We know it has been a bit difficult for you to find us due to the amount of gold coast sites that have to be indexed, so we have moved to the new blog address www.Legal Arch.blogspot.com
Friday, June 25, 2010
We Are Moving!
We know it has been a bit difficult for you to find us due to the amount of gold coast sites that have to be indexed, so we have moved to the new blog address www.Legal Arch.blogspot.com
Wednesday, June 9, 2010
When Should You Sue?
Before you file a lawsuit, you need to decide a few things about your potential case.
Here are three fundamental questions you must ask yourself.
- Do I have a good case?
- Am I comfortable with the idea of a compromise settlement or going to mediation?
- Assuming a lawsuit is my best or only option, can I collect if I win?
If you answer no to any of these questions it is probably not a good decision to sue.
Do I Have a Good Case?
To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of legally required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (because the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:
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.
Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have made agreed-on payments and otherwise cooperated, you should have no problem with this element.
Breach. You must show that the party you plan to sue failed to meet his or her contractual obligations ("breach of contract" in legalese). This is usually the heart of the case -- you'll need to prove that the contractor failed to do agreed-on work or did work of unacceptably poor quality.
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 should also be relatively straightforward to prove.
Is There an Alternative?
Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court. You can talk directly with your opponent and try to negotiate a mutually beneficial compromise. Or you can hire a mediator -- a neutral third person who will help you and your opponent evaluate your goals and options in order to find a solution that works for everyone. Also, and especially if your contract provides for it, you may be able to submit your dispute to binding arbitration. This is a good faith action which could save public money by being settled out of court.
Can I Collect if I Win?
Your answer to the third question is incredibly important. There is no point in getting a court judgment against a deadbeat. While most reputable businesses and individuals will pay you what they owe, if they don't have it, they can't pay you. Even if your opponent tries to stiff you there is not much help that the court will offer you in claiming the money or property won in court.
Normally, if an individual is working or owns valuable property -- such as land or investments -- collection is not too difficult. You can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish that person's wages or attach his or her non-exempt property. For a successful business, especially one that 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.
Note: If you can't identify any collection source -- for example, if 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.
How To Find A Great Lawyer
A step by step guide on finding the right lawyer for you.
When it Counts, Leave It To The Professional.
If your legal problem is complex or involves lots of money, you might not want to attempt to handle the entire matter without a lawyer. After all, lawyers do more than dispense legal information. They offer strategic advice and apply sophisticated technical skills to legal problems. Ideally, you'll be able to find a lawyer who's willing to serve as your legal "coach" to help you educate yourself to the maximum extent possible and to take over as your formal legal counsel only if necessary.
How to Find the Right Lawyer
Locating a good lawyer who can efficiently help with your particular problem may not be easy, I would not suggest trusting someone just because they are on the back of a phonebook or on some pop up add. There's not enough information in these sources to help you make a valid judgment.
Personal Referrals
A better approach is to talk to people in your community who have experienced the same problem you face -- for example, if you have a claim of sexual harassment, talk to a women's group. Ask them who their lawyers were and what they think of them. If you talk to half a dozen people who have had a similar legal problem, chances are you'll come away with several good leads. It really doesn’t need to be that specific just ask around and see who people you trust used most firms can deal with a n array of legal issues, its about dealing with the right people. People you can trust and work with easily. But, don't make a decision about a lawyer solely on the basis of someone else's recommendation. Different people will have different responses to a lawyer's style and personality; don't make up your mind about hiring a lawyer until you've met the lawyer, discussed your case, and decided that you feel comfortable working with him or her.
Also, it may be hard to find lawyer through a personal referral with the expertise you need (for instance, if your friend had a great divorce lawyer, but you need incorporation advice, the referral may not do you much good).
Lawyer Referral Services
Lawyer referral services are required to be approved by the state bar association. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.
Consider a Specialist
Most lawyers specialize in certain areas, and even a so-called "general practitioner" may not know that much about the particular area of your concern. For example, of the almost one million lawyers in America today, probably fewer than 50,000 possess sufficient training and experience in small business law to be of real help to an aspiring entrepreneur. It can pay to work with a lawyer who already knows the field, such as employment discrimination, zoning laws, software design issues, or restaurant licensing allowing you to take advantage of the fact that the lawyer is already far up the learning curve.
Interview the Prospective Lawyers
When you get the names of several good prospects, the next step is to talk to each personally. If you outline your needs in advance, many lawyers will be willing to meet to you for a half-hour or so at no charge so that you can size them up and make an informed decision.
Personality
Pay particular attention to the personal chemistry between you and your lawyer. No matter how experienced and well-recommended a lawyer is, if you feel uncomfortable with that person during your first meeting or two, you may never achieve an ideal lawyer-client relationship. Trust your instincts and seek a lawyer whose personality is compatible with your own. Look also for experience, personal rapport, and accessibility.
Communication and Promptness
Ask all prospective lawyers how you will be able to contact them and how long it will take them to return your communications. And don't assume that because the lawyer seems friendly and easy to talk to that it's okay to overlook this step.
Unfortunately, the complaint logs of all lawyer regulatory groups indicate that many lawyers are terrible communicators. If every time you have a problem there's a delay of several days before you can talk to your lawyer on the phone or get an appointment, you'll lose precious time, not to mention sleep.
Almost nothing is more aggravating to a client than to leave a legal project in a lawyer's hands and then have weeks or even months go by without anything happening. You want a lawyer who will work hard on your behalf and follow through promptly on all assignments.
Willingness to Work With You
When you have a legal problem, you need legal information. Lawyers, of course, are prime sources of this information, but if you bought all the needed information at their rates -- $150 to $250 an hour -- you'd quickly empty your bank account. Fortunately, many lawyers will work with you to help you acquire a good working knowledge of the legal principles and procedures you need to deal with your problem at least partly on your own. If you find someone who is not willing to do this they may be too busy or are unwilling to share their game plan which for many people, creates a large feeling of helplessness and anxiety about their case.
This is an excellent firm that has worked for me. I will continue to use them for future legal matters.
www.ballandyorke.com
Santa Barbara's New D.A.
Joyce Dudley Elected Santa Barbara County’s New District Attorney
She says the first order of business will be to mend wounds inflicted on the office during a divisive race
District Attorney-elect Joyce Dudley celebrates her victory Tuesday night with son Michael. (Ben Preston / Noozhawk photo)
By Ben Preston, Noozhawk Staff Writer | 
After a long and heated campaign, the results are in: Joyce Dudley defeated rival Josh Lynn and won election Tuesday as Santa Barbara County’s next district attorney.
She received 31,811 votes, or 54.11 percent, compared with Lynn’s 26,791 votes, or 45.57 percent.
Dudley said her main goal upon taking over as district attorney will be to heal the scars left by what many considered to be a divisive contest.
“I think that I’ll be meeting with some people individually, some people in small groups, and some people in larger groups to see where the office is right now,” she toldNoozhawk.
While the campaign had moments of acrimonious debate, both candidates said Tuesday evening — while waiting for the results to trickle in — that outside of their differences, the most important issue facing the District Attorney’s Office in the future is continued dedication to providing the best law enforcement possible.
During his post-election soiree, Lynn reflected on a tough campaign, in which both candidates had been accused at times of being a bit rough with each other.
“Elections are political events, but law enforcement is 24/7,” he said. “I’m proud to be involved in that, and I’m proud to have been a district attorney for 15 years.”
The big question, though, is what the interoffice dynamic will be within a politically divided office once Dudley settles into her new role. With rumors flying about that Lynn will be fired — a concern even he has expressed — Dudley said she is not yet sure whether she will keep him on staff.
“That’s contingent upon a conversation with him and others to see what’s in the best interest of the county,” she said, adding that after the stress of a hard campaign, she plans to travel to Utah on Wednesday to begin “hiking, biking, smelling the roses; not working on this campaign. I’ve been working on this campaign for a year.”
When asked how Dudley had succeeded in the race, campaign manager Brian Robinson said it came down to running a more positive campaign than Lynn, as well as working hard to get the word out in the North County, where Dudley is not as well known.
“Joyce is on boards and committees and is involved in the community; she really cares,” he said. “We ran a multidimensional campaign with TV and radio ads, mailers, calls and door-to-door visits.”
— Noozhawk staff writer Ben Preston can be reached atbpreston@noozhawk.com.
Links:
www.noozhawk.com/local_news/article/060810_joyce_dudley_to_be_next_da
Appropriation Lawsuits
Appropriation Lawsuits Privacy is the general right to be left alone and free from unwanted publicity. There are four well-established lawsuits for invasion of privacy: appropriation, false light, intrusion, and disclosure. This article gives examples of appropriation lawsuits. Appropriation is defined as the use of a person's name, likeness, or personality for the benefit of another. Defenses include that the matter is public or that the person who's privacy was invaded gave consent. Flake v. Greensboro News Co. In this case, the first defendant mistakenly put a photograph of the plaintiff in her bathing suit in the second defendant's advertisement. The court declared that "the unauthorized use of one's photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action." The court ruled that the plaintiff could recover nominal damages if she could not prove actual damages. Hinish v. Meier & Frank Co. In this case, the defendant used the plaintiff's name in a telegram to a governor urging the governor to veto a bill. The use of the plaintiff's name was in a matter of politics, not a commercial situation, but that did not stop the court from ruling that the defendant had wrongfully appropriated the plaintiff's name. "Selleck v. Rolling Rock" Based on changes made in advertisements for Rolling Rock beer, an invasion of privacy lawsuit may have been threatened by actor Tom Selleck, star of the television series "Magnum, P.I." Apparently knowing that a celebrity may sue a brewery advertiser for using the celebrity's voice in a radio advertisement for beer, the advertisers of Rolling Rock apparently hired Joe Garvey to narrate Rolling Rock advertisements. Interestingly, Joe Garvey's voice was very similar to Tom Selleck's voice. Again, based on changes made in the advertisements, Tom Selleck apparently reached an agreement with the advertisers of Rolling Rock that Joe Garvey would clearly identify himself in each advertisement for Rolling Rock beer. |
Tuesday, June 8, 2010
Negligence Per Se
Ordinarily, a jury determines whether a defendant was negligent in a personal injury action. However, in some cases, a court may determine that a defendant was "negligent per se." If a court determines that a defendant is guilty of negligence per se, then the defendant's negligence is conclusively established and the plaintiff is not required to offer further evidence of the defendant's negligence. Most negligence per se cases involve an unexcused violation of a law. For example, a plaintiff is involved in an automobile accident with a defendant. The plaintiff files a personal injury action against the defendant. It is undisputed that the defendant was driving at 85 miles per hour at the time of the accident. According to state law, a person may not drive in excess of 65 miles per hour. A judge may determine that the defendant is guilty of negligence per se because he was violating the speed limit law at the time of the accident. If so, the defendant's negligence will be conclusively established.
In order for the doctrine of negligence per se to apply:
(1) the law must have been designed to prevent the kind of harm for which the plaintiff seeks to recover; and
(2) the plaintiff must be within the class of persons for whose protection the law was adopted.
In the above example, the speed limit law was designed to prevent automobile accidents, and the plaintiff is seeking to recover for injuries sustained in an automobile accident. Therefore, the law at issue was designed to prevent the kind of harm for which the plaintiff seeks to recover.
If the law at issue has nothing to do with the plaintiff's injuries, then the doctrine of negligence per se will not apply. For example, the defendant was not violating the speed limit law at the time of the accident, but his car violated an environmental emission law. The defendant's violation of that law had nothing to do with the accident, so the doctrine of negligence per se will not apply.
In the first example above, in which the defendant was violating the speed limit law at the time of the accident, the speed limit law was adopted to protect drivers. The plaintiff was a driver at the time of the accident, so he is within the class of persons for whose protection the speed limit law was adopted.If the defendant was violating the environmental emission law at the time of the accident, and the law was designed to protect the natural habitat of endangered condors, then the plaintiff is not within the class of persons for whose protection the law was adopted, and the doctrine of negligence per se will not apply.
A court may refuse to find a defendant negligent per se if the defendant had a valid excuse for violating the law. For example, if the defendant's brakes failed just before the accident and he was unable to slow down his car, then the court may refuse to find him negligent per se based upon his violation of the speed limit law.
Attorney Malpractice Liability to Non-Client
Malpractice Non-Client
In the course of an attorney's representation of a client, he may commit legal malpractice with respect to his prosecution, defense, or appeal of the client's action or his preparation of transactional documents for the client. The attorney's actions may constitute legal malpractice if he fails to use the skill, prudence, and diligence that attorneys of ordinary skill and capacity would use in performing their legal tasks. In addition to being liable to the client, the attorney may also be liable to a non-client in certain circumstances.No Liability to Non-Client
Generally, an attorney is not liable to a non-client for legal malpractice. The basis of this rule is that an attorney cannot breach a duty to a non-client because there is no privity of contract between an attorney and a non-client.
Liability to Non-Client
In some jurisdictions under certain circumstances, the attorney may be held liable for malpractice to a non-client.
Intended Beneficiaries
An attorney may be liable to a non-client who was an intended beneficiary of the attorney's services to a client. For example, an intended beneficiary of a client's will may be entitled to bring an action against the attorney for improperly drafting the will.
Foreseeable Reliance Exception
A recognized exception to the general rule of no liability to non-clients is that an attorney may be liable if his services to a client were performed so as to influence non-clients to justifiably rely on the services rendered. For example, if an attorney issues an opinion letter regarding the legal status of his corporate client so as to influence potential lenders, the attorney may be liable to the lenders who relied on that letter if the letter was negligently drafted and caused damage to the lenders.
Fiduciary Relationship
An attorney may be liable for malpractice if his negligence causes damage to a non-client with whom he has established a fiduciary relationship. For example, an attorney for a corporation may have a fiduciary duty to the directors of the corporation. Thus, if his malpractice in relation to his services to the corporation causes damage to the directors, he may be liable.
Intentional Torts
An attorney, like other people, may be held liable for an intentional tort committed against a non-client, usually an adverse party of the attorney's client. A non-client may bring a malicious prosecution claim if the attorney misused the legal process for a purpose other than that of securing the proper adjudication of the client's claim. An attorney may be liable for abuse of process if he uses the legal process to secure a collateral benefit not directly related to the process. A non-client may bring an action for fraudulent, malicious, or intentional misrepresentations made by the attorney to the non-client (e.g., during the course of negotiating a settlement). An attorney may also be liable for intentional infliction of emotional distress. For example, the attorney may continually harass an adverse party in an attempt to influence the course of litigation.
If you have any further questions please feel free to view our web page or give us a call. You can find us at: www.ballandyorke.com as well as on facebook!
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