Legal
Descriptions
Arbitration
and Mediation:
Alternative Dispute Resolution (ADR) is a general term for methods
of resolving legal conflicts outside of the courtroom. ADR generally
refers to mediation and arbitration, two terms that are often confused
with one another. "Mediation brings both sides of a dispute
together with a professional, who listens to both arguments and
tries to craft a compromise," explains Eric E. Younger, a retired
California Supreme Court judge and an expert on ADR. "Arbitration
differs from mediation in that the mediated solution is an option
to be accepted or rejected by the parties, whereas the outcome of
arbitration is legally binding."
When compared to litigation in the court system, ADR is cheap and
fast. While the parties will have to pay from $300 to $600 per hour
for a mediator or an arbitrator - compared to the $150 or so needed
to file a claim in court - they will benefit by not having to go
through the expensive discovery process. Moreover, ADR's play out
on a much tighter schedule than does litigation, which can often
take years for resolution.
ADR methods are gaining widespread support. As the neutral mediator
is not there to judge or advise, he or she can help win a resolution
based on the characteristics of that particular case. In the event
of an agreement, a contract can be drawn up and signed by both parties
at which time it will move quickly through the courts. For divorce
or child custody cases, parents often find it easier to negotiate
a settlement in the interest of all the family members through mediation,
dividing responsibilities and shared property with a process that
allows more control over the outcome. If the mediator is called
into the conflict early, the emotional costs in a breakup can be
much lower than they would be in the adversarial court setting.
There are times when it is better to let a grievance play out in
front of a jury. But often, you just want a problem solved. "If
you are in a car accident and haggling with your insurance company
over an uninsured motorist claim," proposes Judge Younger,
"you're not looking to win a huge jury award after four years
of litigation. You want a quick resolution - you want your problem
solved. If your insurer agrees to ADR, you can sit down with a mediator
and quickly work out a resolution."
Business & Contracts:
implied by law, a "covenant of good faith and fair dealing."
Often times, when a consumer or a business is mistreated by their
insurance carrier, this covenant of "good faith" and "fair
dealing" has been violated.
business, consumer
and entertainment matters, including representing clients in actions
involving commercial fraud, unfair business practices (on behalf
of consumers and businesses), wrongful interference with contractual
relations, wrongful termination, breach of contract, corporate and
partnership disputes, copyright/trademark infringement, trade-libel
(defaming someone's business or trade).
Tax:
Credit Repair:
Crimes:
When a society and its government decide that certain conduct is
dangerous to citizens, or damaging to the society as a whole, such
conduct is labeled a "crime" and is made punishable by
sanctions such as fines and imprisonment. Most crimes are identified
in statutes that have been enacted by federal, state, and local
government legislatures, in response to issues that affect the jurisdiction.
For example, a city may determine that it is a crime to be drunk
in public, while the federal government decides bank robbery is
a federal crime, since most banks are federally insured.
DMV
Hearings:
When a California driver is charged with Driving Under the Influence
(DUI), the charges can be filed as a misdemeanor or felony. The
penalties can range from receiving little or no custody for first
time offenders; to revocation of one’s license over an extended
period of years for multiple offenses. In fact, for a first time
DUI, the mere failure to call a schedule a DMV Hearing within 10
days of the arrest will result in an automatic 4 month suspension
of your license.
In addition to the court proceedings, California DMV permits a separate
DMV Hearing for DUI related offenses where the potential penalty
is exclusive of the court’s handling of the matter. These
hearings are designed to challenge on accused’s right to drive
following a DUI allegation and failure to schedule such a hearing
can result in an automatic license suspension. When these hearings
are conducted, it is possible to win in court, but lose the DMV
Hearing. Minors who are convicted of any alcohol or drug-related
charge are subject to a one-year license suspension by DMV. Thus,
it is almost imperative that some attorney assistance is required
to challenge the harm one faces as a result of this offense.
Driving Under the Influence (DUI):
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
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.
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.
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
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.
Family Law:
Adoption:
Agency Adoptions
Agency adoptions involve the placement of a child with adoptive parents
by a public agency, or by a private agency licensed or regulated by
the state. Public agencies generally place children who have become
wards of the state for reasons such as orphanage, abandonment, or
abuse.
Private agencies are sometimes run by charities or social service
organizations. Children placed through private agencies are usually
brought to the agency by a parent or parents who have or are
expecting a child they want to give up for adoption.
Independent Adoptions
In a private or independent adoption, a child is placed with adoptive
parents without involving an agency. Some independent adoptions
involve a direct arrangement between the birth parents and the adoptive
parents, while others use an intermediary such as an attorney, doctor,
or clergyperson. But for most independent adoptions, an attorney is
essential whether or not an intermediary is used.
Most states allow independent adoptions, though many regulate them
quite carefully. Independent adoptions are not allowed in Connecticut,
Delaware, or Massachusetts.
An "open adoption" is an independent adoption in which the
adoptive parents and birth parents have contact during the gestation
period and the new parents agree to maintain some contact with
the birth parents after the adoption, through letters, photos, or
in-person visits.
Identified Adoptions
An identified, or designated, adoption is one in which the adopting
parents and the birth mother find each other and then ask an adoption
agency to take over the rest of the adoption process. The process
is a hybrid of an independent and an agency adoption.
Divorce:
the process of deciding whether to divorce can be filled with ambivalence
and anxiety. When the decision to divorce is reached, however, it
also can be a time of relief.
Barry Lubetkin and Elena Oumano wrote a book on the psychological
aspects of divorce called Bailing Out (Fireside Books 1993). Early
in the book they comment, "'[B]ailing out' when you know your
relationship is no longer viable can be one of the most affirmative,
liberating acts of one's life. Bailing out can be a wonderful growth
experience if you use this period of your life as a time to explore,
discover, and evaluate beliefs that have determined your behavior.
. . .The irrefutable fact is that staying with someone in a miserable
or indifferent relationship, whether in a marriage or a live-in
situation, erodes your self esteem."
Ann Landers echoed part of that view in The Ann Landers Encyclopedia
A to Z : "Life is too precious to waste years in a joyless
marriage--or, worse yet, in a miserable one."
When you have decided to divorce (or have a strong inclination to
divorce), a question of timing may remain: When do you announce
the decision or take additional steps such as separating or filing
a legal action? The answer lies in balancing the stresses of maintaining
the status quo versus the benefits of waiting.
Sometimes it is best to wait. If you are feeling emotionally spent
and do not have plans on how to proceed, it may be useful to pause
while building emotional energy and planning the next phase of your
life. Steps to take include:
- deciding
where you want to live;
- figuring
out options on custody if you have children;
- determining
if changes related to employment are likely to be necessary
- planning
a budget (or range of budgets, depending on how the divorce proceeds);
- lining up
a lawyer if one is necessary; and
- cementing
ties with friends, family, and other support networks during your
time of transition.
Child
Custody:
When parents divorce, the divorce decree will specify with whom
the divorcing couple's children will live (and circumstances under
which the other parent will visit with the children). Often, parents
work out these arrangements between themselves, either completely
voluntarily or with the assistance of their attorneys or a mediator.
When they are unable to reach a decision, however, or when unmarried
parents are unable to agree on who will have custody of their child,
the court may intervene and make a decision based on the child's
best interests.
Physical and Legal Custody
In most situations, physical custody is awarded to one parent with
whom the child will live most of the time. Often, however, the custodial
parent shares "legal custody" of the child with the non-custodial
parent. "Legal custody" includes the right to make decisions
about the child's education, religion, health care, and other important
concerns.
Joint Custody
Some parents have chosen a joint-custody arrangement in which the
child spends an approximately equal amount of time with both parents.
Proponents of this arrangement say it lessens the feeling of loss
that a child may experience in a divorce. Critics, however, say
that it is best for the child to have one home base, with liberal
visitation allowed to the "non-custodial" parent. Because
joint custody requires a high degree of cooperation between the
parents, courts are reluctant to order joint custody unless both
parents are in agreement and can demonstrate the ability to make
joint decisions and cooperate for the child's sake.
Split Custody
Another option, although much less favored, is split custody, in
which one parent has custody of one or more of the parties' children,
and the other parent has custody of the other(s). Courts usually
prefer not to separate siblings, however, when issuing custody orders.
Unmarried Parents
When the child's parents are unmarried, the statutes of most states
require that the mother be awarded sole physical custody unless
the father takes action to be awarded custody. An unwed father often
cannot win custody over a mother who is a good parent, but he will
usually take priority over other relatives, foster parents, or prospective
adoptive parents.
Child
Support:
When married parents divorce or separate, or when only one of the
unmarried parents of a child has custody, the court may order the
"non-custodial" parent (the parent with whom the child
does not live) to pay a certain portion of his or her income as
child support. This is not the only scenario in which child support
might arise. Less frequently, when neither parent has custody, the
court may order them to pay child support to a third party who cares
for their child.
No matter what situation gives rise to the need for child support,
it might help to think of the legal right to child support as being
possessed by a child (which it technically is), for his or her proper
care and upbringing, regardless of who actually receives child support
payments.
The Government's Role in Child Support
Because in the United States nearly half of all marriages end in
divorce and almost one-fourth of all children are born to unmarried
parents, the regulation of child support is an important social
issue. Whereas once the arrangement for and payment of child support
was left to the parents, now state child support enforcement agencies
are taking an aggressive role in seeking payments from non-custodial
parents.
Frequently, the agency and court will work together to implement
a child support withholding order, by which the child support amount
is automatically taken from the payer's paycheck. If the child support
payments become delinquent, the agency can implement other collection
mechanisms, such as withholding support amounts from tax refunds,
or seizing real estate or personal property.
Child Support Orders
Child support orders are issued by the family court, which bases
the amount of the support on the state child support guidelines.
These guidelines establish the amount of support that must be paid,
based largely on the non-custodial parent's income and the number
of children. The court will also take into account other relevant
factors, such as the custodial parent's income and the needs of
the children.
Elder
Law:
Elder abuse includes physical abuse occurring at care facilities,
as well as situations where seniors are taken advantage of in the
marketplace by businesses or individuals, (such as lenders, car
dealers and others), who prey on the vulnerability of the elderly.
Employment law:
All employees have basic rights in the workplace -- including the
right to privacy, fair compensation, and freedom from discrimination.
A job applicant also has certain rights even prior to being hired
as an employee. Those rights include the right to be free from discrimination
based on age, gender, race, national origin, or religion during
the hiring process. For example, a prospective employer cannot ask
a job applicant certain family-related questions during the hiring
process. Employment law covers all rights and obligations within
the employer-employee relationship -- whether current employees,
job applicants, or former employees. Because of the complexity of
employment relationships and the wide variety of situations that
can arise, employment law involves legal issues as diverse as discrimination,
wrongful termination, wages and taxation, and workplace safety.
Many of these issues are governed by applicable federal and state
law. But, where the employment relationship is based on a valid
contract entered into by the employer and the employee, state contract
law alone may dictate the rights and duties of the parties.
Estate
planning:
Estate planning is one of the most important steps any person can
take to make sure that their final property and health care wishes
are honored, and that loved ones are provided for in their absence.
Though often overlooked or put off in favor of more immediate concerns,
a comprehensive estate plan can resolve a number of legal questions
that arise whenever anyone dies: What is the state of their financial
affairs? What real and personal property do they own? Who gets what?
Does a personal guardian need to be appointed to care for minor
children? How much tax will need to be paid in order to transfer
property ownership? What funeral arrangements are appropriate?
Immigration Law:
Immigration is the act of entering a country with the intention
of permanently living and/or working there, although U.S. immigration
laws also cover entry into the country for almost any purpose, including
temporary stays beyond a certain length of time. Below is an overview
of immigration processes in the United States.
The immigration system in the U.S. is set up primarily to grant
immigration status based on factors such as family reunification,
in-demand work skills, and capital investment. The immigration system
also covers refugees and asylum seekers, and provides a "lottery"
for immigration status to people who have less pressing immigration
needs. The procedure for gaining legal immigrant status will depend
upon, among other factors, which path you are eligible to pursue
based on your employment, education, and family situation.
Personal Injury:
damage to the person, rights, reputation or property of an individual
resulting from automobile/vehicle accidents, defective products,
defamation, infliction of emotional distress, negligence and intentional
misconduct; and "wrongful death" cases, actions brought
by the surviving relatives of a deceased person against the party(s)
that caused the death to occur.
Product Liability:
a consumer may recover for serious injury to persons or
property caused by a defective product.
Workers' Compensation:
"Workers' compensation" refers to a system of laws outlining
specific benefits to which injured employees are entitled, and the
procedures for obtaining such benefits. Every state has its own
workers' compensation laws, which are contained in statutes, and
vary somewhat from state to state. In addition, there are special
workers' compensation laws for employees of the federal government,
and still others for workers in specific types of industries such
as railroad employees.
Under the law in most states, every business must have some form
of workers' compensation insurance to cover injured employees. Filing
a workers' compensation claim is similar to filing an insurance
claim; it isn't a lawsuit against an employer, but rather a request
for benefits.
The Purpose and Effect of Workers' Compensation Laws
Workers' compensation laws are designed to ensure that employees
who are injured on the job receive fixed monetary awards, without
having to litigate their claims against their employers. In this
way, workers' compensation is an important safety net for employees
when they are injured on the job or as a result of their job.
Most workers' compensation laws also provide employers and co-workers
with a certain level of protection, by limiting the amount employees
can recover from their employers, and prohibiting, in most cases,
injured employees from suing their co-workers. In essence, workers'
compensation is a no-fault system, where an injured worker's own
negligence, or the negligence of his or her employer or co-workers,
is not put at issue; rather, the injured employee is simply covered
for his or her work-related injuries.
Thus, workers' compensation is an injured worker's "exclusive
remedy" with respect to a work-related injury, unless he or
she can point to a third party who contributed to his or her injuries.
For example, because workers are often injured by products or machinery
they use at work, they may, and often do, seek compensation from
the manufacturers of such products.
What you need to know before you file a lawsuit.
You need to
answer three fundamental -- and fairly obvious -- questions as part
of deciding whether it's worthwhile to bring a lawsuit:
- Do I have
a good case?
- Can I achieve
my goal in some other way -- for example, by proposing a compromise
settlement or mediation?
- Assuming
a lawsuit is my best or only option, can I collect when I win?
If the answer
to question one or three is no, or to question two is yes, you probably
won't want to sue.
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 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 (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 agreed upon your
payments and otherwise cooperated, you'll have no problems with
this element.
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.
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.
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).
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.
Finally, the answer to the third question -- Can I collect if I
win? -- is of much interest. There is no point in getting a court
judgment against a deadbeat.
Here is how to think about it. 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.
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.
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.
Expungement of a Criminal Record:
Expungement of a criminal record is, in reality, a misnomer. The
term implies that one’s criminal record is being completely
erased or nullified when, in actuality, “dismissal”
is a much more appropriate term.
A number of
factors go into consideration before the filing of a “Petition
for Dismissal” under Penal Code Section 1203.4. In many cases,
a person seeking dismissal can successfully draft and file the petition
himself with little or no need to hire an attorney. For certain
crimes (wobblers for instance that could have resulted in either
a felony or misdemeanor conviction), additional declarations and
supporting documentation may be required.
The criteria
for a successful 1203.4 include completion of all terms and conditions
of probation without further criminal activity or warrant activity.
However, certain criminal convictions, (e.g. most sex crimes and
crimes where actual state prison time is served) cannot be expunged
under this statute and at best, one must look to a Certificate of
Rehabilitation and ultimately, a pardon. This is a process that
is both costly and time consuming.
An attorney
from our law firm can discuss you case and assist you in determining
what steps you would need to take in order to clean up and protect
your criminal record.
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