On Nov 19, 8:31 am, Stan <stanle...@hotmail.com> wrote:
> A synagogue provided secondary liability coverage for parents driving
> other children to youth group activities, and required each driver to
> have a minimum liability coverage that was above the state minimum.
> They didn't ask if the driver had at least 25/50 (for example)
> personal liability coverage, but rather required they list the actual
> amount of insurance on their internal "driver qualification" form.
> One of the parents, an insurance company executive, stated that they
> should not reveal this info.
Your situation actually embraces both the contexts I discussed in my previous post.
As between the drivers and the synagogue they were (volunteer) contractors for, the synagogue _required_ them to furnish evidence of coverage in excess of minimum legal limits. The synagogue had every right to do so, and were smart to do so. Those who refused to reveal such information could simply be barred from acting as volunteer drivers, just as a subcontractor who refuses to provide a certificate of insurance to the one who proposes to hire him is going to find himself not getting many contracts.
But the insurance guy was also right, and also smart, to tell those drivers not to reveal their higher-than-minimum coverage, OR the existence of the secondary excess policy provided by the synagogue, to the other parties at the scene of a crash. The carpool drivers were not legally required to disclose such information at the scene, There's no sense adding fuel to the potential fire, as it were, by giving any incentive to victims (real or imagined) to either fabricate or exaggerate the extent of their injuries simply because they have been led to believe there is a "deep pocket" out there who will uncritically pay their damages. N.b. most people who sue don't base their decision to file a claim on such dishonest criteria, and are genuinely injured. But why tempt those who aren't?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tuesday, August 21, 2012
Megan Meier - Myspace suicide case
On Nov 19, 8:32 am, Deborah Speer <satrn...@sbcglobal.net> wrote:
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Why can't the mother who caused the death of 13-year old Megan Meier by
> posing as another 14-year old to spy on her neighbor be prosecuted in a
> civil court?
Who says she can't? If the victim's family has already or will consult a lawyer, he may find a way to argue that the hoaxer's conduct fits into a category that permits a jury finding of liability under existing MO law. Frex, maybe it constitutes the tort of intentional infliction of emotional distress (IIED). Whether a jury would find it to be so, I don't know. But it's certainly worth it for the family to consult a lawyer and see what their options are.
Just because they haven't sued yet doesn't mean they won't. Cyberspace torts are as you can guess a very new and uncertain area of the law, so I wouldn't be surprised if it took quite a bit of time to research a basis for suit, either under existing law or to build an argument for an extension of existing law to cover new forms of conduct. The tort of IIED, frex, didn't exist until somebody did something completely outrageous that wasn't covered by existing law, the victim of that outrageous conduct sued, lost at trial because there was no currently recognized legal basis for the claim, appealed, and finally got an appellate court to rule in the victim's favor, creating new law in their written, published appellate opinion to recognize such a tort and make such claims available to other similar victims without having to go thru all that. That's one main way the law evolves, through creative lawyering by those brave trial lawyers who are willing to go to bat for a victim who has clearly been wronged but appears to have little chance of success under current law.
> And why couldn't the FBI recover the complete text of the MySpace posts
> that were the cause of the young girl's death?
That's not a legal question, it's mainly a computer-tech question. So maybe the computer gurus on this group will have a better perspective than the lawyers, but I'll take a stab at it. But as a lawyer I can tell you that, first, we have to get as close as we can to the original witness' statements, not conclusory summaries, if we want to have any chance of guessing what really happened. I don't put much stock in blogs, since I have yet to find one I trust to be as reliable as traditional journalism and their info about such public matters is almost always second-hand, based on published news reports, often without citation or attribution so they cannot be cross-checked, and which become more and more garbled each time they are paraphrased and repeated. And the blogs you cite mainly refer back to the Fox News story (not much better IMO) you also cited, or the local paper that apparently first broke the story publicly. This Fox quote appears to be what you are asking about:
"Her father said he found a message the next day from Josh, which he said law enforcement authorities have not been able to retrieve. It told the girl she was a bad person and the world would be better without her, he has said."
Two of the blogs you cite contain links to what appears to be an article in a local paper in St. Charles County, MO where the incident occurred, and that article (which itself may have been the source of the Fox story as well) does contain a little more detail about the data-retrieval issue:
"Later that day, Ron opened his daughter's MySpace account and viewed what he believes to be the final message Megan saw - one the FBI would be unable to retrieve from the hard drive.
* * *
The Meiers say the matter also was investigated by the FBI, which analyzed the family computer and conducted interviews. Ron said a stumbling block is that the FBI was unable to retrieve the electronic messages from Megan's final day, including that final message that only Ron saw."
It sounds from those 2 accounts like law enforcement personnel simply were unable to recover, FROM THE VICTIM'S family computer, the final message from "Josh" that Megan's father saw on the screen after Megan killed herself. One possible explanation is that the father did something inadvertent -- such as turning off the computer, or closing the open Myspace window he saw before the message had been saved to a permanent storage medium such as the hard disk -- that lost whatever evidence was being displayed on their computer screen in volatile memory. But if there is a backup or server file somewhere with "Josh's" postings still on it, I see no reason why the FBI or even local police could not access that data, if they filed for an appropriate warrant claiming it was evidence of specific criminal activity. This is quite different from, e.g. random and warrantless monitoring of ongoing communications of people who have not been charged with or even suspected of any particular crime, as part of the "war on terror".under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (I refuse to call it by its evilly propagandistic short "popular" acronym).
Now, getting back to your original, legal question, CRIMINAL liability is a very different matter from civil liability. In USA, one cannot be convicted of a crime that was not against the law at the time the act was committed; the Constitution prohibits such "ex post facto" laws. An appellate ruling in a civil case, on the other hand, can create new law to cover what the civil defendant did, just like a civiil statute can be specifically made by the legislature to have retroactive effect in appropriate circumstances.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Derivative movie rotoscoping, part 2
On Nov 17, 7:49 am, Mike <prabb...@shamrocksgf.com> wrote:
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> That got me to wondering about another hypothetical. You take a
> photograph of a mountain. I take that picture and making a painting
> from it (not by tracing but by simply looking at the picture and
> painting the mountain.)
You're making a derivative work which is based on copying someone else's original creative work into another medium. Sorry, that's infringement if you don't have permission from the original copyright holder.
> I could have EASILY painted the mountain by standing with
> an easel, etc. at the same place where you stood and painted it
> directly.
But you _DIDN'T_ do that. You painted a copy of his photo instead.
Non-legal aside: Apparently you are oblivious to the fact that a photo freeze-captures a unique moment in time and space, something that will never be repeated, and that the scene the camera was aimed at is constantly changing. So actually, you CAN'T go to the place where the photographer took his photo and get the exact same result from his original, natural inspiration. If I went to Yosemite, pointed my camera (or painter's easel) at Half Dome and took a bunch of snapshots, they would not come out looking anything at all like something Ansel Adams may have taken, even if I stood at the exact same spot as the master when I clicked the button. IIRC Adams would often spend hours at the scene waiting to get everything just right, before making an exposure. The constantly moving and changing branches of trees, angle of the sunlight based on the time of day and time of year, the pattern of clouds, the focal length and exposure time, the choice of film and emulsion and developing methods, all play a part in getting exactly the composition the artist wants to include in his photo and make it a unique original. Even in more mundane contexts, e.g. fashion photography in a studio, the pro photographer may take hundreds of shots of basically the same scene (girl, clothes, prop) to get just one or two that have that "je ne seis quoi" that qualifies it to be printed in a magazine. The rest are basically outtakes, trash. And you want to get to the charismatic, attention-grabbing final result without going thru all that work the original artist did, just by copying the best, most appealing fraction of his work? How is that not infringement?
> Could it be argued that I did not infringe on your photo?
Could it? Sure, you can argue anything you want. But IMO that argument would not be reasonable, nor would it likely be successful if you got sued for infringement.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
insurance bad faith liability, part 2
On Nov 16, 10:18 am, Stan <stanle...@hotmail.com> wrote:
> YEARS ago, I read about this exact situation, and from the limited
> newspaper coverage I read at the time, the insured was successful in
> his subsequent lawsuit against his insurance company. What was
> mentioned was that one of the allegations in the lawsuit against the
> insurance company was that they based on their decision to go to trial
> on a presumption that the most it would cost them was zero additional
> damages if they lost, and as such, they completely failed to consider
> their insured's interest.
That sounds like you read about a successful insurer-bad-faith claim as discussed in my previous reply post on this thread. The insurer does have an obligation to exercise good faith in trying to protect its insured -- that's what the insured is paying premiums for, after all.
> But on the other hand, and I wouldn't be
> surprised if this were the insurer's justification, by telling the
> injured party what his insurance limit is, Joe isn't exactly
> protecting his insuror's interest,
No, the protection obligation generally runs the other direction. Joe does have certain duties under the policy as a condition of coverage, such as cooperation in the insurer's investigation of the facts, etc. but Joe is not obligated to help the insurer play "hide the pea" if Joe is in fact at fault and willing to admit it. Cooperation with the insurer does not require Joe to lie, or to disagree with or hide his own feelings about what happened, and it is perfectly reasonable for Joe to want his insurer to just pay the claim and make the problem go away, which (as noted above) is the whole reason why he paid his premiums and why insurance is legally considered a valuable form of protection against risk rather than a scam and a crooked racket. The insurer is supposed to honestly assess the risk and honestly evaluate the claim and to pay legitimate claims without making both the claimant, and the poor insured, jump thru agonizing hoop after hoop to get there.
On your other point, I don't believe in any state today there is an explicit _prohibition_ on the insured telling an opposing claimant what his coverage limit is. To the contrary, in many states, there is a requirement to _reveal_ coverage limits at an early pre-suit date when asked. And in virtually every state AFAIK the coverage limits are discoverable and must be disclosed after suit is filed.
The social policy rationale behind this preference for revealing limits is that knowing what the limits are will encourage both parties toward out-of-court settlement -- which the law prefers. OTOH if the coverage amount were kept secret until after trial, the claimants would more often be forced to take a case to trial and get a verdict because they couldn't be sure that an offer was fair -- how could they, if they didn't know how good their chances were of ever collecting on a larger amount than the offer. Although in an appropriate case, with catastrophic damages, known low coverage limits, and a defendant with substantial assets, the claimant's attorney may make the strategic decision that trial is worth the risk rather than accepting a policy limits offer, in the vast majority of cases it is just not worth the risk to the claimant and the claimant instructs his attorney to accept a limits offer.
> and in fact is offering to settle with money that isn't his to begin with.
I beg to differ, if I understand you right. The insurer's money isn't Joe's to play with, but the liability insurer _is_ obligated to put up its money to protect Joe if a claim is made against Joe. That may be a subtle difference, but in most cases the outcome is the same. True, Joe cannot tell the person he just crashed into, "I'll give you $20,000 (or whatever his policy limit is) if you don't sue me" and then expect the insurer to pick up the bill; such an offer would not bind the insurer. Part of the problem is that Joe, unlike professional insurance adjusters and professional plaintiff attorneys, has no idea what the case against him may really be worth. But the insurer, stepping into Joe's shoes, _does_ have a pretty good idea, and also has the duty to Joe to try to settle for an amount within (hopefully under) policy limits, if that can reasonably be done.
> (As an aside, years ago an
> insurance company executive advised that we should never reveal our
> liability coverage;
In what context?
In talking to the other party at the scene of auto crashes? Sure, there's no need to reveal limits at that point; perhaps your speaker just meant to stress that it's a good idea to only provide at the scene the bare information the law requires (name, address, registration, driver's license, name and policy # of insurance company) and leave it at that, to avoid making any potentially damaging admissions. That is not a legal requirement, but a strategic desideratum that this insurance executive is trying to get his insureds to comply with, for their own protection and for his. A subtle difference, yes?
In subcontracting or consulting contracts? It's far more common for a customer to require the contractor, at time of contracting and before the work is done, to provide a certificate of insurance which evidences that the contractor carries insurance in at least a certain stated coverage amount.
Maybe you could clarify what context you meant.
> I wonder if any such prohibition is now buried in
> the fine print of insurance policies?)
I strongly doubt it, given that law favors revealing this information at the appropriate time.
Even in the car-crash example, where the "smart" driver would avoid making harmful admissions to the other party, the insurer cannot disclaim coverage on grounds of lack of cooperation if the insured _does_ make a harmful admission at the scene. Such statements are commonly made, to the chagrin of insurance executives, and are a goldmine for cross-examination at trial.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> YEARS ago, I read about this exact situation, and from the limited
> newspaper coverage I read at the time, the insured was successful in
> his subsequent lawsuit against his insurance company. What was
> mentioned was that one of the allegations in the lawsuit against the
> insurance company was that they based on their decision to go to trial
> on a presumption that the most it would cost them was zero additional
> damages if they lost, and as such, they completely failed to consider
> their insured's interest.
That sounds like you read about a successful insurer-bad-faith claim as discussed in my previous reply post on this thread. The insurer does have an obligation to exercise good faith in trying to protect its insured -- that's what the insured is paying premiums for, after all.
> But on the other hand, and I wouldn't be
> surprised if this were the insurer's justification, by telling the
> injured party what his insurance limit is, Joe isn't exactly
> protecting his insuror's interest,
No, the protection obligation generally runs the other direction. Joe does have certain duties under the policy as a condition of coverage, such as cooperation in the insurer's investigation of the facts, etc. but Joe is not obligated to help the insurer play "hide the pea" if Joe is in fact at fault and willing to admit it. Cooperation with the insurer does not require Joe to lie, or to disagree with or hide his own feelings about what happened, and it is perfectly reasonable for Joe to want his insurer to just pay the claim and make the problem go away, which (as noted above) is the whole reason why he paid his premiums and why insurance is legally considered a valuable form of protection against risk rather than a scam and a crooked racket. The insurer is supposed to honestly assess the risk and honestly evaluate the claim and to pay legitimate claims without making both the claimant, and the poor insured, jump thru agonizing hoop after hoop to get there.
On your other point, I don't believe in any state today there is an explicit _prohibition_ on the insured telling an opposing claimant what his coverage limit is. To the contrary, in many states, there is a requirement to _reveal_ coverage limits at an early pre-suit date when asked. And in virtually every state AFAIK the coverage limits are discoverable and must be disclosed after suit is filed.
The social policy rationale behind this preference for revealing limits is that knowing what the limits are will encourage both parties toward out-of-court settlement -- which the law prefers. OTOH if the coverage amount were kept secret until after trial, the claimants would more often be forced to take a case to trial and get a verdict because they couldn't be sure that an offer was fair -- how could they, if they didn't know how good their chances were of ever collecting on a larger amount than the offer. Although in an appropriate case, with catastrophic damages, known low coverage limits, and a defendant with substantial assets, the claimant's attorney may make the strategic decision that trial is worth the risk rather than accepting a policy limits offer, in the vast majority of cases it is just not worth the risk to the claimant and the claimant instructs his attorney to accept a limits offer.
> and in fact is offering to settle with money that isn't his to begin with.
I beg to differ, if I understand you right. The insurer's money isn't Joe's to play with, but the liability insurer _is_ obligated to put up its money to protect Joe if a claim is made against Joe. That may be a subtle difference, but in most cases the outcome is the same. True, Joe cannot tell the person he just crashed into, "I'll give you $20,000 (or whatever his policy limit is) if you don't sue me" and then expect the insurer to pick up the bill; such an offer would not bind the insurer. Part of the problem is that Joe, unlike professional insurance adjusters and professional plaintiff attorneys, has no idea what the case against him may really be worth. But the insurer, stepping into Joe's shoes, _does_ have a pretty good idea, and also has the duty to Joe to try to settle for an amount within (hopefully under) policy limits, if that can reasonably be done.
> (As an aside, years ago an
> insurance company executive advised that we should never reveal our
> liability coverage;
In what context?
In talking to the other party at the scene of auto crashes? Sure, there's no need to reveal limits at that point; perhaps your speaker just meant to stress that it's a good idea to only provide at the scene the bare information the law requires (name, address, registration, driver's license, name and policy # of insurance company) and leave it at that, to avoid making any potentially damaging admissions. That is not a legal requirement, but a strategic desideratum that this insurance executive is trying to get his insureds to comply with, for their own protection and for his. A subtle difference, yes?
In subcontracting or consulting contracts? It's far more common for a customer to require the contractor, at time of contracting and before the work is done, to provide a certificate of insurance which evidences that the contractor carries insurance in at least a certain stated coverage amount.
Maybe you could clarify what context you meant.
> I wonder if any such prohibition is now buried in
> the fine print of insurance policies?)
I strongly doubt it, given that law favors revealing this information at the appropriate time.
Even in the car-crash example, where the "smart" driver would avoid making harmful admissions to the other party, the insurer cannot disclaim coverage on grounds of lack of cooperation if the insured _does_ make a harmful admission at the scene. Such statements are commonly made, to the chagrin of insurance executives, and are a goldmine for cross-examination at trial.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Why mention locus delicti (place of the wrongdoing)
On Nov 16, 10:18 am, kastnna <kast...@auburnalum.org> wrote:
> On Nov 15, 7:11 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > Yes. The law of your state will determine this. Why don't foax tell
> > the group where they are? Laws differ from place to place. I feel
> > like a broken record
<snip>
> Completely off-topic, but we often don't say where we are from because
> we are ignorant and don't know what is and is not pertinent
> information. After the first time I posted, I learned it was important
> and have made it a point to include it. Many people, myself included,
> aren't (weren't) aware that laws vary so widely from state to state.
> Please forgive us and bear with us.
Consider it done. We are, after all, still reading and replying so it isn't all _that_ bothersome even to a curmudgeon like me despite occasional rants. And newbies are of course always welcome -- without the vitality of fresh viewpoints, the group would die out.
I guess what got to me is I had just read and responded to 2 posts in a row where this crucial tidbit of info was omitted, yours and another's. And in addition to just thinking out loud, I was not trying to directly berate you or anyone else for posting a serious question that deserved an answer even though vital info was omitted, but rather to provide a heads-up to other newbies who, hopefully, upon browsing the group, would maybe see mine or similar reply messages and realize that the location they are writing from and the location where events occurred could make a difference to the answer they should expect, _ before_ posting their own query. Or they could just read the FAQ, but maybe that's too much to expect unless they are already Usenet-savvy. I realize it's hard to tell what you don't know if you don't know it.
> Again, on behalf of all newbies and non-lawyers, I apologize.
No apology needed. You didn't do anything wrong. I just took your post as a jumping-off point for a mild rant.
> Hopefully, if you keep chastising, some of the "lurkers" will become
> aware of its importance before posting.
Yes, that was also my thinking. Regards,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Nov 15, 7:11 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > Yes. The law of your state will determine this. Why don't foax tell
> > the group where they are? Laws differ from place to place. I feel
> > like a broken record
<snip>
> Completely off-topic, but we often don't say where we are from because
> we are ignorant and don't know what is and is not pertinent
> information. After the first time I posted, I learned it was important
> and have made it a point to include it. Many people, myself included,
> aren't (weren't) aware that laws vary so widely from state to state.
> Please forgive us and bear with us.
Consider it done. We are, after all, still reading and replying so it isn't all _that_ bothersome even to a curmudgeon like me despite occasional rants. And newbies are of course always welcome -- without the vitality of fresh viewpoints, the group would die out.
I guess what got to me is I had just read and responded to 2 posts in a row where this crucial tidbit of info was omitted, yours and another's. And in addition to just thinking out loud, I was not trying to directly berate you or anyone else for posting a serious question that deserved an answer even though vital info was omitted, but rather to provide a heads-up to other newbies who, hopefully, upon browsing the group, would maybe see mine or similar reply messages and realize that the location they are writing from and the location where events occurred could make a difference to the answer they should expect, _ before_ posting their own query. Or they could just read the FAQ, but maybe that's too much to expect unless they are already Usenet-savvy. I realize it's hard to tell what you don't know if you don't know it.
> Again, on behalf of all newbies and non-lawyers, I apologize.
No apology needed. You didn't do anything wrong. I just took your post as a jumping-off point for a mild rant.
> Hopefully, if you keep chastising, some of the "lurkers" will become
> aware of its importance before posting.
Yes, that was also my thinking. Regards,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance bad faith liability
On Nov 15, 8:12 am, "Robert11" <rgs...@notme.com> wrote:
> Joe was involved in an auto accident (Mass.) and is being sued for pain and
> suffering, etc.
> Joe agrees that he was at fault.
I believe MA is a "comparative fault" state. Even if Joe believes he did wrong, that still does not mean he was 100% wrong and the injured victim 100% in the right. Reality is usually not that simple. Of course, you say nothing about the facts of the crash (it's a hypothetical, right?) so we can't poke holes in Joe's factual _conclusion_ that he is 100% at fault, by looking at the _underlying_ facts that may provide contradictory indications.
> His auto policy limits will cover what the party is asking.
He was smart to carry high enough limits to meet expected losses. Those who carry only the legally required minimum are in most states woefully under-insured. But even a high-limits policy can't guarantee that a jury won't award even more than that in a particular case -- it's rare, but does happen (which is why it makes the news when it does).
> Joe wants them to pay, and be done with it, of course.
But if they do, his rates may go up, so his self-interest cuts both ways. In any event, that decision is usually up to the insurance company to make -- only in very high-end-type liability situations (medical malpractice, frex) do insurance policies give the insured any formal say in whether to settle or not.
> However, the insurance company doesn't want to pay what is being asked, and
> is agreeing to go to trial.
You've got that backwards. The ins. co. isn't "agreeing" to go to trial; rather, trial is the ultimate result that will inevitably occur if they _don't_ agree to settle _before_ trial. It's settlement, not trial, that requires a voluntary agreement of the parties. The law is there simply to provide a final, backed-by-force-of-the-state arbiter of those disputes which the parties cannot resolve themselves, out of court.
As an aside, those "tort reformers" who decry the "overloading" of our courts with civil lawsuits ought to keep this in mind. It is the defendant, not the plaintiff, who controls whether a case or claim has to go to trial or not. The defendant (thru his insurer) can say "yes" to an agreed, negotiated amount at any time, and the case is over. If the defendant (thru his insurer) insistently says "no" even when all reasonable indications are that saying "yes" to some compromise figure would make the most sense, the plaintiff has literally no choice other than to take the case all the way to trial, and let the judge or jury decide both liability ("who wins") and damages ("how much").
Some insurers, I might add, say "no" even when they ought to say "yes" simply to save their _own_ pocketbooks in the long run, hoping they will win more often than they lose even if they hang an occasional loser like Joe out to dry, especially when they have already "poisoned the well" by tort-reform propaganda that makes typical jurors highly skeptical of any personal injury claim and less inclined to award reasonable sums for pain and suffering than they used to be (and it is quite common for even a successful plaintiff to be awarded only his medical expenses and lost wages, with a big fat zero for pain and suffering).
As a further, even more remote aside, isn't it peculiar how in war, only the loser can declare a war to be over, by surrendering? The stronger side cannot simply declare "mission accomplished" and go home. As long as the underdogs keep fighting, the war is not over.
> At the trial, Joe is found guilty,
The more accurate term is, he was found "liable" for civil negligence resulting in damages to the particular plaintiff. One is found "guilty" of a criminal offense against the state. There is not supposed to be any moral judgment in merely being found "liable"; it's just an unfortunate mistake, not a crime. If you accidentally knock a knicknack off a shelf at a pottery store and break it, you are liable to pay the owner for it, but that doesn't mean you are a bad person. OTOH if you come into the store swinging a baseball bat and wreck the inventory, to intimidate the owner into paying "protection", frex, that's a different story.
> and the other party is awarded More than
> the coverage in his policy.
As noted above, this is rare, but does sometimes happen.
> So, what happens:
As usual, "it depends."
> Could he have insisted that since his policy amount was adequate, the
> insurance company should have paid what was initially asked for ?
The insurance co. has a good faith obligation to try to do that. If they didn't at least make an honest effort to do so, Joe might have a bad faith claim against them. But that is a tort claim against his own insurer, not a contract claim under his policy.
The odd twist in your hypo is that judgment was awarded for even more than the plaintiff asked for in his initial complaint. This is extremely rare and in some states the court would not even grant it, but would limit the plaintiff to the amount he originally asked for when filing suit (plus interest, costs, etc. and any after-accrued liabilities in a contract claim). In other states, such as MD, a complaint's "ad damnum" (amount asked for in judgment) can be freely amended, even after the verdict, to conform to the evidence and the verdict.
Unless I misunderstand what you mean by "what was initially asked for". In the course of pre-suit negotiations, a claimant will start from an initial negotiating demand, in anticipation of eventually reaching some compromise with the (usually lower) initial offers from the insurer; but that does not limit the amount the claimant can ask for in the ad damnum of his complaint when he does eventually have to file suit (if the insurer is unwilling to settle first).
In a case with large damages, a plaintiff will usually ask for "policy limits" as an initial negotiating position. If that is only a small fraction of the total damages, the claimaint is unlikely to be willing to go lower, because in doing so he would give up the possibility of winning an excess judgment (and which might leave the plaintiff's lawyer open to malpractice liability against his own client, for selling his case short)
When a complaint (suit) is filed in an amount _over_ policy limits, the insurer (in most states) is obligated to inform the insured of that fact, and also inform him of his right to obtain independent counsel to protect his interests. Even though the insurer retains and pays the lawyer who will actually try the case for defendant, defendant's independent counsel in an excess case can "oversee" the insurance lawyer and can also put pressure on the insurer to settle within policy limits. But none of that stuff is likely to happen if the ad damnum of the lawsuit's complaint is within policy limits; then, the whole thing is in the hands of the insurer.
> Was there any obligation for the insurance company to have settled up for
> an amount
> that was within his coverage ?
There's a duty to try, if it reasonably appeared likely the verdict could be for more than limits. The insurer, in every state AFAIK, has a duty to deal with its own insureds in good faith. If settlement within policy limits was a reasonable possibility and if liability is clear-cut enough that the insurer had no reasonable basis for refusing to attempt settlement, the poor (under-insured) defendant who got left holding the bag may have what's called a "bad faith" claim against his own insurance company, after a verdict in excess of his policy limits is handed to the plaintiff.
In practice, what often happens is, after the first trial of the underlying claim, the insured judgment debtor may "assign" his now-arisen bad-faith claim against the insurer to the victorious plaintiff, in exchange for a promise by the plaintiff not to execute on the excess judgment against any of debtor's personal assets other than his insurance coverage. The plaintiff (with that assignment agreement in hand) then tries to get the court to force the insurer to award him, as assignee of the original insured defendant, the damages that were caused _to_the_insured_ by the insurer's own tortious (bad faith) behavior, i.e. the amount that the insured debtor was found liable for in excess of policy limits. IOW, if the plaintiff does this right and gets lucky, the insurer may have to pay the full verdict even if it is in excess of policy limits.
> That it never should have gone to trial since his coverage was adequate, and
> therefore he should not have to be liable for the difference ?
That, in essence, is the basis for the insurer's bad faith liability to its insured: the insurer forced a case to go to trial where it never should have because if they were being reasonable they would have settled before trial, within policy limits.
But that doesn't mean "defendant is not liable for the difference". The verdict is what it is, and defendant is liable to the plaintiff whether or not he gets his insurer to cover the excess verdict. Indeed, the fact of that now-existing liability is an essential element of Joe's bad-faith claim against his insurer, since without that liability existing and hanging over his head, Joe would not have suffered any damages from the insurer's wrongful actions.
> BTW: is this essentially the same group as the unmoderated one: misc.legal
No. This one is moderated. The other one isn't.
If you don't know what kind of difference that makes, read and compare.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Joe was involved in an auto accident (Mass.) and is being sued for pain and
> suffering, etc.
> Joe agrees that he was at fault.
I believe MA is a "comparative fault" state. Even if Joe believes he did wrong, that still does not mean he was 100% wrong and the injured victim 100% in the right. Reality is usually not that simple. Of course, you say nothing about the facts of the crash (it's a hypothetical, right?) so we can't poke holes in Joe's factual _conclusion_ that he is 100% at fault, by looking at the _underlying_ facts that may provide contradictory indications.
> His auto policy limits will cover what the party is asking.
He was smart to carry high enough limits to meet expected losses. Those who carry only the legally required minimum are in most states woefully under-insured. But even a high-limits policy can't guarantee that a jury won't award even more than that in a particular case -- it's rare, but does happen (which is why it makes the news when it does).
> Joe wants them to pay, and be done with it, of course.
But if they do, his rates may go up, so his self-interest cuts both ways. In any event, that decision is usually up to the insurance company to make -- only in very high-end-type liability situations (medical malpractice, frex) do insurance policies give the insured any formal say in whether to settle or not.
> However, the insurance company doesn't want to pay what is being asked, and
> is agreeing to go to trial.
You've got that backwards. The ins. co. isn't "agreeing" to go to trial; rather, trial is the ultimate result that will inevitably occur if they _don't_ agree to settle _before_ trial. It's settlement, not trial, that requires a voluntary agreement of the parties. The law is there simply to provide a final, backed-by-force-of-the-state arbiter of those disputes which the parties cannot resolve themselves, out of court.
As an aside, those "tort reformers" who decry the "overloading" of our courts with civil lawsuits ought to keep this in mind. It is the defendant, not the plaintiff, who controls whether a case or claim has to go to trial or not. The defendant (thru his insurer) can say "yes" to an agreed, negotiated amount at any time, and the case is over. If the defendant (thru his insurer) insistently says "no" even when all reasonable indications are that saying "yes" to some compromise figure would make the most sense, the plaintiff has literally no choice other than to take the case all the way to trial, and let the judge or jury decide both liability ("who wins") and damages ("how much").
Some insurers, I might add, say "no" even when they ought to say "yes" simply to save their _own_ pocketbooks in the long run, hoping they will win more often than they lose even if they hang an occasional loser like Joe out to dry, especially when they have already "poisoned the well" by tort-reform propaganda that makes typical jurors highly skeptical of any personal injury claim and less inclined to award reasonable sums for pain and suffering than they used to be (and it is quite common for even a successful plaintiff to be awarded only his medical expenses and lost wages, with a big fat zero for pain and suffering).
As a further, even more remote aside, isn't it peculiar how in war, only the loser can declare a war to be over, by surrendering? The stronger side cannot simply declare "mission accomplished" and go home. As long as the underdogs keep fighting, the war is not over.
> At the trial, Joe is found guilty,
The more accurate term is, he was found "liable" for civil negligence resulting in damages to the particular plaintiff. One is found "guilty" of a criminal offense against the state. There is not supposed to be any moral judgment in merely being found "liable"; it's just an unfortunate mistake, not a crime. If you accidentally knock a knicknack off a shelf at a pottery store and break it, you are liable to pay the owner for it, but that doesn't mean you are a bad person. OTOH if you come into the store swinging a baseball bat and wreck the inventory, to intimidate the owner into paying "protection", frex, that's a different story.
> and the other party is awarded More than
> the coverage in his policy.
As noted above, this is rare, but does sometimes happen.
> So, what happens:
As usual, "it depends."
> Could he have insisted that since his policy amount was adequate, the
> insurance company should have paid what was initially asked for ?
The insurance co. has a good faith obligation to try to do that. If they didn't at least make an honest effort to do so, Joe might have a bad faith claim against them. But that is a tort claim against his own insurer, not a contract claim under his policy.
The odd twist in your hypo is that judgment was awarded for even more than the plaintiff asked for in his initial complaint. This is extremely rare and in some states the court would not even grant it, but would limit the plaintiff to the amount he originally asked for when filing suit (plus interest, costs, etc. and any after-accrued liabilities in a contract claim). In other states, such as MD, a complaint's "ad damnum" (amount asked for in judgment) can be freely amended, even after the verdict, to conform to the evidence and the verdict.
Unless I misunderstand what you mean by "what was initially asked for". In the course of pre-suit negotiations, a claimant will start from an initial negotiating demand, in anticipation of eventually reaching some compromise with the (usually lower) initial offers from the insurer; but that does not limit the amount the claimant can ask for in the ad damnum of his complaint when he does eventually have to file suit (if the insurer is unwilling to settle first).
In a case with large damages, a plaintiff will usually ask for "policy limits" as an initial negotiating position. If that is only a small fraction of the total damages, the claimaint is unlikely to be willing to go lower, because in doing so he would give up the possibility of winning an excess judgment (and which might leave the plaintiff's lawyer open to malpractice liability against his own client, for selling his case short)
When a complaint (suit) is filed in an amount _over_ policy limits, the insurer (in most states) is obligated to inform the insured of that fact, and also inform him of his right to obtain independent counsel to protect his interests. Even though the insurer retains and pays the lawyer who will actually try the case for defendant, defendant's independent counsel in an excess case can "oversee" the insurance lawyer and can also put pressure on the insurer to settle within policy limits. But none of that stuff is likely to happen if the ad damnum of the lawsuit's complaint is within policy limits; then, the whole thing is in the hands of the insurer.
> Was there any obligation for the insurance company to have settled up for
> an amount
> that was within his coverage ?
There's a duty to try, if it reasonably appeared likely the verdict could be for more than limits. The insurer, in every state AFAIK, has a duty to deal with its own insureds in good faith. If settlement within policy limits was a reasonable possibility and if liability is clear-cut enough that the insurer had no reasonable basis for refusing to attempt settlement, the poor (under-insured) defendant who got left holding the bag may have what's called a "bad faith" claim against his own insurance company, after a verdict in excess of his policy limits is handed to the plaintiff.
In practice, what often happens is, after the first trial of the underlying claim, the insured judgment debtor may "assign" his now-arisen bad-faith claim against the insurer to the victorious plaintiff, in exchange for a promise by the plaintiff not to execute on the excess judgment against any of debtor's personal assets other than his insurance coverage. The plaintiff (with that assignment agreement in hand) then tries to get the court to force the insurer to award him, as assignee of the original insured defendant, the damages that were caused _to_the_insured_ by the insurer's own tortious (bad faith) behavior, i.e. the amount that the insured debtor was found liable for in excess of policy limits. IOW, if the plaintiff does this right and gets lucky, the insurer may have to pay the full verdict even if it is in excess of policy limits.
> That it never should have gone to trial since his coverage was adequate, and
> therefore he should not have to be liable for the difference ?
That, in essence, is the basis for the insurer's bad faith liability to its insured: the insurer forced a case to go to trial where it never should have because if they were being reasonable they would have settled before trial, within policy limits.
But that doesn't mean "defendant is not liable for the difference". The verdict is what it is, and defendant is liable to the plaintiff whether or not he gets his insurer to cover the excess verdict. Indeed, the fact of that now-existing liability is an essential element of Joe's bad-faith claim against his insurer, since without that liability existing and hanging over his head, Joe would not have suffered any damages from the insurer's wrongful actions.
> BTW: is this essentially the same group as the unmoderated one: misc.legal
No. This one is moderated. The other one isn't.
If you don't know what kind of difference that makes, read and compare.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Mother-in-law care obligation and elder law
On Nov 12, 8:45 am, "John Smith" <some...@microsoft.com> wrote:
> My mother-in-law can no longer live on her own (forgetful regarding
> meds, proper eating, but still mentally alert).
Then she legally is still responsible for her own financial decisions. You can present her with options or suggestions or requests, but it is up to her to authorize them (or not).
> We have taken her in to our home.
Did you, wife and MIL put anything in writing as to the terms of this accommodation? Many people don't, being family, but if one doesn't, then there is no basis to consider your act as anything other than family generosity. IOW, it does _not_ entitle you to take money from MIL's account to help defray her support unless she consciously and specifically agrees to let you do that.
> We just closed on the sale of her house (she signed POA for my wife
> with the realtor), and we have a check for $74,000.
The POA let your wife act on her mom's behalf, as if she were standing in mom's shoes, as it were, simply as an agent of her mother. The POA does not in and of itself authorize your wife to use any of that money for wife's or your own account.
> My M.I.L. has agreed to pay for improvements to our house.
Is that agreement in writing? Hopefully. Otherwise, it's very easy for the parties to have very different ideas about what was agreed to.
> How should we handle the money?
That depends. What does your agreement with MIL provide? The specific terms of your contract with her are far more important, at the outset, than any general "default" provisions the law may provide in the absence of a clear agreement to the contrary.
> Ideally, we would like access to the money as improvements are made,
What does your agreement with MIL provide?
> and also plan for her future
What did MIL decide in that regard? Did you take her to a financial estate planner or elder care lawyer to help figure this out for her? Strongly recommended. Otherhwise, if the care of MIL becomes too hard for you to handle at home and you and wife need to suggest a nursing home, she may not be able to claim federal benefits to help pay for it until she had drawn down her assets almost completely, and so your MIL may wind up in a situation where she has no estate left to pass on to her heirs (which I presume include you and MIL). If you don't do this right it could cost you all dearly. Your MIL's elder care lawyer can also help her pull together and clarify her wishes and preferences in terms of end-of-life medical care, with a Living Will, medical power of attorney, advance directives and so forth, to avoid forcing you and wife to face anguished care decisions in the event of MIL's eventual incapacitation. Since it doesn't sound like MIL's condition is likely getting better anytime soon, this is an appointment you should not put off for too long. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My mother-in-law can no longer live on her own (forgetful regarding
> meds, proper eating, but still mentally alert).
Then she legally is still responsible for her own financial decisions. You can present her with options or suggestions or requests, but it is up to her to authorize them (or not).
> We have taken her in to our home.
Did you, wife and MIL put anything in writing as to the terms of this accommodation? Many people don't, being family, but if one doesn't, then there is no basis to consider your act as anything other than family generosity. IOW, it does _not_ entitle you to take money from MIL's account to help defray her support unless she consciously and specifically agrees to let you do that.
> We just closed on the sale of her house (she signed POA for my wife
> with the realtor), and we have a check for $74,000.
The POA let your wife act on her mom's behalf, as if she were standing in mom's shoes, as it were, simply as an agent of her mother. The POA does not in and of itself authorize your wife to use any of that money for wife's or your own account.
> My M.I.L. has agreed to pay for improvements to our house.
Is that agreement in writing? Hopefully. Otherwise, it's very easy for the parties to have very different ideas about what was agreed to.
> How should we handle the money?
That depends. What does your agreement with MIL provide? The specific terms of your contract with her are far more important, at the outset, than any general "default" provisions the law may provide in the absence of a clear agreement to the contrary.
> Ideally, we would like access to the money as improvements are made,
What does your agreement with MIL provide?
> and also plan for her future
What did MIL decide in that regard? Did you take her to a financial estate planner or elder care lawyer to help figure this out for her? Strongly recommended. Otherhwise, if the care of MIL becomes too hard for you to handle at home and you and wife need to suggest a nursing home, she may not be able to claim federal benefits to help pay for it until she had drawn down her assets almost completely, and so your MIL may wind up in a situation where she has no estate left to pass on to her heirs (which I presume include you and MIL). If you don't do this right it could cost you all dearly. Your MIL's elder care lawyer can also help her pull together and clarify her wishes and preferences in terms of end-of-life medical care, with a Living Will, medical power of attorney, advance directives and so forth, to avoid forcing you and wife to face anguished care decisions in the event of MIL's eventual incapacitation. Since it doesn't sound like MIL's condition is likely getting better anytime soon, this is an appointment you should not put off for too long. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Derivative movie rotoscoping
On Nov 12, 8:45 am, halo <haloeffe...@gmail.com> wrote:
> Question one is: If I take a still image, like a photograph, that
> was created by someone else, and make a tracing of it (that is, put
> tissue paper over it and make a tracing on the tissue paper of the
> photograph underneath), is the tracing I made a violation of the
> copyrights held by the owner of the photograph?
Your tracings are creating a "derivative work" based on the copyrighted original, which would be an infringement if you did not have permission from the copyright holder of the work on which it was based.
> Rotoscoping is the art of taking a motion picture and, frame by frame
> (that is image by image), creating a tracing of each frame of the
> original motion picture. This is much like the tracing mentioned in
> the first question above, but done for every frame of the original
> motion picture. The resulting traced images are then usually coloured
> in, and re-photographed to create a new motion picture.
That would also be a derivative work. If the script and/or soundtrack are the same, that would be a direct copying in addition to the derivative images. If the script is translated into a different language, that is a derivative work.
If this is not just a fun hypothetical and you are in the movie business, you DO have legal counsel on your intellectual property rights and obligations, don't you? Please say yes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Question one is: If I take a still image, like a photograph, that
> was created by someone else, and make a tracing of it (that is, put
> tissue paper over it and make a tracing on the tissue paper of the
> photograph underneath), is the tracing I made a violation of the
> copyrights held by the owner of the photograph?
Your tracings are creating a "derivative work" based on the copyrighted original, which would be an infringement if you did not have permission from the copyright holder of the work on which it was based.
> Rotoscoping is the art of taking a motion picture and, frame by frame
> (that is image by image), creating a tracing of each frame of the
> original motion picture. This is much like the tracing mentioned in
> the first question above, but done for every frame of the original
> motion picture. The resulting traced images are then usually coloured
> in, and re-photographed to create a new motion picture.
That would also be a derivative work. If the script and/or soundtrack are the same, that would be a direct copying in addition to the derivative images. If the script is translated into a different language, that is a derivative work.
If this is not just a fun hypothetical and you are in the movie business, you DO have legal counsel on your intellectual property rights and obligations, don't you? Please say yes.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Judgment lien on home
On Nov 12, 8:44 am, "Chuck" <sendmes...@thevolleyball.net> wrote:
> I won a judgement against an individual but they still have not satisfied
> the judgement. I plan on placing a lien on his home.
>
> Since the amount of the judment is just under 2K and the property is worth
> 500K, I may have to wait until he sells the property to collect. Is there a
> way to get some sort of interest on the judgement if the defandant makes me
> wait years to see any money? For example, can I get the lien in the amount
> of the judgement, PLUS a reasonable interest rate?
Yes. The law of your state will determine this. Why don't foax tell the group where they are? Laws differ from place to place. I feel like a broken record (see my comment to Johnny the Pro Se Defendant's query about unanswered interrogatories also posted this morning, repeated for your edification at * below).
That said, what you propose sounds reasonable. The law in most if not all USA states provides for post-judgment interest and prescribes the applicable rate. Here in MD, the legal rate is 10% simple annual interest. So when you do finally collect on your lien, you will get a return on your investment.
As a side note to the question you didn't ask, if your judgment is just against one individual, and if that individual happens to be married and to own the home as tenants by the entireties or as joint tenants with the spouse, you may not be able to lien the home to satisfy your judgment. This is way too complicated to address in a Usenet post, but you should be aware this is not necessarily a piece of cake from your POV. Good luck.
* As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I won a judgement against an individual but they still have not satisfied
> the judgement. I plan on placing a lien on his home.
>
> Since the amount of the judment is just under 2K and the property is worth
> 500K, I may have to wait until he sells the property to collect. Is there a
> way to get some sort of interest on the judgement if the defandant makes me
> wait years to see any money? For example, can I get the lien in the amount
> of the judgement, PLUS a reasonable interest rate?
Yes. The law of your state will determine this. Why don't foax tell the group where they are? Laws differ from place to place. I feel like a broken record (see my comment to Johnny the Pro Se Defendant's query about unanswered interrogatories also posted this morning, repeated for your edification at * below).
That said, what you propose sounds reasonable. The law in most if not all USA states provides for post-judgment interest and prescribes the applicable rate. Here in MD, the legal rate is 10% simple annual interest. So when you do finally collect on your lien, you will get a return on your investment.
As a side note to the question you didn't ask, if your judgment is just against one individual, and if that individual happens to be married and to own the home as tenants by the entireties or as joint tenants with the spouse, you may not be able to lien the home to satisfy your judgment. This is way too complicated to address in a Usenet post, but you should be aware this is not necessarily a piece of cake from your POV. Good luck.
* As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Discovery sanctions, representing yourself
On Nov 12, 8:44 am, Johnny <J0hn_2...@rock.com> wrote:
> As (pro-se) defendant, I have submitted interrogatories, request for
> admission of facts and request for production to plaintiff. At the
> time of this writing the response from plaintiff is now nearly a week
> over due. How should I react to this situation? Would this be grounds
> for requesting a dismissal or what?
As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
If you insist on representing yourself instead of letting a professional do it, read the rules of civil procedure applicable in your court so you know at least a little bit about what you're doing. In most jurisdictions the rules are listed in a logical sequence corresponding to the stages of a suit, beginning from general principles applicable to all actions, to filing a complaint, motion, answer, cross-claim or counterclaim, to identifying the parties, and when or if joinder of parties is either required or permitted, through the discovery phase (depositions, interrogatories, requests to produce documents for inspection and copying) through trial, not to mention post-trial motions and appeals. Before you go any farther, you need to read and understand _at_least_ all the way through the conclusion of a trial, to know the framework for what will or can happen in your case. Don't know what set of rules are applicable in your case? Ask the court clerk, or a local law librarian. Your courthouse probably has a law library open to the public for research, and your local public library may even have copies of the local court rules. If you don't understand the rules, or even if you do, read some of the reported case opinions (cited in the annotations that appear in most printed volumes of procedure rules) that interpret those rules, to find out how courts in your state really apply them. (The annotations just contain the name and volume/page reference citation for the case and sometimes a very brief capsule summary of its holding. Find and read the actual case, since the capsule descriptions are not always right-on.)
That said, your rules will tell you what your options are when an opponent has failed to provide requested discovery. In many states you have a choice of filing a motion to compel answers (which is what you're likely to get in any case), or filing a motion for immediate sanctions in certain failures of discovery (complete failure to answer a set of interrogatories is usually one of those circumstances that will allow this). However, a court is not likely to throw your plaintiff;s case out of court just because he is a week late in answering. The judge is likely to just order him to respond within a certain additional time -- if trial is looming, that could make a difference, but you didn't say that was a factor. Then, if he still doesn't answer after being specifically ordered to do so by the court, you are more likely to have some success if you file another motion for sanctions based on his violation of the court's order compelling discovery. Sanctions typically can include dismissal, but that is rarely the first choice judges will reach for, because the law prefers that cases be heard on their merits, not won or lost by some procedural mistake. Instead, the judge is more likely to rule that plaintiff be barred from producing certain evidence if he didn't reveal it to you in discovery, or rule that certain contentions of yours be taken as established if plaintiff failed to come up with evidence contradicting them in discovery, and so on.
Anyway, good luck. If you're pro se, you'll need it. But I suppose if the plaintiff is pro se too, you'll both need it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> As (pro-se) defendant, I have submitted interrogatories, request for
> admission of facts and request for production to plaintiff. At the
> time of this writing the response from plaintiff is now nearly a week
> over due. How should I react to this situation? Would this be grounds
> for requesting a dismissal or what?
As do many other posters, Johnny, you fail to tell us what state you're in, or even if you're in USA. OK, posters, help us out here a bit, huh, when asking specific questions about laws that vary from state to state? All you're going to be able to get are general answers that may not apply to you.
If you insist on representing yourself instead of letting a professional do it, read the rules of civil procedure applicable in your court so you know at least a little bit about what you're doing. In most jurisdictions the rules are listed in a logical sequence corresponding to the stages of a suit, beginning from general principles applicable to all actions, to filing a complaint, motion, answer, cross-claim or counterclaim, to identifying the parties, and when or if joinder of parties is either required or permitted, through the discovery phase (depositions, interrogatories, requests to produce documents for inspection and copying) through trial, not to mention post-trial motions and appeals. Before you go any farther, you need to read and understand _at_least_ all the way through the conclusion of a trial, to know the framework for what will or can happen in your case. Don't know what set of rules are applicable in your case? Ask the court clerk, or a local law librarian. Your courthouse probably has a law library open to the public for research, and your local public library may even have copies of the local court rules. If you don't understand the rules, or even if you do, read some of the reported case opinions (cited in the annotations that appear in most printed volumes of procedure rules) that interpret those rules, to find out how courts in your state really apply them. (The annotations just contain the name and volume/page reference citation for the case and sometimes a very brief capsule summary of its holding. Find and read the actual case, since the capsule descriptions are not always right-on.)
That said, your rules will tell you what your options are when an opponent has failed to provide requested discovery. In many states you have a choice of filing a motion to compel answers (which is what you're likely to get in any case), or filing a motion for immediate sanctions in certain failures of discovery (complete failure to answer a set of interrogatories is usually one of those circumstances that will allow this). However, a court is not likely to throw your plaintiff;s case out of court just because he is a week late in answering. The judge is likely to just order him to respond within a certain additional time -- if trial is looming, that could make a difference, but you didn't say that was a factor. Then, if he still doesn't answer after being specifically ordered to do so by the court, you are more likely to have some success if you file another motion for sanctions based on his violation of the court's order compelling discovery. Sanctions typically can include dismissal, but that is rarely the first choice judges will reach for, because the law prefers that cases be heard on their merits, not won or lost by some procedural mistake. Instead, the judge is more likely to rule that plaintiff be barred from producing certain evidence if he didn't reveal it to you in discovery, or rule that certain contentions of yours be taken as established if plaintiff failed to come up with evidence contradicting them in discovery, and so on.
Anyway, good luck. If you're pro se, you'll need it. But I suppose if the plaintiff is pro se too, you'll both need it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Can you sue in small claims on a federal statute?
On Nov 9, 6:58 am, "johnmoli...@yahoo.com" <johnmoli...@yahoo.com> wrote:
> Recently in my state's small claims court, a man won a judgment
> against a telemarketing company. Based on the federal statutes
<snip>
> and the judge ruled in his favor and ordered the company to pay $x to
> the plaintiff based on the maximum fine per violation of the federal
> statute.
>
> Is such a lawsuit possible? Can you sue in state court based on a
> federal statute?
Yes. Some federal statutes -- this may be one of them, but I didn't look it up -- even provide specifically that any remedy they grant to claimants can be pursued _only_ in state court.
Don't confuse the issues of "subject matter jursidiction" and "applicable law". State courts, if they have _personal_ jurisdiction over the person of the defendant and subject matter jurisdiction over the type of claim (e.g. a suit at law for damages, or a suit in equity for some other kind of relief) can hear claims regardless of the source of the law on which they are based (although each state may provide that some courts hear certain types of cases, and other courts hear others - but somewhere, a state forum is available for every type of claim). Federal courts are courts of "limited" subject matter jurisdiction, meaning that they can only hear cases for which a specific grant of authorization to hear that type of claim was made by Congress pursuant to the Constitution. The complaint in a Federal case has to recite the jurisdictional basis of the claim, that is, cite the statute that provides a grant of subject matter jurisdiction. If a statute specifically provides that it does not confer Federal jurisdiction, then obviously it cannot be relied upon to bing a Federal case. The only way such a claim could be brought into Federal court is under the so called "diversity" statute allowing the Federal courts to adjudicate disputes arising between citizens of different states, IF the amount in controversy exceeds a certain amount (currently $70,000). Obviously, this wouldn't work for a small-claims type case.
Where an independent statutory basis for Federal jurisdiction exists, the amount in controversy doesn't matter legally, although it certainly does practically. I once was forced* to sue in Federal court (under the Federal Tort Claims Act) on a property-damage-only car crash case worth only $600, because the Air Force van driver who clipped my client's car in front of the PX at Andrews AFB refused to settle the claim. Needless to say I would have much preferred to bring that suit in state small claims court, but the FTCA requires that suit be brought _only_ in Federal court. The Federal District Judge who heard the case was not happy to be spending his valuable time on a $600 case and made short shrift of it, but we didn't have a choice.
* You may ask, why was I "forced" to accept this client with so many factors working against us? If I were on my own, as I am now, I wouldn't, since it's not worth _my_ time either. But I was a brand new lawyer, working for a large firm, and I was assigned the case by my supervising partner, representing one of their major insurance company clients on a "subrogation" case (the insurer had already paid the damages to their insured, and was trying to collect from the responsible party). The firm had a standing arrangement with the insurer to handle all their subrogation work in MD, and the partner was not about to turn down any case the insurance adjuster asked him to handle, for fear they would take their subrogation business (and their far more lucrative insurance defense business) somewhere else. It was my first case, getting me into Federal court less than a month after I was admitted to the bar. The case made no economic sense to the firm either, except as (a) good PR to keep a good client happy (the old "no case is too big or too small" slogan) and as (b) a training ground for a new lawyer where it didn't matter much to anyone if I screwed it up.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Recently in my state's small claims court, a man won a judgment
> against a telemarketing company. Based on the federal statutes
<snip>
> and the judge ruled in his favor and ordered the company to pay $x to
> the plaintiff based on the maximum fine per violation of the federal
> statute.
>
> Is such a lawsuit possible? Can you sue in state court based on a
> federal statute?
Yes. Some federal statutes -- this may be one of them, but I didn't look it up -- even provide specifically that any remedy they grant to claimants can be pursued _only_ in state court.
Don't confuse the issues of "subject matter jursidiction" and "applicable law". State courts, if they have _personal_ jurisdiction over the person of the defendant and subject matter jurisdiction over the type of claim (e.g. a suit at law for damages, or a suit in equity for some other kind of relief) can hear claims regardless of the source of the law on which they are based (although each state may provide that some courts hear certain types of cases, and other courts hear others - but somewhere, a state forum is available for every type of claim). Federal courts are courts of "limited" subject matter jurisdiction, meaning that they can only hear cases for which a specific grant of authorization to hear that type of claim was made by Congress pursuant to the Constitution. The complaint in a Federal case has to recite the jurisdictional basis of the claim, that is, cite the statute that provides a grant of subject matter jurisdiction. If a statute specifically provides that it does not confer Federal jurisdiction, then obviously it cannot be relied upon to bing a Federal case. The only way such a claim could be brought into Federal court is under the so called "diversity" statute allowing the Federal courts to adjudicate disputes arising between citizens of different states, IF the amount in controversy exceeds a certain amount (currently $70,000). Obviously, this wouldn't work for a small-claims type case.
Where an independent statutory basis for Federal jurisdiction exists, the amount in controversy doesn't matter legally, although it certainly does practically. I once was forced* to sue in Federal court (under the Federal Tort Claims Act) on a property-damage-only car crash case worth only $600, because the Air Force van driver who clipped my client's car in front of the PX at Andrews AFB refused to settle the claim. Needless to say I would have much preferred to bring that suit in state small claims court, but the FTCA requires that suit be brought _only_ in Federal court. The Federal District Judge who heard the case was not happy to be spending his valuable time on a $600 case and made short shrift of it, but we didn't have a choice.
* You may ask, why was I "forced" to accept this client with so many factors working against us? If I were on my own, as I am now, I wouldn't, since it's not worth _my_ time either. But I was a brand new lawyer, working for a large firm, and I was assigned the case by my supervising partner, representing one of their major insurance company clients on a "subrogation" case (the insurer had already paid the damages to their insured, and was trying to collect from the responsible party). The firm had a standing arrangement with the insurer to handle all their subrogation work in MD, and the partner was not about to turn down any case the insurance adjuster asked him to handle, for fear they would take their subrogation business (and their far more lucrative insurance defense business) somewhere else. It was my first case, getting me into Federal court less than a month after I was admitted to the bar. The case made no economic sense to the firm either, except as (a) good PR to keep a good client happy (the old "no case is too big or too small" slogan) and as (b) a training ground for a new lawyer where it didn't matter much to anyone if I screwed it up.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California community property divorce
On Nov 5, 9:45 am, "nomail1...@hotmail.com" <nomail1...@hotmail.com> wrote:
> I was curious (just idle curiosity, BTW) about how community
> property is divided in a Calif divorce.
I am not a CA lawyer but I noticed no one else responded to your post yet, so I offer my own idly curious comments in the same vein as your query.
> In particular, I wondered
> if is just a matter of divided assets so that the total net value
> is divided 50-50 (generally), or if each asset must be divided
> 50-50.
I doubt very much that the CA courts require the parties to use a chainsaw to cut their BMW down the middle, as it were. What generally happens everywhere, and probably in CA too, is that the parties come to some agreement as to the value of the various assets (aided, if necessary, by a formal appraisal) and also come to some agreement as to how those assets are to be divided (he gets the Ferrari, she gets the Jaguar, he gets the beach house, she gets the ski chalet, and so on), with cash being used to make up the difference where the tangible assets or realty each party retains after the marriage ends do not come to exactly the same value (as, statistically, they rarely would).
If the parties are unable to agree amicably, then I suppose ultimately the court will have to order that all assets be sold, converted to cash, and then the cash be split 50-50. But that would happen only if the parties cannot otherwise agree on how to divide the tangibles.
> I vaguely recall some "recent" court decisions (where "recent"
> means: in the last 2-3 years) that affected the way assets
> must be divided in a (Calif?) divorce in order to ensure that one
> spouse does not get "stuck" with assets that are more likely
> to depreciate in value. But I'm not sure.
About that, I have no idea. However, if the risk of depreciation is known and is part of what is taken into consideration when the agreed evaluation and division of property is made, ISTM the parties ought to be bound by their agreement after it is approved by the judge. But in CA, stranger things have happened.
> Generally, the web page states that: "[T]he law does not
> require an 'in kind' division of the community property. All
> that the law requires is that the net value of the assets
> received by each spouse must be equal".
>
> That should answer my question dispositively.
Yes, it should. That makes sense and is pretty much what other states say too.
> But it goes on to say: "Thus, it is not uncommon for one
> spouse to be awarded the family residence, with the other
> spouse receiving the family business and investment real
> estate".
>
> That appears to say that the residence can be awarded to
> one spouse only when there are other business interests
> and real estate properties persumably of equal value.
No it doesn't. That is just an example of how different assets can be retained by different parties and do not have to be sold in order to make it "come out even". If there is no family business, but there are, frex, savings or other investments worth as much as the house, one party can get the cash and the other party can get the house. There are myriad ways this can work out, all very fact-specific to the particular couple, their assets, and their desires.
> Is that right?! Or can the (current appraised) value of the
> house be balanced by the net value of other assets, for
> example stocks and bond holdings and other personal
> property of value?
Of course it can. It amazes me that you would take a mere example as expressing a binding limitation on how things can be done.
> Moreover, later it states (emphasis added): "Where minor
> children are involved, it is common for the custodial parent
> to be allowed to live in the residence with the children for a
> specified period of time after the Dissolution of Marriage is
> finalized. [....] The house MUST BE sold when: there are
> no children living at the property, the youngest child attains
> the age of majority, or any date as otherwise agreed by the
> parties or specified by the court".
>
> Is it trying to say that the residence "must be" sold only in
> the case where it was awarded to the custodial parent while
> minor children are still living there, AND such an award
> results in a lopsided net value of community property going
> to one spouse? (OR perhaps also when such an award
> "forces" the custodial spouse to take his/her share of
> community property in real estate against his/her
> preferences?)
First of all, this is going to be very fact-specific, as noted above. Secondly, you elide part of the quote so we have no idea if you have taken out needed context to fully and correctly understand it. Thirdly, putting that aside, I read the quoted example as referring only to cases where the couple has NO substantial assets other than the house, meaning that the community property CANNOT be equitably divided yet without selling the house, so the court delays final resolution of that issue to permit the custodial parent to continue living in the family residence until the minor children are grown, and THEN the house, which is the only major community asset the parties hold, "must" be sold, because that is the only way its value can be divided. In all other cases, if there are sufficient assets to make the division earlier and still allow a custodial parent to keep the family home as part of his or her share, ISTM there is no reason that cannot be done earlier, and this exception would not be called upon to delay final settlement.
> Or is it truly saying that the residence always "must be"
> sold as part of the dissolution; the sale is simply deferred
> until there are no minor children living there?
ISTM it "must be" sold if, and ONLY if, it is the only way an equitable division of property can be made.
That does NOT mean that, in each and every case regardless of the parties' wishes, it "must be" sold to make all divorces fit the same Procrustean bed.
And, in but ONLY in those cases where the house "must be" sold, the court is empowered to defer sale until after the minor children are grown, so that the custodial parent can continue to live in it to raise the children in the home they already know, to minimize the disruption of the children's lives.
I'm ignoring the rest of your post as, in your words, idle speculations that you can probably already answer yourself if you take the above concepts into account. Have fun,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I was curious (just idle curiosity, BTW) about how community
> property is divided in a Calif divorce.
I am not a CA lawyer but I noticed no one else responded to your post yet, so I offer my own idly curious comments in the same vein as your query.
> In particular, I wondered
> if is just a matter of divided assets so that the total net value
> is divided 50-50 (generally), or if each asset must be divided
> 50-50.
I doubt very much that the CA courts require the parties to use a chainsaw to cut their BMW down the middle, as it were. What generally happens everywhere, and probably in CA too, is that the parties come to some agreement as to the value of the various assets (aided, if necessary, by a formal appraisal) and also come to some agreement as to how those assets are to be divided (he gets the Ferrari, she gets the Jaguar, he gets the beach house, she gets the ski chalet, and so on), with cash being used to make up the difference where the tangible assets or realty each party retains after the marriage ends do not come to exactly the same value (as, statistically, they rarely would).
If the parties are unable to agree amicably, then I suppose ultimately the court will have to order that all assets be sold, converted to cash, and then the cash be split 50-50. But that would happen only if the parties cannot otherwise agree on how to divide the tangibles.
> I vaguely recall some "recent" court decisions (where "recent"
> means: in the last 2-3 years) that affected the way assets
> must be divided in a (Calif?) divorce in order to ensure that one
> spouse does not get "stuck" with assets that are more likely
> to depreciate in value. But I'm not sure.
About that, I have no idea. However, if the risk of depreciation is known and is part of what is taken into consideration when the agreed evaluation and division of property is made, ISTM the parties ought to be bound by their agreement after it is approved by the judge. But in CA, stranger things have happened.
> Generally, the web page states that: "[T]he law does not
> require an 'in kind' division of the community property. All
> that the law requires is that the net value of the assets
> received by each spouse must be equal".
>
> That should answer my question dispositively.
Yes, it should. That makes sense and is pretty much what other states say too.
> But it goes on to say: "Thus, it is not uncommon for one
> spouse to be awarded the family residence, with the other
> spouse receiving the family business and investment real
> estate".
>
> That appears to say that the residence can be awarded to
> one spouse only when there are other business interests
> and real estate properties persumably of equal value.
No it doesn't. That is just an example of how different assets can be retained by different parties and do not have to be sold in order to make it "come out even". If there is no family business, but there are, frex, savings or other investments worth as much as the house, one party can get the cash and the other party can get the house. There are myriad ways this can work out, all very fact-specific to the particular couple, their assets, and their desires.
> Is that right?! Or can the (current appraised) value of the
> house be balanced by the net value of other assets, for
> example stocks and bond holdings and other personal
> property of value?
Of course it can. It amazes me that you would take a mere example as expressing a binding limitation on how things can be done.
> Moreover, later it states (emphasis added): "Where minor
> children are involved, it is common for the custodial parent
> to be allowed to live in the residence with the children for a
> specified period of time after the Dissolution of Marriage is
> finalized. [....] The house MUST BE sold when: there are
> no children living at the property, the youngest child attains
> the age of majority, or any date as otherwise agreed by the
> parties or specified by the court".
>
> Is it trying to say that the residence "must be" sold only in
> the case where it was awarded to the custodial parent while
> minor children are still living there, AND such an award
> results in a lopsided net value of community property going
> to one spouse? (OR perhaps also when such an award
> "forces" the custodial spouse to take his/her share of
> community property in real estate against his/her
> preferences?)
First of all, this is going to be very fact-specific, as noted above. Secondly, you elide part of the quote so we have no idea if you have taken out needed context to fully and correctly understand it. Thirdly, putting that aside, I read the quoted example as referring only to cases where the couple has NO substantial assets other than the house, meaning that the community property CANNOT be equitably divided yet without selling the house, so the court delays final resolution of that issue to permit the custodial parent to continue living in the family residence until the minor children are grown, and THEN the house, which is the only major community asset the parties hold, "must" be sold, because that is the only way its value can be divided. In all other cases, if there are sufficient assets to make the division earlier and still allow a custodial parent to keep the family home as part of his or her share, ISTM there is no reason that cannot be done earlier, and this exception would not be called upon to delay final settlement.
> Or is it truly saying that the residence always "must be"
> sold as part of the dissolution; the sale is simply deferred
> until there are no minor children living there?
ISTM it "must be" sold if, and ONLY if, it is the only way an equitable division of property can be made.
That does NOT mean that, in each and every case regardless of the parties' wishes, it "must be" sold to make all divorces fit the same Procrustean bed.
And, in but ONLY in those cases where the house "must be" sold, the court is empowered to defer sale until after the minor children are grown, so that the custodial parent can continue to live in it to raise the children in the home they already know, to minimize the disruption of the children's lives.
I'm ignoring the rest of your post as, in your words, idle speculations that you can probably already answer yourself if you take the above concepts into account. Have fun,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Pakistani lawyers protest court shutdown
On Nov 7, 7:12 am, Jonathan Sachs <js070...@sbcglobal.net> wrote:
> I was struck by a photograph in today's paper (the Chicago Tribune)
> whose caption describes the image as well as I could: "Amid tear gas,
> a Pakistani lawyer flees after hurling a rock at police Monday in
> Lahore..."
>
> First, all honor to the lawyers of Pakistan for risking their lives,
> as well as their livelihoods to defend their nation's constitution. I
> am grateful that in America, our civil liberties are not so imminently
> threatened that we must contemplate this type of behavior. I wonder
> how many of us would be up to it if they were.
Jonathan, you almost took the words right out of my mouth. I couldn't agree more, after seeing (probably) the same picture in the Washington Post. What also came to me was the parallel to the conduct of the Founders of the USA -- many of whom were lawyers -- who pledged their "lives, fortunes, and sacred honor" in signing the Declaration of Independence, whose ringing words may be part of what inspired the Pakistani protesters. As IIRC Ben Franklin said, "We must all hang together or we shall all hang separately."
> But the thing that struck me about this picture is that the lawyer is
> dressed in a suit and tie. That's what virtually all of the pictures
> in the media seem to show: lawyers demonstrating, lawyers being beaten
> by police, lawyers fighting back, all in business suits.
This happened at the courthouse, which had been closed down by Musharraf's emergency order; he saw the judiciary as a political opponent because it had consistently ruled against his dictatorial policies. I'm guessing the lawyers dressed in suit and tie the way they do every day when they go to work, and went to their workplace even though it was not open for business, there to do whatever they could do to get it opened again and to restore the normal workings of the law. But if they gave it any thought, as lawyers often do when considering the image they want to project, it would make sense for them to consciously decide to dress that way to show their status as lawyers, and their respect for the rule of law.
> I wonder what's behind that. Did the lawyers of Pakistan get together
> and decide that formal dress would make the protest look more
> legitimate? Or, is wearing a suit and tie ground so deeply into their
> psyches that they can't imagine going out of doors any other way?
It is a striking picture. But if something like that were to happen here, I'd probably put on my suit and tie too, and go down to the courthouse, and see if I could do anything about it. I wouldn't wear jeans and a T-shirt; I would wear the uniform of my profession. Although attenuated in the modern world compared to traditional societies, it is still true that clothing serves as a potent symbol of identity, privilege, rank, and power; if the protesters in Myanmar/Burma had worn Bermuda shorts and polo shirts instead of the saffron robes of Buddhist monks, their voice would not have been nearly so powerful IMO. The fact that the photo of the protesting Pakistani lawyers in suits is so visually striking just proves that point as well.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I was struck by a photograph in today's paper (the Chicago Tribune)
> whose caption describes the image as well as I could: "Amid tear gas,
> a Pakistani lawyer flees after hurling a rock at police Monday in
> Lahore..."
>
> First, all honor to the lawyers of Pakistan for risking their lives,
> as well as their livelihoods to defend their nation's constitution. I
> am grateful that in America, our civil liberties are not so imminently
> threatened that we must contemplate this type of behavior. I wonder
> how many of us would be up to it if they were.
Jonathan, you almost took the words right out of my mouth. I couldn't agree more, after seeing (probably) the same picture in the Washington Post. What also came to me was the parallel to the conduct of the Founders of the USA -- many of whom were lawyers -- who pledged their "lives, fortunes, and sacred honor" in signing the Declaration of Independence, whose ringing words may be part of what inspired the Pakistani protesters. As IIRC Ben Franklin said, "We must all hang together or we shall all hang separately."
> But the thing that struck me about this picture is that the lawyer is
> dressed in a suit and tie. That's what virtually all of the pictures
> in the media seem to show: lawyers demonstrating, lawyers being beaten
> by police, lawyers fighting back, all in business suits.
This happened at the courthouse, which had been closed down by Musharraf's emergency order; he saw the judiciary as a political opponent because it had consistently ruled against his dictatorial policies. I'm guessing the lawyers dressed in suit and tie the way they do every day when they go to work, and went to their workplace even though it was not open for business, there to do whatever they could do to get it opened again and to restore the normal workings of the law. But if they gave it any thought, as lawyers often do when considering the image they want to project, it would make sense for them to consciously decide to dress that way to show their status as lawyers, and their respect for the rule of law.
> I wonder what's behind that. Did the lawyers of Pakistan get together
> and decide that formal dress would make the protest look more
> legitimate? Or, is wearing a suit and tie ground so deeply into their
> psyches that they can't imagine going out of doors any other way?
It is a striking picture. But if something like that were to happen here, I'd probably put on my suit and tie too, and go down to the courthouse, and see if I could do anything about it. I wouldn't wear jeans and a T-shirt; I would wear the uniform of my profession. Although attenuated in the modern world compared to traditional societies, it is still true that clothing serves as a potent symbol of identity, privilege, rank, and power; if the protesters in Myanmar/Burma had worn Bermuda shorts and polo shirts instead of the saffron robes of Buddhist monks, their voice would not have been nearly so powerful IMO. The fact that the photo of the protesting Pakistani lawyers in suits is so visually striking just proves that point as well.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Carpet clause in apartment lease
On Nov 5, 9:45 am, sunil <sunilsreenivas2...@yahoo.com> wrote:
> I live in a rented apartment in jersey city, new jersey
I am not a NJ lawyer and don't know any specific NJ law. These are general comments for discussion purposes.
> I read the lease and saw following sentence:
> Quote " During his occupancy, the TENANT, if required by LANDLORD,
> will keep covered atleast 80% of the living quarters with carpeting
> or other floor covering.
<snip>
> My question is:
> a)Legally do you guys think above statement means I should pay from
> my pocket for carpeting.
Yes. Buy cheap throw rugs at a yard sale, or remnants from a carpet store, or Tatami mats, or a fine Persian original, your choice. But you are obligated to keep some kind of fabric covering on 80% of your bare wood floors if the landlord asks you to.
> b)Is there any NJ law that states how to deal with this?
If so, it probably agrees with the landlord (who, as you say, runs a mega-complex of apts. and surely vetted their lease language with their lawyers to make sure it complies with local law)
> c)I obviously dont want to spend lot of money in place where I am
> going to stay for 1-2 yrs atmost.
So do it cheaply.
> I definitely dont want to do proper carpeting
It doesn't say you should install wall-to-wall. In fact the landlord MAY NOT WANT you to do that. They want you to put down _portable_ carpets or rugs or mats that you will then take with you when you move. The landlord wants you to do this to muffle the sounds of your feet moving over your bare wood floor, not to enhance your decor.
> but lets say I want to be good tenant and will buy some
> area rugs, do you think thats a good choice....
Buy any kind of floor covering you want and can afford. Get something that agrees with your decor, if that matters to you, or just buy carpet scraps from a carpet store (they may even give you some for free) if your idea of decorating is brick-and-board bookcases, a tower of beer cans in the corner and pizza boxes artfully arranged on the footlocker you're using for a coffee table.
<snip>
> d)Can apt mgmt throw me out for this reason?
Yes.
> even after we do c)(We
> will try our best to keep noise level minimum but still the people
> below may continue to feel inconvenient, also they bought the apt
> below and are feeling like they are royalty and the guy told me he
> will threaten to undo buying of the apartment on this grounds, which
> obviously our apt mgmt will try to stop)
If you are in compliance with the lease they can't throw you out for breaching that term of the lease. But that doesn't guarantee they won't find some other basis to throw you out, if they are determined to do so. ISTM you don't have to cross that bridge yet; just get some floor covering for Pete's sake and quit worrying about what "might" happen.
> I just think this is a problem even we face from the people above us
In that case, you should complain and make sure the landlord checks that the people above _you_ have complied with the lease re: floor covering.
> and I dont think its a uncommon/nuisance kind of things.
You're comparing apples and oranges. First, it is in fact quite common for leases of multistory apts. with bare wood floors to include a clause requiring the tenant to furnish some floor coverings. And it doesn't matter whether having uncovered floors is legally a "nuisance" or not; your lease specifically requires you to do this, so you have to comply with the terms you contractually agreed to follow or else you are in breach of your lease.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I live in a rented apartment in jersey city, new jersey
I am not a NJ lawyer and don't know any specific NJ law. These are general comments for discussion purposes.
> I read the lease and saw following sentence:
> Quote " During his occupancy, the TENANT, if required by LANDLORD,
> will keep covered atleast 80% of the living quarters with carpeting
> or other floor covering.
<snip>
> My question is:
> a)Legally do you guys think above statement means I should pay from
> my pocket for carpeting.
Yes. Buy cheap throw rugs at a yard sale, or remnants from a carpet store, or Tatami mats, or a fine Persian original, your choice. But you are obligated to keep some kind of fabric covering on 80% of your bare wood floors if the landlord asks you to.
> b)Is there any NJ law that states how to deal with this?
If so, it probably agrees with the landlord (who, as you say, runs a mega-complex of apts. and surely vetted their lease language with their lawyers to make sure it complies with local law)
> c)I obviously dont want to spend lot of money in place where I am
> going to stay for 1-2 yrs atmost.
So do it cheaply.
> I definitely dont want to do proper carpeting
It doesn't say you should install wall-to-wall. In fact the landlord MAY NOT WANT you to do that. They want you to put down _portable_ carpets or rugs or mats that you will then take with you when you move. The landlord wants you to do this to muffle the sounds of your feet moving over your bare wood floor, not to enhance your decor.
> but lets say I want to be good tenant and will buy some
> area rugs, do you think thats a good choice....
Buy any kind of floor covering you want and can afford. Get something that agrees with your decor, if that matters to you, or just buy carpet scraps from a carpet store (they may even give you some for free) if your idea of decorating is brick-and-board bookcases, a tower of beer cans in the corner and pizza boxes artfully arranged on the footlocker you're using for a coffee table.
<snip>
> d)Can apt mgmt throw me out for this reason?
Yes.
> even after we do c)(We
> will try our best to keep noise level minimum but still the people
> below may continue to feel inconvenient, also they bought the apt
> below and are feeling like they are royalty and the guy told me he
> will threaten to undo buying of the apartment on this grounds, which
> obviously our apt mgmt will try to stop)
If you are in compliance with the lease they can't throw you out for breaching that term of the lease. But that doesn't guarantee they won't find some other basis to throw you out, if they are determined to do so. ISTM you don't have to cross that bridge yet; just get some floor covering for Pete's sake and quit worrying about what "might" happen.
> I just think this is a problem even we face from the people above us
In that case, you should complain and make sure the landlord checks that the people above _you_ have complied with the lease re: floor covering.
> and I dont think its a uncommon/nuisance kind of things.
You're comparing apples and oranges. First, it is in fact quite common for leases of multistory apts. with bare wood floors to include a clause requiring the tenant to furnish some floor coverings. And it doesn't matter whether having uncovered floors is legally a "nuisance" or not; your lease specifically requires you to do this, so you have to comply with the terms you contractually agreed to follow or else you are in breach of your lease.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Plagiarism, or copyright violation?
On Nov 6, 6:34 am, henri <he...@nowhere.com> wrote:
> The level of copying required for plagiarism is minimal. In fact,
> it is possible to plagiarize using material which is not even copyrighted.
> Use which would qualify as fair is often sufficient to sustain ethics
> charges concerning plagiarism.
>
> Plagiarism is not a category of copyright infringement, and copyright
> infringement is not a category of plagiarism.
Agreed. I've always understood plagiarism, in an academic, literary or scientific context, to mean passing off someone else's words, ideas, or research, as one's own. If you take a poem, frex, that may be public domain (either because it was written by "anonymous", or is an old writing whose copyright has expired), and submit it to your English teacher as your own work, that is plagiarism -- whether you change a few words around, or leave it as-is. If you copy someone else's scientific data (a mere compilation, and hence not amenable to copyright protection) and pass it off as your own, that too is plagiarism. As is inserting a snappy turn of phrase in your news article, without attribution of a source for the quote and hence making it seem to be the reporter's own choice of words, or stealing the plot of someone else's novel as a basis for your own without acknowledgement or attribution (ideas, per se, are not copyrightable - but may be subject to other kinds of intellectual property protection in some states, such as legal protection for a commercially valuable dramatic or literary character's name and appearance).
Plagiarism per se is AFAIK not legally actionable in any USA state. It is a violation of academic, scientific or journalistic ethics and can be punished as such within its context, but is not a crime.
An act of plagiarism can, however, also happen to be an act of copyright infringement if the plagiarist uses copyrighted material in a manner that is not fair use, and passes it off as his own; the two concepts can overlap. Perhaps that is where much of the confusion arises.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The level of copying required for plagiarism is minimal. In fact,
> it is possible to plagiarize using material which is not even copyrighted.
> Use which would qualify as fair is often sufficient to sustain ethics
> charges concerning plagiarism.
>
> Plagiarism is not a category of copyright infringement, and copyright
> infringement is not a category of plagiarism.
Agreed. I've always understood plagiarism, in an academic, literary or scientific context, to mean passing off someone else's words, ideas, or research, as one's own. If you take a poem, frex, that may be public domain (either because it was written by "anonymous", or is an old writing whose copyright has expired), and submit it to your English teacher as your own work, that is plagiarism -- whether you change a few words around, or leave it as-is. If you copy someone else's scientific data (a mere compilation, and hence not amenable to copyright protection) and pass it off as your own, that too is plagiarism. As is inserting a snappy turn of phrase in your news article, without attribution of a source for the quote and hence making it seem to be the reporter's own choice of words, or stealing the plot of someone else's novel as a basis for your own without acknowledgement or attribution (ideas, per se, are not copyrightable - but may be subject to other kinds of intellectual property protection in some states, such as legal protection for a commercially valuable dramatic or literary character's name and appearance).
Plagiarism per se is AFAIK not legally actionable in any USA state. It is a violation of academic, scientific or journalistic ethics and can be punished as such within its context, but is not a crime.
An act of plagiarism can, however, also happen to be an act of copyright infringement if the plagiarist uses copyrighted material in a manner that is not fair use, and passes it off as his own; the two concepts can overlap. Perhaps that is where much of the confusion arises.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Contingent bequest in a Will
On Nov 6, 6:34 am, jo <phillysle...@verizon.net> wrote:
> The lawyer who drew up my will told me that the specific
> guidelines I suggest/desire for the care of
> companion animals be attached in a separate document to the
> will and it should not be typed.
The purpose of a Will is to specify the distribution of decedent's property after he dies. Although sometimes a testator, through his Will, attemts to control behavior of the legatees by making the distribution contingent on certain conditions being met by the beneficiary before he gets the money (perhaps this is done more often in fiction than in real life), that is an aftereffect of specifying a certain distribution, not something the Will can do directly. The Will cannot say, "My daughter Suzy must marry that nice young doctor I've been trying to set her up with instead of that hoodlum she hangs around with" but it _can_ say, "I bequeath to my beloved daughter, Suzy, 10 gazillion dollars on the condition that she marry Dr. Nice within 1 year after my death and remain married to him at least 2 years."
So, if you're going to leave someone money to care for your animals, or put it in trust for that purpose, you're not intending to void that bequest if they don't do it _exactly_ the way you specify, are you? That's what would happen if you put it in your Will. You're better off having a separate protocol that tells the trustee of your animal care fund what your priorities are, and what your wishes are re: how to care for them.
Similarly, you might want to leave an amount in trust for a minor child or grandchild of yours, with separate directions to the trustee along the lines of, "I would like little Joey to attend Exeter like I did, then Harvard" but you're not going to cut him off if he instead goes to Andover and Yale, or PS 108 and State U. Such a bequest in trust may specify that it be used for education, but you don't have to get that specific in the Will itself. In your case, I assume you made a bequest either to an individual, or to a trust, contingent on its being used for care of your animals. Same deal - don't get too specific in the Will or you may risk cutting off the bequest if not complied with exactly.
> I suspect he would
> suggest the same approach for the disposal of a small
> genealogical collection on my family, but am not 100% sure.
Why would you assume that? Either approach would work, since this is exactly what a Will is for, specifying the distribution of your property. But if it's something you may change your mind about frequently, perhaps a separate protocol is the better approach so you don't have to constantly revise the Will itself.
> Is any/all of this standard operating procedure, given the
> circumstances or is this a questionable approach to these
> issues?
Since you were in a hurry to get the will signed and had not yet decided what you wanted to do exactly re: care of the animals, what choice did he have? But yes, it sounds like a reasonable approach.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> The lawyer who drew up my will told me that the specific
> guidelines I suggest/desire for the care of
> companion animals be attached in a separate document to the
> will and it should not be typed.
The purpose of a Will is to specify the distribution of decedent's property after he dies. Although sometimes a testator, through his Will, attemts to control behavior of the legatees by making the distribution contingent on certain conditions being met by the beneficiary before he gets the money (perhaps this is done more often in fiction than in real life), that is an aftereffect of specifying a certain distribution, not something the Will can do directly. The Will cannot say, "My daughter Suzy must marry that nice young doctor I've been trying to set her up with instead of that hoodlum she hangs around with" but it _can_ say, "I bequeath to my beloved daughter, Suzy, 10 gazillion dollars on the condition that she marry Dr. Nice within 1 year after my death and remain married to him at least 2 years."
So, if you're going to leave someone money to care for your animals, or put it in trust for that purpose, you're not intending to void that bequest if they don't do it _exactly_ the way you specify, are you? That's what would happen if you put it in your Will. You're better off having a separate protocol that tells the trustee of your animal care fund what your priorities are, and what your wishes are re: how to care for them.
Similarly, you might want to leave an amount in trust for a minor child or grandchild of yours, with separate directions to the trustee along the lines of, "I would like little Joey to attend Exeter like I did, then Harvard" but you're not going to cut him off if he instead goes to Andover and Yale, or PS 108 and State U. Such a bequest in trust may specify that it be used for education, but you don't have to get that specific in the Will itself. In your case, I assume you made a bequest either to an individual, or to a trust, contingent on its being used for care of your animals. Same deal - don't get too specific in the Will or you may risk cutting off the bequest if not complied with exactly.
> I suspect he would
> suggest the same approach for the disposal of a small
> genealogical collection on my family, but am not 100% sure.
Why would you assume that? Either approach would work, since this is exactly what a Will is for, specifying the distribution of your property. But if it's something you may change your mind about frequently, perhaps a separate protocol is the better approach so you don't have to constantly revise the Will itself.
> Is any/all of this standard operating procedure, given the
> circumstances or is this a questionable approach to these
> issues?
Since you were in a hurry to get the will signed and had not yet decided what you wanted to do exactly re: care of the animals, what choice did he have? But yes, it sounds like a reasonable approach.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Insurance setoff when both drivers are injured?
On Nov 5, 9:44 am, henri <he...@nowhere.com> wrote:
> I'm having difficulty figuring out exactly to what extent the parties are harmed
> and the insurance companies enriched [by applying a mandatory setoff where both parties who sue each other are insured].
Which part don't you get? One of the injured parties got nothing, even though he should have won a judgment and the other party's insurance should have paid it. So that party was harmed, and the opponent's insurance company was enriched. And the other party's judgment got reduced by the amount of the first party's judgment, so that party also got harmed and the first party's insurer also was enriched by getting off the hook for part of the amount they should have paid. The reason the court's ruling makes sense is that even though the law requires you to sue (and obtain a judgment against) the party who hit you, it is not the other driver but his insurance company that actually pays the bill. So you've got 2 injured parties, 2 insurers happily collecting premium payments, and zero (or reduced) payout by the insurers if they are allowed to claim a setoff against each other.
Setoffs work fine if it's really the 2 parties suing each other who would have to pay out of their own pockets; the concept of setoff avoids the necessity of a kindergarten-like transaction of "I'll pay you $1, then you pay me back the same $1" which winds up being the same thing as if the 2 parties just call it even and fugeddaboudit. But if it's the insurers who would have to pay, all that happens is the insurers get to keep the money they otherwise would have paid to the OTHER person who was injured by their insured, and that injured person winds up being denied all or part of the recovery he was awarded.
Here's a simplified example:
Dick and Jane collide.
Dick and Jane both have liability insurance, Dick with Allstate and Jane with Nationwide.
The law of the state where the crash happened applies "comparative" negligence, so that Dick and Jane can each successfully sue anyone else whose negligence contributed to causing their injuries, even if the injured plaintiff is also partly at fault for causing his or her own injuries. The law will simply reduce the plaintiff's recovery by the percentage of his own negligence that contributed to his own injury, but will still award him a money judgment against the other negligent parties.
Dick sues Jane for negligently injuring him.
Jane sues Dick for negligently injuring her.
The 2 cases are consolidated for trial (or one party's injury claim is initially brought as a counterclaim in the suit originated by the first party to file, which is practically the same thing).
At trial of Dick's claim, the jury determines that Dick has injuries worth $30,000 to which Jane's negligence was a contributing cause (and thus, for which Jane is liable), but also finds that Dick is 50% at fault for causing the crash and, hence, for causing his own injuries. So, Dick is awarded a judgment against Jane, for her negligence that injured him, in the amount of $15,000 (50% of the value of HIS injury). Jane's insurer, Nationwide, promptly pays $15,000 to Dick.
The same jury also tries Jane's claim, and finds that Jane has injuries worth $20,000, that Dick is liable for negligence that contributed to causing those injuries, and that Jane is also 50% responsible for her own injuries. So, Jane is awarded a judgment against Dick in the amount of $10,000 (50% of the value of HER injury), Dick's insurer, Allstate, promptly pays $10,000 to Jane.
Or, before the insurers have to pay, should the judge throw together the 2 jury verdicts ($15,000 to one, $10,000 to the other) and apply them as a setoff to each other, entering a single judgment in Dick's favor for the difference, i.e. $5,000 against Jane? No, he shouldn't.
Is that result the same as if Dick and Jane had no insurance? No, it isn't. The idea of setoff arose because if Jane simply handed Dick $15,000 and then Dick gave her back $10,000 of that money, that would be the same as Jane handing Dick $5,000 in the first place. That's what a setoff is, avoiding the need for the actual exchange of money where it's a wash or a partial wash. But applying setoff to Dick and Jane's actual case means that Dick gets $10,000 less than he should have, Jane gets nothing where she should have gotten $10,000, and Allstate and Nationwide both get to keep the premiums they charged to Dick and Jane but walk away $10,000 richer each than they would have been if there had been no setoff.
Clear now? .
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I'm having difficulty figuring out exactly to what extent the parties are harmed
> and the insurance companies enriched [by applying a mandatory setoff where both parties who sue each other are insured].
Which part don't you get? One of the injured parties got nothing, even though he should have won a judgment and the other party's insurance should have paid it. So that party was harmed, and the opponent's insurance company was enriched. And the other party's judgment got reduced by the amount of the first party's judgment, so that party also got harmed and the first party's insurer also was enriched by getting off the hook for part of the amount they should have paid. The reason the court's ruling makes sense is that even though the law requires you to sue (and obtain a judgment against) the party who hit you, it is not the other driver but his insurance company that actually pays the bill. So you've got 2 injured parties, 2 insurers happily collecting premium payments, and zero (or reduced) payout by the insurers if they are allowed to claim a setoff against each other.
Setoffs work fine if it's really the 2 parties suing each other who would have to pay out of their own pockets; the concept of setoff avoids the necessity of a kindergarten-like transaction of "I'll pay you $1, then you pay me back the same $1" which winds up being the same thing as if the 2 parties just call it even and fugeddaboudit. But if it's the insurers who would have to pay, all that happens is the insurers get to keep the money they otherwise would have paid to the OTHER person who was injured by their insured, and that injured person winds up being denied all or part of the recovery he was awarded.
Here's a simplified example:
Dick and Jane collide.
Dick and Jane both have liability insurance, Dick with Allstate and Jane with Nationwide.
The law of the state where the crash happened applies "comparative" negligence, so that Dick and Jane can each successfully sue anyone else whose negligence contributed to causing their injuries, even if the injured plaintiff is also partly at fault for causing his or her own injuries. The law will simply reduce the plaintiff's recovery by the percentage of his own negligence that contributed to his own injury, but will still award him a money judgment against the other negligent parties.
Dick sues Jane for negligently injuring him.
Jane sues Dick for negligently injuring her.
The 2 cases are consolidated for trial (or one party's injury claim is initially brought as a counterclaim in the suit originated by the first party to file, which is practically the same thing).
At trial of Dick's claim, the jury determines that Dick has injuries worth $30,000 to which Jane's negligence was a contributing cause (and thus, for which Jane is liable), but also finds that Dick is 50% at fault for causing the crash and, hence, for causing his own injuries. So, Dick is awarded a judgment against Jane, for her negligence that injured him, in the amount of $15,000 (50% of the value of HIS injury). Jane's insurer, Nationwide, promptly pays $15,000 to Dick.
The same jury also tries Jane's claim, and finds that Jane has injuries worth $20,000, that Dick is liable for negligence that contributed to causing those injuries, and that Jane is also 50% responsible for her own injuries. So, Jane is awarded a judgment against Dick in the amount of $10,000 (50% of the value of HER injury), Dick's insurer, Allstate, promptly pays $10,000 to Jane.
Or, before the insurers have to pay, should the judge throw together the 2 jury verdicts ($15,000 to one, $10,000 to the other) and apply them as a setoff to each other, entering a single judgment in Dick's favor for the difference, i.e. $5,000 against Jane? No, he shouldn't.
Is that result the same as if Dick and Jane had no insurance? No, it isn't. The idea of setoff arose because if Jane simply handed Dick $15,000 and then Dick gave her back $10,000 of that money, that would be the same as Jane handing Dick $5,000 in the first place. That's what a setoff is, avoiding the need for the actual exchange of money where it's a wash or a partial wash. But applying setoff to Dick and Jane's actual case means that Dick gets $10,000 less than he should have, Jane gets nothing where she should have gotten $10,000, and Allstate and Nationwide both get to keep the premiums they charged to Dick and Jane but walk away $10,000 richer each than they would have been if there had been no setoff.
Clear now? .
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
CPA expert and prvilege, part 2
On Nov 3, 8:23 am, "Stuart A. Bronstein" <spamt...@lexregia.com> wrote:
> Assuming your friend was employed by the wife's attorney, she should
> talk to that person about it, and follow his directions.
Nothing wrong with that advice, generally speaking. But she should not follow his advice if he tells her to jump off a bridge, literally or figuratively. If she has the slightest inkling she may be getting set up as the fall guy if this little hide-the-pea shell game breaks open, she should consult her own independent attorney and follow _his_ advice.
> She has to give the deposition.
Agreed. Assuming she was an expert witness who was retained and named to the other side as someone the wife intended to have testify at trial, if the matter were to go that far.
If she was instead what is called a "consulting" expert, one whose only role is to advise the attorney and his client behind the scenes and who is _not_ expected to testify, the result may be different; in MD, such a purely consulting expert does not even have to be named to the other side, much less made available for deposition. But if so, her knowledge would be shielded by the "attorney work product" privilege, which is NOT the same as "attorney-client privilege".
The reason I doubt that this particular CPA is such a mere "consulting" expert in this case, is that OP (Dick Adams) relates that her figures and conclusions were presented to the other side as part of the evidence the wife intended to rely upon to support her position in the divorce matter, and the opposing attorney knew of her existence by name so he could note her deposition -- which probably means she was identified to him as a testifying expert. That makes the opinions the CPA expressed, and the factual basis for them, fair game for deposition and cross-examination in advance of trial.
> And she might well claim attorney-client
> privilege, if the lawyer recommends that she do so.
The privilege, if any exists, is not hers to claim. She should not go out on a limb and try to play advocate; she is supposed to be an independent, dispassionate expert. If she is asked a particular question at deposition which the wife's attorney believes is covered by any applicable privilege, the attorney will object AND will instruct her not to answer. Then it is the attorney's bad faith, not hers, that may come to light later on.
Although, I must say that if the CPA knew about the hidden assets and would normally have taken them into account in reaching her conclusions, but purposely failed to include them in her reported opinion, she may be in violation of CPA ethics whether or not the wife's attorney claims privilege. To me, such a deception by silence, if she knows her inadequate and incomplete figures are being presented to the other side as complete, negates the whole purpose of having a supposedly independent audit of a person's financial status by a CPA, if the CPA fudges the figures to deceive an opponent.
> But of the husband
> has an attorney who is half way decent, I suspect they'll find out the
> information anyway, one way or another.
Agreed. Which is why, even if the wife's attorney plans to instruct the CPA not to answer on the basis of privilege, the CPA would be taking a huge risk if she allowed her report based on only partial truth to be presented to the other side as complete and said nothing to contradict it. IMO the CPA should tell the wife's lawyer that either he has to let her tell the truth about what she found out or she will withdraw from being the wife's expert.
As you might have guessed, I have very little tolerance for either weasel lawyers, or weasel experts. But let's be clear. An attorney who legitimately keeps the other side completely in the dark about a consulting expert, or about harmful facts that the client revealed to the attorney in confidence, is NOT being a weasel IMO, he is protecting his client. There is no duty to do the other side's investigative work for them by sharing attorney work product that is _not_ intended to be introduced in evidence, or to reveal a client's confidences. But an attorney who tries to get the best of both worlds, keeping the harmful facts secret while presenting an expert opinion to the other side as being one based on _all_ the applicable facts, is cheating the system by affirmatively deceiving the opponent and the court. Serious sanctions apply to such conduct.
And as for the expert, any expert of any kind who is willing to "bend" her opinion beyond the fairly limited bounds of reasonable and truthful "spin" (which consists of choosing her words carefully to show the true facts in the light most favorable to the client's case, but not fudging the underlying facts) has forfeited all credibility and shot herself in the foot as far as ever getting such an assignment again, if her deception comes to light. The members of the bar _do_ talk to each other, and they keep track of experts who have embraced such a Faustian bargain, and more than one of them has been driven out of the witness business.
I would love to debate, on this newsgroup, anyone who may feel differently.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Assuming your friend was employed by the wife's attorney, she should
> talk to that person about it, and follow his directions.
Nothing wrong with that advice, generally speaking. But she should not follow his advice if he tells her to jump off a bridge, literally or figuratively. If she has the slightest inkling she may be getting set up as the fall guy if this little hide-the-pea shell game breaks open, she should consult her own independent attorney and follow _his_ advice.
> She has to give the deposition.
Agreed. Assuming she was an expert witness who was retained and named to the other side as someone the wife intended to have testify at trial, if the matter were to go that far.
If she was instead what is called a "consulting" expert, one whose only role is to advise the attorney and his client behind the scenes and who is _not_ expected to testify, the result may be different; in MD, such a purely consulting expert does not even have to be named to the other side, much less made available for deposition. But if so, her knowledge would be shielded by the "attorney work product" privilege, which is NOT the same as "attorney-client privilege".
The reason I doubt that this particular CPA is such a mere "consulting" expert in this case, is that OP (Dick Adams) relates that her figures and conclusions were presented to the other side as part of the evidence the wife intended to rely upon to support her position in the divorce matter, and the opposing attorney knew of her existence by name so he could note her deposition -- which probably means she was identified to him as a testifying expert. That makes the opinions the CPA expressed, and the factual basis for them, fair game for deposition and cross-examination in advance of trial.
> And she might well claim attorney-client
> privilege, if the lawyer recommends that she do so.
The privilege, if any exists, is not hers to claim. She should not go out on a limb and try to play advocate; she is supposed to be an independent, dispassionate expert. If she is asked a particular question at deposition which the wife's attorney believes is covered by any applicable privilege, the attorney will object AND will instruct her not to answer. Then it is the attorney's bad faith, not hers, that may come to light later on.
Although, I must say that if the CPA knew about the hidden assets and would normally have taken them into account in reaching her conclusions, but purposely failed to include them in her reported opinion, she may be in violation of CPA ethics whether or not the wife's attorney claims privilege. To me, such a deception by silence, if she knows her inadequate and incomplete figures are being presented to the other side as complete, negates the whole purpose of having a supposedly independent audit of a person's financial status by a CPA, if the CPA fudges the figures to deceive an opponent.
> But of the husband
> has an attorney who is half way decent, I suspect they'll find out the
> information anyway, one way or another.
Agreed. Which is why, even if the wife's attorney plans to instruct the CPA not to answer on the basis of privilege, the CPA would be taking a huge risk if she allowed her report based on only partial truth to be presented to the other side as complete and said nothing to contradict it. IMO the CPA should tell the wife's lawyer that either he has to let her tell the truth about what she found out or she will withdraw from being the wife's expert.
As you might have guessed, I have very little tolerance for either weasel lawyers, or weasel experts. But let's be clear. An attorney who legitimately keeps the other side completely in the dark about a consulting expert, or about harmful facts that the client revealed to the attorney in confidence, is NOT being a weasel IMO, he is protecting his client. There is no duty to do the other side's investigative work for them by sharing attorney work product that is _not_ intended to be introduced in evidence, or to reveal a client's confidences. But an attorney who tries to get the best of both worlds, keeping the harmful facts secret while presenting an expert opinion to the other side as being one based on _all_ the applicable facts, is cheating the system by affirmatively deceiving the opponent and the court. Serious sanctions apply to such conduct.
And as for the expert, any expert of any kind who is willing to "bend" her opinion beyond the fairly limited bounds of reasonable and truthful "spin" (which consists of choosing her words carefully to show the true facts in the light most favorable to the client's case, but not fudging the underlying facts) has forfeited all credibility and shot herself in the foot as far as ever getting such an assignment again, if her deception comes to light. The members of the bar _do_ talk to each other, and they keep track of experts who have embraced such a Faustian bargain, and more than one of them has been driven out of the witness business.
I would love to debate, on this newsgroup, anyone who may feel differently.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
CPA expert and attorney-client privilege
On Nov 2, 2:57 pm, Dick Adams <rdad...@panix.com> wrote:
> A CPA in the course of doing forensic accounting for an
> attorney in a divorce settlement obtained financial
> information detrimental to client's position on the
> property settlement.
The CPA is a hired expert witness in this situation. No privilege applies to any information shown to her.
<snip>
> The problem is that the husband's attorney wants to
> depose my colleague on how she arrived at her numbers
Sounds reasonable. Most attorneys want to depose the opposing witnesses, especially hired experts, before trial to find out what they are going to say, and also to dig for material that might be useful on cross-exam.
> and she does not want to do that.
It's not her choice. She's been identified in discovery as a hired expert witness, and the opposing attorney can depose her if he chooses.
> When I suggested the
> attorney-client privilege extended to her, she replied
> she wasn't use to giving ambiguous/half-truth answers.
As well she shouldn't. Don't want to get the CPA code of ethics brought down on her, much less a conviction for perjury.
> I suggested she have her partner handle the deposition.
Is her partner the one who's going to testify? If not, what's the point of deposing the partner?
> Her problem is she has a partner in name only - they
> have an LLC for the purposes of sharing office overhead.
That doesn't matter if the point is to inquire into the various individuals' knowledge of facts. It does matter if CPA #1 is the one wife hired as her forensic accounting expert, and if partner #2 had nothing to do with that and therefore no knowledge of the situation, why would anyone want to depose the partner?.
> Shouldn't the privilge extend to her partner regardless?
No. The whole point of revealing facts to an expert witness is to provide a basis for the expert's opinion. If the expert were to be given partial and inaccurate information by the wife's attorney, that would open her up for cross-exam regarding the flimsiness of the basis for her opinion, but the CPA witness would not actually be lying if she said that, based on the information known to her, wife's net worth was $X. However, since the CPA expert was in fact given full access to wife's records, and does in fact know about the hidden assets, she would be lying if she testified (at trial, OR at deposition) that wife's net worth was $X if she knew that the real figure was several million higher than $X. Aside from the unpleasant prospect of having to keep Martha Stewart company after a conviction for perjury, perhaps an even more compelling reason for the CPA to tell the truth is that she could be debarred and de-certified from the CPA profession, or what might even be worse for her if forensic work is a major part of her practice, she could be barred from testifying by the court, and as a result (since every other potential client OR opponent would know about her lack of candor, and other courts would likely follow suit) her whole forensic practice would go down the toilet. An expert who has been shown to have no honesty or integrity is worthless.
> This is in Maryland.
IMO the same rationale applies everywhere, but experts are not entitled to claim attorney-client privilege in MD.
Perhaps this is a good time for a BRIEF review of the A-C privilege in general. The privilege does NOT mean that an attorney can counsel his client to lie, or that the attorney can hide factual information made known to the attorney by the client if those facts are relevant and discoverable the pending suit, are asked for in discovery, and are known to the attorney.
The only thing the A-C privilege protects against is, discovery of the content of the actual COMMUNICATIONS between the client and the attorney where those communications are for the purpose of giving or obtaining legal advice. IOW, it is not proper to ask a witness (wife) in discovery, :What did you tell your lawyer about what investments you have an interest in and what they are worth?" However, it is perfectly proper, and must be answered truthfully, to ask, "What investments do you have an interest in and what are they worth?" If either the lawyer, or the wife, lies in answering that proper question, serious consequences could ensue (assuming, of course, that they are eventually found out; which happens more often than you might think). For virtually any lawyer who is not already so crooked that disbarment is just a matter of time, it is NOT worth getting his ticket punched to save a few bucks for one measly client by lying to the court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> A CPA in the course of doing forensic accounting for an
> attorney in a divorce settlement obtained financial
> information detrimental to client's position on the
> property settlement.
The CPA is a hired expert witness in this situation. No privilege applies to any information shown to her.
<snip>
> The problem is that the husband's attorney wants to
> depose my colleague on how she arrived at her numbers
Sounds reasonable. Most attorneys want to depose the opposing witnesses, especially hired experts, before trial to find out what they are going to say, and also to dig for material that might be useful on cross-exam.
> and she does not want to do that.
It's not her choice. She's been identified in discovery as a hired expert witness, and the opposing attorney can depose her if he chooses.
> When I suggested the
> attorney-client privilege extended to her, she replied
> she wasn't use to giving ambiguous/half-truth answers.
As well she shouldn't. Don't want to get the CPA code of ethics brought down on her, much less a conviction for perjury.
> I suggested she have her partner handle the deposition.
Is her partner the one who's going to testify? If not, what's the point of deposing the partner?
> Her problem is she has a partner in name only - they
> have an LLC for the purposes of sharing office overhead.
That doesn't matter if the point is to inquire into the various individuals' knowledge of facts. It does matter if CPA #1 is the one wife hired as her forensic accounting expert, and if partner #2 had nothing to do with that and therefore no knowledge of the situation, why would anyone want to depose the partner?.
> Shouldn't the privilge extend to her partner regardless?
No. The whole point of revealing facts to an expert witness is to provide a basis for the expert's opinion. If the expert were to be given partial and inaccurate information by the wife's attorney, that would open her up for cross-exam regarding the flimsiness of the basis for her opinion, but the CPA witness would not actually be lying if she said that, based on the information known to her, wife's net worth was $X. However, since the CPA expert was in fact given full access to wife's records, and does in fact know about the hidden assets, she would be lying if she testified (at trial, OR at deposition) that wife's net worth was $X if she knew that the real figure was several million higher than $X. Aside from the unpleasant prospect of having to keep Martha Stewart company after a conviction for perjury, perhaps an even more compelling reason for the CPA to tell the truth is that she could be debarred and de-certified from the CPA profession, or what might even be worse for her if forensic work is a major part of her practice, she could be barred from testifying by the court, and as a result (since every other potential client OR opponent would know about her lack of candor, and other courts would likely follow suit) her whole forensic practice would go down the toilet. An expert who has been shown to have no honesty or integrity is worthless.
> This is in Maryland.
IMO the same rationale applies everywhere, but experts are not entitled to claim attorney-client privilege in MD.
Perhaps this is a good time for a BRIEF review of the A-C privilege in general. The privilege does NOT mean that an attorney can counsel his client to lie, or that the attorney can hide factual information made known to the attorney by the client if those facts are relevant and discoverable the pending suit, are asked for in discovery, and are known to the attorney.
The only thing the A-C privilege protects against is, discovery of the content of the actual COMMUNICATIONS between the client and the attorney where those communications are for the purpose of giving or obtaining legal advice. IOW, it is not proper to ask a witness (wife) in discovery, :What did you tell your lawyer about what investments you have an interest in and what they are worth?" However, it is perfectly proper, and must be answered truthfully, to ask, "What investments do you have an interest in and what are they worth?" If either the lawyer, or the wife, lies in answering that proper question, serious consequences could ensue (assuming, of course, that they are eventually found out; which happens more often than you might think). For virtually any lawyer who is not already so crooked that disbarment is just a matter of time, it is NOT worth getting his ticket punched to save a few bucks for one measly client by lying to the court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Credit card suit answer
On Nov 2, 2:57 pm, Johnny <J0hn_2...@rock.com> wrote:
> I recently received some pleadings in regard to a credit card account.
> Nowhere is the account number mentioned, Since this could be one of
> several accounts with the same credit card company how am I able to
> respond with any certainty which account is involved? Or should I
> respond indicating that their pleadings (request for production,
> interrogatories, request for admissions) cannot be responded to since
> the account number has not appeared in any of their pleadings or
> summons? In my answer to summons, I stated "Plaintiff's complaint
> fails to state claim upon which relief may be granted."
First of all, if you are representing yourself in court you have a fool for a client. Get a lawyer or it will be like shooting fish in a barrel when you go up against the credit company's lawyer.
Secondly, if you have already filed an "answer", your grouse that you can't understand the complaint is probably now legally irrelevant. Most states' rules of civil procedure have a provision for a defendant to file, INSTEAD of an answer, a preliminary "motion for a more definite statement" if the defendant feels the complaint does not give him adequate notice of the nature of the plaintiff's claim. Your chosen option, filing an answer that happens to include the "fails to state a claim" defense, is not equivalent, since it does not require the plaintiff to re-file a more definite complaint. By answering, you are presumed to know enough about the complaint to respond to its allegations by admitting or denying them. In addition, if you _really_ don't have any clue which account they mean, you can find out in discovery, through the questions you will ask the other side, exactly which account it is they are complaining about. I suspect you really know already which one it is and are just trying to "game" the system on them (what, are you that seriously in arrears on more than one account with the same lender?)
Thirdly, do their discovery requests to you contain a "definitions" section, as most do, where they say, frex, "the term 'the account' as used herein means XYZ Credit Corp. account no. 1234-5678-9012-3456" If so, they have specified the account well enough for you to answer
Get that lawyer, soon. He may be able to save you enough money on this claim to more than pay for his fee (which he will probably want to be paid up front as a flat fee, or an hourly rate drawing from a retainer). Or else you will have quite a wild ride, and it will not be fun. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I recently received some pleadings in regard to a credit card account.
> Nowhere is the account number mentioned, Since this could be one of
> several accounts with the same credit card company how am I able to
> respond with any certainty which account is involved? Or should I
> respond indicating that their pleadings (request for production,
> interrogatories, request for admissions) cannot be responded to since
> the account number has not appeared in any of their pleadings or
> summons? In my answer to summons, I stated "Plaintiff's complaint
> fails to state claim upon which relief may be granted."
First of all, if you are representing yourself in court you have a fool for a client. Get a lawyer or it will be like shooting fish in a barrel when you go up against the credit company's lawyer.
Secondly, if you have already filed an "answer", your grouse that you can't understand the complaint is probably now legally irrelevant. Most states' rules of civil procedure have a provision for a defendant to file, INSTEAD of an answer, a preliminary "motion for a more definite statement" if the defendant feels the complaint does not give him adequate notice of the nature of the plaintiff's claim. Your chosen option, filing an answer that happens to include the "fails to state a claim" defense, is not equivalent, since it does not require the plaintiff to re-file a more definite complaint. By answering, you are presumed to know enough about the complaint to respond to its allegations by admitting or denying them. In addition, if you _really_ don't have any clue which account they mean, you can find out in discovery, through the questions you will ask the other side, exactly which account it is they are complaining about. I suspect you really know already which one it is and are just trying to "game" the system on them (what, are you that seriously in arrears on more than one account with the same lender?)
Thirdly, do their discovery requests to you contain a "definitions" section, as most do, where they say, frex, "the term 'the account' as used herein means XYZ Credit Corp. account no. 1234-5678-9012-3456" If so, they have specified the account well enough for you to answer
Get that lawyer, soon. He may be able to save you enough money on this claim to more than pay for his fee (which he will probably want to be paid up front as a flat fee, or an hourly rate drawing from a retainer). Or else you will have quite a wild ride, and it will not be fun. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Beer and wine, "nonalcoholic and nonintoxicating"?
On Nov 2, 2:56 pm, Mike <prabb...@shamrocksgf.com> wrote:
> Now the other statute that I quoted part of says "All beers, ales,
> porter, and other similar malt or fermented beverages containing not in
> excess of five percent of alcohol by weight and all wines containing not
> in excess of twenty-one percent of alcohol by volume are declared to be
> nonalcoholic and nonintoxicating beverages" but they are STILL
> restricted to those over 21 (except for such uses as religious, served
> at home by a parent, etc.)
That's really what the law says in SC? It's news to me that 5% beer or 21% wine is "nonalcoholic and nonintoxicating." It's quite possible to get seriously drunk with either of them: alcohol is alcohol, and one 12-oz. can of 5% beer contains equivalent alcohol to a 3 oz. glass of 20% wine or a 1 oz. shot of 60% (120 proof) distilled spirits. Each drink contains 0.6 ounces of pure ethanol; it's simple math. Sounds like the law hasn't kept up with science down there.
Perhaps the reason for the statutory scheme is that there are separate state-controlled stores for "hard" liquor, but any ol' grocery, gas station or bait shop can sell a case of beer? If that's the rationale, ISTM they could have come up with a better name for the low-test stuff (beer and wine) than the misleadingly innocent-sounding term "nonalcoholic and nonintoxicating." Even if the law still says those under 21 can't buy it, that's not a message you want to be communicating to impressionable teens; it's like telling them that oral sex is OK because it isn't "really" sex.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Now the other statute that I quoted part of says "All beers, ales,
> porter, and other similar malt or fermented beverages containing not in
> excess of five percent of alcohol by weight and all wines containing not
> in excess of twenty-one percent of alcohol by volume are declared to be
> nonalcoholic and nonintoxicating beverages" but they are STILL
> restricted to those over 21 (except for such uses as religious, served
> at home by a parent, etc.)
That's really what the law says in SC? It's news to me that 5% beer or 21% wine is "nonalcoholic and nonintoxicating." It's quite possible to get seriously drunk with either of them: alcohol is alcohol, and one 12-oz. can of 5% beer contains equivalent alcohol to a 3 oz. glass of 20% wine or a 1 oz. shot of 60% (120 proof) distilled spirits. Each drink contains 0.6 ounces of pure ethanol; it's simple math. Sounds like the law hasn't kept up with science down there.
Perhaps the reason for the statutory scheme is that there are separate state-controlled stores for "hard" liquor, but any ol' grocery, gas station or bait shop can sell a case of beer? If that's the rationale, ISTM they could have come up with a better name for the low-test stuff (beer and wine) than the misleadingly innocent-sounding term "nonalcoholic and nonintoxicating." Even if the law still says those under 21 can't buy it, that's not a message you want to be communicating to impressionable teens; it's like telling them that oral sex is OK because it isn't "really" sex.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Evicting a tenant
On Nov 2, 2:56 pm, "Paul J. Dudley" <pauljdud...@earthlink.net> wrote:
> We have a situation whereby a female tenant calls from florida
> to say she is giving up her tenancy. Her son is still here in
> the trailer ( Sampson County - North Carolina ). We don't want
> him though. I thought I could have him removed for trespassing
> but I was informed by a magistrate that since the rent was caught
> up we would have to evict him. But so far he has done nothing
> to cause eviction that I know of.
Why do you think he has to have "done something" to be evicted? ISTM you are mixing this up with the trespassing claim you originally brought (what did you do, call the police?) where, as you surmised, you can have a person removed immediately from your property if he has no right to be there. As your magistrate has already told you, you can't do that under your actual facts, because his current possession is rightful -- the rent is paid up, and you originally gave him permission (direct or implied) to move in along with his Mom, and YOU HAVE NOT GIVEN HIM THE LEGALLY REQUIRED NOTICE (30-days or whatever your locality calls for) that you intend not to renew his tenancy at the end of the currently paid-for rental period. If he continues to "hold over" after that time, then you may have a different situation.
Eviction is the name given to the legal procedure that has to be followed to remove a RIGHTFUL tenant as well as one who is in arrears on his rent or is wrongfully holding over after receiving due notice. Do not assume that what the magistrate told you means that this man can stay on your property forever as long as he continues to pay his rent and doesn't do anything wrong to give you "cause" to evict him -- that's not the law. You, the landlord, can decide for any, non-invidiously-discriminatory reason, that you don't want to rent to _anybody_ anymore, or that you simply don't want to rent to _him_ anymore, and you can terminate your relationship with him when the current leasehold expires. If there is no written lease, it is probably considered a month-to-month tenancy, renewable at the end of each month if you have not given him timely notice to vacate. Tenants have rights, too; you can't kick someone out onto the street on a moment's notice. You have to give him the required advance notice of your intent not to renew his tenancy, so that he can make alternate arrangements in an orderly fashion if he chooses -- and if he just ignores you and doesn't move, it will be at his peril, because THEN, after jumping thru all the locally required legal hoops, you can put his junk out on the curb and change the locks. But please don't do this without competent, local legal advice, because if you screw it up and violate his rights, he could sue YOU.
Even if you were just renting to this lady and her son as a one-off thing, and don't intend to continue in the landlord business, isn't it worth it to you to pay for a couple hours of a lawyer's time to explain to you what you can and can't do under local law, and maybe to prepare and file the necessary forms for you? He might even be able to tack his fees on to the amount you will charge the holdover tenant, assuming the son has any money to pay you with. But if you are indeed in the landlord business and intend to remain there, it would be very wise to begin a long-term relationship with a local lawyer who can advise and represent you regarding the conduct of that business as the need arises, if you haven't done so already. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> We have a situation whereby a female tenant calls from florida
> to say she is giving up her tenancy. Her son is still here in
> the trailer ( Sampson County - North Carolina ). We don't want
> him though. I thought I could have him removed for trespassing
> but I was informed by a magistrate that since the rent was caught
> up we would have to evict him. But so far he has done nothing
> to cause eviction that I know of.
Why do you think he has to have "done something" to be evicted? ISTM you are mixing this up with the trespassing claim you originally brought (what did you do, call the police?) where, as you surmised, you can have a person removed immediately from your property if he has no right to be there. As your magistrate has already told you, you can't do that under your actual facts, because his current possession is rightful -- the rent is paid up, and you originally gave him permission (direct or implied) to move in along with his Mom, and YOU HAVE NOT GIVEN HIM THE LEGALLY REQUIRED NOTICE (30-days or whatever your locality calls for) that you intend not to renew his tenancy at the end of the currently paid-for rental period. If he continues to "hold over" after that time, then you may have a different situation.
Eviction is the name given to the legal procedure that has to be followed to remove a RIGHTFUL tenant as well as one who is in arrears on his rent or is wrongfully holding over after receiving due notice. Do not assume that what the magistrate told you means that this man can stay on your property forever as long as he continues to pay his rent and doesn't do anything wrong to give you "cause" to evict him -- that's not the law. You, the landlord, can decide for any, non-invidiously-discriminatory reason, that you don't want to rent to _anybody_ anymore, or that you simply don't want to rent to _him_ anymore, and you can terminate your relationship with him when the current leasehold expires. If there is no written lease, it is probably considered a month-to-month tenancy, renewable at the end of each month if you have not given him timely notice to vacate. Tenants have rights, too; you can't kick someone out onto the street on a moment's notice. You have to give him the required advance notice of your intent not to renew his tenancy, so that he can make alternate arrangements in an orderly fashion if he chooses -- and if he just ignores you and doesn't move, it will be at his peril, because THEN, after jumping thru all the locally required legal hoops, you can put his junk out on the curb and change the locks. But please don't do this without competent, local legal advice, because if you screw it up and violate his rights, he could sue YOU.
Even if you were just renting to this lady and her son as a one-off thing, and don't intend to continue in the landlord business, isn't it worth it to you to pay for a couple hours of a lawyer's time to explain to you what you can and can't do under local law, and maybe to prepare and file the necessary forms for you? He might even be able to tack his fees on to the amount you will charge the holdover tenant, assuming the son has any money to pay you with. But if you are indeed in the landlord business and intend to remain there, it would be very wise to begin a long-term relationship with a local lawyer who can advise and represent you regarding the conduct of that business as the need arises, if you haven't done so already. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Subscribe to:
Posts (Atom)