>> Tiffany Bittner: Hello, and welcome in to LawCall. We have the answers to your questions. Here’s what’s coming up this evening. In our caller segment, we’re going to be talking about small business and the law. If you’re thinking about opening a small business, what’s the very first thing that you need to do. And if you already are in business, what are your legal responsibilities when it comes to things like taxes and disability. So give us a call. We’re going to take your questions tonight. Our number is 855-LAW-1955. Plus, if you’ve been injured, you ‑‑ maybe you should focus on what you should not do. We’re going to talk about the don’ts of personal injury. A little later on, we like to tease our attorney friends from time to time but we’re going to highlight some of the great things we have in our country because of lawyers and the work they do. First tonight, let me introduce you to these two gentlemen. These are officers Josh White and Andrew Pounds with the Alabaster Police Department and their Sergeant John Edmonson, he was not pictured there with me. Let me tell you, ken, earlier this week I had a flat tire and these guys pulled up beside me. Josh white pulled over initially to check on what was going on and offered to change my flat tire. And I was just so grateful. And let me tell you this, they not only offered to change my tire, but my jack wasn’t working on my car. He tried his jack. That didn’t work. They got the guys from across the street to bring over the heavy-duty jack and lift my car up, change my tire. Hats off to the officers out there in alabaster. Thank you so much for all of the officers and what they do. And from time to time we talk about the negative things but tonight I’m saying man, I was glad they were there to my rescue.
>> Ken Riley: Good for them.
>> Tiffany Bittner: Ken Riley is with Farris, riley & pit. He’s here to help answer your questions. We have an email question. Tonight’s email question comes from Camille. Ken, Camille says my son was bitten by a dog hanging around our neighbor’s house. He says the dog isn’t his but I’ve seen him putting out food for it. My son had to have shots and stitches. Am I going to have to pay for this? Again this is from Camille. What do you think?
>> Ken Riley: This is an interesting question. One of the issues that you have to get past is whether or not the dog is actually this owner’s. That’s the way the law is written. First and foremost, if the dog is not his, is not owned by this person and he’s just feeding it, you know, a couple of times, that’s one thing. But if he takes the dog at his own, then he becomes the de facto owner. If it is his dog, then you have to look to see whether or not this stray dog, if you will, if he knew that the dog had vicious propensities, which means he had bitten somebody in the past. Being a dog that maybe walked up off the street, being a stray, he might not know that the dog’s history. Or if the dog were an inherently dangerous dog under the law like a pitbull, well that dog there’s not a free bite rule or anything like that. Those dogs are held to strict liability. And those owners are held to strict liability if those dogs attack. You’ve got some legal issues there. I’m sorry to hear about your son. Hopefully you have access to some insurance that can help with those bills. But I would probably contact someone and let them break your case down a little bit more.
>> Tiffany Bittner: All right. For more information you can go to Ken’s website deliveringjustice.com. You can also go to WBRC.com for more information as well. In tonight’s sidebar, Kirby Farris talks about what you should not do if you’ve been injured.
—- Side Bar —-
>> Kirby Farris: Is there anything you should do or not do after an accident? One wrong move at a critical time and you may never be able to recover from the party who was responsible for your injuries. We’ve talked a lot on LawCall about what to do if you’re injured in an accident. Of course, you should immediately seek medical attention. It’s always a good idea to take notes of everything you remember about the accident. But is there anything you shouldn’t do? Absolutely. Here’s your sidebar advice: Watch what you say or stein until you have consulted with an attorney. Don’t downplay your injuries. Saying you were fine at the scene may come back to haunt you if your injuries prove to be more serious. In fact, don’t make any kind of statement until you’ve consulted a lawyer and never, ever attempt to negotiate with an insurance adjustor or sign any type of settlement without many consulting a personal injury attorney. I’m personal injury attorney Kirby Farris or Farris, riley & pit in Birmingham.
>> Tiffany Bittner: I don’t know about you but I’m looking forward to the show because we’re talking about small business and the law. And if you’re watching and you’re thinking at home about make starting a business or maybe you’ve started one and still need some information about some of the steps and protocol that you need to follow legally speaking, then tonight is a perfect opportunity for you to call in and ask our attorney some questions about that. So we’ve got Ken Riley with the law firm of Farris, riley & pit and tell our viewers who you have with you tonight?
>> Ken Riley: we have Drew Ellis, he deals with small businesses day in and day out. A lot of people don’t realize there are so many pitfalls, if you will, or ways to avoid pitfalls if you get some good advice early on. Thank you for being here.
>> Drew Ellis: sure.
>> Ken Riley: before we get started would you talk to our viewers about you, about your practice and who all you serve?
>> Drew Ellis: sure. My name is Drew Ellis. We have been helping small businesses, the business commerce and real estate communities for about 13 years. We do everything from the formation side all the way to unfortunately businesses don’t do as well as they plan and if they end up in bankruptcy or performing commercial workouts and the litigation side and everything in between. We really do a full scope of services for the business, specifically small business, business community.
>> Ken Riley: when we’re talking about small businesses, where’s the cutoff? Is that based on the number of employees that a business has?
>> Drew Ellis: that’s right. Generally you’re talking anywhere between 1 and 50 employees is generally considered small business. There are some other areas sort of that might quantify by how much revenue you produced in a given year.
>> Tiffany Bittner: what are some common questions by folks that call your office every day thinking they have an idea and they want to move forward with opening a business?
>> Drew Ellis: I would say always. At least recently it’s “Do I need to form an entity? Do I need to incorporate? Do I need to perhaps choose a limited liability company to shield off my exposure from my business operation?” Others come in the form of employment questions. That’s a big issue right now. You have immigration questions. Now, you know, the requirements to send in and have each employee fill out a W-9, making sure that the social security numbers and all the numbers match up so you don’t have any exposure for employing someone that you aren’t authorized to.
>> Tiffany Bittner: Well, for someone who’s watching and they have an idea they want to open up whatever the business might be, do they need to speak to an attorney like yourself that handles these business matters to walk through the process and make sure they’re covering themselves?
>> Drew Ellis: I think that’s a good idea. I think for the tax planning side, you need to find a good accountant that you can rely upon. Business counsel, you can save so much on the front end than you can if you’re correcting a mistake. I tell my clients all the time being proactive is so important. If you get out in front of issues, they’re much, much cheaper and easier to deal with than to wait and wait and sort of operate in a reactionary stance where it’s always more expensive, more time consuming and you can’t really yield as good of a result if you do it on the back end.
>> Tiffany Bittner: And then the stress, the personal stress that you had has to endure for that. Let’s take a break and we’ll come back with more calls and questions for you, drew. Stick around and give us a call if you are watching and have a question for us.
>> Tiffany Bittner: Well, lawyers get bad press a lot of the time but in tonight’s legal brief Bob Prince explains why that shouldn’t always be the case.
—- Legal Brief —-
>> Bob Prince: Hey, I like a good lawyer joke as much as the next guy. But let me take a minute to say why having a lawyer and be a very good thing. Lawyers are the people that help you have your say. We’re effective communicators, and when you’ve been wronged a lot of times we are your spokesperson in the courthouse. Only in our court system can an individual without great wealth or perhaps any wealth at all come before a judge and jury and have their concerns considered and be addressed equally with all of the other citizens, even the wealthiest or the biggest. But you know you can’t do that without a good lawyer. So without lawyers it’s highly unlikely that your workplace would be as safe as it is, discrimination would be rampant without lawyers and lawsuits, and if you got hurt by someone, you just hey, be on your own, do the best you could. Because of lawyers and the legal system, the courthouse is the only house where you’re on equal footing with the president or some giant oil company or some giant corporation. Now, there are a lot of noble professionals out there, and maybe not surprisingly to you I think being a lawyer is one of them.
>> Tiffany Bittner: Small business and the law, that’s our legal topic tonight. We have Danielle on the phone in Birmingham. Welcome in to LawCall. Hello, Danielle.
>> Caller: Hi, how are you?
>> Tiffany Bittner: we’re good. How’s it going?
>> Caller: Good. I have a question. As a small business owner of a healthcare agency at what point am I required by the state of Alabama to have workers’ compensation insurance for my employees? Well, my anticipated employees.
>> Tiffany Bittner: Okay.
>> Drew Ellis: Generally, once you have a full-time employee, you need to consider the workers’ comp insurance just like you would whether you’re going to insure them for health. Most of the time if you don’t put that in place, well then you leave yourself exposed, you know, to a potential lawsuit. So I would always counsel, you know, a business owner to go ahead and put that coverage in place on the front end so you’re protecting your workers in the event of an injury on the job.
>> Tiffany Bittner: All right. Thank you for your call. Mike is calling us next in Hueytown this evening. Hello there.
>> Caller: Hi. My wife and I have been in business for nearly 23 years, and a couple of years ago two of our employees had a real great idea for a small business. We furnished them with quite bit of equipment and helped them get their business started with a verbal agreement that they would repay us for the equipment. They made a couple of payments and then things stopped. You talk to them, they don’t really make any effort to pay for come to terms wit. We’ve been in business five years. They’re making money. They’re successful. I did not write an agreement when I let them have this equipment. Do I have any resource?
>> Drew Ellis: That’s a very fact sensitive question. I think most of that is going to turn on, you know, is there anything in the way of, you know, emails, correspondence, any witnesses, documents, witnesses and experts that would tend to show what the terms of your agreement was would be something you would want to look at. If ‑‑ if they are already in possession of the equipment and you haven’t been fully paid per what your understanding was, you would have to find a way to be able to show that these were in fact the terms, if you don’t have it in writing. And you could do that through alternative means, witnesses, and documents and of course any email correspondence or letters you might have.
>> Ken Riley: You’ve got viewers out there who have small businesses and things like this happen all the time. All the time. So somebody calls you and says “Okay, I need to write up a little contract. I don’t need a full-blown business plan. I don’t need to spend gazillion dollars”. Is that something they could call a firm like yours and say “Hey, I need to write a small contract, a small promissory note. Could you knock that out within a couple of hours?” is that something you do?
>> Drew Ellis: Absolutely. We try to fulfill what the needs of the client are. And if it’s just one contract, we understand the burden of trying to run a business and set aside a budget for legal services. So that’s an option.
>> Ken Riley: If you don’t call somebody like Drew, always write it down, no matter what. If it’s a personal injury case or a case concerning your business, write it down because at least you’ll have something to go back to.
>> Tiffany Bittner: Carol is our next caller in Anniston tonight. Hay, Carol.
>> Caller: Hi there. I have a business and was in business about three years not doing too well and I want to dissolve it, close the company, LLC. What can I do?
>> Drew Ellis: First, you need to look to see what type of entity you formed, whether it’s a corporation or limited liability company or some partnership. Depending on what your entity is, that will determine how you quote, unquote “wind that down”. The law calls that when winding a business down, you can choose to sell it, if you have some going concern and you my in might be some equity left if your business, that might be a good option to evaluate. If you’ve already made that determination and you think it’s time to wind that down, then I would certainly in that sense, I would reach out to counsel and let him walk you through kind of what needs to go on. It’s very stepwise and you want to make sure that by the time you wind it all the way down that you have zero liabilities. I think that’s very important.
>> Ken Riley: And Drew, we’re up against the break but we need to talk about the consequences of not winding down a business properly and, not just obvious consequences, but also with the state and county.
>> Drew Ellis: Oh, sure.
>> Ken Riley: We can catch that now or after the break.
>> Drew Ellis: Sure, you can still have payroll tax burden, local municipal burdens, income tax that have you to do, even if there was so income to report. You would still be obligated to file that.
>> Ken Riley: And the cost of having the LLC open?
>> Drew Ellis: Even if you’re no longer doing business, the business you did prior to ceasing business leaves you wide open for exposure on anything that might go wrong in the business that preceded your business to stop operating your business at that point.
>> Tiffany Bittner: We will continue this conversation in a minute. We’d love you to be a part of it so call us if you have a question.
>> Tiffany Bittner: Here is our calendar for the next three weeks. February 28, that’s always a fun show, ask us anything. March 6, a spotlight on volunteer lawyers. March 13, conservatorship and guardianship and P.O.A. What is P.O.A.?
>> Ken Riley: Power of attorney.
>> Tiffany Bittner: There you go. We hope you’ll join us and call us with questions if you have any. If you have joined us and want to talk with Drew Ellis, he’s with Cloud & Willis, 205-322-6060. If you want to talk to Bob Prince, you can call at 800-536-1105. And Ken Riley, can Farris, Riley & Pitt, number is 324-1212 or deliveringjustice.com. Ken, talk about your firm, what you guys do and the work that you perform.
>> Ken Riley: Sure. We’re an accident and injury firm. We also handle wrongful death cases. We help clients settle their cases and we take clients’ cases to court if need be. That’s what we do day in and day out.
>> Tiffany Bittner: We’re excited to continue this conversation about small businesses and the law. What you need to do to handle your legal matters if you’re starting a business or maybe you’ve got one up and running already? We have Ellen in Sylacauga. Let’s here from you. How are you?
>> Caller: I’m fine. We’re in the process of forming a dirt bike race team and we want to know if we have to purchase the right to our team, or will all of that be covered in our LLC?
>> Tiffany Bittner: Okay. Did you understand that?
>> Drew Ellis: I didn’t get that last part, Ellen.
>> Tiffany Bittner: She wants to know if she has to purchase the right to her team, is that right?
>> Caller: The race team name.
>> Tiffany Bittner: The race team name, or is it covered under her LLC?
>> Drew Ellis: Does she mean like trademark the name maybe?
>> Caller: The trademark for our race team.
>> Drew Ellis:Ookay. So you already have the race team in place?
>> Caller: We are in the process. We have part of it.
>> Drew Ellis: Anytime you have a protectable interest, if it’s say, for example, a name, a trademark license is always going to be your best form of protection. If you have it already trademarked and are looking to shift the ownership or licensing to have that trademark to a different entity, there are some basic forms that you need to assign that either to another individual or to another entity. So do you already have the trademark?
>> Caller: We already have a racer.
>> Drew Ellis: Okay.
>> Caller: And he finished first. He was the only one from the state of Alabama.
>> Drew Ellis: Right. Since you have some protectable interest there, you would want to make sure you purchase the licensing rights to use that race name prior to using it. Does may make sense?
>> Caller: It does.
>> Ken Riley: True, is that something like somebody like the caller can do on his own, or are we getting to a separate area where she would need to fill out the paperwork?
>> Drew Ellis: Interestingly enough, trademark registration is not quote, unquote “complex”, but it should require business counsel to do it. You can do it relatively quickly. It’s not a tremendous cost burden. And it’s something that really can be very valuable once you start getting out there and competing, for example, on a race team or just in business in general.
>> Tiffany Bittner: Is it the same thing for a patent?
>> Drew Ellis: It is similar licensing, but a different process. It’s going to protect your brainchild, your process. It’s something you do as opposed to something that is a name or trademark. Patent is more conceptual in nature. Something that you do.
>> Ken Riley: So she’s really being smart and proactive about this because once they have the best race team, once it hits big, then what?
>> Drew Ellis: That’s right. You never see folks that want to address these issues until, like you said, the race team started winning a bunch of games, a bunch of races, and then you have everyone trying to, you know. The value in that trademark becomes much higher as success comes. And that’s usually when things start to get sideways between people.
>> Tiffany Bittner: Let’s hear from Brian. Brian’s on the phone in Springville tonight. Hello, Brian.
>> Caller: Hello. How are you? Good, good. Yes, I have a small business that a probably got about $200,000 in depreciation assets that still are waiting to be depreciated. When this subchapter s corporation is shut down, can we continue to take off those small amounts and slowly depreciate them out? Or are we going to be able to accelerate and take the money out?
>> Drew Ellis: That kind of question is extremely fact sensitive, depending on what assets you have. What your depreciation schedule looks like to that point, if you’re planning on just leaving it open and you’re up and running, like I said at the beginning of the show, I would certainly always take the tax planning and the legal services side and make sure that your tax plan and business plan, from a legal perspective, is consistent. And so long as everyone’s on the same page and you have your tax plan with your accountant, you just need to make sure if you do retain legal services for this phase of your business, to make sure that everybody can give their input and make a collective decision about your business. And that includes your tax planning.
>> Tiffany Bittner: We just have a few more minutes left in the show. Before the break, we talked about LLC and the steps people need to go through if they want to close it down. So talk about that a few minutes and why that’s important.
>> Drew Ellis: This is probably one of the most overlooked things for small business owners. When they’re up and running and have an idea and begin to operate, it’s more exciting. It’s less attractive when that business starts to perhaps plummet a little bit. Maybe it’s not as successful and you have to make sure that you are kindling down those accounts. Any financial accounts, any sort of tax entity, say if it’s the department of labor, they need to be put on notice that you’re shutting does down. There are also certain forms, articles of dissolution that need to be filed that come with the filing fee so you can truly shut down and not use some lagging exposure.
>> Ken Riley: And the state will keep charging you, won’t they?
>> Drew Ellis: Oh, yes. You’ll receive late penalties in all shapes and sizes from different angles so yes, you’ll continue to pay despite doing business or not.
>> Tiffany Bittner: All right. Drew Ellis, thank you very much. Appreciate your expertise. And Ken, always great to see you.
>> Drew Ellis: Thanks for having me.