Popular Threads - July 2020

Do You Keep Original Wills and Trusts?

I was talking to another estate planning attorney. He keeps all of the original wills and trusts that he writes. He is in California, the Bay Area.

Do you keep all of the original wills and trusts that you write?

Almost never.

Timothy A. Gutknecht, Illinois

Nope, but I do keep copies of the executed docs for my records. The originals go home with the clients.

Andrew C. McDannold, Florida

I recommend to all clients that they pay the $5 to have their will filed under seal with the clerk. I tell them if they take it home and it goes missing, the legal presumption is that they tore it up and no longer wanted it. Regrettably, clerks take only wills. I give all other originals to the client. My former boss kept originals so families would have to come back to his office when something happened. I don't feel the need to hold client docs hostage to get their families to come in later.

Ask Mr. Bay Area what his plans is to handle those originals when he becomes incapacitated, dies, or retires.

Deb Matthews, Virginia

No, I never keep the originals.

I started keeping electronic copies instead of paper copies only.

Additionally, since Florida allows for e-wills since beginning of this month it will be interesting to see how that goes because the electronic file is the original. The paper version is only a copy.

Alexandra Kleinfeldt, Florida

I do not believe it is in good taste, nor good customer service, to keep the original of any document. It holds the client hostage.

Echoing Deborah, what do you do if you move, die, or retire? I had a business client who came to me with his mother’s will. The local attorney wrote himself in as the office that would probate the will. Unfortunately, the attorney died of cancer before the testator died. My client wanted to know if he could use another attorney and firm, and I told him he could. I also see, as a business attorney, contract lawyers draft in the notice provision a request a copy of all notices be sent to them. Again, years later when I am reviewing an agreement, I see the attorney is retired or moved to another firm. Who gets the notice copy then?

Christine J. Kuntz, Pennsylvania

I keep original trusts and amendments. I started doing this several years ago when I found that clients would alter or lose originals and then chaos would ensue after death and beneficiaries wanted me to "fix it." Also, I'm called upon occasionally to affirm that no revisions have been made and/or as to the trustee powers. I will only do so if I have all the originals so there are no surprises for me or my insurer. But everything else goes home with the client after all documents are scanned.

I have almost every document in or out of my office since 1997 scanned. That’s when I went into private practice. It is such a luxury and time saver to be able to pull up virtually any document when a client from the past calls and expects me to remember every nuance of their matter. Most of my personal notes are also scanned. Original documents like birth and death certificates are returned to client and as soon as matters are closed, all is shredded (after ensuring all has been scanned.)

Vicki Levy Eskin, Florida

Heavens, no. That's really old school: decades ago, attorneys used to charge relatively nominal amounts for estate planning, retaining original wills, with the idea that their firm would eventually be retained for the probate and charge a percentage of the estate. The market has not been that way for 40 years. Now it is almost universally acknowledged that retaining original documents is more a liability than an asset. I *do* scan the client documents and retain electronic copies of the signed originals.

Michael Koenecke, Texas

No, because who knows what will happen to you or the client between now and when the document is needed? I keep copies, but It is best for the client to have the original in case they need it or want to revoke it.

Lesley Hoenig, Michigan

I never keep originals. I do keep a signed copy.

Randy Birch, Utah

Do not keep the originals in California.

There is legal liability for keeping the originals you cannot destroy them.

I suggest scanning the originals and keeping electronic copy and retuning it back.

I heard horror stories from attorneys who have to rent expensive iron mountain warehouse to store the original wills and trust forever. This is because their old law partner now deceased did the wills and trusts and kept the originals.

David Seto, California

We kept some originals at the request of clients. We kept them in a safe deposit box at the bank across the street. Several of us were authorized accessors and knew where the key was kept. Just before I left that firm, one of the lawyers emptied the box and brought all the contents back in a banker’s box, which is probably still sitting on the shelf in the file room.

I was uneasy about that due to the danger of fire or water damage from sprinklers or firemen, but that wasn't my call.

Marilou Auer (retired legal clerk/secretary), Virginia

No, I do not keep all originals. I do not think you can or should demand that.

But some clients like or want for their originals to be kept by their attorney. Some do not want their nosy child or caregiver to have access to documents, do not want to keep them in their home, and safe deposit boxes have their limitations and are not attractive to some people. Since I had the infrastructure in place (more on that below), I decided I would continue to offer it as a service but I would charge the clients for it, mostly to recoup costs of dealing with such originals after someone's death, but also to have them sign something regarding terms of storage. I am actually in the process of re-examining and upping the amount I charge clients to store their original documents. If you do not do it now, and your clients have not demanded it, I would _not_ recommend doing so.

When I formed a partnership with my father (an attorney, but not particularly good with tech or organizing systems and who was in the process of retiring) years ago, I inherited about 3,000 original wills, trusts, and other documents, some of which dated back to the early 1980's.

Florida has a mandatory will deposit statute, where you are required to deposit the original will when you learn of someone's death. In Florida you _Cannot_ deposit your own will with the Clerk during your lifetime, however- the testator has to be dead. They are kept in a concrete-lined, fireproof set of 2 lateral file cabinets, and the bottom drawer of each is now empty. Only original documents are kept in there. These cabinets are covered in tarps when a hurricane is coming, and those suckers survived with a tarp taped on them _and the roof was blown off the building of my (then my father's) office_ during a hurricane in 2004. Only a few documents even got wet.

Given the age of some of these wills and the testator's age when they made the will, it became obvious to me that at least some of these folks were deceased. I also discovered that our index for such was not entirely accurate, so I had a staff member go through our concrete-lined fireproof file cabinet where original documents are kept and make essentially a database of them. Then she investigated as best she could, using ancestry and internet searches of obituaries, to see if these folks who we hadn't had contact with in a while were deceased - and a whole lot of them were.

So, then we had to figure out where they resided at their death and deposit the wills. In Florida it is simple to do and well established, once you have a date of death. However, some states (cough, NJ, cough) charge a ridiculous amount just to deposit a will for a decedent. Some places sent them back because they didn't take wills without a case filing. This whole process was done when a particular staff member didn't have other high priority work to do, but it took YEARS and hundreds if not thousands of hours. We only found a few cases where we had an original trust for a decedent (and we usually had some sort of contact information for the trustee), but Wills were a real problem.

Then we, in batches, tried mailing each of the folks whose will we had originals of to let them know that we now charge a fee for storing original document, required yearly contact via postcard, and please either sign this contract and pay this fee, or come on by and pick up your Will, or send me a document with instructions on what to do with it, acknowledged by a notary. Most people actually signed and paid the fee, and they get a yearly postcard from me reminding them that we have some of their estate planning documents. Some picked them up. Some had done other documents that superseded them with another attorney - we asked them to either pick them up themselves or send us a notarized statement of where to send it, and they could destroy if they wished. Quite a few we discovered that way were deceased, so deposited more Wills. Some we still haven't heard from, or the mailing was returned.

It is an organizational headache that I would not recommend entering into.

I already had the headache, so though I discourage it I do accept them if a client really wants me to. But I am charging more money for it.it

I have heard the argument about the family needing to contact you, and thus you should keep it, but frankly I do not think it matters much, and even if it does, it probably isn't worth it. Just because I am keeping a decedent's document doesn't mean that the family has to, or should even, hire me to do the probate or trust administration. And I really do not think they are any more likely to. You are keeping the document _for_ the client, not _from_ the client.

That said, there is a colleague of mine, and I use the term loosely as this guy is a jerk any way you look at it and his former clients seem to think so too, who has called me up several times for the sole purpose of yelling at me after I requested original documents on behalf of a client that he drafted and was holding, or sent him the information to deposit an original Will for a decedent that he was holding. For some reason, this jerk thinks that because he drafted a document years ago, in a very discrete engagement, this client and all of their descendants are now "his" and anyone else who does work for this past client or their fiduciaries has somehow poached the client. That is not how estate planning works, though.

Cynthia V. Hall, Florida

Cynthia,

Thanks for the exhaustive explanation of why you do not (generally) keep original documents, particularly wills and trusts. It is very instructive.

Like many attorneys of the time I was admitted to the Bar (1988), I was told it is a good way to "get the job" when the testator/testatrix later died. For me, it was simply a convenience to the client. In the early days, when a succession representative would come to get the Will, I would make it clear to them they had no obligation to me, except to sign a release acknowledging I turned over the original Will. Some hired me, others didn't. I was fine with it, either way, because, as I wrote above, the holding was merely a convenience to the client.

About ten years ago, I started trying to return the originals I have in my bank box.

Some clients had had new Wills prepared, and they instructed me, in writing, to either return the originals to them for further handling, or to destroy the originals in my possession. One client simply refuses to take his back. Since I wrote his and his then wife's Wills, they divorced and the now ex-wife wrote a new Will in the new city and state in which she lives. She instructed me to shred her old Will. Although he knows he should prepare a new Will, he does nothing.

I do not want to have the responsibility of holding the client's original Wills. I have about 15, now, and I am trying to return those, too, to the still-living clients. I may have to institute a large fee per year, just for this client, to get him to take the Will back.

(Original Poster, don't do it!)

Mark E. Peneguy, Louisiana

I have one original set of documents at my office. They belong to a client who never came to pick them up from the office, and then abruptly changed her phone number and address. I have no idea what to do with them.

Tried sending the certified and they came back with no forwarding address.

Other than that, I only keep scanned copies.

Marshall D. Chriswell, Pennsylvania

No. 

Anecdote: I as appointed trustee to wind up the practice of a lawyer who absconded with client’s funds. 

I got an in-depth look at his practice. He kept clients’ wills and charged $200 for Lifetime Fire Proof Safe Storage. 

I later found a Six-foot-long, plastic storage tub with snap-lock handles and a Brother P-Touch Label: FIRE PROOF SAFE. 

Michael J. Sweeney, Connecticut

On Tuesday, July 21, 2020, 02:11:16 PM EDT, Michael A. Koenecke wrote:

 "... [D]ecades ago, attorneys used to charge relatively nominal amounts for estate planning, retaining original wills, with the idea that their firm would eventually be retained for the probate and charge a percentage of the estate..." 

Yep, that's the way it was when I entered practice in 1975. 

Michael cited the primary reason for retaining wills: The old-timers used to say that their will safe was like a garden - take care of them, and eventually they will "ripen" into estates. 

The other reason for retaining wills was obviate the need for a separate proceeding for an order to open and access a safe deposit box in which a will was believed to have been stored, which, under NY law, was "frozen" upon the holder's death pending a court order. [Subsequent changes to the law have eliminated the mandatory freeze of safe deposit boxes, although banks may, by regulation, still require a separate court order to access a box post-death.]

I was never comfortable with that practice - or the responsibility of safeguarding the original document for years and years thereafter - so I adopted / adapted the practice of the military Adj Gen's Office to my practice: After the will was signed, I made two copies of the signed doc, and gave the original and one copy of the signed will to the client, with instructions to keep the original in the very safest place the client had, the copy in the next safest place - and don't keep them in the same place. I retained the other copy of the signed will for my file. 

I believe that returning the original will to the client showed respect for the client and his/her property - and I don't believe that I "lost" many estates as a result. 

Rod Klafehn, New York

When I started practice years and years ago, we would execute two copies of the will, giving one to the client and retaining the other. This came in handy when the client had hidden the will so well that the heirs could not find it. However the Supreme Court of Georgia ruled that this was not so good of an idea. We started retaining a conformed copy of the will and then moved to a photocopy of the executed will. On a few occasions where the original will could not be found, we were successful in having the copy admitted to probate under the applicable statutes and case law.

John Miles, Georgia

I do not keep originals of much of anything. I always keep an executed digital copy, in case there is a later need to authenticate. If they want to have the original held, the Clerk of Court will file them in the courthouse vault for no charge.

Richard J. Rutledge, Jr., North Carolina

No. But reminds me. I have had a client's packet for several years. Cannot locate her. Reminds me, I will try a Publicdata search today. Not sure if I have searched there before. (Publicdata.com is an excellent, inexpensive, tool in Texas.)

Burning CDs of client documents came along late in my career. Nowadays, CDs with a customized label are a nice touch.

Rob Robertson, Texas

I used to burn CDs, add a nice customized label, and send them to clients. Then two clients in a row pointed out that they did not have a CD drive available. Now I buy inexpensive credit card sized flash drives and provide the files to the clients that way.

Michael A. Koenecke

I never keep originals. I scan all the executed documents to keep a record for my files and in the event that my clients misplace the originals. I send the originals to my clients and have them sign a document verifying they received them.

Christina Wentzel

I do not keep originals. I keep scanned copies and let the clients know if a writing that they sign that they have the originals. The Office of Disciplinary Counsel here is very clear that the burden of returning the original documents to the clients should the attorney cease practicing law for any reason is a heavy burden. I also do not want the liability of having the originals should there be some disaster like an office fire.

Naomi C. Fujimoto, Hawaii

It is a bad idea all around. People move and don't tell you. It is sometimes viewed as coercive to get the probate or post-death work. Tracking down and keeping up with people over time builds up. Eventually you will retire or discontinue practice, and it is an impediment to closing out your practice.

Here I scan all documents after signing. I outline the various options, along with pros and cons, for clients with regard to originals. There are good and bad points to all approaches, so it is a client choice. 

When I started in practice, my law partner was of a mind to keep originals. I still have some. I wish I did not. It is a headache that will likely survive me.

Darrell G. Stewart, Texas

I do not keep originals either. I make a scanned copy and give the client the option of where to store the originals. Our courts allow a testator to file the original Will with the court for $50.00. It remains confidential until the testator's death. Then, upon receipt of a death certificate, the court opens a probate case, assigns a number and sends a copy to the personal representative listed.

I have seen attorneys print Wills on their pleading paper which includes name and address printed in the left margin. Same type of marketing for the future probate work, but I think it looks a little tacky so I don't do it.

Lisa A. Mariotti, Alaska

I don't keep original wills/trusts either but from a marketing viewpoint, I use a cover sheet. I used to use Bloomberg will covers but quickly started printing my own; it's pretty standard, it simply says "Last Will and Testament of XXXX Dated YYYY" and at the bottom it has my name, address and phone number. It simply gets stapled to original will as the top sheet. And as I’ve noted in the past, I give clients the documents in a "Bankers Bag" with my name and contact info on it.

At that point the heirs know enough to call you or not. I’m not going to hold the documents hostage by keeping originals.

Ronald Jones, Florida

I used to provide the originals together with the flash drive with scanned copies of the signed originals. These days, most of my clients want the originals and only electronic scanned copies, not even flash drives. CDs are so 20th century!

I once met an attorney who did a full set of Will documents for $25, claiming that he would get the lucrative business upon the death of the testator. I was shocked by this marketing loss leader tactic I was shocked by this marketing loss leader tactic. apparently, he was not the only one using it. I never succumbed to that or the document hostage tactic. There are no guarantees that the heirs will come back to you for the probate and

$25 would never in my legal career have begun to pay for the legal services involved.

Miriam N. Jacobson, Pennsylvania

My response when I hear about the $25 estate plan" is -- you pay $25 for an estate plan, you get a $25 estate plan.

Stay safe!

Jim Pardue, North Carolina

Yes, but clients don't know that.

Miriam N. Jacobson

eSign Options

Good afternoon:

I am looking for a low cost (maybe free) option for digital signatures on documents. I do not need it often, so hard to justify much for a monthly subscription. Some have free options for a low number of documents, but that may not be enough when I need it.

Does anyone use PandaDoc?

Mine is low cost. I sign with the pencil tool. That is actually my signature!

Jim Winiarski

I've used HelloSign for the last 18 months or so and have been satisfied with them. I've had clients in the tech industry tell me that the fundamental technology behind e-signatures is the same so DocuSign, HelloSign, and the others are all basically the same thing with different user-interfaces on them.

I have HelloSign on an annual plan ($156 for the year for the Pro version), but I use it all the time since California state courts have nearly gone to e-filing. HelloSign does have a free plan, which looks like it is limited to 3 signatures per month. Maybe that'd be worth it if you only occasionally use it?

In the time that I've been using HelloSign, they were acquired by Dropbox.

I use Dropbox also, but have not tested out the HelloSign-Dropbox integration.

Andy I Chen, California

Look at sign request for a free option as well. 10 docs per month

https://signrequest.com/en/plans

Dan Nguyen, California

I agree with everything Andy said. My secretary loves it.

Anthony S. Alpert. California

I just started Mycase, for $50-60 a month, it includes e-signatures, payment collection(debit, credit ach), case manager, lead manager, document creation, integrates with my Outlook 365 and permanently keeps copies of emails I associate with cases.

Nicholas I. Fuerst, Arizona

Curious to know a couple of things. How long have they been in business? 

How long have they been offering this "permanent" service? What does the EULA look like? Does it have the usual "no warranty of merchantability or fitness for any particular purpose" so common in on line services? Or do they actually accept some responsibility and attendant liability should they fail to deliver on their promises? Are the servers in a specific location with ascertainable jurisdiction, or are they "cloud"servers which could be most anywhere at any particular time?

I've just learned we have a 400 year old bible in my church archives. 

The church itself is only about 100 years old, so it must have been an acquisition/donation. Still, it stands as a sort of reference for this notion of "permanent."

Robert Thomas Hayes Link, California

I've been very happy with SignNow, https://snseats.signnow.com/purchase/business_plans/pricing.

Lisa Solomon, New York

I use Adobe Acrobat Pro, because it has so many other features that I use daily. It has e-sign capabilities built in.

Brian H. Cole, California

How Would You Respond?

So, I am not quite sure how to respond to this. Maybe someone has an idea.

A "friend" on Facebook reached out to me yesterday. For some perspective, she and I have known each other 30+ years. We were on the debate team together. She married another friend from high school.

My last communication with her before this was probably 2012. We have gone down to San Diego and invited people down there to join us. She has never shown any interest.

Her brother is an attorney at some big law firm in San Francisco. She is a lawyer who has worked at a few firms in San Diego, worked for some law school down there (USD?) and is now an attorney for the court of appeals.

The message:

On my list of things to teach myself while sheltering at home is setting up a trust. We have no estate plan. Can you recommend resources to me? I want to do it myself.

I don't want to be a jerk. At the same time, she should know that a) this is not really a DIY project, b) attorneys get paid for their time.

How would you respond? Or, would you ignore it?

Tell her it is not a DIY project in your opinion, but (if this is true) you would be glad to prepare an estate plan for them.

Shell Bleiweiss, Illinois

Although you're a good lawyer, estate planning is not a DIY undertaking. I'd be happy to talk with you about it, and I'll give you my "old friends" rate if you decide to hire me.

Marilou Auer, Virginia (retired legal clerk/secretary)

I suppose it depends on how nice you want to be. It's reasonable to tell her that this is a complex area of law and that, if done incompetently, her DIY trust could do more harm than good. As an attorney, she would surely understand this. But, you also indicate that she is, or maybe was, a friend. If so, you might consider offering her a discounted rate to do her estate plan. Or, you could simply answer the question she asked by giving her a list of resources -- textbooks, practice guides, etc. -- known to be authoritative in your state.

Of course, on the other end of the helpfulness spectrum, you could just ignore her question completely, or you could provide a snarky reply. I'm not suggesting that you should, however.

If it were me, I would do my best to help her Who knows, maybe your kindness will cultivate a new friendship, or develop a new referral partner, or bear fruit in some other way.

Andrew C. McDannold, Florida

Just tell her, "It's not a DIY", point her to the Rutter guides, and change the subject to health and weather.

Robert Thomas Hayes Link, California

Options, not mutually exclusive:

1. Refer her to materials you would purchase or CLE articles.

2. Suggest she hire someone, either you or another.

3. Suggest that a "do it yourself" project is inappropriate.

4. Suggest she volunteer at estate planning sessions for the poor, which may offer a mentor.

If you go down the first route, she may be back with questions, so you would have to manage that issue. Nonetheless, I would probably suggest that in combination with other options.

Darrell G. Stewart, Texas

I mean, how is that much different from someone on here making such a request? She is an attorney, right?

Warn against DIY estate planning. But at the same time, recognize that she is an attorney, and if it is really an area of law she would like to explore and get familiar with, you can certainly be helpful with that. You can point out that drafting documents is really a completely different skill set than prosecuting a case, and (assuming you believe this) often no trust is better than a trust that doesn't focus on the correct things, but here is how I progressed to learning how to do this and is my favorite reference on the subject.

Or you can just start with giving her a list of references.

I would probably say that trust drafting is one of the last things I picked up in my estate planning practice, as I needed to have knowledge of wills, probates, Medicaid planning, real estate property, and certain aspects of tax law in order to really put the pieces together (and there are still cases in this area that I refer out.) Assuming you feel comfortable with that, here are the references I would start with.

Cynthia V. Hall, Florida

I’m not a T&E type of lawyer, but if I got a request from a friend asking for advice about how to draft their own Franchise Disclosure Document, I’d probably same something along the lines of:

“I’m sure you could learn to do it—after all, I have—but it’s going to take you a lot of time and effort. If you’re thinking about just doing one for yourself, I suspect you will find that the learning curve is steep enough and long enough that you would be better off working with someone who is experienced. On the other hand, if you think it’s an area of law you want to learn, I would recommend that you attend ____________ (CLE course) to get a quick handle on things, then ____________ and ____________ as good reference materials.” 

The other thing to think about is to say that the challenge with Trusts is that they don’t come into effect (usually) until after it is too late to make changes, and there is no way to “test” things in advance. If everything is accurate and great, then your friend is all set. But she runs a risk that a defective effort will be worse than nothing—at a time she cannot do anything to correct it.

Brian H. Cole, California

Respond to her and say "Sure thing: http://www.google.com <https://sgndpr.online/click?redirect=http%3A%2F%2Fwww.google.com&dID=1595536943489&linkName=http://www.google.com>."

E. Seth Combs, Kentucky

I would suggest she might contact a T&E professor at USD Law for recommendations on reference materials and forms. If she completed law school and passed the bar, I would think she is smart enough to figure out how to proceed on her own; I suspect she has another reason for reaching out to you.

Duke Drouillard, Nebraska

LegalZoom?

Mike Phillips, North Carolina

What I would and have responded:

“It is my practice rule to not engage in recommending legal advice. Recommending is practicing what we do and would invoke my malpractice rules- so I wouldn’t be able to advise you-But I can represent you if you wish. Good luck and hope you are well!”

Micah G. Guilfoil Payne, Kentucky

Agree. These people think you are selling a product, and if they can get it elsewhere more cheaply that's their best bet.

I just met with some people this morning* who had paid a significant sum for a revocable living trust package from some company out of Las Vegas, and did not know how to get assets properly transferred. They were the sorts of do-it-yourselfers who fundamentally do not think legal advice and representation is worth paying for (unless, of course, they get sued or want to sue somebody - and even then, the lawyer should get a percentage of a recovery). I gave them some general advice about procedures in transferring assets, but in my experience trying to get them to understand that it is worth paying for my time and effort is a losing proposition.

* A friend/client of mine is a financial planner whom I have known for some 25 years, and I agree to meet with his clients for free consultations. Frequently it is a waste of time, but it gets my name before people, and sometimes it is worth it.

Michael C. Koenecke, Texas

Sounds to me like she's kicking the tires. I have no problem with people doing that as long as they don't string me along. I think the best response is to say to her something like this,

Dear Friend, estate planning is a very serious matter and should not be taken lightly. You should not undertake it alone - even if you are an attorney. You need a qualified professional - it is well worth the money. I'd be happy to help you with crafting an estate plan, but I would have to charge you my regular rate of $785/hour. Please call me at my office and I'd be happy to set up an appointment! Great to hear from you! 

Sterling L. DeRamus, Alabama

If you have a California hornbook on Trust Law, recommend it to her. What is she going to do, sit and read the whole damn thing? You will not come off being a lawyer, but will remain her acquaintance.

Robert W. Hughes, Georgia

iPhone SE Review

Folks:

My phone carrier is offering a promotion on Iphone SE for seriously cheap. Spec. is as follows: It’s a 4G phone with 64 GB with memory RAM at 3G. It says that its platform won’t support Gmail. What does that mean? You can still use Gmail through Gmail App right? Can anyone share some insights on this phone?

Anybody recommends this iPhone SE as this promotion is dirt cheap and within my dirt cheap budget..

Thank you in advance!

I have a new iPhone SE (I got it about a month ago). I like it very much—it is smaller than most smartphones these days (which I like), but slightly larger than the first-edition SE it replaced (which had the form factor of a iPhone 5). It is faster than the first-edition SE, but does not have as many cameras as the “top-of-the-line” iPhones. It also uses touch ID (instead of facial recognition), and the screen is (supposedly) not as high quality (although it is fine for my purposes). As far as I am concerned, it meets all of my needs, and does not have any “bells and whistles” that I don’t need. 

I have the Gmail app on my phone, so I do not understand the statement. Having said that, however, I mostly use the built-in Mail app for most of my mail-related activities, and gmail can be easily set to display there, if you prefer that. 

Please let me know if you have other questions.

Brian H. Cole, California

And let me add additional weight to what Brian said. I got the original SE because I wanted something small, like my iPhone 5. I loved it, and I had my Gmail on it.

A couple months ago, I upgraded to the SE2020, because my SE wouldn’t hold a charge for a full day. It’s slightly larger than the original, but it’s the smallest iPhone out there.. and that was one of my criteria. I left my old phone with The Verizon store, came back 45 minutes later, and my new SE works just like the old one... screens are the same, settings are the same, and Gmail works just fine.

The SE 2020 is cheaper than the others, but do make sure you’re getting the New version, and not the original version.

Laurie Axinn Gienapp, Massachusetts

I have an iPhone SE that i carry for my second line. It's a very good phone. A tad small, especially compared to my gargantuan Samsung S20 Ultra which is my main phone. I've given iPhone SEs to my employees in the past and they did the job perfectly. If I had to do it over again, I would get the iPhone SE every time.

Eugene Lee, California

I just upgraded to the new SE (2020). I pre-ordered so had it just after its release. I like it and also do not understand the reference to Gmail not working.

I had a 6S that was starting to have battery issues. Already replaced battery some time ago, but phone old and time to replace. I plan to replace battery to have it for a backup. Batteries are cheap and my friend installs then.

I am not a fan of the facial recognition and like the actual "Home Button" so the SE was the right choice. I do not the "best" camera and do not notice any difference in screen resolution. The screen same size as the 6S (and the 7 and the 8). I have used a 10 with larger screen and the difference in size did not make it a must have option. Having the phone the same size as my 6S made my cases still fit and also makes getting new cases cost effective. Many on sale, or lower price since they are not new cases for a new sized phone.

Internally, the phone is the same as the new 11. You get the performance of the 11 in the case of the 8 (or 7, or 6S as they are same size). That is what made me get it. I will say that overall, I do not notice much better performance, but I have more memory now and I presume the insides are working faster, but at that speed who really notices.

Phil A. Taylor, Massachusetts

Gene:

Yes, I am also going to use this iPhone SE as a second line. I have Android LG G7 as my first line., Thank you all. Looks like this will be a great buy!

John Kang, Nevada

Why not just add a Google Voice number to your existing phone? That way you have two numbers but only one device to manage.

David Masters, Colorado

Because the new line is also free from my carrier due to a special promotion. They have just shipped the new SIM card. I already have Google voice and I use it for different purpose and while it is very good, there are so many limitations.

John Kang

I own an original SE. I purchased because I wanted a small phone. I note that many of the responses include approval of smaller phones.. Still don’t understand why we can make even a smaller smart phone. I want a size that fits comfortably into my pocket. I think Apple is missing a relatively large market for smaller iPhones

Jim Winiarski

I do not think the SE is a made smaller sized phone. It is the same size as the 6, 7, and 8. It is only marginally larger than the 10. Not too noticeable, but the 10 has a larger screen (goes to the edges unlike the 6, 7, 8, SE).

Phil A. Taylor

If that's directed at me, I need two phones, two displays.

Eugene Lee

At the time the original SE came out, it was the smallest of the 'new'

models. ie.. you could still buy a 4 or 5, but it was refurbished. And it was marketed that way, in response to those who were refusing to upgrade, bc they didn't like the larger sizes of the new phones. These days, I think it's being marketed as the least expensive of the iPhone. But it's also one of (if not 'the') smallest.in April 2020, Business Insider said :

- The new iPhone SE is Apple's smallest available phone, with a 4.7-inch display.

- The iPhone 11 Pro is the next smallest, with a 5.8-inch screen.

However, for those who feel size really does matter, the rumors are that the iPhone 12 (due out in the fall) will be the smallest of the current line-up, and will be no larger than the iPhone 4.

Laurie Axinn Gienapp

FWIW, I got 5s which is getting a bit long in the tooth at this point.

Mainly it does not run IOS 13. I like it because it is small, however I have been looking at new SE which is current hardware and half way decent price. Point is Boost mobile, which is what I use, is selling SE 64 gb for $299, 128 for $349, and today they are running additional 10% off. So for $315 plus tax I just ordered 128 GB SE. Y'all convinced me.

Ronald Jones, Florida

My Samsung is on the way out but due to slow business because of COVID I'm not looking to spend a ton of money, if at all. I have pretty big hands, would the SE be too small for a guy like me?

Jason Komninos, New Jersey

I've got pretty big hands and I find the SE a little awkward to handle because of that. Adding a bulky case definitely improves the situation.

Eugene Lee

Seems like Apple is catching on that the phones were growing too large. As noted in another thread, cannot really focus on screen size as the overall sizes are not that far apart.

With the new technology related to screens (the 10 going to the edge vs. 6-8, SE that do not go to the edge) I wonder if the smaller phone that it expected will have a maximized screen.

Phil A. Taylor

I suspect it is also the price. Latest, greatest iPhone 11 can run $1000. Even midline one can run $500, $600 depending on specs. You buying for say a family of 4 people, that gets expensive real fast.

Ronald Jones

I guess nobody here including me cares about the latest 5G. I am very happy with 4G and I thinki this 5G is a gimmick to make $$$$...

John Kang

Teenager Accessing Password-hacking Website

How concerned should a parent be if their teenager is accessing a website to hack passwords? Should the parent be more concerned if the parent works from home?

More info, please. Does the website belong to the parent? Some other individual? A private business? A government? Likewise, whose passwords? The parent's password to access Netflix or the U.S. Government to divert social security benefits? Etc...

Amy A. Breyer, California

I think this could get parent into a heap of trouble. If it's being done from the parent's ISP, parent can be blacklisted and will not be able to send out email, in addition to being found responsible for whatever damage the kid causes. Not that I know anything about this kind of troublemaking, since I have no kids, and no one has access to my computer, but I'd be very worried.

Miriam N. Jacobson, Pennsylvania

My eldest is 19 and has been hunkered down here in his bedroom since I picked him up from school in mid-March. He's a computer security major with an understanding of the nitty-gritty of computers which is far superior to mine. The reality is, I have no control whatever over the actions he takes as an emerging adult in the privacy of his bedroom on his computer. That might have been different when he was 16 or 17, but those days are gone.

L. Maxwell Taylor, Vermont

If a 19-year-old child, under the circumstances described in Max's post, were to hack into something sensitive and subsequently get caught, would the parent -- the owner of the hardware and network that provided a conduit to the internet, thereby enabling the child's criminal activity -- be at least partly liable as an accessory to the crime?

I'm not anything even remotely resembling a criminal lawyer. I'm just curious.

Andrew C. McDannold, Florida

Where I live, a 19-year-old is not a child; he's a legal adult. I'm his parent, but I have no legal obligation to monitor his internet conduct--how could I have such an obligation? And assuming for purposes of argument that he was doing something nefarious, how would a prosecutor prove mens rea in a parent who simply has internet access in his home?

L. Maxwell Taylor

Crime, probably not. But they are likely civilly liable for knowing the child was engaging in that a activity, using their equipment, and not stopping it.

Kind of like the negligent use of a car.

Erin M. Schmidt, Ohio

Erin, if they had actual knowledge, that's one thing. But I doubt anyone is chargeable with constructive notice about the internet activities of another adult in their household.

L. Maxwell Taylor

*How concerned should a parent be if their teenager is accessing a website to hack passwords?* Very. This can get the teen in a lot of trouble. It can also get the parent in a lot of trouble--which is to say that you may be named as an accomplice, etc. And even if you get sued and win, you may lose money, pay lawyers, etc. You may also find your IP is on a blacklist.

Control the kid. Turn off the Internet if need be.

*Should the parent be more concerned if the parent works from home?* Yes. This means the parent's IP address will be linked to everything. It also means that the kid is interacting with hackers which increases risk to everyone else--hackers like nothing better than hacking other hackers to prove dominance. Hire a high level knowledgeable helper; get a new router, lock down everything w/ passwords, assume you're compromised, make the kid pay for it all.

*What to do if the kid is 19 and won’t listen?* Well, if you're not willing to force the issue: Warn them properly and make them buy, install, and pay for their own internet, in their own name. Lock them out of yours. At least they will be less likely to get you in trouble.

Erik Hammarlund, Massachusetts

Would a homeowner's inability to monitor, or ignorance that it's even possible to monitor, the traffic that flows across his or her router be a defense against any sort of accomplice liability?

I suppose a hacker worth his or her salt would encrypt the traffic leaving his or her computer, making such monitoring nearly impossible because it wouldn't be obvious what sites are being accessed. Still, it seems like the homeowner, much like in Erin's car analogy, would have SOME responsibility to ensure the "borrower" is using the borrowed item in a lawful and responsible manner.

But, what do I know?

Andrew C. McDannold

They wouldn't be asking the question on what to do if they didn't know or suspect.

Erin M. Schmidt

Yes, I agree, but Andrew wasn't responding to the original question; he stated he was sketching out a hypothetical based on the circumstances I outlined.

L. Maxwell Taylor

I think the difference here comes down to relationship. This isn't someone hacking into their internet and using it without their knowledge. Someone steals your ar, you aren't liable for their damages. Someone steals your internet, you aren't liable.

But when the person is living in your house and you are asking questions about hey this activity seems bad should I stop it, yeah you are on the hook for letting them continue to use the internet. Just like you would be on the hook for allowing your 19-year-old, who has multiple DUIs to borrow your car.

Erin M. Schmidt

As a parent of a now responsible child whose friend hacked into the school computer it may or may not be a concern. Both the hacker and my child turned out to be responsible adults and no harm was done. The kids were in 7th grade. On a child's 18th Birthday they are an adult and treated as such. Even developmentally disabled adults are treated as an adult.

If the parents are not the geeky types who did this kind of stuff, I suggest they talk to someone they know who was, and sit with their child and that person and talk through what is going on. The problem may be more than the hacking, or they may just be that kid who has fun hacking stuff then ends up with a job as the anti-hacker for a big company like my son's friend did. At 19, I would give them first and last month rent and help them move and let them know they are now on their own, if they are in college then pay for a dorm room, even if they are mostly online for school, make them pay for everything except food and shelter. A 19-year-old with this kind of skill needs to be treated as the adult they legally are.

If the parents know their 19-year-old is doing something criminal it could be aiding and abetting. It sounds like they are thinking a 19-year-old is a child. If a 14-year-old and 19-year-old do the same act the 13-year-old gets a slap on the hand, the 19-year-old gets a felony, even if the 14-year-old is the mastermind

Martha Jo Patterson, California

I think the best solution might be more technical- why not invest in a VPN and some more robust security tools at the router? If there are problematic sites, take control of the network to ensure those blacklisted sites cannot be accessed. Employers do it all the time.

Parents run their work on a VPN that child cannot access and the parents set up restrictions on the kid's access points.

Seems like a reasonable solution for a kid that knows they are doing things they should not, but then, parents cannot control the acts of their children forever. I lost control of my son when he was about 13. He encountered some difficulties, but they were not looking at me just because he was a minor.

Drew Winghart, California

If the kid is a good hacker, they will get around the parental controls, etc. They will hack you. I lost control of my son and the internet around age 12 or 13 too. There were some bad days, fortunately there were some great mentors who directed the brilliant kids to a good direction. If this is a 19-year-old, the problem is much deeper.

Martha Jo Patterson

I note the alarm in many posts. Password hacking is simplistic. There are a lot of 10-year-olds who experiment. Insufficient information exists to comment.

Speculatively, parent does not have much technical insight. Parent has no idea what teenager is doing. Such is the case in many households.

Control outside of serious conversations between parent and child that are based on relationship and trust is a nonstarter. If there are substantial differences in technical skills, changing equipment and passwords at home is just temptation and time for a teenager to establish a workaround.

In my own household, I had the technical chops and a relationship that kept me from fitting the parental stereotype. It worked. Said child now holds a PhD and spends most of his day programming. He long ago surpassed my skill level, but it worked when he was a teenager.

Darrell G. Stewart, Texas

Zoom Deposition Tips

I have my first Zoom deposition coming up for a client. Does anyone have any tips on how to make this as successful as possible? Or maybe, how to make it as stress free as possible for the client? She is very worked up about it.

I don’t have any amazing advice, but here’s what I do with my nervous clients. 

If possible, I would run a mock exam with her on Zoom so she’s able to practice logging in, seeing herself on camera, and so you can check lighting, sound, etc. beforehand. 

I would also suggest she use a laptop/desktop/tablet rather than a smart phone so she can see any potential exhibits she might be shown more clearly. 

I also like to “pin” the speaking person to my view so it’s not shuffling around from person to person based on rustling and so I don’t have to see my own goofy face while I’m testifying. 

Also make sure she understands the “chat” function is not necessarily private. 

Good luck! 

Jennifer D. Norris, Indiana

Be the host or a co-host of the meeting so that you can "mute all" when necessary to prevent the client from speaking when necessary. If OC will not allow that, then keep your client in the same room with you so that you can keep her from speaking when necessary. Nothing is worse than objecting and your client not being able to hear that because s/he is speaking as well.

Frank Kautz, Massachusetts

You might consider doing a practice session with your client to test the equipment that she will be using, internet access, what microphone/speakers will they be using. Suggest they close out other tabs. Discuss break out rooms. Discuss how to use "chat" - tell them to be careful that they don't send a private message to everyone. etc. Where is your client going to be -- in the living room, bedroom, bathroom ? Make sure her camera angle is good -- background appropriate -- etc. Suggest she have her cell phone next to her so that you can text her if there are any technical problems.

Linda Silveria, California

I have defended a bunch of Zoom depos (around 5 or 6) recently and took my first Zoom depo yesterday. I have been pleasantly surprised by the experience.

DEFINITELY test out equipment beforehand. If your client has low internet bandwidth, consider calling into the Zoom session so the audio feed is through the phone (landline is better) and the video is through the computer. We had to do that to troubleshoot a low internet connection recently.

The court reporter might be willing to do a test run with you as well.

Find a comfortable setup for the deposition. I had to rotate my desk 180 degrees so that I'm facing my windows rather than having them behind me, because the backlighting was messing up the video image. Find a good spot for your laptop so you're not staring down at the camera.

Anyone can "hide self view" on Zoom. I did that yesterday when I was taking the depo. It was too distracting to see myself and worry about it, and I could focus better on answering the questions by only looking at the witness. Your client may want to do that to minimize feeling self-conscious. You can toggle between hide self/view self any time and no one else will know.

Remind her to mute the microphone and turn off video any time you take a break! I'm paranoid about that.

Minimize distractions if your client will be at home. Put away pets, banish everyone else from the house.

Happy to answer other specific questions if you'd like -- feel free to ping me at kbk@kbkramerlaw.com.

Katie Burghardt Kramer

On this idea, suggest a stipulation that if an objection is made that the record shall not include any response after the objection. The reporter will not take it down, or will delete it. You cannot un-ring the bell and the answer may still have to be provided, but let it be provided "cleanly," repeated if needed.

Phil A. Taylor, Massachusetts

Just a comment -- you can put lighting behind the camera to solve the shadow problem.

Darrell G. Stewart, Texas

I agree with Phil. Sometimes there is a delay in responses due to internet issues and you don't want your objection coming in after the response.

Jonas Bailey

Many good tips so far.

If you are using wireless headphone/microphone, have a wired back-up handy. I was using Bluetooth earbuds during a meeting and the connection dropped. No idea why as it always tested and worked well before. I plugged in my USB headphones with microphone and was back quick.

For my office I bought a USB speakerphone. Works great as a wired solution when I am not concerning about disturbing others in the office and do not want to wear headphones.

Phil A. Taylor

If you are defending your client, I suggest having it done in your office conference room and testing the day before rather than everyone in their bedroom.

This way you can answer questions on break and mute the microphone and video if needed.

Wear masks and have more space and hand sanitizer available.

Since everyone will be wearing masks tell court reporter to clarify if any of the text gets garbled.

David Seto, California