The Misdirected Framing of a Defense Argument in the Arbery Case

The blog post points ultimately below to my continuing, strong criticism of Gregory McMichael, Travis McMichael, and William Bryan’s inevitable defensive attempts to turn the table on Ahmaud Arbery and make Arbery out as the aggressor, against whom Travis McMichael was the victim who had to defend himself by fatally shooting Arbery three times with a 12-gauge shotgun.

I am not going to repeat details of this McMichael / Bryan killing here that are more than abundantly available in the media and on the web. The point I wish to make is to urge readers not to allow themselves to get pulled into this “Arbery-aggressor” argument. In my opinion, it is a misdirected framing of an argument the defense attorneys hope they can spin as a winning theme for the McMichaels and Bryan.

In short, and based on my review of the recent Arbery probable cause court hearing videos, the McMichaels / Bryan attorneys are (not a surprise) beginning to advance their self-defense argument, as follows: That is, just moments before Arbery’s death, Arbery “squared up” in a fighting stance and attacked Travis McMichael, who was standing by the side of his pickup truck brandishing a 12-gauge shotgun. Travis McMichael felt he was in threat of bodily harm and shot Arbery in self-defense. Travis McMichael’s attorney refers specifically to this defensive argument in his Closing Arguments during the recent probable cause hearing. Click here for a YouTube video of the Closing Arguments (listen, in particular, to the first 60 seconds).

Don’t fall for this misdirected framing of a defense by the McMichaels / Bryan attorneys. This defense is deja vu of the argument that enabled George Zimmerman in 2012 to walk free from his killing of Trayvon Martin.

I strongly criticized the 2012 Zimmerman acquittal because, in my opinion, when Zimmerman moved forward in order to hunt for Martin as part of Zimmerman’s attempt to investigate and find Martin, etc., all bets should have ended at that point for any “self-defense” or “stand-your-ground” argument for Zimmerman. In my view, when Zimmerman took it upon himself to make a move toward Martin to find him, etc., Zimmerman became the aggressor with no basis thereafter for a self-defense or stand-your-ground argument. Below is a simple example in line with my argument that Zimmerman became the aggressor.

Assume my wife and I are walking down the sidewalk at night. Some guy walks past my wife and me and appears purposely to bump into me with such force that I fall down on the ground. The guy keeps walking away from us. But, I reverse my direction, brandish my handgun, and chase down the guy; he “squares up” and moves in my direction aggressively to hit me; I shoot and kill him with my gun.

Now, in this example, one might argue this guy was the aggressor when he bumped into me, or when he “squared up” toward me, etc. However, I am the first aggressor relevant to my use of the gun. I am, therefore, the aggressor with the gun. My killing of the guy, in this example, likely would not have occurred (i) as he was walking away from my wife and me in the opposite direction, and (ii) I intentionally changed my direction and went after the guy while brandishing (and ultimately using) my gun.

I believe the example above with my wife and me is sufficient to convey my point contrary to the McMichaels / Bryan defensive framing of the issue. The McMichaels / Bryan were the first (and only) aggressors with the guns. It is entirely unreasonable to try and cast Arbery as the aggressor for purposes of the underpinning of the defense lawyers’ self-defense argument.

Finally, as a broader notion, assume you have a 25-year old son. Your son has been chased for approximately four minutes by three grown men using two vehicles. Your son becomes essentially trapped by the three men, and is likely so exhausted he can no longer run. One of the men is out of the truck brandishing a shotgun at your son.

As yourself these two questions: (i) what in that moment do you believe your son would have done?, and (ii) what in that moment should your son have done? In answering the second question, and now that we know Arbery is dead, can you realistically — with full conviction not affected by hindsight — state that in that moment your son should have simply put his hands up and surrendered?

As an aside, I certainly believe your son should put up his hands in any situation where the police are the pursuers. But, key to the Arbery case is that the McMichaels and Bryan were not police, were not dressed in law enforcement uniforms, were chasing Arbery in pick-up trucks; and were brandishing weapons; they, likely from Arbery’s perspective, appearing to be taking no survivors in their aggressive, exhaustive, two-vehicle corralling of him. Click here for my previous Arbery post about this vehicle corralling.

My ending point: Your framework for how you view this Arbery case should start at a point well before the defense lawyers’ efforts to have you too narrowly see this case only as a self-defense “squaring up” moment before Arbery’s death.

Ahmaud Arbery’s Death: The Tragic Four-Minute “Citizens Arrest” Chase (revised 5.26.20)

This post centers on Gregory McMichael, Travis McMichael, and William Bryan’s apparent four-minute vehicle chase in Georgia that ended in the tragic death of Ahmaud Arbery; and, in my opinion, that fails to any extent to fall within Georgia’s “citizens arrest” statute. I will soon write a second blog post with more details about the inapplicability of this citizens arrest statute.

My underpinning for today’s blog post is a recent May 16, 2020 video in the web version of the New York Times, captioned “Ahmaud Arbery’s Final Minutes: What Videos and 911 Calls Show”. Click here for a link to this NYT video. This video is a reconstruction of the 12 minutes prior to Arbery’s death, based on the construction site security camera, cell phone information, and 911 call data.

Below are the points I wish to make with this blog post.

One. This NYT video shows, quite shockingly and extremely painfully, how Ahmaud Arbery apparently was chased by one vehicle driven by Gregory and Travis McMichael, and by a second vehicle driven by William Bryan, before being trapped by all three men and ending with Arbery’s tragic death.

More specifically, the McMichaels and Bryan appear — in this NYT video reconstruction for a period of approximately four minutes — to have used their two vehicles to chase and trap Arbery. Arbery — running on foot from the two vehicles — apparently changed his direction twice in unsuccessfully avoiding getting overtaken and trapped. This apparent four-minute vehicle chase is not information I was aware of until seeing this NYT video.

What also jumped out to me powerfully from this video is that the McMichaels and Bryan appear to have twice turned their vehicles around along the roadway in their ongoing four-minute trapping of Arbery. The first of two reversals by the McMichaels is when Gregory McMichael apparently jumped from his truck cab into the bed of his truck and began wielding a .357 handgun as the chase for Arbery continued. In this NYT video William Bryan was apparently the first in this chase to reverse the direction of his vehicle as he continued to pursue Arbery, followed with a similar reversal by the McMichaels.

Two. My second point here is my own subjective perspective. It stems from my having lived in Atlanta my entire life. And, my observation in Georgia of the still-present deep level of racial prejudice, especially by many in the age 60+ range. And, no better than the overt racial views I observed in Georgia as a child during the 1960s is what I perceive at present to be a quiet, unspoken, “wink-wink”, still-deeply-seeded racial prejudice in Georgia. These are individuals who either are too cowardly to be candid and forthright in acknowledging their racial prejudice, or who have no interest in facing squarely a need to stop and challenge themselves about why and whether they are willing to contemplate a more-evolved perspective.

Three. This last point goes to the appearance of recent Facebook posts and web references in which individuals are placing the criticism and blame of this tragic killing on Ahmaud Arbery. To the contrary, I consider blame directed at Arbery to be nothing more than a premature, knee-jerk attempt to support a preconceived, racially-biased conclusion against Arbery.

So, please take a moment to ponder what your innermost race-factor reactions are to this Arbery killing, especially the apparent four-minute chase factor in the above NYT video. Ask yourself if you are jumping immediately to conclusions against Arbery, such as “Arbery had tattoos and looked like someone who is a criminal”; “Arbery had an afro [or dreads, etc.]”; “Why was Arbery running if he didn’t do anything wrong?”; “Arbery should not have walked into that house construction site”; or, “Why did Arbery resist if he was not doing anything wrong?”, etc. Or, is your reaction a passive acceptance simply that “This is what happens when a black man tries to run. Arbery should not have run.”

My forthcoming blog post will show, quite persuasively from my view as a lawyer, zero support for the McMichaels and Bryan being able to rely on the Georgia “citizens arrest” statute as a winning defense for their actions. These three men possibly may have thought they were properly making a citizens arrest, but whatever they thought likely was powerfully, and tragically, motivated by their own preconceived and prejudicial attitudes and beliefs about blacks, especially a black man running.

Revision today 5.26.20 — This NYC Central Park incident just in today illustrates very well the embedded racial bias we as a society collectively need to acknowledge and address, directly and with a receptive spirit. Click here for the update.

A Quarantine Pastime: Listen to Georgia Court of Appeals Oral Arguments (on the Internet)

The title to this blog post is probably not stopping many readers quickly in their tracks to see what it is about.  I understand.  The blog title also is likely not edge-of-seat dinner party fodder.

Nonetheless, I generally each week read the current Georgia appeals court opinions so that I can keep up with the broad range of legal issues, changes, developments, etc. Today, among the recent opinions I read, is the March 11, 2020 opinion in Doe v. State. Click here for a copy of the Court of Appeals opinion. Click here for the website link for the related appeals court oral argument for Doe v. State.

Briefly, the above Doe v. State does not fall within my area of law practice;  but, deals with an individual who was acquitted of certain felony criminal charges and who sought to have his record expunged under the procedures of O.C.G.A. Section 35-3-37.  Here, however, is one general take-away point from this particular case. A person’s arrest record (even if not ultimately convicted) remains a public record unless the person can sucessfully get his or her record removed under these procedures.  I chose this Doe v. State for this blog post simply because it is the opinion I last read this morning among the recent opinions from the past week.  It is essentially my random selection for purposes of writing this blog post.

My suggestion, however, especially during our long, home-bound quarantine days, is that readers might find very interesting the Georgia Court of Appeals website with the audio-video recordings of the appeals court oral arguments.  This is where the lawyers stand before the Georgia Court of Appeals judges (typically three judges) and present an oral (verbal) argument to try and convince the appeals judges to see the case their way.  The judges often prod the lawyer’s argument with point-on questions, comments, requests for clarification, etc.

Very briefly as background information, litigation cases can sometimes “go up” on appeal with the appeals court having the power generally to determine whether to affirm the lower court’s decision of the case (typically the trial court); to reverse the lower court; and/or to remand the case back to the trial court. Keep also in mind when a matter goes up on appeal that the lawyers cannot for the appeal add any additional evidence, testimony, documents. There are various levels of state and federal appeals courts (e.g., Georgia Supreme Court; The Federal Court of Appeals for the Eleventh Circuit;  the U.S. Supreme Court, etc.).

The purpose of this blog post is not to elaborate further on the procedure, structure, and design of appeals courts.  But I do point out that any case on appeal is as good as it can get at that point of the appeal, depending on how well the trial court lawyers put on, and preserved, the appropriate evidence and how well they procedurally — during the trial — preserved the disputed legal questions for the appeal (This all gets into the procedural details I purposely do not include in this blog post).

Now, back to using the above Doe v. State as an example. I find virtually all appeals arguments very compelling and instructive for the following three primary reasons:

One. The Georgia Court of Appeals allows only 15-minutes of oral argument for the lawyers who represent each party in the case. This is each lawyer’s opportunity to try and hone down — convincingly — the essence of his or her 15-minute appellate argument in a focused, understandable, concise, and persuasive manner.  Keep in mind the lawyers have already previously filed written summaries of their appeals arguments (called Briefs).

This limited 15-minute oral argument means, from my liking, that the 15-minute argument compels the lawyer to get immediately to the heart of the matter without blustering, grandstanding, sidestepping, and purposeful obfuscation. By contrast, these run-of-the-mouth factors are what we lawyers (and clients) too often hear from opposing lawyers in other contexts (phone calls, discussions, trial court hearings, mediation, etc.).  I greatly enjoy the relief of brevity for these 15-minute appellate arguments.

Two.  The boiled-down directness of the lawyers’ arguments, and most often with to-the-point prodding and questions from the appeals judges, give us listeners an audible pathway directly to the heart of the issues, along with the crux of what the appeals judges are considering from their perspective. In my view, listening to these oral arguments is better than CLE (continuing legal education) in that I get can grasp and consider the essence of the issues in 30-minutes or less.  And, in a real-world context.

Three.  The appeals process (in any appeals case) often highlights the deficiencies in how the lawyers conducted the lower-court trial, particularly the existence of insufficient evidence for consideration on appeal, etc. Every appeals court opinion (and the oral arguments) provides great learning material.

Go back above and click the oral argument link.  Will cost you only 30 minutes of time.

Audio-Visual Remote Notary Allowable Now in Georgia (updated 4.15.20)

This blog post now includes an April 15, 2020 update, that I set forth at the bottom of this original post.  Immediately below is my original post.

Georgia Governor Kemp, on April 9, 2020, signed an Executive Order allowing lawyers (or a Notary under the supervision of the lawyer) to sign documents remotely as a Notary Public, with the following requirements:

(1)  The lawyer as Notary (or his or her supervised Notary) participates as the Notary Public by a real-time audio-visual means (Zoom, etc.) along with the individual(s) whose documents need to be notarized;

(2)  The Notary during the audio-visual meeting reasonably verifies the identity of the individual whose signature is being notarized;

(3)  The Notary actually witnesses the person sign the documents while the Notary and individual are together connected to the audio-visual meeting;

(4)   The Notary must physically be in Georgia while participating in the audio-visual meeting (see my additional comment further below about this participation point);

(5)   The documents have to be physically delivered to the Notary on the same calendar day of the audio-visual signing so that the Notary can add his or her notary stamp and signature to the documents.

The Executive Order allowing this remote Notary set-up expires either when the Georgia Covid-19 State of Emergency ends, or if the set-up is otherwise terminated earlier.

Click here for a copy of this Georgia Executive Order.

My Additional Observations about this Executive Order

This Executive Order applies only to lawyers who are Notaries, or non-lawyer Notaries supervised by the lawyer.  A non-lawyer Notary — but only if supervised by a lawyer during the audio-video meeting –can notarize documents under this remote order.

The remote set-up must include both audio and video.   My reading of the Executive Order is that it does not apply merely to audio calls.

The Executive Order allows this remote audio-visual set-up for any act that can be performed by a Notary under the Georgia notary statutes, including a Notary attestation to a sworn statement;  but, of course, for documents requiring a sworn oath, the Notary must take the individual’s oath over, and during, the audio-visual meeting.

The Notary must physically be in Georgia while participating in the audio-visual meeting. The Notary (whether lawyer or supervised Notary) must be a current, active Notary Public.

The lawyer (if not a Notary) along with his or her supervised Notary must each participate (but can be in different physical locations if necessary) in the audio-visual meeting so that the attorney can supervise the non-lawyer Notary as needed for the audio-visual documents, meeting, etc.

Finally, in my opinion, the following is an important soft spot in this Executive Order that warrants your attention.

Where Can the Individuals Signing the Document be Located?

The Executive Order does not address whether the individuals (other than the Notary) signing the documents must be present in Georgia during the audio-visual meeting.

IMPORTANT NOTE: The April 15 update below only partially touches on my concern about the location of the individuals signing the documents. The update appears to suggest the individuals and non-notary witnesses signing the documents “should”  be present in Georgia during the audio-video call. The update reiterates the point that the Notary “must” be in Georgia during the audio-video call.  I suggest readers continue to think about the concern I state below in situations where the individuals signing the documents are not in Georgia during the audio-video call.

This location-of-the-individuals remains, in my opinion, a gray area of the Executive Order. Assume, for example, the individuals signing the documents during the audio-video meeting are in New York;  the Notary is a Georgia Notary physically in Georgia during the meeting.

In short, I am not comfortable recommending — in every instance — this Georgia Notary remote set-up when the individuals signing the document are not physically in Georgia during the audio-visual meeting.  If the individuals are not physically in Georgia, there may later arise questions about whether the state law other than Georgia will recognize the Georgia remote notarization (e.g., if the document is a a sworn, notarized document, or governed by the law of a state other than Georgia). Arguably, other non-Georgia states should recognize the Georgia remote Notary order under the doctrine of comity, etc.  But, I simply do not believe the answer is unequivocally clear so as to apply this Georgia remote notarization procedure in every situation.

Update Below 4.15.20 — Now Answers the Above Soft Spot

My above original version of this post is dated April 13, 2020. Today, April 15, 2020, the State Bar of Georgia issued additional clarifying details about this remote notary situation. The additional detail is very helpful and well-presented.

Click here for a link to the Georgia Bar additional material.

I do not summarize all of the additional material. But, below are five key points from this additional material that supplement my above post :

(1)   The individuals signing the documents must be present in Georgia during the audio-video meeting (along with the Notary having to be present in Georgia for that meeting);

(2)   The Notary who participates in the audio-video meeting does not have to be an employee or agent of the lawyer;  but, in all cases with these audio-video meetings the lawyer must be present on the audio-video meeting so as to oversee and supervise the Notary;

(3)   The Georgia State Bar recommends that any documents signed under this audio-video remote set-up include the following caption at the top of the document:

Notarized Pursuant to Executive Order 04.09.20.01

(4)  And, that the Notary’s signature block include: “This [name of document] was notarized pursuant to Executive Order 04.09.20.01 using [insert technology name; Zoom, etc.] as real-time audio visual communication technology.”

(5)  The additional material includes also an embedded link for suggestions from the Georgia Fiduciary Law Section about executing estate planning documents under the Executive Order.   I highly recommend estate and trust lawyers read this additional information, which also includes well-stated, thorough  recommendations.

Estate Planning and Your Lawyer’s Bias

We are each inevitably biased based on our own life experiences, education, community and family values, etc.  The key in any discussion about bias is whether we are able, or willing, to step back and try more objectively at times to observe our own bias.

This blog post is my recommendation that you be aware of your lawyer’s own bias and how it may possibly influence your estate planning.  I provide below only limited examples. But, my broader point is for you, as a client, to feel comfortable questioning and challenging your lawyer’s recommendations for the design of your estate planning.

Example One — My experience is that an abundance  of estate planning documents I have read over the years include a descendants-only feature in the event, for example, a child (we will call her Susan) dies, who at her death has no children.  In this event, this typical descendants-only provision requires that Susan’s share of the property now is to be divided only among her other siblings (and their descendants). This provision is designed to make sure Susan’s parents’ property passes only along the parents’ line of descendants. It does not include spouses of those descendants.

Carrying this Susan example further, assume Susan had been happily married for 20 years to Bob at the time of her death. Remember, Susan had no children. Bob always fit in well with all the family members, including Susan’s parents. But, with this descendants-only provision at Susan’s death, Bob gets nothing.

I am not suggesting Bob should or should not get anything. My point is that most lawyers do not address this situation adequately with clients and often use the “descendants-only” language in the estate planning document as a matter of habitual rote. I also believe many clients would be shocked to learn there are no options for a spouse under a circumstance similar to this Susan example.

Maybe your lawyer has himself or herself had a bad divorce in the past;  or had a sibling or parents who experienced a painful and costly divorce. This is an example of the lawyer’s own experiential bias that can make its way into your estate planning documents — without sufficient discussion with you about other available options.

Example Two — To my “lawful” descendants is a term I still see frequently in estate planning documents that I believe may stem from the lawyer’s own bias (religion, community, political, etc.) and that is not sufficiently discussed with clients.

Here is what you need to know about this “lawful” reference to make sure you agree or disagree to use that term in your estate planning documents. Again, my point is this reference and its potential effects demonstrate another example of rote-mentality, too often not sufficiently discussed with clients. Here is an example:

Let’s assume I have a daughter who has a young son, but she is not married to the other parent. Assume also that we all love and treat that son (a grandchild in this example) fully as a family member with absolutely no distinction as to my daughter’s non-marital status.  Assume also my own estate planning documents provide for my property to be divided and held in trust only for my “lawful descendants”. Assume also I die, in this example.

It is my opinion that my grandson (in this example) is most likely cut out of my estate plan because he is not a “lawful” descendant. Technically, he was born out-of-wedlock at the time of my death. Also, arguably this non-wedlock status is locked-in at the time of my death relevant to the “lawful” definition in my documents. I do not believe my daughter’s subsequent marriage — after my death — to the other parent cures this problem.

More importantly, I would hate for my family to face the above problem, including costly efforts to try and convince a court, etc., to include this grandson as a descendant for purposes of my estate planning.

In other words, the modifier “lawful”, in my view, does nothing more than set the stage for disagreement, disputes, and legal issues as to whether I intended to leave out my grandson with my use of that modifier in my documents. Courts are generally bound by the wording within the four-corners of estate planning documents. The term “lawful” simply creates far more problems than benefits for an estate planning document.

For those of you who wish to read more about the potential limitations of this “lawful” element, click here for a relevant 2010 Georgia court opinion in Hood v. Todd, 287 Ga. 164, 695 S.E.2d 31 (2010). Note also the dissenting opinion, indicating even the court had difficulty in determining what “lawful” meant in this case.

My recommendation is that your estate planning documents include a more expansive provision for the definition of “descendants” so as to bring the definition more fully into the light of current cultural and scientific realities. Make sure you discuss with your lawyer and conclude with a clear understanding about the final “descendants” definition in your estate planning documents.

Example Three — I remain surprised at the extent to which I see estate planning documents that fundamentally treat males and females differently. For example, the estate plan might provide for greater outright provisions for a son, but strict trust provisions for a daughter. Or, the estate planning document names only sons as fiduciaries, with the daughters not being named for these positions.

Again, I am not suggesting a right or wrong approach. But, in my experience, this is an area with a great deal of old-school lawyer bias, and without sufficient informed dialogue and consent from clients.

The Boding Danger of the Trump Impeachment Process

This blog post is merely to provide my key thoughts about this Trump impeachment process from my lawyer perspective.  I also realize my perspective is only one of millions.  It realistically has no more weight among all other views than a grain of sand.  But, nonetheless, I voice my comments not for purposes of stating my position one way or the other about what I believe should have been, or will be, the conclusion of this present impeachment effort.

Rather, I express my great concern about the persistent chipping away — for the past 40 years or so — of the sanctity of our three-branch system of government.  Our system appears to move each year toward a myopic vision of a simple-minded, one-party political system of government, blind to the three-branch element (regardless of which party).

And, I do not use the word “sanctity” in any sense of religion, morality, or political party; but, more importantly, from my great and deep respect for the ultimate importance and inviolability of our three-branch system.  In my view, the longstanding success and freedoms we have in the United States rest on the three-branch system of checks and balances. This, in my opinion, is the primary reason our country has succeeded during its long test of time.

Here are my key comments:

(1)  The House blundered, tainted a key underpinning of their procedural process, and by doing so failed to respect our three-branch system of government by not seeking judicial review of (or by not issuing) House subpoenas.  A fundamental element of our great freedom in the U.S. is the ability to obtain judicial review when we are subpoenaed and assert grounds for objection to the subpoena or to the scope of the subpoena. The government (including the House) also has the ability to obtain judicial review and assistance in determining the necessity and scope of a subpoena.  For you historical legal readers, the first U.S. Supreme Court opinion addressing House subpoenas was in 1880, in Kilbourn v. Thompson, 103 U.S. 168 (1880).  Click here for a copy.

(2)   President Trump’s blanket snubbing of the entire process of subpoenas and witnesses is itself another serious failure to respect the sanctity of our three-branch system of government.

I wrote a blog post a few months ago about the Richard Nixon subpoena situation. Search “Nixon” in my blog search above. I repeat, now again, essentially what I said in my Nixon post. That is, the following question my constitutional law professor at Emory Law School (in Atlanta) posed to our first-year law class many years ago, which I have never forgotten: “If President Nixon had refused to comply with his subpoena, we would have experienced an extremely serious (and still-unanswered) constitutional crisis that would have substantially stress-tested our three-branch system of government. And, possibly the system would have failed. The crisis would have centered on “Who would, or can, force President Nixon to comply with his subpoena?”

Keep in mind the Nixon subpoena had been issued by the Department of Justice, a part of the executive branch (not issued by the House).  Thus, if Nixon, as head of the executive branch, opted not to have his own executive branch enforce his subpoena, who would have acted to enforce it?  Our Emory constitutional law professor posed the possibility of a military coup, or military tanks rolling up to the front of the White House, to step in and take over the enforcement effort, etc.

(3)   I, candidly, have always been concerned the U.S. would not have withstood the above Nixon constitutional crisis if it had been pushed to an ultimate limit, nor recover minimally unscathed. This is the reason that particular law school class discussion is burned deeply into my consciousness. I truly believe the above Nixon crisis could have effectively dismantled, or substantially damaged, the longstanding balance of our three-branch system of government. One political party would have won the battle, but we all would have lost the war.  A crucial question we each should consider at every juncture of our own respective political moves and attacks is whether we are helping to sustain, or erode, our three-branch system of checks and balances.

(4}   We each, therefore, should also ponder seriously how all facets and participants leading up to this current Trump crisis have, or are, affecting this balance.  And, we need to rethink everyone’s relative contribution to this situation.  As an aside, I  believe Nixon understood his tremendous constitutional crisis for our country, leading ultimately to his voluntary compliance with the subpoena, and ultimately his resignation.

(5)   Back to my statement above about the success of the U.S. being based on the three-branch system of government. In my view, I do not care where one places himself or herself on a religious, moral, or political spectrum. That is one’s gift of liberty, and personal prerogative. However, the substitution of a controlling element of religion, morality, or politics, etc., as a decisive or tipping-point factor sidestepping our three-branch system of government places far too much power with, and simply by the whims of, those asserting — at any given time — their majority religious, moral, or political views.  Keep in mind, everyone once knew the earth was flat.

Age 18 / 21 Cheat-Sheet for Georgia Uniform Transfers to Minors Accounts

I typically do not recommend use of transfers to minors accounts, compared to the alternative of more-targeted trust planning. But, many clients still end up running into questions and situations dealing with transfers to minors accounts (sometimes called a minor’s custodial account).  Also, I get questions from time to time about whether a child will get the minors account property at age 18 or 21.

Here is a quick cheat-sheet. Depending on the situation, there are both age 18 and 21 answers.  This age 18 / 21 distinction under Georgia law is at O.C.G.A. Section 44-5-130.  Click here for a link to the full gamut of these Georgia transfers to minors statutes. These age 21 situations are limited exceptions to the adult age of 18.

Hands on the Account at Age 21

The minor gets the account at age 21 if the transfers to minors account was set up intentionally as a transfers to minor account. This is the most typical, garden-variety transfers to minors account where, for example, grandmother sets up and funds the transfers to minors accounts for grandchildren, etc.  Or, where the parents or anyone intentionally and purposely sets up the transfers to minors accounts.

In the above garden-variety situations, the minor has to turn age 21 before getting his or her hands on the account (even though the minor at age 18 is an adult for other purposes under Georgia law).

The other age-21 exception deals with trust and Last Will and Testament documents.  Read the following section of this blog post carefully, as it affects whether the minor gets hands-on at age 21 or earlier at age 18.

Assume a minor stands to get a distribution of cash or property from a trust or from someone’s estate under a Last Will and Testament.  If the trust or Last Will and Testament documents include an express reference — in the trust or Will document itself — allowing the trustee or executor to make the distribution into a transfers to minor account, then the trustee or executor can open and create transfers to minors accounts, make the distribution to the account, and age 21 applies.

The take-away point is that the trust document or Will must include an express reference to the trustee or executor having the power to distribute to a transfers to minors account in order for age 21 to apply.  In other words, the person who created the trust or Will must have intended for the trust and Will to use transfers to minors accounts.  This is the tie-in to my above comment about an intended use of these minors accounts.

The above age 18 / 21 point is that age 21 applies only under the above intentional circumstances.

For this intended age 21 element to apply for estate / trust planning, it is, therefore,  imperative that your trust and Will documents include express authority for the trustee or executor to make distributions to minors into transfers to minors accounts. The express power to create and make distributions into transfers to minors accounts also applies if the trust or Will document incorporates expressly by reference the Georgia fiduciary powers under O.C.G.A. Section 53-12-261 (see Section 53-12-261(b)(27)(B) referring expressly to the power to create and fund transfers to minors accounts).

Better yet, create longer-term trust provisions for the minor beneficiaries so that the trust can exist for longer periods beyond age 21.  My view is that age 21 is much too young for large amounts of property or cash to fall into the hands of any of these younger beneficiaries.

Hands on the Account at Age 18

By contrast, age 18 is the broader, general rule — even for transfers to minors accounts — when minors become age-18 adults under the law.  Accordingly, in virtually all other situations not falling under the above age 21 exceptions, the creation and funding of transfers to minors accounts is still allowable and can be created for a minor, but the minor gets the account at age 18, not 21.  The above link to the Georgia transfers to minors statutes provides much more detail than I include in this post.

Keep in mind in this age-18 situation there can (and will) exist a transfers to minors account to hold the property or cash, but the account will be subject to the age 18 element. This is because these age-18 minors accounts are not created under the above intended garden-variety and trust / Will exceptions.  The nuances above likely appear overly academic; but have real consequences for this age 18 / 21 distinction.

Now, a final, negative kicker. If the trust or Will document does not include the above authorization for use of a transfers to minors acccount and the distribution amount exceeds $10,000, then a legal guardianship (and conservatorship) will be required for oversight of the property (or cash) until the minor turns 18.  This is not an easy, cost-free option.  For readers interested in technical details about this conservatorship result, start with the link above for reference to O.C.G.A. Section 44-5-116(c)(3).  See also O.C.G.A. Section 29-3-6.

Platitudes are Most Often Useless (and Ineffective); and Dr. Martin Luther King Jr.’s Recently-Discovered December 7, 1964 Speech

I often tell clients I did not become a lawyer to “help” people.  In my view, “help” is nothing more than a conclusory term with no common meaning sufficient to guide a client or his or her lawyer through difficult disputes (and related litigation).  It is also simply  a relative word that I assume each lawyer in a dispute can easily voice as to how he or she is “helping”  their own client. Using the word “help” more accurately means a lawyer is “fighting” for his or her client’s position.

As to these kinds of legal fights, the passion and joy I get from lawyering is helping level the playing field when another party unreasonably overreaches.  The overreaching can occur for a myriad of reasons, including, as examples in many cases, an elevated sense of entitlement, an assumed superior right, or closed-minded ignorance.  As I continually assess the progress of my litigation cases, I not only have to be well-versed on the facts and law of the case, but also attuned to assessing motivations of an opposing party; again, especially when I conclude entitled overreaching is at play.

Now, what do platitudes have to do with the above paragraph, such as “be friendly”, “be a team player”, “be kind”, “be considerate of others”, “turn the other cheek”, “pull yourself up by your own bootstraps”, “god helps he who helps himself”, etc.?  My sense is these platitudes originated from those already sitting in the upper winning or dominant position.  Platitudes are merely armchair, conclusory statements that assert nothing more than their own conclusion or result.  For example, merely repeating a platitude fails to consider why someone might not be able to “pull” himself up from his own bootstraps, or why a person might need to know what to do after once turning the cheek (e.g., what does he or she do next?). Platitudes in most cases are simply diversionary icons that do nothing more than suggest their own non-substantive meaning.

I could write pages about this platitude topic in its many everyday forms and effect. But, I will not bore the reader.  However, last night I stumbled across an extremely compelling example of a speech that effectively goes well beyond simple, conclusory platitudes.  This is a December 7, 1964 speech in London by Dr. Martin Luther King Jr. that was discovered only recently by Pacifica Radio Archives.  Dr. King gave this speech before travelling shortly thereafter to Oslo, Norway to receive his Nobel Peace Prize.   Click here for his speech.

I urge readers to listen to this speech in its entirety, and keep in mind one can still substitute — even today — in the context of Dr. King’s powerful speech all marginalized groups (who are persistently subject to entitlement-minded overreaching by others). This speech, in my opinion, is an extremely effective argument against the above simple use of platitudes.  It also speaks to leveling the playing field, right up my alley.

At a minimum, listen to this speech beginning at 37:20 where Dr. King’s commentary about non-violence illustrates superbly the difference between someone merely voicing  “non-violence” as a feel-good platitude, compared to Dr. King’s powerful and substantive expression of how one actually can practice non-violence.

 

A “Directed Trust” Primer (my recent 9.19.19 Leimberg Information Services newsletter)

I published a very good primer on directed trusts last week for Leimberg Information Services. Click here for a copy of the primer. You are welcome to reprint or email this pdf primer for other readers. For many of you I believe my discussion about using a directed trustee for investment management is important, and can greatly help prevent Madoff scams.  Please contact me if you have any questions:  james@ktlawllc.com

Cryptocurrency and Digital Assets

This is my second blog post dealing with the increasing Brave New World of “digital assets” and how these assets fit with a person’s estate planning. Below are a few of my brief comments about cryptocurrency:

(1)  In the cryptocurrency world, a person’s “private key” is the crucial element separating access to one’s cryptocurrency and its loss (likely permanent). The private key is analogous to a password. My strong point here is to keep a backup of your private key, and let trusted family members know where they can find your private key in the event you are unable to provide it (your death, disability, etc.). There are hundreds of web references to individuals having permanently lost millions of dollars in cryptocurrency due to lost private keys.  Click here for an example from Wired magazine referring to a CEO who recently died;  and no one can find his private key to an estimated $137 million in cryptocurrency;

(2)  The above access / backup problem is particularly elusive, and difficult, as many cryptocurrency users are extremely private about this subject, often to the intentional exclusion of their family members, etc.;

(3)   As a related aside, the IRS, no doubt, is interested in your cryptocurrency.  IRS Notice 2014-21 is its first published guidance in the form of answers to frequently asked questions.  Click here to read this notice;

(4)  The above IRS Notice includes a great deal of information. Two points likely a surprise to most readers are:  (i) the IRS is treating cryptocurrency transactions for income tax purposes as a “sale or exchange”. For example, if you use $50,000 of  cryptocurrency to purchase an item;  you will trigger gain or loss on the $50,000 depending on your cost basis in your cryptocurrency, etc. I purposely do not include more detail about this gain / loss treatment for this post; and (ii) Notice 2014-21 expressly states the IRS will treat cryptocurrency as property, not as currency.  For estate tax planning purposes, this means cryptocurrency will be inludable in the owner’s estate at death, with a stepped-up (or stepped-down) cost basis based on the cryptocurrency FMV at the person’s death;

(5)  Finally, I strongly recommend an express provision dealing with crypocurrency be included in a person’s estate planning documents (trustee, executor, power of attorney powers, etc.). Below is my current draft of possible language for dealing with cryptocurreny (again, this is merely my example language for this post;  no reader may rely on this provision as legal or any other advice from me or my law firm):

“To handle on my behalf any of my digital asset “cryptocurrency“, defined for purposes of this DPOA [durable power of attorney] as digital assets that are exchanged electronically and based on a decentralized network or exchange, with such exchanges not requiring a reliable intermediary and managed using distributed ledger technology. In broad terms I give my agent under this DPOA the power to accept or pay on my behalf any cryptocurrency, digital asset currency, funds, or other value that substitutes for currency from one person to another person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. The above term “other value that substitutes for currency” encompasses situations in which the transmission does not involve the payment or receipt of cryptocurrency, but does include, but is not limited to, my private and public keys, blockchain and ledger information, bitcoins, bitcoin addresses, and any other cryptocurrency user or account data or information related to such transactions or to any convertible currency related thereto on my behalf. My intent also is that my reference to “cryptocurrency” under this paragraph be read together as broadly as possible in the broad context of my reference to electronic communications content and the definition of “digital assets” under O.C.G.A. Section 53-13-2 (as amended) included in paragraph (gg) below;”