Berk & Moskowitz, P.C.
Attorneys at Law 
January 2009
Welcome to the first issue of the Berk & Moskowitz newsletter!  We will be publishing our email newsletter quarterly and will be providing information on a variety of  legal topics, as well as some information about our firm.  We hope that you will find it interesting and informative.

Kent Berk & Frank Moskowitz
Each edition, we will provide a law-related joke, quote or story to hopefully bring some humor into your life and "ease" your day.  So, here goes:
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
  Front of Building
News Highlight - Metadata is Not Public Record
In a decision issued January 13, 2009, the Arizona Court of Appeals ruled that metadata - the hidden computer code embedded in all documents that shows, among other things, the date that the document was created - is not public record.  In that case, a police officer made a public records request for the metadata associated with his performance review documents to see if his supervisor had backdated his notes.  Although the Court recognized Arizona's strong public policy in favor of disclosure of "public records," it found that the metadata did not satisfy any one of three definitions of "public records."  Thus, in a 2 to 1 decision, the Court found that the officer was not entitled to the metadata.  Click here to see the Court's decision.
Undue Influence in Will Contest Cases - Who has the Burden of Proof May Determine Who Wins
Anyone who helps a loved one prepare a Will or Trust should be careful.  Arizona law may require proof with clear evidence that they did not unduly influence the family member.
The burden of proof in litigation sometimes determines who wins the case. If the party who has the burden cannot carry the burden - cannot present sufficient evidence to satisfy the legal standard - the other party does not have to present any evidence to win the case. 
In Arizona, a party who is trying to uphold a Will is likely to have the burden of proving that there was no undue influence IF he/she was (1) "active in the preparation or procurement of the will" - for example, he initiated the idea, suggested specific dispositions, including to yourself, and arranged to have the Will prepared; and (2) had a close personal relationship with the one who signed the Will - was their professional advisor or family member, for example.  Both of these elements must exist in order to require the party trying to uphold the Will to prove the absence of undue influence.  Where the presumption of undue influence arises, the proponent then has the burden of proving with clear evidence that there was no undue influence.
So, what is undue influence and what elements do Arizona courts consider in deciding whether undue influence played a role in the execution of a Will?  We will address those matters in our next newsletter.
Handling your Own Divorce Can be Risky Business
In Williams v. Williams, the Arizona Court of Appeals recently reversed and remanded for reconsideration a trial court's decision denying a husband's claim for attorneys' fees against his wife, who, in representing herself in their marital dissolution, took legally unsupportable positions.  Arizona Revised Statute Section 25-324 allows a trial court to order one party in a marital dissolution action to pay the attorneys' fees and costs of the other party after considering "the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings."  The Court of Appeals explained that the "reasonableness" of the positions of each party was to be determined by an objective, not a subjective standard.  The trial court therefore erred by considering that Mrs. Williams was representing herself and "unsophisticated in the law."   
The Court of Appeals in Williams made clear that ignorance of the law is not an excuse, and those that choose to represent themselves "are entitled to no more consideration than if they had been represented by counsel" and will be subject to the same standards as an attorney with regard to "familiarity with required procedures and . . . notice of statutes and local rules."  So, beware, handling your own divorce can be risky.
Click here for a copy of the decision.
In This Issue:
News Highlight - Metadata Not Public Record
Undue Influence in Will Contests
Handling your Own Divorce Can be Risky
About our Firm
Office Space for Lease

About our Firm 

Berk & Moskowitz is dedicated to providing topnotch and efficient legal representation.  We handle a wide  variety of matters involving disputes, arbitration and litigation, including:
Personal Injury & Wrongful Death
reception area
Office Space for Lease
We have a prime brand new office suite for lease adjoining our suite.  If you are interested, please call or click here to view the flyer.

Book List 

We thought that it would be fun to share with you the  books that some of us have recently read. Please share the books on your list.

Kent: The Outliers, by Malcolm Gladwell.  I am intrigued by the author's theories of success.  This book will shatter your notions about what it takes to be successful."
Frank: The River of Doubt, by Candice Millard.  For those fellow history buffs, the book details Teddy Roosevelt's death defying exploration of a previously uncharted river in the Amazon shortly after losing his bid for a third term as President.
Daphne: Legacy of Ashes, by Tim Weiner.  Weiner details the history of the CIA and actions that were largely classified for many years.

Join Our Mailing List
Berk & Moskowitz, P.C. - Attorneys at Law
14220 North Northsight Boulevard, Suite 135
Scottsdale, Arizona 85260
phone 480-607-7900     fax 480-607-7300