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Massachusetts Basic Practice Manual
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An instant law library

Product Number: 1910268B00
Publication Date: 2/21/2013
Edition: 4th Edition 2012, with 2013 Supplement
Copyright: © 2013 MCLE, Inc.
Update service: Supplemented annually.
Formats: Print Book    add to cart | add to Favorites
1236 pages in 2 volumes (Looseleaf) with Forms on Disc
$195.00; $175.00 MCLE Sponsor Member
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EPUB, MOBI, or PDF
$195.00; $175.00 MCLE Sponsor Member
Features...
  • 1,236 pages, 13 chapters, in a comprehensive 2-volume set
  • specifically designed for lawyers on the front lines of today's legal practice
  • CD with more than 300 exhibits (forms, checklists, and other useful resources)
  • looseleaf format for interfiled supplements

Product description

MCLE's Massachusetts Basic Practice Manual gives you immediate access to your own instant law library in the most important areas of solo and small firm practice—over 1,200 pages of substantive law and practice guidance.

Compiled for attorneys who practice in multiple areas, MCLE's Massachusetts Basic Practice Manual includes citations to the most important statutes and cases, procedural requirements, checklists, step-by-step explanations of how to handle problem areas, sample forms, and much more.

Table of Contents

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Chapter 1 - Taking the Case: Conflicts of Interest (Buy Chapter)
Richard L. Neumeier, Esq., Morrison Mahoney LLP
Introduction
Prior Representations
Simultaneous Representations
Independent Professional Judgment
Lawyer as Witness
Prior Representation of Adverse Party
General Principles
Screening
Simultaneous Representation of Conflicting Interests
Independent Professional Judgment
Other Matters
Prohibited Transactions
Government Lawyers
Lawyer as Witness
Accepting Employment
When the Lawyer Is Called by Opposing Counsel
Appealability of Disqualification Orders
Chapter 2 - Understanding Client Fund Account (Buy Chapter)
Stephen M. Casey, Massachusetts IOLTA Committee
Jayne B. Tyrrell, Esq., Massachusetts IOLTA Committee
Introduction
A Standard of Strict Accountability
What Funds Are "Trust Funds"?
Definition
Handling of Client Funds
Conveyancing Accounts
Advanced Fees and Retainers
Definition
Deposit of Retainers
Attorney Fees
Accounting to Client for Fees Earned
"Nonrefundable" and Flat Fees
Depositing Funds into an IOLTA Account or a Separate Interest-Bearing Account
Deposits to Trust Fund Accounts
Which Funds?
When?
Where?
How?
Notify Client
Disbursement of Client Funds
Timing
Amounts
Identify the Transaction
Signature
Internal Controls
Interests of Third Parties
Operational Requirements
Length of Time Records Need to Be Retained
The Use of Computerized Records
The Types of Bank-Created Documents That Need to Be Retained
Suggestion for Filing Bank-Created Documents
Types of Client Accounting Records Required to Be Retained
The Client Ledgers
Bank Charges Ledger
Check Register
Reconciliation
Dishonored Check Notification Rule
Refund Policy
Internet Scams Targeting Lawyers
Exhibit 2A - Text of Mass. R. Prof. C. 1.15—Safekeeping Property (Buy Form)
Exhibit 2B - Mass. R. Prof. C. 1.5—Fees (Buy Form)
Exhibit 2C - Attorney’s Notice of Enrollment (Buy Form)
Exhibit 2D - Client Ledger (Buy Form)
Exhibit 2E - Client Funds Check Register (Buy Form)
Exhibit 2F - Reconciliation Worksheet (Buy Form)
Exhibit 2G - Ten Frequently Asked Questions (Buy Form)
Chapter 3 - Drafting Simple Will and Trust Clauses (Buy Chapter)
Tracy A. Craig, Esq., Mirick, O'Connell, DeMallie & Lougee LLP
Ruth A. Mattson, Esq., Bove & Langa, PC
Christopher G. Mehne, Esq., Bowditch & Dewey LLP
Janet Wilson Moore, Esq., Mirick, O'Connell, DeMallie & Lougee LLP
Introduction
Simple Will
Exordium
Payment of Just Debts and Expenses
Gifts of Tangible Personal Property (Exhibit 3A, Article First)
Cash
Investment Property
Insurance
Memorandum or Letter of Instructions
Cost of Delivery
Income Taxes
Survival
Alternative Tangible Personal Property Clauses
Specific Devises
Form of General Devise of Cash
Form of Specific Devise of Stock
Form of Charitable Devises
Disposition of the Residue (Exhibit 3A, Article Second)
Powers of the Personal Representative (Exhibit 3A, Article Third)
Introductory Clause
Powers Granted by Section 3-715(a)
Statutory Optional Fiduciary Powers
Power to Compromise Claims Against the Estate
Power to Distribute Assets in Kind
Power to Employ Appraisers to Ascertain the Fair Market Value of Assets
Power to Incur Expenses, Including Reasonable Attorney Fees, in Estate Litigation
Power to Sell or Mortgage Real Estate
Power to Invest
Power to Retain Investments of the Testator
Power to Pay Costs of Delivery
Power to Insure and Transfer Insurance Coverage
Power to Distribute to, or for the Benefit of, a Minor
Power to Borrow, Pledge, and Mortgage
Power to Make Loans
Nominee Power
Power to Use Agents
Power to Operate a Business
Power to Manage Real Estate
Power to File Joint Tax Returns
Appointment of Personal Representative (Exhibit 3A, Article Fourth)
The Personal Representative
Selection of Personal Representative
Waiver of Sureties
Elimination of Temporary Executor
Special Personal Representative
Definition of Personal Representative
Possible Alternative Clauses for Article Fourth
Where Two Personal Representatives Are Desired
Authority to Delegate to a Co-Personal Representative
Majority Control, Three or More Personal Representatives
Liability of Personal Representatives
Tax Clause (Exhibit 3A, Article Fifth)
Rules of Construction (Exhibit 3A, Article Sixth)
Definition of Descendants
"By Right of Representation" Versus "Per Capita at Each Generation"
Persons Born Out of Wedlock (Illegitimate Children)
Thirty-Day Survivorship
Concept of Virtual Representation; Need for Guardian ad Litem
Possible Additional Clauses for Article Sixth
Omitted Descendants
Adopted Children
Testimonium and Attestation
Self-Proving Affidavit
Will Passing Residue to Trust
Overview
Defining Living Trusts Versus Trusts Under Will
Choosing Between Living Trusts and Trusts Under Will
Pouring Residue Over into Living Trust
Pour-Over into Separate Trust
Incorporation of Trust Agreement into Will by Reference
Preliminary Considerations when Drafting a Testamentary Trust
Spray Trusts Versus Separate Shares
Disposition of Income and Principal
Will with Testamentary Trust (Exhibit 3B)
Tangibles (Exhibit 3B, Article First)
Outright Disposition of the Residue (Exhibit 3B, Article Second)
Testamentary Trust Provisions (Exhibit 3B, Article Third)
Summary
Division of the Trust Property into Shares (Paragraph A)
Discretion of the Trustee (Paragraph A)
Partial Distributions at Specific Ages
Testamentary Limited (Nongeneral) Power of Appointment
Distribution of Trust Share if No Exercise of Special Power of Appointment
Trust Share for Beneficiaries Under Age Twenty-Five
Rule Against Perpetuities
Precatory Language and Termination of Small Trusts
Power to Terminate the Trust
"Ultimate" Disposition
Beneficiary's Medical and Funeral Expenses
Alternate Spray Trust Provisions (Exhibit 3C)
Use of Spray Trust
Trustee's Discretion
Withdrawal
Limited (Nongeneral) Power of Appointment
Separate Share Trusts for Minors
Avoiding the Rule Against Perpetuities
Ultimate Beneficiaries
Miscellaneous Provisions (Exhibit 3B, Article Fourth)
Omitted Descendants
Spendthrift Provisions
Survivorship
Powers of Personal Representatives and Trustees (Exhibit 3B, Article Fifth)
Power to Sell, Mortgage, and Lease and to Grant Options
Power to Retain Investments
Power to Invest
Power to Participate in Reorganization
Power to Pay Costs of Delivery, to Insure, and to Transfer Insurance Coverage
Power to Make Distributions in Kind
Power to Compromise Claims
Power to Borrow
Power to Make Loans and Deal with Testator's Estate
Power to Purchase and Maintain Real Estate
Power to Manage Real Estate
Power to Retain Agents and Grant Proxies; Nominee Power
Power to Distribute to, or for the Benefit of, a Minor or an Incompetent
Nominee Power
Common Trust Funds
Business Powers
Power to Determine Income and Principal
Power to Establish Reserves
Consolidation of Funds
Division of Trust into Shares
Environmental Remediation
Compensation of Fiduciaries
Additional Powers of Personal Representative (Exhibit 3B, Article Sixth)
Power to File Joint Tax Returns
Power to Make Tax Elections
Tax Clause (Exhibit 3B, Article Seventh)
Appointment of Fiduciaries (Exhibit 3B, Article Eighth)
Appointment of Personal Representative
Appointment of Trustee
Selection of Trustees
Cotrustees and Successor Trustees
Majority Control, Three or More Trustees
Liability of Trustees
Authority to Delegate to a Cotrustee
Appointment of Guardians and Conservators for Minors
Appointment
Duties
Waiver of Sureties
Waiver of Guardian Ad Litem for Accounts
Title to Property and Successor Personal Representatives and Trustees
Trustee's Accounts (Exhibit 3B, Article Ninth)
Definition of Personal Representative and Trustee
Descendants
Virtual Representation (Exhibit 3B, Article Tenth)
Virtual Representation with Respect to Personal Representative
Virtual Representation with Respect to Trustees
Rules of Construction (Exhibit 3B, Article Eleventh)
Definition of Personal Representative and Trustee
Descendants
Testimonium and Attestation
Codicil
Durable Power of Attorney and Health Care Proxy
Durable Power of Attorney
Health Care Proxy
Agent's Powers
Agent's Authority to Act
Revocation
Liability of the Agent and the Health Care Provider
Health Information Disclosure Authorization
Exhibit 3A - Simple Will (Buy Form)
Exhibit 3B - Will with Residuary Trust (Buy Form)
Exhibit 3C - Alternative Sample Language for Spray Trust with Separate Shares When Oldest Is Age Twenty-Two with Powers of Withdrawal (Buy Form)
Exhibit 3D - Codicil (Modifying Simple Will) (Buy Form)
Exhibit 3E - Durable Power of Attorney to Take Effect Immediately and Name an Alternate Attorney in Fact (Buy Form)
Exhibit 3F - Durable Power of Attorney to Take Effect on Incapacity (Buy Form)
Exhibit 3G - Health Care Proxy (Buy Form)
Exhibit 3H - Health Care Proxy Checklist (Buy Form)
Exhibit 3I - Authorization for Release and Disclosure of Health Information (Buy Form)
Exhibit 3J - Ten Frequently Asked Questions (Buy Form)
Exhibit 3K - Bibliography (Buy Form)
Chapter 4 - The Probate and Administration of Estates in Massachusetts (Buy Chapter)
Deborah J. Manus, Esq., Nutter McClennen & Fish LLP
Introduction
Preliminary Matters
Dealing with the Heirs
Dealing with the Probate Court
Use of Automobiles
Decedent's Body and Its Interment
Voluntary Administration of Small Estates
Voluntary Administration of Small Estates
Use of Voluntary Administration
Other Considerations
Advantages
Disadvantages
Payment of Small Sums Without Probate
Reregistration of Securities Without Probate
Probating the Will
Preliminary Matters
Locating the Will
Filing the Will
Statute of Limitations for Filing Actions
Filing the Petition for Probate-Informal Probate
Filing the Petition
Informal Notice
Allowance by Magistrate
Situations in Which Informal Probate Is Unavailable
Contesting an Informal Proceeding
Filing the Petition for Probate-Formal Probate
Overview
Filing the Petition
Formal Notice
Appointment of Personal Representatives, Special Personal Representatives
Order of Priority of Appointment as Personal Representative
Persons Not Qualified to Serve as Personal Representative
Renunciation of the Right to Serve as Personal Representative and Nomination of Another
Resignation of Personal Representative
Failure of Person with Highest Priority to Act
Supervised and Unsupervised Administration
Appointment of Special Personal Representative
The Probate Bond
Type of Bond
Bond Without Sureties
Bond With Sureties
Personal Sureties
Corporate Surety
Demand for Sureties by Interested Person
Amount of Bond
Bonds Issued Prior to the MUPC Effective Date of March 31, 2012
Collection and Management of the Estate
Preliminary Duties
Expanded Powers of Personal Representatives
Legal Proceedings to Recover Assets
Expenditures and Incurred Liabilities Relating to Estate
Performance of Contracts Made by Decedent
Carrying on the Decedent's Business
Care and Custody of Funds
Investment
Notice Regarding Septic Systems
Sales of Real Estate
Power to Sell Conferred in Will
License to Sell Real Estate to Pay Debts, Legacies, Charges of Administration
Sale and Transfer
Public Auction
General License to Sell
Procedure
Obtaining the Highest Possible Price
Payment of Debts and Claims
Obligations Created by Decedent
Claims for Services
Exempt Property and Spouse's and Minor Children's Allowances
Doubtful and Disputed Claims
Presentation of Claims
Property Liable for the Payment of Debts
Insolvent Estates, Spouse's Right to Waive Will, and Pretermitted Children
Insolvent Estates
Spouse's Right to Waive Will
Pretermitted Children
Rules of Inheritance, Descent, and Distribution
Heirs and Next of Kin
Intestate Share of Spouse
Share of Heirs Other than Surviving Spouse
Per Capita at Each Generation
Computation of Degrees of Kindred
Advancements
Additional Points
Afterborn Heirs
Adopted Children
Simultaneous Death
Closing the Estate
Inventory
Importance of Inventory
Preparing the Inventory
Property Excluded
Property Included
Property Requiring Special Considerations
Gifts
Joint Bank Accounts and Other Jointly Held Property
Property Conveyed in Defraud of Creditors
Probate Accounts
Informal Closing of an Estate
Formal Closing of an Estate: Petition for Complete Settlement
Exhibit 4A - Voluntary Administration Statement (Buy Form)
Exhibit 4B - Petition for Informal Probate of Will (Buy Form)
Exhibit 4C - Bond (Buy Form)
Exhibit 4D - Military Affidavit (Buy Form)
Exhibit 4E - Order of Informal Probate of Will (Buy Form)
Exhibit 4F - Notice of Informal Probate (Buy Form)
Exhibit 4G - Assent and Waiver of Notice/Renunciation/Waiver of Sureties/Nomination (Buy Form)
Exhibit 4H - Informal Probate Publication Notice (Buy Form)
Exhibit 4I - Petition for Formal Probate of a Will (Buy Form)
Exhibit 4J - Decree and Order on Petition for Formal Adjudication (Buy Form)
Exhibit 4K - Petition for Appointment of Special Personal Representative (Buy Form)
Exhibit 4L - Petition for a License to Sell for the Payment of Debts (Buy Form)
Exhibit 4M - Petition for a General License to Sell (Buy Form)
Exhibit 4N - Table Showing Order of Priority Among Kindred (Buy Form)
Exhibit 4O - Inventory (Buy Form)
Exhibit 4P - Account (Buy Form)
Exhibit 4Q - Petition for Allowance of Account (Buy Form)
Exhibit 4R - Closing Statement (Buy Form)
Exhibit 4S - Small Estate Closing Statement (Buy Form)
Exhibit 4T - Petition for Order of Complete Settlement (Buy Form)
Exhibit 4U - Decree and Order for Complete Settlement (Buy Form)
Exhibit 4V - Decree and Order of Insolvency (Buy Form)
Chapter 5 - Buying and Selling a Home (Buy Chapter)
Ruth A. Dillingham, Esq., First American Title Insurance Company
Introduction
Initial Consultation
Documents to Have at the Initial Interview
The Seller Client
The Buyer Client
Negotiating the Purchase and Sale Agreement and Preclosing Matters
General Concerns
Specific Items
Multifamily Dwellings
Condominiums
Financing Concerns
Awaiting the Closing
General Communication
Financing Concerns
The Bank Attorney
Title Problems
The Seller's Attorney
The Buyer's Attorney
The "Figures"
Other Issues
The Closing
Preparation
Actual Closing Procedure
General Tips
Exhibit 5A - Offer to Purchase (Buy Form)
Exhibit 5AA - Environmental Review Checklist (Buy Form)
Exhibit 5B - Lead Paint Notification Certificate (Buy Form)
Exhibit 5BB - Closing Checklist (Buy Form)
Exhibit 5C - Purchase and Sale Agreement and Author’s Sample Addendum (Buy Form)
Exhibit 5CC - Time Extension Agreement (Buy Form)
Exhibit 5D - Condominium Form of Purchase and Sale Agreement (Buy Form)
Exhibit 5DD - Second Home Rider to Mortgage (Buy Form)
Exhibit 5E - Buyer’s Adjustment Form (Buy Form)
Exhibit 5EE - Buying and Selling a Home: Ten Frequently Asked Questions (Buy Form)
Exhibit 5F - Seller’s Adjustment Form (Buy Form)
Exhibit 5G - Settlement Statement (Form HUD-1) (Buy Form)
Exhibit 5GG - Good Faith Estimate (Form HUD-GFE) (Buy Form)
Exhibit 5H - Truth in Lending Disclosure Statement (Buy Form)
Exhibit 5HH - Sample Information Form for Initial Client Telephone Call (Buy Form)
Exhibit 5I - Deed (Buy Form)
Exhibit 5J - Note (Buy Form)
Exhibit 5K - Mortgage (Buy Form)
Exhibit 5L - Adjustable Rate Note (Buy Form)
Exhibit 5M - ARM Rider to Mortgage (Buy Form)
Exhibit 5N - Condominium Rider to Mortgage (Buy Form)
Exhibit 5O - One- to Four-Family Rider to Mortgage (Buy Form)
Exhibit 5P - Plot Plan (Buy Form)
Exhibit 5Q - Municipal Lien Certificate (Buy Form)
Exhibit 5R - Attorney’s Certification of Title (Buy Form)
Exhibit 5S - Lead Paint Agreement (Buy Form)
Exhibit 5T - Smoke Detector Notice (Buy Form)
Exhibit 5U - Seller’s Title Insurance Affidavit (Buy Form)
Exhibit 5V - IRS Form W-9 (Buy Form)
Exhibit 5W - IRS Form 1099-S and Instructions (Buy Form)
Exhibit 5X - IRS Nonforeign Affidavit (Buy Form)
Exhibit 5Y - UFFI Certificate (Buy Form)
Exhibit 5Z - Rescission Notice (Buy Form)
Exhibit 5FF - Buying and Selling a Home: Bibliography (Buy Form)
Chapter 6 - Divorce Demystified (Buy Chapter)
David M. Bilodeau, Esq., Goldstein, Egloff, Ramos & Wood LLP
Introduction
The Initial Interview
The Divorce Complaint
Completing the Complaint
Accompanying Documents
Grounds for Divorce
Contested
Jurisdiction and Venue
Fees
Service and Answer
Financial Statement
Income Schedule
Expense Schedule
Assets
Liabilities
Motion and Temporary Order Hearings
Vacate Orders
Custody and Visitation Orders
Child Support Orders
Injunctions and Attachments
Insurance Coverage Orders
Discovery
Pretrial Conferences and Memoranda
Overview
What Is a Pretrial Conference?
Why Do You Want a Pretrial Conference?
What May Occur at the Pretrial,and How Do You Prepare for It?
Division of Assets
Section 34 Factors
Length of the Marriage
Conduct of the Parties During the Marriage
Age of the Parties
Health of Each Party
Station of the Parties
Occupation of Each Party
Amount and Sources of Income of Each Party
Employability of Each Party
Vocational Skills of Each Party
Estate of Each Party
Liabilities of Each Party
Needs of Each Party
Opportunity for Each Party's Future Acquisition of Assets
Opportunity for Each Party's Future Acquisition of Income
Contribution of Each Party in the Acquisition or Appreciation in Value of Their Respective Estates
Present and Future Needs of Children
Tax Implications
Amount and Duration of Alimony (Pursuant to the Alimony Reform Law)
Alimony
Types of Alimony
Duration of General Term Alimony
Grounds for Termination of Alimony
Determining the Amount of Alimony
Factors for Determining the Amount of Alimony
Factors for Ordering a Deviation in the Amount and Duration of Alimony
Attribution of Income
Excluding Additional Income from Alimony Amount
Trial Preparation
Checklist and Trial Plan Forms
Proposed Pleadings
Counsel Fees Motion
Trial Notebooks
Separation Agreements
Survival Versus Merger
Clauses of Importance
Children
Property Division
Support of Spouse
Miscellaneous
After the Divorce Judgment Enters
Nisi Period
Post-Judgment Documents
Post-Judgment Motions and Appeal
Contempt Actions
Modification Actions
General Principles
Modification of Alimony Pursuant to New Alimony Law
Exhibit 6A - Checklist of Important Issues (Buy Form)
Exhibit 6B - Client Questionnaire (Buy Form)
Exhibit 6C - Client’s Memorandum on Divorce (Buy Form)
Exhibit 6D - Client’s Memorandum on Children’s Concerns During Divorce (Buy Form)
Exhibit 6E - Child Support Guidelines (Buy Form)
Exhibit 6F - Thirty Days Until Trial Checklist (Buy Form)
Exhibit 6G - Sample Separation Agreement (Buy Form)
Exhibit 6H - Joint Petition for Divorce (Buy Form)
Exhibit 6I - Complaint for Divorce (Buy Form)
Exhibit 6J - Financial Statement (Buy Form)
Exhibit 6K - Uniform Counsel Certification Form (Buy Form)
Exhibit 6L - Divorce/Separate Support Summons (Buy Form)
Exhibit 6M - Standing Order 1-06 (Buy Form)
Exhibit 6N - Supplemental Probate and Family Court Rule 411 (Buy Form)
Exhibit 6O - Ten Frequently Asked Questions (Buy Form)
Chapter 7 - Choice of Business Entity (Buy Chapter)
James R. Burke, Esq., Hinckley, Allen & Snyder LLP
Introduction
Forms of Business Organization
Sole Proprietorship
Corporation
General Partnership
Limited Liability Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Comparing the Choices
Limited Liability
Sole Proprietorship
Corporation
General Partnership
Limited Liability Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Separate Legal Entity
Sole Proprietorship
Corporation
General Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Management and Control
Sole Proprietorship
Corporation
General Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Continuity of Existence
Sole Proprietorship
Corporation
General Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Transferability of Interests
Sole Proprietorship
Corporation
General Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Ease and Expense of Organization
Sole Proprietorship
Corporation
General Partnership
Limited Partnership
Limited Liability Company
Massachusetts Business Trust
Sources of Operating Capital
Sole Proprietorship
Corporation
Partnership
Limited Liability Company
Exhibit 7A - Ten Frequently Asked Questions (Buy Form)
Chapter 8 - Organizing a Massachusetts Corporation (Buy Chapter)
David A. Parke, Esq., Bulkley, Richardson and Gelinas LLP
Introduction
Name
Actions of the Incorporators
Articles of Organization
Use of Forms; Filing
Contents
Required Information
Optional Provisions
Purposes
Par Value for Authorized Shares or Classes of Shares
Preferences, Limitations, and Rights of Any Class of Shares
Restrictions Imposed by the Articles on the Transfer of Shares of Any Class or Series
Minimum Number of Directors
Action by Less-than-Unanimous Shareholder Consent
Power of Directors to Amend Bylaws
Majority Shareholder Approval of Extraordinary Actions
Personal Liability of Directors
Indemnification
Power of Directors to Create Classes or Series of Stock
Miscellaneous Other Provisions
Supplemental Provisions
Bylaws
Shareholders
Directors
Officers
Indemnification
Other Bylaw Provisions
Actions of the Initial Directors
Capital; Share Certificates
Shareholder Agreements
Section 7.32 Agreements
Maintenance, Operation, and Compliance
Federal Employer Identification Number
S Corporation Status
Annual Reports
Qualification in Foreign Jurisdictions
Maintenance of Records; Provision of Financial Statements
Ongoing Corporate Duties
Professional Responsibility
Exhibit 8A - Sample Consent of Sole Incorporator (Buy Form)
Exhibit 8B - Sample Articles of Organization (Buy Form)
Exhibit 8C - Sample Bylaws (Buy Form)
Exhibit 8D - Sample Consent of Directors (Buy Form)
Chapter 9 - Representing Clients in the United States Bankruptcy Court (Buy Chapter)
Mark G. DeGiacomo, Esq., Murtha Cullina LLP
Olga L. Gordon, Esq., Murtha Cullina LLP
Introduction to Bankruptcy Practice
Bankruptcy Law and Procedure
The Bankruptcy Court
Sources of Information
Meaning of Being "In Bankruptcy"
Choosing the Proper Chapter
Chapter 7
Chapter 11
Chapter 13
Conversion to Other Chapters
Counseling Debtors
Advantages of Filing a Bankruptcy Petition
Discharge
Automatic Stay
Recovery of Preferences
Rejection or Assumption of Executory Contracts
Disadvantages of Filing for Bankruptcy
Expense
Time
Loss of Control
Doing Business as a Debtor
Commencement of Case
Filing
Credit Counseling
U.S. Trustee System
Counsel to Chapter 7 Business Debtor
Counsel to Chapter 11 Business Debtor
Materials to Be Filed
Plan of Reorganization
Acceptance of Plan
Effect of Confirmation
Counsel to Individual Debtors (Chapter 7, Chapter 11, and Chapter 13)
Property of the Estate
Exemptions
Nondischargeable Debts
Other Factors
Special Considerations for Chapter 13 Debtors
Requirements
Automatic Stay
Plan of Arrangement
Confirmation of Plan
Modification of Plan
Discharge
Counsel to Unsecured Creditors
Involuntary Petitions
When Debtor Is in Bankruptcy Court
Automatic Stay and Preferences
Consider Availability of Reclamation Claim
Filing Proofs of Claim
Attend First Meeting of Creditors
Consider Nondischargeability of Claim
Special Considerations in a Chapter 11 Case
Counsel to Secured Creditors
Review Claim with Client
Motion for Relief from Stay
Requests for Adequate Protection
Administrative Duties
Counsel to the Unsecured Creditors Committee
Trustee in Bankruptcy and Its Counsel
U.S. Trustee System
The Examiner
Exhibit 9A - Information on District of Massachusetts Court Divisions and Clerk’s Office (Buy Form)
Exhibit 9B - Disclosure of Compensation (Buy Form)
Exhibit 9C - Voluntary Petition with Exhibits (Buy Form)
Exhibit 9D - Creditor Mailing Matrix (Buy Form)
Exhibit 9E - List of Creditors Holding Twenty Largest Unsecured Claims (Chapter 11) (Buy Form)
Exhibit 9F - Summary of Schedules (Buy Form)
Exhibit 9G - Declaration Concerning Debtor’s Schedules (Buy Form)
Exhibit 9H - Statement of Financial Affairs (Buy Form)
Exhibit 9I - Schedule A—Real Property (Buy Form)
Exhibit 9J - Schedule B—Personal Property (Buy Form)
Exhibit 9K - Schedule C—Property Claimed as Exempt (Buy Form)
Exhibit 9L - Schedule D—Creditors Holding Secured Claims (Buy Form)
Exhibit 9M - Schedule E—Creditors Holding Unsecured Priority Claims (Buy Form)
Exhibit 9N - Schedule F—Creditors Holding Unsecured Nonpriority Claims (Buy Form)
Exhibit 9O - Schedule G—Executory Contracts and Unexpired Leases (Buy Form)
Exhibit 9P - Schedule H—Codebtors (Buy Form)
Exhibit 9Q - Schedule I—Current Income of Individual Debtor(s) (Buy Form)
Exhibit 9R - Schedule J—Current Expenditures of Individual Debtor(s) (Buy Form)
Exhibit 9S - Statement of Current Monthly Income and Means Test Calculation (Chapter 7) (Buy Form)
Exhibit 9T - Statement of Current Monthly Income (Chapter 11) (Buy Form)
Exhibit 9U - Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income (Chapter 13) (Buy Form)
Exhibit 9V - Chapter 13 Plan (Buy Form)
Exhibit 9W - Notice of Chapter 13 Bankruptcy (Buy Form)
Exhibit 9X - Chapter 7 Individual Debtor’s Statement of Intention (Buy Form)
Exhibit 9Y - Proof of Claim (Buy Form)
Exhibit 9Z - Ten Frequently Asked Questions (Buy Form)
Chapter 10 - Introduction to the Practice of Employment Law (Buy Chapter)
John F. Adkins, Esq., Bingham McCutchen LLP
Brian J. MacDonough, Esq., Shilepsky Hartley Robb Casey Michon LLP
Barbara A. Robb, Esq., Shilepsky Hartley Robb Casey Michon LLP
Jennifer A. Yelen, Esq., Posternak Blankstein & Lund LLP
Introduction
Internal Dispute Resolution
Case Intake
Representing the Individual
Representing the Employer
Case Evaluation
Representing the Individual
Evaluate the Client
Evaluate the Defenses
Evaluate Crediting and Discrediting Evidence
Evaluate Damages
Representing the Employer
Fairness
Investigation
Annotated Chronology
Multiple Representation
Insurance Coverage
Legal Analysis
Get It Right the First Time
Advocacy
External Resolution
Alternative Dispute Resolution
Mediation
Arbitration
Agency Proceedings
Judicial Proceedings
Judicial Review of Agency Decisions
Trial
Making Your Decision
Exhibit 10A - A Massachusetts Employment Lawyer’s Checklist: Claims, Defenses, and Counterclaims (Buy Form)
Exhibit 10B - Procedures for Private Complaints (Buy Form)
Exhibit 10C - Ten Frequently Asked Questions (Buy Form)
Chapter 11 - Depositions (Buy Chapter)
Alan M. Spiro, Esq., Edwards Wildman Palmer LLP
Introduction
The Rules and Statutes Governing Depositions
Deposition Strategy
Initial Considerations
Advantages of Depositions
Deposition Scheduling
Deposition Goals
Gather Information
Preserve Testimony
Expedite Settlement
Establish a Foundation for Summary Judgment
Availability of Depositions
General Limitations: Scope, Number, and Time Limits
Protective Orders
Deposing Experts and Corporations
Deposing Experts
Deposing Corporations: Rule 30(b)(6) Depositions
Timing
Choosing the Best Type of Deposition
Depositions upon Oral Examination
Audiovisual Depositions
Advantages of Audiovisual Depositions
Procedure
Depositions upon Written Questions
Telephone Depositions
Deposition Location
Deposition Procedure
Notice Requirement
Receiving a Notice of Deposition
Compelling Attendance of Nonparties
Requiring the Deponent to Bring Documents to the Deposition
Party Deponents
Nonparty Deponents
Objections to Subpoenas Duces Tecum
Persons Before Whom Depositions May Be Conducted
Depositions Within the United States
Depositions in Foreign Countries
Disqualification for Interest
Who May Attend a Deposition
Conduct of the Deposition
Using Deposition Testimony
Summary Judgment
Using Depositions to Prepare for Trial
Using Depositions to Facilitate Settlement
Using a Deposition at Trial
Impeachment
Admission of a Party Opponent
Unavailable Witness
Proof
Preparing for the Deposition
Deposition Outline
Legal Research
Available Facts
Theory of the Case
Formulating Questions
Conduct of the Deposition
Stipulations Regarding Objectionsand Other Matters
Handling Difficult Opposing Counsel
Familiarize Yourself with the Rules
Ignore the Obnoxious Tactics
Ask Good Questions
Take Control of the Situation
Note the Behavior on the Record
Require an Audiovisual Deposition
Preparing Witnesses for Deposition
General Considerations
Lessening the Witness's Anxiety
Finding Out What Your Witness Knows
Discussing Privileges
Reviewing Documents
Practicing Answering Questions
Ethics Considerations
Defending the Deposition Witness
Attendance with the Witness
The Record
Objections
Instructing Witness Not to Answer
Postdeposition Procedure
Examining and Reading the Deposition
Supplementing the Deposition
Recording, Indexing, and Summarizing Depositions
Deposition Summary
Trial Notebooks
Deposition Indexes
Exhibit 11A - Notice of Deposition Pursuant to Rule 30(b)(6) (Sample No. 1) (Buy Form)
Exhibit 11B - Notice of Deposition Pursuant to Rule 30(b)(6) (Sample No. 2) (Buy Form)
Exhibit 11C - Sample Notice for Deposition of Individual (Buy Form)
Exhibit 11D - Rules for Taking an Effective Deposition (Buy Form)
Exhibit 11E - Advice for a Witness Prior to a Deposition (Buy Form)
Chapter 12 - Preparing and Trying a Civil Case (Buy Chapter)
Jeffrey C. Melick, Esq., Kates & Barlow, PC
Introduction
Presuit Issues
Interview Your Client
Conduct a Preliminary Investigation
Fee Issues
Pretrial Issues
Filing an Action
The Courts
Small Claims Court
District Court
Superior Court
Housing Court
U.S. District Court
The Time for Filing an Action
Tort Actions
Contract Actions
Actions Against the Commonwealth
The Complaint
Declaratory Judgment Actions
Service of the Complaint on the Defendant
The Answer
Jurisdiction over the Defendant
Pretrial Deadlines
State Courts
Federal Court
Third-Party Claims
Contribution Claims
Indemnity Claims
Strategies for Preparing for Trial
In General
Scope of Discovery Permitted
Documents Prepared in Anticipation of Litigation
Thoughts and Impressions of Counsel
Attorney-Client Communications
Developing a Discovery Strategy
Use Your Client's Knowledge
Learn the Law
Master the Facts
Inspect the Evidence
Determine Your Theory
Develop a Discovery Plan
Identify Witnesses Early
Obtain Statements or Depositions from Witnesses
Obtain Relevant Documents
Take Proper Account of Electronic Materials
Evaluate Admissibility of Evidence
Reevaluate Strategy as Discovery Progresses
Interrogatories
Requests for Production of Documents and Things
Requests for Admissions
Depositions
Deposition Strategy
Preparing Your Client for Deposition
Deposing a Corporation
Obtaining Documents
Videotape Depositions
Experts
Independent Medical Examinations
Pretrial Motion Practice
General Considerations
Particular Motions
Motion to Compel Discovery
Motion for Protective Order
Motion to Amend Pleadings
Motion to Consolidate Actions
Motion to Bifurcate Trial
Motion to Dismiss
Motion for Summary Judgment
General Considerations
Time for Filing
Standard of Review
Motion for Sanctions
Motion to Continue Trial
Motions in Limine
Mediation
How Mediation Works
The Proper Time for Mediation
Choosing a Mediator
How to Mediate a Case
The Pretrial Conference
The Trial
Jury Selection Process
Choosing the Right Jury
Opening Statements
The Procedure
Preparing Your Opening
Performing Your Opening
The Plaintiff's Evidence
The Defendant's Evidence
Direct Examination
(a)Preparation of Your Direct Examination
(b)Performing Your Direct Examination
Cross-Examination
(a)Preparation of Your Client
(b)Preparation of Your Cross-Examination
(c)Performing a Cross-Examination
Questions by Jurors
(a)Procedure
(b)Considerations Before Trial
(c)Considerations During Trial
Motions During Trial
Motion for Directed Verdict / Motion for Judgment
Motion for Summary Judgment
Motion to Amend Pleading
Motion to Poll the Jury
Motion to Reconcile Inconsistent or Incomplete Verdict
Motion for Mistrial
Closing Arguments
Procedure
Preparation of Your Closing Argument
Performing Your Closing Argument
Jury Charge
Special Verdict Forms
Review of Exhibits
Jury Deliberation
Receiving the Verdict
Posttrial Motions
Motion for Judgment Notwithstanding the Verdict (JNOV)
Motion for a New Trial
Motion for Remittitur
Motion to Alter or Amend Judgment
Motion for Relief from Clerical Mistake
Exhibit 12A - Document Checklist for Personal Injury Cases (Buy Form)
Exhibit 12B - Motion for Separate Entry of Final Judgment (Buy Form)
Exhibit 12C - Order for Separate Entry of Final Judgment (Buy Form)
Exhibit 12D - Special Verdict Questions for the Jury (Buy Form)
Exhibit 12E - Ten Frequently Asked Questions (Buy Form)
Chapter 13 - Successfully Defending an OUI Case (Buy Chapter)
Randy S. Chapman, Esq., Chapman & Chapman, PC
Introduction
The Offense
Operation
Definition
Defense
Public Way
Definition
Stipulation of Proof
Defense
Under the Influence
Diminished Capacity
General Principles
Opinion Evidence
Erratic Operation
Odor of Alcohol
Red or Glassy Eyes
Slurred Speech
Field Sobriety Tests
Overview
Horizontal Gaze Nystagmus
Nine-Step Heel-to-Toe and Turn
Walking a Straight Line
Standing on One Foot and Counting
Reciting the Alphabet
Finger-to-Nose Test
Preliminary Breath Tests (PBT)
Videotaped Tests
Cross-Examination of Arresting Officer Regarding Diminished Capacity
Opinion Evidence
Basic Approach
Cross-Examination Techniques
Unclear Recollection
Too Slow to Judgment
Rush to Judgment
Reading Between the Lines
Breath and Blood Tests Under the Per Se Law
Refusing the Test
Taking the Test
Attacking the Test Results
Expert Testimony
Motion Practice
Independent Blood Alcohol Test and Independent Medical Examination
Motion to Suppress Evidence/Statements Under the Fifth Amendment and Article 12
Motion to Suppress Evidence/Statements Under the Fourth Amendment and Article 14
Double Jeopardy
Miscellaneous Motions
Sentencing
Penalties
First Offense
Second Offense
Third Offense
Fourth Offense
Fifth and Subsequent Offense
Preserving Issues for Appeal
License Reinstatement
Exhibit 13A - Model Jury Instruction 3.200, Operation of a Motor Vehicle (Buy Form)
Exhibit 13B - Model Jury Instruction 3.280, Public Way (Buy Form)
Exhibit 13C - Model Jury Instruction 5.300, Operating Under the Influence of Intoxicating Liquor or with a Blood Alcohol Level of .08 Percent or Greater (Buy Form)
Exhibit 13D - Model Jury Instruction 5.400, Operating Under the Influence of Drugs (Buy Form)
Exhibit 13E - Motion in Limine to Exclude Horizontal Nystagmus Test (Buy Form)
Exhibit 13F - Consolidated Motion to Suppress Warrantless Stop and Statements (Buy Form)
Exhibit 13G - Chart Showing Consequences of Melanie’s Law (Buy Form)
Exhibit 13H - Motion to Inspect Evidence and Reports (Buy Form)
Exhibit 13I - Motion in Limine to Exclude Breath Test Results (Buy Form)
Exhibit 13J - Expert Qualification Checklist (Buy Form)
Exhibit 13K - Areas of Breathalyzer Expert Testimony (Buy Form)
Exhibit 13L - Proposed Jury Instructions of Defendant (Buy Form)
Exhibit 13M - Motion and Order for Return of License Following a Finding of Not Guilty (Buy Form)
Exhibit 13N - Ten Frequently Asked Questions (Buy Form)

Author(s)

John F. Adkins, Esq., Bingham McCutchen LLP , Boston
David M. Bilodeau, Esq., Goldstein, Egloff, Ramos & Wood LLP, Newton
James R. Burke, Esq., Hinckley, Allen & Snyder LLP, Boston
Stephen M. Casey, Massachusetts IOLTA Committee, Boston
Randy S. Chapman, Esq., Chapman & Chapman, PC, Chelsea
Tracy A. Craig, Esq., Mirick, O'Connell, DeMallie & Lougee LLP, Worcester
Mark G. DeGiacomo, Esq., Murtha Cullina LLP, Boston
Ruth A. Dillingham, Esq., First American Title Insurance Company, Boston
Olga L. Gordon, Esq., Murtha Cullina LLP, Boston
Brian J. MacDonough, Esq., Shilepsky Hartley Robb Casey Michon LLP, Boston
Deborah J. Manus, Esq., Nutter McClennen & Fish LLP, Boston
Ruth A. Mattson, Esq., Bove & Langa, PC, Boston
Christopher G. Mehne, Esq., Bowditch & Dewey LLP, Worcester
Jeffrey C. Melick, Esq., Kates & Barlow, PC, Boston
Janet Wilson Moore, Esq., Mirick, O'Connell, DeMallie & Lougee LLP, Worcester
Richard L. Neumeier, Esq., Morrison Mahoney LLP, Boston
David A. Parke, Esq., Bulkley, Richardson and Gelinas LLP, Springfield
Barbara A. Robb, Esq., Shilepsky Hartley Robb Casey Michon LLP, Boston
Alan M. Spiro, Esq., Edwards Wildman Palmer LLP, Boston
Jayne B. Tyrrell, Esq., Massachusetts IOLTA Committee, Boston
Jennifer A. Yelen, Esq., Posternak Blankstein & Lund LLP, Boston
 
Product Number: 1910268B00
Publication Date: 2/21/2013
Edition: 4th Edition 2012, with 2013 Supplement
Copyright: © 2013 MCLE, Inc.
Update service: Supplemented annually.
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