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Posted by: Samuel Gowin on Feb 1, 2014

Journal Issue Date: Feb 2014

Journal Name: February 2014 - Vol. 50, No. 2

Service Animals, Therapy Animals and Pets Are Not the Same

A woman, her horse and her attorney walk into a bar.
“Dear lady, you can’t bring that foul-smelling ass into this establishment!” says the barkeeper.
“How dare you! This is my seeing-eye horse!” says the woman.
“Of course, I realize that,” replies the barkeep, “but the lawyer has to go!”

* * *

More landlords are seeing clever tenants getting around “no pets” rules in leases by claiming that the animal is needed for a medical condition. Others, who need the use of a service animal, are having to explain what the animal does for them in order to enter restaurants and businesses. This article explains the different categories of assistance animals and what rights a tenant, landlord, business owner and patron have.

The current law as to service animals, therapy animals and assistance animals has changed a great deal recently both from case law and administrative regulations. Understanding the various federal acts that apply can confuse and lead property owners and animal owners into trouble. Recently, in Velzen v. Grand Valley State Univ.,[1] a student afflicted with depression and a heart condition contested her school’s refusal to allow her to keep her guinea pig prescribed for emotional support. On the other hand, a state quarantine on animals intended to prevent the spread of rabies was deemed in violation of the ADA in Crowder v. Kitagawa.[2] Likewise, in Johnson v. Gambrinus Company/Spoetzl Brewery,[3] the court found that a brewery must modify its no-animals policy to allow service animals, notwithstanding the brewery’s concern of contamination.

A. Managing the Tension Between Accessibility and Its Associated Costs

Pets and companion animals have become more and more a part of our lives, reaching the point of family to many.[4] Study after study has shown that the companionship of an animal can be effective treatment for disabilities, both mental and physical.[5] On the other hand, animals are not always welcome in commercial establishments and rented homes. To a storekeeper, companion animals may represent uncleanness, allergies, potential damages and a distraction and obstacle to shoppers. To a landlord, they suggest fleas, ruined carpet, objectionable odors and barking. These competing interests have resulted in substantial law and regulation, much of it greatly confusing and conflicting.

So when is an animal allowed into a public facility? When must a landlord waive her “no pets” policy? What is a property owner allowed to ask the person seeking to bring an animal into a business? What species of animals can be considered therapy animals?

B. The Applicable Federal Acts

These issues depend largely on federal law including the Americans with Disabilities Act (ADA) and the Fair Housing Act with amendments (FHA). Also pertinent is the Rehabilitation Act of 1973,[6] which applies to entities receiving public money. Most states also have housing laws based on the FHA that sometime provide additional remedies.

1. Americans with Disabilities Act
The ADA has long allowed service animals, such as guide dogs, special status. Other state and federal acts give special rights to those with “therapy animals” or “assistance animals.” The ADA prohibits discrimination on the basis of disability. Title III of the ADA applies to “public accommodations” which include businesses, restaurants, hotels, private schools and organizations that serve the public.[7] Title III provides for injunctive relief but not compensatory damages.[8]

The ADA defines “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.”[9] Importantly, “other species of animals … are not service animals.”[10] A shopkeeper, therefore, cannot deny entry or prohibit a service animal. The service animal must be individually trained and the ADA excludes emotional support animals.[11] The policy behind the ADA is to remove barriers for the disabled. Thus, one with a qualified disability who needs a properly trained service animal will have minimal trouble and expense in navigating society.

A recent revision has established that reasonable accommodations must be made for miniature horses, properly trained.[12] The regulations allow businesses to exclude miniature horses where they are out of control or not housebroken, where the facility cannot accommodate “the type, size, and weight of the miniature horse,” where the horse “compromises legitimate safety requirements,” or in any other circumstance where it would not be reasonable to admit the miniature horse.[13]

The ADA evolved from Section 504 of the Rehabilitation Act of 1973.[14] The Rehabilitation Act applies to programs or activities receiving public money (where the ADA extends to private parties). It extends civil rights protection to the disabled and requires entities receiving public money to make reasonable accommodations for qualified individuals. For instance, the Velzen v. Grand Valley State Univ., cited earlier dealt with the Rehabilitation Act since it was a university dormitory.

2. The Fair Housing Act
The Fair Housing Act of 1968[15] was passed to prevent discrimination in the purchase, sale, leasing and renting of real property. The FHA did not initially include the disabled as a protected class. However, the Fair Housing Amendments Act of 1988 (FHAA) revised the FHA to include new enforcement mechanisms, to expand and broaden some of the protections of the FHA, and added the handicapped as a protected group. Thus, the FHA and amendments of the FHAA (henceforward, collectively FHA) make it illegal to discriminate against handicapped individuals in providing housing. Yet the FHA should not “extend a preference to handicapped residents,”[16] and “accommodations that go beyond affording a handicapped [person] ‘an equal opportunity to use and enjoy a dwelling’ are not required by the Act.”[17] In contrast to the ADA, the FHA provides for a private right of action by an aggrieved party for compensatory damages.

The FHA further prohibits “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”[18] What constitutes “reasonable accommodation” is fertile ground for interpretation that varies from district to district. Nonetheless, what constitutes a reasonable accommodation is a “threshold question” to be determined by the fact finder.[19] The Sixth Circuit has held that a reasonable accommodation must “impose[] no fundamental alteration in the nature of a program” or “undue financial and administrative burdens.”[20]

The waiver of a no-pets rule for a service or therapy animal can be a reasonable accommodation necessary under the FHA.[21] Failure to waive such a rule in certain cases will open up a property owner to liability. For a complainant to succeed, she must prove that (1) she suffers from a disability within the meaning of FHA; (2) the landlord knew or reasonably should have known of the disability; (3) the requested accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling; (4) the accommodation is reasonable; and (5) the landlord refused to make the accommodation.[22]

The United States Department of Justice and the Department of Housing and Urban Development have the obligation of enforcing the FHA.[23] The DOJ generally takes the position that the “service animal” definition of the ADA does not necessarily apply in the housing context. Thus, emotional support animals may be reasonable accommodations under the FHA although not technically service animals under the ADA.[24]

3. Meeting the Requirements of the Federal Acts
The ADA specifically applies to public accommodations, such as private retail stores, restaurants, hotels, parks and private schools. Thus, store owners need to be aware of the rules surrounding service animals. The case of Dilorenzo v. Costco Wholesale Corp.[25] is illustrative. There, the Washington District Court found that defendant Costco had conducted a proper “task and function inquiry” and had not harassed a patron in violation of the ADA. The case involved a disabled veteran and her puppy, which she intended to train as a service animal. When the dog was 12 weeks old, the plaintiff took the dog to defendant’s store and informed the door greeter that the dog was being trained as a service animal. The plaintiff was given copies of Costco’s service animal policy and plaintiff gave defendant’s employee her psychologist’s letter describing plaintiff’s disability and suitability for a service animal.

On her next visit, plaintiff brought her dog wearing a vest that read “service dog in training.” Plaintiff was allowed in without incident. Store personnel noticed that the plaintiff would sometimes carry the dog. At the checkout plaintiff was asked on whose behalf the dog acted and what task it performed. Upon leaving the store, plaintiff was confronted by two of defendant’s managers, one of whom had seen the dog enter the store previously with plaintiff’s husband. Plaintiff was informed that companion animals were not allowed in the store and that plaintiff’s dog would not be allowed on future visits. Defendant followed up with a letter to plaintiff requesting information on the training of the dog and the tasks it performed. Plaintiff did not respond to this letter.

The court held that defendant’s actions did not exceed the scope of a proper “task or function” inquiry to determine whether the animal was a service animal or a mere pet. The court reiterated that a business can ask if an animal is a service animal and what tasks it performs. The business cannot require special identification or ask about a person’s disability. The court endorsed a “business brief” issued by the Department of Justice[26] as well as a measure of common sense.[27] The court also found that a violation of its own policies did not support a violation of the ADA. In dicta, the court mentioned that if plaintiff had merely affirmed that the dog was trained and what it was trained to do, the defendant would likely have no further room to contest plaintiff’s use of the animal in the store.[28]

The ADA often bleeds into the housing context as well. For instance, in Access Now Inc. v. Town of Jasper,[29] a little girl with spina bifida and hydrocephalus had been given a miniature horse. The little girl’s parents applied for a permit to keep the horse since it was prohibited by town ordinance. The town turned down the request and legal action followed based on the ADA. The Tennessee district court dismissed the action and by finding that the girl did not have a disability and that the miniature horse was not a service animal.[30]

Notwithstanding these incidents, courts and legislatures have long understood substantial differences between public accommodations and the providers of housing.[31] Obviously, while people merely visit restaurants, hotels, theaters, etc., people live at their residences. Thus, the FHA arises frequently in the housing context. The FHA and case law is attractive to tenants because of its favorable treatment of therapy animals and also to attorneys for its allowance of private actions and compensatory damages.[32]

A key early FHA case is Prindable v. Association of Apt. Owners.[33] There, the plaintiffs lived in a ritzy condominium on Waikiki beach. The bylaws of their condo project prohibited all animals except assistance animals for the disabled. The plaintiffs purchased an English bulldog and obtained a doctor’s note stating that the dog was necessary to “cope with the stress, poor sleep patterns [and] problematic ailments.” The condo association requested more information from the listed physician but received none. Plaintiffs later submitted to the association notes from two doctors, including a therapist who stated that one of the plaintiffs suffered from depression and removing the dog would worsen the condition. The association was skeptical but granted temporary permission to keep the dog. The plaintiffs then filed a housing discrimination complaint and then a federal lawsuit under the FHA and state law. At trial, the plaintiffs admitted that the dog had not received any training but that the dog’s “unconditional love” was sufficient to qualify him as a service dog.[34]

The court granted summary judgment on behalf of the association. Since the FHA provided no specifics as to what exactly a service animal was, the Prindable court used the ADA for guidance. In so ruling, the court held that where the resident’s handicap was mental or emotional in nature, the animal “must be peculiarly suited to ameliorate the unique problems of the mentally disabled.” Also, “[u]nsupported averments … and slight anecdotal evidence of service” will not overcome a motion for summary judgment. On the other hand, “an affidavit detailing [the animal’s] training, a declaration from [the animal’s] veterinarian or a certificate from any licensed training school” could potentially defeat summary judgment.[35]

Prindable relied mainly on three cases in interpreting the requirements of the FHA as to service animals. In a 1995 Seventh Circuit case,[36] the court held that the interests of the property owner must be balanced with those of the tenant. In finding for the property owner, the court held that the tenant had to show that the service animal “must facilitate a disabled individual’s ability to function.”[37] Similarly, in a 2001 West Virginia case,[38] the court found that a housing authority could require that a service animal be “properly trained” without violating the FHA. The training did not need to be professional training, however, and a service animal need not be “certified for a particular disability.”[39]

Prindable is one of the most often cited cases when courts have tackled these tricky issues. However, since that ruling, the law in this area has changed considerably. In fact, in a recent Ninth Circuit decision, Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor,[40] the Court of Appeals limited Prindable to “service” animals as opposed to “assistance” animals. Taylor clearly shows the change in attitude of the courts to these cases as it was decided by the same district court and circuit court of appeals. In Taylor, another Waikiki condo purchaser (or potential purchaser)[41] sought to keep a dog contrary to a no-pet policy. The purchaser provided no evidence that the dog had been trained and provided no information as to how the dog assisted with his condition. The purchaser provided a doctor’s note that the dog “would provide a safe haven from outside stress and allowing [sic] a refuge from the outside world.”[42] While the factual situation in Taylor is markedly similar to Prindable, the Taylor court nonetheless found Prindable inapplicable as Prindable only dealt with “service” animals, not assistance animals.[43] Consequently, the purchaser could proceed to trial in Taylor.

Thus, in nine years’ time, the same court went from granting summary judgment to the housing provider to granting summary judgment for the resident on a similar set of facts. Other jurisdictions have not moved this far.

In a 2009 Eleventh Circuit case, Hawn v. Shoreline Towers Phase 1 Condominium Association Inc.,[44] the plaintiff purchased a condo with a no-pets policy. The plaintiff later obtained a pet dog and sought permission from the condo association to keep the dog as a pet. The condo association did not respond to the request and one year later, the plaintiff claimed to the condo association that he had a physical and psychiatric disability and he needed the dog as a therapy animal. In support, the plaintiff provided a certificate of registration for the dog as a service animal, letters from a chiropractor and psychologist stating the dog was medically necessary, and a statement of the tasks the dog could perform for the plaintiff.[45] The condo association was skeptical and sought additional information, which the plaintiff did not provide. The condo association then sent a letter rejecting plaintiff’s request to keep the dog. The plaintiff filed a claim with the state human rights commission that found discrimination by the condo association. Plaintiff sued the condo association under the FHA and state claims. The plaintiff provided additional medical certification forms filled out by the plaintiff’s doctors. Despite the plaintiff’s production of evidence, the 11th Circuit granted summary judgment to the condo association on all claims, including denial of reasonable accommodation. The court cited Prindable in holding that the condo association must have “the ability to conduct a meaningful review of the requested accommodation.”[46] The court found that the plaintiff’s production of letters and statement as to his disability included unclear explanations and the defendant was entitled to more documentation. Since the plaintiff did not comply, the defendant “could not have actually known of [the plaintiff’s] disability and the necessity of a service animal.”[47] The court appeared to go to some length to discount the plaintiff’s evidence.

The most relevant case in the Sixth Circuit is Overlook Mut. Homes v. Spencer.[48] There, an Ohio family kept a cockapoo to help with their daughter’s anxiety, contrary to the landlord’s no-pet policy. Although the dog was not obtained per medical prescription, later a psychologist recommended that the dog be used as an emotional support animal. The court had to determine whether the landlord’s delay in announcing a decision, its request for records and its filing for declaratory judgment were constructively denials of a reasonable accommodation to allow the animal.[49] The court held that the landlord had the right to seek some information on an allegedly disabled person which here was more than initially provided by the resident but not as much as requested by the landlord.[50] The court further found that the landlord’s petition for declaratory judgment was proper as the law on emotional support animals is in flux and varies by jurisdiction.[51] Based on the fact that the landlord had allowed the resident to keep the animal pending the litigation and because of the balancing of interests, the Sixth Circuit affirmed the trial court’s judgment for the landlord.[52]

C. How to Not Break the Law

Boiling the case law and the various acts into a set of rules might look like the following.

  1. Under the ADA, the basic rule is the “task and function” inquiry. A manager or owner of a public accommodation can inquire as to the work and tasks that a service animal performs and how those relate to the handler’s disability. The ADA does not limit what services can be provided by the service animal; however, emotional support only does not satisfy the ADA’s requirements.
    1. Under the “task and function” inquiry, entities may ask whether the animal is required due to a disability and what task or work the animal has been trained to perform.
    2. The entity cannot inquire about the nature of the individual’s disability.
    3. An entity should not ask these questions when it is “readily apparent that an animal is trained to do work or perform tasks for an individual with a disability.”[53] Additional questioning may be permissible in limited situations and where there is reasonable suspicion that the animal is not a service animal.[54]
    4. An entity cannot require any proof of certification or training of the service animal.[55] (The disabled person should still be prepared to show some evidence of training to distinguish the animal from a pet.)
  2. An entity may permissibly ask that a service animal be removed if the animal is out of control or not housebroken.[56] The individual must still be permitted to obtain goods, services, or accommodations without the service animal.[57]
  3. A service animal can be excluded if the entity can show that the animal would fundamentally alter the nature of the entity’s business. The entity has a tough burden here and representative cases showing a successful challenge are rare.[58]
  4. The service animal can be excluded when it poses a direct threat to health and safety. The allegation of a safety risk must be an actual risk as opposed to a speculative one.[59]

A landlord or homeowner’s association should be alert to the following.

  1. If the individual has a dog, with a harness, and appears to be blind or deaf, it is not proper to ask questions about any disability and the person should be treated as if there was no dog there. The animal is still required to be properly vaccinated and the owner is required to obey all leash laws. If the animal later becomes unruly or a threat to health and safety, the animal can be removed and reimbursement for damages can be sought.
  2. If the individual appears blind or deaf, and has a miniature horse, the animal can be refused if the rental house cannot reasonably accommodate the animal.
  3. If the individual has no apparent disability but has an animal, it can be inquired what kind of services the animal provides. It is also proper to inquire as to the person’s disability, and if the animal has training.[60] Documentation from the person’s health care provider can be requested. If there is no response to reasonable requests, then an accommodation is generally not necessary.[61] On the other hand, attempts to stonewall or purposely frustrate the applicant in an attempt to make her go away can constitute violation of federal law.[62] Training requirements and proof of training are the gray areas of this debate, so this decision should be made with care. It is also advisable to issue a temporary waiver while a court determination is sought as to whether the accommodation is proper.[63] If the animal is obviously a pet and the person says that the animal has no special training but helps them cope with an ailment, it is probably safe in Tennessee to require a pet deposit or refuse to allow the pet in a rental unit.

For an animal owner seeking a reasonable accommodation:

  1. Enroll the animal into some sort of formal training and get documentation.
  2. Obtain some sort of specialized training to deal with a documented affliction. This specialized training may not be as formal or as in depth as the formal training. For instance, self-training the animal to circle the owner to keep her at some distance from others can be specialized training.[64] On the other hand, anecdotes about how the animal assists the owner will not suffice.
  3. Obtain a letter from a doctor identifying the specific disability or affliction and specific ways a therapy animal will help.
  4. When renting, offer that the animal is a therapy animal, as opposed to just a pet, and offer whatever documentation is available.
  5. If the landlord still requires a deposit, there may be a claim under the Fair Housing Act.


  1. 12-321(W.D. Mich. Oct. 12, 2012).
  2. 81 F.3d 1480 (9th Cir. 1996). There, Hawaii required animals to be quarantined for 120 days to prevent the importation of rabies. The court found the law failed to make reasonable accommodations for service animals.
  3. 116 F.3d 1052 (5th Cir. 1997).
  4. Susan Phillips Cohen, “Can Pets Function as Family,” 24(6) West J Nurs Res 621, 621-638 (2002).
  5. B.E. Barba, “The positive influence of animals: Animal assisted therapy in acute care,” 9(4) Clinical Nurse Specialist 91, 91-95 (1995); Jan Shubert, “Dogs and Human Health/Mental Health: From the Pleasure of Their Company to the Benefits of Their Assistance,” The United States Army Medical Department Journal 21, 22-25 (2012).
  6. Other laws that can come into play include the Rehabilitation Act, 29 U.S.C. § 701 et seq. (1973) and the Air Carrier Access Act, 49 U.S.C. § 41705 (1986) (ACAA). The ACAA applies to service or therapy animals that may be allowed on a commercial flight.
  7. 42 U.S.C. §§ 12181-12189 (2006).
  8. Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d 830, 832 (D. Md. 1998).
  9. 28 C.F.R. § 36.104 (2002); Prindable at 1256.
  10. 28 C.F.R. § 35.104 (2002).
  11. Press Release, U.S. Dep’t of Justice, “The Department of Justice Proposes New Rules to Implement the Americans with Disabilities Act (ADA)” (June 4, 2008), available at; 28 C.F.R. § 35.104 & 28 C.F.R. § 36.104.
  12. 28 CFR § 36.302(c)(9)(i) and 28 C.F.R. § 35.136(i)(A) (2002).See noting the animal must be housebroken, controlled by its owner, can be accommodated by the facility and will not otherwise compromise the safety of the facility.
  13. 28 C.F.R. § 36.302(c)(9) (2002).
  14. Pub. L. No. 93-112, 87 Stat. 394 (Sept. 26, 1973), codified at 29 U.S.C. § 701.
  15. Pub. L. 90-284, 82 Stat. 73 (1968).
  16. United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1418 (9th Cir.1994).
  17. Hubbard v. Samson Management Corp., 994 F.Supp. 187, 190 (S.D.N.Y.1998) (quoting Bryant Woods Inn Inc. v. Howard County, 124 F.3d 597, 605 (4th Cir.1997)).
  18. 42 U.S.C.§ 3604(f) (3)(B) (2006).
  19. City of Edmonds v. Oxford House Inc., 514 U.S. 725, 726 (1995).
  20. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044 (6th Cir. 2001).
  21. See Bronk v. Ineichen, 54 F.3d 425, 431 (7th Cir. 1995).
  22. Dubois v. Ass’n. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005).
  23. 42 U.S.C. §§ 3614a, 3612(a) & (o) (2006).
  24. 28 C.F.R. Sec. 35.104 (2002).
  25. 515 F.Supp.2d 1187 (W.D. Wash. 2007).
  26. Available at (last accessed Dec. 1, 2012).
  27. Id. at 1193.
  28. Id. at 1194.
  29. 268 F.Supp.2d 973 (E.D. Tenn. 2003).
  30. Id. at 980.
  31. See Fair Hous. of the Dakotas Inc. v. Goldmark Prop. Mgmt. Inc.,778 F.Supp.2d 1028, 1035 (D.N.D., 2011)
  32. See Curtis v. Loether, 415 U.S. 189, 197 (1974), United States v. City of Hayward, 36 F.3d 832, 839-40 (9th Cir.1994). See D. Scott Chang, “Remedies and Damages in Fair Housing Cases and the Physical and Emotional Impact” (2004) available at for excellent detail as to damages allowed under FHA.
  33. 304 F.Supp.2d 1245 (D. Haw. 2003).
  34. Id. at 1256-57 & n.25. Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F.Supp.2d 1268 (D. Haw., 2012) at 40.
  35. Id. at 1257.
  36. Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995).
  37. Id. at 431.
  38. In re Kenna Homes Cooperative Corporation, 557 S.E.2d 787 (W.V. 2001).
  39. Id.
  40. Taylor (D. Haw. 2012).
  41. The distinction is without legal difference here.
  42. Id. at 4.
  43. As to why Prindable did not apply to assistance animals, the court explained “the concept of an ‘assistance animal,’ distinguishable from a ‘service animal,’ is a relatively recent occurrence.”
  44. 2009 WL 691378 (ND Fla. 2009).
  45. Id. at *4.
  46. Id. at *8.
  47. Id. at *9.
  48. 2011 WL 285252 (6th Cir. 2011).
  49. Id. at *7.
  50. Id. at *9.
  51. Id. at *12.
  52. Id. at *13.
  53. 28 C.F.R. § 36.302(c)(6), 28 C.F.R. § 35.136(f) (2002).
  54. See Costco, supra.
  55. 28 C.F.R. §36.302(c)(6), 28 C.F.R. § 35.136(f) (2002).
  56. 28 C.F.R. §36.302(c)(2(i)-(ii), 28 C.F.R. §35.136(b)(1)-(2) (2002).
  57. 28 C.F.R. §36.302(c)(3), 28 C.F.R. §35.136(c) (2002).
  58. See Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004) (rejecting argument that dog barking during performance was sufficiently disruptive).
  59. Allergies of other patrons do not rise to this level. See Lockett v. Catalina Channel Express, 496 F.3d 1061 (9th Cir. 2007).
  60. In re Kenna Homes, 557 S.E.2d at 798.
  61. Id. at 797.
  62. Overlook Mutual Homes,Inc. v. Spencer, 2011 WL 285253, *9-10, slip op. (6th Cir. Jan. 31, 2011) (unreported); Bhogaita v. Altamonte Heights Condo. Assn. Inc.,  2012 WL 1051 (M.D. Fla. 2012).
  63. Dubois v. Ass'n. of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2005).
  64. Storms v. Fred Meyer Stores Inc., 120 P.3d 126, 129 (Wa. 2005).

Samuel J. Gowin SAMUEL J. GOWIN practices in Chattanooga and is a graduate of the University of Georgia School of Law. He previously worked as an electrical engineer in the nuclear power and custom machinery fields after graduating from the Georgia Institute of Technology. Gowin primarily represents and advises banks, small businesses in litigation and families in probate issues.