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Wednesday, December 28, 2016

Negligence Claims Against the Government

Negligence Claims Against the Government

When an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought.  Claims against the government, however, are often complex, burdened with various restrictions.  It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.

The FTCA does not extend liability to every individual associated with the government, and claims are only permitted under certain circumstances.  For example, independent contractors employed by the government are only included under the act in exceptional cases.  Most often only a claim of negligence can be brought, rather than a complaint for deliberate wrongdoing.  Furthermore, the claim must be grounded upon, and cannot conflict with, state law.  

There are several steps to be taken in filing a lawsuit against the government. First and foremost, within two years from the date of the incident, an administrative claim must be filed with the agency that allegedly caused harm.  In order for the claim to be considered and investigated, a form has to be filed which includes all relevant facts and requested damages.  The claim for damages is limited; punitive damages are not typically an option. 

If and when the agency discards the claim, in whole or in part, a suit may be filed within six months of the date on the decision letter.  In most cases, all administrative remedies must be fully exhausted before seeking legal action.  If the agency does not respond, however, the complainant may be permitted to proceed with the lawsuit.  An attorney can best advise whether an action can be filed, whether the government has any plausible defense, and whether it is in the client's best interest to settle the case.  


Monday, December 19, 2016

Preventing Will Contests


Preventing Will Contests

 

So, you have a will, but is it valid?  A will can be contested for a multitude of reasons after it is presented to a probate court.  It is in your best interest to have an attorney draft the will to prevent any ambiguity in the provisions of the document that others could dispute later. 

A will may be targeted on grounds of fraud, mental incapacity, validity, duress, or undue influence.  These objections can draw out the probate process and make it very time consuming and expensive.  More importantly, an attorney can help ensure that your property is put into the right hands, rather than distributed to unfamiliar people or organizations that you did not intend to provide for.
Read more . . .


Thursday, December 8, 2016

Pathway from Permanent Resident Status to Citizenship

 

Permanent Resident to Citizen

 

How do I become a citizen if I have a green card?

The most common path to citizenship for immigrants is to obtain a permanent resident green card.  The receipt of a green card, however, does not guarantee that citizenship will follow.  Before an individual who possesses a green card can become a citizen, a number of criteria must be met. Individuals desirous of U.S. citizenship should be aware that when their green cards have been obtained through marriage to U.S. citizens, these criteria are slightly different.

Criteria for Application for Citizenship

In order to be eligible to apply for citizenship, an individual must meet the following criteria:

  • Be at least 18 years old;
  • Be in possession of a green card for at least 5 years, or 3 years if a spouse of a citizen;
  • Live in the same state for 3 months preceding application;
  • Maintain residence in the U.S. continually for the 5 years preceding application;
  • Be physically present in the U.S. for at least half of the 5 years preceding application; and
  • Remain in the U.S. while the application is processed.

Once these criteria have been met, United States Citizenship and Immigration Services (USCIS) will qualify the applicant to take the naturalization test. The test comes in two parts: English and civics (history and government). The English test may be waived if the applicant is over 50 years of age and has lived as a permanent resident in the U.S. for 20 years (the "50/20" exception) or is over 55 years of age and has lived as a permanent resident in the U.S. for 15 years (the "55/15" exemption).

The law also requires that an applicant for citizenship be of good moral character, show "attachment to the principles of the Constitution," and be "well-disposed to the good order and happiness of the United States." Having met all these qualifications successfully, the applicant is permitted to make an oath of allegiance to the United States and become a naturalized citizen.  


Wednesday, November 30, 2016

The Revocable Living Trust

Revocable Living Trusts 

There are many benefits to a revocable living trust that are not available in a will.  An individual can choose to have one or both, and an attorney can best clarify the advantages of each.  If the person engaged in planning his or her estate wants to retain the ability to change or rescind the document, the living trust is probably the best option since it is revocable. 

The document is called a “living” trust because it is applicable throughout one's lifetime.  Another individual or entity, such as a bank, can be appointed as trustee to manage and protect assets and to distribute assets to beneficiaries upon one's death. 

A living trust will also protect assets if and when a person becomes sick or disabled.  The designated trustee will hold “legal title” of the assets in the trust.  If an individual wants to maintain full control over his or her property, he or she may also choose to remain the holder of the title as trustee. 

It should be noted, however, that the revocable power that comes with the trust may involve taxation. Usually, a trust is considered a part of the decedent’s estate, and therefore, an estate tax applies.  One cannot escape liability via a trust because the assets are still subject to debts upon death.  On the upside, the trust may not need to go through probate, which could save months of time and attorneys' fees. 

The revocable living trust is contrary to the irrevocable living trust, in that the latter cannot be rescinded or altered during one's lifetime.  It does, however, avoid the tax consequences of a revocable trust.  An attorney can explain the intricacies of other protections an irrevocable living trust provides. 

Anyone who wants to keep certain information or assets private, will likely want to create a living trust.  A trust is not normally made public, whereas a will is put into the public record once it passes through probate.   Consulting with an attorney can help determine the best methods to ensure protection of assets in individual cases.   


Monday, November 21, 2016

Copyright and Fair Use

Copyright and Fair Use

 

Authors often want to understand the eligibility of their writings for copyright protection. Legal copyright registration provides the copyright holder with a collection of special rights. Under the U.S. Copyright Act, a rightful owner maintains the “exclusive right to reproduce, distribute, perform, display, license, and . . . prepare derivative works” founded on his or her creations.  However, these “exclusive” rights are curtailed by the “fair use” doctrine, which typically allows others to use your work legally for certain limited purposes, such as “criticism, comment, news reporting, teaching, scholarship, or research.” 

A court makes the final determination about whether a particular use of a registered work comes within the “fair use” doctrine. Factors that a court may use to verify whether a particular use is permissible under the statute may include “the purpose and character of the use.”  For instance, if a third-party utilizes your registered work for an educational and nonprofit purpose, the use is unlikely to be categorized as copyright infringement.  

The court may also look at “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  It is likely to be copyright infringement if a large portion of the work has been used, where the user is effectively usurping the work as his or her own.  The court may also analyze “the effect of the use upon the potential market for, or value of, the copyrighted work.”  Furthermore, if a third party did not publish the work in question, the action may still constitute fair use. 

Copyright protection spans “architectural design, software, the graphic arts, motion pictures, and sound recordings.”  Consulting with an intellectual property lawyer will clarify whether a particular type of work qualifies for legal protection. It is important to remember that legal action may not be brought until work is registered, even if blatant copyright infringement transpires. 

Qualified intellectual property lawyers are dedicated to keeping their clients in compliance with the Copyright Office and protecting them from being subjected to the civil fines that may result from improper actions.  Engaging the services of a licensed intellectual property lawyer will not only protect original creations but provide necessary advice on whatever legal recourse is available.  


Friday, November 11, 2016

What is Whiplash ?

What is Whiplash ? 

 

Whiplash occurs when a person suffers a sudden impact that causes the head to snap forwards, backwards, or sideways. The violent force of this jerking motion causes the muscles, tendons, and ligaments to stretch or tear. Such injuries are sometimes classified as sprains or strains of the neck. Whiplash is most commonly the result of a car accident, but can also be the result of participation in contact sports like football, or from being the victim of an act of violence. Any time the neck is hyperextended or hyperflexed, a person is at risk for whiplash.

Symptoms of whiplash include muscle soreness, stiffness, and tenderness. Victims also typically suffer reduced range of motion. Other common maladies associated with whiplash include headaches, dizziness, fatigue, jaw pain, numbness and weakness in the extremities. Some people with whiplash experience ringing in their ears, blurred vision, and memory problems, though these symptoms are less common. Many people ignore whiplash symptoms which may prolong or worsen their consequences. Those who blame the soreness and stiffness of whiplash  on sleeping in an uncomfortable position and dismiss the pain as temporary often fail to seek treatment in a timely fashion. This can lead to more serious problems, including depression, anxiety, and sleep disturbances. It is important to seek medical attention and to treat whiplash symptoms as soon as possible after an accident in order to avoid complications. 

Doctors' opinions vary on the best way to treat whiplash symptoms. Different doctors may recommend icing the affected area, using painkillers or drugs to numb the pain, using a neck brace or collar to immobilize the neck, physical therapy and exercises to stretch the sore muscles, acupuncture, massage, or chiropractic manipulation. Many physicians may recommend a combination of strategies. Only a licensed medical professional is qualified to give advice on how to treat whiplash. 

A skilled attorney can handle the legal aspects of the accident to help ensure that the injured party can concentrate on the important work of physical recovery. The lawyer will obtain police reports, witness statements and other evidence to prepare a lawsuit against the individual responsible for the whiplash injury.  The lawyer will also document medical expenses, seek approval for required tests, and file a claim or a lawsuit on behalf of an injured party. The lawyer’s experience in dealing with insurance companies ensures that victims of whiplash-related injuries are reimbursed for their pain and suffering as well as for their medical expenses. 


Friday, October 28, 2016

The Parol Evidence Rule

 

The Parol Evidence Rule

 One of the purposes behind memorializing an agreement in a written document is to ensure that the parties to the contract do not recant what they originally agreed upon.  Often, parties may dispute contractual terms if contracts are not working out in their favor or are resulting in negative or unanticipated consequences.

When a document is drafted by an attorney, parties usually feel more confident and secure about the transaction. A legal document will help prevent any future deviations from its original intent because all aspects of the matter have been stipulated in the final written document.   

If there is any disagreement regarding the written contract, the court’s consideration of evidence is limited.  For example, the courts may look into the prior deals between the parties and check out industry practices as a means of comparison.  However, it is typically prohibited to admit evidence of prior agreements or negotiations of the parties on the same contractual matter at issue.

The court may also inquire as to whether the agreement is partially or completely integrated. A fully integrated document is one intended by the parties to represent all of the terms to the exclusion of any prior writings or oral agreements.  If the agreement is fully integrated, then all other information will likely be excluded. On the other hand, if the document is only partially integrated, the court may take note of circumstantial evidence if such evidence does not contradict the agreement. 

“Parol evidence” is generally oral evidence.  It is beneficial and may be admitted under certain circumstances after the parties agree to a final written agreement.  For example, if the parties to the contract made a mistake, such as omitting or mistakenly listing a term, parol evidence may be considered.  In that case, the option of bringing in subsequent agreements in limited circumstances may be available.  

Parol evidence also comes into play when the writing of the document is unclear or if there is a dispute as to the meaning of certain terms within the contract.  Finally, new evidence is admissible if there is illegality or fraud relating to the contract.  Conferring with a contract attorney will help to clarify how parol evidence rule may affect current and future dealings.


Thursday, October 20, 2016

Medical Malpractice

   

Medical Malpractice

There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.” 

Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action.  Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.”  In order for malpractice to be proved, the doctor’s breach must be the actual and immediate, or precipitating, cause of the patient's injury. In addition, there must be damages for a court to remedy.  All of the above elements must be present in order to bring a valid cause of action within the state’s statute of limitations. The patient's attorney has the burden of proving each element of the case. 

Typically, the doctor owes the patient a “duty of reasonable professional care” during the course of treatment. To prove this standard, an expert witness will likely be required to testify before the court.  Furthermore, to facilitate the discovery process, multiple documents may be requested for review, such as medical and billing records. Witnesses, the patient, and experts in the field may also be interrogated. Depositions may also be used to gather and analyze other pertinent facts. 

Monetary compensation for medical costs and pain and suffering are usually provided for in these cases, but punitive damages, designed to discourage similar behavior, are rarely awarded. The patient's attorney may be able to negotiate a settlement with the doctor in an attempt to avoid the risks of a jury trial.  Such a settlement is often in the best interest of the patient since litigating a medical malpractice action can be extremely expensive.  Any settlement negotiations may involve the doctor’s insurance representatives. 

In many cases, medical malpractice attorneys will take cases on a contingency basis, meaning they only get paid if the claim is settled. If a malpractice case is lost, it can still be appealed. Though medical malpractice cases are typically filed in state court, a medical malpractice attorney may advise that a particular suit be filed and litigated elsewhere.


Wednesday, October 12, 2016

Things to Consider When Picking an Executor

Things to Consider When Picking an Executor

The role of an executor is to effectuate a deceased person’s wishes as declared in a will after he or she has passed on. The executor’s responsibilities include the distribution of assets according to the will, the maintenance of assets until the will is settled, and the paying of estate bills and debts. An old joke says that you should choose an enemy to perform the task because it is such a thankless job, even though the executor may take a percentage of the estate’s assets as a fee. The following issues should be considered when choosing an executor for one's estate.

Competency: The executor of an estate will be going through financial and legal documents and transferring documents from the testator to the beneficiaries. If there are legal proceedings, the executor must make all necessary court appearances. There is no requirement that a testator have any financial or legal training, but familiarity with these areas does avoid the intimidation felt by lay people, and potentially saves money on professional fees.

Trustworthiness: The signature of an executor is equivalent to that of the testator of an estate. The executor has full control over all of an estate’s assets. He or she will be required to go through all of the papers of the deceased to confirm what assets are available to be distributed. The temptation to transfer assets into the executor's own name always exists, particularly when there is a large estate. It is important to choose a person with integrity who will resist this temptation. It makes sense to utilize an individual who is an heir to fill the role to alleviate this concern.

Availability: The work of collecting rents, maintaining property, and paying debts can take more than a few hours a week. Selecting an executor with significant obligations to work or family may cause problems if he or she does not have the time available to devote to the task. If an executor must travel great distances to address issues that arise, there will be more of a time commitment necessary, not to mention greater expenses for the estate.

Family dynamics: Selection of the wrong person to act as executor can create resentment and hostility among an estate’s heirs. A testator should be aware of how family members interact with one another and avoid picking someone who may provoke conflict. Even the perception of impropriety can lead to a lawsuit, which will serve to take money out of the estate’s coffers and delay the legitimate distribution of the estate. 


Thursday, September 29, 2016

Common Lawsuits Brought Against Small Businesses

Common Lawsuits Brought Against Small Businesses 

It is impossible to predict every lawsuit that a small business might possibly face. There is nothing to prevent angry vendors, entitled customers, or disgruntled employees from filing a lawsuit, even if there is no legitimate basis for it. The more a business owner delegates responsibilities to employees, the greater the risk that an employee makes a mistake and exposes the business to a lawsuit. Even the most vigilant, hands on business owner is bound to make a mistake that can lead to a complaint filed against the business.

The most common lawsuits brought against businesses are wrongful termination suits brought by employees or candidates who have suffered a negative employment action. This can be anything from being fired to being demoted or even passed over for an advancement opportunity. If the employee or candidate believes that the action was taken for a reason related to race, gender, religion, identity, or another protected classification, that employee might file a lawsuit. For this reason, it is important to document any sort of negative or positive behaviors at work, so that if an employee does complain of discrimination, the courts can see the employee’s work history and the real reason why he or she may have been passed over for a promotion. Disparaging remarks made about any of these protected classes have no business in a work place as they can create a hostile work environment and lead to lawsuits as well.

Many employers choose to save money by denying their employees overtime pay. This can create many extra costs, as employees will sue for the money they are owed, and the legal fees can be significant. It is a good idea to have contracts establishing the boundaries of a relationship between an employer and an employee to minimize confusion.

It also makes sense to put agreements with vendors and customers in writing. The contracts should include a general description of the work to be performed, a list of any items to be delivered, a project schedule with deadlines, the fee, and the circumstances under which additional fees might be charged, warranties included with the work, how long the contract lasts, how it can be terminated, and how disputes will be resolved.

Personal injury lawsuits against businesses are also common, so it is important to make sure that a place of business is kept in safe condition. Floors should always be dry and warnings should be presented to customers of any dangerous conditions. Drivers should be selected carefully as any accident they cause can be made the responsibility of the business that employs them. Employees who are injured at work are usually precluded from suing their employer and are instead referred to worker’s compensation courts which have their own legal fees. Most states require employers to carry insurance in case of a workplace injury.


Monday, September 19, 2016

Who is and what does an Executor Do ?

What are the powers and responsibilities of an executor?

An executor is responsible for the administration of an estate. The executor’s signature carries the same weight of the person whose estate is being administered. He or she must pay the deceased’s debts and then distribute the remaining assets of the estate. If any of the assets of the estate earn money, an executor must manage those assets responsibly. The process of doing so can be intimidating for an individual who has never done so before.

After a person passes away, the executor must locate the will and file it with the local probate office. Copies of the death certificate should be obtained and sent to banks, creditors, and relevant government agencies like social security. He or she should set up a new bank account in the name of the estate. All income received for the deceased, such as remaining paychecks, rents from investment properties, and the collection of outstanding loans receivable, should go into this separate bank account. Bills that need to be paid, like mortgage payments or tax bills, can be paid from this account. Assets should be maintained for the benefit of the estate’s heirs. An executor is under no obligation to contribute to an estate’s assets to pay the estate’s expenses.

An inventory of assets should be compiled and maintained by the executor at all times. An accounting of the estate’s assets, debts, income, and expenses should also be available upon request. If probate is not necessary to distribute the assets of an estate, the executor can elect not to enter probate. Assets may need to be sold in order to be distributed to the heirs. Only the executor can transfer title on behalf of an estate. If an estate becomes insolvent, the executor must declare bankruptcy on behalf of the estate. After debts are paid and assets are distributed, an executor must dispose of any property remaining. He or she may be required to hire an attorney and appear in court on behalf of the estate if the will is challenged. For all of this trouble, an executor is permitted to take a fee from the estate’s assets. However, because the executor of an estate is usually a close family member, it is not uncommon for the executor to waive this fee. If any of these responsibilities are overwhelming for an executor, he or she may elect not to accept the position, or, if he or she has already accepted, may resign at any time.


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