In New York, a contested divorce is one where the parties do not agree on whether or not to get divorced, on what the grounds for divorce will be, and/or on all or some of the ancillary issues to the divorce including but not limited to durational/rehabilitative spousal maintenance, child support, and equitable distribution.  All or some of the issues stated above may need to be determined by a judge.  Usually, the parties will settle somewhere through the litigation process .  One of the advantages with going down this route is that the parties will both have financial discovery.  The downside:  it is expensive.  I make no secret of this fact when I meet with potential clients at my office.

An uncontested divorce refers to a very specific situation where there is an agreement between the parties on all issues and nothing further needs to be negotiated or determined.  Many times clients call me stating they want an uncontested divorce.  In most of those cases, though, it turns out that the client has a very complex divorce matter, his/her spouse does not want to get divorced (or contests the divorce), or the other spouse does not agree to every detail set forth in the separation agreement.  It is extremely rare for a client to call me with a true uncontested divorce.  Now, simply because 100% of the issues are not agreed upon does not mean that the attorneys (or the parties themselves) cannot workout the details without judicial intervention.

A mediator, such as myself, may be useful in either scenario.  A mediator can help facilitate settlement discussions between the parties before or after a summons and complaint has been filed and regardless of stage of litigation.  I also represent clients in both contested and uncontested divorce actions.

The agriculture community has faced problems with animal welfare organizations using undercover videos that are sensationalizing alleged acts of animal cruelty on livestock operations.  Larger livestock farmers using conventional production practices and concentrated animal feeding operations are at greater risk.  Due to the media attention from these undercover videos, several states have developed legislation aimed to proscribe undercover video surveillance on farms (referred to as “ag gag” laws by opponents).  This type of legislation has been controversial in the American public questioning the constitutionality.

States That Currently Prohibit Undercover Investigations

Kansas

Kansas was the first state to pass an animal terrorism statute in 1990.  In summary, Kansas gives criminal liability to those who, absent consent from the owner (a) with the intent to damage or destroy the animal facility actually damage or destroy an animal facility (or any animal or property therein), (b) exercise control over an animal facility with the intent to deprive the owner of such facility (or any animal or property therein), (c) with the intent to damage or destroy the animal facility enter an animal facility and/or remain concealed with the commit or attempt an act prohibited by this statute and/or take photographs or video coverage.  See K.S.A. § 47-1827(a)-(c).

Furthermore, the criminal statute proscribes a person, without consent from the owner, and with the intent to damage the enterprise conducted at the animal facility, enter and/or remain in the animal facility if the person had notice that they were forbidden or received notice but failed to leave the premises.  See K.S.A. § 47-1827(d).  Both oral and written communication (e.g., signs posted on the facility) by the owner or someone with apparent authority (e.g., employee) or fencing or some other type of enclosure by the owner constitutes “notice.”   Furthermore, K.S.A. § 47-1828 sets forth a civil cause of action in district court for any person who has been damaged by 47-1827 (the criminal statute).  The plaintiff may be entitled to “three times all actual and consequential damages. . .” (including production, research, testing, replacement and crop/animal development), court costs and reasonable attorneys fees.   Importantly, the criminal statute does not apply to “lawful activities of any governmental agency or employees or agents thereof carrying out their duties under law.”  K.S.A. § 47-1827(h).

Montana and North Dakota

In 1991, Montana enacted the “Farm Animal and Research Facilities Protection Act”, M.C.A. § 81-30-101 et seq., with similar criminal prohibitions and civil relief as Kansas.  Both government officials carrying out their duties and “humane animal treatment shelter or its employees whose primary purpose is the bona fide control or humane care of animals or the enforcement” are exempt from this statute.  Likewise, North Dakota also followed in Kansas’s footsteps in 1991 enacting similar criminal/civil provisions.  See Chapter 12.1-21.1-01 et seq.

Iowa and Utah

Iowa enacted a statute in March 2, 2012 attributing misdemeanor liability to “animal production facility fraud.”  Under section 717A.3A(1), a “person is guilty of animal production facility fraud” if they (1) obtain access to an agriculture production facility under false pretenses, or (2) make a false statement on an employment application with the intent to commit an act that is knowingly prohibited by the owner of the agricultural facility.  See section 717A.3A(3).  The statute also proscribes aiding and abetting the commission of animal production facility fraud.  Similarly, Utah enacted “Agricultural Operation Interference” statute on March 20, 2012.   The Utah statute also prohibits farm employees and criminal trespassers to take unauthorized photographs, videos and sound.  See U.C.A. § 76-6-112(c)-(d).

States With Pending “Ag Gag” Legislation

Illinois, Indiana, Minnesota, Nebraska, Tennessee and New York currently have pending “ag gag” legislation.  Florida’s recently died in budget.  Missouri also has pending legislations allowing unedited surveillance to be taken and then turned over to the police.

Last Thursday I moderated a fantastic local food law CLE (i.e., “Continuing Legal Education”).  The faculty worked hard putting together substantive materials for the attendees including relevant ancillary materials (such as this, this, and this).  If you missed the live webinar, you can purchase the CLE from the American Bar Association’s (“ABA”) webstore here.

Though the CLE was directed to the lawyer audience, non-lawyers are certainly welcome to purchase the materials at the general public price.  As an aside, I don’t get a penny from the proceeds (a girl can dream).

As a reminder, the faculty presented on the following local food issues:

preference and procurement laws for locally grown food;

federal government programs;

direct marketing (including Community Supported Agriculture (CSA’s), roadside stands and farmers markets);

Food Safety Modernization Act exemptions,

“cottage food operation laws (i.e., home-based kitchens) including value-added products;

land use and zoning concerns with urban agriculture;

food labeling regulations (including the National Organic Program);

“agri-tourism” and “agri-tainment” as it applies to local food;

liability concerns (including strict liability);

liability insurance and choices in coverage; and

raw milk.

The CLE was sponsored by the ABA General Practice, Solo & Small Firm Division’s Agriculture Law Committee and co-sponsored by the ABA Section on Environment, Energy & Resources Agriculture Management Committee and the American Agriculture Law Association (“AALA”).

A special thank you goes out to the faculty members for this CLE who helped make it possible.

Summer is around the corner.. and ’tis the season for unpaid interns!  I recently came across this helpful factsheet from the U.S. Department of Labor, Wage and Hour Division, on internship programs under the Fair Labor Standards Act (“FLSA”).

The factsheet clearly defines the test that is used for determining whether the “trainee” test for interns is satisfied so that the employer in the “for-profit” sector does have have to pay minimum wage and overtime compensation if that person words over 40 hours in a workweek.  The six criteria are as follows:

1.  The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all six of the above factors are met, an employment relationship does not exist under the FLSA.  If you have further questions, please speak to an employment lawyer licensed in your jurisdiction.

Don’t forget that tomorrow I will be moderating a local food law CLE for the American Bar Association (“ABA”) General Practice, Solo & Small Firm (“GP Solo”) Division’s Agriculture Law Committee titled  ”Counseling the Local Food Movement:  What a Practitioner Should Know”  discussing procurement laws for local food, direct farm marketing (farmers markets, CSA’s), Food Safety Modernization Act exemptions, Cottage Food Operation Laws, insurance, premise and product liability, agri-tourism, land use & zoning concerns for urban agriculture (including rooftop gardens, backyard chickens, and beekeeping), food labeling (including the National Organic Program), and raw milk.

Are you a law student?  Check out this amazing discounted rate.

Yesterday I had an opportunity to talk about being an agriculture lawyer to an undergraduate agriculture careers class in Wisconsin via Skype.  I remember being that age and not really knowing what I wanted to do.

To tell you the truth, I grew up looking up to Colleen Callahan and wanted to *be* her…with a career in agriculture journalism/communications.  For a brief moment, I was particularly interested in agriculture literacy with school aged children.   I even started my undergraduate career at Texas A & M University majoring in agriculture journalism.   Perhaps it was because I was attending a renown animal science department (second only to Cornell .. arg) but the animal science world pulled me in.   I loved using that part of my brain.  To date, some of my favorite professors were in the Department of Animal Science at Texas A & M University and I don’t regret for a second obtaining my bachelors of science there.

Wow- here's a blast from the past. I'm with my parents here at my graduation from Texas A & M University.

And then graduation hit and I was faced with the question that every graduating senior has — what next?  I used to kid people about how “if I wanted to make money in this lifetime, I should go to law school.”  But the truth is, I didn’t have a clue what attorneys did nor did I know many attorneys growing up.  I especially didn’t know any agriculture lawyers.  It wasn’t until I spent time in Washington D.C. with this internship program that I become particularly interested in law and policy.  At that point, I had already accepted an offer to pursue my masters studies at the University of Illinois in beef cattle nutrition.  Sometimes you just have to take a leap of faith and grab an opportunity when you can to see life from a different perspective.  I learned a lot that summer.  I learned a lot about politics including why the Potomac is green…I learned to like powersuits and late night talks about agriculture policy… and I met a few lawyers who inspired me a bit about the practice of law and somehow trying to make difference.  That experience sparked something inside of me that is very much part of who I am.

Intern for Congressman Kevin Brady (R-TX)

Giving an Aggie "whoop" at the Lincoln Memorial

I am continually asked, “how did you get here?”  Well, it took a lot of hard work.  I didn’t ace the LSAT or coast through law school.  I didn’t start my law practice with a fat bank account, a decade of experience or a single client.  It’s been pure doggedness and good ol’ fashioned work ethic that got me through law school and got me to the point where I have a solid agriculture law practice.  The type of work ethic that you learn growing up on a farm walking beans, bailing hay, cleaning the barn, and rinsing cattle… when your friends are enjoying the beach.   Yep – that’s how I grew up.  And that part of me is with me every single day… no matter where my address is.

The Rincker Ranch

Here are some of the questions that I received yesterday and my responses:

What should I study in undergrad if I want to go to law school?

Doesn’t matter.  Study what you want to study.  Unlike medical school, veterinary school, or even some business schools, law school doesn’t require any particular classes or majors.  That being said, because of my bachelors and masters in science, I am eligible to take the patent bar.  If you are interested in being an intellectual property lawyer and being admitted to the patent bar, I suggest looking at the science requirements with the U.S. Patent and Trademark Office (“USPTO”).

What is the best way to prepare for law school applications?

Take a LSAT prep course.  Listen, I abhor standardized tests.  I think it’s a horrible way to sort people and evaluate somebody’s ability.  However, it’s the way of the world and you have to learn to play the game.  Is the bar exam like practicing law?  Nope.  But it was a threshold I had to cross.  So is the LSAT.  In my experience, law schools put more emphasis on LSAT scores than undergraduate GPA’s.  Do as best you can and let the chips fall where they may.

Additionally, I suggest thinking about letters of recommendations and start building relationships with instructors, employers, or others who you have a professional relationship who may put in a good word for you.  Please take the time to thank these people.  They are taking time out of their busy schedules for you.

What was your biggest challenge in law school?

I was top of the class in undergrad.  Law school was the first time when I shoved in a class with other “top students.”  And there was a mandatory curve in my first year.  It was easily the most competitive and challenging academic chapter of my career.  I spent my nights reading court cases and my weekends outlining my notes.  It’s a huge commitment emotionally, mentally, and socially.

What exactly is “agriculture law?”

I get asked this all the time.  If only the definition was so simple.  The way I look at it is this:  agriculture law touches upon every kind of law, it’s just geared towards a specific industry.  It’s contract drafting, estate planning, environmental law, food labels, criminal law, corporate law, property rights, zoning, tort litigation, commercial transactions, partnership law, and international law.  Nearly every kind of law touches the food and agriculture industry.  That’s what I do.  In a sense, I’m a generalist.

What is the best way for farmers in a dispute to stay out of court?

Go to mediation.  I’m a fan of Alternative Dispute Resolution (“ADR”).  I was just in family court yesterday and petitions were flying back and forth and every direction.  Litigation can break down family relationships, not mend them.  Is there a dispute between a family farm, neighbors, or business partners?  Try having a conversation via a neutral mediator.  Even better, hire me to mediate! (kidding)

If you could do it again, would you do anything differently with law school?

I’m very thankful for my education from Pace University, School of Law.  Pace has an outstanding environmental law program and was located just north of New York City in Westchester County.  However, I have a lot of law school loans that I will be paying off for a very long time.  Somedays I wish I would have chosen a more fiscally responsible legal education with a state law school.

Congressman, if you are reading this blog, it is shameful that only $2K interest on my loans is tax deductible.  Please fix this.

What has been your biggest adjustment to living in the “Big City?”

New York City is really like 20,000 small towns shoved up against each other.  My coffee guy knows me.  My dry cleaner knows me.  My postman knows me.  My neighbors know me.  I run into friends, colleagues and clients at random places throughout the city.  New York City is really just a big small town.  It’s not that scary.

How much do you work?

I work too much.. more than I wish.  I have spent the last several weekends in my office.  I am striving for more balance in my life as my business continually grows.  Anyone who starts a business, no matter if it is a law practice, a farming operation, or a graphics design company, needs to be ready to put in a couple hard years.  But I promise that it’s worth it.

How much do you go to court?

Most attorneys spend very little time in court.  On average, I’m in court 1-2 times a week.  Some weeks I am not in court at all.  It really varies on the type of practice you have.  A lot of what attorneys do is research and writing. I spend a lot of my time visiting with clients.

Do you plan on relocating back to Illinois to be closer to family?

There’s no question that Illinois is a big part of me.  I have lot of family and friends there.  Once I am bar licensed in Illinois, I hope to open a satellite office there so I can travel back and forth between New York City and Illinois. Besides, I need a reason to go see my cows.

Interested in learning more about law school and being an agriculture lawyer?  Will be speaking about it again via Skype on June 1st.

New York uniquely classifies a spouse’s enhanced earning capacity (a professional degree or license) or professional practice or business as an asset for equitable distribution purposes.  In order for enhanced earning capacity or interest in a business or professional practice to be considered during equitable distribution, it must be “marital property.”  For example, a license or degree is marital property if the hard work and training to obtain a degree or took place during the marriage.  On the other hand, if the hard work and training to obtain a degree or license were performed before the marriage, but the actual degree was not received until during the marriage, it is not marital property.

The spouse seeking to share in the enhanced earning capacity or success of a business or professional practice (e.g., veterinary business) must show that: (1) he/she made substantial and direct contributions to the other spouse’s earning of that degree, license, or business; and (2) he/she enhanced the title-holding spouse’s earning capacity or business through those contributions.  If the enhanced earning capacity or success of a professional practice or business is due to the title-holding spouse’s own ability, tenacity, perseverance, and hard work, then the other spouse may not be entitled to an award during equitable distribution.

The above is not an “overall contribution to the marriage” analysis.  The substantial and direct contributions must be specific economic and non-economic factors, such as quitting a job to assist at home or in the business or practice, making financial contributions to the practice or business, making career and economic sacrifices, creating a good studying environment, or taking on the majority of the housework and child care.

An enhanced earning capacity or successful business or professional practice can be a valuable marital asset, but this intangible asset can be tricky to value and establish as such.

The moral of the story is this:  professional licenses, degrees and business valuations are all potential issues in a matrimonial action.  If you considering getting a divorce and any of these issues may be raised with equitable distribution, it is best to seek counsel of a matrimonial attorney licensed in New York.

I will be a panelist at this event on May 16th from 8:00 to 10:00 am with the Association of the Bar for the City of New York (“City Bar”) titled “Feeding Ourselves, Sustaining the Planet.”  I will be presenting on sustainability developments in “Big Ag.”  It is sponsored by City Bar’s Committee on International Environmental Law and the Committee on Environmental Law.  It is co-sponsored with the Women’s Network for Sustainable Future.  There is a continental breakfast at 8am and program.  It is free for City Bar members.

The panel is moderated by Adeeb Fadil from Simpson Thacher & Barlett LLP and the Chair of the City Bar International Environmental Law Committee and Roberta Gordon from Bryan Cave LLP and the City Bar Environmental Law Committee.  Other panelists include  Mark Lipson, the Organic and Sustainable Policy Advisor with the U.S. Department of Agriculture, Tim Searchinger, an Associate Research Scholar and Lecturer in Public and International Affairs at the Woodrow Wilson School at Princeton University, and Judith Labelle, the President of Glynwood.  Feel very honored to be on the same panel with such a prestigious group.

Have thoughts on sustainability developments in “Big Ag?”  Would love to hear them.  Please post your comment below or email me directly at cari@rinckerlaw.com.  I posted an event on Facebook here.

Contrary to popular opinion, I did not grow up riding horses. I rode a four-wheeler instead. I always wanted one, but my father called them "hay burners." If you see him, remind him of this.

I was recently asked whether I handle animal law mediation.   And the answer is, “why yes I do.”  I am a previous member of the New York State Bar Association Committee on Animals in the Law, New Jersey State Bar Association Committee on Animal Law, and the New York Lawyers’ Association Committee on Animal Law.  I have also had experience litigating animal law cases and am a trained mediator.

I think that mediation is a great way to resolve dispute involving animals because oftentimes (1) the monetary damages may not be worth expensive litigation fees and court costs and (2) these types of disputes are extremely emotionally- charged.  People consider pets like members of their family – and I get that.  Mediation helps the parties work through the emotion and help the parties understand what the other side has experienced.

Some types of animal law cases that might be well-suited for mediation include:

1) Replevin cases (i.e., returning the animal);

2) Divorce/family law matters involving animals (e.g., custody/ownership of pets, horses, livestock);

3) Veterinary malpractice;

4) Pet Shop Lemon Law cases;

5) Landlord-Tenant or Co-op law cases involving animals;

6) Estate/Succession planning (i.e., perhaps you and your spouse/family don’t agree on estate planning for your pets/livestock/horses) or probate issues involving pets;

7) Breach of contract;

 Dog bite cases (people or animals);

9) Partnership agreements concerning livestock or horses;

10) Neighbor disputes involving animals;

11) Prenuptial agreements involving animals.

The list can go on and on.  I have said it once and will say it again:  agriculture law is really every kind of law–it’s just geared towards a specific industry. Likewise, animal law is nearly every kind of all law — it’s just geared towards animals.  ”Animals” include all non-human creatures including (1) companion animals such as dogs, cats, rabbits, snakes, etc., (2) horses, (3) livestock such as cattle, hogs, chickens, sheep, (4) fish (e.g., aquaculture), and (5) insects (e.g., beehives).

It’s important to note though that arbitration is different than mediation.  On television, these words are used interchangeably but they are actually very different.  Arbitrators are more like judges.  They listen to evidence and make a ruling.  Mediators are there to simply help facilitate the conversation to help the parties reach an amicable agreement.  As a final reminder, mediation can take place at any stage in litigation:  (1) before a complaint has been filed or (2) anytime during the litigation process.

]]> http://rinckerlaw.com/blog/food-and-ag-law/2012/04/30/animal-law-mediation/feed/ 0 http://rinckerlaw.com/blog/food-and-ag-law/2012/04/27/legal-webinar-regarding-farm-animal-space/ http://rinckerlaw.com/blog/food-and-ag-law/2012/04/27/legal-webinar-regarding-farm-animal-space/#comments Fri, 27 Apr 2012 13:02:21 +0000 Cari Rincker http://rinckerlaw.com/blog/?p=3024

I cannot take credit for this photo. It was taken by Alex Gibson, who now resides in Australia. These were my chickens when I lived at a farmhouse during graduate school at the University of Illinois.

I want to give a brief shout-out on a webinar presented by Elizabeth Rumley from the National Agricultural Law Center on the “Legal Issues in Animal Agriculture: Regulating Living Space.”  I had an opportunity to hear Elizabeth Rumley present during this online agriculture law class last year and she’s one smart cookie (she’ll be presenting again this year).  You can also read my previous post on the topic.

The webinar is on Thursday, May 10th from 12:00 – 1:00pm and costs $50.00.  You can register here.  Make sure to calendar a quick 45 min. lunch break so you can be back at your desk in time for this webinar on the local food movement with the American Bar Association (moderated by yours truly).