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.
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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
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,
--
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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
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(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
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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
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