General Practice Lawyers in Missoula
Our firm delivers complete legal services to its clients. We focus on meeting client needs through competent, ethical legal representation. Arrange a Free Consultation to see how Jones & Cook Attorneys at Law can help resolve your legal issue. Call (406) 543-3800 to connect with one of our Missoula, Montana Lawyers.
Many clients and prospective clients have asked our Montana attorneys a number of questions regarding legal representation. Here are a few questions that have been posited to our attorneys and their corresponding answers. We hope you find them helpful in your search for representation. If you have a more detailed question about a legal matter in Montana or North Dakota, call Jones & Cook Attorneys at Law at (406) 543-3800 for a Free Consultation.
Our answers to these questions should not be taken, in any form, as legal advice. Please refer to our disclaimer on this website.
Business Law encompasses everything from businesses that want to sell to collecting for goods/services rendered. In other words, it can be so complex that we’re talking about collateralizing and UCC-1 financing statements, but it can be as simple as going to small claims for collections purposes. At Treasure State Attorneys we’ve handled partnership disputes, the sale of a business gone bad, violations of non-compete agreements, breaches of contract, LLC formations, corporation formations, partnership agreements, buying and selling of businesses, collections, and insurance claims just to name a few.
Outside of small claims, a corporation or other entity cannot represent itself. If your corporation, LLC, or other entity needs to sue someone or is being sued you will need an attorney. Not sure if you need an attorney? Call for a free consultation.
As your business ages and grows, it will be exposed to ever increasing liability. Simple math tells us that the more times you roll the dice, the more likely it is that your number will come up. Most of the time there are ways to minimize the risk to you and your business. Depending on the situation, an aggressive trial attorney can pierce right through your company and get to your personal assets. Likewise, most folks have no knowledge of the concepts of joint and several liability, vicarious liability, defacto partnerships, defacto corporations, apparent authority, joint venture liability, and several others that can get businesses in trouble. Liability minimization is the way you protect yourself should the unthinkable happen.
If you’re incorporating as a C-Corp or S-Corp, Montana requires you to memorialize your bylaws, an important part of corporate compliance.
In legal contracts, the wording and format often have to be very specific to be legally binding. Working with a contract attorney will ensure that your documents are legal, admissible in court, and are free of loopholes. If you’re drawing up any sort of legal document, you may want to bring on an attorney to at least review, if not draft, the document. A contract attorney can also give guidance if you believe someone has broken a contract you’ve entered into or if you would like to get out of a contract.
A contract attorney draws up and revises legal documents and contracts.
When your document is finished, you should expect that it is legally binding and will hold up in any court of law. Your contract attorney should make sure that you understand all of the terms you’re agreeing to and that you’re comfortable with the entire contract. If there are any issues with a document, your lawyer should clear them up so the agreement works for you. With the use of an attorney, you can feel confident in your contract or agreement.
A breach of contract is when one party somehow doesn’t perform its obligations under the contract. A breach can occur in several ways: if a party doesn’t perform on time, performs in a way that is not in accordance with the terms of the contract, or simply doesn’t perform at all. The non-breaching party can sue the breaching party in order to receive relief.
It’s a good idea to consult with a construction attorney if you:
- Are starting a new project and need to make sure that you’re following local and federal building regulations
- Need to create a legal document, especially a contract
- Need a new permit
- Need to obtain government permission
- Need to hold a town hearing
- Are worried about an environmental regulation
- Are having a dispute with your employer/employee
- Need to file a lawsuit or lawsuit has been filed against you
For any new project or any concerns or doubts, having a construction lawyer explain the process may be very helpful.
A construction lawyer handles a number of different legal needs, including but not limited to employment law, government contracts, and construction defects. As your law team, we can draw up contracts and ensure that you’re following regulatory guidelines, as well as represent you in negotiations and in court if it reaches that point.
A building code is a law or ordinance enacted by a local authority that sets out the minimum standards that must be met for building design, construction, quality and location. There are also specialized codes for plumbing, electrical and fire safety. Building codes also cover most remodeling projects.
In Montana a state building permit is required prior to the start of construction for certain types of new buildings, and/or for alterations, additions and repairs. Building permits must be issued on all required projects before plumbing, mechanical or electrical permits can be issued and before work authorized under these permits can start.
Montana state law exempts the following from the need to obtain state building permits:
- Farm and ranch buildings
- Mining buildings on mining property
- Petroleum refineries and pulp and paper mills (except office and shop buildings)
- Residential buildings containing less than five dwelling units (except when serving transient guests)
- Private garages and private storage buildings used for the owner’s own use (not part of a commercial enterprise or business)
Employment and Labor
Montana’s minimum wage is $8.30 per hour. A business not covered by the Fair Labor Standards Act whose gross annual sales are $110,000 or less may pay $4.00 per hour. However, if an individual employee of such a business is producing or moving goods between states or is otherwise covered by the Fair Labor Standards Act, that employee must be paid the greater of either the federal minimum wage $7.25 or Montana’s minimum wage.
Although there are some exemptions, most workers must be paid the minimum wage for all “hours worked” as required by state law. “Hours worked” includes preparation time, opening and closing the business, company travel, and required meetings and training. Any time spent by an employee in the performance of these duties must be recorded and paid.
Employers may not use tips as credit toward wage rates, including minimum wage, to an employee.
The first thing to do is ask the employer why you haven’t received your final check. If the employer refuses to give you your final check, you may choose one of the three options to obtain your wages:
- Obtain the services of a private attorney;
- File a claim in court; or
- File a wage claim with the Investigations Section.
The law does not require an employer to provide pay raises. If provided they become a part of the employment contract. If a raise is due and not received, the discrepancy should be addressed immediately as acceptance of the wage paid may be seen as an alteration of the original agreement.
An employer must pay the agreed wage until such time that a new rate is agreed upon. Once you and the employer have specifically discussed and agreed upon a new rate, it is considered the “agreed wage.” Wage and Hour does not have jurisdiction over promised raises. A raise is at the discretion of the employer.
Blacklisting is prohibited in the state of Montana. If any company or corporation in this state authorizes or allows any of its agents to blacklist or any person does blacklist any discharged employee or attempts by word or writing or any other means whatever to prevent any discharged employee or any employee who may have voluntarily left the company’s service from obtaining employment with another person, except as provided in 39-2-802 M.C.A., such company or corporation is liable in punitive damages to such employee so prevented from obtaining employment, to be recovered by him in a civil action, and may also be punishable as provided in 39-2-804 M.C.A.
You should consult with a family lawyer for any big changes in the family dynamic, including: civil unions and domestic partnerships; marriage; prenuptial agreements; divorce; separation; property settlements; alimony; child abuse; spousal abuse; child custody.
Family lawyers handle legal issues that involve your family members; including marriage, domestic disputes, divorce, property negotiations, and lawsuits.
A lawyer will assist you in identifying the issues in your case. A lawyer will also help you negotiate a fair settlement to avoid a trial. The lawyer will give you up-to-date advice regarding the laws on custody, spousal and child support, and property division. The lawyer will counsel you regarding the reasonableness of proposed settlement terms and what you might expect if the judge decides the case. If a settlement is reached before trial, one of the spouses must still appear in court and present brief testimony to finalize the divorce, which you lawyer can do. If settlement is not reached, the lawyer will prepare your case for trial and represent you in the courtroom. A lawyer will properly prepare all paperwork in connection with your divorce.
Mediation is a voluntary process divorcing spouses can use to find common ground to resolve their differences. A neutral third party works with the spouses to assist in the discussion. Lawyers may or may not be present. Mediation can occur at any time in the divorce process. Mediation has several advantages. It is less expensive than a trial, and it can occur at any time. Solutions are created by the spouses (rather than the judge), and therefore they have a higher chance of success. The court may require that parents participate in mediation to resolve disputes that arise under parenting plans.
Insurance Bad Faith
“Bad faith” refers to unreasonable or unfair conduct by an insurance company. An insurance policy is considered a contract between you (the Insured) and your insurance carrier (the Insurer). Bad faith insurance is any matter regarding an insurance claim by an Insured that is wrongfully denied by the Insurer. This contract requires that your Insurer acts in “good faith” toward you. When an Insurer unreasonably withholds the benefits of the policy from its Insured, it is considered to be in “bad faith.”
Yes. Insurers have the right to deny your claim if you have reneged on your end of the contract, or if the claim is fraudulent or not covered by the policy. Bad faith occurs when the insurance company’s conduct is egregious.
If the Court finds the Insurer wrongfully denied your claim, you would be eligible to recover the benefits of the policy for the claim, and possibly consequential losses and damages suffered for emotional distress, lost income and attorney fees. In some cases where the Insurer has exhibited flagrant, intentional and/or gross misconduct, punitive damages are awarded.
With the insurance company attempting to devalue your claim, it can often be difficult to gauge what a settlement should look like. While this is among the most common questions that our firm is asked, the frustrating answer is, it depends. Accurately evaluating compensation for damages can be the most complicated part of the insurance claims process. Often, as a case unfolds and additional information becomes available, the potential value of a claim can fluctuate. However, in the case of bad faith claims, victims can typically seek restitution for the initial damages as well as any resulting losses from the insurer’s actions.
If you’ve sustained an injury and you believe you deserve to be compensated for your expenses a personal injury attorney can advise you on your case and represent you in court. Common injuries that require a personal injury lawyer include: medical malpractice; work related injuries; traffic accidents; falling in a public or private place; repetitive strain injury; bronchial diseases; asbestosis or mesothelioma.
The sooner you hire a personal injury lawyer to handle your case, the better. There are strict deadlines known as statutes of limitations that state how long you have to file a lawsuit. If you miss the deadline that applies to your case, you will lose your opportunity to file a lawsuit to recover the compensation you need. By hiring a lawyer immediately after suffering an injury, you help ensure there is enough time for the full legal process to play out if needed. Not every injury claim will require a lawsuit, but it is always best to keep that option available in the event the insurance company or at-fault party is not willing to offer fair compensation.
If your personal injury attorney is able to prove that the injury you sustained was due to negligence on the other person’s part, you may win in a court case or decide to settle without going to court. Either way you will receive a payment for your medical bills, lost work wages, and pain and suffering. Generally the payment will be made in installments. If you don’t win your case, you don’t recover any money but you also don’t owe anything to your attorney if you’d agreed on a contingency fee.
Before you can file a personal injury lawsuit, you need to make sure that you have these two basic grounds for a personal injury lawsuit: Clearly Defined Harm and A Definable Duty. See our section on personal injury for more information.
Many people assume that state law will appropriately distribute their property to family members. That is true to a certain extent, however, you give up a lot of rights if you fail to plan. For instance, an Estate Plan can help you ensure that your intentions for your assets are met, prevent disputes, reduce stress for your family at a difficult time and minimize or eliminate estate taxes.
Yes, to an extent. When you devise assets through a Last Will and Testament or leave no will and make no other arrangements for your assets, Montana’s default Probate process kicks in. But many people would like to avoid the full probate process, given that involving a probate court and potentially a court-appointed executor can be time consuming and expensive. Since probate proceedings happen in court, probate can also be invasive—publicly airing details of assets a family might not be comfortable sharing.
Some Estate Planning options include Trusts; Joint Tenancy with right of survivorship; Payable-on-Death (POD) bank accounts; and Transfer-on-Death (TOD) securities and deeds. Exercising these options prevents named assets from going through probate and creates a mechanism for making sure an asset goes to whomever you intended. Even if your will must go through the probate process, however, for reasons such as having courts sort through family disputes, careful Estate Planning can make the process easier on all involved. Jones & Cook Attorneys at Law will counsel you on your Estate Planning options and make sure it’s done right.
For your will to be valid, you must be at least 18 years old and of sound mind. It has to be in writing, there must be an appointed executor, and it will need to be signed by you and two witnesses. Although it’s not required for wills to be notarized, doing so can help them move through probate more smoothly.
A revocable trust is an agreement made by an individual during his or her lifetime, naming a trustee and beneficiary. Trust assets must be moved to the trust with a change in title of ownership. The trustor has flexibility, though, and can amend or terminate the agreement at any time. A revocable trust does not protect trust assets from the trustor’s creditors.
An irrevocable trust moves trust assets irrevocably into a trust, and the trustor cannot amend or terminate the agreement once made. Some irrevocable trusts are life insurance trusts and testamentary trusts. Irrevocable trust assets are protected from creditors in certain circumstances. Furthermore, a revocable trust can become an irrevocable trust when the trustor or joint trustor dies. At this point, the trust asset is protected from trustor creditors. Both revocable and irrevocable trusts have their uses, each depending on the goal you wish to achieve by establishing the trust.
Worker’s comp covers work-related injuries and occupational diseases regardless of fault, although it also prohibits an employee from filing a lawsuit against the employer in most cases. If you’ve suffered a work-place injury or illness here, you should learn about your rights and obligations for pursuing workers’ compensation in Montana.
In Montana, employees are not entitled to job-protection under workers’ compensation laws. Your employer is not required to hold your job open for you and may replace you or fire you while you’re out on workers’ comp leave. However, there is one major exception: It is illegal for your employer to fire you because of the fact that you have applied for or received workers’ comp benefits. However, as long as your termination is for a legitimate business reason—such as your company needing to get the work done—that is legal. (Montana is the only state that requires employers to have “good cause” for firing an employee who has completed an initial probationary period.)
If you’ve suffered a work-related injury or illness, you should seek medical treatment and inform your employer as soon as possible. Notice must be given to the employer within 30 days and should include the approximate date and location of the accident. Once you or your employer submit the mandatory First Report of Injury within one year of the accident, the insurer has 30 days to accept or deny your claim. If they accept your claim, they may designate a new physician to treat your injury or illness.
If your claim is denied or there is a dispute regarding benefits, you may request mediation through the Employment Relations Division. This is a confidential, non-binding meeting with an impartial mediator. If no agreement is reached, either side can file a claim with the Workers’ Compensation Court. You may represent yourself during these proceedings, but an attorney can be extremely effective in arguing your case and meeting deadlines.
If someone is killed as a result of somebody’s negligence a wrongful death can be filed to help the surviving next of kin recover for their loss. Wrongful death lawsuits seek to hold the negligent individuals responsible for the death their actions caused. A death can cause both economic and non-economic distress on the surviving family members. A wrongful death claim allows those suffering the death of a loved one to receive compensation. A wrongful death claim also allows recovery for the deceased’s pain and suffering under special circumstances, punitive damages may also be recoverable.
Montana’s wrongful death statute specifies that “the personal representative of the decedent’s [meaning the deceased person’s] estate” may file a claim in court if injuries inflicted by another have caused the deceased person’s death.
If the deceased person is a child under age 18, the wrongful death claim may be filed by either one of the child’s parents, or by both parents together. If the child has no parents, the claim may be filed by the child’s legal guardian.
A wrongful death claim is a civil lawsuit, which means that the interested private parties must bring the claim to court themselves (usually with the help of an attorney). In this way, a wrongful death claim differs from a criminal case, in which charges are filed by the federal, state, or local prosecutor. In a wrongful death claim, liability is expressed solely in terms of money damages (paid by a defendant who has been deemed legally responsible for the decedent’s death). By contrast, in a criminal case, guilt may be punished with a term of imprisonment, a fine, or other penalties.
Although family members cannot file criminal charges themselves, they may be asked to participate in a criminal case if one is filed in relation to the death, and the personal representative of the estate may file a wrongful death claim even if a criminal case is proceeding.
Damages in a Montana wrongful death case are intended to compensate the estate or the surviving family members for the loss they suffered as a result of the deceased person’s untimely death. In Montana, damages may be either “economic” or “non-economic” in nature. Both types of damages may be recovered in a single wrongful death case.
“Economic” damages are damages for which a concrete dollar amount can be established, usually through the use of evidence like receipts, bills, or pay stubs. Economic damages include losses like medical bills, funeral and burial expenses, and the lost value of the wages and benefits the deceased person would likely have earned during his or her expected lifetime if the untimely death had not occurred.
“Non-economic” damages are harder to quantify, but they are still real losses suffered by the survivors in a wrongful death claim. They include losses like pain and suffering endured by the deceased before death and the loss of care and companionship faced by the surviving family members.
In Montana, the defendants in a wrongful death case may ask for a statement detailing the damages that the personal representative is seeking. This statement must be made in writing and it must fulfill a number of other requirements.
Montana sets time limits on the filing of civil lawsuits, including wrongful death cases. A law that sets out this kind of time limit is called a “statute of limitations.”
Under Montana Code Annotated section 27-2-204, a wrongful death claim must be filed within three years of the date of the deceased person’s death. (Note: If the case stems from a criminal homicide, the time limit is bumped up to ten years for the filing of civil claim for wrongful death.)
Claims that are not filed before the statute of limitations time period passes are typically thrown out of court without a hearing. Since a wrongful death lawsuit represents a significant chance for a family to recover damages after an untimely death, it is important to ensure a wrongful death claim is filed within the three-year time period.