It is illegal for a horse to enter a bar in Montana. It makes sense; a horse in a bad mood can be pretty destructive. A horse in a bar seems like a great scene for the TV show Yellowstone – but then the rest of America would think horses in Montana bars are actually a daily occurrence.

It is also illegal to hunt from an airplane. This, too, makes sense – for now. But if wild boars ever get to Montana (as they are rumored to be doing) then hunting them from aerial platforms (airplanes or helicopters) will need to happen. That’s the best way to control a wild boar population.

This one is too weird to be true: It’s supposedly illegal to fish with a lasso. I bet it’s hard to wrangle a fish that’s underwater with a lasso that would seem to stop its motion once it hits the water. (Could this be another setting for an episode of Yellowstone?) This is why I don’t claim any of these alleged laws are actually laws. But it’s interesting to wonder about.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Is That Really a Law in Montana? (Part 4) appeared first on Overstreet Law Group.

In Billings, it’s illegal to sell pet rats. Section 4-304 of the city code reads: “It is unlawful for any person to sell, offer for sale, harbor, raise or give away as pets, toys, premiums, novelties, or for any other purpose except as feed for reptiles or birds of prey or both.” I have so many questions. Who has pet rats? Who gives them away? Aren’t there enough rats that we don’t need to raise more? I’m just glad that there’s a reptile and birds-of-prey exception. Owners of those animals must have strong lobbyists.

In Helena, it’s illegal to spray water from a sprinkler onto a sidewalk. Section 5-9-2 of the city code provides: “No person shall place any revolving fountain, hose or sprinkler so that the water from the same shall be thrown upon any street, avenue or sidewalk to the annoyance of [a] passerby.” It is slightly annoying to get sprinkled while walking down a sidewalk, but is a law required? Apparently so in Helena.

The existence of these two weird laws has been verified. Now we dive into the realm of unverified laws. These seem too wacky to be true, but some say they actually exist.

Perhaps the most famous weird Montana law – that I cannot find in the statutes – is that unmarried women cannot go fishing. Unless it’s on a Sunday.

I’ll be presenting more weird laws in several more Ask an Attorney columns.

These weird laws are from an article on the Montana Beyond website.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Is That Actually a Law in Montana? (Part 1) appeared first on Overstreet Law Group.

Why can’t Montana have permanent daylight saving time?

Congress.

Like most states, Montana has passed legislation to switch to permanent daylight saving time. But Congress needs to approve individual states switching to permanent daylight saving time.

In 2022, the United States Senate allowed states to have their wish and get permanent daylight saving time. But the House of Representatives has not. It is not a partisan issue: Both the formerly Democrat-controlled House and the current Republican-controlled House have not passed the legislation. It’s a dysfunction of the House issue.

How did we get in this situation? Congress put daylight saving time into place in 1918. Then, in 1966 Congress approved the Uniform Time Act which allowed states to opt out of daylight saving time but prohibited them from making daylight saving time permanent. Hawaii and Arizona opted out of daylight saving time, so now they don’t have to change the clocks back and forth – but they lose the extra hour of sunlight in the evenings. But opting out of daylight saving time is not what most Montanans want; we want to make daylight saving time permanent. There’s a big difference. Like an hour of daylight in the evening.

In 1966, when Congress prohibited states from making daylight saving time permanent, there might have been a reason: without computers, time zone changes at state lines must be made manually and failing to do so would lead to uncertainty. (You don’t want trains on the same track at the same time because one is mistakenly on the other state’s daylight saving time.) But now almost every time piece is connected to the internet, and with GPS telling the time piece which state it is in, the time piece automatically changes the time when one crosses a state boundary. We know this when we drive to Idaho and at Lookout Pass our phones’ and vehicle’s clocks change automatically from Mountain time to Pacific time. Besides, it is likely that most states would adopt permanent daylight saving time so there likely would not be differences between states.

All of this can be solved by the House of Representatives if they get their act together. I wouldn’t hold my breath. In the meantime, we’ll need to set the clocks back and forth twice a year.

The post Permanent Daylight Saving Time: An Idea So Good Only Congress Could Mess It Up appeared first on Overstreet Law Group.

The answer is almost always “No.” Clients can’t believe that they have to spend money for a lawsuit where the other side is clearly at fault, but the client cannot get his or her money back.

This is the “American rule.”

When America first became a country in the late 1700s, American judges had a choice: follow the “English rule” on attorney’s fees where the losing party usually pays the winning party’s attorney fees or come up with the opposite rule. They opted to create the “American rule” where the winning party almost never gets their attorney’s fees from the losing party.

There are a couple reasons for this. First, American judges wanted to encourage people to bring legal claims. Having to pay the other side’s attorney’s fees if they lost would discourage bringing most legal claims. (Evidence shows this is true; in England there are far fewer legal cases.) Second, American judges wanted to encourage people to expand the details of the law by bringing cases. These Revolutionary War-era judges had recently seen what happened when English law did not evolve because few could afford to bring cases. Third, winning or losing a court case can be a roll of the dice despite the merits of the case. By piling on a bill for the winning side’s attorney’s fees, American judges thought that a losing party with a meritorious case would essentially lose twice: once on the case, and a second time by having to pay the winning side’s attorney’s fees. Fourth, it is often hard enough for a losing party to pay a judgment; tacking on an even bigger amount for attorney’s fees would lead to even more bankruptcies in which the winning side never sees the money. Fifth, if attorney’s fees can be recouped from the other side, judges were worried that attorneys would overwork cases and tell their clients, “The other side has to pay for all this so don’t worry about the size of the bill.”

There are a few exceptions to the American rule. Some statutes, like civil rights and employment discrimination laws, allow the person with a meritorious case to get attorney’s fees from the government or the employer. There is also an extremely narrow exception to the American rule for “equity” that applies in a handful of cases where it would be purely unfair not to give the winning side their attorney’s fees.

The American rule, whether a good idea or not, is part of our legal system.

The post What is the American Rule on Attorney’s Fees? appeared first on Overstreet Law Group.

Many people are probably glad there are so few attorneys here. But they shouldn’t be. A lack of attorneys means lots of people who can’t find one end up “winging it” in court and often make costly mistakes. This is especially true in divorce cases where the stakes are high (access to children and divisions of money). Another problem with the lack of attorneys is that almost all people representing themselves – and that’s a huge portion of cases – don’t know the court rules, which clogs up the court system and causes delays for criminal cases and important civil cases. Ravalli District Court Clerk Paige Trautwein reports that 42% of divorce cases involve people without attorneys. These cases take far longer to resolve because non-attorneys do not know the court rules.

Montana suffers from a double whammy. Montana has fewer attorneys per capita than most states and we have a high poverty rate. There aren’t enough attorneys and many potential clients cannot afford them. Lots of important legal needs go unmet.

Attorneys give away a tremendous amount of free legal services. The amount reported to the bar association was $20 million in 2022 alone. Many attorneys do not report the amount of their free legal services to the bar. I don’t, but I estimate that I gave away $20,000 in free legal services in the past year. Most attorneys give away a similar amount.

But giving away free legal services isn’t keeping up with demand. I turn away at least one case a day because I simply don’t have the time to take on any more. Many of those I turn away don’t find another attorney and have to “wing it” – to their probable detriment.

What’s the solution? That would take hours to discuss. One big problem is that many younger attorneys do not want to live in the “sticks” like Ravalli County (their loss). Many of them would rather live in Missoula. Some well-established Ravalli County law firms say they might have to wind down if they can’t find younger attorneys to start taking over their practices. Then we’ll all need to go to Missoula to find an attorney.

The post There Aren’t Enough Attorneys in Ravalli County appeared first on Overstreet Law Group.

Experts predict that millions of American jobs will be replaced by AI. There might be fewer doctors and nurses because AI will scan your medical charts and diagnose you. Will AI replace lawyers?

Probably not. There are two reasons why.

First, legal ethics rules essentially require that a person represented by a lawyer is represented by a licensed lawyer – and, by implication, that is a human lawyer with a real law license. But what about people who represent themselves? Could they harness AI to prepare motions for them? That gets into the second reason why AI will not replace lawyers.

AI lies. At least on occasion. For example, briefs written by AI have been called into question for citing cases that don’t exist. Apparently, the AI computer thought it would be convenient to have a case saying something the computer wanted the case to say. So the computer made it up. It took human lawyers to catch the fictitious cases.

I have a friend who practices an extremely specialized area of law (there are about five other attorneys in the country who practice in this area of law). There are only a handful of cases on this very obscure topic, so my friend knew them all. One of his colleagues asked AI to write a brief on their ultra specialized area of law. AI generated a brief that, overall, was pretty good – but cited “Miller v. U.S.” for a game-changing legal conclusion. My friend thought it was odd that he’d never heard of the case given how few there were in this field of law. However, he quickly realized that “Miller v. U.S.” had been made up by the AI computer.

Lawyer regulatory bodies across the country are drawing up rules to prevent the unverified use of AI. Besides, solving legal problems takes more than citing cases. A lawyer needs to understand human dynamics and draw on his or her life experience to solve legal problems. AI can’t do that.

Lawyers won’t be going away anytime soon.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Will Your Next Lawyer Be a Robot? appeared first on Overstreet Law Group.

Politicians and apathy.

Politicians are eager to solve problems for voters. In the Helena example, presumably some local residents were annoyed at people playing “folf” at night so they said, “There ought to be a law.” Their elected representatives took action. I remember a state Senator who had a voter in his district killed by a pellet gun (not sure how that’s possible, but that’s what happened). The Senator told a friend of mine, who was the attorney for the Senate, “Draft me a bill that makes it a crime to murder someone with a pellet gun.” My friend replied, “Senator, it’s already against the law to murder someone.” The pellet-gun law was not introduced, but you can see how weird laws can happen. Sometimes politicians are too responsive to the electorate.

Apathy is the other reason why weird laws stay on the books. No one really has the time and energy to repeal silly laws or ones that are no longer needed. It often takes an organized group to get anything done with government. In the folf example, it would take the Helena folf players getting together and lobbying for the repeal of the ordinance. If there’s no one that is substantially impacted – and not playing folf at night is not the end of the world – then no one has an incentive to spend the time and money to repeal a weird law.

I think it would be great if the Montana Legislature and local governments periodically reviewed their laws and repealed the weird ones. But they’re often too busy protecting us from … folf.

The post You Can’t “Folf” (Not a Typo) In Helena appeared first on Overstreet Law Group.

On one end of the spectrum of TV and movie portrayals of citizens arrests is the Chuck Norris situation of a regular guy taking on everyone breaking the law – and using some pretty cool machine guns and explosions to get the job done.

On the other end of the spectrum are TV shows and movies where people are too afraid of the legal consequences of using force and end up getting killed by the bad guys. Those shows are less common because, well, there are no cool machine guns or explosions and hence less of a reason to watch them.

Both ends of the spectrum are myths, at least under Montana law.

Montana has a statute on this topic, MCA 46-6-502. It provides: “A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person’s immediate arrest. The private person may use reasonable force to detain the arrested person. A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.”

There are a couple of noteworthy parts to this statute. The first is “probable cause,” which has been described as “it’s at least 51% likely a crime is being committed or has been committed.” “Probable cause” is not the much higher standard of certain of “beyond a reasonable doubt.” This means a private citizen can’t walk up to someone and arrest them when there is no indication that person is committing or has committed a crime.

The second noteworthy part to the statute is that citizens arrest powers apply to a person who is committing or has committed an “offense.” That means felonies and misdemeanors and ordinances with criminal penalties. That would exclude routine traffic tickets. (There is a famous 1963 episode of the Andy Griffith Show where Gomer makes a citizens arrest of Barney Fife for making an illegal u-turn. That wouldn’t work in Montana.)

The third part is that the citizens arrest must occur under circumstances that require the bad guy’s “immediate arrest.” This is a limiting factor in citizens arrests. If an armed bank robber is running down the street, that would require an immediate arrest. If someone is making a u-turn, that would not because the police could handle it. A good rule of thumb is that if you make a citizens arrest you should be able to clearly articulate why waiting for the police would have let a dangerous person get away. In most situations, it’s obvious (like an armed bank robber running down the street).

The fourth part – and this is a big one – is that a person making a citizens arrest can only use “reasonable force.” Pulling a gun is “force”; it’s not just shooting one that counts as “force.” And note that the only “reasonable force” you can use is to “detain” the bad guy. Executing a detained prisoner in the street is not OK.

The fifth part is that “immediately” after the citizens arrest, a person must notify law enforcement. Torturing the bad guy to get him to confess is great in Chuck Norris movies but would not work out well for you in Montana.

The bottom line is that you should not be shy about making a citizens arrest or otherwise defending yourself. Montana has a legal culture that supports self-defense. But be reasonable. If you are trying to live out a Chuck Norris movie, you’ll have trouble with the law. My personal standard for this is “could I live with myself if I did nothing?” and “how would I explain what I did to a prosecutor?”

The post Citizens Arrest: Myths and Reality appeared first on Overstreet Law Group.

Wrong. You most certainly cannot ignore it.

Once you’ve been served with a lawsuit, the law is very clear: You have 21 days after the date of service to either file an answer to the suit or a motion to dismiss it. If you fail to do so, the person suing you can ask the judge for a default judgment against you for everything they asked for in their suit. A judge will almost always grant default judgment against the party who did not respond within 21 days. You don’t get to contest it. You lost the case from the get-go by not responding.

People who are sued sometimes think they don’t need to respond to a lawsuit because they can just explain to the judge how meritless the case against them is. They think a default judgment is like a traffic ticket where they can tell the judge what happened and the judge will see how right they are and dismiss the suit. Judges can’t really do this when someone has not responded to a suit. Instead, judges almost automatically grant default judgments against people who do not respond to the lawsuit. (There are some limited exceptions which are very rare.)

The summons you were served with could not be more clear – it specifically tells you that if you fail to respond within 21 days that default judgment can be entered against. Believe what it says.

Let’s say you can’t find an attorney to take your case, which is common in Ravalli County where there are not enough attorneys. You have two solutions. First, you can contact the person who sued you and ask for more time to respond. Second, you can file an answer yourself. A basic answer to stave off a default judgment is easier than you’d think. There are forms on the Montana courts website for an answer. Don’t be afraid to file your own answer – it’s far better than losing your case before it really even starts.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Can You Ignore a Lawsuit Filed Against You? appeared first on Overstreet Law Group.

Adverse possession has existed for 150 years or so in western states because the law wants to reward people who are actually using land as opposed to those who, while they technically have a deed to it, are not using it. The most common scenario is a fence mistakenly placed over a boundary line so it is a few feet on a neighbor’s land. Adverse possession is based on fairness: if a person puts up a fence and relies on its location for five or more years, it would be unfair to force them to tear it down. The Montana Legislature apparently disagrees.

The Legislature passed a statute, MCA 70-19-401, saying you can get title to another person’s land by using it for five or more years. So you can, right?

Not really.

Another statute, MCA 70-19-411, says you must pay taxes on the other person’s land. No problem, you say, because your property tax assessment would include the land you’re actually using such as the land you’ve fenced in. Not so.

Montana property tax assessors use the legal description to determine the size of the parcel and hence the property taxes. So you pay property taxes on the land in your legal description, not on the land you’re actually using. But in an adverse possession situation, you are using land that is not in the legal description to your property – so you never pay the property taxes for the strip of land you fenced in. A 1979 case, Nott v. Booke, says that legal descriptions – not the actual usage on the ground such as a fence – determine what taxes you pay. So you can never pay taxes on the disputed territory.

The only way, as a practical matter, to adversely possess property is for a person to somehow pay the property taxes for someone else’s property. But it’s not as if you can stroll into the tax assessor’s office and volunteer to pay taxes for someone else. Even if you could, you would need to do so for five consecutive years. That almost never happens.

If I were ever in the Legislature, I would try to repeal the statute about having to pay property taxes on the property being adversely possessed … that the tax assessor will never assess against you, so you can never adversely possess.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship with Overstreet Law Group, LLC is formed unless a person enters into a written representation agreement with the firm.)

The post Adverse Possession in Montana: It Exists … But It Really Doesn’t appeared first on Overstreet Law Group.