What options does the losing party have?

  1. addition to seeking a judgment notwithstanding the verdict as discussed above, the losing party may also ask the court to throw out the verdict and order a new trial on grounds that the verdict was against the weight of the evidence; that serious errors or other misconduct were committed by the judge; that there was serious misconduct on the part of a juror, lawyer, witness or party; that the verdict was too large; or that vitally important evidence that could not have been discovered before the end of the trial has only now been discovered. If these “new trial” motions do not succeed, the party may choose to appeal the verdict to an appellate court.

How can a party appeal an adverse judgment?

  1. The losing party (or a prevailing party contending that it was awarded insufficient damages) may seek review of the trial court’s judgment in a higher court. In the federal system, the party will appeal to the court of appeals in the appropriate circuit.
    In those states that have an intermediate appellate court, parties challenging trial court decisions generally must bring their appeal to the intermediate court first. For virtually all criminal appeals, the intermediate appellate court must accept the case because the court’s jurisdiction is mandatory. However, because intermediate appellate courts often have some limited discretion to determine which civil cases they will hear, not all civil appeals will necessarily be accepted, in which case the lower court’s verdict will stand.
    The most common exception to this pattern of review occurs in death penalty cases. In all instances, death-penalty appeals bypass the state’s intermediate appellate court and go directly to the state’s court of last resort. In the twelve states without intermediate appellate courts, civil and criminal litigants bring their appeals directly to the court of last resort.

How do appellate courts work?

  1. An appellate court typically concerns itself solely with issues of law. An appeal is not the time to retry the case or to reargue the facts. Instead, in an appeal, the “appellant” must persuade the court to “reverse” the trial court’s judgment because of some significant legal errors that occurred during the trial which could have skewed the result, such as evidence improperly admitted or excluded, or the judge instructing the jury to apply an incorrect interpretation of the law. The “appellee,” on the other hand, will seek to persuade the court that no such errors were made in the lower court or that, if there was an error, it was “harmless” because it did not affect the outcome. A transcript of the district court proceedings, together with all of the original papers and exhibits, will be forwarded to the court for consideration in deciding the appeal.

What is oral argument?

  1. to oral argument, the judges who will hear the case read the briefs. The judges also examine the record compiled in the trial court. At oral argument the judges will listen to the arguments of the attorneys for the parties and may question the attorneys about the case and how the law should be applied to the case. Typically each side is allotted one half hour in which to orally present its case. However, an appellate court is free to grant more or less time, based on the significance or complexity of the case. After oral argument, each judge votes on whether to affirm or reverse the trial court’s judgment, in whole or in part. The court then issues a written opinion explaining its decision. As a general rule, the parties will not know the outcome of the case until the written opinion is released.
    An appellate court is not required to hear oral argument in any case. Thus, the court may issue a decision or summary order based solely on its review of the record and the written briefs that present the arguments of the parties in detail. As a general rule, however, appeals cases are scheduled for oral argument. If the case is before an intermediate appellate court, the argument will be heard by a panel of three judges. However, in certain important cases before an intermediate court, the oral argument will be heard “en banc,” that is, heard by all of the judges of the court. (Oral arguments before the United States Supreme Court and state supreme courts are en banc.)

Must an appellate court reach a unanimous decision?

  1. No. The judge or judges who disagree with the majority’s result may write a dissent to explain their disagreement. If a judge agrees with the result reached by the majority but disagrees with its explanation of why the law compelled that result, he or she may write a separate opinion “concurring” in the judgment.

What recourse is there for the party who loses at the intermediate appellate level?

  1. He or she now can seek review in the highest court in the system. In the federal system, of course, that court is the Supreme Court of the United States. In addition to the decisions of the United States Courts of Appeal, the United States Supreme Court has the jurisdiction, but not the obligation, to review the final decisions of state supreme courts (or even of lower state courts if the party was unable to secure additional review within the state courts) so long as the case is the sort of case described in Article III of the U.S. Constitution and was not decided on “adequate and independent state grounds.” When the U.S. Supreme Court declines to hear a case, which it does in the vast majority of cases that are presented to it, the decision of the lower federal or state court remains the last word on the matter.

How does the U.S. Supreme Court decide whether to hear a case?

  1. In the usual course, a party seeking review in the U.S. Supreme Court will file a petition asking the Court to issue a “writ of certiorari.” This petition will include a copy of the lower court’s opinion in the case and a brief stating why the Court should agree to review it. The “respondent,” who typically does not wish the Court to hear the case because he or she is satisfied with the opinion by the court of appeals, may file a brief in opposition to the petition. The Court will then either deny the petition (its action in most cases) or grant it, and command the federal or state court to transmit the record of the case to the U.S. Supreme Court for its review. In his book The Supreme Court: How It Was, How It Is (Morrow and Co., NY 1987), Chief Justice Rehnquist describes the process of selecting which petitions to grant as being influenced by the justices’ views on three major factors: whether the lower court’s opinion is in conflict with the opinions of other courts; the general importance of the case; and whether the lower court’s decision may be wrong in light of the U.S. Supreme Court’s previous opinions.

What is the effect of granting certiorari?

  1. If a writ of certiorari is granted, the case will be set for briefing and oral argument in much the same way it was in the intermediate court of appeals. If the Court reaches the “merits” of the case (that is, the ultimate issues), its decision will be binding, final and the law of the land. Frequently, however, the Court will “remand” the case back to the lower court with instructions that the court reconsider its earlier opinion in light of the Supreme Court’s clarification of how the relevant constitutional or statutory provisions should be applied and interpreted.

What is the effect of denying certiorari?

  1. In a civil case, the opinion of the trial court or, if there was an intermediate appeal, the opinion of the appellate court stands as the final judgment and the case will be over. If certiorari was sought from a decision in a criminal case, however, the unsuccessful petitioner may have one more avenue to pursue. \r\n Federal courts have the power to issue writs of habeas corpus to permit prisoners to challenge their convictions as having been wrongfully obtained in violation of the U.S. Constitution. Thus, if a state criminal defendant has “exhausted” his state remedies by seeking review in both the state intermediate court of appeals and state supreme court (and perhaps even through the state version of habeas corpus), the U.S. Supreme Court’s denial of certiorari does not foreclose the prisoner from obtaining another round of review in the federal court system through the writ of habeas corpus. This is so because the U.S. Supreme Court’s denial of certiorari is in no way a ruling on the merits of the case, but merely a “decision not to decide” the case.

Arrest and Interrogation

When do the police need a warrant to make an arrest?

  1. As long as the police have good reason (called “probable cause”) to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
  2. The exception? There are few places where the adage “a man’s home is his castle” still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense — such as a simple assault — and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

If I’m arrested, do the police have to ‘read me my rights’?

  1. No. However, if they start questioning you but haven’t read you your rights, they can’t use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
    • You have the right to remain silent.
    • If you do say anything, what you say can be used against you in a court of law.
    • You have the right to consult with a lawyer and have that lawyer present during any questioning.
    • If you cannot afford a lawyer, one will be appointed for you if you so desire.
    • If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
  2. It doesn’t matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.

Expand Will a judge dismiss my case if I was questioned without a Miranda warning? Will a judge dismiss my case if I was questioned without a Miranda warning?

  1. No. Many people mistakenly believe that a case will be thrown out of court if the police fail to give Miranda warnings to the arrested person. What Miranda actually says is that a warning is necessary if the police interrogate a suspect and want to use any of her responses as evidence. If the police fail to give you a Miranda warning, nothing you say in response to the questioning can be used as evidence to convict you. In addition, under the “fruit of the poisonous tree” rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial. For example, if you tell the police where a weapon is hidden and it turns out that you gave this information in response to improper questioning, the police will not be able to use the weapon as evidence unless the police can prove that they would have found the weapon without your statements.

What’s the best way to assert my right to remain silent if I am being questioned by the police?

  1. If you’re taken into custody by the police, you don’t have to use any magic words to let police officers know that you want to remain silent. You can simply say nothing in response to police questions. Or, after an officer gives you a Miranda warning, you can stop the questioning by saying something like:
    • I want to talk to an attorney.
    • I won’t say anything until I talk to an attorney.
    • I don’t have anything to say.
    • I don’t want to talk to you anymore.
    • I claim my Miranda rights.
  2. If the police continue to question you after you have asserted your right to remain silent, they have violated Miranda. As a result, anything you say after that point — and any evidence gleaned from that conversation — will not be admissible at your trial.

How heavy-handed can the police get when asking questions?

  1. Information that you voluntarily disclose to a police officer (after you have been properly warned) is generally admissible at trial. The key word is “voluntary.” Police officers are not allowed to use physical force or psychological coercion to get you to talk to them. The days of the rubber hose, protracted grilling under bright lights, and severe sleep deprivation are pretty much over. If police officers obtain information through any of these illegal means, the information cannot be used by the prosecutor at trial. In addition, under the rule known as “the fruit of the poisonous tree,” any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
  2. Defendants often claim that police officers coerced them into talking. And it’s just as common for police officers to say that the defendants spoke voluntarily. If the police physically coerce a defendant into talking, the defendant can support his coercion claims with photos of marks and bruises. But actual police brutality is unusual, and a defendant cannot usually offer independent evidence to support his claims of psychological coercion. Judges, believing that defendants have a greater motivation to lie than do police officers, usually side with the police and conclude that no coercion took place.

Can a person who is charged with a crime be forced to give bodily samples?

  1. Yes. You might think that being forced to give bodily samples — such as blood, hair, or fingernail clippings — is a violation of the U.S. Constitution’s protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.

I was pulled over at a roadblock and asked to wait and answer a police officer’s questions. Is this legal?

  1. Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and minimize any inconvenience to you and the other drivers. The police can’t single out your car at a roadblock unless they have good reason to believe that you’ve broken the law.

What is Asbestos

What is asbestos?

  1. Asbestos is a mineral that is mined, in a manner similar to other minerals such as iron, lead, and copper. There are many varieties of asbestos: the three most common are chrysotile, amosite, and crocidolite. Unlike most minerals, which turn into dust particles when crushed, asbestos breaks up into fine fibers that are too small to be seen by the human eye. Often, individual fibers are mixed with a material that binds them together, producing asbestos containing material (ACM).

How long has asbestos been in use?

  1. Asbestos was first used in the United States in the early 1900′s, to insulate steam engines. After World War II, and for the next thirty years, people who constructed and renovated schools and other public buildings used asbestos and asbestos-containing materials (ACM) extensively. ACM’s were used primarily to fireproof, insulate, soundproof, and decorate buildings. The Environmental Protection Agency (EPA) estimates there are ACM’s in most of the nation’s approximately 107,000 primary and secondary schools, and 733,000 public and commercial buildings.

How many products contain asbestos?

  1. One study estimated that 3,000 different types of commercial products once contained asbestos. The amount of asbestos in each product varied from as little as one percent to as much as 100 percent. Many older plastics, paper products, brake linings, floor tiles and textile products contain asbestos, as do many heavy industrial products such as sealants, cement pipe, cement sheets, and insulation. The law now prohibits the manufacture, processing and importation of most asbestos products.

Why was asbestos so widely used?

  1. Manufacturers and builders found asbestos useful for a variety of reasons. It is strong yet flexible, and it will not burn. It conducts electricity poorly, but insulates effectively. It also resists corrosion. Few other available substances have all of these qualities.

How are people exposed to asbestos?

  1. When asbestos fibers are in the air, people may inhale them. Because asbestos fibers are small and light, they can stay in the air for a long time, and are not easily detected. People whose work brings them into contact with asbestos — workers who renovate buildings with asbestos in them, for example — may inhale fibers that are in the air. This is called occupational exposure. Workers’ families may inhale asbestos fibers released by clothes that have been in contact with ACM. This is called paraoccupational exposure. People who live or work near asbestos- related operations may inhale asbestos fibers that have been released into the air. This is called neighborhood exposure.

What is mesothelioma?

  1. Mesothelioma is a disease in which cells in the lining of the chest or abdominal cavities become abnormal and divide without control or order. They can invade and damage nearby tissues and organs. Cancer cells can also metastasize (spread) from their original site to other parts of the body. Working with asbestos is the main risk factor for mesothelioma. A history of asbestos exposure at work is reported in about 70 percent to 80 percent of all cases.

Are there any OSHA standards that cover workers exposed to asbestos as part of their jobs?

  1. Yes. The Occupational Safety and Health Administration (OSHA) has three standards to protect workers from exposure to asbestos in the workplace: one regulates construction work, including alteration, repair, renovation, and demolition of structures containing asbestos; another covers asbestos exposure during work in shipyards; and the third applies to asbestos exposure in general industry, such as exposure during brake and clutch repair, custodial work, and manufacture of asbestos-containing products.

Do current OSHA standards require employers to provide education and training for employees exposed to asbestos?

  1. Yes. In the construction and shipyard industries, employers must provide education and training for employees exposed above a permissible asbestos exposure limit (PEL), and for all employees involved in certain identified work classifications. In general industry, employers must provide training to all employees exposed above PEL’s. Employers must also provide asbestos awareness training to employees who perform housekeeping operations covered by OSHA standards. Employers must place warning labels on all asbestos products, containers, and installed construction materials when feasible.

What if OSHA regulations do not apply to my workplace?

  1. The Environmental Protection Agency’s “Worker Protection Rule” extends standards implemented by the U.S. Occupational Safety and Health Administration (OSHA) to state and local employees who perform asbestos work, and who are not covered by OSHA Asbestos Standards or a state OSHA plan. The Worker Protection Rule parallels OSHA requirements and covers medical examinations, air monitoring and reporting, protective equipment, work practices, and record keeping. In addition, many state and local agencies have more stringent standards than those required by the federal government.

Is there a medical test that will show whether I’ve been exposed to asbestos?

  1. Chest x-rays cannot show asbestos fibers, but can detect early signs of certain lung diseases. Other tests, such as lung function tests and high resolution CT scans, can also detect changes in the lungs caused by asbestos. These changes usually are not detectable until years after exposure.

How can I identify materials that contain asbestos?

  1. Unless a material is labeled, it is difficult to determine whether it contains asbestos simply by looking at it. If you have any doubts about the material, you should treat it as if it contains asbestos, or have it sampled and analyzed by a qualified professional. A professional should take samples for analysis, because there may be an increased health risk if fibers are released.

How can I identify materials that contain asbestos?

  1. Unless a material is labeled, it is difficult to determine whether it contains asbestos simply by looking at it. If you have any doubts about the material, you should treat it as if it contains asbestos, or have it sampled and analyzed by a qualified professional. A professional should take samples for analysis, because there may be an increased health risk if fibers are released.

Auto Dealer Fraud

What is ‘auto dealer fraud’?

  1. “Auto dealer fraud” is a term that describes deceptive and unlawful practices used by automobile dealers, at almost any stage of the vehicle purchase process — from advertising, to negotiation of vehicle pricing and financing terms. Examples of auto dealer fraud include “bait and switch” advertising practices, deceptive inflation of vehicle prices, and failure to disclose information about a vehicle.

How does a ‘bait and switch’ occur?

  1. In most states, car dealers must disclose whether a used vehicle has incurred significant damage in an accident, has been designated “salvaged”, or has been flood-damaged.

What kinds of things must used car dealers disclose about a used vehicle that is being offered for sale?

  1. In most states, car dealers must disclose whether a used vehicle has incurred significant damage in an accident, has been designated “salvaged”, or has been flood-damaged.

What is a mileage ‘rollback’?

  1. A form of auto dealer fraud, a “mileage rollback” or “odometer rollback” occurs when the odometer of a used vehicle (which indicates the total miles the vehicle has been driven) is altered (or “rolled back”) to display a number that is lower than the vehicle’s actual mileage.

How do auto dealer fraud cases differ from Lemon Law cases?

  1. Although both involve motor vehicles, auto dealer fraud cases are very different from Lemon Law cases. In auto dealer fraud cases, improper tactics used by a car dealer during the vehicle sale process are the focus, while lemon law cases arise from problems or defects with the vehicle itself.

Should I contact the dealer if I feel that a car salesman committed fraud when I bought a car?

  1. You may be required to do so. In many states, you (or your attorney) must contact the auto dealer and give them an opportunity to correct the problem to your satisfaction, before taking any legal action for possible auto dealer fraud. This contact should be in writing, and should clearly illustrate both the problem (i.e. the dealer’s failure to disclose certain financing charges), and what steps you would like the dealer to take to resolve the problem (i.e. a partial refund of the vehicle purchase price).

Can I file a lawsuit for auto dealer fraud?

  1. In most cases, yes. If you recently purchased a vehicle and you suspect that the dealer may have committed fraud in the sales process, you may want to speak with an experienced Auto Dealer Fraud Attorney. An Auto Dealer Fraud attorney will evaluate all aspects of your case and explain all options available to you — including filing a lawsuit for your damages — and will work with you to ensure the best possible outcome for your case. Remember that in some states, you are required to contact the dealer and give them an opportunity to correct the problem before you take any legal action.

Aviation Accidents

Who can be held responsible to the injured parties in an aviation accident?

  1. Potentially liable parties vary depending on the cause of the accident. The owner and operator of the aircraft certainly may be liable if the cause can be traced to human error. Manufacturers or maintenance suppliers may be liable when circumstances of the accident indicate that an engineering or mechanical failure may be to blame.

Can the owner/operator be held criminally liable for an aviation accident?

  1. Both the federal government and individual states can impose criminal sanctions in cases involving aviation accidents. Although the classifications and details may vary among them, most states impose criminal sanctions on aviators for reckless conduct that leads to injury, death, or property damage. The difficulty in prosecuting these cases lies in differentiating between cases of criminal negligence and mere accidents.

What is the ‘statute of repose’ in an aviation accident case?

  1. In the context of aviation litigation, a “statute of repose” limits the time a lawsuit may be filed with regard to how long an airplane or part has been in service. The applicable time period varies depending on where the suit is filed (state, federal, or international court).

What is the FAA?

  1. The Federal Aviation Administration (“FAA”) is the element of the U.S. government that is primarily responsible for the safety of civil aviation. It is separate from, and independent of, the National Transportation Safety Board (“NTSB”).

What is the NTSB?

  1. The National Transportation Safety Board (“NTSB”) is an independent federal agency charged with investigating every civil aviation accident in the United States. Its jurisdiction also includes trains and other vehicle accidents. The NTSB issues safety recommendations aimed at preventing future accidents, maintains the government’s database on civil aviation accidents, and conducts special studies of transportation safety issues of national significance.

What is GARA?

  1. GARA, the General Aviation Revitalization Act of 1994, is a “statute of repose”. GARA was designed to protect manufacturers of smaller, private aircraft (less than 20 seats) from liability for accidents involving older airplanes and/or parts. GARA bars lawsuits against the manufacturer of an aircraft or component part once that item has been in service for 18 years. GARA does not apply if the aircraft was engaged in scheduled carrying of passengers, or air medical services operations at the time of the accident.

What are the most common causes of aircraft accidents?

  1. The most common causes of aircraft accidents include:
    • Pilot Errors
    • Faulty Equipment
    • Violation of FAA regulations
    • Structural or design problems with an aircraft.
    • Flight service station employee negligence.
    • Federal air traffic controllers’ negligence.
    • Third party’s carrier selection negligence.
    • Maintenance or repair of the aircraft or component negligence.
    • Negligence in fueling the aircraft.

Do the same laws apply to commercial aircraft and private aircraft?

  1. No. General aviation law applies to all aircraft other than those operated by airlines or the military. Commercial airlines and military carriers are subject to different legal standards.

Bankrupcy Law Changes

What is the new bankruptcy law, and when did it take effect?

  1. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a major reform of the bankruptcy system, was passed by Congress and signed into law by President Bush in April 2005. The majority of changes instituted by this new law took effect on October 17, 2005 (180 days after the law was signed), although a few changes took effect immediately after the legislation was signed by the President.

Does the new law make it more difficult to file for bankruptcy under Chapter 7?

  1. Under the new bankruptcy law, as of October 17, 2005 bankruptcy applicants who wish to file under Chapter 7 must meet certain eligibility requirements under a “means test.”
  2. Under the “means test,” if your current monthly income is less than the median income in your state, you can file for bankruptcy under Chapter 7. But if your current monthly income is above the median income in your state, and you can afford to pay $100 per month toward paying off your debt, you cannot file under Chapter 7 and must proceed under Chapter 13 (more on Chapter 13 in the next section). Whether you can afford to pay $100 per month (or $6,000 over a five-year period) is based on a formula that includes your monthly income, your expenses, and the total amount of your debt.

I want to file for bankruptcy, but I have not paid taxes for the past few years. Can I still file?

  1. Since the new law went into effect on October 17, 2005, people wishing to file bankruptcy under Chapter 7 or Chapter 13 must now show proof of their income by providing federal tax returns from the last tax year. If a bankruptcy filer has not paid taxes for the previous tax year, he or she must do so before the bankruptcy can proceed.

Is it true that people who want to file for bankruptcy now need to go through some type of credit counseling?

  1. Yes. As of October 17, 2005, before filing for bankruptcy most applicants must undergo credit counseling in a government-approved program. Also, after the conclusion of bankruptcy proceedings, but before any debt can be discharged, bankruptcy debtors must participate in a government-approved financial management education program. You can get more information on pre-filing credit counseling and debtor education (and lists of approved counseling and debtor education agencies) from the U.S. Trustee Program (a component of the Department of Justice responsible for overseeing the administration of bankruptcy cases).

If I file for bankruptcy, can my landlord still evict me from my apartment?

  1. People who file for bankruptcy are entitled to certain immediate protections from certain legal actions — part of what is called the “automatic stay” effect of a bankruptcy filing, because many potential legal actions against the filer are stopped (known as “stayed” in legal terms). But as of October 17, 2005, when the new bankruptcy laws took effect, some of these protections have been eliminated. One key change is that filing for bankruptcy no longer delays or stops eviction actions.

Birth Injuries

What’s the difference between a birth defect and a birth injury?

  1. Birth injuries are generally caused by something that went wrong during child delivery itself, while birth defects usually involve harm to a baby that arose prior to birth, due to something that happened during or before the pregnancy.

What kinds of situations give rise to a lawsuit for birth injuries?

  1. Most of these cases occur when a doctor fails to adequately assess or respond to conditions and complications during a woman’s pregnancy or delivery, or when a woman takes a prescription drug during pregnancy that causes harm to the baby.

Will a lawsuit always be successful if a baby is harmed through a birth injury?

  1. No. Some birth defects (or injuries) are unavoidable. The key question is whether medical providers and/or a pharmaceutical company failed to give you or your baby adequate medical care or medication advice during pregnancy and/or delivery.

What is medical malpractice?

  1. Medical malpractice is negligence committed by a professional health care provider–a doctor, nurse, dentist, technician, hospital or hospital worker–whose performance of duties departs from a standard of practice of those with similar training and experience, resulting in harm to a patient or patients. The profession itself sets the standard for malpractice by its own custom and practice.

How common are birth injuries?

  1. It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth.

In a lawsuit for birth injury, how does a jury determine if a doctor’s actions were within the standards of good medical practice?

  1. A jury will consider testimony by experts–usually other doctors, who will testify whether they believe your physician’s actions followed standard medical practice or fell below the accepted standard of care. A specialist, like an obstetrician, is held to a higher standard of care–that of a specialist–than would be expected of a non-specialist. I’ve heard about “teratogens” causing birth defects. What are they?
  2. A teratogen is a chemical or agent that causes birth defects in a child. A number of drugs have been found to be teratogens, and many of these were initially meant to aid a woman’s pregnancy. These include Delalutin, a drug administered to pregnant women for the prevention of miscarriages, and Bendectin, a medication given to pregnant women, to fight nausea.

How common are birth defects?

  1. Estimates are that 7% of all babies are born with a birth defect or irregularity, from very minor to severe.

As a birth defect (or injury), what is cerebral palsy?

  1. Cerebral palsy is the generic term for a number of disorders affecting a baby’s brain function and body movement. Cerebral palsy can be the result of an injury to a baby’s brain in the womb, during delivery, or some time after birth. It can also be caused by a lack of oxygen flow to a baby’s brain during delivery.

Who will receive money after a successful lawsuit for a birth defect (or injury)?

  1. If a living child suffers harm due to an avoidable birth injury, damages awarded as part of a successful lawsuit will typically go to the child, sometimes in the form of a trust. Parents can receive compensation for emotional distress damages in some situations.

Buying a Home

How do I begin negotiations to buy a home?

  1. Negotiations are handled in various ways in different parts of the country. Typically, most transactions begin with negotiation over price, although other items such as date of possession may also be negotiated. The real estate agent will provide a form, usually called a contract to purchase or, simply, a real estate contract. In any case, this is a formal, written offer that conveys your terms to the seller. If you intend to have the home inspected, it should include an inspection rider; if you intend to apply for a mortgage, it should include a mortgage-contingency clause; if your attorney has not reviewed the contract, it should include an attorney-approval rider. In other words, it should cover the basics. Remember, once both parties sign this document, it is legally binding.
  2. The offer should specify a date after which it is no longer valid. This may be as little as 24 hours from the time the seller or the seller’s agent receives it. The offer to purchase also is usually valid only if both the buyer and seller sign it within a certain time period. As a general rule, an earnest money deposit of perhaps $500 or $1,000 accompanies the offer to purchase. Often this is the start of negotiations. The offer to purchase may be passed back and forth between the buyer and seller before being accepted by both. Remember, however, that both parties must initial any changes agreed to during negotiations. Once you have agreed on terms, you will want to arrange for a home inspection and review the document with your attorney if, as noted above, you included these riders in your offer. In most cases, you will not want to apply for financing until the home inspection is completed and satisfactory. In some areas, the purchase contract will include all provisions of the transaction; in other areas, another document will be drawn up by the buyer or the seller that covers such items as conveyance of title, provision for insurance, etc. In either case, you will want your attorney to make sure that the final document covers all aspects of the sale.

Who is involved in a real estate transaction?

  1. Although it’s possible for a home to be bought and sold strictly between principals the buyer and seller this rarely happens today. Usually, a homebuyer will want to use the services of a real estate agent, an attorney, and a home inspector to check out the property. To obtain financing, homebuyers will consult the staff of one or more lending institutions. They also may consult with a financial planner or accountant about financing and an insurance agent to obtain homeowner’s insurance.
  2. While some sellers choose to sell their home without the services of a real estate agent, few would forego the services of an attorney once an purchase offer has been made. The seller also may turn to a financial planner or accountant for assistance in sorting out the tax consequences of selling.What happens at the closing?

What are some financial aspects of the closing?

  1. At the time of closing, the seller and buyer will total up various credits in order to determine how much money the buyer must pay. The seller will receive credits for such items as fuel on hand (such as oil in the home heating tank), unused insurance premiums, prepaid interest, and escrow deposits for insurance, taxes, and public utility charges such as water and sewer fees. These credits also will include any other items prepaid by the seller that will benefit the buyer.
  2. The buyer normally will receive credits for such items as the earnest money deposited and taxes or special assessments that the seller has not paid. The settlement sheet also will specify who is responsible for the payment of various expenses. These will include the sales commissions and the costs of the title search, inspections, recording fees, transaction taxes, and the like. The allocation of such expenses will depend on the terms of your contract as well as the law and customs in your area. Your real estate agent or attorney should advise you ahead of time of how much money you will need at the closing. Typically, you will be required to have a certified check in the amount required to meet these expenses.
  3. The chart below by no means exhausts the list of fees that might be charged at closing. Other common fees include: loan origination fee to cover the lender’s administrative costs in processing the loan; credit report fee; lender’s appraisal fee; mortgage insurance application fee; mortgage insurance premium; and hazard insurance premium. Buyers also may have to put money into escrow to assure future payment of such recurring items as real estate taxes. Also, there often are separate document fees that cover the preparation of final legal papers such as the promissory note and mortgage or deed of trust.

What is the purchase contract?

  1. The purchase contract may be called a sales contract, real estate contract, purchase agreement, sales agreement, or purchase and sale agreement. Whatever it is called, it is a legal document that, when signed by both parties, is a legal contract that will govern the entire transaction. Before signing such a contract, you will want to review it carefully and have your attorney review it. Remember, once signed, you are obligated to fulfill your part of the contract.

What are the key provisions of the purchase contract?

  1. A purchase contract, in most cases, is a standard form contract with any necessary riders attached. The contract can include many provisions but should include the following items:
    • the date of the contract;
    • the purchase price of the home;
    • amount of the down payment;
    • all items to be included in the sale such as wall-to-wall carpeting, window treatments, appliances, or lighting fixtures;
    • any items to be excluded from the sale such as an heirloom chandelier;
    • the date when the deed will be transferred (or the closing date);
    • a mortgage contingency clause if the buyer intends to apply for a loan. This states that the buyer intends to obtain a loan in a specified amount at a specified interest rate within a specified period of time. If the buyer is unable to obtain financing, the buyer may be released from his obligation. The seller usually allows the buyer 30 to 60 days to obtain a loan commitment.
    • an inspection rider. This allows the buyer to have the home inspected, usually within 10 days of the date of the contract. If the inspection is unsatisfactory, the buyer ordinarily is released from the contract. However, the buyer may not be released if the contract allows the seller to make repairs and the repairs, when made, meet applicable standards of workmanship.
    • an attorney-approval rider for both the buyer and the seller if either or both parties are signing the contract before it is reviewed by their respective attorneys;
    • a legal description of the property;
    • provision that the seller will provide good title to the home or what is sometimes called marketable title. Generally, the seller fulfills this obligation by providing an abstract of title, certificate of title, or a title insurance policy. This indicates that the seller has the authority to sell the home. In some states, for example Connecticut, the seller is required to deliver good title, which the buyer is expected to verify, at his or her own expense, by securing an abstract of title, certificate of title, or a title insurance policy. If the buyer encounters problems in establishing title, he or she can reject the title at closing.
    • any restriction or limitations that could affect title;
    • provision for paying utility bills, property taxes, and similar expenses through the closing date;
    • provision for return of the buyer’s earnest money deposit if the sale is not completed as, for example, when the buyer has been unable to obtain financing after reasonable or good faith efforts to do so;
    • provision for taking possession. Along with a firm date for transferring possession from the seller to the buyer, the buyer should include a provision that requires the seller to pay a specific amount of rent per day if the seller does not leave the home by the agreed date. If the buyer and seller already know that possession will be delayed, the buyer may ask for a certain amount of money to be held in escrow at the closing to cover the rent for the expected time period.
    • provision for a walk-through inspection within a specified period before the date of closing to allow the buyer to make sure conditions are as they should be according to the contract;
    • terms of any escrow agreement;
    • provision for who is responsible for maintaining insurance until the closing. The Uniform Vendor-Purchaser Risk of Loss Act applies in some states, which means that the seller assumes the risk of loss until either the transfer of title or possession. In some states, the common law requires the seller to assume this risk.
    • signatures of the parties.

What is a mortgage-contingency rider?

  1. This common provision allows the buyer a certain period of time to obtain a commitment for financing at a specified interest rate for a certain amount of money. It usually lasts for 30 to 60 days, depending on the average time needed to obtain a loan commitment.
  2. The clause might read, for example, that the contract is contingent on the buyer obtaining approval for a 30-year mortgage for $100,000 at no more than eight percent interest within 45 days. For additional protection, the buyer might specify the type of loan he or she prefers, for example fixed or variable.
  3. A mortgage-contingency rider provides critical protection to the buyer. For example, it allows the buyer to void the purchase contract without penalty in those cases in which the buyer is unable to obtain financing on the terms specified in the contract after making a reasonable or good faith effort to do so within the time provided. Because this type of clause favors the buyer, some real estate agents suggest that the buyer obtain “pre-qualification” from a lender, which gives the seller a degree of confidence that the buyer will not use the clause to void the contract unless some extraordinary circumstance arises.
  4. The seller may refuse to agree to a mortgage-contingency rider. This can and does happen in a very hot seller’s market, in which case, there is not much the buyer can do. But the absence of a mortgage-contingency rider might mean that the buyer will be forced to finance his or her home purchase at an unfavorable interest rate. Because of this risk, buyers should be cautious about signing a purchase contract that does not contain this clause.

What does an inspection rider provide?

  1. The inspection rider is a very important safeguard for the buyer. Two types are commonly used. The first gives the buyer the right to have the property inspected by a professional home inspector of the buyer’s choice and at the buyer’s expense. If the inspector finds defects, the buyer has the right to cancel the contract within a specified time. This type of rider raises some of the same issues as an unrestricted attorney-approval rider, since inspectors often find problems in homes. Thus, it can give buyers a few extra days to decide whether they want to follow through with the purchase.
  2. The second type of inspection rider gives the seller time to either repair any problems uncovered by the inspection or agree to reduce the selling price contained in the contract by the cost of repairs. If a seller opts to do nothing, he or she must inform the buyer. Unless the buyer and seller can come to terms based on the buyer’s inspection report, the buyer can cancel the contract and seek return of any earnest money previously paid.
  3. Some people prefer the first inspection rider described above. Although it is open to occasional abuse by fickle buyers, its simplicity generates fewer back-and-forth discussions between the buyer and seller. If there is a serious problem and the seller really wants to sell, the parties usually can make a new deal.
  4. Still, the choice is yours. Just remember that a real estate purchase contract is no different in principle than any other contract its terms are negotiable. By using properly drafted riders, you may quickly turn a form contract into one that deals with your personal concerns.

What is an attorney-approval rider?

  1. One common rider makes the purchase contract subject to approval by the buyer’s and seller’s respective attorneys within a short period of time, usually five to ten days after acceptance of the offer. In such cases, the standard contract form should include the phrase, “Subject to the Approval of the Attorneys for the Parties Within Days,” with the number of days written in. Without such a condition in the contract, both the seller and the buyer are bound by the terms of the contract, which may be unclear or may differ from the parties’ intent.

What is ‘earnest money’?

  1. When the buyer signs the offer to purchase, the buyer usually deposits a sum of money with the seller, the seller’s real estate agent, or the seller’s attorney. Your offer should specify that the earnest money deposit will be placed in an interest bearing account with the interest credited to the buyer.
  2. Earnest money is not the same thing as the buyer’s down payment although, if the sale goes through, it will be applied to the down payment. Earnest money symbolizes the buyer’s commitment to take the necessary steps to complete the purchase, for example obtaining a loan. Thus, if a prospective buyer does little or nothing to complete the sale, he or she risks losing the earnest money deposit.

Car Accidents

What if I was not wearing a seat belt at the time of my accident? Can I still recover damages?

  1. It depends on the state in which the accident occurred. In some states, not buckling up can negate or reduce any potential compensation for damages, on the basis that people suffer more severe injuries when not wearing seat belts. In other states, this is not the case. Your attorney can tell you what the law is in your state, and will argue for your right to recover damages.

Should I release my medical records to another driver’s insurance adjuster?

  1. Definitely not. Medical record releases should only be signed under limited circumstances and after consulting with a qualified personal injury trial lawyer. If your medical information gets into the insurance adjuster’s hands, it could hurt your case.

If I file a personal injury claim, will I have to go to court?

  1. If another driver’s insurance company agrees to pay what your attorney believes your case is worth, and you wish to settle for that amount, then your case will not go to court. This is what happens in most situations. Some cases do require a formal trial proceeding, however. In either situation, hiring a law firm with experience in handling personal injury cases is critical.

If I don’t feel injured after an automobile accident, do I have to see a doctor?

  1. Both you and your passengers should consider seeing a doctor after an accident. The doctor may recognize injuries, sometimes serious, that are not apparent to you. The charges for a doctor visit and medical treatment may be covered by your insurance. It is not recommended that you settle claims from an accident until a doctor has seen you and advised you about the extent of your injuries.

What if I believe the accident I was in was at least partly my fault?

  1. You are probably not in the best position to assess how or why the accident happened. Defective equipment in your vehicle, a malfunctioning traffic signal, or another driver’s intoxication are among many possible causes of an accident, which your attorney can investigate and evaluate. Accepting blame and apologizing to another driver may be used as evidence against you at trial. Leave it to a judge or jury to decide who is at fault.

Can I still win my case if my memory of the accident now conflicts with things I might have said at the time of the accident?

  1. It’s very common for people to say things at the time of an incident that they later realize were inaccurate. Sometimes, a witness may misstate what you said about how the incident took place. You might have a hard time explaining how it is that you now remember things differently than you did at the time of the incident, but if you consult with an attorney, he or she will have experience handling such a situation, and can help find support for your side of the story.

I was in a car accident and the air bags in my car didn’t deploy. Do I have a case against the car manufacturer?

  1. That depends, as there are several factors that dictate whether an air bag will deploy in a collision. You should consult with an attorney, who will investigate the airbag devices in your car and determine, with the assistance of an engineer, the circumstances under which the airbags were supposed to deploy. If the circumstances of your accident were such that the airbags should have deployed, you very well may have a product liability claim against the manufacturer.

Change your Name

I just don’t like my birth name and I want to change it. Can I choose any name I want?

  1. There are some restrictions on what you may choose as your new name. Generally, the limits are as follows:
    • You cannot choose a name with fraudulent intent — meaning you intend to do something illegal. For example, you cannot legally change your name to avoid paying debts, keep from getting sued or get away with a crime.
    • You cannot interfere with the rights of others, which generally means choosing the name of a famous person with the intent to mislead. For example, most judges will not approve your renaming yourself George Bush or William (Bill) Clinton unless you have a convincing reason not related to the famous politicians.
    • You cannot use a name that would be intentionally confusing. This might be a number or punctuation — for example, “10,” “III,” or “?.”
    • You cannot choose a name that is a racial slur.
    • You cannot choose a name that could be considered a “fighting word,” which includes threatening or obscene words, or words likely to incite violence.
  2. Minnesota’s Supreme Court once ruled that a man who wanted to change his name to the number “1069″ could not legally do so, but suggested that “Ten Sixty-Nine” might be acceptable (Application of Dengler , 287 NW2d 637 (1979)).

Do I have to file forms in court to change my birth name?

  1. In theory, no. In all but a handful of states, common law legal principles allow you to legally change your name by usage only. A name change by usage is accomplished by simply using a new name in all aspects of your personal, social and business life. No court action is necessary — it costs nothing and is legally valid. (Minors and prison inmates are generally exceptions to this rule.)
  2. However, practically speaking, in the post-9/11 world, you will probably need an official court document to get government agencies and many key private organizations, such as banks and title companies, to accept your new name. Because many people and agencies do not know that a usage name change is legal and are worried about identity theft, they may insist on seeing something in writing signed by a judge. Also, you will need a formal order signed by a judge in order to change certain types of identification, such as a new passport, birth certificate attachment and Social Security card. The only exception to this is when you change your name because you get married, in which case a copy of your marriage license should be enough to get your identification documents changed.
  3. Even if name changes under the usage method are legal in your state, you will usually be best served to pursue a formal court-ordered name change.
  4. If you are still interested in the usage method to change your name, you can find out whether you can do so in your state or whether your state requires a court order, by contacting your local clerk of the court. Or, if the court clerk doesn’t give you enough information, you can look at your state’s statutes online.

How do I implement my name change?

    1. Whether you have changed your name by usage or by court order, the most important part of accomplishing your name change is to let others know you’ve taken a new name. Although it may take a little time to contact government agencies and businesses, don’t be intimidated by the task — it’s a common procedure.

The practical steps of implementing a name change are:

      • Advise officials and businesses. Contact the various government and business agencies with which you deal and have your name changed on their records. See Changing Identification and Records, below.
      • Enlist help of family and friends. Tell your friends and family that you’ve changed your name and you now want them to use only your new one. It may take those close to you a while to get used to associating you with a new sound. Some of them might even object to using the new name, perhaps fearing the person they know so well is becoming someone else. Be patient and persistent.
      • Use only your new name. If you are employed or in school, go by your new name there. Introduce yourself to new acquaintances and business contacts with your new name.

Changing Identification and Records

  1. To complete your name change, you’ll need to tell others about it. Contact the people and institutions you deal with and ask what type of documentation they require to make your name change official in their records. Different institutions will have different rules and forms; a few will only require your phone call or an email. But in our increasingly security-conscious world, most will require special forms, a copy of a court order listing your new name and, in a few instances, even a personal meeting.
  2. It’s generally recommended that you first acquire a driver’s license, then a Social Security card in your new name. Once you have those pieces of identification, it’s usually fairly simple to acquire others or have records changed to reflect your new name.
  3. Here are the people and institutions to notify of your name change:
    • Friends and family
    • Employers
    • Schools
    • Post office
    • Department of Motor Vehicles
    • Social Security Administration
    • Department of Records or Vital Statistics (issuers of birth certificates)
    • Banks and other financial institutions
    • Creditors and debtors
    • Telephone and utility companies
    • State taxing authority
    • Insurance agencies
    • Registrar of Voters
    • Passport office
    • Public Assistance (welfare) office
    • Veterans Administration
  4. If you’ve made a will or other estate planning document (such as a living trust), it’s best to replace it with a new document using your new name. Your beneficiaries won’t lose their inheritances if you don’t, but changing the document now will avoid confusion later.
  5. Finally, remember to change your name on other important legal papers — for example, powers of attorney, living wills and contracts.

What should I do if I have a hard time getting my new name accepted?

  1. Some people and institutions may be reluctant to accept your new name. Just a few years ago, if you lived in a state where no court order was required, you could eventually get your new name accepted simply by being persistent. Today, this approach is unlikely to work, and it will be far more efficient to go to court and obtain a judge’s order establishing your new name. It costs a few dollars in filing fees and will take a little time, but it’s something you can easily handle on your own.
  2. Start by providing documentation that shows both the old and new names. If you’ve recently obtained a passport, it may be helpful because it can show your old name as well as the new name as an AKA (“also known as”).
  3. If you have a court order, you probably won’t have any problem getting your new name accepted. If you have tried to go ahead with the usage method, you may be stonewalled. If that happens, you may want to gently but forcefully give a rundown of state law that supports your position. (You can research the law for your state at your local law library or online. ) If the person with whom you are dealing remains uncooperative, ask to speak to his or her supervisor. You have the legal right to change your name, even if the people you’re dealing with don’t know your rights (although, as we’ve noted, the usage method is pretty much disfavored at this point). Keep going up the ladder until you get results. If you have trouble at the local office of a government agency, contact the main office. If you come up against a seemingly impossible situation, you will probably want to reconsider and get your name changed by filing a court petition.

Commercial Truck Accidents

I’ve read that commercial truck accidents can result in serious injuries. What is a ‘commercial truck’?

  1. A commercial truck is a vehicle used in the course of business and/or for the transport of commercial goods. Examples are eighteen-wheeler tractor trailers, tanker trucks, delivery vehicles, and other large freight trucks.

Why is a traffic accident involving a commercial truck more likely to cause injury than one involving passenger cars?

  1. A typical fully-loaded large commercial truck can weigh 80,000 pounds or more, while an average passenger automobile weighs approximately 3,000 pounds. Due to this size disparity, and the basic laws of physics, any collision between a commercial truck and another vehicle is likely to result in serious, even fatal, injuries.

What are the most common factors in collisions between commercial trucks and automobiles?

  1. Generally speaking, these accidents are caused by a combination of a truck’s characteristics and performance capabilities(including limits associated with acceleration, braking, and visibility) and car drivers’ ignorance as to those characteristics.

I was injured in a crash where a truck driver was at fault. Can I receive money for time I missed at work?

  1. Yes. Your recovery in a personal injury action can include payment for income lost through missed work, and compensation for any loss of earning capacity resulting from the accident.

My daughter’s car collided with a truck that was carrying a hazardous liquid, and she suffered respiratory problems. Can we sue the shipper of the chemicals as well as the truck driver?

  1. In limited circumstances, the shipper of such hazardous materials can be held legally responsible if injuries resulted from the type of cargo on the truck, especially if the shipper failed to advise the driver or the trucking company of the hazardous nature of material contained in the freight.

I’ve heard that it’s dangerous to drive in a truck’s ‘No-Zone.’ What does that mean?

  1. The “No-Zone” refers to the areas behind and beside a commercial truck, where the truck driver has limited or zero visibility: the left rear quarter, the right rear quarter, and directly behind the truck at a short distance.

Can I sue the truck driver’s trucking company for my injuries?

  1. It depends on whether an employment relationship is established between the truck driver and the trucking company. If such a relationship is shown, the company can be held legally liable for the driver’s negligence under a legal theory known as “respondeat superior.” Establishing the liability of a company can become problematic when a truck driver is an independent contractor of the company. In such a situation, the key issue becomes the amount of supervising exercised by the company.

I was involved in a traffic accident where a big-rig ‘jackknifed.’ Can I automatically recover against the truck driver?

  1. Not necessarily. The fact that a truck jackknifes is not in itself proof of operator negligence, because many accident situations present difficulties in which there is no practical way to avoid jackknifing without risking some other catastrophe. For example, operation of a truck that has jackknifed may be held to be non-negligent where the jackknifing was due to unforeseeable slipperiness of the road, or to an abrupt turn undertaken to avoid a motorist or stalled truck.

If I may have been partially at fault for the accident, can I still win the lawsuit?

  1. It depends on the degree of your fault. Under the legal doctrine known as “comparative negligence,” the amount of another party’s liability for the accident is determined by comparing his or her carelessness with your own. That party’s portion of liability determines the percentage of the resulting damages he or she must pay. In most states, you can’t recover anything if your own carelessness was 50% or more responsible for the accident.

Should I meet with an attorney if I feel that I may have a valid legal claim for injuries I suffered in a traffic accident with a commercial truck?

  1. Yes. You should consult an experienced attorney to ensure that your claim is properly assessed and your legal rights to compensation are protected.

Construction Accidents

How do I take steps to assert my rights to a safe workplace?

  1. If you feel that your workplace is unsafe, your first action should be to make your supervisor aware of the danger, then follow up in writing. If you are still unsuccessful in getting the safety hazard corrected, you can file a complaint at the nearest OSHA office. You can refer to OSHA’s website at http://www.osha.gov.

If I’m injured while working on a construction site, can I get more than just workers’ compensation?

  1. Your financial recovery against your employer may be affected by workers’ compensation laws, but remember that other parties may be legally responsible for your injuries, including third-party contractors, property owners, or equipment manufacturers. Your recovery from those parties will not be affected by workers’ compensation laws.

Who is liable if a person is injured by debris from a construction site while walking on a public sidewalk next to that site?

  1. In some circumstances, the injured person will be able to recover damages from the construction company, which has a duty to take reasonable steps to keep public sidewalks near its construction site free from bricks and other debris. If the company fails to remove such obstructions and someone trips and falls, the company may be liable. Construction companies should also tell pedestrians they could get injured if they stray from the sidewalk. Posting a sign is usually not enough. If a company fails to place barriers and warning lamps by a building pit, for example, it may be responsible if anyone falls into it and gets injured.

I was injured while working on a large construction project. Can I sue the person who owns the property?

  1. Depending on the amount of authority over the work that the property owner exercised, and the amount of control he or she had over the property itself when the injury occurred, the property owner may be legally liable for some or all of your injuries.

Are all on-the-job injuries covered by workers’ compensation?

  1. Most are. The workers’ compensation system is designed to provide benefits to injured workers no matter whether an injury is caused by the employer’s or employee’s negligence. But there are some limits. Generally, injuries caused because an employee is intoxicated or using illegal drugs are not covered by workers’ compensation.

What happens during an OSHA inspection?

  1. The OSHA inspector will meet with the employer and explain the nature of the inspection and review employer documents pertaining to workplace injuries and hazards. Then the inspector will “walk-around” the plant and physically inspect the workplace. The employer and a representative of the employees are allowed to accompany the inspector on the walk-around. The inspector will also talk with employees and ask them questions. At the end of the inspection, the inspector will informally tell the employer of any possible violations that may have been uncovered during the inspection.

I was injured on the job, and an investigation showed that my employer violated OSHA regulations. What will this do to support my case?

  1. The answer will depend on whether the violation caused your injury, and where your case is heard. Some courts have held that violation of an OSHA regulation is plain negligence where an injury resulted.

Who is responsible for making sure that the construction site where I work is safe?

  1. The property owner and general contractor (and in some cases sub-contractors) are responsible for ensuring the safety of workers at a construction site. The extent of each party’s responsibility will vary depending on your case.

Should I consult an attorney to discuss my construction injury claim?

  1. Definitely. Your claim may involve complex issues concerning party liability, compliance with safety regulations, engineering, and indemnity. An attorney who is experienced in the area of construction accident liability will make sure that you receive the legal remedy to which you are entitled.

Construction Defects

What is a construction defect?

  1. A construction defect is a condition in your home that reduces the value of the home. Some defects are obvious such as water seepage, but many are less obvious and do not become apparent until years after the home was built.

What causes a construction defect?

  1. A construction defect can arise from a variety of factors, such as poor workmanship or the use of inferior materials. Many arise from a combination of factors, including:
    • Improper soil analysis and preparation
    • Site selection and planning
    • Civil and structural engineering
    • Negligent construction
    • Defective building materials

What are some of the most common types of construction defects?

  1. The most common types of defects involved in litigation include:
    • Mold
    • Water issues
    • Electrical systems
    • Landscaping and soil
    • Faulty drainage
    • Foundation, floor, wall and roof cracks
    • Dry rot
    • Structural failure
    • Heating and electrical

How is a construction defect proved in court?

  1. It depends on the defect. Some defects are obvious and are called “patent”. Other defects are hidden or do not become apparent until years after the home was built. These defects are called “latent”. A successful construction defect litigation claim relies on the testimony of experts who specialize in specific areas of construction. The experts investigate the defect, evaluate the cause and make recommendations for how to remedy the defects.

What kind of damages can be recovered?

  1. It depends on the facts and circumstances of your case, but in general the cost of repairs and the decline in the value of your home may be recovered. Additionally, other recoverable damages might include the loss of the use of property during the repair, the cost of temporary housing, court costs, and in some instances the attorney’s fees if provided for in the contract or by your state’s laws. Of course, any personal injuries resulting from the defect may be recovered. In some instances punitive damages may be assessed against the defendant if the court finds their behavior to be reckless and intentional.

Who pays for the damages?

  1. Typically the defendant’s insurance company that was in effect when the damage was first noticed will be responsible for paying the damages.

Are there any time limits on filing a lawsuit for repairs?

  1. Yes, but it varies by state. Many states have legislation that requires the homeowner or homeowners association to notify the developer or contractor of the defect and give them an opportunity to remedy the damage. Then they can file a lawsuit if the defect is not repaired. The statute of limitations (the time limit for filing a suit) also depends on whether the defect is latent (hidden and not obvious to a reasonable person) or patent (obvious). The shortest time limit is three years from the date the defect is discovered, or should have discovered the problem. Other statues start from the date of completion of the home. It is important to take action immediately if your home has a construction defect.

Who is responsible for construction defects?

  1. There may be several responsible parties, but generally the responsibility will lay with the general contractors, developers, and the builders of residential structures even if the work was performed by subcontractors or if the defective materials used in construction were manufactured by others. Architects, designers and other involved parties may also be defendants in litigation.

Should I make repairs while the lawsuit is pending and can I recover those costs in the lawsuit?

  1. Usually the homeowner or homeowner’s association is required to protect property from sustaining additional damage. Such costs are recoverable in the lawsuit. Failure to perform routine maintenance and reasonable repairs can cause or contribute to additional damages, which could be offset from the owners claim and lead to the defense of “failure to mitigate damages”.

Can I sell my home during a pending lawsuit?

  1. Generally homeowners are allowed to sell their home during the lawsuit but most states have a disclosure law that requires a homeowner to disclose to a potential buyer that the home is involved in litigation.

Debt Collectors

Collection agencies have been calling me all hours of the day and night. How can I get them to stop contacting me?

  1. It’s against federal law for a bill collector who works for a collection agency (as opposed to working in the collections department of the creditor itself) to call you at an unreasonable time. The law presumes that calls before 8 am or after 9 pm are unreasonable. But other hours may be unreasonable, too, such as daytime hours for a person who works nights. The federal Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. � 1692 and following) bars collectors from calling you at work, harassing you, using abusive language, making false or misleading statements, adding unauthorized charges, and many other practices. Under the FDCPA, you can demand that the collection agency stop contacting you, except to tell you that collection efforts have ended or that the creditor or collection agency will sue you. You must put your request in writing.It’s against federal law for a bill collector who works for a collection agency (as opposed to working in the collections department of the creditor itself) to call you at an unreasonable time. The law presumes that calls before 8 am or after 9 pm are unreasonable. But other hours may be unreasonable, too, such as daytime hours for a person who works nights. The federal Fair Debt Collection Practices Act (FDCPA, 15 U.S.C. � 1692 and following) bars collectors from calling you at work, harassing you, using abusive language, making false or misleading statements, adding unauthorized charges, and many other practices. Under the FDCPA, you can demand that the collection agency stop contacting you, except to tell you that collection efforts have ended or that the creditor or collection agency will sue you. You must put your request in writing.

The collections department of a local merchant is harassing me. Can I do anything about it?

  1. Unfortunately, the federal Fair Debt Collection Practices Act (FDCPA) does not apply to the collection department of a creditor (it only applies to outside collection agencies). However, many states have laws on fair debt collection that do cover these collection departments. Check with your state consumer protection office to see if your state law applies to in-house collectors and to find out what types of collection practices it prohibits.

How should I deal with a debt collector who is not abusive?

  1. Unless you’re judgment-proof or truly plan to file for bankruptcy, most credit counselors believe that you shouldn’t ignore your debt or try to hide from a debt collector. Generally, the longer you put off resolving the issue, the worse the situation and consequences will become. Whether you negotiate directly with the collector or obtain a lawyer’s assistance, most counselors feel it is almost always best to talk with the collector and work out a mutually satisfactory arrangement.

A bill collector insisted that I wire the money I owe through Western Union. Am I required to do so?

  1. No, and it could add more money to your debt if you did do it. Many collectors, especially when a debt is more than 90 days past due, will suggest several “urgency payment” options, including:
    • Sending money by express or overnight mail. This will add at least $10 to your bill; a first-class stamp is fine.
    • Wiring money through Western Union’s Quick Collect or American Express’s Moneygram. This is another $10 waste.
    • Putting your payment on a credit card not charged to its maximum. You’ll never get out of debt if you do this.

Can a collection agency add interest to my debt?

  1. Yes. The FDCPA allows a collector to add interest if your original agreement calls for the addition of interest during collection proceedings or the addition of such interest is allowed under state law. Every state authorizes the collection of such interest.

A collection agency sued me and won. What collection measures can it now take against me?

  1. Before obtaining a court judgment, a bill collector generally has only one way of getting paid: demanding payment. This is done with calls and letters. However, once the collector (or creditor) sues you and gets a judgment, the law allows it to take further steps to collect the debt. If you have a job, the collector may try to garnish up to 25% of your net wages. The collector may also try to seize bank or other deposit accounts you have. If you own real property, the collector may record a lien against it, which will have to be paid when you sell or refinance your property. Even if you’re not currently working or have no property, the judgment won’t disappear. Depending on the state, court judgments can last up to 20 years and, in many states, can be renewed for years beyond that.


What is a deed?

  1. A deed is the document that transfers ownership of real estate. It contains the names of the old and new owners and a legal description of the property, and is signed by the person transferring the property.

Do I need a deed to transfer property?

  1. Almost always. You can’t transfer real estate without having something in writing. In some situations, a document other than a deed is used — for example, in a divorce, a court order may transfer real estate from the couple to just one of them.

I’m confused by all the different kinds of deeds — quitclaim deed, grant deed, warranty deed. Does it matter which kind of deed I use?

  1. Probably not. Usually, what’s most important is the substance of the deed: the description of the property being transferred and the names of the old and new owners. Here’s a brief rundown of the most common types of deeds:
  2. A quitclaim deed transfers whatever ownership interest you have in the property. It makes no guarantees about the extent of your interest. Quitclaim deeds are commonly used by divorcing couples; one spouse signs all his or her rights in the couple’s real estate over to the other. This can be especially useful if it isn’t clear how much of an interest, if any, one spouse has in property that’s held in another spouse’s name.
  3. A grant deed transfers your ownership and implies certain promises — that the title hasn’t already been transferred to someone else or been encumbered, except as set out in the deed. This is the most commonly used kind of deed, in most states.
  4. A warranty deed transfers your ownership and explicitly promises the buyer that you have good title to the property. It may make other promises as well, to address particular problems with the transaction.

What’s a trust deed?

  1. A trust deed (also called a deed of trust) isn’t like the other types of deeds; it’s not used to transfer property. It’s really just a version of a mortgage, commonly used in some states (California, for example).
  2. A trust deed transfers title to land to a “trustee,” usually a trust or title company, which holds the land as security for a loan. When the loan is paid off, title is transferred to the borrower. The trustee has no powers unless the borrower defaults on the loan; then the trustee can sell the property and pay the lender back from the proceeds, without first going to court.

What is a contract for deed?

  1. A contract for deed is not really a deed at all. Also known as a “contract of sale,” “land sale contract,” or “installment sales contract,” it’s used when a seller finances a property for a buyer. The contract states that the seller will keep title to the property until the buyer pays off the loan.

Does a deed have to be notarized?

  1. Yes. The person who signs the deed (the person who is transferring the property) should take the deed to a notary public, who will sign and stamp it. The notarization means that a notary public has verified that the signature on the deed is genuine. The signature must be notarized before the deed will be accepted for recording.

After a deed is signed and notarized, do I have to put it on file anywhere?

  1. Yes. You should “record” (file) the deed in the land records office in the county where the property is located. This office goes by different names in different states; it’s usually called the County Recorder’s Office, Land Registry Office, or Register of Deeds. In most counties, you’ll find it in the courthouse.
  2. Recording a deed is simple. Just take the signed, original deed to the land records office. The clerk will take the deed, stamp it with the date and some numbers, make a copy, and give the original back to you. The numbers are usually book and page numbers, which show where the deed will be found in the county’s filing system. There will be a small fee, probably no more than $15 a page, for recording.

Defective And Dangerous Products

What options are available to someone who has been injured by a product?

  1. A person injured by a defective or dangerous product may be able to bring an action for product liability and recover damages under one of the following theories: 1) strict product liability; 2) negligence; or, 3) breach of warranty.

What is strict product liability?

  1. Strict product liability refers to one of the theories under which a plaintiff can proceed when bringing an action based upon an injury caused by a product. In a strict product liability action, a plaintiff can recover damages without showing that the manufacturer or seller of a product was negligent.

How do I know if I can sue based on a product supplier’s breach of warranty?

  1. There are two types of warranties: 1) implied warranties; and, 2) express warranties. You might be able to recover for a breach of an implied warranty if your state has implied warranty statutes, which are usually found in a state’s commercial code and are not specific to particular types of product, but are implied under the law to cover most categories of products. You might recover for a breach of express warranty if the seller or manufacturer of a product expressly extended a warranty to you, in writing or verbally, and the product injured you.

What are implied warranties?

  1. Implied warranties are established by state law, and apply to most products sold within the state. Some examples of implied warranties include the “warranty of merchantability,” and the “warranty of fitness for a particular purpose.” In essence, these warranties state that a product will be fit and safe for its intended purpose.

Am I protected by implied warranties if the documents that accompanied my product said the manufacturer disclaimed all implied warranties?

  1. There are very specific rules governing how a manufacturer must disclaim any warranties that are implied under state law. Specific, conspicuous language is required. If the manufacturer successfully disclaimed all implied warranties, you cannot recover for a breach such warranties. However, you should not make this determination yourself, but show all documents that came with the product to an attorney, who will know the implications of the language used.

If a seller makes safety modifications to a product model after someone has been injured by that product, can a plaintiff use evidence of the safety modifications in proving a product liability case?

  1. Evidence of subsequent remedial measures cannot be used as evidence of the manufacturer’s negligence, but can be used to show other facts about the manufacturer, like ownership or control over the product’s design.

What does the term ‘product liability’ mean?

  1. Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold to the end consumer.

Can I bring a product liability action if I was injured by a product I borrowed from my neighbor, and did not pay for myself?

  1. Historically, a contractual relationship, known as “privity of contract,” had to exist between the person injured by a product and the supplier of the product in order for the injured person to recover. In most states today, however, that requirement no longer exists, and the injured person does not have to be the purchaser of the product in order to recover.

Disables Access To Buildings

What is a ‘public accommodation’ under the ADA?

  1. Private businesses that provide goods or services to the public are called public accommodations under the Americans with Disabilities Act (ADA). The ADA establishes requirements for twelve categories of public accommodations, including stores and shops, restaurants and bars, service establishments, theaters, hotels, recreation facilities, private museums and schools and others. Nearly all types of private businesses that serve the public are included in the categories, regardless of size.

Is a business automatically required to remove ‘barriers’ to access under the ADA?

  1. If a business provides goods and services to the public, it is required to remove barriers to access if doing so is readily achievable. Such a business is called a public accommodation because it serves the public. If a business is not open to the public but is only a place of employment like a warehouse, manufacturing facility or office building, then there is no requirement to remove barriers. Such a facility is called a commercial facility.

How do I determine what is ‘readily achievable’ for a business?

  1. “Readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. Determining if barrier removal is readily achievable is, by necessity, a case-by-case judgment. Factors to consider include:
    • 1) The nature and cost of the action;
    • 2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;
    • 3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
    • 4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
    • 5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

If an area of a store is reachable only by a flight of steps, is the owner required to add an elevator?

  1. Usually no. A public accommodation generally would not be required to remove a barrier to physical access posed by a flight of steps, if removal would require extensive ramping or an elevator. The readily achievable standard does not require barrier removal that requires burdensome expense. Thus, where it is not readily achievable to do so, the ADA would not require a public accommodation to provide access to an area reachable only by a flight of stairs.

Are restaurants required to have menus in Braille?

  1. No, not if waiters or other employees are made available to read the menu to a blind customer.

Is a clothing store required to have price tags in Braille?

  1. No, not if sales personnel can provide price information orally upon request.

Do businesses need to rearrange furniture and display racks?

  1. Possibly. For example, restaurants may need to rearrange tables and department stores may need to adjust their layout of racks and shelves in order to permit access to wheelchair users.

Do businesses need to install elevators?

  1. Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.

When barrier removal is not readily achievable, what kinds of alternative steps are required by the ADA?

  1. Alternatives may include such measures as in-store assistance for removing articles from inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry cleaning. Only readily achievable alternative steps must be undertaken.


Do the anti-discrimination laws protect only women and minorities?

  1. No. The anti-discrimination laws protect all workers from employment decisions based on protected status. Thus, if an employer pays a female worker better wages than a male worker performing the same job, that employer has discriminated against the male worker based on his sex in violation of Title VII. Similarly, if an Asian-American worker who misses three days of work is suspended but a Caucasian worker who misses three days of work is fired, then the Caucasian worker has been discriminated against based on his race.
  2. Discrimination Based on Race
  3. Federal law forbids job discrimination because of race. Executive Order 11246 also requires that employers doing business with the federal government not discriminate because of race and take affirmative steps to hire and promote racial minorities. Most states and many local governments have laws prohibiting racial discrimination in employment. These laws protect all races, including African-Americans, Hispanics, Asians, Native Americans, and Caucasians.

How do I know if an action is discriminatory in violation of the law?

  1. First, not all discriminatory actions are forbidden by law. The law only prohibits discrimination when it is based on a person’s protected status–race, color, religion, national origin, sex, age or disability under federal law.
  2. Thus, if an employer makes a decision because of an employee’s race, that employer has engaged in prohibited discrimination. Paying a worker lower wages than other employees because that worker is an African-American black violates Title VII. But paying a worker lower wages than other employees because that worker is performing different kinds of job duties does not violate Title VII. The question is whether the reason for the difference in treatment is based on the employee’s protected status. Different treatment based on protected status is called intentional discrimination or disparate treatment.
  3. Title VII also prohibits conduct that has the effect of discriminating against individuals in a protected class even if the employer’s reason for the different treatment is not based on protected class. For example, an employer may decide to hire only applicants who do not have custody of preschool age children. On its face the reason for the employer’s hiring decision is not a protected class reason. However, the effect of this policy is to disproportionately screen out women applicants as compared to male applicants because more women are custodial parents. This policy, therefore, would have a discriminatory effect, also called adverse impact. Adverse impact discrimination is also forbidden by Title VII unless the employer can prove that the policy is required by business necessity and is significantly related to the requirements of the job.
  4. The ADA defines discrimination not only in terms of disparate treatment and adverse impact but also in terms of a refusal to provide reasonable accommodation to an otherwise qualified individual with a disability.

Seniority Systems and Anti-Discrimination Laws

  1. Bona fide seniority systems are immune from attack under Title VII and the ADEA. A seniority system is bona fide so long as it was not established for the purpose of discriminating against a protected class and is applied equally to all employees covered by the system.
  2. A seniority system that has an adverse impact is considered a bona fide system. Thus, decisions as to who is laid off during a down turn in business based on who has the least seniority are legal, even though all the most recent hires (and therefore all the employees laid off) are female.

Besides hiring, what other aspects of the employment relationship are regulated by the anti-discrimination laws?

  1. The laws regulate all aspects of work, including hiring, firing, promotions, job duties, wages, benefits, and reviews. Generally speaking, the laws do not require an employer to provide specific benefits or to institute job review procedures or to draw up job descriptions. Rather, the employer is allowed to establish its own policies so long as they are applied to all employees in a non-discriminatory manner and so long as the policies do not have the effect of discriminating against a protected class.

What are the major federal anti-discrimination laws?

  1. Title VII prohibits discrimination based on race, sex, color, national origin or religion. The ADEA prohibits discrimination based on age (if over forty). Title I of the ADA prohibits discrimination based on disability.
  2. Almost every state has anti-discrimination laws that mirror the protections found under federal law. Some states also have more expansive protection than federal law, for example, prohibiting discrimination based on marital status, sexual orientation or weight.

Sexual Orientation Discrimination

  1. The meaning of the term “sex” discrimination as used in Title VII refers to gender and does not include discrimination based on sexual orientation. There are some states, however, such as California, Hawaii and Wisconsin, and some cities, such as Chicago, whose anti-discrimination laws prohibit discrimination based on sexual orientation.

What should I do if I think I have been discriminated against in violation of the law?

  1. It is usually a good idea to bring your complaint directly to the attention of the employer and attempt to resolve the problem on an informal basis. The employer may not be aware that there are individuals within its organization who are discriminating, or the employer may want to address your complaint and fix the problem.
  2. If, however, you want to pursue a legal remedy, you should get expert advice and act relatively quickly. Anti-discrimination laws have strict time limits for making a claim. The federal laws require employees to file a complaint first with the EEOC before filing a lawsuit in court. In some circumstances an employee is also required to file a complaint with the state agency charged with enforcing the state anti-discrimination laws.
  3. Lastly, if fired or not hired for discriminatory reasons, you should look for another job. Do so even if it seems that you are entitled to the former job. If you do not actively seek other work, it appears as though you are not seriously interested in employment. This can weaken your claim and may limit any award of back pay.

Time Limits Under Title VII and the ADA

  1. If you have been discriminated against, you must file a charge with the EEOC within 180 days from the date of the discriminatory act. There are regional offices of the EEOC in most major cities in the U.S. There is an exception to this time limit if the discrimination occurred in a state that has a state law prohibiting discrimination. In that case you must first file a charge with the state agency responsible for enforcing the state law. You must give the state agency at least sixty days to investigate your complaint. After sixty days you can then file a charge with the EEOC, but the charge must be filed within 300 days from the date the discrimination occurred or within thirty days after the state agency terminates its proceedings, whichever occurs first.
  2. When the EEOC completes its investigation of the charge, it sends a letter to the person who filed the charge. The letter states whether the EEOC found reasonable cause to believe the law was violated and informs the charging party that he or she has ninety days within which to file a lawsuit in court. This letter is called a “right to sue” letter.

Dog And Animal Bites

If my neighbor’s dog bit me on my property, do I have a legal claim?

  1. It depends on the circumstances. You will need to determine, for example, whether your state imposes “strict liability” on dog owners. If so, you may only need to prove that the dog injured you. If your state does not have a strict liability law, you may need to show that your neighbor knew or should have know of the dog’s vicious propensities before it attacked you.

Can a person bring a legal claim if he or she was bitten by a stray dog? If so, against whom?

  1. Most likely, a person bitten by a stray dog will not have a legal claim. Municipalities are generally not responsible for stray dogs. If, however, a dog is being kept at the local pound and escapes and bites you, you may have a claim against the pound. If you can argue that the pound’s negligence caused your injury, you may be able to recover damages.

Do I have a claim if I went to a house to perform work, and was bitten by the property-owner’s dog?

  1. In most cases, if you are asked into a house (or onto property) to perform work for someone, the person who owns the property has a legal responsibility to take reasonable efforts to protect you from injury. Thus, if the person has a pet, the person might be responsible for keeping the pet away from you, or at least warning you of the presence of the animal. Note that you may also have a workers’ compensation claim against your employer. Because every case is unique, however, you should consult an attorney for further clarification.

A police dog bit me. Do I have a claim?

  1. It depends on the circumstances. Police cannot use unreasonable force when making an arrest or performing any other duty. The improper use of a police dog can constitute unreasonable force. If this was the case in your situation, which is something you should have an attorney help you determine, the police may be required to compensate you for your injuries.

If a dog bit me while I was working, can I file for workers’ compensation?

  1. If the injury occurred during the course of your normal work duties, you will most likely be able to file a claim for workers’ compensation with your employer. In addition to your workers’ compensation claim, if the owner of the dog is not your employer, you may be able to bring a legal claim against that person as well.

My city has a ‘leash law.’ If a dog owner violates this law, is she liable for injuries caused by his dog?

  1. Generally, yes. If an owner violates a leash law, and her dog attacks someone, many courts will hold that this fact alone is enough to conclude the owner was negligent, and that the injured person is entitled to compensation from the dog owner. To determine whether your city or state has a leash law, you should contact a local attorney.

Can a person be imprisoned for keeping a vicious animal?

  1. Yes, there have been numerous instances where people have been criminally convicted for knowingly owning dangerous animals. In some instances, owners have been found guilty of murder when an animal’s attack killed another person. Sentences have ranged from severe fines to significant jail time.

If someone else’s animal kills my pet, do I have a legal claim?

  1. If your pet is injured or killed by another animal, you may be entitled to receive “compensatory” damages. The amount may include the purchase price of a similar pet, registration of a purebred animal, licensing, shots, and training costs. Additionally, if you spent additional money on your pet — other than for normal veterinary bills — you should be compensated for such sums. In some cases, you may be able to receive compensation for mental anguish, loss of the companionship of the pet, and even punitive damages. Because the laws differ in each state, you should check with an attorney for further information.

Drunk Driving

How drunk or high does someone have to be before he can be convicted of driving under the influence?

  1. In most states, it’s illegal to drive a car while “impaired” by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver’s body to prevent him from thinking clearly or driving safely. Many people reach this level well before they’d be considered “drunk” or “stoned.” States vary as to the blood alcohol content (BAC) level that constitutes a DUI (driving under the influence) or DWI (driving while intoxicated).

How can the police find out whether a driver is under the influence?

  1. Police typically use three methods of determining whether a driver has had too much to be driving:
    • Observation. A police officer will pull you over if he notices that you are driving erratically — swerving, speeding, failing to stop or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath or notices slurred words or unsteady movements.
    • Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
    • Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly, by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood, or urine test — others do not. If you test at or above the level of intoxication for your state (.08 to .10 % blood-alcohol concentration, depending on the state), you are presumed to be driving under the influence unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver’s alcohol levels are based on breath or urine tests.

Do I have to take a blood, breath, or urine test if asked to do so by the police?

  1. You may refuse to take a chemical test (blood, breath, or urine), but almost every state has a so-called “implied consent” law, and, under such laws, a refusal can result in suspension of your driver’s license from anywhere between three to 12 months. (This is true even if you’re eventually found not guilty of the current drunk driving charge.) Further, if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn’t take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or stoned.

If I’m stopping for driving under the influence, am I entitled to talk to an attorney before I decide which chemical test to take?

  1. The answer depends on where you live. In California, for example, you don’t have the right to speak with an attorney first. But some states, including Arizona, allow you to talk to your lawyer before you take a chemical test.

If I’m stopped for driving under the influence, can a police officer ask me questions without reading me my rights?

  1. Sometimes. The answer depends on whether or not you are in police custody — that is, whether you are subject to the restraints common to a formal arrest. For example, the U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute “custodial interrogation.” However, once you are arrested — or restrained by the police in a manner consistent with arrest — you must be read your Miranda rights.

I’ve been charged with drunk driving. Should I get a lawyer?

  1. Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving charge, you’re well advised to hire an attorney who specializes in these types of cases.
  2. On the other hand, these days it’s hard to “win” a drunk driving case, assuming the police gathered some physical evidence against you (results of a breathalyzer, blood test, or urine test). And the punishments for DUI are pretty standard. If you were truly guilty, it’s unlikely that a lawyer could get you any better of a deal or plea bargain than you can get for yourself.

I was pulled over at a roadblock and asked to wait and answer a police officer’s questions. Is this legal?

  1. Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and they minimize any inconvenience to you and the other drivers. The police can’t single out your car at a roadblock unless they have good reason to believe that you’ve broken the law.


DUI – The Basics

  1. In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The specific offense may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI). Whatever the specific title, DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:
    • The driver’s ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
    • The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC).

Field Sobriety and Chemical Tests

  1. When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a “field sobriety” test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.
  2. Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person’s physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer’s use of the “horizontal gaze nystagmus” (eye and penlight) test.
  3. Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver’s blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.

Refusing a Chemical Test: ‘Implied Consent’ Laws

  1. All states have “implied consent” laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after DUI test failure. In most states a driver’s refusal to submit to a chemical test may be used to enhance the penalties imposed if he or she is eventually convicted for DUI.

‘Per Se’ and ‘Zero Tolerance’ DUI Laws

  1. All states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) above a set limit. In states like California and New York, this means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.
  2. All states also carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02.
  3. Keep in mind that a driver may still be arrested and convicted for DUI without proof of “per se” intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of DUI if an arresting law enforcement officer testifies that he observed the driver’s vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.

DUI Convictions: Criminal Penalties

  1. A DUI conviction may carry criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each offense thereafter. Severity of criminal penalties will vary according to the circumstances of the offense, including:
    • Whether the driver has a history of DUI violations;
    • Whether the driver was operating a commercial vehicle at the time of the DUI;
    • Whether the DUI violation occurred while there was a child in the vehicle;
    • Whether the DUI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
    • Whether the DUI violation involved a car accident in which property damage occurred;
    • Whether the DUI violation involved a car accident in which another person was injured or killed; and
    • Whether the driver was under the legal drinking age at the time of the DUI violation.

DUI Arrest and Conviction: Driving Privilege Penalties

  1. In addition to potential criminal penalties, a DUI arrest or conviction will have an immediate negative impact on driving privileges.
  2. Most state laws allow a motor vehicle department to immediately suspend the driver’s license of any person operating a vehicle with a BAC above the state limit for intoxication, or any driver who refuses to submit to BAC testing. The driver’s vehicle may also be confiscated or impounded, and the DUI offender will likely incur significant administrative costs. This loss of driving privileges can normally occur even before a DUI conviction. Most states allow a DUI arrestee to obtain a temporary license and request an administrative hearing at which he or she may argue against license suspension, or for restoration of limited driving privileges.
  3. As with criminal penalties, the impact of a DUI arrest or conviction on driving privileges will vary according to the driver’s history of DUI violations and the severity of the offense. An increasingly popular DUI penalty, especially for repeat offenders, is mandatory installation of an “ignition interlock” device on the offender’s vehicle. This breath-testing device measures the vehicle operator’s BAC, and will prevent operation of the vehicle if more than a minimum amount of alcohol is detected, such as BAC level of .02. Where this punishment is utilized, most states require the DUI offender to pay costs of installation, rental, and maintenance of the ignition interlock device. Rental fees alone can amount to as much as three dollars per day, so a DUI offender’s expenses can add up quickly when an ignition interlock device is required.For a state-by-state listing of certain penalties associated with DUI, go here.

Plea Bargains in DUI Cases

  1. Due to recent law enforcement trends that focus on preventing DUI by penalizing offenders harshly, most district attorney offices refuse to negotiate plea bargains in DUI cases. This is especially true if evidence of the violation is strong. In fact, many states have enacted laws that prohibit government attorneys from entering into plea bargains with DUI defendants. However, in rare cases a DUI charge may be reduced to a lesser offense like reckless driving or an “open beverage” violation.

Getting an Attorney’s Help in a DUI Case

  1. If you or a loved one are arrested for DUI, you may need the assistance of an experienced DUI defense lawyer. Unlike civil law cases, in which money or property may be at stake, people charged with DUI may face jail time and driver’s license revocation. A skilled attorney who specializes in defending DUI cases will evaluate all the evidence, including the procedure and results of any field sobriety and chemical tests, to ensure that your legal rights are protected.

How drunk or high does someone have to be before he can be convicted of driving under the influence?

  1. In most states, it’s illegal to drive a car while “impaired” by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver’s body to prevent him from thinking clearly or driving safely. Many people reach this level well before they’d be considered “drunk” or “stoned.” States vary as to the blood alcohol content (BAC) level that constitutes a DUI (driving under the influence) or DWI (driving while intoxicated).

How can the police find out whether a driver is under the influence?

  1. Police typically use three methods of determining whether a driver has had too much to be driving:
    • Observation. A police officer will pull you over if he notices that you are driving erratically — swerving, speeding, failing to stop or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath or notices slurred words or unsteady movements.
    • Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
    • Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly, by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood, or urine test — others do not. If you test at or above the level of intoxication for your state (.08 to .10 % blood-alcohol concentration, depending on the state), you are presumed to be driving under the influence unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver’s alcohol levels are based on breath or urine tests.

Do I have to take a blood, breath, or urine test if asked to do so by the police?

  1. You may refuse to take a chemical test (blood, breath, or urine), but almost every state has a so-called “implied consent” law, and, under such laws, a refusal can result in suspension of your driver’s license from anywhere between three to 12 months. (This is true even if you’re eventually found not guilty of the current drunk driving charge.) Further, if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn’t take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or stoned.

If I’m stopping for driving under the influence, am I entitled to talk to an attorney before I decide which chemical test to take?

  1. The answer depends on where you live. In California, for example, you don’t have the right to speak with an attorney first. But some states, including Arizona, allow you to talk to your lawyer before you take a chemical test.

If I’m stopped for driving under the influence, can a police officer ask me questions without reading me my rights?

  1. Sometimes. The answer depends on whether or not you are in police custody — that is, whether you are subject to the restraints common to a formal arrest. For example, the U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute “custodial interrogation.” However, once you are arrested — or restrained by the police in a manner consistent with arrest — you must be read your Miranda rights.

I’ve been charged with drunk driving. Should I get a lawyer?

  1. Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving charge, you’re well advised to hire an attorney who specializes in these types of cases.
  2. On the other hand, these days it’s hard to “win” a drunk driving case, assuming the police gathered some physical evidence against you (results of a breathalyzer, blood test, or urine test). And the punishments for DUI are pretty standard. If you were truly guilty, it’s unlikely that a lawyer could get you any better of a deal or plea bargain than you can get for yourself.

I was pulled over at a roadblock and asked to wait and answer a police officer’s questions. Is this legal?

  1. Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and they minimize any inconvenience to you and the other drivers. The police can’t single out your car at a roadblock unless they have good reason to believe that you’ve broken the law.

Estate And Gift Tax

Will my estate have to pay taxes after I die?

    1. It depends. The federal government imposes estate tax at your death only if your property is worth more than a certain amount, which depends on the year of death. But all property left to a spouse is exempt from the tax, as long as the spouse is a U.S. citizen. Estate tax is also not assessed on any property you leave to a tax-exempt charity.


Year of Death Exempt Amount
2001 675,000
2002-03 $1 million
2004-05 $1.5 million
2006-08 $2 million
2009 $3.5 million
2010 No estate tax
2011 1 million unless Congress extends repeal
  1. Special rules apply to certain estates that contain family-owned businesses and farms, which may receive a special $1.3 million exclusion from estate tax. The rules for qualifying are complex; consult an estate planning specialist if you’re interested. (This special exemption will become superfluous in 2004, when the individual exemption rises to $1.5 million.)

What are the rates for federal estate taxes?

  1. The rates are steep, starting at 37%. The maximum is 55% for property worth over $3 million. The maximum rate is scheduled to decline gradually to 45% in 2009. There will be no estate tax in 2010, if the current tax law (passed in 2001) is not amended.

Are there ways to avoid federal estate taxes?

  1. Yes, although there are fewer ways Than many people think, or hope, there are. Here are some of the most popular:
    • Tax-free gifts.You can give up to $11,000 per calendar year per recipient without paying gift tax. You can also pay someone’s tuition or medical bills, or give to a charity, without paying gift tax on the amount. This reduces the size of your estate and the eventual estate tax bill.
    • An AB trust. Spouses leave their property in trust for their children, but give the surviving spouse the right to use it for life. This keeps the second spouse’s taxable estate half the size it would be if the property were left entirely to the spouse.
    • A “QTIP” trust, which enables couples to postpone estate taxes until the second spouse dies.
    • Charitable trusts, which involve making a sizable gift to a tax-exempt charity.
    • Life insurance trusts, which let you take the value of life insurance proceeds out of your estate.

Can’t I just give all my property away before I die and avoid estate taxes?

  1. No. The government long anticipated this one. If you give away more than $11,000 per year to any one person or non-charitable institution, you are assessed federal “gift tax,” which applies at the same rate as the estate tax.
  2. Making gifts of less than $11,000, however, can yield substantial estate tax savings if you keep at it for several years. Some other kinds of gifts are exempt from the gift/estate tax as well. You can give an unlimited amount of property to your spouse, unless your spouse is not a U.S. citizen, in which case you can give away up to $101,000 per year free of gift tax. Any property given to a tax-exempt charity avoids federal gift taxes. And money spent directly for someone’s medical bills or school tuition is exempt as well.

Do some states impose death taxes?

  1. A handful of states impose death taxes. These taxes are of two types: inheritance taxes and estate taxes. Inheritance taxes are paid by the people who inherit your property, not your estate. Typically, how much they pay depends on their relationship to you. For example, Nebraska imposes a 15% tax if you leave $25,000 to a friend, but only 1% if you leave the money to your child. These rates vary from state to state. States That Impose Inheritance Taxes
    • Connecticut (will be phased out by 2005)
    • Louisiana (will be phased out by 2004)
    • Indiana
    • Iowa
    • Kentucky
    • Maryland
    • Michigan
    • Nebraska
    • New Hampshire
    • New Jersey
    • North Carolina
    • Oklahoma
    • Pennsylvania
    • Tennessee
  2. State estate taxes are similar to the estate tax imposed by the federal government. Your estate must pay this tax no matter who your beneficiaries are. Every state except Ohio has abolished these taxes, at least in effect. The states just take part of any estate tax that you owe to the feds; it’s a matter for accountants and tax preparers, but doesn’t increase the tax bill. This may change, however, as the federal estate tax is phased out over the next few years; to make up the revenue shortfall, states may decide to impose their own death taxes.

Can I avoid paying state death taxes?

  1. If your state imposes death taxes, there probably isn’t much you can do. But if you live in two states — winter here, summer there — your inheritors may save on death taxes if you can make your legal residence in the state with lower, or no, death taxes.
  2. You can find a listing of your state’s death tax laws in “Nolo’s Plan Your Estate,” by Denis Clifford and Cora Jordan.


What is an executor?

  1. The executor (called a personal representative in some states) is the person named in a will to be in charge of winding up the person’s financial affairs after death. Basically, that means taking care of property, paying bills and taxes, and seeing to it that assets are transferred to their new rightful owners. If probate court proceedings are required, as they often are, the executor must handle them or hire a lawyer to do it.
  2. Executors can request payment from the estate. The exact amount is regulated by state law and is affected by factors such as the value of the deceased person’s property and what the probate court decides is reasonable under the circumstances. Commonly, however, close relatives and close friends (especially those who are inheriting a substantial amount anyway) don’t charge the estate for their services.

How do I choose an executor?

  1. Most executors don’t need special financial or legal knowledge; most people name their spouse or an adult child. Common sense, conscientiousness, and honesty are the main requirements. An executor who needs help can hire lawyers, accountants, or other experts, and pay them from the assets of the estate.
  2. The person you choose should be honest, organized, and good at communicating with people. If possible, name someone who lives nearby and who is familiar with your financial matters; that will make it easier to do chores like collecting mail and finding important records and papers.
  3. Many people select someone who will inherit a substantial amount of their property. This makes sense because such a person is likely to do a conscientious job of managing your affairs after your death. He or she may also know where your records are kept and understand why you want your property left as you have directed.
  4. Legally, you can name anyone you want to be your executor. In most states, the only people who can’t serve as executors are children under 18 or convicted felons. Some states do, however, impose restrictions on out-of-state executors. For example, a few require that an out-of-state executor be a relative or a primary beneficiary under your will. And some states require that a nonresident executor obtain a bond (an insurance policy that protects your beneficiaries in the event of the executor’s wrongful use of your estate’s property) or name an in-state resident to act as the estate’s representative.
  5. No matter who you pick, make sure the person is willing to do the job. Discuss it together before you finalize your will. When it comes time, however, an executor can accept or decline the responsibility. And someone who agrees to serve can resign at any time. If the will named an alternate executor, that person will take over. If not, the court will appoint someone to step in.

Must an executor hire a lawyer?

  1. Not always. Doing a good job requires persistence, and attention to tedious detail, but not necessarily a law degree. If assets must go through probate court, the process is mainly paperwork. In the vast majority of cases, there are no disputes that require a decision by a judge, and the executor may never see the inside of a courtroom. It may even be possible to do everything by mail. An executor can probably handle the paperwork without a lawyer if he or she is the main beneficiary, the deceased person’s property consists of common kinds of assets (house, bank accounts, insurance), the will seems straightforward, and good self-help materials are at hand. (One good book is The Executor’s Guide , by attorney Mary Randolph (Nolo), which guides executors through the process of winding up a loved one’s estate, step by step.) If, however, the estate has many types of property, significant tax liability, or potential disputes among inheritors, an executor may want some help. There are two ways for an executor to get help from a lawyer:
    • Hire a lawyer to act as a “coach,” answering legal questions as they come up. The lawyer might also do some research, look over documents before the executor files them, or prepare an estate tax return.
    • Turn the probate over to the lawyer. If the executor just doesn’t want to deal with the probate process, a lawyer can do everything. The lawyer will be paid out of the estate. In most states, lawyers charge by the hour ($150-$200 is common) or charge a lump sum. But in a few places, including Arkansas, California, Delaware, Hawaii, Iowa, Missouri, Montana, and Wyoming, state law authorizes the lawyer to take a certain percentage of the gross value of the deceased person’s estate unless the executor makes a written agreement calling for less. An executor can probably find a competent lawyer who will agree to a lower fee.

Can an executor get help from someone besides a lawyer?

  1. Yes. Here are some other sources of information and assistance.
    • The court. Probate court clerks commonly answer basic questions about court procedure, but they staunchly avoid saying anything that could possibly be construed as “legal advice.” Some courts, however, have lawyers on staff who look over probate documents, point out errors in the papers, and explain how to fix them.
    • Other professionals. For certain tasks, an executor may be better off hiring an accountant or appraiser than a lawyer. For example, a CPA may be a big help on estate tax matters.
    • Paralegals. Many lawyers delegate probate paperwork to paralegals. Now, in some areas of the country, experienced paralegals have set up shop to help people directly with probate paperwork. These paralegals don’t offer legal advice; they just prepare documents as the executor instructs them, and file them with the court. To find a probate paralegal, an executor can look online or in the Yellow Pages under “Legal Document Preparation” or “Attorney Services.” The executor should hire someone only if that person has substantial experience in this field and provides good references.
    • Books. The Executor’s Guide, by attorney Mary Randolph guides executors through the process of winding up a loved one’s estate, step by step.

Healthcare Directives

What is a living will?

  1. A living will, known in most states as a Directive to Physicians or Healthcare Directive, sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under a duty either to honor its instructions or to make sure you are transferred to the care of another doctor who will.
  2. Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available — and a healthcare directive is the proper place to say so.

What is a durable power of attorney for healthcare? Doesn’t that do the same thing as a living will?

  1. A durable power of attorney for healthcare — called a healthcare proxy in some states — gives another person authority to make medical decisions for you if you are unable to make them for yourself. Unlike a healthcare directive, this document doesn’t necessarily state what type of treatment you want to receive. You can leave those decisions to your proxy if you feel comfortable doing so. Ideally, however, the two documents will work together. For example, your healthcare directive may contain a clause appointing a proxy (sometimes called an attorney-in-fact, agent or representative) to be certain your wishes are carried out as you’ve directed. Or you may create two separate documents, a directive explaining the treatment you wish to receive and a durable power of attorney appointing someone to oversee your directive.
  2. If you do not know anyone you trust to name as your healthcare proxy, it is still important to complete and finalize a healthcare directive recording your wishes. That way, your doctors will still be obligated to give you the medical care you want.

What happens if I don’t have any healthcare documents?

  1. If you have not completed either a formal document such as a healthcare directive to express your wishes, or a durable power of attorney to appoint someone to make healthcare decisions on your behalf, the doctors who attend you will use their own discretion in deciding what kind of medical care you will receive.
  2. When a question arises about whether surgery or some other serious procedure is authorized, doctors may turn for consent to a close relative — spouse, parent or adult child. Friends and unmarried partners, although they may be most familiar with your wishes for your medical treatment, are rarely consulted, or are purposefully left out of the decision-making process.
  3. Problems arise where partners and family members disagree about what treatment is proper. In the most complicated scenarios, these battles over medical care wind up in court, where a judge, who usually has little medical knowledge and no familiarity with you, is called upon to decide the future of your treatment. Such legal battles — which are costly, time-consuming and usually painful to those involved — are unnecessary if you have the care and foresight to use a formal document to express your wishes for your healthcare.

When does my healthcare directive take effect?

  1. Your healthcare directive becomes effective when three things happen:
    • you are diagnosed to be close to death from a terminal condition or to be permanently comatose
    • you cannot communicate your own wishes for your medical care — orally, in writing or through gestures, and
    • the medical personnel attending you are notified of your written directions for your medical care.
  2. In most instances, you can ensure that your directive becomes part of your medical record when you are admitted to a hospital or other care facility. But to ensure that your wishes will be followed if your need for care arises unexpectedly or while you are out of your home state or country, it is best to give copies of your completed documents to several people, including your regular physician, your healthcare proxy and another trusted friend.

Who should I choose as a healthcare proxy?

  1. The person you name as your healthcare proxy should be someone you trust — and someone with whom you feel confident discussing your wishes. While your proxy need not agree with your wishes for your medical care, you should believe that he or she respects your right to get the kind of medical care you want.
  2. The person you appoint to oversee your healthcare wishes could be a spouse or partner, relative or close friend. Keep in mind that your proxy may have to fight to assert your wishes in the face of a stubborn medical establishment — and against the wishes of family members who may be driven by their own beliefs and interests, rather than yours. If you foresee the possibility of a conflict in enforcing your wishes, be sure to choose a proxy who is strong-willed and assertive.
  3. While you need not name someone who lives in the same state as you do, proximity should be one factor you consider. The reality is that the person you name may be called upon to spend weeks or months near your bedside, making sure medical personnel abide by your wishes for your healthcare.
  4. You should not choose your doctor, or an employee of a hospital or nursing home where you are receiving treatment. In fact, the laws in many states prevent you from naming such a person. In a few instances, this legal constraint may frustrate your wishes. For example, you may wish to name your spouse or partner as your representative, but if he or she also works as a hospital employee, that alone may bar you from naming that person. If the law in your state bans your first choice, you will have to name another person to serve.

What if I really don’t know anyone I trust to supervise my medical care if I become unable to on my own?

  1. Naming a healthcare proxy is an optional part of completing your healthcare directive. It is better not to name anyone than to name someone who is not comfortable with the directions you leave — or who is not likely to assert your wishes strongly.
  2. Medical personnel are still technically bound to follow your written wishes for your healthcare — or to find someone who will care for you in the way you have directed. It is far better to put your wishes for final healthcare in writing than to let the lack of a representative stand in the way.

What types of medical care should I consider when completing my healthcare documents?

  1. Technological advances mean that currently unfathomable procedures and treatments will become available and treatments that are now common will become obsolete. Also, the treatments that are available vary drastically with region, depending on the sophistication and funding levels of local medical facilities. While putting together your healthcare directive, the best that you can do is to become familiar with the kinds of medical procedures that are most commonly administered to patients who are terminally ill or permanently comatose. Those most commonly administered include:
    • blood and blood products
    • cardio-pulmonary resuscitation (CPR)
    • diagnostic tests
    • dialysis
    • drugs
    • respirators, and
    • surgery.

Can I leave instructions in my healthcare documents about whether I want pain medication, or food and water?

  1. The laws of most states assume that people want relief from pain and discomfort and specifically exclude pain-relieving procedures from definitions of life-prolonging treatments that may be withheld. Some states also exclude food and water (commonly called nutrition and hydration) from their definitions of life-prolonging treatments. But there is some controversy about whether providing food and water, or drugs to make a person comfortable, will also have the effect of prolonging life. Some people are so adamant about not having their lives prolonged when they are comatose or likely to die soon that they choose to direct that all food, water and pain relief be withheld, even if the doctor thinks those procedures are necessary. Under the U.S. Constitution, you are allowed to leave these instructions even if your state’s law is restrictive; your doctors are legally bound to follow your wishes.
  2. On the other hand, some people feel concerned about how much pain or discomfort they may experience during a final illness; these people are willing to have their lives prolonged rather than face the possibility that discomfort or pain would go untreated. Obviously, it’s a very personal choice; you’re free to leave the instructions that feel right for you.

Where can I get a healthcare directive — and who can help complete it?

  1. Many people first realize the need for healthcare documents when they’re being admitted to a hospital. But hospital admission time is probably not the best time to learn about your options in directing healthcare or to reflect on your wishes. It’s better to get information and complete your documents when you’re under less stress.
  2. Local senior centers may be good resources for help. Many of them have trained healthcare staff on hand who will be willing to discuss your healthcare options. The patient representative at a local hospital may also be a good person to contact for help. And if you have a regular physician, you can discuss your concerns with him or her.
  3. Local special interest groups and clinics may provide help in obtaining and filling out healthcare directives — particularly organizations set up to meet the needs of the severely ill such as AIDS groups or cancer organizations. Check your telephone book for a local listing — or call one of the group’s hotlines for more information or a possible referral.
  4. There are also a number of seminars offered to help people with their healthcare documents. Beware of groups that offer such seminars for a hefty fee, however. Hospitals and senior centers often provide them free of charge.

How can I be sure my healthcare documents are legal?

  1. There are a few requirements you must meet to make a valid healthcare directive. In most states, you must be 18 years old, though a few states allow parents to make healthcare directives for their minor children. All states require that the person making a healthcare directive be able to understand what the document means, what it contains and how it works.
  2. Also, every state requires that you sign your documents. If you are physically unable to sign them yourself, you can direct another person to sign them for you.
  3. You must sign your documents, or have them signed for you, in the presence of witnesses or a notary public — sometimes both, depending on your state’s law. The purpose of this additional formality is so that there is at least one other person who can confirm that you were of sound mind and of legal age when you made the documents.

Hiring Employees

Can an employer set basic job requirements and work standards?

  1. Yes, as long as they do not discriminate. Qualifications listed for a job should be necessary for the performance of the job. Even neutral job requirements can cause discrimination. For example, requiring a college degree for a job on a factory assembly line would disproportionately screen out minority applicants vis-a-vis white applicants, since disproportionately fewer minority students attend college than white students. The minority applicants would be screened out based not on their ability to do the job but based on a factor (college education) unrelated to being a good assembly line worker.

What are some other examples of neutral job requirements that can cause discrimination?

  1. Refusing to hire single custodial parents may discriminate against women, since women are more likely to have physical custody of their children. Requiring applicants to speak fluent English for a job that does not require communication skills may discriminate against applicants whose nation of origin is not the United States. Height and weight standards can discriminate based on sex and national origin. Where neutral requirements have a discriminatory effect, the employer must be able to show that the requirements are related to job performance. Thus, requirements for job-related experience and specific job-related skills are usually valid.

If an individual with a disability cannot perform an essential function of the job, can the employer refuse to hire him?

    1. Not necessarily. The question is whether the inability to perform the essential function of the job is due to lack of qualifications or due to the disability. If the employer is hiring for a secretarial position and the applicant cannot type, then the employer could refuse to hire her even though she suffered from epilepsy. (See Sidebar discussion of “The Protected Class Under the ADA.”)
    2. If, however, the applicant possesses typing skills, then the question becomes whether, with a reasonable accommodation, she would be able to perform the essential function of the job. For example, an applicant for a secretarial position who is blind may be unable to use the word processor. However, if she is provided with a Braille keyboard she can use the word processor and would thus be able to perform the essential function of the job.

Sidebar: The Protected Class Under the ADA

  1. The ADA protects “qualified individuals with a disability” from discrimination in employment. An individual with a disability is qualified if he “satisfies the requisite skill, experience, education and other job-related requirements.” For example, in deciding whether a person with epilepsy is qualified to be a teacher, one would determine if she had a teaching certificate or a college degree in education. If not, then she is not qualified and is not a member of the protected class under the ADA.

Is it ever appropriate to indicate a preference for applicants of a specific sex or age?

    1. Rarely. Anti-discrimination laws require employers to consider applicants as individuals, not based on stereotypical assumptions. If a factory job requires a worker to lift forty pounds on a regular basis, an employer cannot express a preference for young male applicants based on the stereotyped notion that men are strong and older people and women are weak. Some women and older people can lift forty pounds, just as some young men cannot. Rather, the employer’s job ad should state that the job requires “regularly lifting forty pounds.”
    2. In some rare circumstances, however, it is an objective fact that individuals who are members of a protected class cannot perform the job in question. For example, a filmmaker may hire only men for male roles, or a kosher deli may hire only Jewish people as butchers. In both of these examples, sex and religion are bona fide occupational qualifications (BFOQ). Both Title VII and the ADEA allow employers to limit a job to applicants of a specific group where the employer can prove that sex, religion, national origin or age is a BFOQ for the job in question. Race and color, however, can never qualify as a BFOQ.

Sidebar: Religious Institutions Expressing a Preference for Employees of a Particular Religion

    1. Title VII expressly allows religious corporations and sectarian educational institutions to hire applicants of a particular religion. For example, a Catholic grade school could decide to hire a teacher because he is a Catholic rather than hire an applicant who is a Protestant. This exemption applies only to religion, however, the school may not discriminate in hiring teachers based on race, color, sex, national origin, age or disability.

Sidebar: Bona Fide Occupational Qualifications

  1. Title VII allows an employer to make a hiring decision based on sex, religion or national origin if the employer can prove that being a particular sex, religion or national origin is a bona fide occupational qualification (BFOQ) for the job in question. The ADEA also allows the employer to make a hiring decision based on age if the employer can prove age is a BFOQ The employer must prove that his hiring decision falls within the very narrow limits allowed by the BFOQ defense. The employer must show both:
  2. 1. that all persons of the excluded class would be unable to perform the requirements of the job; and
  3. 2. the requirements of the job directly relate to the essence of the employer’s business.
  4. The evidence that the employer presents must be objective and not based on stereotyped beliefs about persons in the protected class. Years ago some airlines tried to defend their decision not to hire men as flight attendants on the basis that males were unable to provide reassurance to anxious passengers or give courteous, personalized service. The court held that even if this were true, the ability to reassure and give courteous service did not relate to the essence of the employer’s business, which was the safe transport of passengers. The BFOQ defense applies in very limited circumstances, such as for actors or fashion models.

Some employers find applicants through word-of-mouth, by talking to their current employees. Is anything wrong with this?

  1. That depends on the make-up of the work force. Use of the “old boy” network generally results in applications mainly from other old boys. Where the workers are mainly white people, news about the job vacancy will be limited to their circle of acquaintances, who may be mostly white people as well. This has the effect of closing out minority applicants. An employer can avoid problems by disseminating news of job openings as widely as possible in order to reach a broad pool of applicants. Placing ads in newspapers and magazines with a widespread circulation base, and using employment agencies, can help in reaching a variety of qualified applicants.

Does federal law prohibit any specific questions?

  1. Yes. The ADA prohibits an employer from asking an applicant whether he or she has a disability or inquiring into the nature or severity of a disability (though the employer may ask questions about the applicant’s ability to do the job). The National Labor Relations Act (NLRA) prohibits employers from questioning employees about union membership or activities. Neither Title VII nor the Age Discrimination in Employment Act (ADEA) prohibit any specific questions. An employer, however, should not ask questions that may imply discrimination. Moreover, some state laws, such as those in West Virginia, expressly prohibit certain types of pre-employment questions, such as questions about marital status or number of dependents.

What types of questions may imply discrimination?

    1. Direct questions relating to an applicant’s age, family background or religious affiliation may indicate discrimination. Also questions or comments based on stereotyped notions may also imply discrimination. Generally speaking, interview questions should relate to the requirements of the job, the applicant’s qualifications, work experience and history. Even when the information sought is related to the job, the interviewer must be careful that the way the question is asked does not imply discrimination. For example, an employer trying to determine whether a female applicant is going to stay with the company for the next few years should not ask, “Do you plan to get married?” or “Do you plan to have children?” or “What kind of birth control do you use?” More direct, job-related questions seeking the same information might be:
      • We are looking for employees who will make a commitment to the company. Is there any reason you might not stay with us for the next few years?
      • What are your career objectives?
      • Where do you see yourself in five years?
    2. In the same way, suppose an employer is trying to determine a female job candidate’s commitment to living in a particular area of the country. Then it is better to ask, “Do you intend to stay in the area?” rather than “Is your husband’s employer likely to transfer him?” If attendance is the issue, questions like, “Does your husband expect you to be home to cook dinner?” or “What will you do if your children get sick?” are indirect and inefficient. It would be more direct to ask, “How was your attendance record with your prior employer?”

Sidebar: How Employers Can Hire Without Discrimination

  1. It helps to use a standard application form that avoids irrelevant questions. Avoid asking about age, height, weight, marital status, education or arrest record unless they relate to the job. For example, questions about height and weight may reject women or members of some ethnic groups who are usually smaller. Asking about marital status may suggest sex discrimination. Asking about disabilities is prohibited.
  2. Employers and prospective employees both benefit when job openings are clearly defined. Employers should prepare a detailed job description for each position, specifying what the work is and what qualifications the employer requires. If both sides come to the interview with a clear idea of what the job involves, the interview is more likely to focus on the qualifications essential for doing the job or that have predicted successful job performance.

What is ‘need-to-know,’ and how does it apply to job interviews?

  1. Whether a question will be viewed as inappropriate often depends on whether there is an objective, job-related reason why the employer wants its applicants to answer it. Questions that would not run afoul of the anti-discrimination laws may still create problems. Some state tort law protects individuals from unwarranted invasions of personal privacy. Offensive inquiries into an applicant’s personal life, unrelated to the requirements of the job, may subject an employer to liability for invasion of privacy.
  2. Sometimes employers clearly must have certain information. For example, employers do need to make their job offers dependent on candidates’ production of proper documentation of their citizenship or work authorization. However, asking about national origin may be viewed as discriminatory. Similarly, whether an applicant has ever been convicted of a crime may substantially affect the applicant’s fitness for a specific job. The key to determining the appropriateness of an interview question is whether there is a legitimate business reason to inquire into the subject.

What should an applicant do if the interviewer does ask questions that seem inappropriate or discriminatory?

  1. The tactful applicant might answer by providing the information the interviewer “really wants to know.” For example, “Oh–you’re wondering whether I’ll be able to work long hours. I can assure you that I will. My current boss can confirm that.”

May an employer use other types of tests (such as a skills test or an intelligence test) to screen applicants?

    1. Yes, but it should be job-related. A test may have an illegal discriminatory result on a protected class, even if it seems fair. This may cause an employer to deny jobs to an unusually high number of minorities. For example, a test of English language skills might disqualify an unusual number of persons for whom English is a “second language.” Unless the job requires English, the test may be illegal.
    2. Extensive federal regulations govern the use of employment tests. A test has a discriminatory impact if the pass rate for a protected class is less than 80 percent of the pass rate for white men. If 50 percent of the white males pass the test, then 40 percent or more of black males must pass. If the pass rate is less than 80 percent, the test is considered discriminatory under Title VII unless the employer can prove that the test is directly related in a significant way to successful job performance. If the test is job-related, then the employer is allowed to use it.

Sidebar: The Americans with Disabilities Act (ADA) and the Administration of Employment Tests

  1. In administering tests, employers must be careful to ensure that the manner in which the test is administered does not screen out applicants based on a disability. Tests should be administered in a manner that accurately reflects the applicant’s job-related skills rather than reflecting an applicant’s disability. For example, an applicant with dyslexia or with a visual disability might fail a written test because he could not properly see the material and not because of a lack of knowledge. In such a circumstance, the employer may be required to provide a reader to help the applicant read the test instructions and materials. Similarly, oral tests may screen out applicants with a hearing disability. Usually, it is the responsibility of the applicant to inform the employer that an alternative method for administering the test is needed.

How To Represent Yourself In Court

Is it ever truly sensible to appear in court without a lawyer?

  1. When it comes to small claims court, which is designed to be accessible to nonlawyers — yes, of course. But sometimes it’s also a good idea to represent yourself in a more formal court proceeding. Hiring a lawyer is almost always unaffordable for disputes that involve less than $25,000 and often unaffordable for disputes in the $50,000-$100,000 range. In these cases, representing yourself may be your only reasonable option.

For small cases, is the cost of hiring a lawyer is too high, given the amount at stake?

  1. With lawyers charging $150-$250 per hour, and any contested court case racking up dozens of hours of attorney time, it is obvious that attorney fees can quickly dwarf what is at stake in many disputes. But the problem is really much larger: No matter what the size of the case, most people don’t have the kind of money it takes to hire a lawyer in the first place. This means that unless the dispute is the type that lawyers will take for a contingency fee — a percentage of the total recovery — the person will either have to go it alone or give up the lawsuit altogether.

Can I get an attorney to represent me for free?

  1. Before you decide to represent yourself, you may want to explore the possibility of getting help at no cost to you. Here are several situations in which you may be able to get an attorney to represent you for free.
    • If you face criminal charges.
    • If you’ve been charged with a crime and cannot afford to hire your own lawyer, you have a constitutional right to an attorney at government expense. At your request, an attorney, often from a public defender’s office, can be appointed to represent you when you are formally charged in court with a criminal offense.
    • If you’ve been injured.
    • If you have been severely injured and wish to sue, a lawyer may agree to represent you on a “contingency fee” basis. This means that you pay attorney’s fees only when and if the attorney recovers money for you; the attorney takes an agreed — upon percentage of that money as fees. Be aware, however, that even if a lawyer takes your case on a contingency fee basis, you still have to pay costs, which can add up to several thousand dollars. Costs include court filing fees, court reporters’ fees, expert witnesses and jury fees. The good news is that if you win your case, the judge will usually order your adversary to pay you back for these costs.
    • * If you qualify for legal aid.
    • If you can’t afford an attorney, you may qualify for legal aid. Legal aid lawyers are government lawyers who represent people with low incomes in a variety of legal situations, including eviction defense, denial of unemployment compensation or other benefits, and consumer credit problems. If you think you might qualify, look in your telephone directory or ask a local attorney, lawyer referral service or elected representative for the nearest legal aid office.
    • * If your claim involves an issue of social justice.
    • If your dispute involves a social justice issue, an attorney with an interest in that issue may represent you on a “pro bono” (no fee or reduced fee) basis. For example, if your claim involves sexual harassment by an employer, abuse by a spouse or partner, discrimination in housing or employment, freedom of speech or religion or environmental pollution, you may find an attorney or organization willing to represent you pro bono. Call a local bar association or a private organization that deals with the kind of problem you face, such as the American Civil Liberties Union, the NAACP Legal Defense Fund, the Natural Resources Defense Council, the National Women’s Law Center or the Lambda Legal Defense and Education Fund (gay and lesbian rights).

If I do decide to represent myself, how can I possibly cope with all the picky procedural rules and complex legal language?

  1. Essentially, you have two choices. Get the dispute diverted to mediation (see Mediation, below), where things are done in plain English and procedural rules are kept to a minimum, or take the time to learn how to navigate a formal court proceeding. As with learning any other bureaucratic process, doing this will take some effort, but it is not impossible.

How can I find a lawyer who will coach my self-help efforts?

  1. Ten years ago, trying to find a lawyer who would help you find your own way through the legal system was next to impossible. Today, given the surplus of lawyers and a gradual change in the profession’s attitude towards self-helpers, it’s much easier. Because law is an increasingly specialized field, however, you’ll want to find someone who is knowledgeable about your type of problem-not just any lawyer. Try to get a referral from someone else who has recently worked with lawyers in the area of your legal concern. For example, if you’re opening a small business and want to find an appropriate lawyer to provide occasional guidance, you might talk to the owners of excellent local businesses to see whom they work with. Once you have a few names, make and pay for a first appointment (lawyers will respect you less if you ask for a free consultation). Come right out and ask the lawyer if she is prepared to help you help yourself. Be persistent, and you’re likely to find a lawyer who meets your needs.

If I’m trying to decide whether to sue someone-for example, a contractor who goofed up my expensive remodeling project. What are my first steps?

  1. You need to answer two fundamental questions as part of deciding whether it’s worthwhile to go forward:
    • Do I have a good case?
    • Assuming I do, can I collect when I win?
  2. If the answer to either question is no, you probably won’t want to sue.

How hard is it to collect a court judgment?

  1. That depends on your opponent. Most reputable businesses and individuals will pay you what they owe. But if your opponent tries to stiff you, you may be in for a struggle. Unfortunately, the court won’t collect your money for you or even provide much help; it will be up to you to identify the assets you can grab.
  2. Normally, if an individual is working or owns valuable property — such as land or investments — collection isn’t difficult; you can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish her wages or attach her non-exempt property. The same is true of a successful business, especially one which receives cash directly from customers; you can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other business person with a state license, you can apply to have the license suspended until the judgment is paid.
  3. But if you can’t identify any collection source — for example, you’re dealing with an unlicensed contractor of highly doubtful solvency — think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt or disappears.

I think I can collect if I win. But how do I decide if I have a good case?

  1. Lawyers break each type of lawsuit (“cause of action,” in attorney-speak) into a short list of required elements. As long as you know what the elements are for your type of lawsuit, it’s usually fairly easy to determine whether your case is legally sound. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are:
  2. Contract formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.
  3. Performance. You must prove that you did what was required of you — under the terms of the contract. Assuming you have agreed upon your payments and otherwise cooperated, you’ll have no problems with this element.
  4. Breach. You must show that the party you plan to sue failed to meet her contractual obligations. This is usually the heart of the case — you’ll need to prove that the contractor failed to do agreed-upon work or did work of poor quality.
  5. Damages. You must show that you suffered an economic loss as a result of the other party’s breach of contract. Assuming the work must be redone or finished, this element is also easy to prove.
  6. The legal elements for other types of lawsuits are different. You can find outlines for most in Represent Yourself in Court, by Paul Bergman and Sara Berman-Barrett (Nolo).

Is it difficult to prepare the paperwork to initiate a lawsuit?

  1. Actually, it’s often fairly easy-especially if you learn how to do the necessary legal research and prepare drafts of the papers, restricting your lawyer’s role to that of checking your work. Initiating a lawsuit is especially straightforward in states such as California and Michigan, where court clerks provide preprinted fill-in-the-blanks forms for many types of lawsuits. But even in states where lawsuits are filed the old-fashioned way, using paragraphs of appropriate legal jargon on numbered legal paper, the actual wording is almost always available word for word from lawyer “forms books” or CD-ROMs. These information sources, which are routinely used by lawyers, are available at all law libraries and are usually fairly easy for the nonlawyer to understand.

I’ve filed my lawsuit. What do I need to do next?

  1. Before a case gets scheduled for trial, a number of things need to happen. Information about most of these — for example, whether and when a settlement conference must take place, when papers must be filed and how to place a case on the court’s trial calendar-are available from the court clerk. Unfortunately, how to accomplish other pre-trial tasks — which often come under the broad title “discovery” — is left largely up to you and the other parties to the lawsuit. For example, one type of discovery consists of your taking the deposition (oral statement) of the other party or one or more witnesses to find out what he or she is likely to say at trial. Other types of discovery consist of interrogatories (written questions to the other party), a request to produce documents or a request that the other party admit certain facts (stipulations). Books such as Represent Yourself in Court, by Paul Bergman and Sara Berman-Barrett (Nolo), will provide you with some basic information about pre-trial discovery and will also help you develop a trial strategy; check with your local law library. Nevertheless, this is an area where it will usually be a good idea to regularly consult your self-help law coach.

What are the advantages and disadvantages of taking a deposition?

  1. Depositions, which normally consist of face-to-face questioning of the other party or a witness before trial, have several big advantages as compared to the other types of discovery mentioned above:
    • You can offer a deposition transcript into evidence at trial if the deponent (the person questioned) is unavailable to give live testimony. This rule explains why you might consider deposing a helpful witness who may not be available to testify at the time of trial.
    • If an adversary’s witness whose deposition you have taken testifies significantly differently at trial than at the deposition, you can read the inconsistent deposition testimony into the trial record to impeach (attack) the deponent’s credibility. Example
    • You have sued your former employer for violating state law by firing you for missing work because you served on a jury in a lengthy trial. Before trial you take the deposition of your former supervisor, Paul Chepick. At the deposition, Chepick testified that your work performance had been satisfactory before you went on the jury. At trial, Chepick testifies that you were fired not because of your jury service, but because of a number of work-related problems. Because Chepick’s deposition testimony contradicts his trial testimony, you could read the deposition testimony into the record at trial to call his believability into question.
    • As compared to conducting discovery by asking written questions (interrogatories), depositions allow for more flexibility in questioning because you hear a deponent’s answer before you ask the next question. For example, assume that a deponent unexpectedly refers to an important business meeting that you had no idea had taken place. In a deposition, you can immediately follow up the remark with questions about what took place during this meeting.
    • You can take anyone’s deposition. You can depose your adversary, an employee who works for your adversary or an ordinary or expert witness hired by your opponent-even your opponent’s attorney! By contrast, you can send written questions (interrogatories) only to your opponent, not to an ordinary or expert witness.
    • You elicit the testimony of an individual deponent. While your adversary’s lawyer will probably attend the deposition and can consult with the deponent during recesses (breaks in the testimony), it is the deponent who has to answer the questions. By contrast, attorneys often play a major role in preparing the answers to written interrogatories and usually advise clients how to answer them in a way that provides you with as little information as possible.
    • You can use a deposition to learn and ask about documents (or other tangible items) by simply using a Notice of Deposition (for your opponent) or a subpoena duces tecum (for a nonparty witness) to list items you want the deponent to bring to the deposition.
  2. Unfortunately, deposing an adversary or a witness who supports your adversary also has considerable disadvantages. Weigh these considerations very carefully before you decide to take a deposition:
    • Depositions are the most expensive discovery tool. Even if you are representing yourself (and therefore not paying an attorney to take or attend a deposition), you must pay a court reporter to transcribe the testimony and prepare a written transcript. While costs vary somewhat by locality, it’s not unusual for a court reporter to charge up to $5.00 per page of transcript. A day of deposition testimony fills up about 150 pages, meaning that a day-long deposition may cost you around $750. If you win your case, however, the judge may order your adversary to pay your deposition costs.
    • If you haven’t investigated a case thoroughly enough to know which witnesses are most likely to have important information, you may end up paying dearly to depose a witness whose main answers are, “I don’t know.” By contrast, written interrogatories give you access to “corporate knowledge.” When you send interrogatories to an adversary that is a business or other entity, any employee with knowledge has to contribute to the answers.
    • Effective deposition questioning is a difficult skill, even for many attorneys. You have to pose questions carefully in order to be confident that you know how adverse witnesses will testify at trial. If questions are vague or you forget to cover a topic, you won’t be prepared for your opponent’s evidence at trial or to show that a witness has changed a story and therefore should not be believed.
    • Your adversary’s lawyer can be present at a deposition. The attorney may throw you off track by objecting to your questions. Also, an adversary’s attorney can help witnesses “refresh their recollections” during recesses. Finally, seeing you in action will allow the attorney to estimate your own credibility, and by listening to your questions learn more about your case than you learn about the adversary’s.
    • If you depose an adverse witness who becomes unavailable for trial, you enable the adversary to offer the deposition transcript into evidence at trial.

How do I take a deposition?

  1. Start by checking your local court rules. Pay particular attention to the time window for taking depositions and know how to notify a person whose deposition you want to take. Under all rules, you’ll need to select a date and location for the deposition, arrange and pay for a court reporter’s presence (many are listed in phone books) and give the deponent and opposing counsel (or your self-represented adversary) at least ten days’ written notice. Even better, as a courtesy, talk to all the necessary people ahead of time and arrange a mutually convenient date and location.
  2. If you want to depose a “non-party witness” (someone other than your adversary), you’ll probably have to serve the witness with an official court form called a “Subpoena re Deposition.” If you want the non-party witness to bring documents to the deposition, use instead a form carrying the fancy title “Subpoena Duces Tecum re Deposition.” (These forms should be available from a court clerk.) List the documents you want the witness to bring along, and state briefly how they pertain to the case.
  3. Once the deposition has been scheduled, follow these tips to learn as much information as you can:
    • Prepare a list of questions before you take a witness’s deposition. You need not slavishly follow the list, but having one to refer to should prevent you from forgetting important topics.
    • Bring (or subpoena) copies of any written statements about the case that the deponent has previously given. For example, bring the police report if the witness gave a statement to a police officer who included it in the report, or the witness’s own affidavit if one was attached to a pleading filed in court. Ask the deponent to amplify on and fill any holes in a statement’s contents, then check to see if the deponent in any way contradicts a prior statement. If so, you might ask the witness to repeat the contradictory statement. That way, if you impeach (attack the credibility of) the witness at trial, the witness cannot easily wriggle out by saying, “I made a careless mistake during my deposition.”
    • Bring copies of any other documents about which you want to question the witness, regardless of whether the witness wrote the document or has any connection to it. For example, you may want to know whether the witness ever saw a document, the date on which the witness saw it or whether the witness is aware of the information in the document.
    • Review and bring along all paperwork relating to the case organized chronologically, including the complaint, answer and any motions or court rulings. These documents can help if an issue arises concerning the relevance of your questions.

What are the stages of a typical trial?

  1. Allowing for many possible variations, most trials begin with each side making an opening statement-each party presents an overview of his case, including what he expects to prove. The next stage is the direct examination during which the plaintiff (the person who filed the suit) presents her testimony as to what happened and supports it with witnesses’ statements and other relevant evidence. After each of the plaintiff’s witnesses testifies, the defendant gets a chance to cross-examine them. In doing so, the defendant attempts to produce testimony favorable to his version of events and to cast doubt on the reliability or credibility of the plaintiff’s witnesses. Finally, each side gets to make a closing argument explaining to the judge or jury why they should win.

What about presenting witnesses? I’m more than a little intimidated by having to act like Perry Mason.

  1. And well you should be. It’s not easy being an actor. But fortunately, appearing in a routine court proceeding isn’t that difficult, as long as you know the basic rules. For instance, when you present eyewitnesses, you do so by asking a series of questions. First you need to establish that your witness has personal knowledge of the event in question. This normally means you must show that your witness personally observed, heard, smelled, touched or tasted whatever he is testifying to-for example, that your witness was on the spot and overheard the contractor you are suing talking to someone about the details of your garage job. Second, you must learn to ask questions that allow that person to explain whatever it is he knows that supports your case without putting words into his mouth (called leading the witness). You can learn the basic techniques of how to question a witness and how to object to any improper questions asked by reading a good self-help book.

When my case finally makes it to the courtroom, I’m afraid I won’t know what to say, when to say it or even where to stand. How can I learn what to do?

  1. It’s not hard to learn how to conduct yourself in court. This is especially true if your trial is before a judge without a jury, because many judges make an effort to simplify jargon and procedure. And there are several practical steps you can take to learn the ropes:
    • Attend a few trials involving similar issues. You’ll see that it won’t be that difficult to present your story and evidence to a judge.
    • Carefully read a self-help book such as Represent Yourself in Court, by Paul Bergman and Sara Berman-Barrett (Nolo), which explains what you’ll need to do in great detail. For example, you’ll want to prepare a brief but thorough opening statement to tell the judge what your case is about.
    • Prepare a Trial Notebook which outlines each major aspect of your trial and what you need to do and say at each point. For example, based on taking the other side’s deposition or asking written questions (interrogatories), you probably have a pretty good idea what she will say when she testifies. Clearly, it’s a good idea to use your Trial Notebook to prepare a carefully crafted outline of what you plan to ask her in court. Similarly, because you will know before trial who else will testify for the other side, your Trial Notebook should contain a well-organized list of points you want to cover when you have a chance to question (cross-examine) them.

You’ve said a lot about trials before judges. Don’t I have a right to have my civil case heard by a jury?

  1. For some types of cases, such as those involving child support or custody, or a request for an injunction (to stop the city from cutting down a tree, for example), you are not entitled to a jury. And in some courts, the parties in all small civil cases must first try mediation before initiating any type of trial. But in most civil cases, including those involving personal injury, breach of contract, professional malpractice, libel or slander, you are entitled to a jury trial if you want one.
  2. You may, however, want to think twice before you request a jury trial; it will be more complicated and harder to handle a case before a jury on your own than it would be to represent yourself before a judge. It can be tricky, for example, to participate in the jury selection process. Most who go it alone are better off avoiding this added level of complexity by trying their case in front of a judge. But, of course, the other party has a say, too, and if that person demands a jury, so be it.

Identity Theft

How can my identity be stolen?

  1. Identity theft is a growing national epidemic. The Federal Trade Commission’s 2003 report on identity theft called it the fastest growing crime in the nation, with nearly 500,000 victims, costs to businesses of $48 billion, and costs to consumers of nearly $5 billion.
  2. Someone could steal your identity very easily by:
    • stealing your wallet
    • filling out a change of address form for you and collecting your mail
    • snatching your unshredded pre-approved credit slips from the trash
    • ordering unauthorized credit reports on you by posing as a potential employer or landlord
    • looking over your shoulder at phones and ATM’s to gather PIN numbers (sometimes with binoculars or listening devices)
    • using phony telemarketing schemes to con you into giving your personal data
    • illegally tapping a computer at a business to which you have provided information or by which you have been granted credit (this is often done by dishonest or disgruntled employees), or
    • gathering sensitive information and using it as a way to extract revenge (this is usually done by a former friend, lover, roommate, or co-worker — and it’s more common than most people realize).
  3. Perhaps the most frightening (and most thorough) way for a thief to steal someone’s identity is by purchasing it at one of the identity search companies that have sprouted on the Internet. For as little as $49.99, these companies will sell you someone’s Social Security number (the heart of identity theft), their mother’s maiden name (the second most valuable piece of information), their home and employment address, their previous addresses, their credit history, and more.

If my identity gets stolen, what can the thief do with my personal information?

  1. A lot. A thief can cash a check, obtain a loan, open credit accounts and charge them to the max, rent an apartment, buy a car, purchase a cell phone and talk to someone long distance all day, and, worse, commit a serious crime — all in your name.

Will I be held responsible if a thief uses my identity to commit a crime?

  1. Yes and no. From a monetary standpoint, if a thief uses your credit card in a credit scam, you’ll likely be responsible for only $50, or possibly nothing. However, you may spend months hassling with credit agencies, financial institutions, and police departments trying to clear your name and repair the lingering damage. Almost certainly you will have to take time off from work to write letters, make calls, collect evidence, and demand action.
  2. There is also the cost of anxiety and mental suffering to consider. Victims of identity theft report that police agencies are sometimes dismissive or even abusive, credit reporting agencies unresponsive, credit collection agencies hostile, and credit grantors disbelieving.
  3. When victims are actually accused of committing crimes, they are sometimes repeatedly detained by police and have trouble trying to convince law enforcement officials that the person they’re holding is not the person they want. See Fact Sheet 17(g): Criminal Identity Theft at http://www.privacyrights.org.

What can I do to protect my identity from theft?

  1. Minimizing the disaster of identity theft depends primarily on your vigilance in guarding your privacy. You’ve got to guard your personal information diligently. Here are some tips for keeping your private information secure:
    • Never carry your Social Security card in your wallet.
    • Don’t have your Social Security number or your driver’s license number pre-printed on your checks.
    • Use your initials (instead of your first name) and last name on your checks. If some one takes your checks, they will not know if you sign your checks with just your initials or your full name, but your bank will know.
    • If you have a P.O. Box or work address, put that address on your checks instead of your home address. Put your work phone number on your checks instead of your home phone number.
    • When writing a check to a credit card account, do not put the complete account number on the “For” line — just use the last four numbers.
    • Install a locking mailbox or a mail slot that goes directly into your house. Send your mail, especially payments, directly from the post office (don’t put it in the mailbox for the postal carrier to pick up).
    • Order your credit report every year. Promptly respond to any inaccurate information.
    • Change your passwords and PIN numbers regularly. Don’t use obvious codes such as birthdays, or the name of your spouse, child, or pet. Memorize passwords and PIN numbers and shred any piece of paper on which they are written.
    • Diligently review credit card statements, phone, and utility bills. Call if you don’t recognize a charge or phone call.
    • Always take your credit card receipts, and never throw them away in public.
    • Tear up or shred any offers of pre-approved credit cards you don’t intend to use and beware of offers from companies you don’t recognize. It’s easy to create an official-looking and completely phony credit application offering you pre-approved credit if you provide your Social Security number, mother’s maiden name (for supposed security reasons), and a signature.
    • Don’t give personal information over the phone unless absolutely necessary, and don’t ever give it unless you initiated the phone call. If someone calls who says they are calling from your bank or credit company, ask for a number to call them back — and then make sure it’s really an official number.
    • Beware of anyone asking for your Social Security number. If they refuse to complete a transaction without it, consider taking your business elsewhere.
    • Pick up your new checks from the bank instead of having them sent to your home.
    • Don’t put personal information on a computer home page or personal computer profile.
    • If you find your personal information posted somewhere on the Internet, demand that it be removed.

What should I do if I discover that my identity has been stolen?

  1. If someone steals your credit cards, driver’s license, Social Security number, or any other type of identifying information about you, that person has stolen your identity. As soon as you are aware of the problem, you need to do the following:
  2. Make an identity theft affidavit (and plenty of copies). The Federal Trade Commission has an official identity theft affidavit that you can use to alert different companies, including the major credit bureaus, your credit card companies, your banks, and so on. This helps you avoid having to fill out a different form for each company. You can download the affidavit at http://www.consumer.gov/idtheft.
  3. Contact the police. File a police report and keep several copies. You may need to send copies to credit bureaus, creditors, collectors, banks, and so on.
  4. Cancel your credit cards, ATM cards, and phone cards. Notify your bank of the problem and close all existing bank accounts. Banks may require that you sign notarized affidavits stating that you have been a victim of fraud.
  5. Call the credit bureaus. They can issue a fraud alert and attach a statement to your report. The alert means any company that checks your credit knows your information was stolen and they have to take extra steps to verify the identity of the person requesting credit. In some cases, company may need to call you to authorize the credit. The major credit bureaus are:
    • * Equifax: http://www.equifax.com; 800-525-6285
    • * Experian: http://www.experian.com; 888-397-3742
    • * Trans Union: http://www.transunion.com; 800-680-7289
  6. Also, be sure to get copies of your credit report from each of the credit bureaus. You can ask that the reports be free-of charge because you believe they contain inaccurate information due to fraud. Check each report carefully when you receive it. Look for accounts that you didn’t apply for or open, inquiries that you didn’t initiate, and defaults and delinquencies that you didn’t cause. Also, check your identifying information carefully.
  7. Report stolen checks. Contact your bank and the following agencies:
    • * Certegy: 800-437-5120
    • * TeleCheck: 800-710-9898
    • * TeleCheck (merchant services): 800-366-1054.
  8. Alert the post office if you suspect the thief may have filed a change of address form in your name. That form will be an important piece of evidence for the police to follow.
  9. Alert the utility and phone companies. They can close your existing accounts and be alert to attempted fraudulent uses. If you’re having trouble getting fraudulent phone charges removed from your account, contact your state Public Utility Commission for local service providers or the Federal Communications Commission for long-distance service providers and cellular providers at http://www.fcc.gov (or 888-CALL-FCC).
  10. Review your Social Security earnings statement. Look for evidence that your Social Security number has been used fraudulently. Get a copy of your Social Security Earnings and Benefit Statement and look for earnings for jobs you’ve never had. You should receive your earnings statement automatically each year if you have worked and are 25 or older, or you can request a copy by calling 800-772-1213 or by visiting SSA’s website at http://www.ssa.gov.
  11. In an extreme case, you may be able to change your Social Security number. Changing your Social Security number is difficult and should be a last resort. The Social Security Administration will change your number only if you fit their fraud victim criteria. In any case, a new number may not solve your problems and may even create new ones. For example, a new number does not ensure that you will get a new credit record because credit bureaus may combine the records from your old number with your new records. And a new Social Security number may complicate your getting credit for all the years you’ve worked and wages you’ve earned.
  12. If someone is using your driver’s license number fraudulently, obtain a new number. You should be prepared to show proof of theft and damage.
  13. Keep records. Keep short, dated notes of your conversations and interactions with everyone you notify of the theft. Make copies of all correspondence you send and receive relating to the theft.
  14. Take control. Most important, you need to take control of the situation and not waste time waiting for someone else to step up and help you. Vigilance is essential. Do not pay bills that you are not responsible for. Be persistent with police, credit bureaus, credit card companies, and banks. Continue to call and write letters. Keep track of your efforts to stop the theft and reverse the damage.

Are there any laws that specifically prohibit identity theft?

  1. Yes. In 1998, Congress passed the Identity Theft and Assumption Deterrence Act (18 U.S.C. § 1028). The Act makes the use of another person’s identification with the intent to commit any unlawful activity a federal felony. Federal agencies — including the U.S. Secret Service, the FBI, and the U.S. Postal Inspection Service — investigate suspected violations of the Act. The U.S. Department of Justice handles prosecutions. Federal law enforcement agencies usually do not investigate individual cases unless the dollar amount is high, or the victim is one of many people victimized by the same perpetrator or fraud ring.
  2. Additionally, many states have passed or are considering laws related to identity theft. Even if your state does not have a law specifically called an identity theft law, the issue is likely covered under other state laws. To see a list of state identity theft laws, go to http://www.consumer.gov/idtheft.
  3. More Information About Identity Theft
  4. The federal government maintains a central website devoted to identity theft: http://www.ftc.gov/bcp/edu/microsites/idtheft/. This site lists all federal and state laws relating to identity theft, discusses pending cases, and alerts consumers about identity scams. It also contains useful links for more information.
  5. The Federal Trade Commission Consumer Response Center has a thorough collection of reports on identity theft at http://www.ftc.gov. You can also call the FTC for information on identity theft at 877-ID-THEFT.
  6. The Privacy Rights Clearinghouse maintains an excellent website with reports on a variety of privacy related issues, including identity theft, at http://www.privacyrights.org.
  7. You can also access a wealth of information about identity theft at http://www.identitytheft.org.
  8. The State of California’s Office of Privacy Protection (http://www.privacy.ca.gov) also has good general information on identity theft, as well as California-specific information.

Independent Contractor

What is an independent contractor?

  1. An independent contractor (IC) is someone who runs his or her own business. Independent contractors earn their livelihoods from their own independent businesses instead of depending upon an employer to earn a living. Independent contractors are sometimes called consultants, freelancers, self-employed, and even entrepreneurs and business owners.
  2. Unlike an employee who works for one employer, independent contractors typically work for a number of different clients, tackling particular jobs or projects that require special expertise.

What are the benefits and drawbacks of being self-employed?

  1. There can be many advantages to being self-employed:
    • You are your own boss.
    • You may be paid more than employees.
    • No federal or state tax is withheld from your pay.
    • You can take increased business deductions.
  2. Despite the advantages, however, being self-employed is no bed of roses. Here are some of the major drawbacks.
    • You have no job security.
    • You might not get paid.
    • You must pay self-employment taxes.
    • You may be personally liable for business debts.
    • You have no employer-provided benefits.
    • You have no unemployment insurance benefits.
    • You have no employer-provided workers’ compensation.
    • You have few labor law protections.

Do I need to use written agreements when I do contract work for clients?

  1. You really should. Using a written agreement avoids disputes by providing a written description of the services you’re supposed to perform, when they are to be performed, and how much you will be paid.
  2. A written independent contractor agreement can also help establish that you really are an independent contractor — not your client’s employee. Although an agreement by itself doesn’t definitively prove that a worker qualifies as an independent contractor, it will help show the IRS and other agencies that both you and the hiring firm intended to create a hiring firm-independent contractor relationship, not an employer-employee relationship.

How do I decide how much to charge for my work?

  1. When you’re just starting out as an independent contractor, it can be tough to figure out what to charge your clients. You’ll want to come up with a figure that pays your expenses, adequately compensates you for your time, and allows you to earn at least some profit. And, of course, you’ll have to make sure not to charge more than the market will bear — if freelancers in your area are willing to perform the same work for a much lower fee, you probably won’t drum up much business.

Do I have to pay taxes on my freelance income?

  1. When you work as an independent contractor, you have to pay income tax, just like an employee. Unlike an employee, however, you won’t have any taxes withheld from your paycheck to cover income tax, Social Security, and Medicare. And also unlike an employee, you can’t wait until April 15 to pay all of your taxes due for the previous year. Instead, you have to pay estimated taxes four times a year.
  2. Fortunately, contractors can take advantage of some great tax deductions; for instance, the home office deduction can effectively take some money off your rent or mortgage.

How can I make sure that my clients pay me?

  1. Many consultants find that they spend way too much time acting as a collection agency, going after deadbeat clients who refuse to pay their bills. The best way to avoid this problem is to use a written client agreement, clearly setting forth your fees (including late charges) and a payment schedule.
  2. If a client still won’t pay, you should start turning up the heat by persistently demanding payment and pursuing your legal options, if necessary.

Who decides whether I’m an employee or an independent contractor?

  1. Initially, it’s up to you and each hiring firm you deal with to decide whether you should be classified as an independent contractor or an employee. But this decision is subject to review by various government agencies, including the IRS and state workers’ compensation and unemployment compensation agencies.
  2. The IRS looks at a number of factors when determining whether a worker is an employee or an independent contractor. The agency is more likely to classify as an independent contractor a worker who:
    • can earn a profit or suffer a loss from the activity
    • furnishes the tools and materials needed to do the work
    • is paid by the job
    • works for more than one firm at a time
    • invests in equipment and facilities
    • pays his or her own business and traveling expenses
    • hires and pays assistants, and
    • sets his or her own working hours.
  3. For more information on the criteria used to determine whether a worker is an employee or an independent contractor, see Preserving Your Status as an Independent Contractor.

What happens if a government agency decides that I am an employee?

  1. If a government agency determines that you should have been classified as an employee, you’ll suffer some consequences. For example, the hiring firm may decide not to use you any more because it doesn’t want to pay the additional expenses of treating you as an employee. Or, the hiring firm may insist on reducing your compensation to make up for the extra employee expenses. And reclassification as an employee could create additional tax burdens for you, if you have to forego some of the tax deductions to which you were entitled as a contractor.
  2. In addition, the hiring firm can suffer severe consequences. The IRS may impose substantial assessments and penalties on the firm. At the very least, the firm will have to pay 20% of the Social Security and Medicare taxes that should have been withheld from your pay, 100% of the Social Security, Medicare, and federal unemployment taxes the employer should have paid, a penalty equal to 1.5% of your compensation, interest and sometimes other hefty penalties as well.

Landlord Liability – Criminal Activities

What are the landlord’s responsibilities for tenant safety and security?

  1. Landlords in most states have at least some degree of legal responsibility to protect their tenants from would-be assailants and thieves and from the criminal acts of fellow tenants.
  2. Landlords must also protect the neighborhood from their tenants’ illegal activities, such as drug dealing. These legal duties stem from building codes, ordinances, statutes, and, most frequently, court decisions.
  3. Rental property owners are being sued with increasing frequency by tenants injured by criminals, with settlements and jury awards typically ranging from $100,000 to $1 million. Landlords are especially likely to be held liable if a similar assault occurred on property where an assault or other crime occurred in the past.

How can a landlord limit responsibility for crime committed by strangers on the rental property?

  1. The following steps will not only limit the likelihood of crime, but also reduce the risk that the property owner will be found responsible if a criminal assault or robbery does occur. A landlord should:
    • Meet or exceed all state and local security laws that apply to the rental property, such as requirements for deadbolt locks on doors, good lighting, and window locks.
    • Realistically assess the crime situation in and around the rental property and neighborhood and design a security system that provides reasonable protection for the tenants. Local police departments, your insurance company, and private security professionals can provide useful advice on security measures.
    • Educate tenants about crime problems in the neighborhood, and describe the security measures provided and their limitations.
    • Maintain the rental property and conduct regular inspections to spot and fix any security problems, such as broken locks or burned out exterior flood lights. Asking tenants for their suggestions as part of an ongoing repair and maintenance system is also a good idea.
    • Handle tenant complaints about dangerous situations, suspicious activities, or broken security items immediately. Failing to do this may saddle you with a higher level of legal liability should a tenant be injured by a criminal act after a relevant complaint is made.
    • If additional security requires a rent hike, discuss the situation with your tenants. Many tenants will pay more for a safer place to live.
  2. While some of these measures may be costly, the money you spend today on effective crime-prevention measures may pale in comparison to the costs that may result from crime on the premises. Settlements paid by landlords’ insurance companies for horrific crimes such as rape and assault are typically hundreds of thousands of dollars — and jury awards are higher.

Protecting Tenants from the Manager

  1. Rental property owners should be particularly careful hiring a property manager — the person who interacts with all tenants and has access to master keys. Landlords should scrupulously check a property manager’s background to the fullest extent allowed by law, and closely supervise his or her job performance. A tenant who gets hurt or has property stolen or damaged by a manager could sue the property owner for failing to screen or supervise the manager properly. If tenants complain about illegal acts by a manager, landlords should pay attention. Finally, property owners should make sure their insurance covers illegal acts of their employees.

What kind of legal trouble do landlords face from tenants who deal drugs on the property?

  1. Drug-dealing tenants can cause landlords all kinds of practical and legal problems:
    • Anyone who is injured or annoyed by drug dealers — be it other tenants or people in the neighborhood — may sue the landlord on the grounds that the property is a public nuisance that seriously threatens public safety or morals.
    • Local, state, or federal authorities may levy stiff fines against the landlord for allowing illegal activity to continue.
    • Law enforcement authorities may seek criminal penalties against the landlord for knowingly allowing drug dealing on the rental property.
    • In extreme cases, the presence of drug dealers may result in the government confiscating the rental property.
    • A drug dealing environment can make it difficult to find and keep good tenants, and the value of the rental property will plummet.

How can a property owner avoid liability because of tenants who deal drugs or otherwise break the law?

  1. There are several practical steps landlords can take to avoid trouble caused by criminal tenants and to limit their liability in any lawsuits that are filed:
    • Screen tenants carefully and choose tenants who are likely to be law-abiding and peaceful citizens. Weed out violent or dangerous individuals to the extent allowable under privacy and anti-discrimination laws that may limit questions about a tenant’s past criminal activity, drug use, or mental illness.
    • Don’t accept cash rental payments.
    • Do not tolerate tenants’ disruptive behavior. Include an explicit provision in the lease or rental agreement prohibiting drug dealing and other illegal activity and promptly evict tenants who violate the clause.
    • Be aware of suspicious activity, such as heavy traffic in and out of the rental premises.
    • Respond to tenant and neighbor complaints about drug dealing on the rental property. Get advice from police immediately upon learning of a problem.
    • Consult with security experts to do everything reasonable to discover and prevent illegal activity on the rental property.

Lawyer Malpractice

I’ve lost confidence in my lawyer. Can I fire him?

  1. You have the right to end a relationship with a lawyer at any time. But unless your lawyer is truly awful, it’s not wise to fire him until you have another lawyer lined up or feel that you can handle the case yourself.

I fired my lawyer, but I need my file. How do I get it?

  1. Ask, or sign an authorization allowing any new attorney to get your file. Even if you have a fee dispute with your former lawyer or you simply have not paid him, you are entitled to your file. If you have decided to represent yourself, demand that the lawyer turn your file over to you. If the lawyer refuses, contact your state’s bar association for help.

I’m pretty sure my lawyer screwed up my case. Can I sue her for malpractice?

  1. Unfortunately, it is very hard to win a malpractice case. Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances.
  2. To win a malpractice case against an attorney, you must prove four basic things:
    • duty — that the attorney owed you a duty to act properly
    • breach — that the attorney breached the duty, was negligent, made a mistake or did not do what she agreed to do
    • causation — that this conduct caused you damages, and
    • damages — that you suffered financial losses as a result.
  3. Causation may be your biggest hurdle. To win a malpractice case, you must first prove the malpractice action against your attorney. Then you first must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant. For example, let’s say you were hit by a car when you were walking across the street, and you hired a lawyer who didn’t file the lawsuit on time. You sue for malpractice and can easily prove the driver’s liability. To win the malpractice case against your lawyer, however, you’d also have to show that the driver had money or insurance. If you can’t show that the driver had assets which could have been used to pay the judgment, you won’t win your malpractice case, even though the lawyer clearly blew it and the driver was clearly at fault.

My Lawyer Won’t Call Me Back!

  1. If your lawyer fails to return phone calls, it isn’t malpractice, but it’s a sure sign of trouble. Try to find out why your lawyer isn’t calling you back. (He may be busy, rude, sick or procrastinating.) As you do this, examine the possibility that your lawyer may be avoiding you for a good reason — you may be too demanding. A good way to deal with this situation is to write or fax the lawyer a straightforward letter explaining your difficulty in communicating and asking for a phone call or meeting to re-establish or restore your relationship. If this doesn’t work, consider firing the lawyer and/or filing a formal complaint with your state’s attorney regulatory agency.

My lawyer seems to have stopped working on my case. Is this malpractice?

  1. The longer your attorney ignores you and your case, the more likely it is to amount to malpractice. You must act quickly to see that your case is properly handled and get another lawyer if necessary. Writing or faxing a letter expressing your concerns and asking for a meeting is a good first step.

My case was thrown out of court because my lawyer did no work. Is this grounds to sue my lawyer?

  1. Maybe. Your lawyer is responsible for whatever money you could have won had the case been properly handled. Your difficulty will be in proving not only that your lawyer mishandled the case, but that if handled correctly, you could have won and collected a judgment.

My lawyer originally said my case was worth six figures and now suggests that I settle for peanuts. Can I sue the lawyer for the difference?

  1. No. Your lawyer may have given you an inflated estimate of the value of your case to encourage you to hire her. Get your file from your lawyer and get a second opinion on your case. If another reputable lawyer believes you are being advised to settle for too little, consider changing lawyers.

Big Lawyer Bills

  1. If you receive an unexpectedly large bill, your lawyer may have overcharged you. In this situation, you have six options:
    • You can pay the entire bill and vow not to go near that attorney again.
    • You can pay the part of the bill you think is reasonable with a letter explaining why you are refusing to pay the rest.
    • You can refuse to pay any of the bill until the lawyer agrees to accept less as full payment.
    • In most states and situations, you can request fee arbitration, usually with a panel made up of local lawyers and perhaps one or two nonlawyers. Arbitration is a process where a neutral decision maker resolves your fee dispute. You will want to proceed only if it is nonbinding, meaning that you are free to reject the arbitrator’s decision. If the arbitration is to be conducted by lawyers who may be biased against you, don’t agree to a binding result — meaning a result you aren’t allowed to reject.
    • You can pay the bill and file a complaint with your state attorney disciplinary agency.
    • You can pay the bill and sue your attorney for a refund.

I saw my lawyer playing tennis with the opposing lawyer. Is this a breach of attorney ethics?

  1. Even though socializing with the opposing counsel isn’t a violation of ethical rules, in the real world it can obviously make a big difference how you found out about it. If your lawyer told you he occasionally played tennis with the opposing attorney when you first discussed your case, you clearly had a chance to hire another lawyer if it bothered you. But you’ll feel very differently if you head to the tennis court for a match with a good friend after being grilled by the opposing attorney at your deposition, only to run into your lawyer playing tennis with the barracuda who just tried to eat you for lunch. It would have been wise for your attorney to tell you about his social relationship with the other lawyer when you first met. Although in failing to do this your attorney hasn’t breached any ethical duty to you, you may wish to change attorneys. /div>

I’m worried that my lawyer may have misused money I paid as a retainer. What should I do?

  1. If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your state’s attorney regulatory agency right away. Although regulation of lawyers is lax in most states, complaints about stealing clients’ money are almost always taken seriously, so you should get a prompt response. All states, except Maine, New Mexico and Tennessee, have funds to reimburse clients when lawyers are caught stealing.

Leases And Rental Agreements

Do I need a written lease or rental agreement?

  1. The lease or rental agreement is the key document of the tenancy, setting out important issues such as:
    • the length of the tenancy
    • the amount of rent and deposits the tenant must pay
    • the number of people who can live on the rental property
    • who pays for utilities
    • whether the tenant may have pets
    • whether the tenant may sublet the property
    • the landlord’s access to the rental property, and
    • who pays attorney’s fees if there is a lawsuit concerning the meaning or implementation of the lease or rental agreement
  2. Leases and rental agreements should always be in writing, even though most states enforce oral (spoken) agreements for a certain period. While oral agreements may seem easy and informal, they often lead to disputes. If a tenant and landlord later disagree about key agreements, such as whether the tenant can sublet, the end result is all too likely to be a court argument over who said what to whom, when, and in what context. This is particularly a problem with long-term leases, so courts in most states will not enforce oral agreements after the passage of one year.

What’s the difference between a rental agreement and a lease?

  1. A rental agreement provides for a tenancy of a short period (often 30 days) that is automatically renewed at the end of the period unless the tenant or landlord ends it by giving written notice. For these month-to-month rentals, the landlord can change the terms of the agreement with proper written notice.
  2. A written lease, on the other hand, gives a renter the right to occupy a rental unit for a set term — most often for six months or a year but sometimes longer — if the tenant pays the rent and complies with other lease provisions. The landlord cannot raise the rent or change other terms of the tenancy during the lease, unless the tenant agrees. Unlike a rental agreement, when a lease expires it does not usually automatically renew itself. A tenant who stays on with the landlord’s consent after a lease ends becomes a month-to-month tenant, subject to the rental terms that were in the lease.

Does rent have to be due on the first of the month?

  1. By custom, leases and rental agreements usually require rent to be paid monthly, in advance. Often rent is due on the first day of the month. However, it is legal for a landlord to require rent to be paid at different intervals or on a different day of the month.

How do rent control laws work?

  1. Communities in only five states — California, the District of Columbia, Maryland, New Jersey, and New York — have laws that limit the amount of rent landlords may charge.
  2. Rent control ordinances (also called rent stabilization or maximum rent regulation) limit the circumstances and the times that rent may be increased. Many rent control laws also require landlords to have a legal or just cause (that is, a good reason) to terminate a tenancy — for example, if the tenant doesn’t pay rent or if the landlord wants to move a family member into the rental unit.
  3. Landlords and tenants in New York City, Newark, San Francisco, and other cities with rent control should be sure to get a current copy of the rent control ordinance and any regulations interpreting it. Check the phone book for the address and phone number of the local rent control board or contact the mayor or city manager’s office.

How much security deposit can a landlord charge?

  1. All states allow landlords to collect a security deposit when the tenant moves in. Landlords use the deposit to cover unpaid rent and perform needed repairs or cleaning caused by the tenant’s housekeeping. Half the states limit the amount landlords can charge, usually not more than a month or two worth of rent — the exact amount depends on the state.
  2. Many states require landlords to put deposits in a separate account, and some require landlords to pay tenants the interest on deposits.

Where can I find a dependable lease or rental agreement?

  1. Using a using a jargon-laden form bought at a local office supply store can spell trouble. These forms are often overly legalistic, may contain illegal clauses, and are probably out of date and not in sync with your state’s laws.
  2. Nolo’s forms are easy to understand, fair, and always up to date. For a Fixed-Term Residential Lease or a Month-to-Month Residential Rental Agreement, see Every Landlord’s Legal Guide, by Marcia Stewart, Ralph Warner, and Janet Portman (Nolo).

Leasing A Car

Are there different kinds of leases?

  1. Yes, several forms exist. Under the “closed-end” lease contract, sometimes called a “walk-away” lease, the car’s value when you return it does not matter unless you have put extreme wear on the car. You return the car at the end of the term and “walk away.” Payments are higher than under an open-end lease because the lessor (the leasing company) takes the risk on the car’s future worth. An “open-end” lease involves lower payments. However, you gamble that the car will be worth a stated price, the “estimated residual value,” at the end of the lease. If it’s appraised value at the end of the term equals or exceeds the specified residual value, you owe nothing and may be refunded the difference, if your contract provides for a refund. However, if it is worth less, you pay some or all of the difference, often called an “end of lease” payment.

What will a lease cost me?

  1. You probably will have to pay a security deposit and lease fee for the first month and possibly the last. You may have to pay an initial “capitalized cost reduction.” This is similar to a down payment when you buy a car. By paying a large amount up front, you could, in effect, reduce your monthly payments. But by doing this, you lose one of the advantages of leasing: lower up-front costs. Other expenses may include sales tax, title, and license fee, though the lessor may pay them. A lease may include insurance. If not, you must provide your own. You might have to pay for repairs and maintenance after any warranty period expires, unless the lessor agrees to pay in your contract. At the end of the lease term, you may have to pay an excess mileage cost if you have a closed-end lease. (Under an open-end lease, the final appraised value of the car will reflect any excess mileage.) Excessive wear and tear also may cost you.

May I renew or extend my lease at the end of the term?

  1. Yes, if your lease contained this option or you negotiated for it. Such an option may reduce your initial costs.

May I escape my lease early?

  1. You have signed a binding contract that obligates you to make payments for a stated term. However, your contract may contain an early termination clause. This usually requires a minimum number of monthly payments before you may cancel, and may require you to pay a penalty.

What is a purchase option?

  1. It allows you to buy the car when your lease term ends. The lessor must state the purchase price or the basis for setting this price in the initial lease contract. Purchase options are more common in open-end leases than in closed-end leases.

Living Trust

What is a living trust?

  1. A trust is an arrangement under which one person, called a trustee, holds legal title to property for another person, called a beneficiary. You can be the trustee of your own living trust, keeping full control over all property held in trust.
  2. A “living trust” (also called an “inter vivos” trust by lawyers who can’t give up Latin) is simply a trust you create while you’re alive, rather than one that is created at your death under the terms of your will.
  3. Different kinds of living trusts can help you avoid probate, reduce estate taxes or set up long-term property management.

Do I need a living trust?

  1. The big advantage to making a living trust is that property left through the trust doesn’t have to detour through probate court before it reaches the people you want to inherit it. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.
  2. The average probate drags on for months before the inheritors get anything. And by that time, there’s less for them to get: In many cases, about 5% of the property has been eaten up by lawyer and court fees.
  3. Still, not everyone has to worry about probate, and some people don’t need a living trust at all.

How does a living trust avoid probate?

  1. Property you transfer into a living trust before your death doesn’t go through probate. The successor trustee — the person you appoint to handle the trust after your death — simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and there are no lawyer or court fees to pay. When all of the property has been transferred to the beneficiaries, the living trust ceases to exist.

Is it expensive to create a living trust?

  1. A basic living trust isn’t much more complicated than a will, and you probably won’t need to hire a lawyer. With a good self-help book or software program, you can create a valid Declaration of Trust (the document that creates a trust) yourself. If you run into questions that a self-help publication doesn’t answer, you may need to consult a lawyer, but you probably won’t need to turn the whole job over to an expensive expert.
  2. Lawyers commonly charge upwards of $1,000 to draw up a simple trust. If you’re going to hire a lawyer to draw up your living trust, you might pay as much now as your heirs would have to pay for probate after your death — which means the trust offers no net savings.

Is it a hassle to hold property in a living trust?

  1. Making a living trust work for you does require some crucial paperwork. For example, if you want to leave your house through the trust, you must sign a new deed, showing that you now own the house as trustee of your living trust. This paperwork can be tedious, but the hassles are fewer these days because living trusts have become so common.

Is a living trust document ever made public, like a will?

  1. No. A will becomes a matter of public record when it is submitted to a probate court, as do all the other documents associated with probate — inventories of the deceased person’s assets and debts, for example. The terms of a living trust, however, need not be made public.

Does a living trust protect property from creditors?

  1. No. A creditor who wins a lawsuit against you can go after the trust property just as if you still owned it in your own name.
  2. Generally, after your death, all property you owned — including assets held in a living trust — is subject to your lawful debts. For example, if your house is held in trust and passes to your children at your death, a creditor could demand that they pay the debt, up to the value of the house. Ownership of real estate is always a matter of public record, so creditors can always find out who inherited real estate. It can be more difficult for creditors to know who inherits other property, however (because a trust document, unlike a will, is not a matter of public record), and they may not bother tracking it down.
  3. On the other hand, probate can also offer a kind of protection from creditors. During probate, known creditors must be notified of the death and given a chance to file claims. If they miss the deadline to file, they’re out of luck forever.

If I make a living trust, do I still need a will?

  1. Yes, you do — and here’s why:
  2. A will is an essential back-up device for property that you don’t transfer to yourself as trustee. For example, if you acquire property shortly before you die, you may not think to transfer ownership of it to your trust — which means that it won’t pass under the terms of the trust document. But in your back-up will, you can include a clause that names someone to get any property that you haven’t left to a particular person or entity.
  3. If you don’t have a will, any property that isn’t transferred by your living trust or other probate-avoidance device (such as joint tenancy) will go to your closest relatives in an order determined by state law. These laws may not distribute property in the way you would have chosen.

Can a living trust reduce estate taxes?

  1. A simple probate-avoidance living trust has no effect on taxes. More complicated living trusts, however, can greatly reduce the federal estate tax bill for people who own a lot of valuable assets.
  2. One tax-saving living trust is designed primarily for married couples with children. It’s commonly called an AB trust, though it goes by many other names, including “credit shelter trust,” “exemption trust,” “marital life estate trust” and “marital bypass trust.” Each spouse leaves property, in trust, to the other for life, and then to the children. This type of trust can save up to hundreds of thousands of dollars in estate taxes, money that will be passed on to the couple’s final inheritors.

Losing Or Leaving A Job

For what reasons can I be fired?

  1. Unless you have an employment contract with your employer, your employment is probably “at will,” which means that your employer can fire you for any reason that isn’t illegal. (Illegal reasons include discrimination based on race, national origin, sex, religion, disability, and age, and, in some states, sexual orientation, marital status, whether a person receives public funds, and/or other characteristics.)
  2. This means that your employer’s reason for firing you can be related to your job (for example, poor performance, excessive absences, or violating a company rule) or totally unrelated (for example, violating a law outside of work, speaking too loudly or abrasively, annoying your coworkers, or any other reason that is not illegal).
  3. If you have an employment contract, however, the terms of your contract will determine the reasons for which you can be fired. Sometimes, contracts will give a list of things for which the employee can be fired. Other times, contracts will leave the issue open. In such a situation, the law usually says that you can only be fired for “good cause” — meaning a legitimate, business-related reason. If your contract says specifically that your employment is at will, however, you are stuck in the same boat as those without a contract, and your employer has a great deal of leeway in the reasons for which he or she can fire you.

How do I know if I have an employment contract?

  1. When most people think about contracts, they think of a formal written document. And many contracts do look that way. There are other kinds of contracts, however. You and your employer can come to an oral agreement that is never put in writing, and it will still be a valid contract under the right circumstances. And, if your employer has ever promised you something, that may be a contract as well.
  2. If you fit into the following situations and are fired for questionable reasons, then you might consider talking to an attorney:
    • Your employer, supervisor, or manager promised you that you would only be fired for certain reasons — for example, if you really messed up in your job or if the company failed.
    • Your employer, manager, or supervisor promised you that you would have a long and secure career at the company.
    • You and your employer, manager, or supervisor agreed orally on the terms or length of your employment.

What are illegal reasons for firing me?

  1. Employers do not have the right to discriminate against you in violation of state or federal fair employment laws. Such laws protect against discrimination based on race, national origin, sex, religion, disability, and age. In addition, some states also protect against discrimination based on sexual orientation, marital status, whether a person receives public funds, and/or other characteristics. Such state and federal laws also protect you from being fired in retaliation for making a complaint of discrimination or assisting in someone else’s complaint of discrimination on any of these bases.
  2. Other state and federal laws also protect workers from being fired for a variety of reasons, including, but not limited to, the following:
    • forming a union or being involved in union activity
    • complaining about or reporting unsafe working conditions
    • reporting illegal activities in your workplace (also known as “whistleblowing”)
    • asserting your legal rights or engaging in legal conduct, and
    • holding certain political or religious beliefs.
  3. If you believe you may have been fired for an illegal reason, contact your state department of labor and/or fair employment agency for more information.

What can I do to protect any legal rights I might have before leaving my job?

  1. Even if you decide not to challenge the legality of your firing, you will be in a much better position to enforce all your workplace rights if you carefully document what happened when you were fired. For example, if you apply for unemployment insurance benefits and your former employer challenges your unemployment application, you will typically need to prove that you were dismissed for reasons that were not related to your own misconduct.
  2. First, ask to see your personnel file. Make a copy of all reports and reviews in it. And make a list of every single document the file contains. That way, if your employer adds anything later, you will have proof that it was created after the events in question.
  3. There are a number of ways to document events that happened. The easiest is to keep a journal in which you record and date significant work-related events such as performance reviews, commendations or reprimands, salary increases or decreases, and even informal comments your supervisor makes to you about your work. Note the date, time, and location for each event; which members of management were involved; and any witnesses who were present. Keep your notes at home or in a secure place.
  4. Whenever possible, back up the notes in your journal with materials issued by your employer — such as copies of the employee handbook; memos; brochures; employee orientation videos; and any written evaluations, commendations, or criticisms of your work. However, don’t take or copy any documents that your employer considers confidential — this will come back to haunt you if you decide to file a lawsuit.


How long does mediation take?

  1. Typical mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party. Major business disputes — those involving lots of money, complex contracts, or ending a partnership — may last several days or more.
  2. Private divorce mediation, where a couple aims to settle all the issues in their divorce — property division, alimony, child custody, visitation, and support — generally requires half a dozen or more mediation sessions spread over several weeks or months.

How is mediation different from arbitration?

  1. A mediator normally has no authority to render a decision. It’s up to the parties themselves — with the mediator’s help — to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments. Although arbitration has traditionally been used to resolve labor and commercial disputes, it is growing in popularity as a quicker and less expensive alternative to going to court.
  2. Arbitration has its critics, however. There has been a lot of controversy lately about big businesses requiring their customers or employees to arbitrate disputes with them, rather than taking those disputes to court. Often, these arbitrations are conducted under rules that favor businesses — for example, damages are limited, time limits for filing a claim are shortened, or information sharing is cut off. Some courts have ruled that businesses can’t require consumers and employees to participate in these one-sided proceedings, although others have ruled differently.

What are the stages of mediation?

  1. While mediation is not as formal as going to court, the process is more structured than many people imagine. A typical mediation involves six distinct stages.
  2. Mediator’s Opening Statement: After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
  3. Disputants’ Opening Statements: Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.
  4. Joint Discussion: The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.
  5. Private Caucuses: The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position, and new ideas for settlement. The mediator may caucus with each side just once or many times, as needed. These meetings are considered the guts of mediation.
  6. Joint Negotiation: After caucuses, the mediator may bring the parties back together to negotiate directly.
  7. Closing: This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration, or going to court.

How can I be sure mediation will produce a fair result?

  1. In mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:
    • Legal precedents or the whim of a judge will not dictate the solution.
    • If your dispute has undiscovered or undisclosed issues, mediation — unlike a structured court battle — gives you the opportunity and the flexibility to ferret them out.
    • Because mediation doesn’t force disputants to undergo the fear and sometimes paranoia of the courtroom, — where a judge or jury can stun either party with a big loss — people who choose mediation tend to be more relaxed and open to compromise.

How can I find a good mediator?

  1. Much depends on the type of dispute you’re involved in. Many cities have community mediation centers that do an excellent job of handling most types of routine disputes (consumer problems, neighbor disputes, landlord-tenant fights). For more complicated disputes (business termination, personal injury, breach of contract) it is often better to turn to a private mediation center. Some organizations, like JAMS/ENDISPUTE, the American Arbitration Association, and Judicate, offer mediation services nationwide, while a number of regional groups do a good job. Private divorce mediations are usually handled by sole practitioners or small local mediation groups. Get a list from the phone book and check references carefully.

Are there some cases that should not be mediated?

  1. All parties to a dispute must agree to mediate, so if one party refuses or isn’t competent to participate, the case cannot be mediated. Mediation may also not be the best choice if:
    • One of the parties wants to set a legal precedent that interprets or defines the law according to its own point of view. Legal precedents cannot be set in mediation because mediation agreements do not establish who is “right” or “wrong,” and mediation decisions apply only to the parties involved in that particular mediation.
    • A person believes he or she can win a huge verdict against a big company (or even a small company with a big bank account or plenty of insurance). Because of the tendency toward compromise in mediation, hitting a legal “jackpot” is more likely in a jury trial.
    • One person feels intimidated or intellectually overwhelmed by the other, in which case it’s hard to arrive at a true meeting of the minds. It’s often possible, however, to remedy a “power imbalance” by arranging for the more vulnerable person to participate with an adviser — perhaps a lawyer.

If I choose mediation, will I still need a lawyer?

  1. In most mediations, you won’t need a lawyer right there with you. This is because the parties are trying to work together to solve their problem — not trying to convince a judge or arbitrator of their point of view — and because mediation rules are few and straightforward. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make a lawyer’s approval a condition of any agreement you reach.

Medical Malpractice

What is medical malpractice?

  1. Medical malpractice is negligence committed by a professional health care provider — such as a doctor, nurse, dentist, technician, hospital or hospital worker — whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in harm to a patient or patients.

Does someone who is not satisfied with the results of his or her surgery have a malpractice case?

  1. In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor’s deviation from the standard of care applicable to the procedure.

What should I do if I think I have a medical malpractice claim?

  1. You should talk to a lawyer who specializes in such cases, as soon as possible. Tell the attorney exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may wait to bring a medical malpractice claim, so time is of the essence.

What is ‘informed consent’?

  1. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient of all the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient’s written consent to proceed.

Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?

  1. Your physician had a duty to tell you that the drug was part of an experimental program, and you had the right to refuse to participate in it. You may have grounds for an action against your doctor based on his/her failure to obtain your “informed consent” relative to this treatment.

If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a malpractice action against my doctor?

  1. Yes, you still may be able to recover damages. A consent form does not release from liability a physician who was negligent in performing a medical procedure. If you can establish that your doctor deviated from the applicable standard of care in performing the procedure, and you were injured as a result, you may still recover against him/her. You may also have a claim that the procedure the physician performed went beyond the consent you gave, in which case the doctor might even be liable for battery.

How does a jury determine if a doctor’s actions were negligent?

  1. A jury will consider the testimony of experts, usually other doctors, who will testify whether they believe your physician’s actions followed standard medical practices, or fell below the accepted standard of care.

What is a ‘Certificate of Merit?’

  1. One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a “certificate of merit.” In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff’s health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff’s attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff’s action has merit.


Where should I shop for home loans or mortgages?

  1. Many entities, including banks, credit unions, savings and loans, insurance companies, and mortgage bankers make home loans. Lenders and terms change frequently as new companies appear, old ones merge, and market conditions fluctuate. To get the best deal, it’s a good idea to compare loans and fees with at least a half a dozen lenders — or to get the help of an experienced mortgage broker, who can help you sift through the latest offerings.
  2. Because many types of home loans are standardized to comply with rules established by the Federal National Mortgage Association (Fannie Mae) and other quasi-governmental corporations that purchase loans from lenders, comparison shopping is not difficult. However, you’ll need to decide what type of mortgage you’re interested in first, whether it’s a fixed rate, adjustable rate, or one of the many hybrids available now. Once you’ve narrowed your sights to a particular size, type, and length of mortgage — such as a 30-year fixed term mortgage for $300,000 — you’ll be ready to compare apples to apples.
  3. Mortgage rates and fees are usually published in the real estate sections of metropolitan newspapers, and on online mortgage websites. It’s wise to do some advance research even if you decide to work with a loan broker, so that you’ll have a sense of the market. Some loan brokers charge the consumer directly, others collect a fee from the lender (though this ultimately adds a little to what you pay for your mortgage).
  4. Be sure to check out government-subsidized mortgages, which offer both no-down-payment and low-down-payment plans. Also, ask banks and other private lenders about any “first-time buyer” programs that offer low-down-payment plans and flexible qualifying guidelines to low- and moderate-income buyers with good credit.
  5. Finally, don’t forget private sources of mortgage money — parents, other relatives, friends, or even the seller of the house you want to buy. Borrowing money privately is usually the most cost-efficient mortgage of all. And its popularity is increasing as investors turn to real estate as a high-appreciation place to put their money.

What are low down payment options, for buyers who can’t afford a 20% down payment?

  1. Assuming you can afford (and qualify for) high monthly mortgage payments and have a high credit score, you should be able to find a low (5% to 15%) down payment loan. However, you may have to pay a higher interest rate and loan fees (points) than someone making a larger down payment.
  2. Also, if you put down less than 20%, you may have to either pay for private mortgage insurance (PMI) or, to avoid PMI, take out two separate loans (a first mortgage and a second mortgage).

What is private mortgage insurance?

  1. Private mortgage insurance (PMI) policies are designed to reimburse a mortgage lender up to a certain amount if you default on your loan and your house isn’t worth enough to entirely repay the lender through a foreclosure sale. Most lenders require PMI on loans where the borrower makes a down payment of less than 20%.
  2. Premiums are usually paid monthly and typically cost around one-half of one percent of the mortgage loan. With the exception of some government and older loans, most lenders allow you to drop PMI once your equity in the house reaches 20-25% and you’ve made timely mortgage payments.

Can I tap into my IRA or 401(k) plan for down payment money?

  1. Under the 1997 Taxpayer Relief Act, first-time homeowners can withdraw up to $10,000 penalty free from an individual retirement account (IRA) or 401(k) for a down payment to purchase a principal residence (though you might have to pay income tax on the amount withdrawn.) Borrowing against your 401(k) offers several advantages:
    • You, not a bank, receive the interest payments.
    • The loan fees are usually less than what a bank would charge.
    • The paperwork is less than would be required for a typical bank loan.
  2. This $10,000 is a lifetime limit — and the money must be used within 120 days of the date you receive it. The law defines a first-time homeowner as someone who hasn’t owned a house for the past two years. If a couple is buying a home, both must be first-time homeowners. Ask your tax accountant for more information, or check IRS rules at http://www.irs.gov.
  3. You can also take an ordinary loan from your 401(k) plan. Ask your employer or plan administrator whether your plan allows loans. If it does, the maximum loan amount under the law is one-half of your vested balance in the plan, or $50,000, whichever is less. (If, however, you have less than $20,000 in your plan, your limit is the amount of your vested balance, but no more than $10,000.) Other conditions, including the maximum term, the minimum loan amount, the interest rate, and the applicable loan fees, are set by your employer. Any loan must be repaid in a “reasonable amount of time,” although the Tax Code doesn’t define what is reasonable.
  4. Be sure to find out what happens if you leave your job before fully repaying a loan from your 401(k) plan. If a loan becomes due immediately on your departure, income tax penalties may apply to the outstanding balance — but you may be able to avoid this hassle by repaying the loan before you leave the job.

What kinds of government loans are available to homebuyers?

  1. Several federal, state, and local government financing programs are available to homebuyers. The two main federal programs are:
  2. VA loans. U.S. Department of Veterans Affairs (VA) loans are available to men and women who are now in the military and to veterans with honorable discharges who meet specific eligibility rules, most of which relate to length of service. The VA doesn’t make mortgage loans, but guarantees part of the house loan you get from a bank, savings and loan, or other private lender. If you default, the VA pays the lender the amount guaranteed and you in turn will owe the VA. This guarantee makes it easier for veterans to get favorable loan terms with a low down payment. For more information, check the VA’s Website at http://www.va.gov or contact a regional VA office for advice.
  3. FHA loans. The Federal Housing Administration (FHA), an agency of the Department of Housing and Urban Development (HUD), insures loans made to all U.S. citizens, permanent residents, and noncitizens with work permits who meet financial qualification rules. Under its most popular program, if the buyer defaults and the lender forecloses, the FHA pays 100% of the amount insured. This loan insurance lets qualified people buy affordable houses. The major attraction of an FHA-insured loan is that it requires a low down payment, usually about 3% to 5%. For more information on FHA loan programs, contact a regional office of HUD or check the FHA website at http://www.hud.gov.
  4. For information on other government loans, contact your state and local housing offices. They often have programs available for first-time homebuyers who are purchasing modestly priced properties. To find your state housing office, check the State and Local Government on the Net Directory at http://statelocalgov.net. Or, go to your state’s home page, where you may find the listing for your state’s housing office.

What’s the difference between a fixed and adjustable rate mortgage?

  1. With a fixed rate mortgage, the interest rate and the amount you pay each month remain the same over the entire mortgage term, traditionally 15 or 30 years. A number of variations are available, including five- and seven-year fixed rate loans with balloon payments at the end.
  2. With an adjustable rate mortgage (ARM), the interest rate fluctuates according to the interest rates in the economy. Initial interest rates of ARMs are typically offered at a discounted (“teaser”) interest rate that is lower than the rate for fixed rate mortgages. Over time, when initial discounts are filtered out, ARM rates will fluctuate as general interest rates go up and down. Different ARMs are tied to different financial indexes, some of which fluctuate up or down more quickly than others. To avoid constant and drastic changes, ARMs typically regulate (cap) how much and how often the interest rate and/or payments can change in a year and over the life of the loan. A number of variations are available for adjustable rate mortgages, including hybrids that change from a fixed to an adjustable rate after a period of years, or “option ARMs” that allow you to choose, on a monthly basis, whether to pay a minimum amount, an interest-only amount, an ordinary principal plus interest amount, or an accelerated payment amount.

Which is better — a fixed or adjustable rate mortgage?

  1. It depends. Because interest rates and mortgage options change often, your choice of a fixed or adjustable rate mortgage should depend on:
    • the interest rates and mortgage options available when you’re buying a house
    • your view of the future (generally, high inflation will mean ARM rates will go up and lower inflation means that they will fall)
    • your personal financial and investment goals, and
    • how willing you are to take a risk.
  2. When mortgage rates are low, a fixed rate mortgage is the best bet for many buyers. Over the next five, ten, or thirty years, interest rates are more apt to go up than further down. Even if rates could go a little lower in the short run, an ARM’s teaser rate will adjust up soon and you won’t gain much if you plan to stay in the house more than a few years (the broker can tell you your break-even point). In the long run, ARMs are likely to go up, meaning many buyers will be best off locking in a favorable fixed rate now and not taking the risk of much higher rates later.
  3. Keep in mind that lenders not only lend money to purchase homes; they also lend money to refinance homes. For example, if you take out a fixed rate loan now, and several years from now interest rates have dropped, refinancing will probably be an option.
  4. There are several downsides to refinancing. Unless you can negotiate a low-cost refi, you may have to pay the same fees and points as for an original mortgage. This means you may reduce your monthly payment right away but not actually begin to save money on the refi for several years. (Again, your broker can tell you when you will break even.) So, if you think you will be moving again soon, it may not make sense to refinance.
  5. Second, if you default on a refinanced mortgage, your position under your state’s law can get worse. In California, for instance, when a homebuyer defaults (stops paying the mortgage) on a purchase mortgage, the lender can foreclose on the house but take nothing else from the homebuyer, while on a refinanced mortgage it can go after the homebuyer’s cash and other assets, after the house, to satisfy the debt.

How do I find the least costly mortgage? Does it make sense to pay more points for a lower interest rate?

  1. You can save real money if you carefully shop for a mortgage. Everything else being equal, even a one-quarter percentage point difference in interest rates can mean savings of thousands of dollars over the life of a mortgage.
  2. A popular option recently has been “interest-only” loans, which allow you to pay only the interest amount each month — not any principal — for the first ten years of the loan. This can lower your initial monthly payments significantly, allowing you to afford more house. Most interest-only loans are adjustable, but it is possible to find fixed rate interest-only loans too.
  3. In addition to comparing interest rates, there are many types of fees — and fee amounts — associated with getting a mortgage, including loan application fees, credit check fees, private mortgage insurance (if you’re making a low down payment), and points.
  4. Since points comprise the largest part of lender fees, it’s important to understand how they work: One point is 1% of the loan principal. Thus, your fee for borrowing $250,000 at two points is $5,000. There is normally a direct relationship between the number of points lenders charge and the interest rates they quote for the same type of mortgage, such as a fixed rate. The more points you pay, the lower your rate of interest, and vice versa.

Comparing Loans by Annual Percentage Rate

  1. One method to compare loans with different points is to use the Annual Percentage Rate (APR), which lenders must disclose to borrowers under federal law. The APR can be misleading, however, as its method of calculating the cost of a loan as a yearly rate assumes that the loan will not be paid off until the loan term ends. While most loans are for 30 years, people generally pay off their loans before the loan term ends because they either move or refinance sooner. Also, different lenders have various ways of calculating costs included in the APR, so that a loan for the same dollar amount and number of points may have different APRs with different lenders.
  2. Before comparing points to interest, factor in how long you plan to own your house. The longer you live in your house (or pay on the mortgage), the better off you’ll be paying more points up front in return for a lower interest rate. On the other hand, if you think you’ll sell or refinance your house within two or three years, we strongly recommend that you obtain a loan with as few points as possible.
  3. A good loan officer or loan broker can walk you through all options and tradeoffs such as higher fees or points for a lower interest rate. Or you can check a site such as http://www.homes.com to quickly compare various combinations of interest rates and points.

Ten Strategies for Buying an Affordable House

  1. To find a good house at a comparatively reasonable price, learn about the housing market and what you can afford, make some sensible compromises as to size and amenities, and above all, be patient. Here are some proven strategies to meet these goals:
    • 1. Buy a fixer-upper cheap (though its getting harder and harder to find ones that don’t need major work).
    • 2. Buy a small house (with remodeling potential) and add on later.
    • 3. Buy a house at an estate or probate sale.
    • 4. Buy a house subject to foreclosure (when a homeowner defaults on the mortgage).
    • 5. Buy a shared equity house, pooling resources with someone other than a spouse or partner.
    • 6. Rent out a room or two in the house.
    • 7. Buy a duplex, triplex, or house with an in-law unit that you can rent out for more income.
    • 8. Lease a house you can’t afford now with an option to buy later.
    • 9. Buy a limited equity house built by a nonprofit organization.
    • 10. Buy a house at an auction.

Nursing Home Abuse

If a resident of a nursing home has no contract with the home, can he or she still sue the home for improper care?

  1. Yes, nursing home residents (or their survivors) who are harmed due to improper care by a nursing home may recover damages under several different legal theories, even in the absence of a contract. A resident might have a cause of action that arises out of negligent personal supervision and care, negligent hiring and retention of employees, negligent maintenance of the premises, or negligent selection or maintenance of equipment. In addition, a nursing home resident who has been abused can pursue damages for assault and battery.

What rights do residents of nursing homes have?

  1. A resident in a nursing facility that participates in the Medicare program has the right, under statute, to be free from verbal, sexual, physical and mental abuse, and any physical or chemical restraint that is imposed for purposes of discipline or convenience, rather than to treat a medical condition. Restraints may be used upon the written order of a physician who specifies the duration and circumstances under which the restraints are to be used, but only to insure the safety of the resident or other residents. If a nursing home is not regulated by federal statute, its residents will still have rights under state laws, which will vary from state to state.

What will happen if a nursing home resident complains of neglect or abuse?

  1. Today, all states have a system for reporting allegations of abuse, neglect and exploitation of the elderly, for investigating the allegations. An investigation will usually include interviews with the resident, his or her family members, and nursing home staff and management. If the allegations are founded, adult protective services will provide services to the older person to try to remedy the problems and prevent their recurrence; however, there may be situations where the victim or the victim’s family do not feel satisfied or justly compensated for the injury or indignity suffered at the hands of the nursing home. In such cases, the resident or resident’s family member should speak to an attorney about bringing a civil action for damages against the nursing home. In addition, the circumstances may warrant a criminal prosecution.

What qualifies as ‘neglect’ in the nursing home setting?

  1. Most states define neglect of an older person as the failure to provide him or her with services essential to health and safety, such as food, shelter, clothing, supervision, and medical care. Whether such failures are intentional, or simply careless, often will determine whether a case against a nursing home is framed as one for neglect or abuse.

Does a visitor to a nursing home, rather than a resident, have any rights against the nursing home if he/she is injured there?

  1. Yes, someone injured while at a nursing home can bring a civil claim against the nursing home under the law of “premises liability,” which addresses injuries sustained on premises that are owned or maintained by others as a result of a dangerous or unsafe condition on that property. The injured party would probably proceed under a negligence theory, alleging that some negligence, either in the maintenance of the premises or in hiring employees, resulted in his or her injury.

Why are neglect and abuse common in the nursing home setting?

  1. Several factors have been shown to contribute to the abuse or neglect of nursing home residents, including: poorly qualified and inadequately trained staff; staff with a history of violence; inadequate numbers of staff; the isolation of residents; and, the known reluctance of residents to report abuse out of embarrassment or fear.

How can acts of abuse or neglect by a nursing home be addressed in legal proceedings?

  1. An act of abuse, neglect or exploitation of an older person might give rise to one or all of the following proceedings: 1) an investigation and finding by an adult protective services agency; 2) a civil cause of action for damages (a lawsuit); and/or, 3) a criminal prosecution. These proceedings have different objectives: the objective of a protective services investigation is to provide immediate help and relief to the victim and prevent further harm; the goal of a civil action (lawsuit) is to remedy damages; and the criminal prosecution is meant to punish the harmful conduct.

What constitutes ‘exploitation’ in the nursing home setting?

  1. Many states define exploitation as the wrongful use of an older person’s resources for profit or advantage. Some definitions refer simply to the misuse of an older person’s funds, property or person. Other states specify that, to qualify as exploitation, resources must have been obtained without the older person’s consent, or obtained through undue influence, duress, deception or false pretenses.

Pedestrian Accidents

I’ve been hurt in a pedestrian accident and I want to file a claim for my injuries. What’s the first thing I should do?

  1. There are a number of things you can do in the first few days and weeks after an accident to protect your right to compensation, such as: 1) write down as much as you can about the accident itself, your injuries and any other losses (such as wages) you’ve suffered as a result of the accident; 2) make notes of conversations that you have with people involved in the accident or the injury claim; 3) preserve evidence of who caused the accident and what damage was done by collecting physical items and taking photographs; 4) locate people who witnessed the accident and who might be able to help you prove your case; 5) notify anyone you think might be responsible for the accident and tell them about your intention to file a claim for your injuries, especially if a government agency or employee may be involved; and 6) contact a personal injury attorney to evaluate and pursue your claim.

What if I was partially at fault for the accident?

  1. You may bear some responsibility for the accident, which may reduce your eventual recovery. For example, if you were 50% at fault, your recovery may be reduced by 50%.

As a pedestrian, what duty is placed upon me to avoid accidents?

  1. Every pedestrian has the duty to obey traffic laws and to reasonably observe traffic conditions. Generally speaking, pedestrians should not begin or continue their forward course across a street if they are aware of the approach of a vehicle.

How soon after I am injured do I have to file a lawsuit?

  1. Every state has certain time limits called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, your claims can be dismissed. Consequently, it is important to talk with a lawyer as soon as you receive or discover an injury.

What damages are recoverable in pedestrian accident cases?

  1. The injured party may recover damages for past and future medical expenses, past and future wage loss, past and future pain and suffering. If the defendant’s conduct is extreme, punitive damages may be awarded. If the pedestrian dies, his or her survivors are entitled to recover full compensation for their economic losses that result from the pedestrian’s death, as well as damages which stem from the loss of society care and comfort of the decedent.

Do I need to retain an attorney?

  1. It is almost always a good idea to retain an attorney in a pedestrian accident case because there usually will be some questions related to fault and comparative negligence. Expert witnesses may need to be retained to reconstruct the accident factors, and help determine responsibility for the accident.

What should I bring to my meeting with a lawyer?

  1. You should provide a lawyer with any documents that might be relevant to your case. Police reports, for example, contain eyewitness information and details about the conditions surrounding auto accidents. Copies of medical reports and bills from doctors and hospitals will help demonstrate the extent and nature of your injuries. Information about the insurer of the person who caused your injury is extremely helpful, as are any photographs you have of the accident scene, your property damage, and your injury. The more information you are able to give your lawyer, the easier it will be for him or her to determine if your claim will be successful. If you haven’t collected any documents at the time of your first meeting, however, don’t worry; your lawyer will be able to obtain them during investigation of your claim.

Power Of Attorney(by Shae Irving)

Durable powers of attorney for finances — a simple way to arrange for someone to handle your finances if you can’t.

  1. A durable power of attorney for finances — or financial power of attorney — is a simple, inexpensive, and reliable way to arrange for someone to manage your finances if you become unable to do so yourself.
  2. A financial power of attorney is a good document to make for yourself, but it can also be a great blessing for your family. If you become incapacitated (unable to make decisions for yourself) and you haven’t prepared a durable power of attorney, a court proceeding is probably inescapable. Your spouse, closest relatives, or companion will have to ask a court for authority over at least some of your financial affairs.

When a Financial Power of Attorney Takes Effect

  1. A financial power of attorney can be drafted so that it goes into effect as soon as you sign it. (Many spouses have active financial powers of attorney for each other in case something happens to one of them — or for when one spouse is out of town.) You must specify that you want your power of attorney to be “durable.” If you don’t, it will automatically end if you later become incapacitated.
  2. Or, you can specify that the power of attorney does not go into effect unless a doctor certifies that you have become incapacitated. This is called a “springing” durable power of attorney. It allows you to keep control over your affairs unless and until you become incapacitated, when it springs into effect. Again, you must specify that you want your power of attorney to be “durable.” If you don’t, in this case, your document will never take effect at all.

Your Agent’s Job

  1. When you create and sign a durable power of attorney, you give another person legal authority to act on your behalf. This person is called your agent or, in some states, your attorney-in-fact.
  2. Commonly, people give their agent broad power to handle all of their finances. But you can give your agent as much or as little power as you wish. You may want to give your agent authority to do some or all of the following:
    • use your assets to pay your everyday expenses and those of your family
    • buy, sell, maintain, pay taxes on, and mortgage real estate and other property
    • collect Social Security, Medicare, or other government benefits
    • invest your money in stocks, bonds, and mutual funds
    • handle transactions with banks and other financial institutions
    • buy and sell insurance policies and annuities for you
    • file and pay your taxes
    • operate your small business
    • claim property you inherit or are otherwise entitled to
    • transfer property to a trust you’ve already created
    • hire someone to represent you in court, and
    • manage your retirement accounts.
  3. The agent is required to act in your best interests, maintain accurate records, keep your property separate from his or hers, and avoid conflicts of interest.

Making a Financial Power of Attorney

  1. To create a legally valid durable power of attorney, all you need to do is properly complete and sign a fill-in-the-blanks form that’s a few pages long. Some states have their own forms, but it’s not mandatory that you use them.
  2. Some banks and brokerage companies have their own durable power of attorney forms. If you want your agent to have an easy time with these institutions, you may need to prepare two (or more) durable powers of attorney: your own form and forms provided by the institutions with which you do business.
  3. You must sign the document in front of a notary public. In some states, witnesses must also watch you sign. If your agent will have authority to deal with your real estate, you must put a copy of the document on file at the local land records office. (In two states, North and South Carolina, you must record your power of attorney at the land records office for it to be durable.)

Financial Power of Attorney Forms

  1. Quicken WillMaker Plus will create a durable financial power of attorney for you, along with a will, living trust, and other important documents.

When a Financial Power of Attorney Ends

  1. Your durable power of attorney automatically ends at your death. That means that you can’t give your agent authority to handle things after your death, such as paying your debts, making funeral or burial arrangements, or transferring your property to the people who inherit it. If you want your agent to have authority to wind up your affairs after your death, use a will to name that person as your executor.
  2. Your durable power of attorney also ends if:
    • You revoke it. As long as you are mentally competent, you can revoke a durable power of attorney at any time.
    • You get a divorce. In a handful of states, if your spouse is your agent and you divorce, your ex-spouse’s authority is automatically terminated. In other states, if you want to end your ex-spouse’s authority, you have to revoke your existing power of attorney. In any case, it’s wise to make a new document as soon as you file for divorce.
    • A court invalidates your document. It’s rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.
    • No agent is available. To avoid this problem, you can name an alternate agent in your document.

Premises Liability

If someone falls and hurts herself on a hotel’s premises, does she have any recourse against the hotel?

  1. A hotel might be liable if someone slips or trips and fall on hotel premises. For example, if someone slips on spilled food or drink in a hotel bar or restaurant, snow and ice that has not been cleared from a walkway, or on wet tile floors or other slick surfaces, the hotel might be liable if it knew or should have known about the danger and failed to warn visitors or clean it up. A hotel could also be liable if someone is injured because of a design or building flaw (such as steps that are too steep), or due to the hotel’s failure to light an area properly.

Can a hotel be held responsible if someone is the victim of a crime at or near the hotel?

  1. A hotel usually cannot be held liable for crimes committed on or near the hotel unless it should have anticipated the crime (for example, the hotel is in a very high crime area) and could have prevented it, either by providing sufficient warnings or taking better security measures. In such situations, the hotel’s general duty to warn you about dangerous conditions may extend to a duty to warn about crime in or around the hotel. Furthermore, the hotel’s actions — such as failure to install proper locks on windows and doors, provide adequate lighting in parking areas or take adequate measures to ensure that passkeys are not used by criminals — may make the hotel at least partially liable.

Can a college or school be held liable for an attack on a student that occurred on campus?

  1. A student attacked on a college campus might have a negligence action against the college. In a developing area of premises liability law, courts have found entities such as universities, motels, convenience stores and shopping malls liable for attacks because they did not exercise reasonable care in preventing victims from being harmed by a third person. In general, a hotel must provide adequate security and not permit people to loiter. In a case involving a college campus, a court would look at the facts and ask whether similar attacks had occurred previously in the same area. If so, the court would ask what security precautions the college had taken, and might find that the steps taken were insufficient, holding the college liable.

If someone falls on a broken piece of a city sidewalk and is injured, can they sue the city?

  1. In many states, statutes giving local governmental entities immunity prohibit recovery in many kinds of cases against cities or towns. If there is not such a statute or ordinance in place, however, someone may have a case against the city. Municipalities have a duty to keep streets and sidewalks in repair. An injured party might have a successful case against the city if he or she can show that it failed to maintain the sidewalk properly. There are very important deadlines and procedural requirements for bringing such claims, so you may want to speak with an attorney if you believe that a municipality is responsible for your injuries.

Can someone attacked after withdrawing money from an automated teller machine (ATM) hold the bank responsible for the attack?

  1. Under the legal theory of premises liability, customers have sued banks for failing to protect them from assault at ATMs. While in the past banks had no duty to provide security against such crimes, such a duty has been recognized in a number of cases in recent years. In such a case, a judge or jury would determine if there were past attacks, and if a likelihood of a crime was foreseeable. If so, they may hold that the bank had a duty to protect people using that machine, and find the bank liable.

Do building owners have to have safety precautions, such as sprinklers and posted escape routes, in case of fires?

  1. Building owners and/or management are required to exercise reasonable care to prevent injuries in case of fire, and should help people on their properties escape, and these safeguards would probably include having sprinklers and posted escape routes.

Who is liable if a person is injured while walking on a public sidewalk next to a construction site, after tripping over a brick from the site?

  1. In some circumstances, the injured person will be able to recover damages from the construction company, which has a duty to take reasonable steps to keep public sidewalks near its construction site free from bricks and other debris. If the company fails to remove such obstructions and someone trips and falls, the company may be liable. Construction companies should also tell pedestrians they could get injured if they stray from the sidewalk. Posting a sign is usually not enough. If a company fails to place barriers and warning lamps by a building pit, for example, it may be responsible if anyone falls into it and gets injured.

What if someone gets injured while at the home of a neighbor, who invited him or her there for a party?

  1. Social guests are sometimes able to recover from their hosts, depending on how their injuries happened. Homeowners must tell their guests about, or correct, any dangerous conditions that guests are unlikely to recognize. For example, if an injury was caused when a guest tripped on a throw rug, he or she may be able to recover if he/she could prove that the host knew other people had tripped over it and the guest was unlikely to realize its danger. The host probably should have warned guests about it, removed it during the party, or secured it to the floor with tape or tacks.

Securities Law

What are securities?

  1. Securities are investment vehicles like stocks, mutual funds and bonds. As securities, they reflect investments by various individuals and entities in a common enterprise, like a corporation, made with the expectation of deriving a profit. For example, a stock represents a share, or percentage, in a corporation’s profits and assets. By purchasing stock an investor is buying a percentage of ownership in a company. If the corporation makes higher profits, the value of its securities will increase and the value of a stock will increase. Shareholders make money by selling their shares of stocks at a price higher than the price when they purchased the stock. When a corporation loses money the value of the investor’s shares will decrease.

What is securities fraud?

  1. Securities fraud occurs when an individual or entity acts in an attempt to illegally manipulate the investment market. Securities fraud may be committed by broker/dealers, financial advisor/analysts, corporations, and private investors. Renewed concern over securities fraud arose during the recent telecom bust. Investors lost millions on Internet companies that had gone from being highly rated and seemingly secure to bankrupt in a phenomenally short period of time.

Who commits securities fraud?

  1. Securities fraud may be committed by:
    • Brokers-dealers (misleading clients or advising based on inside information)
    • Financial advisors or analysts (purposefully offering poor advice or inside information)
    • Corporations (hiding or distorting information)
    • Private investors (acting on inside information)

What is a securities class action?

  1. A securities class action is a lawsuit that is brought on behalf of a group of investors who lost money because of claimed violations of the securities laws. Often such cases allege a series of false and misleading statements regarding a company’s business that caused the company’s stock to trade at higher prices than it otherwise would have. In other words, investors never would have paid as much as they did for the stock if they had known the truth about the company’s business. Typically, it is more efficient for investors to pursue their claims as part of a class, rather than pursuing an individual claim.

What are the benefits of a class action?

  1. A securities class action provides small shareholders with the ability to litigate on an equal playing field with the large, well-funded corporations who have allegedly violated the securities laws and have a lot of money to spend on defending lawsuits directed at those violations. A class action allows many people who would never have brought an individual action against a company to seek recovery from the company without having to individually retain a lawyer and incur a legal fee.

How do I know if I have a securities claim?

  1. If you purchased a publicly-traded security that declined in value after a significant negative disclosure about the company, you might have a claim.

What should I do if I have believe I have a securities claim?

  1. If you or someone you love has been the victim of securities fraud or other securities wrongdoings, you should contact a lawyer who has experience representing investors. An attorney who understands securities law will not only inform you of your rights as an investor, but also help to recover some, if not all, of what you lost.

How long does securities class action litigation take?

  1. A class action typically takes anywhere from one to four years to resolve. This is only a generalization of course. Some cases, if brought to trial followed by appeals, can last longer.

What is securities arbitration?

  1. 1987, the U.S. Supreme Court held that brokerage firms could enforce pre-dispute arbitration clauses contained in their standard form customer agreements. Virtually all brokerage firms’ customer agreement forms now contain arbitration clauses. As a result, most disputes between brokerage firms and customers are arbitrated. Arbitration is a private dispute resolution process in which three arbitrators are appointed to decide the merits of a case. In an arbitration, the parties are typically represented by counsel and present evidence through testimony and documents like in a court proceeding.

What is corporate fraud?

  1. When a corporation deliberately conceals or skews information to appear healthy and successful before shareholders, it has committed corporate or shareholder fraud. Corporate fraud may involve a few individuals or many, depending on the extent to which employees are informed of their company’s financial practices. Directors of corporations may fudge financial records or disguise inappropriate spending. Fraud committed by corporations can be devastating, not only for outside investors who have made share purchases based on false information, but also for employees.

Security Deposits

Are deposits for cleaning, pets, parking, or garage door openers considered security deposits and, thus, refundable?

  1. Yes. If the tenant performs the duties set forth in the lease, the landlord does not have a legal reason to keep the money whether the lease calls it a security deposit or not.

Must landlords hold security deposits in a separate bank account apart from other assets?

    1. Not unless the law imposes such a requirement. But if there is such a requirement, a landlord who fails to keep the security deposit separate from other money may owe damages to the tenant.

Sidebar: Interest on Deposits

  1. Most states have statutes requiring the landlord to pay interest on the security deposit. In those states, the landlord cannot avoid paying interest simply because a lease says the deposit does not earn interest.
  2. Some landlords try to get around this by calling the security deposit “prepaid rent.” But some laws say prepaid rent earns interest as well.
  3. After the passage of the local landlord-tenant ordinance in Chicago requiring the payment of interest on security deposits, a number of landlords converted the deposits to prepaid rent for the last month of the lease. So the City Council amended the ordinance to require the payment of interest on prepaid rent.

Under what conditions does the landlord owe a refund of the security deposit?

  1. The landlord will owe the tenant at least a partial refund if the rent was paid in full and the cost of repairs beyond normal wear and tear.

What does the lease say about security deposits?

  1. A preprinted standard lease form will probably contain a paragraph explaining that the tenant has made the deposit to assure compliance with all the terms of the lease. The lease will also set forth the conditions under which the landlord will return the deposit to the tenant. Most leases allow the landlord to keep all or part of the deposit if the tenant owes rent upon moving out or has caused property damage beyond normal wear and tear. Some of it may also be kept to pay for cleaning the premises for the next tenant.

What is a security deposit?

  1. It is money to protect the landlord in case the tenant damages the property or fails to pay rent. Usually the tenant pays the security deposit before moving in. The landlord may ask for any amount, but some local laws restrict the deposit to the equivalent of one or two months’ rent.

What should the tenant do if the landlord does not refund the deposit or refunds what the tenant believes is too little?

  1. The tenant should first try to negotiate with the landlord, perhaps with the help of a mediator. If that fails, the tenant should take the landlord to small claims court. Many states have a special small claims court where persons can sue to collect money owed to them without the need to hire an attorney. These courts are sometimes called pro se courts (Latin for “for oneself”) because the tenant, who will be the plaintiff in the lawsuit, is often required to appear without a lawyer. (In most places, the landlord may still hire an attorney.) This type of court is not as intimidating as regular court because the judge does not expect legal sophistication from the tenant.

Sexual Harassment

Fighting Sexual Harassment

  1. Employees can use the law and their company’s complaint procedures to protect themselves from harassment.
  2. In legal terms, sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. In real life, sexually harassing behavior ranges from repeated offensive or belittling jokes to a workplace full of offensive pornography to an outright sexual assault. It can happen to men and women, gay or straight — in other words, sexual harassment is an equal opportunity offense.
  3. Fortunately, there are state and federal laws that protect workers from sexual harassment on the job. These are the same laws that protect workers from discrimination based on gender. At the federal level, Title VII of the Civil Rights Act forbids harassment. In addition, most states have their own fair employment practices laws that prohibit sexual harassment — many of them more strict than the federal law.
  4. If you are being sexually harassed at work, there are a number of things that you should do to protect yourself.

Tell the Harasser to Stop

  1. Initially, you can try telling the harasser to stop. Although this confrontation may be difficult for you, it is often the most effective way of dealing with harassment. Some experts say it works up to 90% of the time. When confronted directly, harassment is especially likely to end if it is at a fairly low level: off-color jokes, inappropriate comments about your appearance, tacky cartoons tacked onto the office refrigerator, or repeated requests for dates after you have said no.
  2. Clearly saying you want the offensive behavior to stop is important, because it lets the harasser know that the behavior is unwelcome — which it must be in order to meet the legal definition of sexual harassment. It is also a crucial first step if you later decide to take more formal action against the harasser.
  3. If the harasser ignores your oral requests to stop, or if you are uncomfortable talking to the harasser face to face, write a succinct letter demanding an end to the behavior. Be sure to keep a copy.

Complain to Supervisors

  1. If communicating with the harasser doesn’t end the harassment, you should escalate your complaint within the company. Check your company’s employee handbook, personnel policies, or manual. Is there a sexual harassment or complaint policy? If so, follow it. If not, ask someone in the human resources or personnel department how to make a sexual harassment complaint. If you don’t get a good answer, complain to every manager and supervisor you can — and document everything. (See below for tips on how to document your actions.)
  2. Although it is often difficult to make a complaint at work, and you may prefer to skip this step, don’t. The U.S. Supreme Court has said that employees who fail to use their employer’s internal complaint procedure to make the company aware of sexual harassment — and to give the company a chance to stop it — cannot later hold the company liable in a lawsuit. This means that you are quite likely to lose in court — should it come to that — if you don’t complain to your company first.
  3. Even if your company doesn’t have a formal complaint procedure, you can put the company on notice of the harassment. You can do this by making a complaint to the human resources department, telling your supervisor (or his or her supervisor) of the problem, or informing a company executive.

Document Your Claims

  1. It is very important to document what is happening to you — and what you do to try to stop it — should you ever have to prove your case to a company investigator, a government agency, or a jury.
  2. Start by collecting as much detailed evidence as possible about the specifics of your harassment. Be sure to save any offensive letters, photographs, cards, or notes you receive. If you were made to feel uncomfortable because of jokes, pin-ups, or cartoons posted at work, confiscate them — or at least make copies. An anonymous, obnoxious photo or joke posted on a bulletin board is not anyone else’s personal property, so you are free to take it down and keep it as evidence. If that’s not possible, photograph the workplace walls. Note the dates the offensive material was posted — and whether there were hostile reactions when you took it down or asked another person to do so.
  3. Also, keep a detailed journal. Write down the specifics of everything that feels like harassment. Include the names of everyone involved, what happened, and where and when it took place. If anyone else saw or heard the harassment, note that as well. Be as specific as possible about what was said and done — and how it affected you, your health, or your job performance. Keep your journal and notes at home or in a secure place.
  4. If your employer has conducted periodic written evaluations of your work, make sure you have copies. In fact, you may want to ask for a copy of your entire personnel file — before you tip your hand that you are considering taking action against a harassing co-worker. Your records can be particularly persuasive evidence if your employer retaliates against you for complaining — which is also illegal. For example, you’ll want a copy of your records if you’ve had positive performance evaluations until you complain, and then your employer trys to transfer, demote, or fire you or claims your job performance is poor.

Complain to Government Agencies Before Filing a Lawsuit

  1. If complaining to your employer doesn’t help, the next step is to go to either the federal agency that enforces Title VII — the U.S. Equal Employment Opportunity Commission — or to your state fair employment office. If all investigation and settlement attempts fail to produce satisfactory results, you can file a civil lawsuit for damages under either Title VII or your state fair employment practices statute.
  2. You must file a complaint with the EEOC before filing a federal lawsuit. Even if you intend right from the beginning to file a lawsuit, you sometimes must first file a claim with a government agency. For example, an employee pursuing a claim under federal law must first file a claim with the Equal Employment Opportunity Commission (EEOC), and a similar complaint procedure is required under some state laws.
  3. The EEOC or state agency may decide to prosecute your case on your behalf, but that happens rarely. More commonly, at some point, the agency will issue you a document referred to as a “right-to-sue” letter that allows you to take your case to court with your own lawyer.
  4. Note, however, that there are time limits for filing claims with government agencies and for filing a lawsuit, so be sure not to miss them. For more information, contact the EEOC field office in your region (contact information is available at http://www.eeoc.gov ) and your state fair employment practices agency.

Slip And Fall

If someone falls on a broken piece of a city sidewalk and is injured, can they sue the city?

  1. An injured person may have a case against the city in such a situation, because municipalities have a duty to keep streets and sidewalks in repair. An injured party might have a successful case against the city if he or she can show that it failed to maintain the sidewalk properly. There are very important deadlines and requirements for giving municipalities notice of such claims, however, about which a lawyer should advise you.

What if someone gets injured while at the home of a neighbor who invited the injured person there for a party?

  1. Social guests are sometimes able to recover from their hosts, depending on how their injuries happened. Homeowners must tell their guests about, or correct, any dangerous conditions that guests are unlikely to recognize. For example, if an injury was caused when a guest tripped on a throw rug, he or she may be able to recover if he/she could prove that the host knew other people had tripped over it and the guest was unlikely to realize its danger. The host probably should have warned guests about it, removed it during the party, or secured it to the floor with tape or tacks.

Can someone receive compensation from a store where he or she was injured in a slip and fall accident?

  1. The specific facts of each case will determine whether an injured party can recover damages from a store for a slip and fall accident. Stores have a duty to keep their floors reasonably safe for customers, and employees should routinely inspect areas the public might access, to discover any potentially dangerous conditions. If a slippery substance on the floor causes a fall, and a plaintiff can show that the substance had been there for a relatively long period of time, or that the store otherwise had notice of it, he or she may be able to recover damages.

What duties do property owners have regarding ice and snow removal?

  1. Generally, the law doesn’t require a property owner to remove ice or snow that accumulates outside his or her building as the result of the weather. However, if conditions on the property cause an unnatural accumulation of ice or snow, the property owner may be liable for slip and fall accidents. In addition, if a property owner elects to provide snow or ice removal, he or she must not do so negligently.

When will the law say a property owner ‘should have known’ about a dangerous condition on his or her property?

  1. In most cases, the law will say a property owner “should have known” about a dangerous condition when it existed for such an amount of time that a reasonably careful person, under similar circumstances, would have discovered it.

Is the fact that someone warned an employee of a store about a spill important in proving a slip and fall case resulting from an accident caused by the spill?

  1. Yes, the fact that an employee of the property owner (or possessor) was given notice of a dangerous condition is very helpful in establishing that the owner knew of the condition and was negligent in failing to remedy it.

Can a building owner’s violation of a building code ever be used to help a plaintiff win a slip and fall case?

  1. Yes, occasionally a plaintiff can prove negligence by showing that a property owner violated a relevant statute or code. A building owner must ensure that his or her building’s structure is in compliance with applicable building codes. For example, building codes often dictate when and where handrails and other similar features must be installed. If you fall on a stairway that lacked appropriate handrails, and the lack of the handrail caused your injuries, you may have a valid claim against the building owner based on his or her building code violation.

Who can be held liable in a slip and fall case?

  1. In slip and fall cases, there are often a number of people or entities that may be held responsible for someone’s injuries. For instance, if a business rents space from a property owner, both the property owner and the tenant (the business) may be named as defendants by someone injured on the property. In that case, the tenant is known as a possessor of the property, and has a duty to use reasonable care to prevent injury to those on the premises under its control. A possessor might also be a party who manages or maintains the property, such as a management company.

Small Claims Court

Can any kind of case be resolved in small claims court?

  1. No. Small claims courts primarily resolve small monetary disputes. In a few states, however, small claims courts may also rule on a limited range of other types of legal disputes, such as evictions or requests for the return of an item of property (restitution). You cannot use small claims court to file a divorce, guardianship, name change or bankruptcy, or to ask for emergency relief (such as an injunction to stop someone from doing an illegal act).
  2. When it comes to disputes involving money, you can usually file in small claims court based on any legal theory that would be allowed in any other court — for example, breach of contract, personal injury, intentional harm or breach of warranty. A few states do, however, limit or prohibit small claims suits based on libel, slander, false arrest and a few other legal theories.
  3. Finally, suits against the federal government or a federal agency, or even against a federal employee for actions relating to his or her employment cannot be brought in small claims court. Suits against the federal government normally must be filed in a federal District Court or other federal court, such as Tax Court or the Court of Claims. Unfortunately, there are no federal small claims procedures available except in federal Tax Court.

Are there time limits in which a small claims court case must be filed?

  1. Yes. States establish rules called “statutes of limitations” that dictate how long you may wait to initiate a lawsuit after the key event giving rise to the lawsuit occurs or, in some instances, is discovered. Statutes of limitations rules apply to all courts, including small claims.
  2. You’ll almost always have at least one year to sue (measured from the event or, sometimes, from its discovery). Often, you’ll have much longer. If you’re planning to sue a state or local government agency, however, you’ll usually need to file a formal claim with that agency within three to six months of the incident. Only after your initial timely complaint is denied are you eligible to file in small claims court.
  3. If some time has passed since the incident giving rise to your lawsuit occurred — for example, after the breach of a written contract or a personal injury — you may need to do a little research to determine whether you can still file your claim. Check your state’s legal code under the index heading “statute of limitations.”

How much can I sue for in small claims court?

  1. The limit is normally between $3,000 and $7,500, depending on your state. For instance, the maximum is $3,000 in New York, $7,500 in California, $7,500 in Minnesota and $3,500 in Vermont. Recently, there has been a trend toward increasing small claims court limits.

Where should I file my small claims lawsuit?

  1. Assuming the other party lives or does business in your state, rules normally require that you sue in the small claims court district closest to that person’s residence or headquarters. In some instances, you also may be able to sue in the location (court district) where a contract was signed or a personal injury occurred (such as an auto accident). Check with your small claims clerk for detailed rules.
  2. If a defendant has no contact with your state, you’ll generally have to sue in the state where the defendant lives or does business. Because of the distance involved, out-of-state small claims lawsuits tend to be expensive and unwieldy.

What can I do to resolve my problem with out going to small claims court?

  1. If you want what’s owed to you, but you don’t want to take on the trouble of bringing a lawsuit, you have a couple of options to consider. First, even if you’ve been rudely turned down in the past, ask for your money at least once more. This time, make your demand in the form of a straightforward letter, concluding with the statement that you’ll file in small claims court in ten days unless payment is promptly received. Unlike a conversation, where the other party may assume you’ll never follow up, a demand letter is like a slap in the face that lets the person know you’re serious about getting paid. Because many individuals and small business people have a strong aversion to the idea of a public trial (including the time and inconvenience), making it clear you are prepared to file a lawsuit can be an effective catalyst to getting the other party to talk settlement.
  2. In addition, many states offer, and a few require, community- or court-based mediation designed to help the parties arrive at their own compromise settlement with the help of a neutral third party. Mediation works best where the parties have an interest in staying on good terms, as is generally the case with neighbors, family members or small business people who have done business together for many years. This type of dispute resolution can be remarkably successful. In Maine, for example, where mediation is required before a small claims suit may be brought, over half of the cases are settled voluntarily, without a court fight. For more information about mediation, see the next series of questions.

Will I get paid if I win the lawsuit?

  1. Not necessarily. The court may decide in your favor, but it won’t handle collection for you. So before you sue, always ask, “Can I collect if I win?” If not, think twice before suing.
  2. Worrying about whether or not you can get paid is reasonable, because some people and businesses are “judgment proof” — that is, they have little money or assets and aren’t likely to acquire much in the foreseeable future. If they don’t pay voluntarily, you may be out of luck. Ask yourself whether the person you’re suing has a steady job, valuable real property or investments. If so, it should be reasonably easy to collect by garnishing his wages if you win. If not, try to identify another collection source, such as a bank account, before going forward. For people who seem to have no job or assets, ask whether they are likely to be more solvent in the future, since court judgments are good for 10 to 20 years in many states and can usually be renewed for longer periods. You’ll want to consider now whether the person might inherit money, graduate from college and get a good job, or otherwise have an economic turn-around sometime down the road.

If I’m sued in small claims court but the other party is really at fault, can I counter sue?

  1. In some states, you can and must counter sue as long as your claim arises out of the same event or transaction. In other states, “counterclaims” are not mandatory and you can sue separately later. No matter what the technical rules, you’ll normally want to counter sue promptly.
  2. If the amount you sue for is under the small claims limit, your case will probably remain in that court. If, however, you want to sue for more, check with your small claims clerk for applicable rules. Often, you’ll need to have the case transferred to a different court which has the power to handle cases where more money is at stake.

What should I do to prepare my small claims case?

  1. Whether you are a plaintiff (the person suing) or the defendant (person being sued), the key is to realize that it’s usually what you bring with you to court to back up your story-not what you say-that determines whether you’ll win or lose. This makes sense if you understand that the judge has no idea who you are and whether your oral (spoken) testimony is reliable. After all, your opponent is likely to claim that the “true story” is exactly the reverse of your version.
  2. In short, your chances of winning will greatly increase if you carefully collect and prepare your evidence. Depending on the facts of your case, a few of the evidentiary tools you can use to convince the judge you are right include eyewitnesses, photographs, letters from experts, advertisements falsely hyping a product or service and written contracts.

What’s the best way to present my case to a judge?

  1. First, understand that the judge is busy and has heard dozens of stories like yours. To keep the judge’s attention, get to the point fast by describing the event that gave rise to your claim. Immediately follow up by stating how much money you are requesting. To be able to do this efficiently, it’s best to practice in advance. Here is an example of a good start: “Your Honor, my car was damaged on January 10, 2000, when the defendant ran a red light at Rose and Hyacinth Streets in the town of Saginaw and hit my front fender. I have a canceled check to show it cost me $927 to fix the fender.”
  2. After you have clearly stated the key event, double back and tell the judge the events that led up to your loss. For example, you might now explain that you were driving below the speed limit and had entered the intersection when the light was green, and when the defendant came barreling through the red light, you did your best to avoid the defendant’s car.

Can I bring a lawyer to small claims court?

  1. In a handful of states, including California, Michigan and Nebraska, you must appear in small claims court on your own. In most states, however, you can be represented by a lawyer if you like. But even where it’s allowed, hiring a lawyer is rarely cost-efficient. Most lawyers charge too much given the relatively modest amounts of money involved in small claims disputes. Happily, several studies show that people who represent themselves in small claims cases usually do just as well as those who have a lawyer.

Will my witnesses need to testify in person in small claims court?

  1. If possible, it’s best to have key witnesses present in court. But if this isn’t convenient, a clearly written memo or letter will be allowed under the rules of most small claims courts. (Be sure to check your state’s rules.) Have the witness start the statement by establishing who he or she is. (“My name is John Lomox. I’ve owned and managed Reo’s Toyota Repair Service for the last 17 years.”) In clear, unemotional language, the witness should explain what he or she observed or heard. (“I carefully checked Mary Wilson’s engine and found that it has been rebuilt improperly, using worn-out parts.”) Finally, the witness should try to anticipate any questions a reasonable person might ask and provide the answers. (“Although it can take a few days to get new parts for older engines, such as the one Mary Wilson owned, it is easy and common practice to do so.”)

If I lose my case in small claims court, can I appeal?

  1. The answer depends on the state in which you live. Many states allow either party to appeal within a certain period of time, usually between 10 and 30 days, and obtain a new trial. In many states, appeals must be based solely on the contention that the judge made a legal mistake, and not on the facts of the case. Other states have their own unique rules. In California, for example, a defendant may appeal to the Superior Court within 30 days. A plaintiff may not appeal at all, although she can make a motion to correct clerical errors or to correct a decision based on a legal mistake. To find the law for your state, call your local small claims court clerk.

Social Security Disability

What types of injuries are considered ‘disabling’?

  1. A “disabling” medical condition is one that can be expected to last at least twelve months and causes a worker to be unable to engage in gainful employment anywhere in the country. The Social Security Administration has published a list of impairments that are considered disabling, such as severe epilepsy and loss of vision or hearing. A medical condition that does not appear on the list may still be considered disabling if the worker can show that the condition is the medical equivalent of a listed impairment–that it is equal in severity and duration to a listed impairment.

What if workers do not suffer from a medical equivalent of a listed impairment?

  1. These employees would be eligible for benefits only if they could prove by another means that they had a disabling medical condition. They would have to show that their condition or disease is so severe that it prevented them from doing their former job or other similar work. It is not easy to prove this.

Can an injured worker receive social security benefits?

  1. Yes, if the employee is in a job covered by social security, and if the injury or illness is considered to be “disabling.”

Where can workers apply for social security disability benefits?

  1. Workers should file a claim at the local Social Security Administration office; there are offices in most large cities in the U.S. The following documents should be submitted with the application: a medical history along with a detailed statement from a doctor concerning the cause of the disability; a detailed work history; and information concerning educational background. These documents help the Social Security Administration decide whether the condition is disabling. Statements from family and friends may also be submitted.

Can a disabled worker’s spouse and children receive social security benefits for a worker’s disability?

  1. If the spouse and children meet the requirements for the worker’s social security retirement benefits, they should qualify for disability benefits.

State Versus Federal Courts

What is jurisdiction?

  1. When we say a court has jurisdiction to hear a case, we mean it has the authority to decide the kinds of issues raised in the case. Not every court has jurisdiction to hear every kind of case. One of the first questions to answer before filing a lawsuit is whether to bring the suit in state or federal court.

Why Isn’t There Just One Court System?

  1. The United States Constitution provides for a dual system of government, with both state and federal sovereigns. While Article III of the U.S. Constitution contemplates a federal judiciary operating as a co-equal branch of our national government, each state is expected to establish and operate its own court system as part of its own government. (The District of Columbia courts have a mixed state/federal quality in administering justice in our nation’s capital.) If there were no state or local courts, many cases could not be heard at all, for the Constitution limits the cases that can be brought in federal courts. A dual court system makes sense philosophically because it respects a state’s right to establish and enforce the law with respect to its unique problems and concerns. It also makes sense practically because, as a general rule, a state’s own courts are more familiar with state and local law.

What kinds of cases can federal courts decide?

  1. The jurisdiction of most federal courts is determined by Article III of the United States Constitution, which limits the kinds of cases federal courts can hear. These include, foremost, cases involving issues of federal law. This so-called “federal question jurisdiction” authorizes federal district courts to decide both civil and criminal cases in which federal law must be interpreted or applied. The federal law at issue may have arisen out of a federal statute or regulation, treaty, or a provision of the Constitution itself.
  2. Another category of cases that Article III has placed within the federal courts’ jurisdiction can be thought of as cases in which the Constitution’s framers feared that an out-of-state party might not trust the local courts to provide him or her with a neutral forum. Thus, Article III gives federal courts “diversity jurisdiction” over controversies:
    • between citizens of different states;
    • between two or more states; and
    • between citizens of the same state claiming lands under grants of different states.
  3. Similarly, federal district courts have jurisdiction over any suit to which the United States or one of its officers is a party.
  4. Cases involving ambassadors, consuls, and other public ministers (in other words, cases that might affect America’s relations with other countries) are also entrusted to the federal courts, as are cases involving the laws relating to navigable waters (the oceans, Great Lakes, and most rivers) and commerce on those waters. In addition, Congress has created specialized courts such as bankruptcy courts and tax courts.

What sorts of cases are decided by state courts?

  1. Most states have two levels of trial courts-special jurisdiction courts with jurisdiction limited to specific types of cases, and general jurisdiction courts with jurisdiction over all other cases. Special jurisdiction courts are dominated by traffic cases but also hear relatively minor civil and criminal disputes. Special jurisdiction courts often have exclusive jurisdiction over juvenile cases. These courts are variously called district, justice, justice of the peace, magistrate, county, municipal, or police courts.
  2. Courts of general jurisdiction hear most of the serious criminal and civil cases and are sometimes divided into subject areas such as domestic relations, probate, and state and local tax. These courts are variously called circuit courts, courts of common pleas, and, in New York State, the supreme court.
  3. Unlike the federal courts, state courts are not limited to hearing only the kinds of cases listed in Article III of the United States Constitution.

Do I ever have a choice of whether to sue in state or federal court?

  1. Yes. Although some cases are exclusively within the jurisdiction of one or the other court systems (juvenile cases, for example, are adjudicated in state juvenile courts, while all bankruptcies are filed in federal bankruptcy court), the state and federal courts have “concurrent jurisdiction” over many cases. A typical example would be a case involving a state law that is being litigated by a plaintiff from one state and a defendant from another state. The state courts would have jurisdiction because of the state law issues. But, if the case involves an “amount in controversy” of more than $50,000, the federal courts would have jurisdiction as well because the parties are citizens of different states. This is known as diversity-of-citizenship jurisdiction or, more commonly, diversity jurisdiction. Article III of the Constitution gives federal courts concurrent jurisdiction over these cases.

How is the federal court system structured?

  1. Rather than prescribing any one rigid structure for the federal courts, Article III merely requires that the judicial power of the federal government “be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Pursuant to this authority, Congress has created ninety-four United States District Courts (the trial courts in the federal system) as well as other specialized trial courts. Sandwiched between these trial courts and the Supreme Court are the intermediate appellate courts-twelve regional United States Courts of Appeals plus the Court of Appeals for the Federal Circuit, and the Court of Military Appeals.

How are the state court systems structured?

  1. State courts are the product of the individual state’s constitution and legislation. The resulting court systems vary in particulars. In addition to the two-tiered trial courts mentioned earlier, most states have an intermediate appellate court in addition to a state supreme court analogous to the United States Supreme Court.

How are judges selected?

  1. This is another important difference between the state and federal systems. All 649 federal district court judges are appointed for life by the president with the advice and consent of the United States Senate. The nine seats on the United States Supreme Court and the 179 seats on the thirteen United States Courts of Appeals are filled in the same way.
  2. The states, on the other hand, have a variety of procedures for filling judgeships. While many state judges are appointed by the governor for a term of years, many others are required to run for election.

Tax Bill

I am faced with a tax bill that I can’t pay. Am I completely at the IRS’s mercy, or do I have some options?

  1. Here are some options for dealing with a tax bill you unquestionably owe:
    • Borrow from a financial institution, family, or friends and pay it in full.
    • Negotiate an installment payment plan with the IRS. Interest and penalty charges will continue to accrue on the unpaid balance.
    • Make an offer in compromise. That is, ask the IRS to accept less than the full amount due. Interest and penalties will continue to accrue.
    • Reduce, eliminate, or pay the debt through bankruptcy.
    • Ask the IRS to designate your debt (temporarily) uncollectible for economic hardship if you are out of work or your income is very low. This will buy you time to get back on your feet before dealing with the IRS. Interest and penalties will continue to accrue.
    • Wait for the statute of limitation on the collection to expire.

I made a mistake on my tax return and am now being billed for the taxes, plus interest and penalties. Do I have to pay it all?

  1. Maybe not. The IRS must charge you interest on your tax bill, but penalties are discretionary. The IRS abates (cancels) one-third of all penalties it charges. The trick is to convince the IRS that you had “reasonable cause” (a good excuse) for failing to observe the tax law. Examples that might work include:
    • serious illness or a death in the family
    • destruction of your records by a flood, fire, or other catastrophe
    • wrong advice from the IRS over the phone
    • bookkeeper or accountant error, or
    • your being in jail or out of the country at the time the tax return was due.
  2. Start the process immediately. As soon as you receive a tax bill with penalties that you don’t want to pay, write back and ask for an abatement. The best way to get the IRS’s attention is to use IRS Form 843, Claim for Refund and Request for Abatement. You can also send a letter explaining why you incurred the penalty. Be sure to attach a copy of the IRS notice showing the penalty and any other documentation that helps explain your situation.

Can the IRS take my house if I owe back taxes?

  1. Yes, but the Taxpayer’s Bill of Rights discourages the IRS from seizing primary residences. Also, the IRS doesn’t like the negative publicity generated when it takes a home. Furthermore, IRS collectors cannot decide on their own to seize your home. The IRS must first get a court order, which you can contest.
  2. Nevertheless, if the IRS collection division has tried — and failed — to get any cooperation from you (for example, if you have not answered correspondence or returned phone calls, lied about your income, or hidden your assets), the IRS may go after your residence as a last resort.

Can the IRS charge me interest if I was incorrectly sent a refund and the IRS now wants it back?

  1. It depends. The Internal Revenue Manual states that “taxpayers should not be held liable for interest on … erroneous refunds if the IRS was clearly at fault … and the taxpayer is cooperative in repaying.” If you caused the refund and can’t afford to repay it, however, the IRS can charge interest from the time it requested the repayment.

How legitimate are the seminars and books by ‘tax experts’ claiming you don’t have to pay income taxes?

  1. Not at all. Constitutional arguments against the tax laws are routinely struck down by U.S. federal courts. Typical scams involve multiple family trusts, limited partnerships, and offshore banks. While these schemes can confuse and slow down the IRS, they are bogus, period. Would a federal judge — whom you will appear before if you are prosecuted for tax evasion and whose salary comes from the federal government — ever be likely to uphold one of these schemes? We think not.

Tax Consequences – Selling A Home

Do I have to pay federal taxes on the sale of my home?

  1. You do only if the profit on the sale is more than $250,000 ($500,000 for a couple.)

How do I determine my profits?

  1. You can calculate your profits by subtracting the adjusted cost basis of your home from its adjusted sales price. You can compute the adjusted cost basis by subtracting certain items such as the sales commission, lawyer’s fees, and fix-up expenses from the price of your home when you bought it.
  2. To calculate the adjusted sales price, start with the selling price. Then subtract the cost of capital improvements made while you owned the home and closing costs not deducted when you bought it. Note that you may not subtract the cost of repairs. The IRS is very strict about what it considers improvements. For example, repairing a water heater is not considered an improvement but adding a dishwasher is. Also, you may deduct the labor costs paid to a tradesperson (such as a carpenter) but not any costs for your own labor. The IRS requires home sellers to complete a form in the year of the sale that includes these calculations. You also will want to keep all receipts for any costs you are deducting from the sale. Without such written proof, the IRS is not likely to allow your deductions.

Now I have figured my profits. What about figuring my taxes?

  1. First, remember that if there is no profit, you do not have to worry about paying taxes; however, the IRS does not allow you to deduct any loss on a primary residence.
  2. Until May 7, 1997, homeowners who sold their house could defer payment of capital gains tax by rolling the proceeds of the sale into a new house–but only if the new house cost more than the old one did. Then, after age 55, when they were probably in a lower tax bracket and ready for a smaller home or retirement community, each person was entitled to exclude up to $125,000 in profit–but only once. Because of these rules, many families bought bigger, more expensive houses than they needed, especially if they moved to an area with lower real estate values.
  3. All this changed in 1997 with a new tax law. Now, you don’t have to pay capital gain on the sale of any residence you’ve lived in for at least two of the last five years, unless the profit is more than $250,000 per person or $500,000 per couple. You have to count not only the profit on this house but on any other houses you sheltered by rollover prior to 1997. If special circumstances meant you had to move before living there two years, you can exclude part of the profit–for instance, half the profit if you lived there only one year, up to your $250,000 limit.
  4. This change means that most people won’t have to pay capital gains taxes at all on their home, unless they’ve racked up enormous profit. And you can exclude capital gain on sale of your residence as many times as you wish. Note that this door doesn’t swing both ways. If you lose money on the sale of your home, you can’t deduct the loss and pay less in taxes.
  5. The capital gains exclusion doesn’t apply to investment properties and vacation homes. However, people with more than one home can avoid tax on each of them with a little planning. For instance, if you have a condo in New York City and a house in Florida, you could make the New York home your primary residence for two years before selling it, then make the one on Florida your primary residence for two years before selling it. For a house to count as your primary residence, you have to live there for 183 days each year.
  6. Win or lose, whenever you sell a home you have to file Form 2119, reporting the sale date, the price and how much profit is subject to immediate taxation, if any. This one-page form takes you through the calculations required to determine gain on sale, adjusted sales price, and taxable gain. If you die without selling the home, all capital gains taxes are wiped off the slate. Your beneficiaries will inherit it at a new, stepped-up basis, and they don’t have to pay any tax on capital gains accumulated on the sale of your home or homes over the years.
  7. What if you own a duplex, live in one unit and rent out the other? In that case, you can only avoid capital gain on the half you use as your residence. The other is a business property, not subject to this tax break. Save your receipts, because eventually your house just might gain enough in value that you’ll want to prove that your basis has increased and therefore the profit isn’t as great as it appears.
  8. For details on IRS regulations in this area, see Publication 523, “Selling Your Home.”

Will I owe state and local taxes on my profits?

  1. It depends. You may live in a state or city that will require you to pay state or local taxes on the profits of a home. Some states or local communities also charge a “transfer tax” on the sale of property. This tax is usually levied as a percentage of the sales price.

What is a sale-leaseback?

  1. A sale-leaseback occurs when you agree to sell your home to a buyer who agrees to rent the home to you for a certain period of time. Usually, this type of arrangement occurs between retired parents and their adult children. A sale-leaseback often provides the most advantages to retirees in low tax brackets who have children in high tax brackets. The family can structure it so that the children carry the burden of paying interest and take the benefit of deducting the interest from their taxes. The parents benefit by receiving income to offset expenses.
  2. The sale-leaseback can be established in two ways. Either the buyer can obtain a loan to buy the home outright or the seller can provide some of the financing. In the first case, the seller would pay rent to the buyer. In the second case, the seller would pay rent to the buyer while the buyer would make payments to the seller on the loan given by the seller.
  3. If you are considering this arrangement between relatives, be sure to have your agreement in writing and make sure that it conforms to IRS rules. For example, the IRS requires that the buyer pay a fair market price for the home and that the seller pay a fair market rent in order for the arrangement to avoid qualifying as a gift. In other words, the IRS will not permit you to structure a sale-leaseback to lower your estate taxes. An attorney can help you draw up the necessary papers to make sure you don’t inadvertently run afoul of the IRS rules and end up with a penalty or gift tax. See the chapter in this book on older Americans for more on sales-leasebacks, reverse mortgages, gift annuities, and other options of particular interest to older persons.

Tenant Injuries

When is a landlord liable for an injury to a tenant or visitor to the rental property?

  1. To be held responsible for an injury on the premises, the landlord or property manager must have been negligent in maintaining the property, and that negligence must have caused the injury. All of the following must be proven for a landlord to be held liable:
    • It was the landlord’s responsibility to maintain the portion of premises that caused the accident.
    • The landlord failed to take reasonable steps to avert the accident.
    • Fixing the problem (or at least giving adequate warnings) would not have been unreasonably expensive or difficult.
    • A serious injury was the probable consequence of not fixing the problem (the accident was foreseeable).
    • The landlord’s failure — his negligence — caused the tenant’s accident.
    • The tenant was genuinely hurt.
  2. For example, if a tenant falls and breaks his ankle on a broken front door step, the landlord will be liable if the tenant can show all of the following:
    • It was the landlord’s responsibility to maintain the steps (this would usually be the case, because the steps are part of the common area, which is the landlord’s responsibility).
    • The landlord failed to take reasonable measures to maintain the steps (for days or weeks, not if it had only been broken for minutes).
    • A repair would have been easy or inexpensive (fixing a broken step is a minor job).
    • The probable result of a broken step is a serious injury, and it was foreseeable (falling on a broken step is highly likely).
    • The broken step caused the injury (the tenant must be able to prove that he fell on the step and that the step is where he broke his ankle).
    • The tenant is really hurt (as in the case of a broken bone).
  3. A tenant can file a personal injury lawsuit for medical bills, lost earnings, pain and other physical suffering, permanent physical disability and disfigurement, and emotional distress. A tenant can also sue for damage to personal property, such as a stereo or car, that results from faulty maintenance or unsafe conditions.

How can landlords minimize financial losses related to repairs and maintenance?

  1. You can avoid many problems by maintaining the property in excellent condition. Here’s how:
    • Use a written checklist to inspect the premises and fix any problems before new tenants move in.
    • Encourage tenants to immediately report safety or security problems such as plumbing, heating, broken doors or steps — whether in the tenant’s unit or in common areas such as hallways and parking garages.
    • Keep a written log of all tenant complaints and repair requests with details as to how and when problems were fixed.
    • Handle urgent repairs as soon as possible — take care of any safety issues within 24 hours. Keep tenants informed as to when and how the repairs will be made.
    • Twice a year, give tenants a checklist on which to report potential safety hazards or maintenance problems that might have been overlooked. Use the same checklist to personally inspect all rental units once a year.
  2. Also, the responsibilities for repair and maintenance should be clearly set out in the lease or rental agreement.

How can insurance help protect a rental property business?

  1. A well-designed property insurance policy can protect a landlord’s rental property from losses caused by many perils, including fire, storms, burglary, and vandalism. (Earthquake and flood insurance are typically separate.)
  2. A comprehensive general liability (“CGL”) policy provides liability insurance, covering injuries or losses suffered by others as the result of defective conditions on the property. Equally important, liability insurance covers the cost (mostly lawyer’s bills) of defending personal injury lawsuits.
  3. Here are some tips on choosing insurance:
    • Purchase enough coverage to protect the value of the property and assets.
    • Be sure the policy covers not only physical injury but also libel, slander, discrimination, unlawful and retaliatory eviction, and invasion of privacy suffered by tenants and guests.
    • Carry liability insurance on all vehicles used for business purposes, including the manager’s car or truck if it’s used on the job.
  4. If you need more information, The Legal Guide for Starting & Running a Small Business, by Fred S. Steingold (Nolo), contains a detailed discussion of small business law, including how to insure your rental property.

Toxic Mold

What is mold?

  1. Molds are a type of fungus. Mold is a natural component of both outdoor and indoor air. However, when molds germinate and grow, they can produce large amounts of spores. When these spores land on damp areas indoors, they may begin growing, including in areas that are not readily visible, such as between furniture and walls. You can control indoor mold growth by controlling the moisture in your home. In the last several years concern has arisen that elevated levels of mold spores in indoor living or working environments may increase the risk of adverse health effects, particularly respiratory problems.

Are all molds harmful to health?

  1. Some molds have a greater potential to be harmful than others. The common types of indoor mold include: Cladosporium, Penicillium, Alternaria, Aspergillus, and Mucor.
  2. Studies have shown that mold exposure can trigger allergic reactions, asthma and respiratory difficulties. Symptoms include wheezing; difficulty breathing and shortness of breath; nasal and sinus congestion; irritated eyes; dry, hacking cough; irritated nose or throat; and skin rashes or irritation.

What types of mold are considered ‘toxic’ mold?

  1. Stachybotrys chartarum (also known as Stachybotrys atra) is one of many types of black mold that may grow on water-damaged building materials. This mold requires a lot of water or moisture to grow, so finding it indoors indicates some significant moisture accumulation problems. It only grows on materials with high fiber and low nitrogen content, such as paper (including wallpaper and the paper covering of gypsum wallboard), wood or jute (frequently used for the backing of older carpets). This mold does not grow on shower tile or plastic. In the outdoor environment it is found in soil, rotting hay and leaf debris. This mold, among others, may produce mycotoxins – chemicals that discourage growth of other microorganisms and that may also cause health problems in people.

What are mycotoxins?

  1. While they are growing, some molds produce metabolic products that discourage or prevent bacteria or other fungi from growing in the same area. When those metabolic products also cause health problems in animals or humans, they are called mycotoxins (myco = fungal origin). Thus, mycotoxins are natural products from molds that may cause a toxic response in vertebrates when small amounts are eaten, inhaled or touched. Molds that are capable of generating toxins (called “toxigenic mold”) do not always produce them in every situation. Scientists believe that certain very specific conditions must be present for a toxigenic mold to actually produce toxins — including the right combination of temperature, moisture, and type of material the mold is growing on.

Are there any tests that can tell if I have been exposed to mycotoxins?

  1. No, there are no laboratory tests of blood, urine or other body components that can determine if a person has been exposed to mycotoxins. Blood can be tested for antibodies to some specific types of fungi. However, these tests only determine if a person who has become allergic to fungi has been exposed recently to that specific type of fungus. Allergy tests cannot determine if a person has been exposed to fungal toxins.

Can the amounts of mold be measured in a home?

  1. There are currently no tests available through commercial laboratories to determine if mold toxins are present in the air or on surfaces in a home or workplace. Test methods that are currently available are used for research purposes and are not applicable to home or workplace situations. Decisions to clean up mold and precautions to take during the clean-up process do not require knowledge about the presence of mycotoxins. If there is visible mold or a moldy odor in a room, then there is a mold problem that needs to be addressed.

How can mold be eliminated indoors?

  1. There is no practical way to eliminate all mold and mold spores in the indoor environment; the way to control indoor mold growth is to control moisture. However, there are a few steps that can be followed to reduce the amount of mold or prevent it from growing:
    • It is important to dry water-damaged areas and items within 24-48 hours to prevent mold growth.
    • If mold is a problem in your home, clean up the mold and get rid of the excess water or moisture.
    • Fix leaky plumbing or other sources of water.
    • Wash mold off hard surfaces with detergent and water, and dry completely.
    • Absorbent materials (such as ceiling tiles & carpet) that become moldy may have to be replaced.
    • In areas where there is a perpetual moisture problem, do not install carpeting (i.e., near drinking fountains, close to classroom sinks, or on concrete floors with leaks or frequent condensation).
    • Reduce indoor humidity (to 30-60%) to decrease mold growth by: venting bathrooms, dryers, and other moisture-generating sources to the outside; using air conditioners and de-humidifiers; increasing ventilation; and using exhaust fans whenever cooking, dishwashing, and cleaning.

Have there been any lawsuits over toxic mold?

  1. Many homeowners who experience significant damage to their homes or health problems have received large jury verdicts and settlements, many in the million-dollar range. For example, in Delaware a landlord was held liable for more than a million dollars because he negligently did not fix water leaks in the apartment, which resulted in the growth of toxic mold and health problems for tenants. In California, a contractor’s poor construction caused water leaks that contributed to the growth of mold, causing serious health problems for the homeowners. The verdict was more than a million dollars.

Traffic Tickets

Traffic Tickets – Basics

  1. More than ninety percent of the people in this country over the age of sixteen are licensed to drive, and there is more than one car registered for each one of them. These figures translate into trillions of miles driven each year with millions of traffic infractions, making traffic control an issue of immense proportions. The first traffic laws and regulations began to appear in the 1920s, and they now constitute a huge part of most state codes.
  2. The primary purpose of traffic-violation regulations is to deter unsafe driving and to educate and reform bad drivers. Studies have shown that traffic offenders generally keep amassing traffic violations, and that most people obey the laws, even when there is no perceived safety reason for doing so, such as waiting for a green light at 2:00 a.m. Compliance with the laws increases when drivers believe they will be caught and decreases when they perceive they can get away with a specific infraction.

Traffic Tickets: ‘Strict Liability Offenses’

  1. The majority of traffic tickets are issued for “strict-liability” offenses. This means that no particular criminal intent is required to convict a person of the offense. The only proof needed is that the person did the prohibited act. Strict-liability traffic offenses typically include such offenses as:
    • Speeding
    • Failure to use turn signals
    • Failure to yield
    • Turning into the wrong lane
    • Driving a car with burned-out headlights
    • Parking in a handicap spot without the required sticker, and
    • Overdue parking meters.

Moving Violations vs. Non-Moving Violations

  1. A moving violation occurs whenever a traffic law is violated by a vehicle in motion. Some examples of moving violations are speeding, running a stop sign or red light, and drunk driving. A non-moving violation, by contrast, is usually related to parking or faulty equipment. Examples include parking in front of a fire hydrant, parking in a no-parking zone, parking in front of an expired meter, and excessive muffler noise.

Processing Traffic Tickets

  1. Many jurisdictions provide for administrative processing of most traffic tickets as minor offenses or “infractions”, thereby removing them from criminal court altogether. In those cases, an offender is not subject to incarceration or large fines and is not entitled to a lawyer or a jury trial. (Note: The fine for speeding tickets can be quite large, as some states impose a fine based on the rate at which the offender was exceeding the speed limit.) Even though most traffic tickets are handled in an expeditious manner in the court system, a “conviction” for a traffic infraction can have a negative effect on a person’s driving privileges and insurance rates.
  2. Certain traffic violations are considered more serious than infractions, and can rise to the level of a misdemeanor crime (or felony), especially if the offense involves injury to a person or destruction of property (such as leaving the scene of an accident). People accused of these more-serious traffic violations are entitled to all constitutional protections provided to criminal defendants, including the right to a court-appointed attorney and a jury trial.

Traffic Tickets: Get Help Now

  1. Even good, safety-focused drivers can be charged with a traffic violation. If you have been charged with breaking a traffic law and would like to learn more about your rights to “fight” the ticket, the best place to start is to speak with an experienced Traffic Ticket Attorney in your area. A Traffic Ticket Attorney will evaluate all aspects of your case and explain all options available to you — including the administrative procedure and driving record penalties you can expect — and will work with you to ensure the best possible outcome for your case.

What is a ‘moving violation’?

  1. A moving violation occurs whenever a traffic law is violated by a vehicle in motion. Some examples of moving violations are speeding, running a stop sign or red light, and drunk driving. A non-moving violation, by contrast, is usually related to parking or faulty equipment. Examples include parking in front of a fire hydrant, parking in a no-parking zone, parking in front of an expired meter, and excessive muffler noise.

If I am guilty of a traffic violation, shouldn’t I just pay the ticket and get it over with?

  1. If you plead guilty to a traffic charge, the court will typically require you to pay the maximum fine allowed by law and will record the conviction on your DMV record for a period of years. A conviction on your record can increase your insurance premiums and accumulate with any other charges such that, eventually, you could lose your driving privileges. An experienced Traffic Ticket Attorney can advise you on whether it may be worth fighting a ticket in your particular circumstances.

How does police radar work?

  1. Radar works by sending out pulses or a continuous signal of radio waves and “listening” for the reflection. When the pulse hits a moving object, its frequency changes. The exact amount of change depends on the speed of the object and the direction in which it is traveling. Most police forces use radar for measuring speed, enforcing speed limits, and collecting revenue. Some defendants have, however, been able to successfully challenge radar readings in court.

How does laser detection work?

  1. LIDAR (light detection and ranging) is different from conventional radar in that it uses laser light to detect vehicle speed and measures the distance from the gun to the target several times. From the change in distance, it can calculate the speed of a passing vehicle. The usual target of the laser is the vehicle’s license plate, which is easy to see and is a good reflector. This is important because the gun relies on the reflections from the target to calculate the speed. It is essential that the gun be held very steady to get an accurate reading. LIDAR, unlike radar, is very hard to detect by “fuzz-buster”-type devices.

Do police officers have a quota of tickets to write by the end of the month?

  1. Although the enforcement of “quotas” is not standard police department practice, police work, like all occupations, does include performance standards. If a police officer consistently returns at the end of his or her shift with no stops or arrests to report, that could and should arouse suspicion from the higher-ups. Nonetheless, the real crux of the matter is not whether an officer was trying to achieve some magical number of citations, but rather whether the particular citation issued was valid and justified. If not, it may be worth fighting it in court, whether it was the first ticket of the month or the one-thousandth.

Can I refuse a Breathalyzer test if I get stopped for drunk driving?

  1. Although the answer can vary by state, in many cases such a refusal is itself a criminal violation subject to stiff penalties. In addition, if the case against you is proven anyhow, the penalties for the refusal may be above and beyond those for the drunk driving itself.

Should I try to ‘pay my way’ out of a ticket?

  1. Offering a police officer money in exchange for not writing a traffic ticket can be viewed as bribery, extortion, or other serious crimes. If you want to contest the ticket, there are legitimate ways to do so that will not add to your problems, compound the penalties, and exacerbate the situation.

What is the difference between a misdemeanor traffic offense and a felony traffic offense?

  1. Although many traffic violations are deemed mere infractions, some are misdemeanors, which carry stiffer fines and the possibility of up to one year in jail. The most serious traffic crimes are felonies, which generally involve repeat offenses or violations that result in injury to persons or property. Felonies have even greater penalties, including higher fines and imprisonment for over a year.

What if I lose my license but continue to drive anyway?

  1. If a person whose license has been revoked or suspended due to previous traffic violations chooses to drive without a valid license and is pulled over, he or she stands to suffer more serious consequences, including fines and imprisonment. The more prudent course of action is to rely on friends and family for rides or use public transportation.

The Traffic Ticket ‘Points’ System

  1. Each state has a system that assigns a point value to different kinds of traffic offenses, used by the state’s motor vehicle department to keep track of the driving records of all licensed drivers in the state. More serious offenses have higher point values, whereas minor violations are assigned minimal points. For example, in one state, failure to come to a complete stop at a stop sign might be worth two points, while driving thirty miles per hour over the posted speed limit might be valued at four points. An example of how the points might break down is given below. Although this listing of offenses is not exhaustive and point systems vary from state-to-state, this example shows the relative values that might be assigned by a particular state, based on the seriousness of the offense.
  2. Six Points
    • Manslaughter, negligent homicide, or another felony involving the use of a motor vehicle
    • Operating under the influence of alcohol or drugs
    • Failing to stop and give identification at the scene of an accident
    • Reckless driving
    • Unlawful blood-alcohol content (BAC) level
    • Refusal to take a chemical test
    • Fleeing or eluding a police officer
  3. Four Points
    • Drag racing
    • Impaired driving
    • Any blood-alcohol level in a driver under twenty-one years of age
    • Sixteen miles per hour or more over the legal speed limit
    • Failure to yield to an emergency vehicle
      • Three Points
        • Careless driving
        • Disobeying a traffic signal or stop sign or improper passing
        • Eleven to fifteen miles per hour over the legal speed limit
        • Failure to stop at a railroad crossing
        • Failure to stop for a school bus or disobeying a school crossing guard
      • Two Points
        • Ten miles per hour or less over the legal speed limit
        • All other moving violations of traffic laws
        • Refusal of breath test for alcohol content by a driver under twenty-one years of age
      • If a driver accumulates a certain number of points within a given time frame, his or her driving privileges can be suspended. Insurance companies also have access to this information and may use it as a basis to raise insurance premiums.

Traffic Tickets ‘Points’ System: Get Help Now

  1. Even good, safety-focused drivers can be charged with a traffic violation. If you have been issued a traffic ticket and would like to learn more about the potential impact on your driving record and car insurance rates (and about your rights to “fight” the ticket) the best place to start is to speak with an experienced Traffic Ticket Attorney in your area. A Traffic Ticket Attorney will evaluate all aspects of your case and explain all options available to you — including the administrative procedure and driving record penalties you can expect — and will work with you to ensure the best possible outcome for your case.

What should I do if the police arrest me?

  1. Better to discuss what you shouldn’t do. Do not:
    • speak to anyone about your case;
    • answer police queries or waive your right to advice of counsel;
    • submit to a lineup or any kind of tests without your lawyer;
    • dodge news photographers or cover your face (looks guilty);
    • be impolite to the police.
  2. Some people cooperate with the police by making statements in the hope that the officer will let them go. Remember that once you have been arrested you will be charged with an offense, and any statements you make, if incriminating, will be used against you.

What do I tell my lawyer while I’m in custody?

  1. Be prepared to tell your attorney where the police have taken you, where the arrest occurred and if it was made by uniformed or plainclothes police, the charges against you, and the amount of bail you can afford.

If the police arrest me and issue a citation, can I dispose of the case in a non-criminal way?

  1. No. Once you’ve been arrested, you must go through the criminal process.

Suppose the police stop me and I’ve forgotten my license at home?

  1. Driving a motor vehicle on a public street or highway without a license is an offense in most states. Often, a person accused of failing to have a license in his or her possession can avoid conviction if able to produce a license in court that was valid at the time of the police stop.

What is the difference if the state suspends, cancels, or revokes my license?

  1. Suspension involves the temporary withdrawal of your privilege to drive. The state may reinstate that privilege after a designated time period and payment of a fee. You may also restore the privilege by remedying the underlying cause of the suspension, such as buying automobile insurance.
  2. Cancellation involves voluntarily giving up your driving privilege without penalty. Cancellation allows you to reapply for a license immediately.
  3. Revocation aims both to discipline the driver and protect the public. Revocation involuntarily ends your driving privilege. Revocation generally is permanent until you are eligible after a minimum period set by law to apply for a new license. The state may conduct a reinstatement hearing. You may have to retake a driver’s license examination.

Driving With a Suspended or Revoked License

  1. The police probably will arrest you for driving with a suspended or revoked license. This usually is a serious misdemeanor that carries with it a stiff fine and possibly some time in the local jail. In some states, however, it may be a felony that lands the offender in state prison or with a significant amount of community service to work off, particularly if the suspension or revocation was based upon a DUI.
  2. If you are stopped while driving with either a revoked or suspended license, you can expect to be arrested and taken to the police station to post bond. If you cannot raise the required amount of bond money, you will be taken to court for a bond hearing (usually within twenty-four hours), where a judge, in his or her broad discretion, will set bond.
  3. You will remain in jail until the bond is posted. The bond you will need to post depends on the crime you are alleged to have committed and on your previous driving record. A monetary bond might be set, or you might be released on a personal recognizance bond, which requires only your signature and promise to return to court as ordered and not to violate any other laws.

If State A has suspended/revoked my license, but I have a valid license in State B, can I drive in State A?

  1. Under the law of some states, a valid driver’s license from another jurisdiction does not enable you to drive on the highways of a state that has cancelled, suspended, or revoked your license. However, other states have held that a license properly issued by a foreign state under the Driver’s License Compact ends the suspension or revocation of a motorist’s original license.

What are the grounds for license suspension?

  1. They vary by state. A local lawyer will be able to give you details about your state laws. Generally, however, a state might provide that three moving violations within one year warrant a three-month suspension. Refusal to submit to a field sobriety or breath testing device test also will result in suspension.

What are the grounds for license revocation?

  1. They are based on violating specific laws, such as habitual reckless driving, drunken driving, nonpayment of your motor vehicle excise tax, using a motor vehicle to commit a felony, and fleeing from or eluding the police. Again, they vary by state.

Does the law entitle me to notice and a hearing before the state revokes my license?

  1. Barring an emergency, due process under the Fourteenth Amendment generally requires notice and a chance to be heard before the state ends a person’s license privileges. However, for certain serious offenses, the state may simply rely on the court conviction to revoke the person’s license without the need for any hearing.

What if the state charges me with an offense that requires a license suspension?

  1. Unless another law says otherwise, no notice is necessary before a state may suspend your license under the mandatory provisions of a law. As a driver, you are presumed to know the law.

If the state does notify me, what should the notice say?

  1. The time, place, and purpose of the hearing should appear on the notice of a hearing to suspend or revoke your license.

Does the law entitle me to a jury?

  1. No. A suspension/revocation hearing is an administrative, not a judicial proceeding. You are entitled, however, to confront and cross-examine witnesses against you at such a hearing. You are well advised to be represented by counsel at such a hearing.

What must the state prove before a court can convict me of driving on a suspended or revoked license?

  1. The law varies from one state to another. The state, however, usually has to show that:
    • the accused’s license or privilege to drive was revoked or suspended on the occasion in question; and
    • the accused was driving a motor vehicle on a public highway at the time of the offense.


How does a bench trial differ from a jury trial?

  1. In a bench trial, the judge must determine the facts (what really happened, as distinguished from what the plaintiff alleged happened) and then apply the law to the facts. In a jury trial, the fact-finding function belongs to the jury. For example, in a negligence action for damages tried before a jury, the judge would decide whether state law imposes a legal duty on a host to warn guests of hidden dangers on his or her property. It would be for the jury to decide whether a loose step on the host’s back porch was such a danger, whether the guest had in fact been warned not to go onto the back porch, whether that warning was sufficient under the law, whether the guest’s alleged injuries were real, and whether they were actually caused by a fall off the step.

How do the attorneys select the jury for my case?

  1. Each attorney and/or the judge asks the potential juror questions designed to discover any potential bias or prejudice for or against the parties or issues in the case. If the juror concedes such a bias or if evidence suggests he or she may have one, the attorney may ask the court to strike the juror “for cause” and remove him or her from the pool of potential jurors in that case. If the judge refuses to remove the potential juror “for cause,” the attorney will consider whether to use one of his or her “peremptory strikes” to remove the juror. In federal civil trials, each party can make up to three peremptory strikes to remove a juror without providing a reason.

My case will be tried before a jury. What does this entail?

  1. Jury trials begin with “opening statements” presented to the jury by the lawyer for each party. The opening statement serves to introduce the jurors to each side’s theory of the case and outlines what each side plans to establish during the trial. For example, in a personal injury case, the plaintiff will argue that the defendant owed the plaintiff a legal duty of some sort, that he or she breached that duty, and that, as a result, the plaintiff suffered a financial loss or other injury. The defense, meanwhile, will explain why there is reason to doubt one or more of those elements of the plaintiff’s case.

May an attorney use peremptory strikes to remove jurors on the basis of their race?

  1. No. In the landmark case of Batson v. Kentucky, the Supreme Court in 1986 prohibited prosecutors from exercising peremptory strikes for racially discriminatory reasons in criminal trials. This principle has since been extended in other cases so that it is now generally agreed that neither side in either criminal or civil trials may exercise any peremptory strikes for racially discriminatory reasons. (In 1994, the U.S. Supreme Court decided in J.E.B. v. Alabama ex. rel. T.B. that this principle should be applied to bar gender-based peremptory strikes as well).

How will the sides present their cases?

  1. Through the testimony of witnesses and the introduction of relevant documentary or physical evidence. The plaintiff will present the testimony of his or her witnesses first. After each witness for the plaintiff is questioned on “direct examination” by the plaintiff’s lawyer, the defendant’s lawyer usually “cross examines” the witness. Cross examination may be followed by “redirect” examination by the plaintiff’s counsel and “re-cross” examination by the defendant’s counsel. When all of the plaintiff’s witnesses have testified, the plaintiff rests. If the defendant has raised any affirmative defenses, he or she will call witnesses for direct examination in an attempt to establish these defenses. Again, each witness is usually subject to cross-examination and may be subject to redirect and re-cross examination.
  2. Unless the jury is instructed otherwise, all of the witnesses’ testimony will be evidence in the case, as will any documents or other physical evidence that the attorneys were successful in admitting.

How does a direct examination differ from a cross-examination?

  1. Direct examination is conducted by the party calling the witness while cross-examination is conducted by the opposing party. Direct examination is intended to establish the plaintiff’s case or the defendant’s defense; cross-examination is intended to undermine or discredit the testimony given under direct examination.

What does it mean for a judge to ‘sustain’ an objection?

  1. One of your attorney’s duties is to raise an appropriate “objection” to any violation of the rules governing the kinds of evidence the jury can and cannot weigh in deciding a case. When a court “sustains” your attorney’s objection, it is telling your opponent’s attorney that he or she is proceeding in violation of applicable procedural law and must correct his or her error. In addition, if an objection is sustained, the answer given is not in evidence and the jury will be instructed by the judge to disregard the answer.
  2. Objections to questions may be “overruled,” in which case the answer is in evidence and may be considered by the jury. However, even if the court overrules your attorney’s objection, the objection will now be “preserved” in the written record of your trial and, thus, can be reviewed by an appellate court if you should lose at trial. In many instances, a failure to object at trial can be deemed to “waive” your right to complain about the matter later.

What are the rules of evidence?

  1. Taken together, these voluminous and complex rules require fact-finding judges or juries to base their decisions solely on relevant evidence that has some minimum likelihood of being reliable. As explained in the criminal justice chapter’s discussion of the exclusionary rule, some evidentiary rules are fashioned to further other important policies, such as protecting civil liberties.

What is the rule against hearsay?

  1. Although it is one of the most familiar evidentiary rules, the rule that hearsay is generally inadmissible at trial is also one of the most complex because it is has so many nuances and exceptions. The Federal Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Two major problems often arise when an attorney raises this rule at trial and asks that the jury not be allowed to hear or consider some statement that the other side wants to introduce.
  2. First, the judge must determine why the party is seeking to introduce the out-of-court statement. For example, assume that the plaintiff’s attorney objects when a defense witness named John testifies that he heard a friend named Bill yell, “Look out! Mark has a gun!” Is John seeking to relate Bill’s statement in order to help persuade the jury that Mark did have a gun? If so, the statement may well be inadmissible hearsay. If the defense wants the jury to consider Bill’s statement, it will have to put Bill on the stand so that he can be cross-examined about it.
  3. On the other hand, the defense could argue that John is not introducing Bill’s statement in order to prove that Mark really did have a gun, but only to show why the defendant reasonably thought that Mark was armed. In that case, the statement might not be hearsay because it is not being offered to prove the truth of the matter in the statement, but only to show that the statement was made or to indicate the defendant’s state of mind.

Even if the statement is hearsay, could it be admitted anyway?

  1. Actually, it could. For example, one of the many exceptions to the rule against hearsay provides that “excited utterances” may be admissible despite their hearsay nature. The rationale is that a statement is more likely to be truthful if it was made before the speaker would have had any time to think up a falsehood in the immediate aftermath of some exciting event.


When I buy a consumer product, is it covered by a warranty?

  1. Most new consumer products today are covered by a warranty. A warranty (also called a guarantee) is an assurance or promise about the quality of goods or services you buy. It’s purpose is to give you recourse if something you purchase fails to live up to what you were promised.

Some warranties are implied and some are expressed, or ‘express.’

  1. An express warranty is a verbal or written statement that guarantees that a product is of a certain quality or will work in a certain way or for a certain amount of time. Most express warranties say something like “This product is warranted against defects in materials or workmanship” or “We will repair or replace parts that are defective in materials or workmanship” for a specified time. You are not automatically entitled to an express warranty. Most express warranties either come directly from the manufacturer or are included in the sales contract you sign with the seller. But, an express warranty may also be a feature in an advertisement or on a sign in the store (for example, “all dresses 100% silk”), or it may be an oral description of a product’s features that you rely on in making your purchasing decision.
  2. There are two types of implied warranties: the implied warranty of merchantability and the implied warranty of fitness. Virtually every consumer product you buy comes with an implied warranty of merchantability. This is an assurance that a new item will work if you use it for a reasonably expected purpose. For used items, the warranty of merchantability is a promise that the product will work as expected, given its age and condition.
  3. The implied warranty of fitness applies when you buy an item with a specific (even unusual) purpose in mind. If you relate your specific needs to the seller, and the seller assists you in selecting the item, the implied warranty of fitness assures you that the item will fill your need. For instance, if you tell a retailer that you need a sleeping bag for sub-zero weather and the retailer sells you such as bag, it comes with an implied warranty that the sleeping bag will keep you warm in sub-zero temperatures.
  4. Sellers sometimes try to avoid implied warranties by selling a product “as is.” This isn’t always successful because the seller hasn’t carefully followed state law requirements for disclaiming implied warranties, and because implied warranties can’t be disclaimed when there is an express written warranty.

How long does an implied warranty last?

  1. In most states, an implied warranty lasts forever. In a few states, however, the implied warranty lasts only as long as any express warranty that comes with a product.

How do I enforce a warranty if something is wrong with what I bought?

  1. Most of the time, if an item you buy is defective, the defect will show up immediately and you can ask the seller or manufacturer to fix or replace it. If the seller or manufacturer won’t fix it, or gives up after one try and the fixed or replaced item is still defective, you’ll have to take further steps.
  2. In some cases, you can simply stop paying. But, before you do this, think carefully. If you took out a loan to purchase the product, the lender may not care whether it works properly. Even though you may feel that you are in the right, the lender may sue you if you stop making payments. Also, not all problems or defects are serious enough to allow you to stop making payments. In order to have a good reason to stop payment, the problem must be substantial, you must not have known about it when you bought the product, you must have given the seller or manufacturer a reasonable chance to repair the warranty problem, and you must not have damaged or abused the product. Even if you meet these criteria, withholding payments can be risky. If you are making payments to the manufacturer or seller, they may not agree with your version of events and may sue you for not making payments. If you aren’t sure what to do, consider consulting an attorney.
  3. If the seller refuses to cooperate, see if the seller will agree to mediate the dispute through a community or Better Business Bureau mediation program. If you can’t get anywhere informally, you can sue. In many states, you must sue the seller or manufacturer within four years of when you discovered the defect, but in some states it’s as little as three years and, in a few, it’s 10 or 15 years. How much time you have to sue is also affected by whether you signed a written contract or bought it on a handshake.

Do I have any recourse if the item breaks after the warranty expires?

  1. In most states, if the item gave you some trouble while it was under the warranty (and you had it repaired by someone authorized by the manufacturer to make repairs), the manufacturer must extend your original warranty for the amount of time the item sat in the shop. Call the manufacturer and ask to speak to the department that handles warranties.
  2. If your product was trouble-free during the warranty period, the manufacturer may offer a free repair for a problem that arose after the warranty expired if the problem is a widespread one. Many manufacturers have secret fix-it lists — items with defects that don’t affect safety and therefore don’t require a recall, but that the manufacturer will repair for free. It can’t hurt to call and ask.

I just bought a stereo system, and the salesclerk tried to sell me an extended warranty contract. Should I have bought the contract?

  1. Probably not. Merchants encourage consumers to buy extended warranties (also called service contracts) when buying autos, appliances, or electronic items because these warranties are a source of big profits for stores, which pocket up to 50% of the amount you pay.
  2. Rarely will you have the chance to exercise your rights under an extended warranty. Name-brand electronic equipment and appliances usually don’t break down during the first few years (and if they do, they’re covered by the original warranty), and often have a life span well beyond the length of the extended warranty.

Workers’ Compensation

What is workers’ compensation?

  1. Workers’ compensation is a state-mandated insurance program that provides compensation to employees who suffer job-related injuries and illnesses. While the federal government administers a workers’comp program for federal and certain other types of employees, each state has its own laws and programs for workers’compensation. For up-to-date information on workers’comp in your state, contact your state’s workers’compensation office. (You can find links to the appropriate office in your state on the State Workers’Compensation Officials page of the U.S. Department of Labor’s website.)
  2. In general, an employee with a work-related illness or injury can get workers’compensation benefits regardless of who was at fault — the employee, the employer, a coworker, a customer, or some other third party. In exchange for these guaranteed benefits, employees usually do not have the right to sue the employer in court for damages for those injuries. How do I know whether I am covered by workers’ compensation?
  3. Determining whether or not you are covered by workers’ compensation can sometimes be complicated. Generally, there are two main factors that determine your status: first, whether you are an employee, and second, whether your injury occurred as a result of your employment. It should be noted that neither of these factors is an absolute guarantee that you will be covered by workers’ compensation. For example, depending on the rules in place in your state, some employees (such as agricultural workers) are not covered by workers’ compensation. Also, if you were intoxicated at work or intentionally injured yourself, you might not be covered by workers’ compensation. When in doubt, you should contact an experienced workers’ compensation attorney, who can advise you of your rights.

Who pays workers’ compensation benefits?

  1. In most states, employers are required to purchase insurance for their employees from a workers’ compensation insurance company (also called an insurance carrier). In some states, however, very small companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance. In some states, larger employers who are clearly financially stable are allowed to act as their own workers’ compensation insurance companies (also called self-insuring).
  2. When a worker is injured, his or her claim is filed with the insurance company — or self-insuring employer — who pays medical and disability benefits according to a state-approved formula.

Are all on-the-job injuries covered by workers’ compensation?

  1. Workers’ compensation covers most, but not all, on-the-job injuries. The workers’ compensation system is designed to provide benefits to injured workers, even if an injury is caused by the employer’s or employee’s carelessness. But there are some limits. Generally, injuries that happen because an employee is intoxicated or using illegal drugs are not covered by workers’ compensation. Coverage may also be denied in situations involving:
    • self-inflicted injuries (including those caused by a person who starts a fight)
    • injuries suffered while a worker was committing a serious crime
    • injuries suffered while an employee was not on the job, and
    • injuries suffered when an employee’s conduct violated company policy.

Does workers’ compensation cover only injuries or does it also cover long-term problems and illnesses?

  1. Your injury need not be caused by an accident — such as a fall from a ladder — to be covered by workers’ compensation. Many workers receive compensation for injuries that are caused by overuse or misuse over a long period of time — for example, repetitive stress injuries such as carpal tunnel syndrome or back problems. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions — for example, heart conditions, lung disease, and stress-related digestive problems.

Are You Covered by Workers’ Compensation?

  1. Most workers are eligible for workers’ compensation coverage, but every state excludes some workers. Exclusions often include:
    • business owners
    • independent contractors
    • casual workers
    • domestic employees in private homes
    • farm workers
    • maritime workers
    • railroad employees, and
    • unpaid volunteers.
  2. Check the workers’ compensation law of your state to see whether these exclusions affect you.
  3. Federal government employees are also excluded from state workers’ compensation coverage, but they receive workers’ compensation benefits under a separate federal law.
  4. In addition, some states do not require workers’ compensation coverage of employers having fewer than a designated number of employees — three to five, depending on the state. So, if you work for one of these employers, you may be excluded from the state program.

Do I have to be injured at my workplace to be covered by workers’ compensation?

  1. No. As long as your injury is job-related, it’s covered. For example, you will be covered if you are injured while traveling on business, doing a work-related errand, or even attending a required business-related social function.

What kind of benefits will I receive?

  1. The workers’ compensation system provides replacement income, medical expenses, and sometimes vocational rehabilitation benefits — that is, on-the-job training, schooling, or job placement assistance. The benefits paid through workers’ compensation, however, are almost always relatively modest.
  2. If you become temporarily unable to work, you’ll usually receive two-thirds of your average wage up to a fixed ceiling. But because these payments are tax-free, if you received decent wages prior to your injury, you’ll fare reasonably well in most states. You will be eligible for these wage-loss replacement benefits as soon as you’ve lost a few days of work because of an injury or illness that is covered by workers’ compensation.
  3. If you become permanently unable to do the work you were doing prior to the injury, or unable to do any work at all, you may be eligible to receive long-term or lump-sum benefits. The amount of the payment will depend on the nature and extent of your injuries. If you anticipate a permanent work disability, contact your local workers’ compensation office as soon as possible; these benefits are rather complex and may take a while to process.

Social Security Benefits for the Permanently Disabled

  1. If you’re permanently unable to return to work, you may qualify for Social Security Disability benefits. Social Security Disability will, over the long run, provide more benefits than workers’ compensation — but be forewarned that these benefits are hard to get. They are reserved for seriously injured workers. To qualify, your injury or illness:
    • must prevent you from doing any “substantial gainful work,” and
    • must be expected to last at least twelve months or to result in death.
  2. If you think you may meet the above requirements, contact your local Social Security office.
  3. If an employee is receiving workers’ compensation benefits, but returns to work, does the employee still get to receive workers’ compensation benefits?
  4. The answer to this question is “maybe.” If the return to work enables the employee to receive wages equal to or greater than he or she was earning prior to the injury, then it is likely benefits will be stopped. If, however, the employee is still experiencing a wage loss due to his or her injury, he or she may continue to receive wage loss benefits, although the benefits will most likely be for a lesser amount.

Can I be treated by my own doctor and, if not, can I trust a doctor provided by my employer?

  1. In some states, you have a right to see your own doctor if you make this request in writing before the injury occurs. More typically, however, injured workers are referred to a doctor recruited and paid for by their employers.
  2. Your doctor’s report will have a big impact upon the benefits you receive. Keep in mind that a doctor paid for by your employer’s insurance company is not your friend. The desire to get future business from your employer or the insurance company may motivate a doctor to minimize the seriousness of your injury or to identify it as a preexisting condition. For example, if you injure your back and the doctor asks you if you have ever had back problems before, it would be unwise to treat the doctor to a 20-year history of every time you suffered a minor pain or ache. Just say “no” unless you really have suffered a significant previous injury or chronic condition.

If I am initially treated by an insurance company doctor, do I have a right to see my own doctor at some point?

  1. State workers’ compensation systems establish technical and often tricky rules in this area. Often, you have the right to ask for another doctor at the insurance company’s expense if you clearly state that you don’t like the one the insurance company provides, although there is sometimes a waiting period before you can get a second doctor. Also, if your injury is serious, you usually have the right to a second opinion. And in some states, after you are treated by an insurance company’s doctor for a certain period (90 days is typical), you may have the automatic right to transfer your treatment to your own doctor or health plan, while the worker’s compensation insurance company continues to pay the bill. Because the insurance company is paying, don’t hesitate to go to a doctor who specializes in your injury or illness — even if the cost is great.
  2. To understand your rights, get a copy of your state’s rules or, if necessary, research your state workers’ compensation laws and regulations in the law library.

Can I ever sue my employer in court over a work-related injury?

  1. Yes. If you are injured because of some reckless or intentional action on the part of your employer, you can bypass the workers’ compensation system and sue your employer in court for a full range of damages, including punitive damages, pain and suffering, and mental anguish.

What if my employer tells me not to file a workers’ compensation claim or threatens to fire me if I do?

  1. In most states, it is a violation of the workers’ compensation laws to retaliate against an employee for filing a workers’ compensation claim. If this happens, immediately report it to your local workers’ compensation office.

Can an employee recover workers’ compensation benefits, no matter what he or she did, because it is a ‘no-fault’ system?

  1. No. Although most injuries are covered by workers’ compensation, that does not mean that employees have free reign to injure themselves, or act in any manner in which they choose, and then collect benefits. Generally, if an employee sustains injures as a result of intoxication or illegal drug use, benefits may not be payable.

Can an employee recover workers’ compensation benefits, even if he or she was not actually at the workplace when injured?

  1. The answer to this question will depend on the laws in your particular state, and the facts of the specific case. Generally speaking, if the injury “arises out of” and occurs “within the scope of employment,” it is covered. For example, if an employee is a traveling salesperson and is injured in the hotel where he or she is staying for business purposes, compensation may be appropriately paid.
  2. Similarly, if an employee is running an errand that takes him or her outside of the workplace, at the request of the employer, compensation benefits may be payable if an injury occurs in the course of running that errand. If the employee is on a business errand, but has stopped or deviated from that errand for personal reasons, then a closer examination of the rules and facts is necessary.
  3. Finally, employees injured while attending an employer-sponsored recreational event, like a company picnic or outing, may be able to receive workers’ compensation benefits even though they were not physically on the employer’s premises at the time of the injury.

Wrongful Death

What if a person dies before bringing a personal injury lawsuit?

  1. It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit. Every state has a law permitting an action when someone causes the wrongful death of another. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.

What if an unborn fetus dies?

  1. Many states require that a child be born alive in order for its death to be the subject of a wrongful death action, so the death of a fetus might not be actionable. An attorney can tell you what the precise law is in your state.

When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?

  1. A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction such as imprisonment. In a civil case, the defendant will typically have a monetary judgment entered against him/her.

Are punitive damages recoverable in wrongful death actions?

  1. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that do have specific statues that permit recovery of punitive damages.

Are all state laws the same regarding wrongful deaths?

  1. No, there are many differences among different state wrongful death laws. Determining the state in which you can (and should) bring a wrongful death action is a very important decision, because some states do not allow certain types of damage awards and/or may have different statutes of limitation that establish the timeframe within which you must file suit.

Can I bring a wrongful death action if the deceased never held a job?

  1. Yes, even if the decedent never held a job, he/she may have contributed in some other way to the family. A good example of such a case is an action for the wrongful death of a stay-at-home husband or wife who contributes services, guidance and nurturing of the family. These contributions are quantifiable as “pecuniary losses” in a wrongful death action.

Can someone sue for the pain and suffering of a decedent?

  1. Yes, in addition to the wrongful death, a decedent’s family may recover damages for the pain and suffering that the decedent endured prior to death.

Can I bring a wrongful death action based on the death of a child or an elderly person?

  1. Yes, you can recover damages in a wrongful death cause of action for the death of either a child or an elderly person. For a variety of reasons, however, the damage awards for both classes of decedent are usually modest.

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