ARCHIVE - Legally Speaking


There is more to the practice of law than television’s depictions of high courtroom drama and criminal behavior. In fact, most people in need of the services of attorneys are more likely to need professional representation when purchasing real estate or divorcing their spouses. Lawyers are also expert in the exceedingly important matters of drawing up and reviewing contracts as well as setting up corporations and other business entities. Attorneys may be called upon to initiate or defend civil suits that involve a range of wrongdoing, including personal injury. They also play roles in matters of death, wills and taxes. In future columns, we will show you how to put yourself on the right side of the law.

HINT: A lawyer’s expertise may also extend to workers’ compensation and rights in the workplace.



Whether or not a criminal act results in injuring a person, the government will prosecute the person responsible since it is believed that any violation of the criminal laws harms society as well. Criminal prosecution is thus conducted not only to punish those who commit crimes, but also to deter others from acting similarly. As for the victim of a criminal act, he or she may file a civil lawsuit against the wrongdoer. In doing so, the plaintiff seeks compensation for his or her injuries or vindication of his or her rights. Any defendant found guilty in a civil case and found liable for harming the plaintiff will instead be ordered to pay compensation or to desist from some action.

HINT: It is more difficult to convict someone of a crime than to obtain a civil judgment against that person.



Because a rule called “attorney-client privilege” imposes the strictest legal instructions upon lawyers never to reveal anything that a client tells them, you should feel free to tell your lawyer everything you know. This provision of the law encourages clients to reveal all the potentially damaging information that they have, so that their lawyers are fully prepared to represent them. In fact, it is what a client does not tell his or her lawyer that often proves to be most damaging to the case. It is part of an attorney’s job to anticipate potential problems and develop legal tactics that counter or explain them. Without all the necessary information, this ability may be compromised. 

HINT: If your lawyer is caught by surprise by information that you failed to divulge, it may be too late to exert damage control.



In most civil cases, the plaintiff’s ability to meet his or her “burden of proof” is measured by whether a reasonable person would have concluded that it was “more likely than not” that the defendant caused (and was liable for) the plaintiff’s injury or loss. According to this “preponderance of the evidence” standard, the defendant is entitled to a not guilty verdict if the evidence favors him or her by even the slightest amount. Prosecution of a criminal case must demonstrate the defendant’s guilt “beyond a reasonable doubt.” Anyone who entertains the idea of filing a civil suit should be mindful of this distinction regarding the burden of proof and not be deterred by any mistaken notion about what it takes to prove his or her case.

HINT: While criminal cases almost always allow for a trial by jury, many civil cases will be decided by a judge.



When charged with a crime, agreeing to a “plea bargain” offers the advantages of possibly avoiding jail and getting the matter over quickly with less expense and emotional turmoil. The type of plea bargaining known as “sentence bargaining” involves the prosecutor agreeing to recommend a lighter sentence for specific charges if the defendant pleads guilty or no contest. A guilty or no-contest plea entered as a judge-approved plea bargain results in a criminal conviction that will show up on a criminal record. A no contest (or “nolo contendere”) plea basically says that the defendant does not choose to contest the charges. It also results in a criminal conviction, as does a guilty plea, which will show up on the criminal record.

HINT: More than 90 percent of convictions come from negotiated pleas, which mean fewer than 10 percent of criminal cases end up in trials.



Nearly all attorneys take on personal injury cases on a “contingent fee” basis. Under this payment agreement, the lawyer receives a percentage of the judgment as a fee if his or her client wins. If the plaintiff loses, the lawyer receives no fee. Thus, would-be plaintiffs can be fairly certain that entering into a contingency fee arrangement fairly ensures that the lawyer taking the case thinks that it is winnable and fairly easy to prove. In addition, the lawyer will also want to ascertain that there is a fund from which any judgment would come. Because insurance companies usually have the money to pay a judgment or a settlement, it is preferable that the defendant be insured. 

HINT: Regardless of whether they win or lose, plaintiffs in personal injury cases will likely have to pay court filing fees, the costs related to deposing witnesses, and other charges.



While most parents choose to divide their assets equally among their children, others choose to leave more to one child than another. This unequal distribution leaves many children baffled and even disgruntled enough to challenge the will. Sometimes the situation may be explained by the fact that an equal amount cannot be left to a special-needs child because doing so would jeopardize his or her eligibility for government benefits. However, the needier child may require more money to support him- or herself. In any case, when parents do not intend to split their assets among their heirs equally, they should either discuss the matter with their children or leave a detailed letter of explanation.

HINT: When creating an estate plan, it is important to take tax consequences into consideration that may affect the ultimate amount of the distribution.



Patients who suffer harm as a consequence of a negligent act or omission by a physician and are contemplating initiating a “malpractice suit” against that doctor should understand the negligence standard that applies in these cases. Physicians owe a legal duty of care to their patients. Any injury emanating from an inability or lack of care will ordinarily cause the doctor to be liable for malpractice. The general rule that is employed to determine malpractice is what constitutes reasonable care, skill, and diligence in the community where the professional practices. In the event that community standard has not been met (and other defenses do not apply), the physician is liable for negligence, and malpractice is established.

HINT: One common type of medical malpractice is the “failure to diagnose” in which a competent doctor would have discovered the patient’s illness or made a different diagnosis, leading to a better outcome than the one actually achieved.



Buyers usually prefer to sell their own homes before they purchase another. Consequently, they may use a sales contingency, which involves inserting a clause into a standard sales agreement that says the purchase of a home is “subject to” the sale of their existing property. Sellers may then want to modify the terms of the prospective buyer’s “subject to” clause to favor themselves. That is, they may agree to the clause in general, but counter with a “first-refusal” clause. This allows the prospective buyers to back out at any time before their house sells, but it also allows the seller to entertain new offers. If a new purchase offer comes in, the buyer then has the right of first refusal. 

HINT: In the event that one of the parties cannot meet a contingency of the real estate purchase agreement contract, such as the buyer’s failing to obtain financing, the parties will be released from the contract. 



When minors are involved in wrongdoing that results in injury to another person, their parents may be held responsible, depending on the child’s age. The term “parental liability” refers to parents’ obligation to compensate those who have suffered damage caused by negligent, intentional, or criminal acts committed by their child. Parental liability usually applies when the child reaches eight to ten years of age; it does not end until the child reaches the age of majority. Most states currently have laws relating to parental liability in various applications. Minors can be held responsible for having committed a tort because being underage does not allow one to harm other people or their property. So-called youthful indiscretions may have consequences. 

HINT: The age of “majority” is the age at which a minor, in the eyes of state law, becomes an adult. This age is 18 in most states. 


While most of the legal principles and practices of the workplace back an employer’s right to fire a worker, there are grounds for employees to make a “wrongful discharge claim.” The most flexible way to challenge a job dismissal is for a worker to show that there has been a breach of good faith and fair dealing. An example of breaching this responsibility would be contriving reasons for firing an employee on the basis of on-the-job performance, when the real motivation is to replace that employee with someone who will work for lower pay. If you feel that you were wrongfully fired, consult with a lawyer to see if you have the basis to challenge the dismissal.

HINT: If you have a written employment contract setting out the terms of your work, pay, and benefits, you may be able to get it enforced against an employer who ignores any one of its terms.



If you were injured at work resulting in a lasting impairment, you may be able to negotiate a settlement. For instance, if the state allows injured workers to negotiate a lump sum settlement, you may prefer that over continuing to receive permanent weekly disability payments. You may also be able to settle any disputed amounts, past-due temporary disability payments, and unreimbursed medical expenses. In addition, it may be possible to negotiate an agreement for a structured settlement. However, by accepting a settlement, you may be giving up your right to receive compensation for future medical treatment. Because the wording of the settlement can be critical, it pays to have an experienced attorney on your side. 

HINT: Estimating the value of a workers’ comp settlement is more complicated if you are on permanent total disability because the settlement value has to take into account the present value of your future entitlement to benefits.



A “revocable trust” (also known as a “living trust”) may be amended or revoked at any time and directs the manner in which its assets are to be managed during the lifetime of its creator. This estate-planning tool acts similarly to a will by instructing how its assets should be distributed after the grantor’s death. While a revocable trust offers, essentially, no tax advantages, it does offer some financial and administrative advantages. For one, revocable trust assets pass to named beneficiaries and are not controlled by the will, avoiding probate delays and costs. In the event of its creator’s incapacitation, assets held by the trust would be managed automatically by a named trustee, thereby avoiding potentially costly guardianship proceedings.

HINT: An “irrevocable trust” cannot be altered, changed, modified, or revoked once it has been created. When assets are transferred into an irrevocable trust, they are safe from creditors.



The vast majority of civil cases never go to trial either because both sides reach a settlement beforehand or cases are dismissed. A “motion to dismiss” may be filed by a defendant who asserts that the plaintiff has failed to state a viable cause of action. In short, the plaintiff has no case, or has missed the statute of limitations.  Another way to avoid a lawsuit going to trial involves filing a “motion for summary judgment,” typically filed after discovery is completed. This motion is granted when a party can get the court to determine that there is no issue of material fact and the undisputed facts indicate that one party should win the case as a matter of law.

HINT: If a plaintiff in a malpractice suit fails to retain a qualified expert to testify that the defendant committed malpractice, the defense can bring a motion for summary judgment because the plaintiff cannot prove the case with an expert.



When a home improvement contractor fails to finish the work he or she was contracted to perform, a homeowner may seek reimbursement from the contractor’s “bond.” When a contractor is bonded, there is an agreement between the consumer, the contractor, and the (insurance company) agent who issues the bond that guarantees the contractor will do the work outlined in the contract. If not, the consumer can report the problem to the issuing agent and receive compensation. Otherwise, consumers may hire an attorney to help initiate legal action. A lawyer may also help when a homeowner wants to fire a contractor. This action can be taken if it can be proven that the contractor committed a material breach of contract.

HINT: Breach of contract remedies are designed to put the non-breaching party in the same position as if the contract had been fully performed.



Property owners have a responsibility to maintain a relatively safe environment that ensures that those entering the property have a reasonable expectation of not getting injured. This legal concept, known as “premises liability,” comes into play when an injury is caused by an unsafe or defective condition on someone’s property. Regardless of whether the accident takes place in a store or residence, or on public property, two basic rules determine who is legally responsible. First, the owner of the property has a legal duty not to expose those who enter to unreasonable risk due to faulty design, construction, or condition. However, property owners are not held liable for those entering the property in an unexpected, unauthorized, or dangerously careless manner.

HINT: If you are a guest or tenant who is injured in an accident on rental property, the party responsible for maintaining the area or condition that caused your accident is liable.



Because not all families start out in accordance with the traditional sequence of marriage followed by the birth of a child, there are cases that call for a man to establish that he is the father of a child. Contrary to popular belief, “paternity” cannot be established by a man’s name on a child’s birth certificate. The fact is that the mother can list anyone whom she believes or wants to believe is the father on the birth certificate. Nor is a DNA test the only way for a father to establish paternity. With an attorney’s help, paternity can be established through several means, including having an unmarried couple sign a voluntary acknowledgment of paternity or a similar agreement.

HINT: Paternity may be legally established in cases where the child is born to an unmarried couple if the parents marry after the child is born and sign a legitimation form.



When individuals are physically harmed as the result of the negligence of others, the “make whole doctrine” seeks to place the damaged parties back into the position they would have been in before the injury caused by another. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to non-economic losses such as “pain and suffering.” The valuation of such loss is left largely to the jury’s discretion. “Special damages” are those awarded for compensable harms such as medical expenses and lost wages. These can easily be quantified with the help of bills, pay stubs, and the like. Plaintiffs should give a full accounting of their losses.

HINT: “Nominal damages” is the term used to describe a damage award issued by a court when a legal wrong has occurred, but where there was no actual financial loss as a result of that legal wrong.



Neighbors need not necessarily throw noisy parties or play loud music to disrupt the lives of those living close by. In this era of sensitivity to noise pollution, leaf blowers and lawn mowers are perceived as having the potential to create a credible noise problem. The first step in addressing this situation involves talking directly and respectfully to the neighbor making the noise in an effort to arrive at a resolution that both parties find acceptable. If that does not work, the noisy neighbor should be confronted with a copy of the local noise ordinance, with a note that repeats the request to keep the noise down. If this fails, a call to the police may be in order.

HINT: If necessary, a neighbor whose life has been continually disrupted as a result of another neighbor’s noise may sue the offending party for damages or to order the neighbor to “abate the nuisance.”



Approximately 4.5 million dog bites occur in this country annually, according to the Centers for Disease Control and Prevention. More than half the states have “dog-bite statutes” that hold dog owners liable if their canines cause injury whether or not the dog owners had reason to believe their dogs were dangerous. Most laws cover all kinds of dog-inflicted injuries, not solely dog bites. In other states, the “one-bite rule” makes dog owners legally responsible for an injury if they knew the dog was likely to cause that type of injury. Bite victims must prove that the owner knew the dog was dangerous. If the injury occurred because the owner was negligent in controlling the dog, the owner is liable.

HINT: The “one-bite rule,” which is relevant the first time a canine attacks a human being, shields the owner of a domestic animal from civil liability to the first victim of each of his or her animals.



It is a common workplace misconception that workers are legally entitled to severance pay when they are discharged from a job. Whether it is given varies among employers, regions, and industry custom. However, an employer may be legally obligated to pay a worker some severance pay if there is a written contract stating that it would be paid. Otherwise, there may be a promise that employees would receive severance pay as documented in an employee handbook. In addition, although it may be difficult to prove, there may have been an oral promise that an employer would pay a worker severance. If so, the employer who reneged on a promise to pay severance may be sued for breach of contract.

HINT: Some companies demand that departing employees sign broad severance agreements, which typically include provisions requiring a former employee to waive the right to file a number of claims against the company before they receive any money. 



In order for plaintiffs to win their negligence cases, they must prove that the defendant’s negligence caused their injuries. In some cases, the attempt to establish this link involves the presentation of “circumstantial” evidence. On the other hand, some negligence cases reveal the defendant’s negligence to be so inextricably linked to the plaintiff’s injuries that it is obvious to all. In such cases, the Latin phrase “res ipsa loquitur” (“the thing speaks for itself”) applies. That is, the court can assume that an accident occurred due to someone other than the plaintiff’s own negligence, the defendant owed the plaintiff a “duty of care,” and the defendant “breached” that duty by acting negligently or carelessly.   

HINT: The “res ipsa loquitur” originally stems from a case in which a plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse.



It has become increasingly clear in recent years that impaired drivers are responsible for hundreds of thousands of crash-related injuries and thousands of deaths annually in the United States. When it comes to driving under the influence of alcohol, every state has currently set .08% blood alcohol concentration (BAC) as the legal limit for driving under the influence (DUI) or driving while impaired (DWI). For commercial drivers, the limit is even more restrictive, as a BAC of .04% can result in a DUI or DWI conviction anywhere in the nation. Drinking among drivers under age 21 is not tolerated at all, as even the smallest amount of BAC is cause for arrest. Anyone facing DUI/DWI arrest should call an attorney. 

HINT: Refusing a breathalyzer test does not necessarily help a drunk driver circumvent the law and avoid guilt, because “implied consent” means that once a driver gets in the car, he or she accepts an implied contract to take an alcohol test if deemed necessary.



Elder abuse is far more common than we might expect. According to a recent study, nearly 16 percent of older adults have been identified as victims of abuse. According to the Centers for Disease Control and Prevention, one in ten adults aged 60 years and older, who lives at home, suffers from abuse. Because many cases of elder abuse go unreported, due to either fear or embarrassment, this problem is likely underreported. With this in mind, it is the responsibility of friends, family, and loved ones to look for signs of abuse, which may be physical, psychological, sexual, or financial in nature. Concerned individuals should also look for signs of neglect or abandonment that threaten seniors’ health and well-being.

HINT: Elder abuse should be immediately reported to the state’s Adult Protective Services agency, as well as to law enforcement and family attorneys, if necessary.



A “power of attorney” is a legal document that allows you to appoint a person to manage your affairs when you cannot do so yourself. A “general power of attorney” is used to give broad powers to a person or organization to act in your behalf in matters such as dealing with business and financial concerns. It can be useful when you will be out of the country and need certain matters handled. By signing a “special power of attorney,” you can delineate exactly what powers your agent can perform, such as sell property. A “health care power of attorney” gives your agent authority to make medical decisions if you are unable to communicate your choices about your health care.

HINT: While ordinary powers of attorney automatically end if you become incapacitated, a “durable power of attorney” remains in effect if you become incapacitated and are unable to handle matters on your own.



If a person dies as a consequence of another person’s negligence or misconduct, the surviving family members of the deceased have cause to file a “wrongful death” lawsuit. Civil suits of this type often take place after a criminal trial, using similar evidence to gain a verdict that requires a lower “standard of proof.”  That is, while the prosecution of a criminal case requires that guilt be established “beyond a reasonable doubt,” the plaintiff in a civil case need only prove that the defendant was responsible “by a preponderance of the evidence.”  Financial injury is the primary measure of damages in a wrongful death action, encompassing loss of support and services, lost prospect of inheritance, and medical and funeral expenses.

HINT: In most states, a plaintiff may not recover punitive damages in a wrongful death action, but some states have specific statutes that permit the recovery of punitive damages.



Many people think they will never need the services of a lawyer because they lead quiet lives and never break the law. The fact is, however, that many individuals find themselves involved in civil lawsuits, the most common of which involve contract disputes. For instance, if a property owner were to contractually engage the service of a contractor who failed to keep up his or her end of the bargain, the two sides may find themselves arguing their cases in court. Other instances in which homeowners may find themselves in a legal argument involve disputes over property ownership and damages to one person’s property or real estate, which may be handled by a civil litigation attorney. Life can get contentious.

HINT: A lawyer may be needed to win a negligence case involving an accident or to litigate a discrimination or harassment case at work. 



Civil lawsuits that arise from accidents and injuries are often resolved early in the litigation process through a negotiated settlement between the plaintiff and defendant, when parties agree to settle the case.  This resolution between opposing parties can take place from the time the lawsuit is filed up to when the case has been tried but before the jury reaches a verdict. A settlement consists of an agreement by the plaintiff to give up the right to pursue any further legal action in connection with the accident or injury in return for monetary compensation from the defendant or insurance company. The final decision of whether or not to accept a settlement offer rests solely with the plaintiff.

HINT: The ability of a plaintiff to successfully negotiate a settlement to a civil case involving accident or injury is directly related to the strength of his or her case.



One of the most important aspects of drawing up a will for parents of young children is appointing a “guardian” to raise the children if both parents were to die before the children reach adult age. While the chances of this scenario taking place may seem to be quite slim, failure to prepare for the eventuality presents possible ramifications that are far too great to dismiss. If a guardian is not named, the judge would appoint a guardian without knowing whom the deceased parent(s) would have preferred. While naming a guardian in a will does  not necessarily ensure that the person named to assume this responsibility will be chosen, the judge is quite likely to respect the deceased’s wishes. 

HINT: The person named to be a guardian in a will does not necessarily have to be a relative.



When a patient has reason to believe that he or she was harmed by a doctor or other medical professional who failed to competently perform his or her medical duties, there may be grounds for filing a medical malpractice lawsuit. To prove such a case, the patient must first establish that a doctor-patient relationship existed. In order to hold the physician liable for medical malpractice, the patient must also show that the doctor deviated from the appropriate medical standard of care. In addition, the patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Finally, the patient must show that the injury caused by the doctor’s negligence led to specific damages. 

HINT: In accordance with the “duty of informed consent,” physicians have a duty to warn patients of known risks of a procedure or course of treatment.



Those starting new businesses should know that the simplest form of business is a “sole proprietorship,” which is not a legal entity and simply refers to a person who owns a business and is personally responsible for its debts. While this popular business form is easy and inexpensive to set up, the owner of a sole proprietorship remains personally liable for all the business’s debts. A “corporation” is separate from its owner, which means that, with some exceptions, it is shielded from personal liability. The “limited liability company” (LLC), which is also  protected from personal liability, is not required to adhere to corporate formalities such as annual meetings, recording meeting minutes, electing directors, and issuing stock certificates.

HINT: While a corporation is subject to double taxation (profits are taxed both at the corporate level and when distributed to shareholders), a limited liability company (LLC) enjoys pass-through taxation, which is similar to a partnership or sole proprietorship.



Would-be plaintiffs in personal injury cases who point to the negligence of others as the cause of their injury might want to examine their own behavior before they initiate legal action. The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. To this carelessness the law applies the basic rule that the person who is less careful than the other involved in an accident must pay damages. However, even careless individuals may not necessarily be liable to someone injured by their carelessness. The concept of “contributory negligence,” which refers to conduct that creates an unreasonable risk to oneself, may be used as a defense to a negligence claim. 

HINT: “Comparative negligence approach” weighs each party’s negligence when determining damages.



The Fourth Amendment to the U.S. Constitution protects citizens and criminal suspects from unreasonable searches of their property and persons. While law enforcement agencies must apply for a search warrant before conducting a search of the person or premise in issue, the “plain view” doctrine permits the search, seizure, and use of evidence obtained without a search warrant when such evidence was plainly perceptible in the course of lawful procedure and the police had probable cause to believe it was incriminating. So, if the police can search any containers in an immediate arrest area, can they also search a cell phone? The Supreme Court says “no,” because, unlike ordinary containers, cell phones contain digital material that is vast and personal.

HINT: While the information that cell phones display is out of the reach of the police under the “plain view” doctrine, the police can seize a cell phone as a “preventive measure” under the pretense that they are seeking to avoid loss of the cell phone’s data.



When a child commits a negligent act that leads to significant injury or property damage, some may wonder if the child can be held to the same legal standard that applies to adults. When differentiating an accident from a negligent act, adults are held to a “standard of care” that is required in a given situation. That is, if a person acts in a manner other than how a “reasonable person” would act in the same situation, the individual would be held liable for any resultant injuries. However, children are not expected to act as a reasonable adult would act. Instead, a child’s actions are compared with the conduct of other children of the same age, experience, and intelligence.

HINT: The exception to this altered duty of care for minors involves situations in which the child is carrying out an adult activity, such as driving a vehicle.



When it comes to making the largest purchase in their lives, home buyers should leave nothing to chance. It is important that an attorney who has real estate experience review a real estate contract and provide advice that could help avoid errors, omissions, misinterpretations, or even misrepresentations that could jeopardize a sale or lead to a legal problem. For instance, by making a sales contract not only contingent upon a professional home inspection, but also the full approval of its results, buyers can protect themselves from being faced with an unsatisfactory inspection and an obligation to purchase the property. In addition, it is important that buyers carefully review sellers’ disclosure statements to learn as much as possible about the property.

HINT: Real estate buyers should cross check the seller’s disclosures with the city building permit and zoning reports in an effort to identify work that was completed without a permit and may not have been performed to code.


When a child commits a negligent act that leads to significant injury or property damage, some may wonder if the child can be held to the same legal standard that applies to adults. When differentiating an accident from a negligent act, adults are held to a “standard of care” that is required in a given situation. That is, if a person acts in a manner other than how a “reasonable person” would act in the same situation, the individual would be held liable for any resultant injuries. However, children are not expected to act as a reasonable adult would act. Instead, a child’s actions are compared with the conduct of other children of the same age, experience, and intelligence.

HINT: The exception to this altered duty of care for minors involves situations in which the child is carrying out an adult activity, such as driving a vehicle.



When evaluating a workers’ compensation claim, it is important to understand that, in order for a work injury to be compensable, it must “arise out of and in the course of employment.” In order to fully justify a claim and avoid misinterpretation of the circumstances surrounding it, it is best that an injured employee notify his or her employer within a prescribed time after the injury or the onset of the initial symptoms. This notification should be made in writing on a special form. In the event the employer refuses to provide benefits, it is in the worker’s best interests to consult with a lawyer, who can then request a hearing before the state board or commission of workers’ compensation.

HINT: Employers are likely to question workers’ compensation claims for injuries that they perceive to have occurred outside the parameters of employment, such as on work breaks, traveling to and from work, and performing personal errands.