Articles

Assisting clients with their assets since 1989

By ELAINE WILLIAMS of the Tribune | Posted: Sunday, August 16, 2015 12:00 am

Attorney Christopher Moore has been practicing law in the Lewiston Clarkston Valley for nearly 30 years and is a partner at Creason, Moore, Dokken & Geidl, the oldest established law firm in Idaho.Name: Christopher Moore

Company Name: Creason, Moore, Dokken & Geidl, PLLC

Position: Senior member/managing member lawyer

Age: 63

Education: Lewiston High School graduate.
Bachelor’s in business, major in accounting,
University of Idaho in 1974. Graduated from the
University of Idaho College of Law in 1989.

Career History: Worked at a Nampa accounting firm from 1975- 77, then returned to Lewiston and worked at Roberts, McMains & Sellman & Co., CPAs from August 1977 through June 1986 as a certified public accountant, where he was a partner. Joined Creason, Moore, Dokken & Geidl, PLLC, in 1989. Specializes in estate planning, trusts, probates, and Medicaid matters.

Family: Married to Pam Moore, who taught in the Lewiston School District for 35 years and is now retired.

Civic Involvement: Board of directors of Opportunities Unlimited Inc., for 30 years this October.

Trustee on the Boys and Girls Clubs Endowment Trust, board member of the LewisClark State College Foundation and member First Presbyterian Church of Clarkston.

Firm’s History: The firm was founded in 1902 and has four partners, Moore, Dave Dokken, Tod Geidl and Sam Creason, plus an associate attorney, Paul Burris and five support staff. Areas of practice include small business services, estate planning and probate, elder law and Medicaid, general litigation, insurance defense, creditors’ rights, real property, family law, intellectual property and tax law.

Christopher Moore measures his success as an attorney by how much he stays out of court.
Assets pass fluidly from one party to another after someone’s death if he has drawn up documents correctly and anticipated the right possibilities.
When he started doing this type of law in the 1980s, his clients were usually his parents’ age. Now they’re much closer to being his peers, something that hit home in April with the unexpected death of Theodore Creason, who made him a partner less than two years after he completed law school.

The Creason affiliation with the firm will continue. Creason’s youngest son, Sam Creason, has been a partner at the firm since 2014. But Moore is now the senior partner, a role he’s humble about. Traditionally it has involved giving fellow lawyers informal advice. “I don’t think I’m as good as being a sounding board as Ted was, but I certainly do that.”

Business Profile talked with Moore about his switch from accounting to law, innovations he helped pioneer in estate planning and how the firm coped with the loss of Creason.

You had been in accounting for more than a decade when you went to law school. What was the reason for the change in course?
As a CPA, I enjoyed doing tax returns up to a point, but it just was very repetitious. I started exploring options. I had taken the law school admission test when I finished college, but I didn’t have the money for law school. I checked with the University of Idaho law school about admission standards. It was really pretty late. It was June 1986. They said I could reinstate my law school admission test. I quickly turned in an application. Two months later I was accepted. I sold my partnership in my accounting firm and I lived off the proceeds of the sale for the next three years. My wife was working too, so that helped.

How did that decision work for you?
I’ve never regretted switching to law. Practicing law is always interesting.

Is there any casework you’re particularly proud of?
When I started, people hadn’t really given a lot of thought to protecting assets for children who haddisabilities. What we would find is we would have a parent who died and in their will, they leftmoney outright to an incapacitated child. Idaho and federal statutes allow you to create a special needs trust and put that money in there so it doesn’t go directly to an incapacitated person. It doesn’t have to be paid directly to state Medicaid recovery or anything like that. It can be used for the child. So when I first started practicing, I probably did three or four of those types of cases. Now when I’m doing wills or estate plans, I always ask if there’s an incapacitated child or grandchild, somebody we need to protect.

What more can you share about estate planning?
I always suggest that we not only do the will, but that we do a financial power of attorney and a medical power of attorney and perhaps a living will. If it’s a married couple who plan on leaving all their assets to the survivor, we typically would do a community property agreement. I started off right away doing an entire package of documents for people, which hadn’t really been done that much before.

How does a power of attorney work and what is a living will?
The medical power of attorney comes into play when someone can’t answer questions about their care, often because of a stroke or dementia. At that point they go to the person with the medical power of attorney and say, “What does this person want?” They make the decision about, “Yes, let’s try that medication and see what happens.” That operates until two doctors say there is no hope of recovery.
At that point, the medical power of attorney stops and the living will takes over, (which gives end of life directives). The financial power of attorney could be the same person as the medical power of attorney. Generally it’s used when an elderly person starts to get dementia and they need help with their bank accounts or paying their bills.

(This approach saves money.) Without the power of attorney documents, when someone is completely incapacitated by an illness or an accident, you have to go to court at substantial cost to get a guardianship (for medical matters) and a conservatorship (for financial decisions). A power of attorney can be done for a couple hundred dollars.

Why is a community property agreement helpful?
It is kind of an automatic transfer of all assets to the survivor when one spouse dies, so there’s no need for probate or other legal proceeding to transfer the assets to the survivor. That saves a lot of time and grief and expense. Say you have a residence and it’s owned by Mom and Dad. Dad dies and the deed still has Mom and Dad’s names on it. You can’t sell the property because Dad is no longer there to sign the deed.

How did you make partner?
It was pretty easy for me because when I came to the firm, Ted Creason was the only partner. Dan O’Connell had passed away about two years prior. All of Dan’s clients were still coming into the firm. There was too much work for Ted to do. (It wasn’t very long before Ted said), “You’re bringing in new clients all the time for estate planning and tax matters, we might as well just form a partnership.” We get paid a salary based on billable dollars over the year. As an owner, if there are profits left after paying all the expenses then we divide them up. Once you become a partner, you’re also given some freedom about what cases you take.

How has the firm coped with the loss of Theodore Creason?
Ted was a very productive partner, hard working. He had a lot of cases. He was here on a Thursday, felt really ill, went home at noon and never came back. He had pneumonia at that time. When they tried to treat the pneumonia, they discovered he also had leukemia. That was a very unexpected, very sudden thing. Ted had several court cases that were scheduled for trial at the time. A couple of them were scheduled to start within a two or three week time frame after he became ill. We had to figure out who was going to carry the case forward. On several of them, we had to go to court and ask for a continuance. Tod Geidl and Sam Creason (handled most of them). They also already had cases in the hopper. It was really hard, particularly for Sam because he wanted to be with his dad, but he was here doing the casework. It was hard because we wanted to go visit Ted. Unfortunately, Ted needed to go to Seattle. That’s where he was for cancer treatments.

Once Ted stabilized, he was very helpful and he was on the phone calling, doing some email. We were looking to hire a new attorney at the time Ted got sick. So we were already feeling like we had more work than we could handle. We have kind of settled into a routine, but are still looking for another attorney and over the next two years will probably hire two new attorneys.

-Williams may be contacted at ewilliam@lmtribune.com or (208) 8482261.

Fire Loss & Insurance Claims

Idaho and Washington are experiencing some devastating fires.  To give you an idea of just how bad it is, take a look at this graphic, from AirNow.gov.  This portion of the map shows the locations of wildfires, and the full map shows how the smoke from these fires has reached all the way to Ontario.

The National Interagency Fire Center reports that there are currently 15 major fires in Idaho, none of which are contained.  It seems as though every local community has been battling fires:  the Big Lost fire near Moscow; the Clearwater Complex and Lawyer Complex fires in the Kamiah area; the Deadwood Mountain fire near Elk City, the Municipal fire near Orofino, and the Slide fire east of Lowell.  In fact, this fire season has been so bad, that a fire located near St. Maries, Idaho has been named the “Not Creative” fire.

The Center reports that there are 20 major fires in Washington, only one of which is contained.  A few of the areas particularly hit hard are Colville, Omak, Spokane, Wenatchee, and Chelan.  The Chelan County Sheriff’s Office has reported that at least 50 homes have burned in that area as a result of the wildfires.  The most recent update from the Kamiah area is that at least 42 homes and 79 outbuildings have been lost.

As people look to rebuild what was lost, the first step is often donations from others.  Officials have asked people who want to donate funds or goods to send their donations to the Salvation Army in Lewiston at this time.  You can also keep track of what is needed by monitoring Kamiah Distributions & Donations on Facebook.  The next step for people who have suffered loss is to submit a claim to their insurance company.  The following sets forth some guidelines to follow when making your insurance claim.

Suggestion 1:  Contact your insurance company as soon as possible.  In most cases, it is a good idea to call your insurance company and let them know that you suffered a loss.  At that point, you probably are not ready to tell them the amount of your loss, and you certainly should not speculate about how much it will be.  You can, however, tell them about the general nature of the loss.  The reason for contacting your insurer early is that it may put you on the fast track for receiving payment.
When you report a loss, the insurance company puts you in contact with one of its agents, who investigates the claim.  This person is called the “claims adjuster.”  On a standard claim, the adjuster is usually from this general area.  However, when regional catastrophes occur, insurance companies often send claims adjusters from around the country to the impacted region.  These insurance storm chasers often come to the region before most of the claims are even reported.  How quickly you are able to meet with an adjuster likely depends upon the nature of your claim and when you contacted your insurer.

Suggestion 2:  Don’t start giving numbers.  The claim to your insurance company will be a detailed list of the losses you suffered.  Creating that claim takes time and is often tedious.  It almost never helps to start with a number that will either be too high or too low at the end of the process.  Just be patient on giving your insurer or the claims adjuster any numbers.

Suggestion 3:  Don’t be shy to ask for an advance.  After suffering a fire loss, you probably found yourself without essentials.  One way to get what you need is to ask for an advance against your ultimate fire loss claim payment.  You can use this money to buy essentials like toiletries, clothes, school supplies, etc.  In addition, you can often use this money to pay for staying in a hotel or rental while you are displaced from your home.  However, there are two important things you should keep in mind:  (1) don’t assume that the insurance company will cover all your purchases or the full cost of your purchases, and (2) any advance will likely be deducted from the total amount you finally receive.

Suggestion 4:  Ask for a certified copy of your complete policy.  In your very first conversation with your insurance company, ask them to send you a certified copy of your complete insurance policy.  A copy is “certified” when it has been signed as being a true and accurate copy of the original policy.  Why do you need a copy of your complete policy?  You need it because the policy is the contract between you and your insurance company.  You won’t be able to speak confidently about what your claim should look like or what money you are owed until you have that complete policy.  Pages that summarize the policy just won’t do it.

Here are a few things you should look at:
  • What are your policy limits?
  • Does your policy cover the Actual Cash Value of your lost items or the Replacement Value?
  • Are there any exclusions that apply to you?
  • Are there any limits on particular categories of items?

Suggestion 5:  Make a list of lost and damaged items.  Insurance companies want to see a list with as much detail as possible.  This is sometimes referred to as a “Proof of Loss.”  Your list should include the type of item and the number of items; at some point, your list will also likely include what you think the actual value of the item was just prior to loss and, depending on your policy, the replacement value.  Remember that the insurance company will not want to pay more than it thinks your property is worth.  You may need to support your values with receipts, construction bids, and other such documents showing why you are right about the value.

Suggestion 6:  Protect all your property, even the damaged items.  Remember that the insurance adjuster will want to see the damage.  In addition, you want to protect your property in the event that the insurance company argues that some of it is useable and not a loss.

Suggestion 7:  Don’t let the insurance company drag its feet or pressure you to close the claim.  Once you are confident that you have satisfied your obligations under the policy and that you have submitted a good claim, remain confident.  The best way to get a fair and prompt payment is to keep a written record of your actions and the actions of the insurance company.  Demand payment for those items that are undisputed.  Work hard to substantiate the claim for those items that are disputed.  This is why you paid premiums for all those years, don’t be sheepish about holding the insurance company to its end of the bargain.

– Sam Creason

If you would like to discuss these matters with Mr. Creason or another attorney at CMDG, please contact our office to set up an appointment.
 
CMDG is pleased to provide articles on its website as a service to its clients and visitors.  These articles are not intended as legal advice.  Please be aware that the law differs depending on the circumstances of an individual case and changes over time.

Our History

We have been proudly representing the people and businesses of this area since 1902, making us Lewiston’s oldest established law firm.

This firm has housed many of the Valley’s most distinguished lawyers of the past 100 years.  We hold these lawyers in high-regard and we are honored to continue their work of providing serious, reliable representation.

Eugene A. Cox (4/7/1875–10/4/1955): Born in Athens, Alabama and educated at Vanderbilt University, Eugene Cox came west at the turn of the last century to settle in the Lewis-Clark Valley.  Mr. Cox arrived in Lewiston at a time when the town had a population of approximately 2,500 people.  He set up his practice on the second floor of the old Lewiston National Bank, where his office would remain for over 50 years.  The old Lewiston National Bank sat on the corner of 4th St. and Main Street (it was razed in 1965) and provided Mr. Cox with a view of the activities of downtown Lewiston.

Mr. Cox developed a practice of representing private parties and public entities.  He also served as Lewiston’s City Attorney in the early 1900s.  In addition to advising the City on legal matters and representing the City in disputes, Mr. Cox helped produce a compiled Charter and Code of the City of Lewiston.  Mr. Cox made the following comments about the state of Lewiston’s ordinances when he began his task:

The only code of ordinances preceding this code [1908] was published in 1896.  At that time the City of Lewiston had passed, during a period of thirty-two years, one hundred ninety-three ordinances.  During the next ten years, nearly four hundred additional ordinances were passed.  These later ordinances were to be found only in the original records, which covered several books and were not indexed.  They were not readily accessible, and an almost inconceivable confusion in the laws of the City resulted.  So many conflicts occurred as to make it almost impossible to determine what the municipal law was, even on investigation.

Mr. Cox represented the City of Lewiston in numerous cases, locally and before the Idaho Supreme Court.

In addition to his legal practice, Mr. Cox was an accomplished writer, economist, and political scholar.  He wrote hundreds (if not thousands) of letters and articles on the state of the Country’s economic health throughout the first half of the 20th Century.  His writings were published in newspapers across the nation.  Mr. Cox often wrote his friend A.L. (Bud) Alford, who served as an editor of the Lewiston Tribune from 1928 until his death in 1968.

Mr. Cox remained an active member of the Idaho State Bar for the remainder of his life.  In his later years, firm staff would travel to his house on Normal Hill so that he could provide them instructions regarding his cases.  The firm lost its founding member when, on Tuesday, October 4, 1955, Eugene A. Cox passed away.

Noel B. Martin (8/30/1888–8/15/1968):  Noel Martin was a runaway, a sailor, and a printer before becoming an accomplished lawyer.  Mr. Martin was born in Custer City, South Dakota.  At the age of fourteen, he ran away from home and worked as a printer’s devil.  When World War I erupted, Mr. Martin served in the United States Navy.  After the War, he became a small-town newspaperman in Illinois.  It was during that time that he began studying the law, on his own, with no formal education.  Noel Martin would go on to establish himself as a respected member of the bar over a practice that spanned nearly 40 years.

Mr. Martin joined the firm in 1921 and the firm became known as Cox & Martin.  He would practice in the Valley for approximately 15 years before moving down to the warmer weather of Los Angeles, California.  Mr. Martin had a distinguished reputation in the criminal defense practice and he was a highly respected member of the Idaho State Bar.  By 1926, he was appointed to serve on the Bar’s Legislative Committee, acting as a voice for the Bar before the State Legislature.  By the early 1930s, Mr. Martin was asked to serve on the Idaho Supreme Court, which he declined to do.

Mr. Martin has the distinction of being the only member of the firm to speak before the U.S. House of Representatives’ Judiciary Committee.  On March 4, 1930, Mr. Martin testified as a witness before the Judiciary Committee on the harms of prohibition—this despite his personal abhorrence for the use of alcohol.  Mr. Martin also argued the case to repeal Prohibition before the United States Supreme Court.

Mr. Martin later moved to Los Angeles where he set up a private practice, and then joined the Los Angeles County Public Defender’s Office. Perhaps it was his rough-and-tumble youth that gave him the attributes for which he is remembered:  an attorney who was skilled in persuading even the toughest judges to consider alternatives to a state prison sentence for many of his clients.  Noel B. Martin died on Thursday, August 15, 1968 in Glendale, California.

Marcus J. Ware (3/17/1904–9/27/1996):  Marc Ware was an institution in the legal community for the greater part of the 20th Century.  Mr. Ware was born in Yakima, raised in Twin Falls and educated in Moscow.  While at the University of Idaho, Mr. Ware was a charter member of Phi Kappa Phi honor society.  Upon earning his law degree in 1927, he moved to Lewiston, where he would live for the rest of his life.  Mr. Ware joined the firm in in 1927.  Within a few years the firm became Cox, Martin & Ware.

Mr. Ware’s practice primarily consisted of representing private individuals and businesses.  However, he did serve as the Nez Perce County prosecutor when elected in 1942.  The talent, ethical standards and dedication with which he practiced were so respected that Mr. Ware received nearly every recognition that can be bestowed upon an Idaho lawyer:  He was inducted as a fellow of the American College of Trial Lawyers in 1963; he was admitted to the Phi Alpha Delta law fraternity; he served as adjunct faculty member of the UI College of Law; he was commissioner of the Idaho State Bar Association from 1956 to 1962 and its president from 1961 to 1962; and he received the Idaho State Bar Centennial Award in 1963.  One particularly great mark of distinction for Mr. Ware and honor for this firm occurred in 1991, when he was named the Idaho Distinguished Lawyer, the highest honor bestowed by the Idaho Bar Association.

Mr. Ware was also a committed community member.  His dedication to helping improve the lives of the Valley’s residents is a standard we strive to uphold to this day.  He was instrumental in forming the local historical society and establishing what is now the Luna House Museum. He was the group’s president for a number of years. From 1969 to 1991 he was a member of the Idaho Historical Sites Review Board. He served on the board of trustees of the Idaho State Historical Society and was once its board chairman.  He was also a charter member of the Spalding Museum Foundation.

Mr. Ware was a member of Kiwanis International, Outlook Club, Lewiston Elks, Lewiston Odd Fellows, American Legion, the Masonic Temple and Lewiston Chamber of Commerce. For many years, he was active in Boy Scout and Camp Fire organizations.  He also served as the chairman of the Lewis-Clark Sesquicentennial Committee. In 1961 he was chairman of the Lewiston Centennial observance. He was a member of the Lewis & Clark Trail Commission, which promoted the marking and development of historic sites along the 1804 to 1806 route of the expedition led by Lewis and Clark, and was its vice chairman until 1967.  He was appointed a member of the Idaho Bicentennial Commission and served from 1972 to 1976, and of the Lewiston Bicentennial Commission from 1973 to 1976. In 1975 he became a member of the National Advisory Council on Ethnic Heritage Studies, serving until 1977.  He received the UI Alumni Service Award and the UI Regents Club Award. He received the Aletha Pabst Award for his service and support of Lewis-Clark State College in 1992.

Mr. Ware was also a lifelong student of other languages and cultures.  In fact, he accumulated one of the nation’s finest private collections of Scottish Gaelic books, monographs, periodicals, music and oral recordings. At the time of his death, he was translating Robert Louis Stevenson’s “Kidnapped” into Gaelic.  He studied Swedish and became fluent enough that he was able to examine and cross-examine clients and witnesses in a lawsuit involving individuals from Sweden.  He also studied Nez Perce, Spanish, Latin and Portuguese.

Mr. Ware was a student of people, culture and the law.  He was a dedicated husband, attorney and community member.  This firm and this community lost a great leader when on Thursday, September 26, 1996, Marcus J. Ware passed away.

Elbert A. Stellmon (5/3/1904–1/15/1995):  Elbert Stellmon was born and raised in Nez Perce, Idaho and studied at the University of Idaho.  He passed the Idaho State Bar 1928.  That same year, he was elected to serve as the Lewis County prosecuting attorney; he was only 24.  At that time, Mr. Stellmon was the youngest prosecuting attorney in the United States.  Mr. Stellmon served as the prosecuting attorney from 1928 to 1933.  “The Great Depression came on in 1929, and crime was rampant in Lewis County.”  In his memoir, Mr. Stellmon recounts his work with Sheriff A.W. Mitchell as they dealt with characters such as “Cow Thief” Campbell.
Mr. Stellmon moved to Lewiston and joined the firm in 1935.  Mr. Stellmon served during World War II and received the Certificate of Merit and the Selective Service Medal.  He also served for a time on the Selective Service Appeal Board.  Mr. Stellmon returned to his practice and the firm became Cox, Ware & Stellmon.  He would practice here until his retirement in 1984.  Mr. Stellmon’s practice included serving as the Lewiston City Attorney from 1953 to 1956.
Mr. Stellmon was active in politics and various fraternal organizations.  He was involved in Masons, and Elks Lodge, Rotary, the Chamber of Commerce and Inland Waterways Association.  In public service, Mr. Stellmon served as president of the Clearwater Bar Association, University of Idaho Alumni Association, Lewiston Rotary Club, Lewiston Knife and Fork Club and Tri-State Hospital Board.  Elbert A. Stellmon died on Sunday, January 15, 1995.

William A. Stellmon (5/2/1933–12/18/2010):  William “Bill” Stellmon spent nearly all his life in the Lewiston area.  When he was 1 year old, the family moved to Lewiston from Winchester.  Mr. Stellmon graduated from Lewiston High School in 1951 and from the University of Idaho College of Law in 1960.  Upon graduation, he moved his family back to Lewiston, where he joined the firm and worked alongside his father.  In addition to his private practice, Mr. Stellmon served as assistant Nez Perce County prosecutor and was the Lewiston city attorney from 1964 to 1971.
Like so many of the attorneys in this firm’s history, Mr. Stellmon not only served his clients, but also the community.  He was a member  on the Lewiston School Board from 1972 to 1981, director and past president of the Lewiston Roundup Association, later serving as the parade grand marshal, director on the board of the Lewiston Boy’s Club, member of the State of Idaho Parks and Recreation board, president of Lewis-Clark Legal Services, chairman of the Lewiston Vandal Boosters, an early supporter and participant in the Lewiston Civic Theatre, and a member of the Elks, the Masons, the Shriners and the Rotary Club.  He also coached area youth in football, basketball and baseball and served as a Boy Scout leader.  Mr. Stellmon served as magistrate judge from 1990 to 1997, at which point he retired from the practice of law.  William A. Stellmon died on Saturday, December 18, 2010.

Daniel W. O’Connell (7/9/1928–5/31/1988):  Daniel O’Connell was regarded as one of the most talented defense attorneys in the Northwest.  Mr. O’Connell’s success was in no small part the result of his understanding and appreciation for this area and its people.  The son of a lumberman, Dan O’Connell was born in Spokane, Washington and raised in Potlatch, Idaho.  He graduated from the University of Idaho College of Law in 1953 and served in the Air Force from 1953 to 1955.  After completing his term of service, Mr. O’Connell moved north to join the firm.  It was from this firm that Mr. O’Connell served his clients with such dedication and skill that he was soon a nationally recognized advocate. By 1958, Mr. O’Connell was a partner at the firm.  The firm became Ware, Stellmon & O’Connell.  By 1978, he was inducted as a fellow of the American College of Trial Lawyers.  The firm name was changed to Ware & O’Connell in 1984 and then to Ware, O’Connell & Creason in 1985.  At the time of his death, Mr. O’Connell is reputed to have had two cases set to go to trial every month for the next two years.

Mr. O’Connell was not only dedicated to his clients, but also to the Lewis-Clark community.  He served as the president of North Idaho Children’s Home Board, a director of the Lewis-Clark Valley Boys & Girls Club, an officer of the Lewiston Junior Chamber of Commerce, an executive committee member of the Lewis-Clark Council of Boy Scouts of America, a director of the Lewiston-Clarkston Blood Bank, a director of the Lewiston Chamber of Commerce, and director of the St. Joseph Regional Medical Center Foundation (to name a few).  Mr. O’Connell was also active in local politics and taught classes at the Lewiston YWCA, assisting immigrants seeking U.S. citizenship.

Tragically, Mr. O’Connell died at the age of only 59 as the result suffering a sudden heart attack on the morning of Tuesday, May 31, 1988.  All these years later, those who worked and lived alongside Dan O’Connell still mourn the loss of a man who served so many, accomplished so much, and had plans for so much more.

Upholding A Legacy.
Those at Creason, Moore, Dokken & Geidl today consider it an honor and a privilege to serve in the same firm as these great attorneys.  We also consider it our responsibility to strive toward providing the highest level of commitment and skill to each of our clients.

Crime & Punishment

Answering Idaho Questions Raised by State v. Zimmerman
The national media has again turned its critical eye on the Florida justice system.  Two years ago, it was State v. Anthony.  This time its focus is State v. Zimmerman.  I am not going to add my name to the countless people giving their take on the case and its aftermath.  Instead, I would like to discuss some legal realities that the Zimmerman trial has brought to the public’s attention.

 Does Idaho have the “stand your ground” law?
You may remember that in the immediate aftermath of the Trayvon Martin killing, there was a great deal of discussion regarding Florida’s “stand your ground” law.  Florida law states that every person “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

While the law may seem sensible to some, it is actually not the traditional law in America. Traditionally, we have required someone to retreat, if possible, before resorting to meeting “deadly force with deadly force.”  The Florida legislature changed the traditional rule because it believed that victims should not be precluded from claiming self-defense simply because they did not retreat under the attack of an aggressor.

Idaho has not adopted a stand your ground law.  Idaho law falls somewhere in between the traditional rule and the “stand your ground” laws.  In an old Idaho Supreme Court case, the Court explained that test in Idaho is whether the defendant acted “as a reasonably prudent person would act under similar circumstances and surroundings.”  The Supreme Court expressly held that there exists no requirement that you first tried to avoid the confrontation.
In 1972, the Idaho legislature listed scenarios when a killing would be considered “justifiable homicide” in the State.  The list included: When you are resisting someone’s attempt to murder or do great bodily injury to another person; and When you are defending your home against someone who clearly intends to enter your home by violence or surprise and commit a felony or hurt someone in the home;
In an Idaho self-defense case, the jury is likely to receive the following instruction:

In the exercise of the right of self‑defense, one need not retreat.  One may stand one’s ground and defend oneself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .  This law applies even though the person being attacked might more easily have gained safety by flight or by withdrawing from the scene.

The language of that instruction—at least by my reading—sounds like a stand your ground law.  So, what’s the practical difference?  In Idaho, a jury may consider whether you had the opportunity to retreat (even if you were not required to retreat).  In Florida, it appears that a jury may not even consider whether you had an opportunity to retreat.

What is Idaho law on initial aggressors?
As a few Zimmerman jurors have come forward to discuss their thoughts during deliberation, it appears that much of the jury’s time was spent considering whether Trayvon Martin or George Zimmerman was the “initial aggressor.”   If Trayvon Martin was the initial aggressor and continued to attack George Zimmerman, then the self-defense analysis is fairly straightforward.  But there are situations where the criminal defendant has killed an initial aggressor and is still not excused by self-defense.

In Idaho, an aggressor can withdraw from combat which he had initiated.  If the aggressor withdraws and makes clear that he has withdrawing, then not only was the self-defense excuse unavailable to the initial victim, but the aggressor could claim self-defense if the victim attacked.

Can an Idaho prosecutor “amend” the charges at the close of trial?
Those who followed the Zimmerman trial will remember that the prosecution was allowed to add jury instructions for manslaughter at the end of a trial that had focused on second-degree murder.  The criminal charges against Zimmerman only listed second-degree murder.  Over a year after filing the charges and at nearly the last minute before jury instructions, the prosecution asked that the judge instruct the jury on two additional charges: (a) manslaughter; and (b) third-degree felony murder.  The Court instructed on the charge of manslaughter but did not instruct on third-degree felony murder.
One of the reasons the Court allowed the instruction on manslaughter is that it is a “lesser included offense” of second-degree murder.  This means that in order to prove second-degree murder, the prosecution would necessarily have had to prove all the elements of manslaughter.  I had more than one person outside the profession ask me whether an Idaho prosecutor could do such a thing.  It seems unfair that you could pour all your focus and energy into defending against one charge only to have the prosecutor try to nail you for a lesser charge at the last minute.

Many of us in the legal profession were surprised by the tactic, but not the judge’s ruling.  It is unusual for the prosecution to ask for an instruction on manslaughter after spending the entire trial focusing on second-degree murder.  This signaled the end of any chance at a second-degree murder conviction (which was a long-shot from the start) and it smelled of desperation.  It is not unusual for a defense attorney to push for a lesser included offense instruction, when the attorney thinks the client will get convicted of something, but that the jury may not want to punish the criminal defendant to the extent sought by the prosecutor.

In Idaho, the court will grant a prosecutor’s request for a lesser included offense instruction when there “is a reasonable view of the evidence presented in the case that would support a finding that the defendant” committed the lesser included offense but not the greater offense.  The test does not turn on the notion of “fairness” mentioned above.  Finally, an Idaho jury must consider the greater offense before considering the lesser offense.
Some Concluding Thoughts.  I would like to say a few words in defense of the judicial system.  First, the system was designed to provide the same rights and protections to those whom the public loved and those whom the public hated.  When the court acts without consideration for public opinion, it is acting in one of its highest capacities.  If you disagree with that point, then we might as well return to lynch mobs.  Second, criminal juries do not return a verdict of “innocent”; only “guilty” or “not guilty.”  The jury is asked to answer a specific question:  Is this man guilty?  The answer to that question can be Yes only when the State has proven that the criminal defendant engaged in all the elements of a crime beyond all reasonable doubt.  A public attack on a jury verdict is not so much an attack on the judicial system as it is an attack on the 6-12 average citizens who were randomly selected for jury duty, and placed on the jury because each side thought them to be the most impartial.  When we are outraged at the verdict, we are outraged at ourselves.
– Sam Creason

If you would like to discuss these matters with Mr. Creason or another attorney at CMDG, please contact our office to set up an appointment.

CMDG is pleased to provide articles on its website as a service to its clients and visitors.  These articles are not intended as legal advice. Please be aware that the law differs depending on the circumstances of an individual case and changes over time.

Intellectual Property & Trademark Protection:

You do have something worth protecting.
As a small business owner, you already have intellectual property.  Over the past couple of years, I have been asked to speak with local business owners about what intellectual property is, and what it might mean for them.  In this article, I provide you with some helpful tips on how to identify and characterize one of your business’ most valuable assets and then discuss the ways in which CMDG can help you figure out what to do with it.

Intellectual property is difficult to define, but today we will use the definition “a creation of the mind.”  When most of us think about intellectual property (or, “IP”) we often think of a new widget (patents) or a novel, movie or song (copyrights), but IP also includes brand names and logos (trademarks).

If you are using a mark, design or slogan in commerce that you think is unique to you, then you have a trademark.  To help identify your mark, think about those tools you use to help customers identify you as the source of the good or service.  Look for a special symbol (the Target dot), a catchy phrase (“Can you hear me now?”), or even your radio jingle (NBC chimes).  All these “marks” can be protected.

The questions are “Have you registered that mark?” and “Are you protecting it?”  Trademarks can be registered at the state and federal level.  In Washington and Idaho, trademarks are handled by the Secretary of State.  At the federal level, trademarks are handled by the United States Patent and Trademark Office (often referred to as the “USPTO”).  Federal law prohibits the use of the circle R symbol (®) unless you have a federally registered trademark.  Registering your trademark gives you another tool for stopping others from using your mark.

Why is trying to protect your mark important?  Every business owner knows the importance of the business’ reputation.  Whether it is the goods you make or the services you provide, the success of your business depends upon a reputation for excellence.  What many business owners do not realize is that a registered trademark can be a cost-effective way of protecting and expanding your reputation among existing and potential clients.

In addition to protecting and expanding your reputation, holding a trademark may create a revenue stream.  For example, USA Gymnastics is not about to miss out on the revenue stream that will flow from the five Olympians who just won gold in London:  Jordon Wieber, Aly Raisman, Kyla Ross, McKayla Maroney, and Gabby Douglas.  These young women captured the gold medal and became instant sensations.  At first, they were dubbed the new “Fab Five”, but a certain former University of Michigan basketball player already held the trademark to that slogan.  Then, USA Gymnastics tried to trademark the “Fierce Five”.  We’ll see how that goes.  Why would USA Gymnastics spend the resources to have that slogan trademarked?  Not because USA Gymnastics is necessarily interested in getting into the printed shirt industry, but because they may be able to stop business interests from using that slogan without paying a licensing fee first to USA Gymnastics.

The understandable reality is that IP is not the first thing on most business owner’s minds, but the likelihood is that you do have something worth protecting.  It is important that if you choose to get assistance regarding your intellectual property, you find someone who understands small businesses and how to protect those valuable assets in a cost-effective manner.  CMDG is confident that we can assist you in this regard.
–         Sam Creason

If you would like to discuss these matters with Mr. Creason or another attorney at CMDG, please contact our office to set up an appointment.

CMDG is pleased to provide articles on its website as a service to its clients and visitors.  These articles are not intended as legal advice.   Please be aware that the law differs depending on the circumstances of an individual case and changes over time.