Recently, the American Civil Liberties Union (ACLU) filed a case against Arkansas because the state passed a law that allows insurance companies the liberty to refuse treatment of transgender individuals. A law like this, though not criminal, can still be taken to court and overruled. Civil litigation is a lawsuit against an action that has caused some injury to a person. At Hickey and Hull Law Partners, we handle civil cases and help you get the justice you deserve.

I believe that nearly everyone needs a will or at least some equivalent estate plan (Trusts, beneficiary deeds, etc.). If you are totally broke and have no children, then you probably do not need a will. But most other folks can benefit from having at least some basic estate planning (with the most basic generally being a will). There is a bit of a misconception out there that if you do not have a large estate then there is no benefit to having a will. That is simply not true. If you have any property that you want to pass down, then you should prepare the proper documents to make those transfers when you are gone. For most people, the property is going to need to go through the probate process in some manner. Preparing a will and establishing who you want to be the administrator of your estate is reason enough alone to do one.

If you want to ensure that your property passes to the people you want to receive it, then you will need to make a will. If you do not do so, then the laws of the state will govern who receives the property - which may not be what you’d prefer. For example, in Arkansas that might very well mean your children receive property that you wanted to go to your spouse. Or, vice versa, it could give property to your spouse that you wanted to go to your kids. The other benefit of preparing a will or doing basic estate planning is establishing what property you have to pass down. Often when an individual passes, it can take a substantial amount of time to track down all of his or her property/assets - and some surely go unclaimed.

The last thing most of us want to do is to think about what will happen if/when our health starts to deteriorate. Fortunately, for most of us that will be a slow process that takes place over decades. But nobody can really know how our body and mind will age. Lawyers know all too well that someone can lose mental capacity before anyone has time to even react. Accidents, diseases, etc. can hit fast forward on that process. The point of this is not to make everyone reading it feel depressed. It is to emphasize the importance of planning ahead.

If you lose the ability to make healthcare decisions for yourself, who do you want to have the authority to decide for you? That is of course a very big decision. And I think it is one that most people would like to make for themselves. The good news is that you can do just that and you can retain some control by establishing certain requirements for your treatment. This is typically done by executing power of attorney forms and/or by preparing a living will. If you have not already prepared these or similar documents then it is highly recommended that you consult with an attorney to do so. Like most estate planning issues - the sooner, the better.

Whenever you need to hire someone to do construction work, you expect them to do the job right. Unfortunately, not all contractors meet that expectation. What can you do in that case? Often you will have a written contract with the contractor that provides you remedies for inadequate construction. In some situations, you may also have recourse under a specific statute. However, even when you do not have a written contract or a statute directly on point, you will be happy to know you may still have a cause of action.

The Arkansas Supreme Court has held that “the general rule is that a contractor or builder impliedly warrants that the work he undertakes will be done in a good and workmanlike manner and will be reasonably fit for the intended purpose.” Carroll-Boone Water Dist. v. M. & P. Equip. Co., 280 Ark. 560, 575, 661 S.W.2d 345, 353 (1983). In other words, the job should be completed up to reasonable standards. Whether the standards have been met can be unclear in some cases, which can lead to litigation. But knowing your rights can go a long way to protecting you from being ripped off by a bad contractor.

Not all cases are successful. In civil litigation, the very nature of most cases will dictate that unless the parties reach a settlement there will be at least one winner and one loser. In most instances, a case is not necessarily closed with the ruling of the judge or jury. That ruling can typically be appealed to a higher court. The option of an appeal may sound like a life vest for your case, but oftentimes that simply is not the truth of the matter.

Before you decide to file an appeal you should take into account some of these key considerations. Appeals rarely allow you to have another bite at the apple. An appeal is not a chance to try the case again. The appellate court will most likely be limited to the evidence previously entered into the record in making its decision. The appellate court generally serves as a review of the legal issues; not a second-level factfinder. In most cases where the appellate court does consider factual issues, it will provide a substantial level of deference to the trial court’s determination. Ultimately, this manner of review leads to the appellate court affirming the trial court’s ruling the majority of the time. Studies have varied on reversal rates; however, as an example, a study of the U.S. Court of Appeals decisions in 2015 found that the lower court’s decision was reversed less than 9% of the time.

Despite these facts, there are still times where an appeal will clearly be in your best interests. This is primarily so where the lower court has made a ruling that is directly against established law. The only way to remedy that ruling will likely be through the appeals process. There are also situations where the law on an issue is not clear and/or may be reasonably interpreted in different manners. If you think your case may have a strong chance of appeal, you should get with an attorney immediately. The law requires that an appeal be timely filed and failure to file before the deadline will generally be fatal to your appeal; regardless of the strength of your claim.

One of the worst things a parent wants to experience with a child is the criminal justice system. Fortunately, the courts have a very different process for juvenile criminal defendants than adults. The juvenile system is built upon the idea of rehabilitation. The Court often considers and, in my experience, generally prefers probationary options for juvenile defendants. Because of this, the juvenile system tends to be more collaborative. The parties involved in a case are much less likely to simply be the state and defendant. The Court will likely involve the juvenile’s parents and possibly counselors, school officials, etc.; there will also be an intake and/or probation officer.

The juvenile defendant still has certain rights and will be given the opportunity to challenge the charges. While juvenile defendants do have most of the same rights as adult criminal defendants, one notable exception is the right to a jury trial. This means that the Judge will likely be determining the outcome of the case. When a juvenile is taken into custody, he or she has a right to a detention hearing within 72 hours. If the juvenile remains in custody then an adjudication is generally required to be held within fourteen days. The adjudication hearing is essentially the trial in the juvenile court setting.

If the allegations against your child are false, of course, you will likely want to fight and make a strong defense. But it is also important to understand the benefits of being proactive in the rehabilitative process. This is where knowledge of the juvenile system can be particularly helpful.

Non-compete provisions are one of the more common topics that we get questions about when it comes to employment agreements. Many employees sign employment agreements without paying any attention to the non-compete buried within it. Some employers use templates or form agreements that contain non-compete provisions that they do not even understand. Because of this, it seems many people are operating under non-competes without a full understanding of their enforceability. And in some cases neither the employer or employee appears to know their rights.

A.C.A Sec. 4-75-101

In 2015 the Arkansas legislature passed a law that drastically changed the enforceability of non-compete agreements. The courts had previously established a policy against the enforcement of non-competes. But this new statute explicitly established their enforceability - clearly indicating an intent to change the policy of the courts. Under this statute, a well-written non-compete agreement will generally be enforced.

Key Considerations

There are a few primary considerations with non-compete agreements. First, a non-compete agreement is only enforceable where the employer has a “protectable interest.” What constitutes a “protectable interest” is a relatively broad category. Common examples of protectable interests include confidential information, customer lists, intellectual property, customer goodwill, and profit margins. Another consideration is whether the restriction on competition is overly broad. The duration and geographic boundaries of the restrictions should be only as much as necessary to protect the employer’s interests. The Court will look towards factors such as the nature and location of the employer’s business in determining whether the restrictions are reasonable. However, two years post-termination is a presumptively reasonable amount under the statute. Importantly, where the restrictions are overly broad, the court may engage in a process called blue-penciling, which allows the court to essentially re-write the agreement so that the non-compete is reasonable and enforceable.

Before you sign a non-compete it is important that you understand the restrictions being put into place. For some, the restrictions in a non-compete provision can define the course of a career. Non-competes should not be overlooked. If you have questions about the enforceability or scope of a non-compete provision it is recommended that you consult with an attorney to discuss the matter.

Before forming a new entity, it is important that you understand the different types of entities that exist under Arkansas laws. Companies are unique and a different entity may make sense for some that would not for others.

There is a right way and a wrong way to set up a new business. You may have a million-dollar idea, but if you do not start your company in the proper way even a great business can cause you a whole lot of headaches.

Before a case goes to trial, the parties are allowed to engage in a process known as discovery. During this phase of litigation, the parties gather and exchange information. One of the tools a party can use to obtain information is through the use of interrogatories.

Interrogatories are a series of written questions that are served upon another party in the case. In Arkansas, the receiving party must generally respond to these questions within thirty (30) days. Rule 33 of the Arkansas Rules of Civil Procedure establishes the manner in which a party should respond to a set of interrogatories. The rule also outlines the manner in which a party may object to a certain question. Typically, the Court will allow broad requests for information. Some of the most common objections are where the requests will not lead to any relevant information or where the requests seek information protected by attorney-client privilege.

If you are seeking information in your case, you can utilize interrogatories to obtain information without the expenses that are associated with other forms of discovery such as a deposition. One notable downside to interrogatories is that they allow the other party to have weeks to formulate a response rather than the seconds he or she may have to respond while testifying in a deposition or at a hearing.

If you have received interrogatories, the key thing to remember is that you need to respond or object in a timely manner. Failure to do so can lead to discovery sanctions and/or unnecessary additional litigation. If you are able to respond in a quick and complete manner you can save a substantial amount of time and resources that might otherwise be tied up in the discovery process.

Much of our communication in today’s world is done via text messaging or some other type of messaging app (e.g. Facebook Messenger). These easily recorded conversations can be helpful during litigation, but you want to avoid some common pitfalls if you plan to use them in court.

As an initial matter, you should know that text messages will not always be admissible in court. There are issues regarding relevance, hearsay, and other evidentiary rules that may keep the messages from being entered into evidence.

In instances where it is appropriate and you want to use a text message as evidence, you still need to make sure you have accounted for the who and when. The most common questions tend to relate to who sent the text and what date the text was sent. So if you have a screenshot of a text message and it does not have a date anywhere on it, that can be a problem. Similarly, if you have a screenshot that does not specify who sent the message, that can also be a problem.

There are online services that you can use to retrieve messages from your phone and create a document that clearly indicates which number sent each text and when each text was sent. We often encourage clients to utilize this service when the case is going to involve numerous text messages; the cost to the client for that service is typically completely offset by the saved attorney’s fees from the increased efficiency in reviewing the messages.

If you are using screenshots then here are some tips to follow:

• Account for the date the messages were sent. This may mean taking multiple screenshots of the thread going back to the beginning of the conversation on that date.
• Have appropriate names for individuals within the message thread. If you are introducing the text messages of an opposing party, you should not have a derogatory name for that individual (particularly if you are involved in a family law matter). I often recommend removing the name or changing it to the individual’s phone number.
• Have the phone number of the party sending the message apparent in the screenshot. Again, that may mean changing the contact’s name in your phone to that number.

In a perfect world, separated parents would put their children first and their feelings of animosity second. Unfortunately, this doesn’t always happen: If a person doesn’t have the proper coping techniques, it can be hard to identify and control these negative feelings towards their ex-spouse.