60 Seconds With an Attorney : Quick Q & A

"How do I form a corporation?"

by Reed Morris

The document that begins the process of forming a corporation is the Articles of Incorporation. Upon approval by the Secretary of State, your corporation will be recognized as a legal entity. However, your work is not done. You will need to draft bylaws and have them adopted by the corporation, issue shares, secure a tax identification number from the IRS, and consider whether you should choose a sub-Chapter S election.

"How do I file a mechanic's lien?"

by Reed Morris

Make sure to start the process early to give yourself enough time to comply with the statute that permits mechanic's liens. A mechanic's lien should be filed no more than 120 days after the last work. However, the process begins by completing a Statement of Lien. This must be mailed certified or served; thereafter, there is a 10 day window. If payment is not made within that 10 day period, then you can file the lien on the public record with the Clerk and Recorder in the county where the work was performed.

"What do I do when a landman calls?"

by Ralph Cantafio

Remember, the landman works for the producer and is not there to help the land owner. The landman is there to negotiate the best deal possible for the company - not you. Because an oil and gas lease creates a dominant easement, your use of the surface becomes secondary to the development of the oil and gas interest. The best thing to do is call an experienced oil and gas attorney to help you understand all of your legal rights.

"I have been approached by an Oil and Gas Company, should I negotiate a Surface Use Agreement?"

by Ralph Cantafio

By law, if you are a property owner and your property is going to be the subject of a drilling permit for oil and gas, prior to the filing of an application for that drilling permit the operator in many states must verify that they have first made a good faith effort to negotiate a Surface Use Agreement. A Surface Use Agreement defines the rights of the operator and the land owner (or user of that land) during the time of exploration, drilling and development of oil and gas as to the use of the property. Because a successful well might be functioning for decades, the signing of a fair Surface Use Agreement tends to be preferable for both the property owner and the operator than mere reliance on the common law. If you are approached, a landowner is prudent in contacting legal counsel.

"Do I need a real estate lawyer?"

by Ralph Cantafio

Real estate lawyers tend to be used in more complicated transactions and commercial transactions. A good real estate lawyer can be a great help if the property is going to be used differently than its historic use and when the property will require zoning amendments or other government approval. In these cases, it is important to contact a real estate attorney BEFORE you purchase. Early intervention is critical. For example, if there is a problem with the title and you call an attorney three days before a scheduled closing, it may be too late for the attorney to help you.

"What is title insurance?"

by Ralph Cantafio

Title insurance protects your title to property by claims that occur after you close. Prior to closing, the buyer will contact a title company. The title company issues a title commitment. That commitment will identify the property and state what the policy will insure and - just as importantly - the exclusions (things the title company will not insure). It is these exclusions/exceptions to title which require close scrutiny prior to closing. At closing, the title company will issue your title insurance and should anyone make a claim as to the property you own, your title insurance company will defend that claim.

"I've been sued!"

by Ralph Cantafio

Do not panic but do not procrastinate, either. The Rules of Civil Procedure provide deadlines as to when an answer must be filed. Significant rights can be lost by not filing documents on time or not filing the right documents. You should read the documents you are served closely. Make sure to write down the date and time you were served. This will sometimes determine when your answer must be filed with the court. While you do not have to hire an attorney if you are served as an individual defendant, it is always advisable to call an attorney. Remember, the earlier you call an attorney, the less likely you will be creating chaos by waiting until the last minute.

"How does someone get a green card?"

by Elizabeth Wittemyer

There are several ways to immigrate to the United States and obtain Legal Permanent Residency (a "green card"). The two most common ways are based on employment and family.

An employer can petition for a foreign employee to obtain a visa and work in the United States either on a temporary basis or a permanent basis, depending on several factors including the skills and experience of the foreign employee, the needs of the employer and the unavailability of American workers to fill those needs. A thorough review of the foreign employee's education, experience and history with the immigration process is essential in order to determine if the potential employee qualifies for a petition. In turn, a similar review must take place for the employer in order to determine if petitioning for a foreign employee is advisable.

Legal Permanent Residents ("green card" holders) and United States Citizens may apply for an immediate family member to immigrate to this country. Immediate family members are parents, spouses, children and siblings. One can also apply for a fiancé to enter the United States via a consular process. In general, if the person applying for their family member is a citizen, then the immigration process can start immediately or with generally shorter wait lists. If the person applying is a Legal Permanent Resident, their family member enters into a wait list system before they can apply for their "green card", usually via a consular process outside the United States.

The immigration process can be complicated and is fraught with many potential complications that are not evident. Obtain assistance from an experienced immigration attorney, preferably one that belongs to the American Immigration Lawyers Association.

"What should I do if I get stopped for DUI (Driving Under the Influence)?"

by Elizabeth Wittemyer

The basics: Pull over in a safe place, keep your seatbelt on and have your hands where the officer can see them, preferably on the steering wheel. Provide the officer with your driver's license, car registration and proof of insurance which should all be kept easily accessible, not buried in your glove compartment.

After that, the most important thing to remember is to maintain your right to silence. Answer the officer's direct questions politely, but do not argue, do not complain, do not try to explain yourself, do not try to talk your way out of the situation and do not lie. Inform the officer that you are going to remain silent, that you will not consent to VOLUNTARY testing, including a PBT (Portable Breath Test) which is unreliable and therefore inadmissible in court, and including VOLUNTARY roadside maneuvers. Many people get confused because the officer will often give the Express Consent advisement, which says that under Colorado law you have already consented to a chemical test of your breath or blood, and immediately ask for roadsides, making people think that the roadsides are mandatory. If arrested, you must indeed choose a breath or blood test or risk losing your license, but the roadside testing is voluntary. You have a right to maintain silence and not incriminate yourself by words or actions – use it.

Your right to silence is your best defense. Many people have made matters worse by trying to explain their actions. Save the explanations for the meeting with your attorney which should be scheduled as quickly as possible after the stop. By exercising your right to silence, you will improve your chances for a better outcome.

"Should I take "roadsides" if I get pulled over?"

by Elizabeth Wittemyer

Roadsides maneuvers in Colorado are voluntary. There is no requirement that any driver take roadside tests. While it is true roadside tests might be an opportunity to show law enforcement that you are not under the influence of drugs and/or alcohol, the reality is that these tests are subjective – it will be your word against that of the officer. Roadside tests should always be taken at the peril of the driver. Also a probable breath test (commonly referred to "PBT") may be requested at the time of the roadside tests. The PBT also is voluntary.

"Should I take a blood or breath test?"

by Elizabeth Wittemyer

Under Colorado the law referred to as Express Consent, by operating a motor vehicle the driver has already consented to taking a blood or breath test if a law enforcement officer has probable cause to believe a driver is under the influence. The choice of whether to take either the blood or breath test is that of the driver. This test is typically administered at the local hospital if a blood test, or at a law enforcement facility if it is a breath test. However, the failure to take any test can result in an immediate and negative impact on your driving privilege. Often, the civil and administrative penalties for not taking the test for instance is the mandatory loss of your license for a minimum period of time. That consequence may be worse than the criminal sanctions that result from the taking the test. Please note, we are not talking about the portable breath test ("PBT") that a law enforcement officer might ask you to use at the location of the stop. The "PBT" is voluntary. It historically is not as accurate as the one utilized to satisfy the requirements of express consent.