.2d 286 (1993) (citing Creason v. Myers, 217 Neb. 551, 350 N.W.2d 526 (1984) (citing Sowle v. Sowle, 115 Neb. 795, 215 N.W. 122 (1927); Larsen v. Larsen, 115 Neb. 601, 213 N.W. 971 (1927))).
A parent does have a cause of action for the loss of the value of the services of a nonfatally injured child. Guenther, 242 Neb. at 416, 495 N.W.2d at 286 (citing Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984)). A child does not have a corresponding cause of action for any losses to a nonfatally injured parent, however. Guenther, 242 Neb. at 416, 495 N.W.2d at 286. The Court differentiates marital consortium from parental consortium. "[U]nlike recovery for loss of marital consortium, recovery for parental consortium involves serious problems of multiplication of claim and of inflation of damage awards." Guenther, 242 Neb. at 420, 495 N.W.2d at 288-89 (citing Hoesing v. Sears, Roebuck & Co., 484 F. Supp. 478, 480 (D. Neb. 1980)). The Court also noted the problems in determining a pecuniary value of the loss to the children of a parent's society, companionship, and comfort. Guenther, 242 Neb. at 420, 495 N.W.2d at 288.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Attorney Misconduct again

Yet another district court has overturned a substantial plaintiff's
verdict because of the plaintiff's attorney's misconduct. In Cadorna v.
The City And County Of Denver, CO
D.Colo.,2007, the district court roundly criticized the plaintiff's
attorney and ordered a new trial. The rash of these type of decisions
recently is a good lesson for those searching for competent counsel. An
attorney that may appear tough for your cause at all costs, may end up
costing you in the end.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Do you really really really want to sue?

Several of the lawyers at the Knudsen law firm specialize in business
litigation. It is a specialty that we enjoy practicing in. However, in
our role as "counselors" we ask our clients to consider several factors
before deciding to proceed with a business law suit. Some of the
disadvantages of suing are:

Costs. Business litigation will be extremely expensive. It'll cost you
thousands of dollars.

Time. You may think you are in business to be in business, but once you
proceed with commercial litigation you and your staff should be prepared
to devote large amounts of time to the lawsuit. Attorneys will not be
able to do it alone. You will be deposed. You will have to go over
documents with your lawyer. You will have to prepare for court. You will
have to locate any and all documents and e-mail even remotely relevant
to the dispute. You will have to search every hard drive and every file
cabinet.

Privacy. By filing a lawsuit, you will expose your business practices
and documents to a public forum. Even if you think some of your
documents are extremely confidential, you should prepare to deal with
the fall-out from having to produce those documents. Publicity about a
lawsuit can also adversely affect business relationships and draw
unwanted attention to your business from the friendly IRS.

The Principal of the thing: Suing over principal is rarely, if ever, a
good business decision. Before proceeding make sure you think you have a
legal and factual basis for success. Suing just because of perceived
injustice will lead to disappointment in the result and more importantly
could result in the litigation becoming all an all consuming goal -
rather than the success of your business.

Pursuing a lawsuit is not an endeavor to be undertaken lightly. Do so
only if the ultimate goal of the litigation would outweigh its
disadvantages.

If you have a business dispute that you would like to review with one of
our lawyers contact Kevin McManaman, Jeanelle Lust, Trev Peterson or Rod
Confer at 800 714 3439

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Final Orders

There are times when you will sue or be sued and lose an important
motion. You may want to appeal that order immediately. However, you
should make sure your trial counsel understands the importance and
technicalities of what constitutes a final order in Nebraska before
proceeding with an expensive appeal. This importance was demonstrated
again in First Nat. Bank of North Platte v. Sheets, 16 Neb. App. 35 (Oct
13, 2007). In that case, the defendant First Nat. Bank of SD had its
appeal dismissed because the PLAINTIFF hadn't served all of the
potential parties in an interpleader action. While it would seem logical
that an adverse ruling agains the First Nat. Bank of SD would have been
enough to allow an appeal -- especially when service of process was
outside its control, the court disagreed. The lawyers at the Knudsen Law
Firm have extensive experience in appellate work and can help guide you
through the nuances of the final order analysis.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Understanding Econmic Damages

There are two types of damages that are recoverable under Nebraska law: economic damages and noneconomic damages. Economic damages are defined by Nebraska statute as meaning "monetary losses, including, but not limited to, medical expenses, loss of earnings and earning capacity, funeral costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment, and loss of business of employment opportunities[.]" Neb. Rev. Stat. § 25-21,185.08(2) (Reissue 1995).
Medical expenses may be recovered, both those that the plaintiff has already incurred, and those that the plaintiff is reasonably certain to incur in the future. Steinauer v. Sarpy County, 217 Neb. 830, 843, 353 N.W.2d 715, 724 (1984) (citing Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981)). Such expenses must be reasonable. Id. "[T]he amount of future medical expenses need not be established with mathematical certainty." Id. The need for future medical services and the reasonable value thereof may be inferred from proof of past medical services and their value. Nor is direct evidence, according to the general rule, always essential to establish the permanency or future effects of an injury. The test is whether the particular issue can be determined from the evidence presented and the common knowledge and usual experience of jurors.Steinauer, 217 Neb. at 843, 353 N.W.2d at 724 (quoting Schaeffer v. McCreary, 216 Neb. 739, 743, 345 N.W.2d 821, 824 (1984)). Such future medical expenses cannot be uncertain, speculative, or conjectural. Amick v. Welsh, 1994 WL 50766, *10 (Neb. App. Feb. 22, 1994) (citing Karpf v. Karpf, 240 Neb. 302, 481 N.W.2d 891 (1992)).
Loss of earnings refers to the earnings that the plaintiff lost as a result of his injury from the time of the injury until the date of trial. See Laun v. Roach, 191 Neb. 11, 213 N.W.2d 450 (1973); Caster v. Moeller, 176 Neb. 30, 125 N.W.2d 89 (1963). Loss of past earnings must be specifically pled and proven in order for a plaintiff to recover. Washington v. American Community Stores Corp., 196 Neb. 624, 629, 244 N.W.2d 286, 289 (1976). In order to prove lost earnings, it is sufficient to show the plaintiff's typical wages or salary prior to the injury, average income, and then an estimate of the time lost from work. Caster, 176 Neb. at 43-4, 125 N.W.2d at 97.
Earning capacity should not be equated with loss of earnings, as it is a different measure of damages. Recovery for the loss of earning capacity is based upon a number of factors, which include the plaintiff's age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry. Washington v. American Community Stores Corp., 196 Neb. 624, 629-30, 244 N.W.2d 286, 289 (1976) (citing Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393 (1964) overruled on other grounds, Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994); Wortman v. Northwestern Bell Tel. Co., 195 Neb. 637, 240 N.W.2d 15 (1976); Siciunas v. Checker Cab Co., Inc., 191 Neb. 766, 217 N.W.2d 824 (1974); Lake v. Southwick, 188 Neb. 533, 198 N.W.2d 319 (1972)). Actual loss of earnings or wages is not required in order to prove a loss of earning capacity. Washington, 196 Neb. at 629, 244 N.W.2d at 289 (citing Baylor, supra; Siciunas, supra).

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Nursing Home Litigation

The Mississippi Supreme Court has reversed a $6.5 million verdict in a
nursing home case because of juror misconduct. Mariner Health Care v.
Estate of Edwards et al., No. 2004-CA-01478-SCT, 2007 WL 2670308 (Miss.
Sept. 13, 2007). The court said that the trial court's failure to
investigate claims of juror misconduct warranted a new trial. In
December 2003 the jury had awarded the plaintiffs $1.5 million in
compensatory damages and $5 million in punitive damages.
One of the jurors contacted the defendant after the trial about alleged
juror misconduct. This juror said in an affidavit that a fellow juror
made numerous prejudicial comments to other jurors during the trial,
including stating on the first day that she had already made up her mind
in favor of the plaintiffs, and that she had witnessed her relative and
other residents lying in their own feces and receiving poor care at the
nursing home facility at issue. Also, other jurors made race-based
comments in favor of the black plaintiffs stating, "white people have
been taking black people's money" for years and the "jurors needed to
stick together to get money back to black people."
The defendant filed a motion to stay the judgment until the court
conducted an inquiry into the jurors' alleged statements. The lower
court denied the motion and entered final judgment. The defendant
appealed. The majority of the Mississippi Supreme Court reversed. The
court stated that if the statements were made by the juror those
statements would show that she failed to answer at least two voir dire
questions truthfully and that if she had answered truthfully the
district court would have disqualified her. Thus, the court found that
the district court's failure to investigate was prejudicial to the
defendant and reversed.

The Knudsen Law Firm has extensive experience in defending nursing home
cases in Nebraska, South Dakota and Iowa. If you have questions about
nursing home defense contact Kevin McManaman, Jeanelle Lust or Joe
Wilkins at 800 714 3439

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

So you want to get your collateral...

Should you take collateral without getting the court to help you?

The Uniform Commerical Code does allow "self-help" but only to the extent no breach of the peace will occur. See Neb Rev Stat UCC 9-609. "Without breach of peace" is not defined and is left up to the courts to decide. Some Nebraska cases may be useful to consider. State v. Hinchey, 220 Neb. 825, 374 N.W.2d 14 (Neb.1985) discusses the breach of the peace issue. "It is clear that § 9-503 [currently 9-609] permits a creditor to take possession of the property without judicial process, only if it can be done without breach of the peace, such as where the debtor grants consent or permission to the creditor. Cases throughout the country which have reviewed what constitutes a "breach of the peace" are varied but in no instance has the creditor been permitted to violate the debtor's fourth amendment rights. See, Henderson v. Security Nat. Bank, 72 Cal.App.3d 764, 140 Cal.Rptr. 388 (1977); Quest v. Barnett Bank of Pensacola, 397 So.2d 1020 (Fla.App.1981); Deavers v. Standridge, 144 Ga.App. 673, 242 S.E.2d 331 (1978); Dixon v. Ford Motor Credit Corp., 72 Ill.App.3d 983, 391 N.E.2d 493 (1979); Morris v. Bk. & Tr. Co., 21 Ohio St.2d 25, 254 N.E.2d 683 (1970); Stone Machinery Co. v. Kessler, 1 Wash.App. 750, 463 P.2d 651 (1970). To the same extent, if force or threats of force are necessary to obtain immediate possession of collateral on a debtor's default, the right of the secured party to obtain such possession must be effected by a judicial action rather than by self-help, thereby requiring the individual to bring an appropriate replevin action. See Platte Valley Bank of North Bend v. Kracl, 185 Neb. 168, 174 N.W.2d 724 (1970)." State v. Trackwell, 235 Neb. 845, 458 N.W.2d 181 (Neb.1990) discusses the breach of peace issue as well.
"We note here the trial court found that under the self-help repossession provision of the Uniform Commercial Code, Neb. U.C.C. § 9-503 (Reissue 1980), "[a]ny privilege or right to enter upon the private property of another to peaceably retake the property would terminate upon commencement of the criminal enterprise." A mere trespass onto the open land of another, without more, will not usually constitute a breach of the peace under this section. See, Jefferds v. Ellis, 127 Misc.2d 477, 486 N.Y.S.2d 649, 652 (1985), rev'd on other grounds 122 A.D.2d 595, 505 N.Y.S.2d 15 (1986) (providing as it does that the only restriction on repossession is that it be without a "breach of the peace," § 9-503 authorizes the commission of a common-law trespass, action which was not permitted at common law to regain possession of personal property); Marine Midland Bank-Central v. Cote, 351 So.2d 750 (Fla.App.1977) (when a security agreement provides the secured party has on default the rights and remedies provided by the Uniform Commercial Code, the right of repossession stated by Fla.Stat. § 679.503 (1975) implies, just as it did at common law, a limited privilege to enter upon the debtor's land); Butler v. Ford Motor Credit Co., 829 F.2d 568 (5th Cir.1987) (rejecting the contention that entering a private driveway to repossess a vehicle without the use of force is a breach of the peace because it constitutes a trespass); 2 J. White & R. Summers, Uniform Commercial Code § 27-6 at 577 (3d ed. 1988) ("We have found no case which holds that the repossession of an automobile from a driveway or a public street (absent other circumstances, such as the debtor's objection) itself constitutes a breach of the peace, and many cases uphold such a repossession").The repossession in the present case, however, was clearly a breach of the peace. Defendant and Holmes went to the farm at 11 p.m.; took the pickup, which was loaded with personal property; and fled despite Able's protest, which was known to Holmes. There was also controverted testimony that the front part of the pickup may have been parked in an outbuilding. For representative cases concerning the facts which may constitute a breach of the peace, see, e.g., Dixon v. Ford Motor Credit Corp., 72 Ill.App.3d 983, 29 Ill.Dec. 230, 391 N.E.2d 493 (1979) (when a creditor repossesses in disregard of the debtor's unequivocal oral protest, the repossession may be found to be a breach of the peace); Nicholson v. Schramm, 164 Ind.App. 598, 330 N.E.2d 785 (1975) (assault and battery constitutes a breach of the peace); Kimble v. Universal TV Rental, 65 Ohio Misc. 17, 417 N.E.2d 597 (1980) (breach of the peace is a violation of public order, a disturbance of the public tranquility, by an act or conduct tending to provoke or excite others to breach the peace, and includes any violation of any law enacted to preserve the peace and good order); Morris v. First Natl. Bank & Trust Co. of Ravenna, 21 Ohio St.2d 25, 254 N.E.2d 683 (1970) (breach of the peace results when creditor legally enters debtor's premises but is physically confronted by one in charge of such premises, told to desist his efforts at repossession, and instructed to depart from the premises, and creditor refuses to heed such commands). The trial court correctly concluded that defendant would be deprived of any defense afforded by § 9-503."

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Overly aggressive lawyering can backfire

In Moody v. Ford Motor Co. 2007 WL 869693 (N.D.Okla.2007) Plaintiff's
counsel received what would normally be considered an outstanding
verdict (over $15 million). The problem: He did so by repeatedly
ignoring the Court's pre-trial rulings on important evidentiary issues
and by personally insulting Ford's witnesses. The court found
Plaintiff's counsel's behavior to be so bad, that it ordered a new
trial. The lesson: Zealous advocacy is great, but play fair and by the
rules.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Form over Substance?

Wednesday October 3, 2007, the Nebraska Court of Appeals published two
decisions that seemed to value form over substance. In the first, the
Court refused to allow the substitution of the party that was the actual
tenant of farm ground (a corporation owned and operated in part by the
gentlemen sued) in a condemnation case. (The condemnation case:
http://www.supremecourt.ne.gov/opinions/2007/october/oct2/a05-1387.pdf
). In the other, the Court refused to enforce a guarantee that listed
the wrong party as an owner (even though that party had assigned the
guarantee to the correct party) (The guarantee case:
http://www.supremecourt.ne.gov/opinions/2007/october/oct2/a05-1038.pdf
). The lesson: Legal niceties do matter. Forms should be double and
triple checked to make sure no "old" parties are still listed.
Corporations are actually legal persons with a separate existence from
the persons operating them. In other words, before signing something, or
assuming some legal technicality doesn't matter, check with your lawyer.
Not doing so cost the tenant in the condemnation case over $10,000 and
the owners in the guarantee case nearly $100,000.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Should you hire a private investigator to spy on your opponent?

In the recent case of Stephen Slesinger, Inc. v. Walt Disney
Co.,(Cal.App. 2 Dist.) the Plaintiff saw it's case dismissed for
deliberate and egregious conduct. The Plaintiff had hired a private
investigator who tresspassed on the defendant's property and removed
confidential documents from trash bins.

While this is an extreme example of how spying on your opponent can
backfire, one should always think carefully about hiring an investigator
to initiate surveillance on the opposing party. This tactic has become
very poplular in personal injury cases where the defendant just doesn't
believe that the plaintiff is as injured as badly as he says. Sometimes,
you do hit the jack-pot. Often times though what you get is a hard to
see video of a plaintiff merely walking to his car. One of the attorneys
in this office actually had the experience where the video was actually
of the plaintiff's really large and masculine looking wife. The judge
laughed out loud when the wife showed up at trial and identified herself
on the video-tape.

The key is to balance how sleazy will you look for spying on your
opponent, compared to any useful information you might gather. Each case
should be analyzed carefully before determining to go forward with the
expense of a private investigator.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com

Welcome to our Blog

Today, the Knudsen Law Firm is launching the Knudsenlaw blog. The
purpose of this blog is to keep our clients, and others informed of key
legal developments, and provide information that may be of use. Feedback
is always welcome.

If you've found our web-site you may already know a little bit about our
firm, but I'd like to provide you with a more personal perspective on
who we are and what we do. I joined the Knudsen Law Firm in 1994 after
graduating from Creighton law school. Since then, I have come to know
and respect the partners more than I ever imagined possible. Although in
most markets we would be described as a small firm, 15 lawyers, the
depth and breadth of the talent at this Lincoln, Nebraska firm, is
extraordinary, and is frankly what you would expect of a very large
firm. Our size, however, allows us to provide a level of personal
attention and relationship building that large law firms just can't
manage. The majority of the partners here finished in the top 10 of
their class and served on their law school's law review. The partners
here have been given such honors as "Super Lawyer" designations,
invitations to American College's in their fields, and invitations to
become Fellows in the Litigation Counsel of America. While, each lawyer
here maintains a narrowly focused specialty, together, a specialist in
nearly every legal endeavor can be found under this firm's roof. The
lawyers are admitted and practice not only in Nebraska, but also in
Iowa, South Dakota and Colorado. Criminal law is probably the only
service we do not handle. In other words, if you have a problem, we can
find someone here to help you at a reasonable cost with a level of
professionalism that you would expect from our much larger competitors.

In the coming days, this blog will host tips, case summarries and maybe
even some personal reflections. We hope you visit often.

Jeanelle Lust
Managing Partner
www.knudsenlaw.com