www.vrdolyak.com If you’ve lost your loved one due to the negligence of another, call Vrdolyak Law Group. They’ll fight hard to get the justice that you deserve. Call 773-731-3313

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Abuse is not limited to physical violence. While psychological and emotional manipulation may leave no visible marks, the effects of these forms of abuse can be just as serious as physical trauma. Abuse that does not affect the body can have greater long-term consequences than abuse that leaves scars, but it can be much more difficult to recognize. Learning to recognize the signs and effects of abuse are the first step to ending and preventing serious harm.

The signs of physical abuse can be easy to detect, but often go unnoticed. Bruises, cuts, and other types of physical trauma are common indicators of domestic violence and should always be taken seriously. Victims of domestic violence typically also experience psychological and emotional abuse, and may feel helpless and unable to escape their abusers. In some cases victims even rationalize their mistreatment, making themselves believe they “deserve” to be mistreated for whatever reason.

Domestic abuse is not the only source of psychological or emotional abuse. The residents of nursing homes, for example, are sometimes mistreated by their caretakers. Unethical caretakers may steal or attempt to gain the trust of the residents for financial reward, coercing them into handing over their savings, pension, or other forms of income.

In order to psychologically manipulate their victims, abusers take notice of their victims’ particular insecurities, fears, and psychological vulnerabilities. Abusers hide their actions behind a smile, or by presenting them as necessary or condoned, in order to get their victims to lower their guard. By alternately offering positive and negative reinforcement, abusers can make their victims psychologically dependent on them.

Unless it is addressed, abuse may continue unabated for years. By acting now, you can put an end to the abuse. To learn more about what courses of action are available to you, visit the website of the Charlotte personal injury lawyers at the Law Offices of William K Goldfarb.

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One of the main goals of an advocate is to tell a believable story. One way to achieve this goal is to present evidence in understandable, believable and compelling ways. Regardless of the oratory skill of the advocate or witnesses, the use of effective exhibits in conjunction with narration is far more effective in terms of memory retention and persuasiveness to the trier of fact, than narration alone.

Demonstrative evidence appeals to people because it involves more of our senses. Any time that an advocate can do more than allow his audience to hear the case, he or she is being more effective. When you add visual perception and tactile perception, you increase the ability of people to understand your case.

I. Demonstrative Evidence v. Real Evidence

There is some cross over between the terms real evidence and demonstrative evidence. Typically “real evidence” is used to refer to an actual physical object such as a murder weapon. When an object is merely illustrative, such as a model, reenactment, or exemplar, the evidence tends to be lumped into the term “demonstrative evidence”. Regardless of how it is referred to, most types of evidence are generally admissible in Missouri courts with the appropriate foundation.

II. Foundation for the Introduction of Demonstrative Evidence.

The use of demonstrative evidence is well accepted in Missouri courts after a proper foundation is laid. The individual exhibit and its use will determine the appropriate foundation for admissibility. The following example foundations are provided for some of the more typical types of demonstrative evidence.

A. Verification of photographs. The foundational elements are:

1. The testifying witness is familiar with the object or scene that is depicted.

2. The witness explains a basis for his or her familiarity with the object or scene;

3. The witness recognizes the object or scene in the photograph that is presented;

4. The photograph accurately and/or fairly depicts the object or scene at the relevant time.

B. Diagrams or charts. The elements for foundation are:

1. The diagram or chart depicts a certain area, object or theory;

2. The witness is familiar with that area, object or theory;

3. The witness explains a basis for their familiarity with the area, object or theory;

4. In the witness’ opinion the diagram or chart is an accurate depiction of the area, object or theory;

5. If the chart or diagram includes the report of experimental tests or evidence a conditional foundation must be laid including that the witness is qualified to establish the theories, validity and reliability of any instrumentation.

6. The underlying theory is scientifically valid in the witness’ field;

7. The theory is generally accepted;

8. The instrumentation and methods are reliable;

9. The instrumentation’s are generally acceptable and reliable;

10. The witness is qualified to conduct and interpret the test;

11. The instrumentation used to arrive and validate the theory was in good working condition;

12. The proper procedures were followed and that the witness states the results in conjunction with the depiction in the diagram or chart showing the theory.

C. Computer Animations and Simulations.

Foundation for computer animation or simulation will depend on how it is to be used. Will it be used as evidence to illustrate an expert witness opinion, or will it be used as substantive evidence.

Use of such evidence is generally limited when the attempt is to introduce it as an example of what happened in a particular situation, unless a foundation is laid showing substantial similarity between the conditions at the time of the event depicted and those assumed in the simulation or animation. See Richardson v. State Hwy. and Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. Bane. 1993). Sometimes, such animations may also be excluded on the simple fact that they are more prejudicial than probative, as was the case in State v. Star, 998 S.W.2d 61, 67-68 (Mo. App. 1999), where the court concluded that a forensic animation video depicting and recreating the defendant’s version of a shooting incident, was not admissible.

The proper foundation to admit animation evidence is similar to other scientific evidence with some variations. Case specific research should be done, but a general foundation would be:

1. There are valid scientific equations and principals known to science underlying the issues;

2. The computer technology can produce simulations or models based upon scientific equations and principals which are scientifically valid;

3. The principals, equations and formulas that are scientifically valid have been appropriately programmed and put into a computer program or particular software;

4. To generate the animation or simulation, certain inputs must be made (usually mathematical) and the nature of the measurements that are made;

5. The source of the measurements and their validity;

6. The software in question in capable of converting the inputted information into accurate images and fair depictions representing a scientific principle to be demonstrated;

7. Someone qualified has input the data needed to use the program and the principles and scientific equations that have been implemented in the program;

8. The actual physical computer was checked to insure the data was inputted properly and that the system is working correctly;

9. The operator(s) were qualified not only to use the computer but also to input the specific information;

10. The images were recorded to a medium that is reliable;

11. A witness qualified by experience and education recognizes the depiction to say that it fairly and accurately depicts the preceding elements of the foundation.

III. Typical Types of Exhibits

1. The actual physical object in question;

2. Reproductions or models;

3. Photographs;

4. Close up or enhanced photographs;

5. Aerial photographs;

6. X-rays;

7. CAT scans;

8. MRI films;

9. Medical video tapes (procedures);

10. Videotape or motion pictures;

11. Slides;

12. Diagrams;

13. Charts;

14. Maps/Plats;

15. Transparencies;

16. Medical or anatomical drawings;

17. Anatomical models;

18. Contracts, letters and relevant documents;

19. Advertisements;

20. Sound recordings such as 911 tapes.

IV. Questions of Admissibility

A. Considerations for Admission.

In addition to doing case specific research for a proper foundation, you should anticipate in the development of exhibits not only the effect they will have on the jury but the effect they will have on your opponent. In addition to anticipating specific objections, determine whether or not the exhibit results in unfair prejudice or if it misleads the jury.

Demonstrative evidence does have the capacity to move people emotionally and to make a significant impact. Care must be taken to insure that while the evidence is effective, it does not unduly emphasize objectionable concepts or unduly emphasize human responses such as revulsion, contempt or pity. Counsel should also pay attention to whether or not the exhibit can mislead the jury.

An example of when an exhibit can mislead a jury is found in Gladhill v. General Motors Corp., 743 F.2d 1049 (4th Cir. 1984). In that case, the trial court allowed a video tape demonstration by the defense of braking characteristics of a 1980 Chevrolet Citation. Unfortunately, the plaintiffs accident occurred at night on a sharp downhill curve and the demonstration was done in the daytime on level ground and was conducted by an experienced test driver. On appeal, the defense argued that the videotape was not a reconstruction of the accident, but was “a demonstration of certain operating characteristics of the vehicle in question”. The court of appeals did not agree, but felt that the testimony was misleading because the Citation was shown on a wide open asphalt road traveling a straight line with an experienced test driver rather than the circumstances that were actually relevant in the particular case.

B. Typical Objections

Typical objections to demonstrative evidence usually include: lack of foundation, lack of relevancy or unduly prejudicial.

In addition to these general objections, the attack on demonstrative evidence can be made on a core foundation issue. An example would be a digital representation of a test may be attacked as to underlying results, or that the information is unreliable, or that there is no adequate chain of custody or that the results themselves are inaccurately depicted.

V. Why Use Visual Presentations/Demonstrative Evidence

In the age of video games, television and movies, we have to take into account that we are all multimedia learners. Numerous researchers, jury consultants and others have studied the effects of visual presentations and our ability to learn. One such notable paper Marino and Mayer, Visual Presentations in Multimedia Learning: Conditions That Overload Visual Working Memory, University of California, Psychology Department reports that visual presentation in conjunction with auditory narration is the most effective presentation for learning. Everybody has a capacity to memorize information. However, studies such as this one have shown that memory can be overloaded by such things as visual presentation in conjunction with visual text. The most effective method of learning appears to be pictorial information combined with auditory information, sequencing the two together.

This sort of presentation is perfect for the trial and mediation environment. At a mediation, the presenting attorney or narrator can use visual diagrams, charts or pictures to make points in their explanation of the case. At trial, the normal question and answer method of listening to evidence in conjunction with visual presentation and explanation provides an effective means of educating the jury.

For additional information and ideas on presenting visual information, you may want to read E. Tufte, Visual Explanations, Images and Quantities, Evidence and Narrative. An additional source geared more to attorneys is S. Hamlin, What Makes Juries Listen Today.

VI. Common Mistakes in Exhibit Preparation

Every visual presentation is intended to promote some idea or concept. Unfortunately, unless the exhibit is clear and easy to read, it will not be effective.

Common mistakes include problems with color and contrast. The following are just a few tips when preparing exhibits. Blue text on black background or similar color combinations are difficult to read due to the lack of contrast. Other color combinations such as blue and red can cause illusions when positioned closely together. Yellow, which is a very effective color for presentations, tends to disappear on a white or light colored background.

When preparing exhibits, you should always take into account the practical problems such as the color contrast listed above. Also, there is an occurrence known as “simultaneous contrast” that can happen when opposing colors are placed in close proximity to each other. The text may appear to vibrate or cast a shadow. Eye strain and fatigue will be increased by the use of strongly opposing colors and should he avoided where possible.

VII. Order of Colors

Colors are attached to emotions and intellectual cues regarding the color’s “action”. Typically cool, lowly saturated colors such as blue are “passive” and are generally associated with goodness. Warmer, more highly saturated colors such as red, are generally considered “active” and associated with bad outcomes.

A good example of this would be an instruction/warning manual. Warnings, when associated with death or serious injury, are typically presented by a red or dark orange symbol.

Since people are accustomed to this association, the use of such colors in sequencing can be effective when presenting evidence.

VIII. Color Blind

Color is important in the use of effective exhibits. It should be noted that a certain segment of the population is color blind. Generally speaking, males have more problems than females. About 8% of Caucasian males, 5% of Asiatic males and 3% of other males are affected by some degree of color blindness. Typically, these people can perceive only two or three primary colors.

While you cannot take into account all individual problems, one way to address the color issue is to include some questions on voir dire when you are depending on visual exhibits to make your case. You can compensate for color deficiency in the design process. Color blind people tend to have problems differentiating between color combinations more than actual colors. One way to account for this is to emphasize text with colors that contrast but are not closely associated colors. Thus, do not transition from red, to red-orange, to orange but instead transition from blue to yellow or black to white. Also, associating color transitions with an icon is an effective way of presenting an exhibit to people with some color deficiency.

IX. Cost of Presenting Evidence

A. Budget

Anytime you undertake a new case it is a good idea to have a budget. When you are considering the presentation of exhibits, having a good idea of what you can afford up front is critical. It is very easy to spend substantial sums of money when preparing exhibits. Each case has an amount of money that can be legitimately justified to spend on exhibit cost. Depending upon the size of the case, your budget may greatly influence how you make that presentation.

Generally speaking, the cost of exhibits can be broken down into the cost of creating the exhibit and the cost of presenting the exhibit. In our practice, we have found that an investment in equipment which allows us to in-source some of the preparation and presentation of exhibits allows us to create cost effective exhibits that otherwise might be out of reach for the particular case. Some suggestions include the following:

1. Videotape your own depositions. Most practitioners already own a video camera and a VCR or DVD player to present the taped deposition or other video evidence.

2. A digital camera or a film camera with a scanner hooked to a computer and a color printer can produce page size photo exhibits of fairly high quality that can then be passed to the jury. These same images can also be output through television, data monitors or an LCD projector in the courtroom as an alternate presentation medium.

3. Many exhibits that are text based, with color added, can be easily prepared on common computer software already available on most computers. For example, the word processing programs such as Microsoft Word and Word perfect can be used to produce page size exhibits, jury instructions, flow charts and yes/no boards. These exhibits can then be printed, enlarged, and/or mounted by an outside vendor such as a professional exhibit firm or copying service.

4. Our firm does not edit our own videotapes, but computer software is available to allow video editing on a personal computer. If you are computer savvy or willing to learn, this could also substantially reduce your costs.

B. Advantages and Disadvantages of Methods of Presentation

Boards: can be a centerpiece of attention, but can be awkward if courtroom is too small; multiple boards can be difficult to handle.

TV: easy to use, unable to handle PowerPoint or multimedia; can’t project so jurors can see easily, often distorts images or colors

Data Monitors: high Quality Images; required software use, higher associated cost, requires skilled AV setup

Multi-Monitor: everyone can clearly see evidence as shown, courtroom may be too small to handle multiple monitors, requires skilled AV setup

LCD Projectors: cuts down on equipment in the courtroom, must be perfectly positioned so everyone can see, quality has greatly improved; images are brighter and clearer and can be enlarged

VCRs: easy to use, no instant access to as clips are pre-edited, only a four-head VCR can pause and display a clear image,

Visual Presenters (ELMO): can display anything that fits on the base, documents must be shown as half pages to be readable, similar to a small camera

Trial Software: instant access to all documents, depositions, video clips and demonstratives, requires extensive pretrial work, experienced technician & logistically capable courtroom.

PowerPoint or Presentation Software: can create a linear slide show and easily make changes; can embed visuals, poor way to handle documents, most effectively used for summary or bullet-point slides

Interactive Software: can create a flexible non- linear presentation, must predetermine & test all information.

QuickTime VR: audience can accurately view a site, area or object, does not work in settings that are constantly changing

There are advantages and disadvantages to each presentation medium, and the inputs that you use to present them. Our own experiences have shown that boards are the easiest and most reliable method to present evidence. Unfortunately, in larger cases, boards can be very expensive and awkward to handle. Our solution to this problem is case dependent. In a larger case where the costs can be justified, we continue to use boards as a primary method to use visual persuasion in the courtroom. We have invested, however, in an ELMO presenter, televisions and other equipment needed to use an ELMO visual presenter integrated with a VCR and occasionally a laptop. This allows the flexibility of having smaller visual exhibits prepared which can he put on the ELMO and presented on the screen, substantially reducing the cost of preparing the exhibits and, therefore, lowering the overall cost of presenting the evidence.

The cost of an ELMO should be considered, but is not out of the reach of most law offices, including sole practitioners. If you will be trying lawsuits, you should consider it as a potential investment. Our firm was able to purchase an ELMO presenter along with the necessary equipment to distribute the signal from the VCR, laptop and all the televisions for under $4,000.00. With the help of an assistant in the courtroom, this system substantially reduces the cost of presenting evidence.

We have found that when presenting evidence, boards and televisions work best under most settings. We handle cases all over the state of Missouri, and therefore, face many different courtroom challenges when trying to plan the presentation of evidence. Overhead projectors and LCD monitors are wonderful tools, but the lighting in many courtrooms often limit their use. We have also found that televisions are inexpensive to use, are familiar to jurors and are easily replaced if damaged.

Our firm has several software packages including Sanction II, Powerpoint and Presentations. Our experience has shown that Powerpoint and Presentations are extremely useful for mediation presentations but are not flexible enough for use in the courtroom. These programs may be used effectively in opening or closing, but generally speaking, have too many limiting factors. Trial presentation software has many useful features. Our experience, however, has been that it requires such extensive pretrial work that cost savings are outweighed by the work necessary to input all of the data. Furthermore, we have experienced technical difficulties during presentations which have required us to use alternate methods to present evidence at the last minute. Our suggestion is that unless you have extensive computer knowledge (we don’t) or professional support staff, the use of such software be limited.

X. Exhibits

A. Stock Exhibits – Charts/Models

Stock exhibits can be a way to present evidence in a visually appealing way that helps to make information more clear. In our personal injury practice, we often use anatomic models. In the hands of an expert, these can be excellent visual aids and teaching tools to help jurors clearly understand the anatomy and injuries involved. The appeal of these models is that they are generally inexpensive, can be reused, and therefore, are cost effective as well. Stock exhibits such as medical diagrams are also effective for the same reasons. Charts can be purchased over the internet or as part of a full library. Several services produce charts of the whole human body and are available for a few hundred dollars. Most word processing programs such as Microsoft Word or Wordperfect can be used to edit these images if they are available on disc or CD rom. This allows some level of customization of your charts.

B. In House Exhibits

In house exhibits can be of high quality and very cost effective. Common word processing software such as Microsoft Word and Wordperfect can be used to make effective exhibits when combined with color and imbedded pictures. Programs such as Powerpoint and Presentations can also be used to add bullet points, arrows and create visual charts which then can be printed on a color printer. These exhibits can be passed to the jury or presented through blowup to a board or shown electronically.

C. Custom Made Exhibits

Custom made exhibits generally look the best and are always the most expensive. In larger cases, we rely to a great extent on custom made exhibit boards. When these exhibits are mounted on gator board and printed out on a high quality large format printer, they are very expensive. However, the cost can be reduced by having an outside consultant prepare the exhibits and provide them electronically. They can then be presented by laptop through one of the presentation mediums. We have found this can save as much as 40% off the price of the custom prepared exhibit. We have also found it cost effective to purchase a few custom made exhibits and to also have the third party vendor prepare our in-house exhibits on professional looking boards in larger cases.

We hope there are a few thoughts or suggestions in this paper and the presentation that you will find useful in your practice. Good luck with your cases.

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Planning to purchase or finance Commercial or Industrial Real Estate? Shopping Center? Office Building? Restaurant/Banquet property? Parking Lot? Storefront? Gas Station? Manufacturing facility? Warehouse? Logistics Terminal? Medical Building? Nursing Home? Hotel/Motel? Pharmacy? Bank facility? Sports and Entertainment Arena? Other?

A KEY to investing in commercial real estate is performing an adequate Due Diligence Investigation to assure you know all material facts to make a wise investment decision and to calculate your expected investment yield.

The following checklists are designed to help you conduct a focused and meaningful Due Diligence Investigation.

Basic Due Diligence Concepts:

Commercial Real Estate transactions are NOT similar to large home purchases.

Caveat Emptor: Let the Buyer beware.

Consumer protection laws applicable to home purchases seldom apply to commercial real estate transactions. The rule that a Buyer must examine, judge, and test for himself, applies to the purchase of commercial real estate.

Due Diligence: “Such a measure of prudence, activity, or assiduity, as is proper to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending upon the relative facts of the special case.” Black’s Law Dictionary; West Publishing Company.

Contractual representations and warranties are NOT a substitute for Due Diligence.

Breach of representations and warranties = Litigation, time and money.

WHAT DILIGENCE IS DUE?

The scope, intensity and focus of any due diligence investigation of commercial or industrial real estate depends upon the objectives of the party for whom the investigation is conducted. These objectives may vary depending upon whether the investigation is conducted for the benefit of (i) a Strategic Buyer (or long-term lessee); (ii) a Financial Buyer; (iii) a Developer; or (iv) a Lender.

If you are a Seller, understand that to close the transaction your Buyer (and its Lender) must address all issues material to its objective – some of which require information only you, as Owner, can adequately provide.

GENERAL OBJECTIVES:

(i) A “Strategic Buyer” (or long-term lessee) is acquiring the property for its own use and must verify that the property is suitable for that intended use.

(ii) A “Financial Buyer” is acquiring the property for the expected return on investment generated by the property’s income stream, and must determine the amount, velocity and durability of the revenue stream. A sophisticated Financial Buyer will likely calculate its yield based upon discounted cash-flows rather than the must less precise capitalization rate (“cap rate”), and will need adequate financial information to do so.

(iii) A “Developer” is seeking to add value by changing the character or use of the property – usually with a short-term to intermediate-term exit strategy to dispose of the property; although, a Developer might plan to hold the property long term as Financial Buyer after development or redevelopment. The Developer must focus on whether the planned change is character or use can be accomplished in a cost-effective manner. A developer conducting due diligence will focus on issues involving market demand, access, use and finances.

(iv) A “Lender” is seeking to establish two basic lending criteria:

1. “Ability to Repay” – The ability of the property to generate sufficient revenue to repay the loan on a timely basis; and

2. “Sufficiency of Collateral” – The objective disposal value of the collateral in the event of a loan default, to assure adequate funds to repay the loan, carrying costs and costs of collection in the event forced collection becomes necessary.

The amount of diligent inquiry due to be expended (i.e. “Due Diligence”) to investigate any particular commercial or industrial real estate project is the amount of inquiry required to answer each of the following questions to the extent relevant to the objectives of the party conducting the investigation:

I. THE PROPERTY:

1. Exactly what PROPERTY does Purchaser believe it is acquiring?

(a) Land?

(b) Building?

(c) Fixtures?

(d) Other Improvements?

(e) Other Rights?

(f) The entire fee title interest including all air rights and subterranean rights?

(g) All development rights?

2. What is Purchaser’s planned use of the Property?

3. Does the physical condition of the Property permit use as planned?

(a) Commercially adequate access to public streets and ways?

(b) Sufficient parking?

(c) Structural condition of improvements?

(d) Environmental contamination?

(i) Innocent Purchaser defense vs. exemption from liability

(ii) All Appropriate Inquiry

4. Is there any legal restriction to Purchaser’s use of the Property as planned?

(a) Zoning?

(b) Private land use controls?

(c) Americans with Disabilities Act?

(d) Availability of licenses?

(i) Liquor license?

(ii) Entertainment license?

(iii) Outdoor dining license?

(iv) Drive through windows permitted?

(e) Other impediments?

5. How much does Purchaser expect to pay for the property?

6. Is there any condition on or within the Property that is likely to increase Purchaser’s effective cost to acquire or use the Property?

(a) Property owner’s assessments?

(b) Real estate tax in line with value?

(c) Special Assessment?

(d) Required user fees for necessary amenities?

(i) Drainage?

(ii) Access?

(iii) Parking?

(iv) Other?

7. Any encroachments onto the Property, or from the Property onto other lands?

8. Are there any encumbrances on the Property that will not be cleared at Closing?

(a) Easements?

(b) Covenants Running with the Land?

(c) Liens or other financial servitudes?

(d) Leases?

9. Leases?

(a) Security Deposits?

(b) Options to Extend Term?

(c) Options to Purchase?

(d) Rights of First Refusal?

(e) Rights of First Offer?

(f) Maintenance Obligations?

(g) Duty on Landlord to provide utilities?

(h) Real estate tax or CAM escrows?

(i) Delinquent rent?

(j) Pre-Paid rent?

(k) Tenant mix/use controls?

(l) Tenant exclusives?

(m) Tenant parking requirements?

(n) Automatic subordination of Lease to future mortgages?

(o) Other material Lease terms?

10. New Construction?

(a) Availability of construction permits?

(b) Utilities?

(c) NPDES (National Pollutant Discharge Elimination System) Permit?

(i) Phase 2 effective March 2003 – Permit required if earth is disturbed on one acre or more of land.

(ii) If applicable, Storm Water Pollution Prevention Plan (SWPPP) is required.

II. THE SELLER:

1. Who is the Seller?

(a) Individual?

(b) Trust?

(c) Partnership?

(d) Corporation?

(e) Limited Liability Company?

(f) Other legally existing entity?

2. If other than natural person, does Seller validly exist and is Seller in good standing?

3. Does the Seller own the Property?

4. Does Seller have authority to convey the Property?

(a) Board of Director Approvals?

(b) Shareholder or Member approval?

(c) Other consents?

(d) If foreign individual or entity, are any special requirements applicable?

(i) Qualification to do business in jurisdiction of Property?

(ii) Federal Tax Withholding?

(iii) US Patriot Act compliance?

5. Who has authority to bind Seller?

6. Are sale proceeds sufficient to pay off all liens?

III. THE PURCHASER:

1. Who is the Purchaser?

2. What is the Purchaser/Grantee’s exact legal name?

3. If Purchaser/Grantee is an entity, has it been validly created and is it in good standing?

(a) Articles or Incorporation – Articles of Organization

(b) Certificate of Good Standing

4. Is Purchaser/Grantee authorized to own and operate the Property and, if applicable, finance acquisition of the Property?

(a) Board of Director Approvals?

(b) Shareholder or Member approval?

(c) If foreign individual or entity, are any special requirements applicable?

(i) Qualification to do business in jurisdiction of the Property?

(ii) US Patriot Act compliance?

(iii) Bank Secrecy Act/Anti-Money Laundering compliance?

5. Who is authorized to bind the Purchaser/Grantee?

IV. PURCHASER FINANCING:

A. BUSINESS TERMS OF THE LOAN:

What loan terms have the Purchaser, as Borrower, and its Lender agreed to?

(a) What is the amount of the loan?

(b) What is the interest rate?

(c) What are the repayment terms?

(d) What is the collateral?

(i) Commercial real estate only?

(ii) Real estate and personal property together?

(e) First lien? A junior lien?

(f) Is it a single advance loan?

(g) A multiple advance loan?

(h) A construction loan?

(i) If it is a multiple advance loan, can the principal be re-borrowed once repaid prior to maturity of the loan; making it, in effect, a revolving line of credit?

(j) Are there reserve requirements?

(i) Interest reserves?

(ii) Repair reserves?

(iii) Real estate tax reserves?

(iv) Insurance reserves?

(v) Environmental remediation reserves?

(vi) Other reserves?

(k) Are there requirements for Borrower to open business operating accounts with the Lender? If so, is the Borrower obligated to maintain minimum compensating balances?

(l) Is the Borrower required to pledge business accounts as additional collateral?

(m) Are there early repayment fees or yield maintenance requirements (each sometimes referred to as “pre-payment penalties”)?

(n) Are there repayment blackout periods during which Borrower is not permitted to repay the loan?

(o) Is there a Loan Commitment fee or “good faith deposit” due upon Borrower’s acceptance of the Loan Commitment?

(p) Is there a loan funding fee or loan brokerage fee or other loan fee due Lender or a loan broker at closing?

(q) What are the Borrower’s expense reimbursement obligations to Lender? When are they due? What is the Borrower’s obligation to pay Lender’s expenses if the loan does not close?

B. DOCUMENTING THE COMMERCIAL REAL ESTATE LOAN

Does Purchaser have all information necessary to comply with the Lender’s loan closing requirements?

Not all loan documentation requirements may be known at the outset of a transaction, although most commercial real estate loan documentation requirements are fairly typical. Some required information can be obtained only from the Seller. Production of that information to Purchaser for delivery to its lender must be required in the purchase contract.

As guidance to what a commercial real estate lender may require, the following sets forth a typical Closing Checklist for a loan secured by commercial real estate.

Commercial Real Estate Loan Closing Checklist

1. Promissory Note

2. Personal Guaranties (which may be full, partial, secured, unsecured, payment guaranties, collection guaranties or a variety of other types of guarantees as may be required by Lender).

3. Loan Agreement (often incorporated into the Promissory Note and/or Mortgage in lieu of being a separate document)

4. Mortgage [sometimes expanded to be a Mortgage, Security Agreement and Fixture Filing]

5. Assignment of Rents and Leases

6. Security Agreement

7. Financing Statement (sometimes referred to as a “UCC-1″, or “Initial Filing”)

8. Evidence of Borrower’s Existence In Good Standing; including

(a) Certified copy of organizational documents of borrowing entity (including Articles of Incorporation, if Borrower is a corporation; Articles of Organization and written Operating Agreement, if Borrower is a limited liability company; Certified copy of trust agreement with all amendments, if Borrower is a land trust or other trust; etc.)

(b) Certificate of Good Standing (if a corporation or LLC) or Certificate of Existence (if a limited partnership) or Certificate of Qualification to Transact Business (if Borrower is an entity doing business in a State other than its State of formation)

9. Evidence of Borrower’s Authority to Borrow; including

(a) a Borrower’s Certificate;

(b) Certified Resolutions

(c) Incumbency Certificate

10. Satisfactory Commitment for Title Insurance (which will typically require, for analysis by the Lender, copies of all documents of record appearing on Schedule B of the title commitment which are to remain after closing), with required commercial title insurance endorsements, often including:

(a) Affirmative Creditors Rights Endorsement (extending coverage over policy exclusion 7 and policy exclusions 3(a) and 3(d) as they relate to creditor’s rights matters)

(b) ALTA 3.1 Zoning Endorsement modified to include parking

(c) ALTA Comprehensive Endorsement 1

(d) Location Endorsement (street address)

(e) Access Endorsement (vehicular access to public streets and ways)

(f) Contiguity Endorsement (the insured land comprises a single parcel with no gaps or gores)

(g) PIN Endorsement (insuring that the identified real estate tax permanent index numbers are the only applicable PIN numbers affecting the collateral and that they relate solely to the real property comprising the collateral)

(h) Usury Endorsement (insuring that the loan does not violate any prohibitions against excessive interest charges)

(i) other title insurance endorsements applicable to protect the intended use and value of the collateral, as may be determined upon review of the Commitment for Title Insurance and Survey or arising from the existence of special issues pertaining to the transaction or the Borrower.

11. Current ALTA Survey (3 sets), [typically prepared in accordance with 2005 Minimum Standard Detail for ALTA/ACSM Land Title Surveys, certified to the lender, Buyer and the title insurer, including items 1 through 4, 6, 7(a), 7(b)(1), 8 through 11(a) and 14 from the Surveyor's "Optional Survey Responsibilities and Specifications" referred to as "Table A"].

12. Current Rent Roll

13. Certified copy of all Leases (3 sets)

14. Lessee Estoppel Certificates

15. Lessee Subordination, Non-Disturbance and Attornment Agreements [sometimes referred to simply as "SNDAs"].

16. UCC, Judgment, Pending Litigation, Bankruptcy and Tax Lien Search Report

17. Appraisal (must comply with Title XI of FIRREA (Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended)

18. Environmental Site Assessment Report (sometimes referred to as Environmental Phase I and/or Phase 2 Audit Reports)

19. Environmental Indemnity Agreement (signed by Borrower and guarantors)

20. Site Improvements Inspection Report

21. Evidence of Hazard Insurance naming Lender as the Mortgagee/Lender Loss Payee; and Liability Insurance naming Lender as an “additional insured” (sometimes listed as simply “Acord 27 and Acord 25, respectively)

22. Legal Opinion of Borrower’s Attorney

23. Credit Underwriting documents, such as signed tax returns, property operating statements, etc. as may be specified by Lender

24. Compliance Agreement (sometimes also called an Errors and Omissions Agreement), whereby the Borrower agrees to correct, after closing, errors or omissions in loan documentation.

It is useful to become familiar with the Lender’s loan documentation requirements as early in the transaction as practical. The requirements will likely be set forth with some detail in the lender’s Loan Commitment – which is typically much more detailed than most loan commitments issued in residential transactions.

Conducting the Due Diligence Investigation in a commercial real estate transaction can be time consuming and expensive in all events.

If the loan requirements cannot be satisfied, it is better to make that determination during the contractual “due diligence period” – which typically provides for a so-called “free out” – rather than at a later date when the earnest money may be at risk of forfeiture or when other liability for failure to close may attach.

CONCLUSION

Conducting an effective due diligence investigation in a commercial real estate transaction to discover all material facts and conditions affecting the Property and the transaction is of critical importance.

Unlike owner occupied residential real estate, when a house can nearly always be occupied as the purchaser’s home, commercial real estate acquired for business use or for investment is impacted by numerous factors that may affect its use and value.

The existence of these factors and their affect on a Purchaser’s ability to use the Property for its intended use and on the Purchaser’s projected investment yield can only be discovered through diligent investigation and attention to detail.

The circumstances of each transaction will determine what degree of diligence is required. The level of diligence required under the circumstances is the diligence that is due.

Exercise Due Diligence.

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While most individuals are less than keen on the idea of serving on jury duty, there are a limited number of viable excuses that actually allow them to get out of it. For that reason, it’s important for anyone who believes they might not be able to serve to review the list of viable excuses and make sure their excuse is listed. Otherwise, you may be required to present a specific case and reason for being excused to the court workers or even the judge.

Initially, if you do have a good reason to get out of jury duty, you can write to the court via the questionnaire and relate your reason for requesting an exemption. However, if you wait too long, you will be required to complete the call in process until you are selected to visit the courthouse, at which time you can present your reasons for being unable to serve in person.

The first reason an individual might try to get out of jury duty is if they are older than 70 years old. This is the simplest way to get out of jury duty as proof of age is all that’s required. Another common way is if you are responsible for the care of children or the elderly. Proving this is also relatively simple but might require further phone conversations. Regardless, if you have children and are called for jury duty, it is highly feasible that you can get out of it.

Additionally, members of the volunteer firefighter or ambulance crews are given leave to excuse themselves from jury duty. Already serving more than their fair civic duty, they are immediately excused.

If your role in a business is so vital that your absence could cause failure to the business, you are also exempt from jury duty. This often applies to those who own small businesses and cannot replace themselves in the workplace for as long as a trial might take. Other occupations that are exempt include attorneys, doctors, nurses and dentists. Each of these professions is a vital part of society and therefore excused from jury duty.

If you are physically incapable of reaching the courthouse, you are also exempt. Initially, this means that you do not have a car and cannot use the bus or other form of public transportation. However, it extends to include exemptions for disabilities as well.

Most excuses that require explanation must be made at the courthouse during the jury selection process. These include any excuses made on the behalf of family care or work responsibilities. You will need to report for the selection process and make your argument there.

Ultimately, it is unwise to openly ignore a jury duty summons. Because it is a demand from the court and not a request, it is your legal obligation to honor it or present an excuse that they accept for not honoring it. If you choose to ignore the summons, you could be subject to criminal prosecution.

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Injuryboard attorney Karl Truman speaks about the importance of acting quickly after an injury or accident, both for the client and the attorney. He discusses a particular case involving a ford expedition that tipped over because of a steep embankment and only through the firm’s quick involvement was the correct evidence obtained from experts, leading to a positive settlement. He warns about trusting your insurance company to do the right thing and contact an attorney as soon as possible. Karl is board certified by the National Board of Trial Advocacy, a rigorous process few attorneys actually complete. At the Karl Truman Law Office, we are committed to providing legal services to people injured in accidents in Kentucky and Indiana. We have offices located in Louisville Kentucky and Jeffersonville Indiana. If you can’t come to us, we can come to you. The Karl Truman Law Office helps people in the following areas: auto accidents, workers’ compensation, social security disability, drug injuries, insurance disputes, premises liability, wrongful death, nursing home abuse and defective products.Being on the Ohio River, we also help those injured on boats and barges including Jones Act and Longshore Claims. Karl Truman is a proud Injuryboard Member.

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