As Seen Online: The Dangers of Do It Yourself Lawyering

            Recently, I caught up with a friend who is a former lawyer (if one can ever truly become a “former” lawyer). Having since moved on to other ventures, he began to reminisce about past cases and past clients. His greatest frustration, he confided to me, was having a client contact him after the client's problem had become too far gone to be salvaged. Often, this was because clients were hesitant to spend the money to hire a lawyer at the outset, instead attempting to deal with problems on their own.

            As an example, he told me of a particular client who had attempted to publish a book without first seeking his advice. The client was subsequently sued over some infringement issues that could have easily been avoided on the front end, and my friend found himself in a position of trying to mitigate, rather than trying to eliminate damages for his client. When the client asked why my friend could not absolve him of all responsibility for what he had done, my client’s honest answer was, “because you acted before you came to me.”

            Lawyers are problem-solvers. It’s in our DNA. It’s a skill we are taught in law school and that skill is sharpened each day we practice. It can become an all-consuming urge that we apply to situations we shouldn’t. It drives our spouses crazy and it causes communication disconnects with non-lawyers. But we are also problem-avoiders. In fact, contrary to popular belief, most of what lawyers do is designed to help our clients avoid problems in the first place, rather than to “bail them out” later.

            Unfortunately, life is messy. Conflicts happen. Drivers crash into other drivers. Contracts are breached. Marriages fail. And when those things happen, people call lawyers to help solve their problems. People seem more hesitant, however, to think about calling your lawyer to avoid problems before they arise. But you should do just that. It will cost you far less in the long run. Below are some common ways people cost themselves more because they try to save on the front end by not consulting a legal professional.

#1: Using Cheap Online Estate Planning (Wills & Trusts) Forms

            These forms are easily available online. When faced with the possibility of getting a free or cheap Will online or paying a legal professional to do it, the temptation of the free form is undeniably strong. After all, you tell yourself, you end up with a Will either way, right? Well, yes. You will have a Will. And heaven help you if that Will is contested. Consider the following:

§   The identity of the person(s) who drafted the Will forms you find online is usually not apparent. They could have been drafted by anyone.

§   It is a commonly held belief that estate planning is for the wealthy. But people of all economic levels benefit from a Will drafted by a qualified legal professional. A Will is designed to distribute your property to your beneficiaries with as little tax consequence as possible. Lawyers with extensive legal education provide the best advice on the distribution of an estate.  As for those who have few assets, there is a heightened importance of making sure that every asset is distributed as intended.

§   There are numerous rules to estate disposition, and every state has different rules. The online form you choose may have been drafted for North Carolina, Kansas, or California. An online Will, available to residents of Tennessee, may not include the specifics that are needed here.

§  Not only does your Will need to be written properly, there are very specific rules on how it must be executed. This service is already provided at an attorney’s office, so you do not have to worry that improper execution will invalidate your Will.

§  If your Will is challenged after you are deceased, the lawyer who helped you create it can attest to your intent and your state of mind at the time of execution. The fact that you created your Will in the presence of, and with the aid of, a legal professional, is solid evidence of your true intent.

            So yes, you can get a Will online at little to no cost. But the more relevant question is whether or not you have a solid Will that does its job after you die. If you choose not to work with a legal professional in disposing of your estate, you open up the possibility of causing problems after death that your Will was supposed to eliminate for your heirs. And you also eliminate that peace of mind that the Will was supposed to provide you in the first place.

#2: Attempting To Start A Business

            What business format is best suited for your particular situation? Which format helps you best achieve your long term goals? What does the language in the various business creation forms mean? Will it have an unknown effect down the road that prevent you from accomplishing your business objectives? Do the provisions on the form apply in your state? It is best not to find out the answers to these questions when problems arise. A lawyer can tailor the forms exactly to your needs and help you avoid costly, even disastrous, problems down the road. Again, this is an area where online forms are easily available, but should not be counted on to properly meet your needs as an entrepreneur.

#3: Attempting To Execute A Quitclaim Deed

            Quitclaim forms are easily accessible and fairly easy for anyone to execute. But they are not ideal for all real estate transfers. Furthermore, they often come with unforeseen implications. When transferring real property, it is always best to consult with a lawyer who knows real estate. And even if, after discussing the desired transfer with your lawyer, you decide a Quitclaim Deed is the best option, it is best to have that lawyer assist you in the creation of the deed and with the filing of that deed.

#4: Entering Into Contracts

            Boilerplate contracts are easy to find online. But few situations requiring a contract are one-size-fits-all. Again, the question arises as to which state’s laws apply to your contractual arrangement and how do they relate to the boilerplate language in the form? What are the implications of that language? Which party bears the responsibility of loss, for example, if a piece of real property is destroyed after contracting for it, but before closing? In a sales contract, which party bears responsibility of the loss while a good is in transit? What are the obligations of each party going forward? These are important questions, among many others, that should be addressed before any contract is signed. The language of your contract should be read and interpreted by a professional before entering into any contractual arrangements.

#5: Power Of Attorney

            Many people deal with a POA at some point in their lives, either by agreeing to become an Attorney-in-Fact for a loved one or by having another do so for them. Many who enter into a POA arrangement do not understand exactly which powers are being transferred. Which powers can be granted and which powers can be retained? How will the powers the Grantor decides to grant be granted and how can those the Grantor decides to retain be retained? What do those powers mean? How does your situation relate to these powers? In what situations are these powers transferred and in which situations are they retained? Reliable answers to these questions are requisite if one is to make informed decisions with regard to the creation of a sound Power of Attorney document. Once these answers are obtained from a lawyer, and once the resulting decisions are made, that lawyer can craft a personally-tailored Power of Attorney document that achieves your wishes and puts your mind at ease.

            Bottom line, your lawyer’s greatest skill set is his or her ability to prevent you from incurring problems before they arise. But you have to give that lawyer a chance to do so. If you are looking to plan for the dispensation of your estate, start a business, or have a real estate need, I hope you will consider giving me a call to put you in the best position to achieve your goals and avoid problems down the road.

Houston Akin, The Maloney Law Firm, 615.627.3845.

SEC Blog: Analyzing the Four Rookie Coaches for 2013

Last fall, I met a certain friend for dinner at The Cheesecake Factory. I will not state his name here, but this friend is a member of the sports media who covers Tennessee football. Naturally, the conversation soon turned to our beloved Vols. We were discussing the dim prospects for then-Tennessee coach Derek Dooley and my friend said, "Houston, what does that guy bring to the table?" I attempted to recite Dooley's perceived talents and my friend stopped me. "No, I mean, what does he give you? He's not a motivator. He doesn't even give pre-game pep talks. That team comes out of the locker room like they're half asleep. I know. I see them first thing when they come out. Nick Saban is an incredible motivator. Dooley's never been a coordinator, so he doesn't give you a systematic or tactical advantage. Bobby Petrino does that. He's not a dynamic recruiter. He refuses to even go to high school games on Friday nights. The top players in Tennessee feel no reason to play for him. Les Miles is a dynamic recruiter. So what does Dooley give you?"

I got it. My friend had made his point about Dooley. Tennessee AD Dave Hart apparently agreed that Dooley didn't give him anything, because he fired him less than two months later. But my friend also provided a list of the different means by which a head football coach can be a successful one. And that's the backdrop against which I want to discuss the topic of this blog: the four new head football coaches in the SEC. Tennessee replaced Dooley with Butch Jones from Cincinnati. Auburn ousted Gene Chizik and brought in his former Offensive Coordinator Gus Malzahn to replace him. Arkansas, in the wake of the Bobby Petrino motorcycle affair and failed John L. Smith interim experiment, brought in the biggest name of the four new coaches when they lured Bret Bielma from Wisconsin. With Dooley no longer around to save his job for another year, Kentucky replaced Joker Phillips with one of the Stoops boys, hiring Florida State Defensive Coordinator and Bob's little brother Mark. It is with the above-mentioned intangibles in mind that I discuss which of these hires will be most successful in their new positions (and perhaps beyond).

I'll start with Bielma at Arkansas. While Arkansas had an abysmal season last year under Smith, they had been a top 10-15 type program the three prior seasons under Petrino's guidance. If not for his extra-marital shenanigans, the Arkansas program is probably still rolling along as one of the top programs in the SEC West. As it stands, though, Petrino found himself a mistress, put her on a motorcycle, and wound up in a ditch. Arkansas' upward arc in the SEC crashed in that ditch along with Petrino's affair. Enter Interim Coach John L. Smith who guided the Razorbacks to their worst season since Petrino's first, and suddenly Arkansas needed to land a big name just to save face. They shocked a lot of folks when they hired Bielma. Here was the guy who'd lobbed grenades at the SEC while at Wisconsin, criticizing SEC recruiting tactics, suddenly coaching in the SEC. He seemed like a Wisconsin lifer. Now he's a Hawg.

Of the four new coaches in the SEC, Bielma would appear to have the best track record. He's been to the Rose Bowl the past three years and has the last three Big Ten trophies to show for it. But will Bielma fit in the SEC? What does he "give you"? He certainly doesn't recruit at an elite level. Wisconsin never had top recruiting classes under Bielma. His last 5 classes there ranked 57th, 56th, 40th, 87th, and 43rd nationally, according to Rivals.com. They're presently 2nd to last in SEC recruiting at the moment by the estimation of most recruiting services. That type of recruiting might work in a watered down Big Ten, but he'd better bring something else to the table to succeed in the SEC. Furthermore, what does winning the Big Ten the past three years mean? Michigan was rebuilding and Ohio State has been on probation. So was Penn State. Does a Big Ten title mean any more than a Big East title the past three years? I could make a serious argument that it does not.

Does Bielma provide a tactical advantage? Not really. His teams run a straight ahead rushing attack and have always had solid, not great, defenses. But Bielma's system doesn't do anything to get playmakers in space or put defenses at a disadvantage. Playing Alabama's style and LSU's style with inferior athletes is no way to win the SEC West. Bielma would appear to be a solid motivator, but not one who sets the world on fire. We'll see if that's enough. In my estimation, even though this was the most high profile hire of the four new SEC coaches, it's the one I think most likely to fail.

Tennessee brought in Butch Jones from Cincinnati to replace Dooley. The proud Volunteer program set all sorts of program lows in the past 3-5 years, including most losing seasons in a row (3) in program history. Almost as embarrassing for Vol fans, they trotted out a defense last year that put up less resistance than the French Army. It's been a humbling 5 years for the Volnation. So why should the UT faithful expect anything different from Jones than they got from Lane Kiffin and Dooley after forcing Phillip Fulmer out in 2008? Well, for starters, Jones has a history of success. Neither Kiffin nor Dooley had that. It seems absurd in hindsight, but as prestigious as the Tennessee job is, then-AD Mike Hamilton decided to tap two coaches with no rack record of success in the past two hires. Worse yet, he turned down Kevin Sumlin in favor of Dooley the last time.

In three years at Central Michigan and three years at Cincinnati, Jones won his conference four times and went bowling five times. He has certainly energized the Vol faithful (61,000 at the spring game, despite the recent abysmal seasons), ingratiated himself to former Vol players, and has recruited like a madman. Presently, Tennessee has the nation's #1 ranked recruiting class according to more than one service. It may take a couple of years, but the combination of Jones and Tennessee's arsenal of resources will be a winning combination. Jones brings a dynamic recruiting ability combined with an uncanny ability to motivate. That combination worked extremely well for Nick Saban in returning another fallen power to glory. Moreover, Jones brings an up-tempo offense that gets playmakers the ball in space and is designed to wear defenses into the ground. Jones would appear to have all three of the Big 3 coaching traits. Vol fans should exercise patience, however. The SEC isn't the Big East. And Tennessee doesn't have traditional Tennessee talent, even if it did find a coach. A bowl appearance following the 2013 season would be a great first step.

Mark Stoops raised a few eyebrows when he took the Kentucky job. His star has been on the rise the past few years while coordinating some outstanding Florida State defenses. Many thought he might hold out for a more prestigious job, especially given the cache' his last name carries in college football circles. Credit Kentucky AD Mitch Barnhart (who has to be considered one of the better ADs in America right now) for targeting Stoops and bringing him on board. Since that time, Stoops has recruited at a level Kentucky football has not seen before.

Stoops has been especially successful recruiting his home state of Ohio. Stoops' is a great recruiting strategy for UK: go into neighboring Ohio, one of the top 5 talent-producing states in America, and tell kids that they can move one state south where the weather is better and play in the nation's most elite football conference. Ohio State can't take them all. Moreover, some Ohio kids might not fit Urban Meyer's preferred profile of homicidal female abusing gun carrying future convict. It doesn't hurt that Stoops can tell those kids he's a native or that he can utilize the connections that come with being one. At one point, UK had the #1 class in America according to Rivals.com. While they've fallen off since then, they will finish with a top 15-20 class, which is an amazing accomplishment at Kentucky.

But Stoops' talents don't end with recruiting. He was a great defensive coordinator. Defense, after all, runs in the Stoops' blood. So he also gives Kentucky a tactical advantage on defense. While his ability to motivate is not yet clear (since this is his first head coaching gig), he certainly has Kentucky fans excited about something other than basketball. They set a spring game attendance record with more than 50,000 people in attendance. If he motivates players as well as he motivates fans, Stoops may have all of the Big 3 coaching traits. I'm predicting Stoops will be a great hire for Kentucky and will rank alongside Jones as the two best hires of the four new coaches in 2013. The question after that will be, how long does he stay at Kentucky after he finds success?

Gus Malzahn takes over a very interesting situation. The Auburn program, since the mid 2000's, has been the most schizophrenic in the SEC, maybe America. Under Tommy Tubberville in 2004, Auburn went undefeated and was cheated out of a shot at the National Championship by the AP and Coaches polls so that Oklahoma could practice their semi-annual choke in the Big Game. But by the end of 2008, they found themselves at 5-7 and Tubberville was out the door. Enter Gene Chizik, who had only won two games the prior season at Iowa State. Many Auburn fans were irate that Tubberville had been let go for a guy with a 2-10 record. Two years later, Chizik, with significant help from his offensive coordinator Gus Malzahn and a JUCO transfer QB named Cam Newton, won the BCS Championship. But Newton and Malzahn departed and two years later, Chizik was out of a job. The stage was set for Gus' Return to The Plains.

Malzahn's most obvious talent is as an offensive schemer. "Offensive Guru" is as associated with his name as much as "Defensive Guru" is with Nick Saban's. His offense puts up points at a rapid pace and allows players make plays in space. It's most effective with a QB who can run and throw, but he can also make it work with a drop-back thrower or power Running Backs (remember, it was Malzahn's offense at Arkansas that first made the "Wildcat" popular, using Darren McFadden and Felix Jones in the same backfield to carve up defenses). But his recruiting ability is a question mark. Auburn currently stands between 20-25 in the nation, ranking them 9th in the SEC. While Malzahn's ability to scheme, like Petrino's ability to scheme, mitigates average recruiting, his ability to recruit at the elite level required to win the SEC is a question that must be answered before I'm prepared to rank this hire up there with the Jones and Stoops hire. Still, I think it was a very good one for Auburn.

Time will tell what happens with these four coaches, but being a fan is made more fun because of speculation. So I'll make my prediction. In five years, we will look back on these four hires and see the following:

-Butch Jones will be coaching a powerhouse at Tennessee.
-Mark Stoops will be at a bigger job after giving the Kentucky program a huge boost in four years, winning 9 games (yeah, I said it) in his last season there.
-Gus Malzahn will still be at Auburn. He won't have any SEC titles to his name, but he'll be guiding a consistent program that challenges for the SEC West each year. And if Saban gets tired of dominating at Alabama and moves to the NFL, Malzahn may find himself on the verge of swinging the power in the state back to Auburn.
-Bret Bielma will no longer be at Arkansas. After putting together 6-6 or 7-5 type seasons his first two or three years, his poor recruiting ability will catch up to him and he'll have two losing seasons before getting the boot. But at least he won't have to crash his motorcycle to get it.

The Tennessee Whiskey Renaissance

Little known fact: prior to Prohibition, the state of Tennessee produced more whiskey than the state of Kentucky. Tennessee's whiskey heritage was the result of a heavy settlement of Scots, Scots-Irish, and Irish in the region. These were a people who knew how to convert grains and corn into alcohol. In 1810, there were 14,191 registered distilleries in the state producing 25.5 million gallons of whiskey. Unfortunately for whiskey-makers in the Volunteer state, the effect of the 18th Amendment left all but the two big boys, Jack and George, looking for other work or making mash beneath the pale moonlight and selling it from their boots, all the while looking out for the revenue man. By the time the 21st Amendment repealed the 18th, a whiskey-drinker's legal options were limited if he wanted to purchase distinctive Tennessee Whiskey, known for its use of "The Lincoln County Process," a method of charcoal mellowing prior to distillation so as to remove impurities, increase smoothness, and add the smokey flavor Tennessee Whiskey is known for. One had to go to The Big Two.

All of this isn't to say that Prohibition killed Tennessee's whiskey heritage or its reputation as a large producer of whiskey. Jack Daniel's is the largest seller of whiskey on the planet. No name is as recognized in the whiskey business...dare I say, in the spirits business...as Jack. George Dickel, while not as well known and more cheaply priced, is revered by whiskey critics, many of whom consider it the best true example of what a Tennessee whiskey should taste like. Country singers from George Jones to Dean Dillon paid homage to Tennessee Whiskey and Frank Sinatra made it cool for everyone to drink Jack.

But Prohibition, along with the state legislature, did destroy variety. Once the 21st Amendment made whiskey-selling legal again, the state of Tennessee limited distillation to three counties: Moore, Lincoln, and Coffee. And since Jack and George had claimed that area as their own, it was very difficult for new distilleries to gain a foothold in those counties.

After the new millennium, however, things began to change. Benjamin Prichard's distillery opened in Kelso, TN in 1997, producing rum. A darn good rum too. Its owner, Phil Prichard (he named the distillery after his fifth generation grandfather who had been a pre-Prohibition Tennessee Whiskey distiller) decided it made sense to make whiskey too. And so he did. And, come to find out, using old Benjamin's recipe, he makes a REALLY GOOD whiskey product.

Some folks in both the state legislature and the citizenry began asking themselves why our great state with its proud whiskey heritage had been forced to wait nearly 100 years to try a new distillery's take on Tennessee Whiskey. It didn't seem right. After all, as is the case with our barbecue, our good lookin' women, our music, and our college football pre-games, nobody does whiskey better than Tennessee. Furthermore, looking northward, folks saw the revenue generated from distillery tourists in Kentucky and realized what a boom that could become to Tennessee's already powerful tourism industry. With those thoughts in mind, discussions began about re-opening whiskey production to the other 92 counties in the state. In 2009, after mild opposition from a few teetotalers, the Tennessee General Assembly amended the statute that limited distillation to three counties and expanded it to forty-one others who wished to distill. In the past year, Hamilton County has been added to that list with subsequent legislation.

The whiskey re-emergence was immediate. Mike Williams created Collier & McKeel in Nashville and its first product hit the shelves in 2011. The Tennessee Spirits Company has been producing its Jailer's and Breakout Rye whiskeys in an Ohio warehouse while its Pulaski Distillery is being built (the distillery is expected to open by the end of 2013). Chattanooga Whiskey Company, which led the fight in Hamilton County, is also building its own distillery near downtown, which it hopes to have open and running by January of 2014. Chattanooga Whiskey currently outsources the production of its two products, 1816 Reserve and 1816 Cask (a 114.6 proof whiskey), until the distillery is up and running. Like Prichard's and Collier & McKeel, Chattanooga Whiskey is the revival of a pre-Prohibition recipe. Another pre-Prohibition recipe revival is now produced by Nelson's Greenbrier Distillery, located in Greenbrier, TN. Their product is called, "Belle Meade Bourbon," an ode to the famous Nashville plantation's thoroughbred racing roots, also using an ancestor's whiskey recipe.

The most unique new whiskey in Tennessee has to be Nashville's Corsair Artisan Distillery. It might be the most unique whiskey in America. Corsair's lead product, its "Triple Smoke," is made in the traditions of celtic malt style whiskeys, but with a smokiness that surpasses even the Tennessees. Corsair was founded by childhood friends, Darek Bell and Andrew Webber before Tennessee changed its whiskey laws. So instead of opening in Nashville, they produced their whiskey in Bowling Green, KY and waited until the General Assembly got around to fixing things. Once that happened, Bell and Webber opened a distillery in Nashville in the old Marathon Motorworks Car Factory. If you're in the area, it's worth a tour, both for the whiskey and to view the historic building. Plus, their taproom features a nice variety of Nashville's best craft beers.

Other new Tennessee Whiskey brands can be found at The Gatlinburg Barrelhouse (featuring Davy Crockett's Ole' Coonskin Whiskey), and future distilleries such as Beechtree (a Nashville distillery using spring water from Fernvale), TennSouth (Pulaski), and Full Throttle (Trimble). Numerous other distilleries have opened or are opening in Tennessee producing unaged whiskey. I refuse to call it moonshine since the revenue man got his cut.

For up to date information on the Tennessee Whiskey re-emergence and a map/description of all the distilleries on the Tennessee Whiskey Trail, follow along here: http://www.tennesseewhiskeytrail.com/