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.
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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
Tuesday, August 21, 2012
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.
--
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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
> 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.
--
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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
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
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(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
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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
> 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
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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
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
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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
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
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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 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
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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
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
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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
> 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
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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
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
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