TOP TEN REASONS TO HIRE AN ATTORNEY
1. Is Facebook friends with all of the Supreme Court Justices.
2. Guarantees in writing a complete refund of all fees paid if your criminal defense case results in your receiving the death penalty.
3. Cancelled award ceremony at the White House to receive the Presidential Medal of Freedom in order to personally handle your small claims appeal.
4. Always receives enthusiastic applause from the judge and jury when he concludes cross-examination of a witness at trial due to his amazing technique of using a Jerry Mahoney ventriloquist dummy to interrogate the witness.
5. Gives one free accordion lesson for every new client that he is referred.
6. Only attorney in town to effectively combine a Power Point Presentation with clog dancing to bring the jury to tears in his closing argument.
7. If you retain him, at no extra charge you receive the director's cut DVD of Season One of Matlock.
8. Has offices in Antwerp, Zanzibar, and Brunei, but can still accommodate an appointment to see you in conference within one hour at his Barstow office.
9. Not only has a successful law practice, but also runs a thriving Three Card Monte booth in front of the courthouse.
10. Gave up a promising career as a rodeo clown to devote himself to the practice of law.
Wednesday, June 27, 2012
Monday, June 4, 2012
STATE'S BUDGET WOES AFFECT THE JUSTICE SYSTEM
An unfortunate aspect of the State's recent budget woes has been severe budget cuts to the court system. Depending on any county's caseload and court administration, this has affected some counties more severely than others. Los Angeles County Superior Court as the largest court system in the state has been most adversely affected, resulting in the closing of many trial departments and layoff of staff for indefinite periods of time. San Francisco has also taken similar hits.
Orange County Superior Court, and which can pride itself on being one of the best-managed courts in the State, has largely been able to avoid the same closures and layoffs that have affected Los Angeles and San Francisco.
However, and effective July 30, 2012, the regular hours of operation for the Orange County Clerk's Offices will be from 8:00 A.M. to 4:00 P.M., cutting off their usual closure time of 4:30 P.M. Obviously, it could have been worse.
When the justice system is subjected to budgetary cuts, it is usually the civil caseload that fares the worse, as Constitutional safeguards of the right to a speedy trial mean that the courts' criminal caseload will be given first priority to trial courts and process.
It is a shame that the right to a fair day in court should be delayed or denied because those elected to run this State cannot do so.
An unfortunate aspect of the State's recent budget woes has been severe budget cuts to the court system. Depending on any county's caseload and court administration, this has affected some counties more severely than others. Los Angeles County Superior Court as the largest court system in the state has been most adversely affected, resulting in the closing of many trial departments and layoff of staff for indefinite periods of time. San Francisco has also taken similar hits.
Orange County Superior Court, and which can pride itself on being one of the best-managed courts in the State, has largely been able to avoid the same closures and layoffs that have affected Los Angeles and San Francisco.
However, and effective July 30, 2012, the regular hours of operation for the Orange County Clerk's Offices will be from 8:00 A.M. to 4:00 P.M., cutting off their usual closure time of 4:30 P.M. Obviously, it could have been worse.
When the justice system is subjected to budgetary cuts, it is usually the civil caseload that fares the worse, as Constitutional safeguards of the right to a speedy trial mean that the courts' criminal caseload will be given first priority to trial courts and process.
It is a shame that the right to a fair day in court should be delayed or denied because those elected to run this State cannot do so.
Friday, May 25, 2012
NEW APPELLATE DECISION A TRAP FOR THE UNWARY LITIGANT:
Under Code of Civil Procedure section 998, also called a statutory offer of compromise, a defendant or a plaintiff can offer to allow a judgment to be entered in favor of the plaintiff or the defendant for a specified amount. The party receiving the offer then has 30 days to accept it, and if they don't accept it within that time frame then per the code section the offer is deemed to be rejected thereafter.
If the party receiving the offer then goes to trial and fails to do better than what the offer was, then they cannot claim their costs of suit and the party making the offer is awarded their costs of suit. Costs of suit are defined by statute and do not include attorney's fees, but can include costs for filing fees, service of process, jury fees, court reporter charges, costs for trial exhibits, and fees for expert witnesses. The latter can often comprise the most expensive cost items for a case that goes as far as a trial.
In a personal injury case, if the defendant rejects a plaintiff's statutory offer and doesn't do better at trial, then the judgment for the plaintiff also bears pre-judgment interest back to the time the offer was rejected, at .10% per annum.
The code section also specifies that a method of acceptance must be included within the body of the offer, such as a signature line showing acceptance for the party receiving the offer to sign their acceptance thereto.
The whole policy purpose behind C.C.P. sec. 998 is to encourage settlement, or to suffer adverse financial consequences if a litigant chooses to roll the dice at trial and then comes up short.
The failure of a plaintiff to do better at trial than what a defendant's pre-trial statutory offer was can be devastating, as the defendant's costs will be subtracted from whatever amount a plaintiff was awarded at trial. If the plaintiff received nothing at trial or less than what the defendant's costs turn out to be, then the defendant is awarded a judgment against the plaintiff. A judgment can be enforced by the prevailing party by legal execution, including wage garnishment, a levy on a bank account, or a lien upon real property.
In a recently published California appellate case of first impression, it was held that a failure by the offering party to include an acceptance provision within the body of the offer was fatal in any attempt to be awarded costs thereafter, if the party receiving the offer rejected it and didn't do better at trial.
That case is Perez v. Torres (May 24, 2012) 2012 DJDAR 6810.
What does this mean for plaintiffs? If the plaintiff is making a statutory offer, they must include an acceptance provision for the defense attorney to sign on, within the body of the offer. If the defendant makes a statutory offer to the plaintiff and omits an acceptance provision, then the plaintiff, should they not want to accept the offer, should stay silent on the subject in case things don't turn out better after a trial.
Statutory offers of compromise are nearly always made by a defendant and usually by a plaintiff prior to trial, and they require a great deal of strategy and evaluation of the strength of the plaintiff's case that should be seriously discussed between the plaintiff and their attorney if they are to reap the benefits and avoid the adverse consequences of the procedure.
Under Code of Civil Procedure section 998, also called a statutory offer of compromise, a defendant or a plaintiff can offer to allow a judgment to be entered in favor of the plaintiff or the defendant for a specified amount. The party receiving the offer then has 30 days to accept it, and if they don't accept it within that time frame then per the code section the offer is deemed to be rejected thereafter.
If the party receiving the offer then goes to trial and fails to do better than what the offer was, then they cannot claim their costs of suit and the party making the offer is awarded their costs of suit. Costs of suit are defined by statute and do not include attorney's fees, but can include costs for filing fees, service of process, jury fees, court reporter charges, costs for trial exhibits, and fees for expert witnesses. The latter can often comprise the most expensive cost items for a case that goes as far as a trial.
In a personal injury case, if the defendant rejects a plaintiff's statutory offer and doesn't do better at trial, then the judgment for the plaintiff also bears pre-judgment interest back to the time the offer was rejected, at .10% per annum.
The code section also specifies that a method of acceptance must be included within the body of the offer, such as a signature line showing acceptance for the party receiving the offer to sign their acceptance thereto.
The whole policy purpose behind C.C.P. sec. 998 is to encourage settlement, or to suffer adverse financial consequences if a litigant chooses to roll the dice at trial and then comes up short.
The failure of a plaintiff to do better at trial than what a defendant's pre-trial statutory offer was can be devastating, as the defendant's costs will be subtracted from whatever amount a plaintiff was awarded at trial. If the plaintiff received nothing at trial or less than what the defendant's costs turn out to be, then the defendant is awarded a judgment against the plaintiff. A judgment can be enforced by the prevailing party by legal execution, including wage garnishment, a levy on a bank account, or a lien upon real property.
In a recently published California appellate case of first impression, it was held that a failure by the offering party to include an acceptance provision within the body of the offer was fatal in any attempt to be awarded costs thereafter, if the party receiving the offer rejected it and didn't do better at trial.
That case is Perez v. Torres (May 24, 2012) 2012 DJDAR 6810.
What does this mean for plaintiffs? If the plaintiff is making a statutory offer, they must include an acceptance provision for the defense attorney to sign on, within the body of the offer. If the defendant makes a statutory offer to the plaintiff and omits an acceptance provision, then the plaintiff, should they not want to accept the offer, should stay silent on the subject in case things don't turn out better after a trial.
Statutory offers of compromise are nearly always made by a defendant and usually by a plaintiff prior to trial, and they require a great deal of strategy and evaluation of the strength of the plaintiff's case that should be seriously discussed between the plaintiff and their attorney if they are to reap the benefits and avoid the adverse consequences of the procedure.
Friday, May 18, 2012
TOP TEN REASONS TO FIRE YOUR ATTORNEY:
1. Can't provide you with legal advice unless he first consults with his parole officer.
2. Law school degree on wall issued by correspondence course from University of Tierra Del Fuego.
3. Advises you to cop a plea to involuntary manslaughter when you are consulting with him about a contract case.
4. On his office stationery he has a nickname of "Bud", "Chip", or "Skip" printed in quotation marks between his first and last name.
5. Drafts all legal documents with quill pen on parchment.
6. Claims to specialize in space law but will still handle your case.
7. Wears English barrister wig and black robe when at the office.
8. Ankle bracelet sets off metal detector when he goes to the courthouse.
9. Law office located in a van down by the river.
10. Furiously pounds a gavel on his desk whenever you make an inquiry about your bill.
1. Can't provide you with legal advice unless he first consults with his parole officer.
2. Law school degree on wall issued by correspondence course from University of Tierra Del Fuego.
3. Advises you to cop a plea to involuntary manslaughter when you are consulting with him about a contract case.
4. On his office stationery he has a nickname of "Bud", "Chip", or "Skip" printed in quotation marks between his first and last name.
5. Drafts all legal documents with quill pen on parchment.
6. Claims to specialize in space law but will still handle your case.
7. Wears English barrister wig and black robe when at the office.
8. Ankle bracelet sets off metal detector when he goes to the courthouse.
9. Law office located in a van down by the river.
10. Furiously pounds a gavel on his desk whenever you make an inquiry about your bill.
Thursday, May 17, 2012
TOP TEN THINGS TO ASK BEFORE YOU RETAIN A PERSONAL INJURY ATTORNEY:
1. How long have you been practicing law?
2. How many personal injury cases have you handled in your career?
3. Will you be willing to try my case if for any reason it cannot be settled?
4. How many jury trials have you conducted?
5. Is your contingency fee negotiable?
6. Will I be responsible for case costs in addition to the contingency fee, and if so, are the costs contingent like the fee?
7. How would you propose to handle a case such as mine?
8. How long will it take to resolve my case?
9. Will I be forwarded copies of letters and other important documents on my case as it progresses?
10. Will you personally handle my case and return my phone calls or e-mail inquiries?
1. How long have you been practicing law?
2. How many personal injury cases have you handled in your career?
3. Will you be willing to try my case if for any reason it cannot be settled?
4. How many jury trials have you conducted?
5. Is your contingency fee negotiable?
6. Will I be responsible for case costs in addition to the contingency fee, and if so, are the costs contingent like the fee?
7. How would you propose to handle a case such as mine?
8. How long will it take to resolve my case?
9. Will I be forwarded copies of letters and other important documents on my case as it progresses?
10. Will you personally handle my case and return my phone calls or e-mail inquiries?
Monday, July 11, 2011
Small Claims News
Governor Brown just signed a bill increasing small claims jurisdiction so it can entertain cases worth as much as $10,000.00. The jurisdictional limit was previously $7,500.00. The bill received bipartisan support and will enable people to seek relief from the courts on matters that may be cost prohibitive to retain an attorney on. Attorneys can represent litigants in court on a small claims appeal or to try and collect a small claims judgment that the defendant doesn't voluntarily pay. Of course, an attorney can certainly be consulted for initial advice on whether a small claims action would be advisable and what the procedures are.
Tuesday, May 17, 2011
What To Do At The Scene Of A Motor Vehicle Collision
Being involved in a motor vehicle collision has to be one of the most unwelcome events a motorist can face. If this happens to yourself, there are certain things you should do (and not do), assuming that you are fortunate enough not to be hurt, hurt that bad, or stressed out enough to remember to take certain steps to memorialize the event in case of a legal claim arising later.
These steps should include the following:
Call an ambulance and/or 911 if someone appears injured or requests same.
Call the police or CHP as the case may be. Many police agencies will refuse to come to the scene if it appears to be a minor collision without visible injury to any of the participants, but don't be afraid to call anyway and don't be dissuaded from calling because the other involved motorist begs you not to (this usually means they don't have insurance or have something to hide, like an expired license or alcohol consumption).
If you have a cell phone camera or camera, take photographs and/or video of all visible damage to all of the vehicles, and also the place of rest of the respective vehicles assuming that they haven't been moved from the scene yet.
Share auto insurance information with the other driver(s). Take down the other driver's name, address, telephone number and if they will provide it, their driver's license number and date of birth. Write down the license plate number, year, and make of their vehicle as well.
Don't get into an argument with the other driver over whose fault it was, this can create liability situations for either or both of you that may eclipse who violated what section of the vehicle code. Be polite and don't be afraid to inquire into the other participant's physical well-being. If somebody asks you if you were hurt and you are not sure (some soft-tissue musculoskeletal injuries may not manifest symptoms for as long as 24-48 hours later) then say you are not sure or that you are "shook up", so long as that is true.
Don't be afraid to apologize, make amends, or express concern to the other affected participants. Offers to take care of the other motorist's damages at the scene are inadmissible as evidence under CA Evidence Code section 1152, and expressions of sympathy or benevolence for a person's injuries at an accident scene are inadmissible under CA Evidence Code section 1160.
If there are any non-involved witnesses who are kind enough to provide their names and contact information, then take that down in writing as well.
See a health care provider at the first symptom of injury or discomfort, as delays in seeking medical attention are seized on by insurance companies as an excuse to deny or compromise injury claims. If you have it, use your own medical insurance to pay for same, as the liable party is still responsible for the reasonable cost of your medical bills under the Collateral Source Rule. It is more important to see a doctor before you see an attorney.
Report the accident to your auto insurance carrier as soon as feasible, as reporting the accident is not synonymous with the making of a claim and you should find out what coverage is available to you (for property damage and medical bills) through your own policy before worrying about what the carrier for the other driver may or may not do. Your auto insurance carrier is mandated to provide you your agreed upon benefits under your policy regardless of who is at fault, as the other motorist's carrier won't pay a dime until they conclude a liability investigation and this may take weeks or even months to conclude.
Drive safely and make sure your automobile insurance is suited for your personal and financial needs.
These steps should include the following:
Call an ambulance and/or 911 if someone appears injured or requests same.
Call the police or CHP as the case may be. Many police agencies will refuse to come to the scene if it appears to be a minor collision without visible injury to any of the participants, but don't be afraid to call anyway and don't be dissuaded from calling because the other involved motorist begs you not to (this usually means they don't have insurance or have something to hide, like an expired license or alcohol consumption).
If you have a cell phone camera or camera, take photographs and/or video of all visible damage to all of the vehicles, and also the place of rest of the respective vehicles assuming that they haven't been moved from the scene yet.
Share auto insurance information with the other driver(s). Take down the other driver's name, address, telephone number and if they will provide it, their driver's license number and date of birth. Write down the license plate number, year, and make of their vehicle as well.
Don't get into an argument with the other driver over whose fault it was, this can create liability situations for either or both of you that may eclipse who violated what section of the vehicle code. Be polite and don't be afraid to inquire into the other participant's physical well-being. If somebody asks you if you were hurt and you are not sure (some soft-tissue musculoskeletal injuries may not manifest symptoms for as long as 24-48 hours later) then say you are not sure or that you are "shook up", so long as that is true.
Don't be afraid to apologize, make amends, or express concern to the other affected participants. Offers to take care of the other motorist's damages at the scene are inadmissible as evidence under CA Evidence Code section 1152, and expressions of sympathy or benevolence for a person's injuries at an accident scene are inadmissible under CA Evidence Code section 1160.
If there are any non-involved witnesses who are kind enough to provide their names and contact information, then take that down in writing as well.
See a health care provider at the first symptom of injury or discomfort, as delays in seeking medical attention are seized on by insurance companies as an excuse to deny or compromise injury claims. If you have it, use your own medical insurance to pay for same, as the liable party is still responsible for the reasonable cost of your medical bills under the Collateral Source Rule. It is more important to see a doctor before you see an attorney.
Report the accident to your auto insurance carrier as soon as feasible, as reporting the accident is not synonymous with the making of a claim and you should find out what coverage is available to you (for property damage and medical bills) through your own policy before worrying about what the carrier for the other driver may or may not do. Your auto insurance carrier is mandated to provide you your agreed upon benefits under your policy regardless of who is at fault, as the other motorist's carrier won't pay a dime until they conclude a liability investigation and this may take weeks or even months to conclude.
Drive safely and make sure your automobile insurance is suited for your personal and financial needs.
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