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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I hope I am not monopolizing your time... I dont mean to infringe

Resolved Question:

I hope I am not monopolizing your time... I don't mean to infringe on other people's questions... when is a good time to contact you? I only have to clarify a few more items.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.

You are very kind, and you are not monopolizing my time. This is what I'm here for. I'm about to step away from my computer for an hour or two. But please post your question to this reply and I'll be happy to answer as soon as I return.

Thanks,

ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

O.K. then


I acted on several of the points you advised me. Amazingly, I made some good progress. (Probably because I sounded intelligent, as I used your terminology... Also, I've become a permanent fixture in court; I expect them to ask me for "rent" any time now...) I can't thank you enough for your wonderful advice.


Next, I would like to tackle the following items:


 


1. Expunging my criminal record-


Who do I present this request to? is it the County Attorney? those


are the guys who prosecuted me in the first place. Is it in the


format of a "Motion"?


 


2. Holding Wal-Mart accountable for claiming a fictitious check-


Since that fraudulent charge claimed a year of my life and


deemed me unemployable - am I entitled to monetary restitution?


do I need legal representation? (We already know that AZ lawyers


and I don't "play" well together...) Can I represent myself?


 


3. DSFCU - the Bank-


When I file my report to the AZ Dept. Of Financial Institutions re


depletion of the book proceeds - should I also include the fact


that they gave deceptive testimony in court about that mysterious


check? shouldn't they be accountable for the same violations as


Wal-Mart? (they probably wanted to shift the attention from the


"book-account" so they sent a V.P. to swear that "there was such


a check- but they can't find it"... the judge saw right through it and


had very harsh words for them.)


 


That's it. I thinks I did a good job "confusing" you... (I'm good at that)


 

Expert:  Zachary replied 1 year ago.

Hi,

On the expungement, this is a petition you make to the criminal court in which you were charged. It's Petition for Expungement. I'm going to look for a form for you to use. Since the charges were dismissed, this should a pretty easy thing to get. Getting the District Attorney's approval is necessary generally. I'll respond back with a more precise answer tomorrow.

On the malicious prosecution claim against Wal-Mart - I've litigated against Wal-Mart several times. They rarely settle and almost always put up a stiff fight. Will you be able to recover for not being able to find a job? This would be a very hard claim to prove. You would have to establish that you were looking for work, found someone who was interested in you and then turned you down specifically because of this false charge against you. While this would certainly be part of your claim, it would be very hard to recover any "future lost wages" because of it, as there are a lot of elements that would be very difficult to prove, and you would have to get the testimony of the employers who turned you down to support your claim. If you had a potential employer come in and say "I was going to hire you, I was going to pay you $90K a year (or what have you), and I did not hire you even though you were qualified because of the charge Wal-Mart falsely made against you." That is the only way you would get the lost wage damages. On the other hand, you can get unspecified damages that a jury awards for the flat out damage to your reputation. In that case, you will have to show from a third-party's perspective that this claim damaged your reputation. That probably means someone else will have to come into support that claim. However, if you did not have any witnesses, and only had your own testimony, you might convince a jury to give you something out of it. In short, the malicious prosecution claim is difficult to prove damages on, but not impossible. Again, you don't have to have a lawyer, but it is always better to have one.

DSFCU - definitely bring that up. There's absolutely no reason that they had to offer that you falsely cashed a check when this was not the case at all. They should have been the party that established that you were innocent, rather than supporting a false claim with false evidence. What was the reason that they made the mistake of thinking you were the one who wrote a hot check?

You wouldn't file the malicious prosecution claim against DSFCU because they did not actually press the claim. You could ask the district attorney to prosecute for perjury, if you can show that the testimony was an outright lie as opposed to some sort of excusable mistake on their part.

I'll write more later.

-ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

This exchange with you is like an education; not only does it encompass the legal system- but our (the people who don't own banks and large corprations) standing in society at large. I understand why that particular Wal-Mart acted that way... because they can. and because there are no consequences. They must've accused people in the past- all of whom were smarter than I was and didn't fight it. I stood on the side of "principal" when that ideal has become irrelevant in our daily life.


 


I was fortunate to have met you; otherwise I would be "fighting


windmills" for the rest of my life... I can't see myself going to court


without a lawyer (it's counter productive). And, if nothing else, I am practical.


 


I'll read your "narrative" again and decide. (You must be tired of hearing this- but your "legal lectures" are fascinating...)


 


I guess it's not a total loss; expunging the charge is important.


 


Thanks again


 

Expert:  Zachary replied 1 year ago.
Hi,

Thanks again for the compliments. They are well received and appreciated.

American culture is litigious in nature. Our perceived sense of justice and our culturally inherent sense of entitlement brings about a belief that the law provides remedies for us that are simple to achieve, when in actuality it does not. This is probably because we see juries give large awards for often perceived insignificant injuries. Of course, my experience has been that they are perceived as insignificant because of the large corporate lobby which castigates jury awards to individuals and has told us all that tort reform will make our world a better place (you can probably tell I disagree).

For example, the woman who sued McDonald's for the coffee being too hot and burning her. Most people think she wasn't entitled to an award because she spilled the coffee on herself and coffee is supposed to be hot. But what most people don't know is that the Mcdonalds at issue had been warned on multiple occasions that it was serving coffee which was far too hot and violated the health and safety laws in the state. The coffee was so hot when served that it actually denatured the cups in which it was served, causing them to disintegrate. In reality, the woman did not spill a cup of coffee on herself and sue. She was holding a cup of super-heated coffee which melted the cup in her hands spilling onto her lap causing her serious and permanent third degree burns over her groin. McDonalds knew the danger before hand and did nothing to lower the temperature of the coffee and prevent the injury. In other words, they ignored the fact that a product they were serving to people could cause imminent bodily harm and inspite of their foreknowledge put people in danger by serving the product anyway, i.e, gross negligence.

To win a large jury award on any cause of action you have to face multiple legal hurdles and have a case that is supported by the law and passes muster under the scrutiny of the appellate courts. This brings the weight of 1,000 years of the common law down on each case. That's not to say that injustice doesn't happen, it certainly does. But windfalls are few and far between, especially for the little guy.

thanks for letting me lecture :-)

Expungement:

I'm sorry to report, that to my utter shock and disbelief, Arizona does not have an expungement procedure. In fact, Arizona's policy is that if you are arrested and/or charged with a crime, this should remain a documented event for any potential employer to discover, regardless of whether the arrest was improper or whether you were falsely accused. To me, this is a travesty and does not follow the path that other states have gone down in regard to expungement. However, this leaves us with no path for justice in your circumstance and no one but the Arizona legislature to thank.

Here is a case explaining:

110 Ariz. 438, *; 520 P.2d 310, **;
1974 Ariz. LEXIS 288, ***

Honorable Coy B. BEASLEY, Justice of the Peace of Chandler Precinct; Moise Berger, Maricopa County Attorney; and Paul Blubaum, Maricopa County Sheriff, Petitioners, v. Honorable Jerry H. GLENN, Judge of the Superior Court of Maricopa County, Arizona; and John Harold LLOYD, Real Party in Interest, Respondents

No.XXXXXof Arizona

110 Ariz. 438; 520 P.2d 310; 1974 Ariz. LEXIS 288


March 20, 1974

DISPOSITION: [***1] Judgment vacated.

CASE SUMMARY
PROCEDURAL POSTURE: Petitioners, justice of the peace, county attorney, and county sheriff, sought review of an order of the Superior Court of Maricopa County (Arizona), which directed them to expunge all the records from the files of their public offices concerning a criminal action in which defendant was charged with aggravated assault.

OVERVIEW: Defendant was charged with committing an aggravated battery on his wife's child from her former marriage. The case was later dismissed at the request of the prosecuting witness, defendant's wife. Defendant then filed a request to have all the records relating to that charge expunged. On appeal, the court vacated the judgment of the trial court, holding that the trial court improperly ordered the justice of the peace, the county attorney, and the county sheriff to expunge all records relating to defendant because Ariz. Rev. Stat. § 13-176 did not provide for the expungement of the charge or the arrest and only permitted a notation to be entered where a person has been cleared after a wrongful arrest and this can only be done upon the written statement of the prosecuting attorney that he does not intend to prosecute.

OUTCOME: The court vacated the judgment of the trial court ordering the justice of the peace, a county attorney, and the county sheriff to expunge all records concerning the criminal complaint against defendant.


CORE TERMS: arrest, destruction, public offices, public interest, public records, arrest record, written statement, prosecuting attorney, expunged, cleared, expunge, law enforcement agencies, public officials, fingerprints, aggravated, outweighed, photographs, wrongfully, prosecuted, arrested, notation, battery, privacy, ordering, vacated


LEXISNEXIS® HEADNOTES Hide

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > General Overview

HN1 See Ariz. Rev. Stat. § 38-421.

Criminal Law & Procedure > Preliminary Proceedings > Withdrawal of Charges > General Overview

HN2 See Ariz. Rev. Stat. § 13-1761.


COUNSEL: Moise Berger, Maricopa County Atty. by James C. Martin, Deputy County Atty., Phoenix, for petitioners.

Willis & Riggs by John V. Riggs, Scottsdale, for respondents.

JUDGES: In Banc. Struckmeyer, Justice. Hays, C. J., Cameron, V. C. J., and Lockwood, and Holohan, JJ., concur.

OPINION BY: STRUCKMEYER

OPINION


[*438] [**310] This special action was brought to test a judgment rendered by The Honorable Jerry H. Glenn, Judge of the Superior Court [*439] [**311] of Maricopa County, Arizona, directing petitioners to expunge all records from the files of their public offices concerning that certain criminal action in which John Harold Lloyd was charged with aggravated assault. The judgment of the Superior Court of October 26, 1973 ordering petitioners to expunge all records concerning John Harold Lloyd is vacated.

The stipulated facts establish that on the twelfth day of April 1972, Respondent John Harold Lloyd was charged with committing an aggravated battery on Bridget Gersten, a violation of A.R.S. §§ 13-241 and 13-245(A)(3). The charge was filed by Elinor Gersten Lloyd, his wife, and the battery was on the person of her child by a former marriage. On [***2] June 8, 1972, Elinor Gersten requested the County Attorney of Maricopa County to dismiss the criminal complaint and signed an approval thereto; and on the same day, The Honorable Coy B. Beasley, Justice of the Peace, entered an order of dismissal.

On August 7, 1973, respondent, as petitioner in the Superior Court, brought a special action wherein he entitled himself John Doe and requested that all those records concerning the criminal charge and his arrest, including those in the office of Moise Berger, County Attorney, be expunged or, in the alternative, turned over to and delivered to him. On October 26, 1973, The Honorable Jerry H. Glenn, Maricopa County Superior Court Judge, granted the relief requested.

This Court accepted jurisdiction of a special action in the nature of certiorari to review the question of the jurisdiction of the Superior Court to direct the destruction of public records held in the offices of duly acting public officials. The single question is whether the respondent judge had the jurisdiction to order the destruction of public records of the Justice Court of Chandler Precinct and those in the office of Sheriff and County Attorney of Maricopa County.

[***3] In a number of recent cases courts have ordered an arrest record expunged or returned because either the harm to the individual's right of privacy outweighed the public interest in retaining the records or the court considered it an appropriate remedy in the wake of police action in violation of constitutional rights See, e. g., Sullivan v. Murphy (1973), 156 U.S.App.D.C. 28, 478 F.2d 938; Davidson v. Dill, Colo., 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971).

The concern of the courts has been in response to the computerization of charges and arrest records, an event which has greatly increased the power of industry and the government to collect data so that, as a result, the individual suffers a loss of privacy as a natural by-product of our modern technology. The cases also reflect the awareness that economic and personal harm results to an individual if even a baseless arrest becomes known to his employers, credit agencies, banks, or even his neighbors, notwithstanding the absence of a conviction.

We note that the Superior Court has ordered the petitioners to commit what by statute is a criminal offense. A.R.S. § 38-421 HN1provides, without exception, [***4] that public officers having custody of records, maps or books, or of any papers or proceedings of any court, filed or deposited in any public office, or placed in their hands for any purpose, who destroy or remove the whole or any part thereof or permit any other person to do so are guilty of a felony and shall be punished by imprisonment in the state prison for not less than one nor more than fourteen years. The least that can be said is that this statute makes it abundantly clear that the public policy of this State as established by the Legislature is to preserve as a memorial matters customarily retained in public offices for future enlightenment of those necessarily concerned therewith.

Historically, the retention by public officials of such records as photographs and fingerprints has been viewed as in the public interest because they tend to [*440] [**312] promote the safety and welfare of the community as a whole. The individual's interest is outweighed by the public's interest in the possession of information concerning persons who may again be charged with some activity which requires the making of records. Public records, since they are required to be kept by [***5] law, can only be destroyed pursuant to law, and, hence, the destruction of public records is a matter to be regulated by statute. Herschel v. Dyra (7th Cir., 1966), 365 F.2d 17, cert. den., Herschel v. Wilson, 385 U.S. 973, 87 S.Ct. 513, 17 L.Ed.2d 436 (1966); Spock v. District of Columbia, 283 A.2d 14 (D.C.Ct. App., 1971); Sterling v. City of Oakland, 208 Cal.App.2d 1, 24 Cal.Rptr. 696 (1962); Walker v. Lamb (Del.Ch.), 254 A.2d 265 (1969), aff'd, (Del.Supr.), 259 A.2d 663 (1969); Mulkey v. Purdy (Fla.), 234 So.2d 108 (1970); Kolb v. O'Connor, 14 Ill.App.2d 81, 142 N.E.2d 818 (1957); Statman v. Kelly, 47 Misc.2d 294, 262 N.Y.S.2d 799 (1965) aff'd, 24 A.D.2d 936, 264 N.Y.S.2d 1008 (1965); Weisberg v. Police Department of Lynbrook et al., 46 Misc.2d 846, 260 N.Y.S.2d 554 (1965). And see, Anno., Right of Exonerated Arrestee to Have Fingerprints, Photographs, or Other Criminal Identification or Arrest Records Expunged or Restricted, 46 A.L.R.3d 900.

In 1973, by Added Laws effective August 8th, A.R.S. § 13-1761, Arizona enacted legislation which provided the disposition to be made of records where a person has been wrongfully arrested. It reads:
HN2"A. Any person who is wrongfully [***6] arrested, indicted or otherwise charged for any crime may upon obtaining a written statement from the prosecuting attorney that such person will not be prosecuted in connection with such crime, petition the superior court for entry upon all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.

B. After a hearing on the petition, if the judge believes that justice will be served by such entry, the judge shall issue the order requiring the entry that the person has been cleared on such records, with accompanying justification therefor, and shall cause a copy of such order to be delivered to all law enforcement agencies and courts. The order shall further require that all law enforcement agencies and courts shall not release copies of such records to any person except upon order of the court."


It is to be noticed that the statute does not provide for expunging the record of the charge or the arrest. It only permits a notation to be entered where a person has been cleared after a wrongful arrest and this can only be done upon the written statement of the prosecuting attorney that [***7] he does not intend to prosecute. The prosecuting attorney of Maricopa County, Moise Berger, a petitioner herein, has not provided a written statement that Lloyd would not be prosecuted. Consequently, we can only conclude that the Superior Court had no jurisdiction to make any order whatsoever concerning the records in the offices of the Justice of the Peace, the County Attorney and Sheriff which would cause their destruction or delivery into the hands of Lloyd.

One further matter requires comment. In the special action in the Superior Court and the action in this Court, John Harold Lloyd was designated as John Doe. We know of no statute or rule of court which permits the bringing of an action in a fictitious name unless prior permission of the court has been obtained. We have, therefore, referred to respondent real party by his true name.

The judgment of the Superior Court, dated October 26, 1973, ordering petitioners to expunge all records concerning the criminal complaint against John Harold Lloyd is ordered vacated.

That being the case, you might seriously consider a malicious prosecution charge against Wal-Mart to, if anything, show that you object to being falsely accused.

Sorry there is not better news.
-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

Well, Zachary, have you considered the LECTURE CIRCUIT?


It took awhile to absorb the wealth of information you've been disbursing free of charge... (taking into account that an education is so costly...)


I read and re-read these rulings wondering if I've been living on another planet... through my 32 years of life I've been self-promoting my image as someone who has a good- handle on life and insight into the human condition; in short, I'm totally ignorant of the most important segment of that life - the rule of law. Which unknowingly seems to rule every aspect of our existence.


Another revelation is that your quality of life is determined by "geography"...i.e. the state you live in dictates our "comings and goings"... I never imagined that the state of AZ is in the business of formulating the lives of its citizens...


 


At this juncture, I need to add a foot-note to explain my militant approach to everyone that attempts to "do me harm" of any kind.


(like Wal-Mart.) It's imprinted in my genes.... I was born in France- but my mother was a diplomat for the Israeli government at a time when women were not so "visible"... I was "fed" this doctrine of standing up for your rights from a very young age...


 


I am saying that to further explain, that now more than ever, I'd like to haul their collective a-- to court - even though the battle is doomed from its inception - for nothing more than to express my outrage - or I won't have any peace...


 


Finally, (I didn't realize I've opened the "flood-gate"), and this is my opinion, of course - but Walmart has been doing ALL their business (about 99%) with that anarchistic, lawless country, and seemed to overlook the fact that this is America... Obviously, in AZ, they don't have to worry about anything.


 

Expert:  Zachary replied 1 year ago.

Thanks for your response. I really think the case against Wal-Mart is egregious.

How did it start, if you don't mind me asking? Why did they single you out to press a hot check charge against?

-ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 9 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

As I said, the thief targeted several walmarts,and the bank statements show the "purchases" as DEBIT charges. Someone at this particluar Walmart decided that it didn't have to be a "loss"... All they had to do was to create a receipt showing the same amount, with a check number, file a bad check complaint with the county attorney- and a summons was issued- hauling me into court like a common criminal... the irony of it all, no one expected me to fight back. In fact, I was asked many times why I didn't just pay it ($256.00 is not a monumental amount.) But, as we now know, I am not "programmed"
to do that.


 


(I promise to keep it under a 1000 words from now on...)

Expert:  Zachary replied 1 year ago.

This would definitely be a good malicious prosecution claim against Wal-Mart. You should go for it.

Customer: replied 1 year ago.

Thank you. If nothing else, I think the process will be "medicinal" and a healing unto itself; a kind of closure.


I'll prepare my questions - (I already have all the documents), and look for you again, tomorrow.


(Unless you decide you've had enough, and change your identity...)


 


I appreciate all your help!


 


 

Expert:  Zachary replied 1 year ago.

Thanks,

ZDN

Zachary, Attorney
Category: Legal
Satisfied Customers: 3846
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 9 other Legal Specialists are ready to help you

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