structured settlement and attorney basics

dwd-a danger that causes car accident

noreply@blogger.com (shenty) — Thu, 29 Nov 2007 06:03:00 -0800

Nearly 100,000 car accidents each year is caused by DWD--Driving While Drowsy. Approximately 1,500 people are killed in car accidents because of it. According to sleep experts, driving tests on someone being awake for 18 to 19 hours results in the similar findings as someone who has an alcohol level of .1.

According to the National Highway Traffic Safety Administration, a typical automobile accident related to DWD--driving while drowsy--has the following characteristics:

The problem occurs during late night/early morning or mid afternoon.
The car accident is likely to be serious.
A single vehicle leaves the roadway.
The automobile accident occurs on a high-speed road.
The driver does not attempt to avoid the car accident.
The driver is alone in the vehicle.

Although no driver is immune, the people highest at risk are young people (ages 16 to 29), especially males; shift workers whose sleep is disrupted by working at night or working long or irregular hours; and people with untreated sleep apnea syndrome or narcolepsy.

Studies have showed that taking a short nap (about 15 to 20 minutes) and consuming caffeine equivalent to two cups of coffee do make a short-term difference. However, other suggestions such as opening a window or listening to the radio have not proven to remedy DWD.

If you are too drowsy to drive, pull over and rest. Call a friend to pick you up. Do something so you and all the other drivers and passengers on the road are not injured or killed because of your driving while drowsy.

In my practice, I have represented families who have suffered because someone else caused an automobile accident because they were too tired to drive safely. Families can be forever changed because of a car accident. I have seen it happen too many times!

cash for structured settlement

noreply@blogger.com (shenty) — Mon, 26 Nov 2007 08:32:00 -0800

Obtaining cash for structured settlement payments is a rather complex process. Before making the decision to cash in your structured settlement, it's important to understand how the process works.

You can receive cash for structured settlement payments by selling your note payable to an annuity broker or financial institution. There are numerous companies who offer lump sum cash payments in exchange for annuity payments. However, it is important to scrutinize the individual or company offering the deal.

When selling structured settlement payments you will be required to sign legal documents assigning the rights to your future payments over to the investor. Depending on your financial circumstances you may choose to sell all future payments or only a portion of them.

Let's say you have a structured settlement valued at $100,000 and paid out over 10 years. You receive $10,000 per year. Now, let's say you are in need of $10,000 cash. Instead of selling the entire structured settlement, you can sell one year of payments in exchange for a lump sum cash payment. After the $10,000 has been repaid to the investor through the assignment of payments, the annuity payments will resume and be paid directly to you.

The first thing you will need to do before selling your structured settlement payments is to determine how much money you need. Oftentimes, people sell their structured settlement to pay off medical expenses, debts or college tuition. Others are in need of quick cash for investment purposes such as buying real estate or stocks and bonds.

Prior to selling structured settlement payments the seller must obtain court approval. A judge reviews the case to determine if the seller will benefit from the transaction. As long as there is a genuine need for the transaction, the judge will normally approve the request. However, if the judge denies the request, structured settlement purchasing companies may be able to help the seller take the necessary steps to obtain authorization from the court.

When working with a structured settlement investor you will be required to provide details about the note. The investor will need documentation of the transaction including the name of the insurance company and the exact dates and monetary amounts you receive.

The investor will review the structured settlement to determine its present day value. Afterwards, the investor will contact you to discuss payment options. Once the terms have been agreed upon, legal documents will be filed with the court. Upon approval from the court, it usually takes between 6 and 8 weeks to receive cash for structured settlements.

You want to feel at ease with the structured settlement investor or company you choose. Take time to conduct research and contact references provided by the investment company. Ask plenty of questions and make certain you have a thorough understanding of the transaction prior to signing any documents. After all, it is your money and you don't want to lose it to an unscrupulous individual

Carmen Electra files lawsuit against Naked Women's Wrestling League

noreply@blogger.com (shenty) — Sat, 24 Nov 2007 00:03:00 -0800

Washington, Nov 9 (ANI): Sex symbol Carmen Electra has filed a lawsuit against America's Naked Women's Wrestling League (NWWL) for allegedly failing to pay her 300,000 dollars for hosting several events.

The former ‘Baywatch’ star has claimed that the bosses of NWWL had promised her to pay 400,000 dollars for her appearances, but she only received 100,000 dollars.

As per TMZ.com, Electra has also accused the NWWL for releasing DVDs which used her image, including Twin Peaks and Operation Naked Storm, without payment.

The 35 –year old actress has filed the legal papers in Los Angeles County Court.

Electra created the Naked Women's Wrestling League in 2005, acting as the commissioner for the professional wrestling promotion. (ANI)

Britney Spears faces lawsuit for 'trashing' a $1.5 million apartment

noreply@blogger.com (shenty) — Sat, 24 Nov 2007 00:01:00 -0800

20 November 2007 (Bang) - Britney is facing more legal trouble after reportedly "trashing" a $1.5 million apartment in California's Marina Del Rey in August 2006.

Real-estate agent Amir E. Zagross, who is threatening to sue the singer, told Life and Style magazine: "I met Britney at the condo myself with her mother, brother, sons and her bodyguards. They assured me they were immaculate, nice people who would take care of the property.

"But the damage was significant. They destroyed it. We couldn't re-rent the condo because of the state it was in."

In an unrelated development, Britney Spears' 'Do Something' music video won't air on European TV stations again after Louis Vuitton claimed it "damaged their image".

The luxury clothes and accessories brand won an injunction in Paris yesterday (19 Nov 2007) to stop the 2005 video - which shows mother-of-three Britney driving a pink car emblazoned with the company's prestigious 'cherry blossom LV' symbol - from being shown.

Sony BMG and MTV Online were ordered to pay $117,600 each for "damaging" the brand's image, and are expected to pay $1,470 for every day the video remains on the internet.

Louis Vuitton has continuously worked to prevent its goods from being copied, and has fought the ongoing battle in French and other courts

Entireties Exemption in Florida and New Jersey

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 08:44:00 -0800

The adversary proceeding in the case of In re Kirshner, Case No. 05-34406, Adversary Case No. 06-01872 (Bankr.S.D.Fla. October 30, 2007)(Hyman, C.J.) presented various issues to the court. Among them was the trustee's objection to the debtor's claim of exemption of certain personal property as held as tenants by the entireties. The case was commenced by the filing of an involuntary chapter 7 petition in New Jersey and was transferred to the Southern District of Florida. The debtor consented to the entry of an order for relief but converted the case to a chapter 11 case. The chapter 11 case was later converted back to a chapter 7 case.

Pursuant to 11 U.S.C. section 522(b)(3)(B), an individual is allowed to exempt from the bankruptcy estate "...any interest in prooperty in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety...to the extent that such interest...is exempt from process under applicable nonbankruptcy law. 11 U.S.C. section 522(b)(3)(B). The court allowed the exemption of certain stock. The court found that the stock certificate was issued while the debtor resided in Florida and therefore the Florida law of tenancy by entireties applied. Furthermore, the court held that the trustee failed to introduce any evidence of any joint debt with the non-filing spouse.

The court also examined the exemption of the household goods under section 522(b)(3)(B). The court reviewed the six characteristics of property held as tenancy by the entireties - unity of possession, unity of interest, unity of title, unity of time, survivorship, and unity of marriage. In addition, the parties must have intended to create an estate of tenancy by the entireties. The court found that given the requirement of intent and the unity of time, the issue of whether a tenancy of the entireties was created must be determined under New Jersey law which was the state in which the property was acquired. The court noted New Jersey statutes does provide for the holding of personal property as tenants by the entireties if certain requirements are met. New Jersey Statutes section 46.3-17.2. But the court found that debtor did not meet the statutory requirements as to the household goods as the debtor did not produce a written instrument. In any event, the court apparently noted in footnote one, that in New Jersey property owned as tenants by the entirety is not exempt from the claims of an individual's sole (non-joint) creditors as is the case in Florida.

It is interesting to note that in footnote one, the court stated that in Florida, with limited exceptions, that entireties property does not become property of the estate when only one spouse files for bankruptcy. (citing e.g. In re Kossow, 325 B.R. 478, 483 (Bankr.S.D.Fla. 2005). This would be in contrast to a position that such property is initially part of the estate but is subsequently exempted out.

The debtor also sought to exempt his claim to the Rule 9011 motion that he filed against the petitioning creditors and their attorneys for allegedly having improperly filing the involuntary chapter 7 petition against him. The court held that before the issue of the exemption should be determined, it needed to be determed whether the Rule 9011 motion was property of the estate. The court noted that the 11th Circuit has held that federal law determines whether an interest is property of the bankruptcy estate but that property and interests are created and defined by state law. Witko v. Menotte, 374 F.3d 1040, 1043 (11th Cir.2004). The court found that under Florida law, a cause of action accrues when the last element constituting the cause of action occurs. In re Alvarez, 224 F.3d 1273, 1277 (11th Cir. 2000), Fla. Stat. section 95.031(1). The court found that the 9001 motion cause of action did not arise until the involuntary petition was filed against him and that it was not "sufficiently rooted" in the debtor's pre-bankruptcy past as was the malpractice claim in the Alvarez case. The court therefore found that the issue of the exemption of the Rule 9011 motion was moot as it was not property of the estate.

Florida Landowners Now Liable for Car Accidents Caused by Their Landscaping

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 08:37:00 -0800

In some great news for Florida drivers, the Florida Supreme Court held that homeowners may be liable for personal injuries and wrongful death from car accidents which are caused by the landowner's failure to prevent their landscaping from overlapping into a public right of way and obstructing other traffic or traffic signs and signals.

In reviewing the case of a 1997 truck accident, which claimed the life of a driver, the Supreme Court extended the liability, which already exists for commercial property owners, to homeowners who improperly allow their trees and bushes to extend over their property-line and into a public right of way. As South Florida personal injury attorneys, we believe that this codification of the law will truly benefit all those traveling on Florida roadways.

The minimal costs and effort now mandated upon private landowners, is greatly outweighed by the life saving benefits to Florida drivers. Finally, victims of Florida car accidents, whose cases were previously denied as unavoidable, now have the right to collect damages from private landowners who disregard the growth of their landscaping. On Thanksgiving, this is certainly something for which all Florida drivers should be thankful.

Why do so many lawyers give deceptive advice?

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 01:19:00 -0800

It has been a busy month at The Jaffe Law Firm. We have talked to a lot of people accused of DUI in Arizona, and a lot of these people also have spoken with other attorneys. While many of the attorneys these potential clients have seen have given them solid advice and information that is in their best interest, I find it very disturbing that many others do not. I am frustrated that many of these people whom I have spoken with believe the bad advice or information they have obtained elsewhere.

I started to think about why would a client believe or choose to follow blatantly bad advice in an Arizona DUI case? I'm not talking about bad advice about what to wear to court. I'm talking about the kind of bad advice that can result in stiffer fines, longer license suspensions, higher insurance and more jail or prison time. On the more harmless side, I'm talking about advice that causes the client to spend more money on an attorney than the client has to (yes, there are times when one is accused of DUI in Arizona where, because of that person's goals, it will not benefit them to hire an attorney to defend them).

After thinking about it I came to two possible conclusions: 1) the clients who ignored my good sound advice in favor of an illusion sold by somebody else are stupid; 2) the clients who ignored my advice wanted despertly to believe what the other or others had told them; or 3) the clients knew my adice was good, but because it was the truth, it left nobody for them to shift the blame to later on because I had been straight with them from the beginning. I don't know if there are other reasons, and it is certainly not my place to ask defendants who don't choose to retain my firm why they went somewhere else. Sometimes I see them in court later on, and sometimes the give me a look acknowledging their mistake, but by then it is too late. At that point it would be interferring with their relationship with the attorney they did hire to ask. So I keep my mouth shut, and service the clients who are enlightened enough to see that we give them the truth, 100% of the time, even though it means losing a whole demographic of clients who aren't ready for the truth.

It also caused me to ponder why some attorneys, who should know better, give clients misleading advice.

One approach is to scare the client into retaining and then behaving. I see this approach all the time (based on what clients who are smart enough to find their way into our office say). One manifestation is the scare tactic. Some firms, even on a first offense standard DUI, where the client is typically exposed to an expected sentence of one day (1 day) in jail... some firms tell them that they are exposed to 180 days in jail. Technically speaking, it is true that a misdemeanor DUI carries a maximum sentence of 180 days in jail. However, in my entire career, I have never, not even once, seen any judge sentence a person with an otherwise clean record to 180 days on a first offense DUI. Not even close.

So why do attorneys give that misleading advice? My guess is that it scares people into retaining them. My guess is also that, when the firm comes back to the client with an offer to do the mandatory minimum sentence (1 day), the firm then appears to be a hero to the client, and the client believes the firm has done them good. In many cases, the client would have gotten this same offer without ever hiring a lawyer at all. But as long as the client proceeds in ignorance, then the firm looks good, has to do no work, and gets to keep the 7k or 10k they charged the client for what amounted to 3 hours worth of work.

But why be a scumbag when regardless of the attorneys good or bad behavior, there are still the same large (but finite) number of potential clients out there who have the resources and intention to hire a private law firm to defend them? It amounts to laziness, I suppose. Or greed. Or incompetence. Or a secret bias against the very clients the firm seeks to defend (and therefore a rational cognitive justification for taking advantage of the client, and taking the client's money based on lies or half-truths).

I would love it if the Arizona State Bar Association would send under-cover people in to interview attorneys, posing as potential clients. I would love it if they would take action against attorneys who mislead potential clients and therefore diminish the public's perception of lawyers as a whole. I would love it if potential clients would educate themselves prior to being fooled by a TV ad or billboard or sign above a urinal. I would love it if potential clients would have the courage to walk out of a lawyer's office if they don't feel entirely comfortable instead of retaining that firm. I would love it if our system of justice wasn't stacked against the "little guy" on all sides.

To the lawyers who give the kind of bad advice I have mentioned in this article, contact me and let's talk. If you sincerely don't know that you are harming your clients, and the DUI defense bar in general by your behavior, let me buy you lunch, and let's talk about ways that you can continue to make a good living, but do so with dignity and skill, rather than the way you currently operate.

How to Make Tax Time Less Painful

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 01:15:00 -0800

There are a few things that you can do throughout the year that may help you get through tax time with less stress. First, organize your documents and keep them organized throughout the year. Search the internet for free websites that give you organization suggestions. Some of them even have templates to help you put your tax records in order. Consider a good software program like Microsoft Money which has a 90-day free trial.

If you itemize your deductions, and you certainly should itemize if you are self-employed, keep all your receipts in an expandable folder that can be organized by month, alphabetically, or any way that you want to organize it. If you are ever audited, you will lose the deductions you claimed that cannot be verified by a receipt. If you make cash donations, IRS has a formula that calculates how much you can deduct, but, as with any other deduction, you must have a receipt in order to claim the deduction. Be sure your receipts have the name, date, address, amount, purpose, type, value, and any other information pertinent to the validity of the deduction.

Unless you are really knowledgeable in accounting and tax law, a good CPA is well worth the money. The tax laws are constantly changing, and the average person cannot keep up with the changes let alone understand them. Remember that you should always make the best use of your resources, and that includes using your talents for those things that you do well and outsourcing those things that someone else can do better.

There is no absolutely certain way to avoid an audit, but people say that certain things increase the likelihood of an audit. For example, make sure there are no math errors in your tax return. If there are inaccurate calculations, the IRS will have to take a second, more careful look at your return. Once IRS is looking more closely at your return, there may be red flags that could lead to an audit. It is best to do the math correctly so that IRS never has to take a closer look at your return.

There are blogs and websites for almost any topic, and doing a little research will help you be better educated and less stressed. Don’t forget that your local library has many book about income taxes and tax returns. You may also want to look into Turbo-Tax, Microsoft TaxSaver, or one of the other good tax software. Even if you hire a CPA, you will save yourself time and money by being well-prepared and by understanding the process.

IRS also has telephone help lines that can be really helpful. The IRS website at www.irs.gov is also very helpful and easy to use. It is alright to contact IRS and ask questions. You are not any more or less likely to be audited if you contact IRS and ask your questions. As previously stated, you are more likely to be audited if you make errors on your tax return. These are just a few basic suggestions that can help make tax-time less stressful for you

Why and How to Avoid Bankruptcy

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 01:14:00 -0800

Why and How to Avoid Bankruptcy

Avoiding bankruptcy no longer seems to be on most debtors’ lists of priorities and the number of recorded bankruptcies is soaring. There were around 70,000 bankruptcies recorded in 2005 and about 45,000 of these were voluntary bankruptcies. This statistic clearly demonstrates the worrying fact that a large proportion of debtors see bankruptcy as a debt solution rather than as something to be avoided.

Bankruptcy trends are changing in a way that is concerning economists. In the late 1990s the UK also experienced increasing bankruptcy rates. However, 60% of these bankruptcies were as a result of companies becoming insolvent. The picture is very different today as most bankruptcies are the result of individual insolvencies. In the fourth quarter of 2005 there were 20,461 bankruptcies which resulted from individual insolvencies. This figure represents an increase of 57% against the same period in 2004.

Although many people do not seem concerned about avoiding bankruptcy they really should do so if at all possible.
Avoiding bankruptcy is important because of the penalties, disadvantages and stigmas that it carries.

Going bankrupt often means losing your home and your business and professional status. It also means that it is impossible to hold public office or form, manage or promote a company in the future.

Bankruptcy should also be avoided because it makes it very difficult to obtain credit and your employment prospects can be prejudiced.

Avoiding bankruptcy is both advisable and possible with an IVA. The government introduced IVAs in 1986 to help people to avoid bankruptcy.

An IVA is a binding agreement between a debtor and their creditors. The debtor agrees to repay their debts over a five year period via affordable monthly repayments. These monthly repayments can be as low as £200.

In return, the creditors freeze interest on the debt, agree not to contact the debtor while the IVA is in place and write off a proportion on the debt. It is not uncommon for as much as 85% of a debt to be written off with an IVA.

After five years the debtor is deemed to be debt free. There are no disadvantages or penalties associated with an IVA. Furthermore, because an IVA is a private agreement between a debtor and their creditors there is no stigma attached. As a result, an IVA is an excellent way of avoiding bankruptcy.

Structured Settlement Annuity

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 01:12:00 -0800

You may be considering a structured settlement annuity, but there are some things you should know. A structured settlement is a term that refers to a deferred payment obligation resulting from the settlement of a personal injury claim. In many cases these settlements are paid out over time. There has been much controversy in regards to people who cash in a structured settlement annuity payment award. Structured settlement annuity, is just one part of a very large industry. Some people think it is not legal to sell their structured settlement or annuity payments. There are people who sell their structured settlement or annuity payments all the time.

Most people do not realize that a structured settlement annuity provide a large income stream to insurance companies. With a structured settlement annuity , the government can give large tax breaks to insurance companies. This is a great benefit to insurance companies when the settlement is structured to provide a means for the insurance industry to get these tax advantages. The idea is by structuring the payments of an injury award over time. This helps the injured person to receive long term support and in turn, helps keep these people off of welfare. When the insurance companies help keep these people off government subsidy, these insurance companies are providing a valuable public service. This is why settlement awards can help insurance companies get these tax breaks. Insurance companies can make money from the interest they earn from a structured settlement annuity.

Structured settlement annuity payments to the injured person is tax free. This income is not reported to the government (as income) in the first place. This is why it can be a win-win situation with a structured settlement annuity. When someone needs money for their own personal reason, they can now sell their structured settlement annuity. These companies make it possible to get large cash payouts that were not available before because of the insurance companies being inflexible. Now a person can convert their structured settlement annuity payments to cash for whatever reason they want.

When considering a structured settlement annuity or selling a structured settlement annuity, you should retain an experienced attorney. It is wise to have an attorney explain all the details involved with a structured settlement annuity and the process involved in selling a structured settlement annuity for cash.

You can do a simple online search for all the services and resources to help you make the right decision with your finances and a structured settlement annuity

Structured Settlement And Reverse Mortgage - General tips

noreply@blogger.com (shenty) — Fri, 23 Nov 2007 01:11:00 -0800

With a structured settlement and reverse mortgage, you can tap into income that can out live your financial responsibilities. They can help you have peace of mind. There are some important considerations with structured settlements and reverse mortgages. Taking some time to understand what they are can help you make the right financial decision for your life.

What Is A Structured Settlement?

A structured settlement is a deferred payment obligation resulting from the settlement of a personal injury claim. In many cases these structured settlements are paid out over time. With a structured settlement, the payments are scheduled up front. This can provide a steady source of dependable and predictable income for the rest of your life. A structured settlement annuity issuer guarantees payments in terms of the structured settlement agreement to the injured party. The payment and schedule are fixed. The income from a fixed annuity is tax free, if the income is the result of personal physical injuries or a physical illness. With a structured settlement, a fixed annuity contract is issued by a life insurance company. The assets are invested in the insurance company’s general account.

What Is A Reverse Mortgage?

The most common type of reverse mortgage is a reverse annuity mortgage that was developed by HUD. You have to be 62 years of age or older. You also have to live in the home and must have the mortgage paid off with this type of program. The government is responsible to insure your mortgage. Reverse annuity mortgages have been created to help ageing citizens to be able to tap into the equity of their paid off home. Sometimes a homeowner can qualify if there is enough equity in the home, even if it is not completely paid off. With this type of reverse mortgage, the homeowner can receive a tax free payment each month. The mortgage is paid off when the home is latter sold. In some cases, the reverse mortgage funds can be paid to a qualified person in a lump sum. A qualified homeowner can also use the option of a line of credit. Generally the amount that you qualify for will be based on your age, the equity in your home, and the amount of the interest rate the lender charges.

Watch Out For Structured Settlement And Reverse Mortgage Scams

With both a structured settlement and a reverse mortgage, you should always beware of scams. When there is large amounts of money involved, there can be unscrupulous people who may take advantage of the elderly. Be sure to do your homework and search online for the best resources and information available to you. It’s best to retain an attorney for any type of financial decision you make to explain all the options and terms in regards to structured settlements and reverse mortgages.

PHYSICAL AND SEXUAL ASSAULT

noreply@blogger.com (shenty) — Wed, 21 Nov 2007 04:39:00 -0800

PHYSICAL AND SEXUAL ASSAULT
If you are physically or sexually assaulted by another person, you can bring a personal injury claim (civil action) against them to recover payment for your medical bills, lost wages, pain, suffering, and any other financial loss that you sustained as a result of the assault. A personal injury claim is separate from any criminal proceedings that may also be underway. The criminal court can find the other person guilty or not guilty and sentence them to prison; however, in the civil action, the judge or jury can order the other person to pay you money as compensation for your injuries and losses. You can bring a civil action even if the other person was found "not guilty" in the criminal court.

Many of the assault cases we have handled involve patrons of bars and clubs who are assaulted by "bouncers" or security personnel. In one such memorable case we represented a young man who was assaulted by two security employees who were employed by a bar in north Georgia. Our client was sprayed with Mace and then beaten. He immediately contacted the police who charged both bar employees with assault and battery. Even though a jury acquitted them on the criminal charges, we filed a civil suit against the bar and the two employees. After a trial a jury awarded a large sum to our client.

In another case our client, a long time patron of a large upscale department store in Atlanta, was followed to her car by store security personnel, in plain clothes. These employees accused her of shoplifting and demanded that she return to the store. They grabbed her and forced her back to the basement of the store where a female employee strip searched her. When it was determined that she had stolen nothing, she was told to leave the store. She called the police who arrested all of the security officers involved. Following a trial by jury she was awarded a seven figure verdict.

These assault cases take many forms. If you have been physically or sexually assaulted by someone, you should immediately seek legal advice

Expert Opinion in Serious Injury and Death Cases

noreply@blogger.com (shenty) — Wed, 21 Nov 2007 04:39:00 -0800

In serious injury and death cases our attorneys consistently face challenges from the defense to the testimony of our highly qualified expert witnesses. These challenges are based upon the rule of evidence known as the Daubert standard.

The Daubert standard is a legal precedent set in 1993 by the United States Supreme Court regarding the admissibility of expert scientific testimony during legal proceedings. In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges were instructed to evaluate expert witnesses to determine whether their testimony is both “relevant” and “reliable”.

A two-prong test of admissibility was established. The relevancy prong refers to whether or not the expert’s evidence fits the facts of the case. The relevancy requirement has always existed in the law.

The reliability prong was new. The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must derive his or her conclusions from the scientific method. The court then offered general observations of whether proffered evidence was based on scientific method including such things as empirical testing, peer review, the potential error rate, and whether the theory or technique is generally accepted by a relevant scientific community.

In practice, this standard has been burdensome, and grossly unfair to claimants in courtrooms. Trial judges are simply in no better position than juries to serve as “gatekeepers” to scientific evidence. In fact, many of these judges bring their own biases to their determinations. One example given is that under this standard, if Christopher Columbus were required to appear in a courtroom during his lifetime using the Daubert standard, his opinion that the world is round would have been inadmissible.

As part of the so-called Governor’s tort reform of 2005, the Daubert standard was adopted by the state legislature for use in Georgia. However, bowing to pressure from the Prosecuting Attorney’s of the state, who realized how gross unfairness of the Daubert standard, the governor and legislature exempted criminal cases from the Daubert standard. However, catering to the demands of the insurance industry and large corporations, the legislature adopted the Daubert standard for civil cases.

Currently pending before the Georgia Supreme Court is a case in which the Daubert standard is being challenged on constitutional grounds. An argument is being made that it denies equal protection to adopt the standard in civil cases and not in criminal cases. It will be very interesting to see how the Georgia Supreme Court handles this challenge, especially in light of the fact that in recent years, large insurance companies and corporations have thrown millions of dollars into the judicial races in attempts to elect candidates who will follow their agenda.

Asbestos Attorney - Legal Advice on Cancer and Mesothelioma Settlement

noreply@blogger.com (shenty) — Wed, 21 Nov 2007 04:32:00 -0800

It takes decades, somewhere between 20 to 30 years, before mesothelioma or any asbestos-related cancer develops. This is because it takes time before the asbestos fiber to really cause damage in the lungs, the abdominal cavity or any parts of the body where there is a large presence of asbestos fiber. Thus, people, usually men, who have worked in settings like shipyards, industrial plants and construction sites only find that they have cancer after ten or twenty years of waiting. Worst comes to worst, they do not even discover their sickness at all, until several days before they die.

Once you have contracted mesothelioma or any asbestos-related disease, it is best to seek professional advice on how to fairly compensate the damages, and injuries that you incur with regards to exposure. Normally, victims file for personal injury cases against the known person/s or company /ies who were instrumental in the exposure of the people involved.

For example, people who have worked in asbestos mines will almost always file a case against the company who owns the mines. However, this must be proven substantially and there should be strong evidences that leads to the name of the company or the body of people responsible for the injuries.

The investigation is quite tedious as the evidence goes back some decades ago and might even involve other people as witnesses. If there are strong claims and evidence then it is a great possibility of winning the case. But since the trial will be a very long and very expensive process, many parties opt for settlement. Thus, the majority of cases do not even reach the actual due process since they are already cut off at the very beginning of the trial with a mutually agreed settlement.

Of course, victims have their options in filing the case. They may choose to file it themselves with or without an attorney, file the case as a group or file an individual case through an attorney. The best option, obviously, is to file a mesothelioma or asbestos cancer case with a reputable attorney or as a group with the backing of an attorney. Lawyers, of course, are learned in the system of the law and they are the once who can bring to the court the victim's case.

Also, remember that the field of law is a complex system where only experts can maneuver. It is also subject to continuous change. For example, some companies are protected by the courts against individual asbestos or mesothelioma claims. It is only inevitable for one to find a lawyer who would work the victim's case.

And in the case of personal injury attorneys, they will file the case and go into the trial or settlement without the victim having to spend any out-of-pocket expenses. Personal injury attorneys, as some of you know, only get their stipend through a contingency basis.

If you want to know your best options, it is advisable to immediately raise your case with a reputable personal case injury attorney or firm who will maximize the possibility of rendering you a fair compensation, either through a complete trial or through settlement.

If you opt for trial, expect several months of constant court hearings where every hearing is a different story. If you think you can't handle this form of stress, it is best to talk with your attorney of the possibility of settlement.

If you choose to have a settlement however, you may have a lower chance of losing. Take note that some companies who have previous cases of asbestos-related claims are more experienced in winning (and sometimes) losing their trials. This is why it is best to know what are the possibilities of both losing and winning the case. The amount of settlement is often as much as those that might come out at the end of a full trial. But considering everything that is saved from not continuing the court trials, for example the expense on research, the settlement is substantially worth it. Besides, personal injury claims normally have high settlement rates.

Before you take your personal action, the best thing you could do initially is to research for a lawyer who really makes strong cases. This is because of the qualifications for the value of settlement includes the reputation of the lawyer. After which, decide how you want things to end, do you want a settlement or a full trial?

Is selling a structured settlement a good investment

noreply@blogger.com (shenty) — Tue, 20 Nov 2007 08:31:00 -0800

Don’t be overwhelmed in your search for en language sell settlement structured . best offer sell my structured settlement payments or selling structured settlement sellingstructuredsettlement can help you, and we have an abundance of related information on our website. Our information and resources has been gathered especially for people who need en language sell settlement structured . You don’t have to this alone; let us help you.

Before one decides to sell his structured settlement for another investment opportunity; it is worthwhile to consider the pros and cons of such an action. The most important advantages of structured settlements include regular payments that are free from income tax and are secured by state and federal laws. This cannot be said of many other investment options. Structured settlements can also be invested in government schemes that may offer low returns but are guaranteed.

The main reason for an individual opting for another investment vehicle is the apparent high returns from that investment option. These options include stocks and real estate. One should compare the pre-tax income from an alternative investment source to that from a structured settlement. Also, the process of selling a structured settlement involves a cost. This is because the amount of settlement payment sold is more than the lump sum obtained. This cost should be factored and compared to the returns from another investment.

An important advantage of a structured settlement is that the individual is not required to manage the settlement payments. No taxes mean freedom from keeping abreast of tax laws. With any other form of investment, a person has to first be confident enough of managing his own investment portfolio and control his finances.

If one has the necessary experience and skills to run a business, lump sum obtained from the sale of a structured settlement can be used as capital. However, since the amount obtained is less than the value of the settlements sold, one should ideally try and sell as little of the structured settlement as possible. The assurance of regular income as guaranteed by a structured settlement should be traded for another investment option only after due consultation with an attorney. In fact, legal advice on the sale of structured settlement is a pre-requisite in several states in America.

One advantage that other investment options offer is the freedom of managing one¡¯s own money; this can be of use to those who are into financial trading and have their fingers on the market pulse. With ready cash in their hand, they can invest immediately when opportunity presents itself.

THE WCAB EN BANC IN COSTA 2

noreply@blogger.com (shenty) — Sat, 17 Nov 2007 23:21:00 -0800

A unanimous California Workers Compensation Appeals Board has issued its decision in Joey Costa vs. Hardy Diagnostic and State Compensation Insurance Fund.

Here's the link to the decision:
http://www.dir.ca.gov/WCAB/EnBancdecisi ... 7-EB-8.pdf

The decision (Costa "2") affirms the right of applicant attorneys to use vocational experts/labor market experts to rebut the permanent disability rating schedule.

But who will pay for the cost of a rebuttal expert?

The WCAB has determined that the costs must be bourne by the defendant although the board will look at the reasonableness of the costs on a case by case basis. Referencing Labor Code Section 5811, the WCAB found support in the case law for allocating these costs to the insurer. However, the costs must be reasonable and necessary at the time they are incurred.

The WCAB noted that one of the few parts of the Labor Code left intact in the 2004 SB 899 reforms was language which historically had been used to justify admission of evidence to rebut the rating schedule.

Costa 2 takes on added importance for workers because of the low disability ratings under the permanent disability rating schedule adopted in 2005. Not every low rating will be subject to rebuttal, however.

For example, some workers who have returned to work may not have sufficient diminished earning capacity to justify this approach. And the time and expense of the process makes it impractical to do this in every case. In many parts of the state the pool of vocational experts has shrunk along with the demise of the vocational rehab benefit.

Claimants without a lawyer will be unable to evaluate whether this approach is suitable (or even possible) for their cases. It will be interesting to see what advice the Information and Assistance Officers give on this point.

And there may be some resistance from some judges since the use of DFEC rebuttal testimony can result in time consuming testimony.

Will Costa 2 make the insurance industry long for the pre-2005 rating system? No. But will it spur action for a meaningful revision of the PD rating system? Maybe.

Stay tuned. You can subscribe to the blog by using the RSS buttons at the lower left hand side bar.

Excessive Attorney Fees

noreply@blogger.com (shenty) — Thu, 15 Nov 2007 05:41:00 -0800

Every six months or so they added more charges to our mortgage, such as drive-by property preservation and attorney fees for sending me a letter to say I was late in payment," Kelly adds. "I got a letter from Chase saying that we had to pay $4,688 by the end of 2004 or they would foreclose on our home. That year we missed Christmas, we missed everything to scramble enough money together.

"On January 3rd I received a letter from Chase saying our mortgage had been sold to EMC—right after making that payment. That meant I just sent this money to them for nothing. When I finally got a print-out of our mortgage history from EMC, there was $1,255 carried over that "But they didn't foreclose; instead they sold our mortgage so what was this money going toward?"

Chase told Kelly that it went to their legal fees--not one cent was reflected in their mortgage. "By the middle of January, 2005 I finally spoke with someone at Chase in their customer service department," says Kelly. "They gave me no information because the loan no longer existed. I asked to speak with their legal department but I was told to formally write them with our account number and question. Which we did. I got a letter back saying the loan number did not exist.

The account number I wrote was not a typo. I just cried. Chase had no information because they sold our loan and I didn't have money for an attorney because I had spent all our money trying to keep our home.

We just refinanced with our local bank; we didn't know that the mortgage had been sold to EMC until two weeks after the fact.

And we just paid EMC lawyers $7,000 because they were going to foreclose on our house. What were their attorneys doing for that fee? On our EMC history, I have a list of attorney fees more than two years old, with charges from $7.95 to $145 (the description on each charge just says attorney' fees) and every now and then $227 is added. We never knew about these fees until we refinanced with our bank. Our principal balance was $22,700 and we had to finance $35,000-- that included Escrow and the $7,000 in attorney fees. We came so close to losing our house from these predators - unbelievable..."

Unfortunately for many borrowers, excessive attorney fees in connection with house sales and foreclosures in particular are becoming common practice. Companies like Mortgage Electronics Registration Systems, Inc., (MERS) charge borrowers more than it pays foreclosure attorneys and borrowers may not even realize they are being charged these "hidden costs".

Buyer beware--read the fine print and ask questions. And you may want to seek legal help. Keep in mind that all attorneys such as those working in connection with companies such as MERS may be unaware that the consumer is being charged excessive fees.

Common Defenses to Criminal Charges

noreply@blogger.com (shenty) — Wed, 14 Nov 2007 22:40:00 -0800

Here are a handful of ways in which a defendant might get off the hook.

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. A defendant may mount a defense by remaining silent, not presenting any witnesses and arguing that the prosecutor failed to prove his or her case. Frequently, this is the best and strongest way to proceed. But there are many other types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing."

The Presumption of Innocence
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.

Proving Guilt "Beyond a Reasonable Doubt"
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in non-criminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- anything over 50%.) As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
Sometimes, however, a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.

Self-Defense
Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon or murder. The defendant admits that she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:

Who was the aggressor?

Was the defendant's belief that self-defense was necessary a reasonable one?

If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that she is about to be physically attacked, she has the right to strike first and prevent the attack. But she cannot use more force than is reasonable -- if she does, she may be guilty of a crime.

The Insanity Defense
The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.
Despite its ancient origins (England, 1505), the insanity defense remains controversial. Victim-oriented critics point out that a person killed by an insane person is just as dead as a person killed by someone who is sane, and argue that people should be punished for the harm they cause, regardless of their mental state. Critics also question the ability of psychiatrists, judges and jurors to determine whether a person genuinely suffers from a mental disorder, and to link mental disorders to the commission of crimes.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." And when they do, judges and jurors rarely uphold it.

Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he cannot control his actions (he's described as acting out of an "irresistible impulse").

Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.

An insanity defense normally rests on the testimony of a psychiatrist, who testifies for the defendant after examining him and his past history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.

Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution//. This can be a very painful and humiliating experience, one that many defendants choose to forego rather than rely on the insanity defense.

The Influence of Drugs or Alcohol
Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.
Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.

The Alibi Defense
An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.
Alibi is a perfectly respectable legal defense. Yet to some people the term connotes a phony defense. Defense attorneys usually are careful to remind jurors that alibi is simply a legal term referring to evidence that a defendant was elsewhere at the time a crime was committed, and that it in no way suggests falsity.

Entrapment
Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

Arizona tax attorney

noreply@blogger.com (shenty) — Wed, 14 Nov 2007 22:36:00 -0800

The Arizona tax attorneys are always available to answer the queries of the taxpayers who are bugged with the disputes over their annual taxes. Here are among the common questions posed by the taxpayers as they get the chance to confer with the Arizona tax attorneys.

What is common the things to happen in the event of an unfiled tax return?

Unfiled tax returns only signify one thing-and that is being in real trouble with the Internal Revenue Service. If for example you owe IRS some taxes for about ten years, then they will compute it all. They will try their level best to reach you through your old address. If in this event you have moved out of the country and once you come back, IRS will go after you demanding your dues for your taxes in the entire year of your absence.

When such case arises, you know one thing for sure. You know that you can be condemned for tax evasion. This is a crime which is punishable by the law. IRS will be very religious in sending you reminders. At one point, these reminders will become unfriendly and you will just be shocked to receive a Notice of Intent to Levy all your wages and assets.

Does it mean trouble for the unfiled tax returns that date way back?

It is in fact very much complicated if your unfiled tax returns trace to at least six years backwards. It is so because the files are kept in storage and it will need enough concerted effort to locate those records. An agent will need to browse through all of the kept files to be able to gather them all. You can just imagine how difficult it could be if your unfiled tax returns date back to some more years back in time.
What is meant by wage garnishment?
With the term wage garnishment, it means that a levy is imposed in another method. This method is concerned with the manner of collecting the back taxes which a taxpayer owes the IRS. With regards to the IRS attacks, the words levy and garnishment mean the same thing. The typical targets of the garnishment are your bank accounts and wages but the rule may also apply to the seizure of your furniture, equipment, your home, your vehicles, and your other valued possessions.

Is any bank permitted to turn over an account to IRS without the concerned party's consent?

When IRS imposes a levy on your account in the bank, your bank is legally bound to turn over whatever amount is in your existing account. It does not regard the fact as to whether it is your own money or not or where you got your money. Keeping those monies in your own account is enough justification. Most people keep direct deposits for the Social Security, pensions, child support, and many others but then the IRS does not consume time to locate the source of the money. At the time when the money gets deposited in an account which is under your name, it automatically loses its own identity.

When will these levies on the bank account be stopped?

In comparison with the wage garnishment, a levy in your bank account will only happen once. Meaning, the next batch of money that gets deposited in your account will solely be yours again.

how to select a divorce lawyer

noreply@blogger.com (shenty) — Mon, 12 Nov 2007 23:23:00 -0800

Selecting a divorce lawyer to handle your family law case is a very important decision. The following are a few important criteria to help in finding the right divorce lawyer.

Experience and Focus

Any divorce lawyer you consider should have substantial experience in handling divorce cases in your location. An experienced divorce lawyer will know the tendencies of the various judges in your jurisdiction and should be able to use this knowledge to your advantage. Additionally, that lawyer should practice primarily in the field of divorce law. Often people will hire a lawyer who practices primarily in some other area, thinking that any lawyer will do. However, divorce law is a very specialized field that requires particular skills and experience in order to have a likelihood of reaching a successful conclusion.

Past Client Testimonials

Perhaps the best way to decide which divorce lawyer to use for your divorce case is to find out what former clients have to say about that lawyer. While divorce is never an enjoyable process, some divorce lawyers have more success at satisfying their clients than others. If you do not know someone who has been a client of that particular divorce lawyer, you should consider asking the lawyer for a list of clients that you can contact who can describe their experience with the lawyer. While client confidentiality is important, any good experienced divorce lawyer should have at least a few former clients who are willing to vouch for him or her.

Accessible

When a client becomes dissatisfied with a divorce lawyer, one of the most common complaints is that they were unable to communicate with the lawyer. It is very important that your divorce lawyer be accessible and prompt in responding to your phone calls, emails, and requests for meetings. While you can ask the divorce lawyer about their office policy, this is another area where you can best evaluate the divorce lawyer by hearing what former clients have to say.

If a former client of the lawyer tells you that they found it very difficult to contact the attorney, or that the lawyer either did not return calls or respond to emails or would take several days to do so, you should definitely avoid that lawyer. Divorce is an unpleasant and frustrating process under the best of circumstances. If you are unable to reach your divorce attorney, or at least someone on his or her staff, the frustration level can increase exponentially.

Fees

When you make your initial appointment with the divorce attorney, you should inquire about a consultation fee. Some lawyers do brief initial consultations for free, although most experienced divorce lawyers will charge between $100.00 and $200.00 as a consultation fee, or will charge their normal hourly rate.

For example, I charge a flat $100.00 consultation fee with no additional hourly charges, regardless of the length of the meeting. Essentially, the consultation fee is to "weed out" those people who are not serious about the possibility of hiring me. Given that my normal hourly rate is $200.00/hour and the usual typical consultation takes about 90 minutes, the charge for my consultation is significantly discounted. Therefore, you shouldn't let a consultation fee scare you away from interviewing a particular lawyer.

During the consultation it is vitally important that you have a candid discussion with the prospective divorce lawyer about fees and what you can expect. Typically, an experienced divorce lawyer will require the payment of a substantial retainer up front, against which that lawyer's hourly rate and expenses will be charged. You should find out what that lawyer's hourly rate is, what the up front retainer will be, whether any portion of the retainer is refundable if it is not exhausted, and how often you can expect to receive invoices that detail their hourly charges and expenses. You also will want to know how detailed the invoices are. Once again, this is another area where you can get excellent information from those people who have been clients of that divorce lawyer.

Comfortable

While all the above issues are important, there is one final question you should ask yourself before hiring a divorce lawyer. Are you comfortable with that lawyer and are you confident in his or her abilities? If the answer is anything other than a resounding "yes," you should keep looking. Your case is too important to entrust to someone who does not inspire your confidence.

26 unbreakable rules of Litigation

noreply@blogger.com (shenty) — Mon, 12 Nov 2007 23:21:00 -0800

From Bill Gates at the end of the last century to John D. Rockefeller at the end of the previous century; from Rick Scott, founder of Columbia Health Care, to AT&T: from Richard Branson and British Airlines to Dan Peña and The Financial Times; from government, banking, insurance and every other facet of world commerce - to grow geometrically and stay around, litigation must be (prudently) used and mastered.

I will, as briefly as I can, memorialize the salient points of using litigation as a business tool.

Now before I start, I want it on the record, some 50% of my 30-year track record of litigation has had nothing to do with winning money, i.e., many lawsuits have been over principle, some were to right a heinous wrong such as slanderous remarks made about me; and some were because an entity just needed a good comeuppance and nobody else would carry the flag into battle.

I, like Don Quixote, have fought many a windmill.
As you've heard me speak and write about, when building your 'Dream Team,' you want Big Five accountants and a large national or international firm of lawyers - the best representation you can't afford!
Unlike the success-oriented fees I coach you to use when facilitating transactions, no law firm will litigate initially on this basis.
Perhaps if your case is especially strong, they will do it on a contingency basis. Unfortunately, you will be using, from time-to-time, litigation as a positioning tool and your case may not be something you can seriously leverage.
A year or two ago, being left with a pig-in-a-poke, I had to litigate a case having specious facts at best to support my desired outcome. Fortunately, our (my) apparent lust for litigation was stronger than their desire to fight a hard fight, so a reasonably good settlement was finally arrived at.

Of course, during this process my good lawyers counseled us, advising our case needed to be much stronger, etc. Even with great lawyers, it is their job to tell you the downside risks. Again, what happens is you are often scared from pursuing your case.
Good lawyers win so-so lawsuits. Great lawyers can win lawsuits in which you have little or no chance to win.
Three of my favorite litigators over the years are Steve Susman and Cyrus Marter IV of Susman Godfrey in Houston, Dallas, Los Angeles and Seattle and Tim Harris of Charleston Revich & Williams in Los Angeles. All three have dug me out of some pretty big black holes.
I've dealt with them 10 and 20 years respectively. They are worth every penny they charge!

Our judicial system works, but we grow up being afraid of it. It's way out of our comfort zone so we preclude ourselves from benefitting from it. Normally the cost associated with it keeps us from using it.
In fact, I'm currently embroiled in litigation where the ancillary players to the litigation have rights which are being severely violated. A large group of people could bring great pressure to bear, but they're afraid because of previous bad experiences. They could get what they deserve but aren't pursuing their best interests.

There are lawyers who take on cases for humanitarian reasons, if the case warrants, in business as well, i.e., big major corporations taking advantage of the system because of their size alone.

Why do you want to initiate the lawsuit so you are the plaintiff? As the plaintiff, you pick where and when the lawsuit is fought and probably ultimately adjudicated.

This can be a huge advantage. And secondly, the plaintiff is allowed two closing arguments, meaning you (your lawyer) gets to address the judge and/or jury once and then again after the defendants' closing argument. This can also be very important.

26 Unbreakable Rules of Litigation

#1 CHOOSE YOUR BATTLES

#2 CHOOSE THE VENUE

#3 BE THE PLAINTIFF

#4 HAVE THE BEST REPRESENTATION

#5 LISTEN TO YOUR HEART

#6 DON'T LISTEN TO YOUR SICK STOMACH WHEN YOU'RE OUT OF YOUR COMFORT ZONE

#7 DON'T LISTEN TO RELATIVES, FRIENDS, ET AL

#8 LISTEN TO EXPERIENCED LITIGANTS - LIKE ME!

#9 GENERALLY SPEAKING, DON'T WORRY ABOUT THE COST (THIS IS VERY HARD!)

#10 BIG LAWSUITS ARE BETTER THAN SMALL ONES

#11 ELECT JURY TRIALS, AS OPPOSED TO A JUDGE ONLY

#12 PREPARATION (YOURS) IS EVERYTHING - KNOW THE FACTS

#13 PRACTICE DEPOSITIONS AND TRIALS

#14 IF YOU ARE THINKING OF A BETTER STRATEGY, GET A NEW LAWYER (NOT TRUE IN MY CASE)

#15 NEVER GIVE UP

#16 DON'T BE INTIMIDATED BY THE PROCESS

#17 USE MOCK TRIALS (PRETEND TRIALS YOU DO IN FRONT OF A HIRED JURY)

#18 DRESS SIMPLE AND CONSERVATIVELY IN COURT - NO JEWELRY EXCEPT A WEDDING BAND; WHITE SHIRT, PLAIN TIE AND DARK SUIT FOR MEN AND THE EQUIVALENT FOR WOMEN; SHORT GROOMED HAIR FOR MEN

#19 DON'T LOSE YOUR TEMPER IN COURT - IT'S OKAY TO CRY IF IT'S REAL

#20 HAVE YOUR SPOUSE IN THE FRONT ROW EVERY DAY. CHILDREN ALSO IF POSSIBLE. OTHER FAMILY MEMBERS IN SECOND ROW IS OKAY

#21 NO QUOTES TO THE PRESS OTHER THAN 'WE BELIEVE IN OUR CASE AND THAT IS WHY WE WENT TO COURT'. YOUR WORDS CAN EASILY BE TURNED AROUND.

#22 WHEN YOU BREAK FOR LUNCH OR A RECESS, REMEMBER NEVER TALK IN PUBLIC ABOUT THE CASE - YOU NEVER KNOW WHO MIGHT OVERHEAR

#23 WHEN YOU FIND A LEGAL TEAM THAT WINS, STAY WITH THEM

#24 ALWAYS TELL THE TRUTH, NO MATTER WHAT. THE TRUTH SHALL SET YOU FREE.

#25 DURING VIDEOTAPED DEPOSITIONS AND IN COURT, LOOK AT THE CAMERA AND THE JURY. MAKE EYE CONTACT.

#26 WHEN TESTIFYING IN A DEPOSITION/TRIAL, IF YOU DON'T KNOW THE ANSWER, SAY YOU DON'T KNOW THE ANSWER

It's a closed world of top litigators. Virtually all big law firms have good to super-good lawyers. All big law firms don't have great litigators. You don't always need a great lawyer, but sometime if you grow geometrically, you will.
Like any other project management, litigation must be managed. Unfortunately, like speech-giving, you become a great litigant by going through a learning curve.
I don't mean you have to get involved in losing efforts (like making bad speeches so after some time you make good speeches) to get in a position to win in court. Large law firms will allow you to get ahead of the learning curve.

The Quantum Leap methodology talks ad nauseam about following your dreams. Life without dreams is like a bird with a broken wing - it can't fly. I wrote this newsletter because sometimes you'll need litigation to follow your dream.
Go out and kick some butt, and don't let conventional wisdom keep you from achieving your dream.

Conventional wisdom says Don't Litigate.
All high-performance people and the great organizations of the last one hundred years did and do litigate as I write this letter.
Don't litigate frivolously - but don't be afraid to either.

Attorney General McGraw Settlement

noreply@blogger.com (shenty) — Mon, 12 Nov 2007 01:11:00 -0800

Attorney General McGraw Reaches Settlement with Four Debt Relief Companies for 366 Consumers

Attorney General Darrell McGraw announced settlement agreements with four debt relief companies that brought to an end their controversial practice of "debt settlement" services in West Virginia. The companies, Debt Relief of America, L.P., of Dallas, Texas; Fidelity Debt Consultants, Inc. of Clearwater, Florida; David Huffman d/b/a Freedom Group of San Diego, California; and New Horizons Debt Relief of Aliso Viejo, California, agreed to permanently discontinue debt settlement and any other kinds of debt relief services in West Virginia. They also agreed to refund all fees and charges that they collected which, collectively, will result in refunds of approximately $517,000 in fees and charges for 366 West Virginia consumers.

Debt Relief of America and Fidelity Debt Consultants had the bulk of the accounts in West Virginia, servicing all but a few of the affected consumers. In contrast, New Horizons and Freedom Group serviced only three consumers combined and accounted for $4,285.86 and $7,000, respectively, of the $517,000 owed to West Virginia consumers.

Debt settlement is a plan or strategy offered for a fee in which consumers are advised or expected to stop making payments to credit card banks or other unsecured creditors. The consumers are directed to make monthly payments to the debt settlement company or into a separate fund or account for an unspecified time until the debt settlement company determines that sufficient funds have been accumulated. The company then attempts to negotiate lump sum settlements of the consumers’ accounts for less than the balance owed.

For the rest of this article please feel free to visit www.wvago.gov.

who needs a criminal attorney

noreply@blogger.com (shenty) — Mon, 12 Nov 2007 01:05:00 -0800

The fact is that in day-to-day life we are facing continued and hidden dangers that can happen at any time. In case we encounter any danger by a person that we have to use force against the person for self-defense or protect somebody else, we might face criminal charge. At this point, a criminal defense attorney's job starts. For him, it does not matter who you are and what you have done. He tries to prove to the jury or judge that you had to use force against the other person for self-defense. In fact a criminal defense attorney must show the judge that you were in danger of possible physical hurt and you had use that amount of force to prevent the hurt. It is a criminal defense attorney's job to prove that the force against you was not legal and you were unaware of that. If you are under attack, even by close relatives, and begging, pleading, and crying may not get you out of the grip, then you may use force to defend yourself. There are many cases that women are under attack by their husbands and for self-defense purpose they kill their husbands. But these women should take into consideration the fact that there are serious questions that they should answer in order to prove that the force used by them was a self-defense otherwise they will face serious charges with irrecoverable consequences. For example they might be questioned why did not they leave husband and live with a relative or friend before the incident? Or why did not they file for divorce? Here, your criminal defense attorney prepares you to answer these types of questions. Generally, depending on the case and conditions, a criminal defense attorney prepares a series of questions that might be asked by jury or judge and then he tries to find answers to those questions. The answers should convince the judge that you were in a situation of physical harm and therefore to avoid the harm, you used a certain amount of force, in which your criminal defense attorney tries to prove the amount of force was reasonable. To summarize what we have discussed, if you are accused of a crime, then you need to hire a criminal defense attorney to represent you and prove to the jury or judge that the force you used was necessary and reasonable

what a criminal attorney do

noreply@blogger.com (shenty) — Mon, 12 Nov 2007 01:03:00 -0800

A criminal attorney basically represents someone accused of a crime in court. Let me give you a little background before explaining what it is exactly that a criminal attorney does. Sometimes the law allows a person to use physical force against another, whether it is in self-defense or the protection of another, or even to protect one's property, these are all acceptable uses of self-defense. You and your criminal defense attorney are going to have to show at least four instances of why you had to defend yourself in such an extreme way. Your attorney will have to show the judge or jury that (1) your confrontation was unprovoked by you, (2) that you were in immediate danger of bodily harm, (3) that your use of force was necessary in preventing that harm, and (4) that the amount of force you used was reasonable.
If you were in a position where you had to defend yourself against an attack from someone you think meant you bodily harm, it is up to your criminal attorney to prove that you had a reasonable belief the actions you used to defend yourself were necessary and just to prevent either your own death, the death of another, or serious bodily harm. The force used against you must be unlawful or improper, and directed toward you without your consent.

Battered Wife Syndrome is a good example of self-defense. This defense is when a women has been subjected to physical and mental abuse continually by their husbands or significant others. Courts may find this case somewhat confusing because in most cases, women who kill their husbands also planned to kill them. If this is your situation, then your criminal attorney will have to prove to a jury or judge that under circumstances such as these, you had two choices--You can wait until your husband finally kills you or, kill your husband before he gets the opportunity to kill you. In this case, it will be up to the state prosecutor to prove beyond a reasonable doubt that killing your husband was not the only way out. For example: Why didn't you just leave your husband and go stay with a friend or relative and file for divorce? Or, you could have gotten a court order to restrict your husband from approaching you within so many feet. If Battered Wife Syndrome is your defense, then your criminal attorney will prepare you for this type of questioning.

What does a criminal attorney do? The answer to that is, a lot. They will fight for your defense because he or she believes in your innocence and constitutional rights, no matter what you have done. If you were charged with a serious crime in the past, but today you are sleeping in your own soft bed and not a concrete slab, you have your criminal defense attorney to thank.

Merck to Pay $4.85 Billion Vioxx Settlement

noreply@blogger.com (shenty) — Sat, 10 Nov 2007 07:21:00 -0800

Company officials estimated the deal, if accepted, would end 45,000 to 50,000 personal injury lawsuits involving U.S. Vioxx users who suffered a heart attack or ischemic stroke, the type in which blood flow to the brain is blocked.

Without this settlement, the litigation might very well stretch on for years," Merck executive vice president Kenneth Frazier said during a conference call.

He called the agreement "responsible and reasonable" and allows Merck to better quantify its liability, once estimated as high as $50 billion.

Negotiating teams met more than 50 times in eight states and spoke hundreds of times by telephone over many months to hammer out the deal, according to attorneys.

"I'm very happy with it," said Chris Seeger, one of the six plaintiff lawyers who helped negotiate the settlement. "It's a tremendous way to resolve this litigation."
Merck pulled Vioxx from the market Sept. 30, 2004 after its researchers determined the blockbuster arthritis treatment, then pulling in about $2.5 billion a year, doubled risk of heart attacks and strokes.

To qualify for a settlement, plaintiffs must have filed claims by Thursday and meet several criteria, including medical proof that they suffered a heart attack or stroke, that they received at least 30 Vioxx pills and that they received enough pills to support a presumption that they were ingested within two weeks before injury.

That is a big concession by Merck, which has long claimed that Vioxx caused harm only after 18 months of use. Those claims were dismissed by independent scientists and plaintiffs lawyers.Merck stressed that the agreement is not a class action settlement and that it is not admitting fault.

Company executives and attorneys said as recently as last month that every case would be fought individually.But on Friday, they said several factors made this "the right time" for the deal, including the expiration of the statute of limitations in 42 states.

Merck said it will take a pretax charge for the full $4.85 billion in the current quarter. It would not say whether insurance will cover any of that, but said much of the charge will be tax deductible.
Analyst Steve Brozak of WBB Securities called Merck's handling of the litigation "a Harvard casebook study of how to deal with a problematic product."

Investors seemed to agree, as Merck shares ended up $1.13, or 2.1 percent, to $55.90 -- trading near their 52-week high of $58.36.
After losing its first case in a $253 million verdict that was later sharply reduced, Merck has won a string of civil cases. It has won 10 of 15 court verdicts to date. Some of those cases will be excluded from the settlement, but appeals in others continue.

The company said last month it had added $70 million to its reserves for defending lawsuits. As of Sept. 30, Merck had reserved a total of $1.92 billion for legal expenses and spent a total of $1.2 billion.

The deal becomes binding only if 85 percent of the plaintiffs in key categories agree to the deal: all pending heart attack and ischmic stroke cases, all cases involving deaths and all cases alleging more than 12 months of Vioxx use.

"I'm not in the least bit of doubt that we'll do it," said Russ Herman, a New Orleans attorney who served as chairman of the plaintiffs negotiating committee. "This was a really, really tough litigation for both sides; this way you have some certainty."

The deal was finalized in the early morning hours after attorneys for Merck and the plaintiffs met with three of the four judges overseeing nearly all Vioxx claims.

Seeger said the deal was put in motion last December when three key judges pushed the parties to open out-of-court talks.

"Every claimant is going to be compensated" once their claim is validated, he said.

Seeger said this deal is larger that the original settlement in cross-state rival Wyeth's diet drug litigation, which was $3.75 billion initially but ballooned past $20 billion with repeated revisions.

Merck lawyers said they had closely scrutinized that and other cases to find ways to ensure that its settlement does not exceed the $4.85 billion, of which $4 billion will go to heart attack claimants and the rest to stroke claimants.

Among other things, potential claimants will have to have prior medical documentation of a heart attack or stroke, and they will not be able to later opt out of the settlement. Also, all law firms involved in the "steering committees" directing pretrial discovery and other coordination of both state and federal cases must get every one of their clients to settle.

Payments would vary, depending on severity of injuries, length of time that Vioxx was used and each person's risk factors for cardiovascular disease. A complex system would assign points to each claimant. Payments could start as early as August 2008.

Lawyers fees are to come out of the $4.85 billion fund, based on the percentage in their contingency agreements with clients; additional fees will go to the law firms that together amassed more than 50 million pages of documents for use by all plaintiffs' lawyers.

Attorneys for both sides presented the deal Friday morning to U.S. District Judge Eldon E. Fallon in New Orleans.

A total of about 60,000 personal injury cases have been filed, including thousands on hold under agreements suspending the statute of limitations, plus about 265 potential class action cases, some of which allege shareholder losses.

The deal does not include people in foreign countries, any with different injuries, any with stock-related claims or a group with no evident injuries that is suing for Merck to pay for medical monitoring.