Category Archives: Advanced Legal Research

ALR Student’s Corner: North Carolina Corporation Law and Practice Forms

Practice Forms provide law students and attorneys with practical advice on various procedural aspects of litigation. Form books supply attorneys with the boiler-plate language that is standard for a particular legal form. The attorney can then use this language when drafting a business form and can fill in the specific information related to his client’s company. Many times they give step-by-step instructions and other useful tools that both save the attorney time and aid him in drafting legal documents. The form book, North Carolina Corporation Law & Practice Forms by James Snyder, Jr. (Thompson/West, 2003), does all of these same things for various business entities across the business cycle, from starting up to winding down.

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For the past year, I’ve been interning at a company’s legal department. I love working in the corporate realm and plan to continue to pursue a career in corporate law. Accordingly, I chose North Carolina Corporation Law & Practice Forms because I thought it would be helpful to have a solid understanding of corporate practice forms – not only for my current internship, but also for my future legal career.  This form book is divided into the following three chapters: 1) Business Corporations, 2) Incorporation, and 3) Other Business Entities. The back of the book also contains the following three appendices – Comparison of Forms of Entity – Nontax and Tax Considerations Matrices, Incorporating Your Business in North Carolina, and Nonprofit Corporations. The book begins with a detailed table of contents, and the back pocket contains a cumulative supplement that was issued in December 2011. The supplement contains updates for the first and third chapters of the book.

Chapter One: Business Corporations is divided into 141 subtopics and their corresponding forms, listed and organized chronologically by the events in a corporation’s life, beginning with an Agreement to Incorporate.  Chapter 2: Incorporation is divided into the categories Business and Nonprofit Corporations and Nonprofit Corporations. Each category is further divided into different subtopics, beginning with incorporation and ending with merger and dissolution. This helps the attorney select the form pertinent to her client’s transaction. Chapter Three: Other Business Entities is divided into the following eight categories: 1) Limited Liability Companies, 2) Limited Partnerships, 3) Limited Liability Partnerships, 4) Registered Limited Liability Limited Partnerships, 5) Professional Corporations, 6) Professional Limited Liability Companies, 7) General Partnerships, and 8) Cooperative Associations. These categories are further divided into 73 different subtopics; an organization, seen throughout the resource, which helps the attorney locate the right form for his client’s business entity and tailor it toward the particular facts of the transaction.

North Carolina Corporation Law & Practice Forms can be found on WestlawNext by drilling down in accordance with the following navigational path: “Browse: All Content” > “Secondary Sources” > “North Carolina” > “Forms” > “North Carolina Corporation Law & Practice Forms.”  It can also be located in the Charlotte School of Law library in the “Reference: Carolinas” section by using the following call number: KFN7613.A65 S69 2003.

To demonstrate how easy it is to search and navigate this form book, let’s conduct a hypothetical search.  Suppose I needed to look for a standard form for the Articles of Dissolution for a Limited Liability Company.  Having drilled down to North Carolina Corporation Law & Practice Forms on WestlawNext, I am ready to search within the resource.  Relevant search strings might be “articles of dissolution limited liability company;” “articles of dissolution” & “limited liability company;” or “articles of dissolution.”  The result page from each search string returns the correct form for the Articles of Dissolution for a Limited Liability Company in North Carolina, specifically § 3:18 Articles of Dissolution.  But, it’s worth noting that the more specific search string – the second one that made use of the connector “&” – returned more top results that were the most relevant. § 3:18 Articles of Dissolution includes such information as the name of the company, date of the filing of the Articles of Organization, reason for dissolution, effective date, and signature of the person filing the form. Having located the right form, I can appropriate much of the boiler-plate language and fill-in only the information specific to my client’s business or transaction.

North Carolina Corporation Law & Practice Forms is an extremely useful resource for corporate attorneys who need to quickly find the correct form to address their business clients’ various transactional needs.

~ Rebecca Reynolds, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Admissibility of Evidence in North Carolina

Does “Admissibility of Evidence in North Carolina” Pass the Relevancy Test?

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The Overview

The Admissibility of Evidence in North Carolina, part of the North Carolina Practice Series, contains practical information about the admissibility of evidence, witness testimony, hearsay, authentication, and other overlapping considerations.  The target audience of this practice guide is trial attorneys.  It is updated annually so that it may continue to comprehensively cover the most important evidentiary topics in North Carolina.

The topics are further divided into subtopics throughout each of the 27 chapters.  The subtopics enable a trial attorney to find exactly what he or she is looking for with ease.  The Admissibility of Evidence in North Carolina is available in print, as well as, electronically on WestlawNext.

To gain access to the practice guide on WestlawNext, first, look under the “All Content” tab on the homepage.  Next, click the link for “Secondary Sources.”  This will open a new screen, which arranges secondary sources by type, state, and topic.  Under the “By State” category, click on the “North Carolina” link.  The link accesses secondary sources that pertain to North Carolina.  Under the category titled “Texts & Treatises,” click on the link for “North Carolina Texts & Treatises.”  The link will access texts and treatises pertaining to North Carolina.  On the “North Carolina Texts & Treatises” page, there is a link to the Admissibility of Evidence in North Carolina practice guide.  Selecting it takes you to its table of contents.

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The practice guide has one general index and table of contents.  The index highlights ten sections of evidentiary subjects, from abuse of hearings to affidavits.  When accessing any of these sections, a trial attorney will find the relevant evidentiary rule, a brief explanation of the rule, as well as, cited case law.  If a trial attorney is trying to challenge the admission or exclusion of evidence, the cited case law is helpful in trial preparation.  The cited case law also enables a trial attorney to see how another attorney argued an evidentiary rule and how the court ruled on that argument.  This helps a trial attorney better prepare his or her case and devise a litigation strategy.  So, even though there are no sections in Admissibility of Evidence in North Carolina dedicated to forms, practice tips, or step-by-step litigation strategies, the abundant annotations to relevant case law more than compensates.

The Search    

To test the reliability of the Admissibility of Evidence in North Carolina, I decided to do a search on hearsay exceptions.  I used the following search string to access the exceptions: hearsay /s except!  The search turned up 58 results that address hearsay exceptions.  The search results identified each chapter and title and previewed the relevant section from each.  Having this information enables a trial attorney to select the appropriate result without having to scavenger hunt for it.

For example, if a trial attorney is trying to get clarification of the rule for “Ancient Documents” under the hearsay exception, the attorney will find the information under § 17.3.  Accessing § 17.3 provides a link to the North Carolina evidentiary rule—N.C.R. Evid. 803(16)—that corresponds to the hearsay exception for ancient documents.  Also, under the same section, there is a link to N.C.R. Evid. 901(b)(8), which addresses the requirement of authentication or identification (see below).

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The practice guide synthesizes the rule related to ancient documents and hearsay and provides case law and statutory authority that supports the rule.  The annotations allow a trial attorney to expand his or her research with still more, relevant primary authority binding in North Carolina.

As a future trial attorney in North Carolina, I see Admissibility of Evidence in North Carolina becoming an invaluable resource as I tackle evidentiary issues, devise litigation strategies, file motions and submit arguments before the court on behalf of a client.  Therefore, I highly recommend this practice guide to trial attorneys in North Carolina because it passes the relevancy test.

~ Shernika Smith, L’16 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: North Carolina Real Estate with Forms

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Introduction

The real estate industry is broken down into two broad categories:  commercial real estate (i.e. office buildings, retail buildings) and residential real estate (i.e. single family, multi-family).  In 2013, within the Charlotte area alone, there were over 35,000 residential property transactions.  In many commercial and residential transactions, a broker is involved and there are standard forms approved by state associations, such as the North Carolina Association of Realtors and the North Carolina Bar Association, used in the transaction.  There are also many times when buyer or seller’s counsel will draft the necessary documents for the transaction.  Law firms generally have “go-by’s” which are standard templates that provide boilerplate language that serve as a starting point for transactions.  However, if you are practicing on your own and do not have a library of go-by’s, a practice guide is a great place to get both comprehensive coverage of a topic, as well as, forms to serve as the basis for your transaction.

About North Carolina Real Estate with Forms

North Carolina Real Estate with Forms (Thompson/West, 2012) by Edmund T. Urban, A. Grant Whitney, Jr. and Nancy Short Ferguson contains two volumes and is organized to parallel the process of the real estate transaction from the purchase or sale to closing and recording.  The last update from 2012 is contained in a supplement in the back of Volume 1 and a separate supplement for Volume 2.

Volume 1 covers the various aspects of commercial and residential real estate sales contracts and options, and includes an extensive amount of information on real estate title searches and examinations and special considerations in the closing process.  Additionally, Volume 1 includes a Summary of Contents and a Table of Contents for both volumes, which is helpful to determine where your broad topic or subtopic may be located within the two volume series.

Volume 2 continues with its coverage of title searches and examinations and concludes with a comprehensive overview of the closing process and required documents.  Additionally, Volume 2 includes two tables and an index.  The first is a Table of Laws and Rules, which points to federal and state statutes and treatises and lists their location within the series.  The second is a Table of Cases.  The cases are arranged alphabetically, and the table lists their location within the series.  Finally, Volume 2 includes a detailed Index.  The Index is more comprehensive than the Summary and Table of Contents.  For instance, if you were looking for a form for the rescission of a mortgage and relying on only the Table of Contents, you would be hard pressed to determine the relevant chapter and title.  However, the Index lists the topics “Rescission” and “Mortgages and Deeds of Trust,” which also has the subtopic “Rescission,” both of which lead to the relevant chapter and title, specifically Chapter 21: Defects, Liens, and Encumbrances.

Each chapter in North Carolina Real Estate with Forms lists the forms available for each represented topic.  It is important to check the most current supplement for updates to the forms.  For example, the Offer to Purchase and Contract Form 2-T was completely revamped in 2011 as North Carolina moved to being a due diligence state for residential property purchases.  But, the 2009 edition of this Practice Series includes the OLD Form 2-T, while the new Form 2-T is included in the 2012 supplement.

North Carolina Real Estate with Forms can be found in the “Reference: Carolinas” section at the Charlotte School of Law library with the following call number: KFN7526.U73. More information about this title and other titles in the North Carolina Practice Series can be found by searching the Charlotte School of Law library catalog with the search string “north carolina practice series,” or by visiting the library’s LibGuides, specifically the North Carolina Legal Research LibGuide.

Conclusion

North Carolina Real Estate with Forms is a valuable practice series for any attorney involved in a commercial or residential real estate transaction.  The series gives a comprehensive overview and consideration of each aspect of the law that could impact the real estate transaction.

~ Traci Belk, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Thorp’s North Carolina Trial Practice Forms

It’s your first day on the job as a licensed Attorney.  You spent three, grueling years in law school, worked hard, and passed the bar exam.  A client walks into your office needing assistance with obtaining emergency custody of her child.  You know you need to file an ex parte motion.  You break out your handy dandy Federal Rules of Civil Procedure, ready to get to work.  As someone who did well in Family Law, you feel competent enough to take on this case.  Nonetheless, you quickly enter panic mode after realizing that you know the law, but not how to draft the motion.  Your boss won’t return to the office for several hours, and time is of the essence.  Where do you turn for assistance?  Thorp’s North Carolina Trial Practice Forms (7th ed. 2013) of course!

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The trial practice forms in this resource follow the same structure as the Federal Rules of Civil Procedure.  Where multiple subsections of rules apply, the forms are listed under each relevant subsection of those rules.  Rules are divided into five basic areas:  Pleadings and Motions, Parties, Discovery, Trials, and Judgment.  The appropriate form in Thorp’s can be located via the general index or the table of contents which organizes the forms according to the following topics in civil procedure:

  • Commencement of action
  • Process
  • Service and filing of pleadings
  • Pleading special matters
  • Defenses and objections
  • Counterclaim and cross-claim
  • Third-party practice
  • Amended and supplemental pleadings
  • Parties
  • Joinder
  • Interpleader
  • Class actions
  • Intervention
  • Substitution of parties
  • Depositions
  • Discovery

The text of the rules is included immediately before the forms and provides the “law behind the forms.”  Thorp’s also includes practice notes, as well as, expert insight into the forms, rules from a practitioner’s standpoint, and research references to additional materials.  Keep in mind that, while Thorp’s is an excellent source for trial practice forms and is updated by annual supplements between editions, it is not a one-stop-shop, meaning that additional, independent research is necessary to understand the applicable statutes, update the notes of decisions, and locate any additional treatises on North Carolina civil practice and procedure.

How do you go about accessing this resource you ask?  Well, there are many ways.  First, used copies are available from Amazon for about $75.00, and new copies with an accompanying CD-ROM, from Thomson Reuters for $493.00 (updates cost an additional $28.00 per month). Or, the electronic version of the form book is available on WestlawNext.  To locate, type the title in the universal search box and, once “Thorp’s North Carolina Trial Practice Forms” populates in the suggestion box below, select the form book (note: make certain to check the “Show Suggestions” box beforehand).  Finally, don’t forget the free print option:  Thorp’s is located in the “Reference: Carolinas” section at the Charlotte School of Law library; the call number (KFN7930.A65 T48) is accessible via the library catalog with the following search string: “trial practice forms.”

I found Thorp’s to be extremely beneficial.  However, I do think it might be more helpful were it to include more indices – such as one organized by cause of action.  For instance, in the cause of action for an Absolute Divorce, the following forms are necessary:  Civil Action Cover Sheet, Civil Summons, Complaint, Verification, Motion Cover Sheet, Motion for Summary Judgment, Certificate of Absolute Divorce Form, and a Judgment of Divorce Form.  Although Thorp’s includes the aforementioned documents, a new Attorney might find a checklist that includes these items more helpful.

Thorp’s North Carolina Trial Practice Forms is an invaluable resource – it shows practitioners and law students the appropriate format and content pieces (i.e. terms of art, clauses, other specific language) of a multitude of legal documents.  Although practice materials and form books such as Thorp’s are necessary for the actual practice of law, they are not substitutes for thorough research of the applicable statutes and common law.

~ Brooke McIntosh, L’14 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy

Introduction

A legal treatise is a scholarly legal publication that contains in-depth information related to a particular area of law. Legal treatises are authoritative secondary sources written by scholars for the purposes of providing practitioners with a “framework of analysis” and offering annotations to primary authority that stand for the rule of law.  For these reasons, treatises are great starting places for any research project.  Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy (6th edition, West) (herein referenced as Shuford) by Alan D. Woodlief, Jr., Associate Dean for Admissions and Administration and Associate Professor of Law at Elon University School of Law, is one such treatise to reference when looking for detailed information concerning the practice of civil law in North Carolina.

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About Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy

Shuford is a single-volume practice guide that explains and analyzes application of the North Carolina Rules of Civil Procedure. Each chapter corresponds to a particular rule of civil procedure and includes the text of the rule, an explanation of its application, interpretation of the rule by the appellate court and research references that expound on the rule. The book is divided into two parts: Part I contains Civil Procedure and Part II contains Appellate Advocacy.   This latter section is fairly new and addresses the evolving needs of attorneys by helping them to “synthesize the overlapping rules, statutes, and case law that govern North Carolina appellate practice.”  As more attorneys take-on appellate work, this guide will help them understand and navigate appellate practice.

The annotations to case law, located in the footnotes, separate Shuford from being a mere recitation of the rules of civil procedure. Relevant case law and statutory authority provide deeper insight and context to each rule and its application. Additionally, the footnotes point the practitioner to trends in the field, while also providing comparisons between the state and federal rules of civil procedure.  However, a research tool missing from Shuford are checklists which provide the practitioner with guidance for filing motions and other court documents and proceeding with discovery.

The print version of Shuford is located in the “Reference: Carolinas” section at the Charlotte School of Law library; the call number (KFN.7930.S53) can be accessed via the library catalog with the search term, “Shuford.”  The catalog additionally provides a link to the electronic version of Shuford on WestlawNext.  To access the resource on WestlawNext, drill down in accordance with the following navigational path: “Browse: All Content” > “Secondary Sources” > “North Carolina” > “Texts & Treatises” > “Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy.”

How to Search Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy

To demonstrate how easy and helpful this practice guide is, let’s conduct a hypothetical search.  Suppose you were looking for the appropriate form to commence a negligence action on behalf of a client.  Upon consulting the detailed table of contents, you see that “Chapter 3: Commencement of Action” discusses when a complaint is deemed filed and an action commenced.  There, you cull a better understanding of the requisite steps for the commencement of an action and find the appropriate forms, which, as per your client, is §84.3 – Complaint For Negligence.  This particular form, like the others, shows practitioners and law students the appropriate format and content pieces (i.e. terms of art, clauses, other specific language) of a multitude of legal documents.  To access this same form on WestlawNext, drill down to Shuford, select “Part I: Civil Procedure,” and then search within that part with the following search string: complaint /3 negligence.

Conclusion

Shuford North Carolina Civil Practice and Procedure with Appellate Advocacy is a great secondary source for gaining in depth knowledge, annotations, and forms related to the rules of civil practice and procedure in North Carolina.

~ Latoya Gardner, L’15 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: Elements of Civil Causes of Action in North Carolina

I can only imagine what life will be like as a practicing attorney, and when I do, it often makes me nervous because work and life will be busy considering it takes a lot of commitment and excellence to stay abreast of the law which is ever changing.  But then I discovered Elements of Civil Causes of Action in North Carolina (2nd ed. 2014) by Douglas Scott MacGregor and Alyssa Rosen and published by the North Carolina Bar Association Foundation.

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This single-volume, annotated resource relieves my anxiety because, like most other practice guides, this one is put together by lawyers for lawyers to use in practice.  So, the practice guide does much of the early research for you, explaining the rule of law and any applicable exceptions in clear, concise language and offering annotations to relevant case law and statutory authority.  Elements of Civil Causes of Action in North Carolina covers 38 of the most frequently filed causes of action in North Carolina, breaking each down according to definitions, elements, defenses and remedies.  I dream that my class outlines could be as well organized as this resource.  It is important to note that this resource exists only in print; there is no electronic version.  The print version of Elements of Civil Causes of Action in North Carolina can be located in the “Reference: Carolinas” section at the Charlotte School of Law library; the call number (KFN7933 .M33 2014) can be accessed via the library catalog with the following search string: “elements north carolina.”

Using the table of contents is the quickest and most efficient way of navigating to a particular cause of action as each is presented in its own chapter.  At the end of each chapter, endnotes provide additional references to journal articles, cases, and statutes that provide background information about the particular cause of action and the legal authority that stands for the rule of law.  Chapter titles include such causes of action as assault, battery, infliction of emotional distress and negligence.   At first glance, this is a clear throwback to Torts class, but other “non-doctrinal torts” are also covered such as the cause of action called “wrongful conception, wrongful birth and wrongful life,” also known as prenatal torts.

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I had never heard of wrongful conception, wrongful birth and wrongful life, but learned from Elements of Civil Causes of Action in North Carolina that the Court of Appeals first recognized the tort in 1986.   These types of cases are usually brought by the parents of a child whose physician negligently performed an abortion or sterilization procedure or by a couple whose physician or pharmacist negligently performed a vasectomy or improperly filled a birth control prescription.  These prenatal torts are generally brought under a plaintiff’s medical malpractice claim, and the North Carolina Supreme Court has established that, to state a claim for malpractice, the plaintiff must establish the following: 1) there was a duty; 2) there was a breach of that duty; and 3) damages or injuries proximately resulted from that breach.

If you are ever working through a fact pattern that involves the alienation of affection, neglect, wrongful birth, or a similar tort, take the time to review Elements of Civil Causes of Action in North Carolina, a great resource to use when becoming familiar with an unfamiliar area of law.

~ Raeneice Taltoan, L’16 ~

 Class Advisor – Cory M. Lenz, Esq.

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ALR Student’s Corner: North Carolina Law of Damages

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What is North Carolina Law of Damages?

North Carolina Law of Damages (5th edition) is a two-volume, annotated practice guide for attorneys practicing in North Carolina. It provides a wide-range of information on damages as they pertain to such legal topics as criminal proceedings, hospital liens, personal injury, fraud and deceit, wrongful death, family torts, estates, and statutory penalties. These diverse topics represent a mere fraction of the information available in North Carolina Law of Damages, making it an enormously valuable resource for attorneys researching the law of damages in North Carolina as it applies to a multitude of civil law issues.

This practice guide is exceptionally well organized; topics are broken down further into concise sub-topics, 269 in total. Part I (Damages, Generally) contains 12 chapters and 88 subtopics, while Part II (Damages Relating to Particular Subject Areas) contains 26 chapters and 181 subtopics. This organization provides an extremely user-friendly way of searching for almost any information about damages in North Carolina.

How to Locate North Carolina Law of Damages

To locate the electronic version of the practice guide on WestlawNext, type the title in the universal search box and, once “North Carolina Law of Damages” populates in the suggestion box below, select the practice guide (note: make certain to check the “Show Suggestions” box beforehand). From there, you can choose Part I for general information on damages or Part II for more specific information on damages relating to a particular subject.  The electronic version of the practice guide might also be accessed on WestlawNext by drilling down in accordance with the following navigational path: “Browse: All Content” > “Secondary Sources” > “North Carolina” > “Texts & Treatises” > “North Carolina Law of Damages.”

The print version of the practice guide is available at the Charlotte School of Law library; the call number (KFN7595 .W66 2004 v.1) can be accessed via the library catalog with the following search string: “north carolina damages.”  The practice guide can also be purchased for $312.00 with monthly updates costing $27.00.

How to Search North Carolina Law of Damages

To demonstrate how easy and helpful this practice guide is, let’s conduct a hypothetical search.  Let’s say that a client has come to you after a trial judge set aside a jury verdict awarding him $10,000 in compensatory damages and $50,000 in punitive damages. To advise your client, you decide to determine whether the damages are considered excessive under North Carolina law. This is a more general topic, so you consult Part I of North Carolina Law of Damages. From the table of contents, you decide “Chapter 7: Amount of Damages” seems relevant to your client’s issue, and even more so, the subtopic below, “§ 7:4 – Excessive or inadequate damages.” Turning to that section in the volume, you learn the trial judge has discretionary power to set aside an award of damages if she believes that the damages are excessive or inadequate and given under the influence of passion or prejudice, or if the evidence is insufficient to justify the verdict. This does not provide much guidance as to whether your client’s award of damages might be considered excessive. However, § 7:4 goes on to state that a ruling by the trial judge on the issue of damages is within her discretion and will not be set aside except upon a showing of abuse of discretion. You can now advise your client appropriately, and you have North Carolina Law of Damages to thank for it.

~ Michelle Abbott, L’15 ~

 Class Advisor – Cory M. Lenz, Esq.

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