ON THE RIGHT SIDE OF THE LAW

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.


DOING WHAT IS BEST FOR CHILDREN OF DIVORCE

Amidst the contentiousness that often surrounds divorcing couples, the non-custodial parent may feel that he or she has a legitimate concern that the money paid for child support is not being spent with the best interests of the child in mind. Or, there may be worry that the custodial parent is not raising the child in a generally acceptable manner. Although the court does not usually involve itself in what may be regarded as family arguments regarding the upbringing of a child, it will become involved if it can be shown that the custodial parent’s conduct is contrary to the best interests of the child. The burden of proof in such matters rests with the non-custodial parent.

HINT: Because lawmakers have come to realize that visitation rights do not translate easily into laws, parents may be left to define reasonable visitation standards for grandparents and others.


REDRESSING WRONGS

“Common law,” the ancient law that England handed down to us, holds every person responsible for his or her wrongdoing. Also known as “case law” or “precedent,” it was developed by judges through court decisions. It provides a person whose rights are violated in such a way that the violation causes injury to a person and his or her property with a way to remedy the violation, either by entering into a mutually agreed upon settlement or by bringing a lawsuit against the person who caused the damage. Victims can recover damages for harms caused by negligence, intentional acts, or products and goods that have entered the marketplace. Victims of wrongdoing have a way to be made whole again.

HINT: “Civil law,” a legal system that originated in Europe, is based on late Roman law whose core principles are codified into a referable system that serves as the primary source of law.


STANDING GUARD

While minors are generally protected and cared for by their parents, there are times where a child may need a separate individual to attend to their legal rights because the minor has inherited assets or no longer has a parent qualified to make legal decisions on his or her behalf. In these cases, a guardian may be appointed (through the court or through a will) to take care of the child and/or his or her assets. In some cases, the natural parent may care for the child, but a guardian might be appointed to handle his or her property. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents.

HINT: A guardianship may be terminated when the child reaches the age of majority; a judge determines that a guardianship is no longer necessary or beneficial; or the guardianship’s sole purpose was to manage the child’s finances, which are exhausted.


ONE OR THE OTHER, OR BOTH

Generally speaking, criminal law is separate from civil law. While the former is designed to maintain peace and security among the general public, and those guilty of violating criminal laws are punished by society, the latter regulates relationships between individuals, families, and corporations, and successful legal action usually results in monetary remedies. Yet, there are instances in which criminal and civil law intersect. For instance, those charged with assault and battery will likely be criminally charged. At the same time, attacking an individual may be a “tort” (wrongdoing) that may ultimately involve payment of personal injury damages to the victim. Even if an injurious action involves criminal arrest, those suffering injury due to another’s wrongdoing should consult with an attorney.

HINT: While prosecutors must prove their cases “beyond a reasonable doubt,” lawyers for plaintiffs in civil cases need only show by a “preponderance of the evidence” (anything greater than 50 percent) that defendants are responsible.


AGE DISCRIMINATION

In recent years, an aging workforce and downsizing spurred by the recession have led to an increase in the number of people who have filed complaints under the Age Discrimination in Employment Act with the Equal Employment Opportunity Commission (EEOC). Federal law protects workers and job applicants aged 40 and older from age-based discrimination in decisions related to hiring, firing, layoffs, pay, benefits, promotions, and other conditions of employment at companies with more than 20 employees. Anyone who suspects that he or she has been discriminated against on the basis of age must prove that a company did not have a legitimate business reason to fire him or her. An experienced attorney can help make the case.

HINT: If after six months the EEOC does not reach a conclusion as to whether a person has a reasonable cause to charge age discrimination, the aggrieved party can ask for a right-to-sue letter from the agency and proceed with a lawsuit if so desired.


WHO IS RESPONSIBLE?

The notion of liability revolves around the simple fact that most accidents happen because someone was careless or negligent. As far as carelessness is concerned, 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 those who might be considered careless in what they do (or how they maintain their property) may not necessarily be liable to someone injured by their carelessness. The law says there is no duty to be careful toward those who put themselves where they are not supposed to be. For instance, those who disregard warnings to stay away from unsafe areas may not hold others liable for their injuries.

HINT: The “assumption of risk” defense seeks to lead the court to determine that the injured party engaged in a dangerous activity and find that he or she assumed the risks associated with the dangerous activity and is therefore responsible for the injury.


CONTEMPTUOUS BEHAVIOR

When a judge believes that someone is being disobedient or disrespectful toward the court, that person may be declared to be “in contempt of court.” Criminal contempt occurs when the defiant person (contemnor) actually interferes with the ability of the court to function properly, as in making an outburst. This type of contempt, called “direct” because it occurs directly in front of the judge, is punishable by a fine, jailing, or both. Civil contempt occurs when the contemnor willfully disobeys a court order. Known as “indirect” contempt because it occurs outside of the judge’s immediate proximity, this type of contempt requires that evidence of it be provided to the judge in order that it might be proven.

HINT: While civil contempt does not need to be proven beyond a reasonable doubt, criminal contempt charges must be proven beyond a reasonable doubt.


COMPENSATORY DAMAGES

 “Special damages” are awarded to compensate a victim for measurable monetary losses, while “general damages” are awarded for intangible losses.  These may include loss of reputation, loss of companionship, or emotional pain and suffering. Although these injury-related losses cannot be easily assigned dollar values, money is the only way in which these losses can be compensated, thus they must be figured in with general damages. There is no restriction on the types of non-monetary losses that can increase the general damages sought by injury victims. Both general damages and special damages in a personal injury lawsuit are included under the broader category of “compensatory damages,” which are damages awards that are intended to compensate the victim, not punish the defendant.

HINT: Special damages may include lost wages or earnings, loss of irreplaceable items, costs associated with the replacement or repair of damaged property, and costs associated with medical expenses (such as hospital or medication bills).


COMPENSATION FOR WORK-RELATED INJURY

Those injured in the course of employment are entitled to compensation for lost wages and medical costs. In return for this form of insurance, known as “workers’ compensation,” injured workers relinquish their right to sue their employers. If, for any reason, an accident is not covered by workers’ compensation insurance (for instance, due to independent contractor status), injured workers are free to file a claim against their employers just as they would against anyone else responsible for their injuries. In addition, if anyone other than an employer or co-worker were even partly responsible for the injury, workers are free to file their own liability insurance claims against that person or business with the help of their lawyers.

HINT: An injured worker need not necessarily be injured in the workplace in order to qualify for workers’ compensation. As long as the injury is work-related, it is covered.


JUSTICE AFTER DEATH

It may seem inherently just that when a person dies due to the legal fault of another, the victim’s survivors should be entitled to monetary damages stemming from the improper conduct. However, under “common law,” which consists of general legal principles that have passed from England to the United States over the centuries, it was not possible to make a “wrongful death” claim. At that time, it was thought that the claim perished along with the deceased victim. However, wrongful death statutes passed by states in subsequent years have corrected this injustice. In effect, a wrongful death lawsuit filed in civil court ensures that negligence victims’ right to be compensated for their injuries do not expire along with them.

HINT: A wrongful death claim must be filed by a representative (usually the executor of the decedent’s estate) on behalf of the survivors (the “real parties in interest”) who suffer damage from the decedent’s death.


EXERTING YOUR WILL

Even if you decide to postpone all the decision-making that goes into developing a comprehensive estate plan, you can at least draw up a will that gets the ball rolling. A will achieves the simple goal of distributing your property as you see fit, with relatively little energy or expense. The main goal is to make sure that your property goes to the people and organizations that you want to receive it. If you are healthy and unlikely to die unexpectedly, a will achieves this goal with less paperwork than a living trust. A will also ensures that your children will be well cared for and allows you to name a personal guardian. This alone makes a will worthwhile.

HINT: If you want to engage in more thorough estate planning, a will remains the centerpiece of your estate plan.


TO SUMMARIZE

While civil trials usually involve disputes over the facts associated with a certain situation, there are cases in which both parties are in agreement about the facts of the case. If so, they may simply be seeking a judgment as a matter of the law, leading one or both of the parties to move for “summary judgment.” The primary benefit of this legal device when utilized during civil litigation is that it can expeditiously move both parties to a legal resolution of their conflict without the need of a trial. The judge can take into account the agreed-upon facts of the case and determine how the law should be applied to the situation, and then issue a ruling.

HINT: After a lawsuit is filed and 20 days have passed, the party seeking to recover on a claim may move for summary judgment, while the party against whom a claim is made can move for summary judgment at any time.


NEW OR IMPROVED

Home improvement projects are challenging enough without having to deal with unexpected delays, misdirection, and substandard work. While cost overruns and delays are generally expected to be part of the process, some homeowners have engaged the services of unscrupulous contractors who simply do not deliver all that they have promised. In such cases, if there was a signed contract by both sides, homeowners can take legal action to enforce it. As a preventive measure, homeowners are encouraged to have their attorneys review any contract before it is signed to make sure that it is, indeed, comprehensive in its protection of the homeowner’s interests. A lawyer can also make sure that a contractor is licensed and bonded.

HINT: Bonding protects the consumer in the event that a contractor fails to complete a project, does not pay for permits, or fails to meet other financial obligations (such as paying for supplies or subcontractors).


DECIDING IN ADVANCE

As life-sustaining medical technologies continue to develop, there is the increasing possibility that we may be faced with decisions about how we want to be treated at the end of our lives. In the event that an accident, injury, or illness renders us unable to speak for ourselves, it is very important that we make our wishes known in advance. The documents known variously as “living wills,” “medical directives,” “health care proxies,” or “advance health care directives” enable us to express our wishes concerning medical treatment in terminal illness or injury situations when we are unable to speak for ourselves. In such cases, the person named in the directive will communicate the wishes expressed in the health care proxy.

HINT: Without an advance health care directive in place, families of an injured and/or dying patient may find it necessary to obtain court orders to deal with the medical situation.


YOUR CIVIL DUTY

Ours is a nation governed by law, and jury duty is the privilege and responsibility of all of us who expect a fair and impartial system of justice for everyone. Consequently, no one is excluded from jury duty, and those who serve should regard it as a chance to get an inside look at the American justice system. The court determines whether a juror drawn from the selection pool is acceptable through a procedure known as “voir dire” (meaning “to speak the truth”). It involves questioning the jurors to determine their fitness to hear a particular case and provides the judge and attorneys with sufficient information to determine if potential jurors can be fair, unbiased, and free of prejudice.

HINT: Repeatedly ignoring a jury summons will result in strict penalties, which may include being fined or jailed for contempt of court.


ONE WORD, TWO MEANINGS

“Subpoena” is a word that is fraught with meaning. When used as a noun, those on the receiving end of this document must appear as a witness to give testimony either in court, in a grand jury, or in a deposition. A subpoena may also order that a person hand over relevant documents to the other side during a lawsuit. Failure to comply with any of these orders brings the risk of being held in contempt of court, being fined, and even the possibility of being sent to jail. When “subpoena” is used as a verb, those summoned to appear before a prosecutor, a grand jury, or a plaintiff’s lawyer should consult with an attorney.

HINT: The Latin roots of the word “subpoena” include “sub,” which means “under,” and “poena,” which means “penalty.”


EYEWITNESS ACCOUNTS

When you watch a TV drama and hear the lead detective declare that he or she has an eyewitness, you may think “case closed.” However, in real life, matters of innocence and guilt are not nearly as simple. According to the Innocence Project (an organization dedicated to exonerating wrongfully convicted individuals through DNA testing), eyewitness misidentifications have contributed to more than 70% of documented “DNA Exonerations,” cases that are overturned by post-conviction DNA testing of biological evidence from the crime that proved the defendant’s innocence. Not only do poor lighting and eyesight, prejudice, and misdirected focus make for faulty identification, but memory is “elastic,” meaning it changes with each recounting. An experienced lawyer knows how to get at the truth.

HINT: Jurors should be instructed about generally accepted scientific principles regarding the fallibility of eyewitness identifications so that they may properly evaluate the accuracy of such evidence.


AGREEING BEFOREHAND

Certainly, no one enters into a marriage thinking that it will not last. However, older individuals entering a second marriage, in particular, may want to protect assets that they want their children from previous marriages to inherit. For this and other reasons, the “prenuptial agreement” is a contract that spells out how assets will be distributed in the event of divorce or death. A person need not be wealthy to have need of this legal document. Anyone who owns a business, has children or grandchildren, and/or will be receiving or bequeathing an inheritance, among other things, will want an agreement in place that protects his or her loved ones and avoids the potential need for future litigation.

HINT: Without a prenuptial agreement in place, the state has a series of family laws that determine how property is handled in the event of divorce.


PROTECTIVE ORDER

Cases involving domestic violence, harassment, and divorce commonly elicit a “temporary restraining order” (TRO), which is a short-term civil order issued by a judge that forbids a person from engaging in some threatened action against another. Before issuing a TRO, the court usually holds a hearing during which the plaintiff should be prepared to prove that he or she is being irreparably harmed by the defendant, that the defendant’s rights will not be irreparably harmed by the order, and that the order is in the public interest. A TRO remains in effect as long as the law allows, usually two to thirty days. If the defendant violates the TRO, he or she can be charged with “civil contempt of court.”

HINT: An “emergency protective order” can be issued without a hearing and may be requested by a law enforcement officer.


GET IT IN WRITING

A written contract is considered to be more ironclad than an oral contract because it not only contains a promise made, but it also serves as its own proof of said promise. An oral contract is a promise that has been plainly spoken but not written down. When this promise is broken, it could be considered to be a breach of oral contract. State laws dictate how ironclad they can be by force of law. Those with proof of an oral contract may have legal grounds to pursue litigation if the promise is broken. However, it is generally better to have a written contract in hand if a breach of contract has been made.

HINT: Proof of breach of an oral contract may boil down to one person’s word against another’s.


ACTING ON YOUR BEHALF

If you are away or otherwise engaged and want someone to take care of your affairs, a “power of attorney” is a legal document that you can utilize to give someone else the authority to take specific actions on your behalf, such as signing your checks to pay your bills or selling a particular piece of real estate for you. If the power of attorney is “durable,” this power to act on your behalf extends to the point after which you become incapacitated and unable to act for yourself. Otherwise, a power of attorney ends at the point of incapacitation. There are also two kinds of durable power of attorney, one pertaining to finance and one pertaining to health care.

HINT: A “health care directive” is a “living will” that spells out your wishes for medical care in the event that you become unable to speak for yourself.


PAYING THE COST OF LITIGATION

In England, the “Loser Pays” rule is a law that requires the losing party in a civil case to pay the winning party’s legal fees. The law is intended to discourage individuals and corporations from making frivolous claims that waste the courts’ time and defendants’ resources. In this country, plaintiffs and defendants have traditionally been responsible for paying their own attorneys’ fees, win or lose. There are those cases, however, that call for the loser to pay the winning side’s attorney’s fees. This is often true in contract disputes, such as real estate contracts, construction contracts, and business disputes, where a clause in the contract specifically states that attorney’s fees will be awarded to the prevailing party in a lawsuit.

HINT: U.S. attorneys generally take on civil cases on a contingent-fee basis, which means that they only get paid if they win the case for the plaintiff.


FOLLOWING DIRECTIONS

One of the most important aspects of drawing up a will is appointing an executor who is honest, is organized, and possesses good communication skills. This person will be charged with the legal responsibility of distributing assets in accordance with the will, maintaining property until the estate is settled, paying bills and taxes for the estate, and making court appearances for the estate. While the money to perform these duties will come from the estate, the will can be complex and/or might involve a considerable amount of court time. If so, the executor may want to engage the services of a lawyer to assist with handling the estate, which will pay for his or her legal services.

HINT: A person who stands to inherit a significant amount of property under a will is often chosen as executor because self-interest will help ensure that the will’s wishes are carried out thoroughly and expeditiously.


PUTTING CHILDREN FIRST

Divorcing couples with children must make important decisions in their efforts to put their children first. A “parenting agreement” involves matters such as the care of the children; the decision-making process concerning important aspects of their lives; the amount of time spent with each parent; and how the children’s medical, academic, emotional, educational, spiritual, and social needs will be met. Clearly, the various ways that these aspects of children’s lives are dealt with are as numerous and unique as the number of divorcing families. Resolving these many issues often proves to be very helpful in setting the stage for a successful post-divorce relationship by clarifying expectations, which can reduce future conflicts.

HINT: A “parenting agreement” must contain information about how parents will revise the plan as it becomes necessary.


FILING MOTIONS

When you are involved in a civil lawsuit, your attorney may want the court to agree to something outside the normal litigation process. He or she will then file “motions” with the court. These are requests that the court make a decision regarding some issue in the case. Motions are often filed that ask the court to allow a plaintiff to amend a complaint, or they might ask the court to order the other party to comply with discovery requests. One common motion is for “summary judgment,” which involves asking the court to make a final ruling on the case before the trial even begins. When granted, this motion can save time, money, and the energy needed to litigate a case.

HINT: In nearly all lawsuits, motions should be considered at every stage of litigation as useful tools for furthering your case.


WITHOUT FURTHER DELAY

Many individuals seek to avoid the costly and lengthy delays so often associated with “probate,” which is the legal process that gives recognition to a last will and testament and appoints the executor who will distribute the deceased’s assets to intended beneficiaries. One such probate-avoiding vehicle, called the “living trust,” is created while a person is alive. Holding property in trust poses no legal consequences while the creator of the living trust is alive. The property held in the trust transfers to the family and friends to whom it is left after death as spelled out in the trust. The terms of the trust document authorize the trustee to conduct this transfer, and probate courts have no legal authority over property held in trust.

HINT: When all of the property has been transferred to the beneficiaries, a living trust ceases to exist.


PURCHASING A HOME

Buying and selling a home is a complicated matter that involves financing, contracts, and negotiation. With this in mind, prospective homebuyers will want to be sure that the entire process proceeds as smoothly as possible. Buyers who are represented by their own attorneys can feel confident that they will get everything they bargained for, that the property is honestly represented, and that the title being transferred does not lead to any future problems where the buyer’s ownership rights are questioned. Thus, it pays for prospective homebuyers to protect their investment by engaging the services of a knowledgeable attorney. This is one matter that is best left to the professionals, especially when it comes to FSBO (For Sale By Owner) sales.

HINT: The “purchase agreement” is the single most important document in any real estate transaction. While standard printed forms are useful, an attorney can help clarify the form and make changes and additions that reflect the buyer’s and the seller’s desires.


APPEALING IDEAS

Either side in a civil case can decide to appeal the ruling. It does so by arguing that the court made a mistake in terms of courtroom procedure or in its interpretation of the law governing the case. The party filing the appeal (appellant) usually cannot re-argue the facts of the case before the appeals court. If the appeals court determines that the trial court made an error, it can remand (return) the case to the trial court with instructions on how to correct the error. While this provides a general outline of the appeal procedure, lawyers can provide their clients with information about the exact procedures to be followed in the court where their cases are heard.

HINT: Legal error is the most common reason for appealing a court’s decision on a civil case or civil lawsuit.


INFRACTION, MISDEMEANOR, OR FELONY?

Crimes are usually categorized according to their level of seriousness. An “infraction,” the least serious type of crime, typically involves being handed a ticket for something like a traffic violation and paying a fine. “Misdemeanors” are more serious than infractions and may be defined as crimes that are punishable by up to a year of jail time spent in a local county jail. Prosecutors generally exercise a considerable amount of flexibility when deciding which crimes to charge and how to punish them, and negotiating plea bargains. “Felonies” are the most serious crimes, such as murder, rape, burglary, kidnapping, or arson. These crimes are punished in ways that are intended to match the severity of the crime, with prison sentences greater than one year.

HINT:   Punishment for misdemeanors can also include payment of a fine, probation, community service, and restitution .


ADVICE FOR RENTERS

As rents continue to rise, it is more important than ever for renters to pay careful attention to the lease or rental agreement, which sets the rules for tenants and landlords to follow. With an eye toward preventing potential problems and legal hassles, it is recommended that the lease or rental agreement state in clear terms the limit, use, and return of security deposits. The dollar amount of the security deposit should comply with any state laws that might set a maximum limit. In addition, a lease should state how the tenant might use the security deposit (for instance, to repair damage) and how the landlord may not (applying the security deposit to the last month’s rent).

HINT: A rental contract should make clear what, if any, legal non-returnable fees the tenants can expect to incur, such as for cleaning.


A PRIVILEGED MATTER

“Discovery,” the process by which both sides learn of the other party’s knowledge of the facts of the case can involve face-to-face questioning of the other party or a witness prior to trial. However, there are certain “privileged communications” that a person can lawfully refuse to reveal. For instance, a person has the privilege of refusing to answer questions concerning private communications between that person and his or her lawyer from whom legal advice was sought. Other common privileges include inter-spousal communications, priest penitent communications (between lay members of religious organizations and religious officials), physician-patient communications, and psychotherapist-patient communications. It is up to the “holder” of the information to decide whether to claim a privilege.

HINT: To qualify for privileged status, communications must generally be made in a private setting. The privilege is lost (waived) when all or part of the communication is disclosed to a third person.


WHAT WILL YOU LEAVE BEHIND?

Despite the fact that we are all well aware of the inevitability of death, only approximately 55 percent of Americans have a will. Are you among them? If you have dependents, you need a last will and testament, which names an executor and a guardian to care for your minor children. Both should know where your will is kept. You should also draft a standby guardianship proxy for your children’s guardian, to be kept with your will. This document authorizes the guardian to make decisions about your child’s health and finances until the court certifies guardianship. Similarly, your children’s trustee (if not the same person as the guardian) should have a standby power of attorney.

HINT: Everyone, whether married or single, with children or not, should give a spouse, partner, or family member a health-care proxy, which instructs health-care providers whether to take certain steps to prolong your life.


MERE HEARSAY

During the course of a trial, if a witness answers a question with secondhand knowledge, it is grounds for objection because a witness may only testify about things that he or she has actually seen. Anything that someone else saw and then told the witness about is considered to be “hearsay evidence.” This is because the other party has the right to question the person who actually saw the event. If that person is not present, the other party has been deprived of his right to cross-examine witnesses against him. If the judge agrees that the testimony is hearsay, it must be stricken from the record.

HINT: Even if a statement meets the requirements for hearsay, the statement may yet be admissible under one of the exceptions to the hearsay rule, of which there are many.


A PREMARITAL AGREEMENT

A “prenuptial agreement” is a contract between two persons who are planning to marry. The agreement determines the rights they have to each other’s property. One of the main reasons for a premarital agreement is when one or both of the parties have children from a prior marriage or relationship. In such cases, a “prenup” may be the only way to make sure that the children are protected in the event of divorce or death. Otherwise, all of a person’s property may go to the second spouse, in which case the children from the first marriage or relationship would get nothing. A prenuptial agreement helps ensure that children from a prior marriage will be provided for, as intended by their parent.

HINT: In some cases, a “prenup” can be used to protect spouses from each other’s pre-existing debts.


BANKRUPTCY, CHAPTER AND VERSE

Filing for Chapter 7 bankruptcy is usually quicker than Chapter 13 and allows qualifying debtors to keep all or most of their property. Unlike Chapter 13 filers, Chapter 7 filers do not have to pay back a portion of their debt. A typical Chapter 7 bankruptcy takes three to six months, with the filer emerging debt-free (except for a mortgage, auto payments, and other types of debts such as student loans, recent taxes, and unpaid child support). While Chapter 7 filers can lose property, they are allowed to keep most necessities. However, not everyone qualifies for a Chapter 7 filing. If the debtor’s income is sufficient to repay some or all of is debt, he or she cannot file Chapter 7.

HINT: Chapter 13 may be preferable to a Chapter 7 filing for those who wish to make up missed payments on a mortgage or auto loan and reinstate the original agreement.


A WORKING RELATIONSHIP

A written employment contract is a contract between an employer and an employee. The contract sets forth the terms of their relationship. It offers an advantage to the employer, if employee’s wishes to quit. For example, if the employee is a high-level manager or executive or is especially valuable to the business, a contract can protect the employer from the sudden, unexpected loss of the employee. Employment contracts can also protect the business if the employee has access to confidential and sensitive business information. If so, the employer can insert confidentiality clauses into the contract that prevent the employee from disclosing this information or using it for personal gain.

HINT: Some employers require employees to sign a written agreement that states that the workers are employed “at will,” meaning that they can quit at any time and can be fired at any time for any reason that is not illegal.


PRESERVING AUTHORITY AND ASSURING COMPLIANCE

When the judge feels that an individual is improperly challenging or ignoring the court’s authority, this “person” can be declared to be in contempt of court. Criminal contempt is considered to be direct contempt when the person actually interferes with the court’s ability to function properly because it occurs directly in front of the judge. Civil contempt occurs when the contemnor willfully disobeys a court order. This is known as indirect contempt because it occurs outside the judge’s immediate proximity. As a consequence, evidence of its occurrence must be presented to the judge in order to prove that it occurred. In cases of both direct and indirect contempt, the contemnor may be fined, jailed, or both.

HINT: The contemnor is said to “hold the keys” to his or her confinement.


COMING TO AN UNDERSTANDING

When a contract has been negotiated orally, some details of the agreement may remain less than fully defined. Some landlords do not want to bother with a written lease or rental agreement. This may make prospective renters uneasy about relying on oral promises. If so, renters may record any oral agreement in a “letter of understanding.” In such a document, renters can write down the details of the agreement as they understand it. A copy of the letter can then be sent to the landlord with a request that if any details are not stated correctly, to contact the renters immediately. If not, the letter can be used to settle future disagreements or disputes.

HINT: Letters of understanding are useful in any situation where you will be relying on someone else’s oral promise.


NO CONTEST

Individuals who might gains or lose something if the terms of a Last Will & Testament are carried out as written might decide to contest the will in court. If they choose to do so, they may challenge the will on the grounds that the person who made the will, the “testator,” lacked the mental capacity to make a will, was unduly influenced by another person, or was under duress. Proving any of these is usually a difficult undertaking because courts generally regard properly signed and witnessed wills to be valid. The challenge becomes all the more daunting if the testator included a “no contest” clause in his or her will. This clause states that any beneficiary who contests a will and fails must give up his or her share of the testator’s estate.

HINT: In some cases, no contest clauses additionally require the losing party to pay the attorney’s fees and costs for both sides.


BILLED FOR PARENTS’ CARE COSTS?

Many states have “filial responsibility” laws, which obligate adult children to take responsibility for their parents. These laws date back to 16th-century English “Poor Laws,” which directed financially able family members to support indigent relatives. While nearly all states in this country had such laws in the past, many were repealed as Medicaid became available to those who could not otherwise afford care. However, as more seniors are currently living longer with incapacitating conditions requiring costly long-term care, many adult children are being threatened with legal action if they do not pay their loved ones’ bills. With this in mind, it is important that seniors apply for Medicaid on time and avoid disqualification resulting from making gifts to children before applying.

HINT: Family members of aging relatives should check nursing-home admissions contracts for provisions that ask for a financial “guarantor” or “responsible party,” which are prohibited by federal law.


PLANNING AHEAD

Proper lifetime planning calls for you to think about appointing someone to act on your behalf if you were to become incapable of doing so. With this in mind, the document known as a “power of attorney” gives someone you choose the power to act as your agent. The power may be restricted to a particular activity, such as buying or selling real property, or it can be general in its application. It may give temporary or permanent authority to act on your behalf. It may take effect immediately or only in the event of a future circumstance, such as a determination that you are unable to act for yourself due to mental or physical disability.

HINT: Those without power of attorney who become unable to act on their own behalf may be appointed a guardian or conservator.


DEFAULT JUDGMENT

How would the court respond if a defendant in a civil suit chose to ignore a plaintiff’s lawsuit and accompanying summons from the court? The sanction for failing to respond to a complaint is that the defendant will be considered to be “in default.” This prevents the defendant from telling his side of the story at trial. The plaintiff is entitled to a “default judgment,” which means plaintiff gets a judgment against the defendant. The plaintiff can then attempt to enforce the judgment. The moral to the story is never ignore a lawsuit.

HINT: Like other kinds of judgments, default judgments are enforceable for a period of years set by law.


POSTNUPTIAL AGREEMENTS

“Postnuptial agreements” are quite similar to “prenuptial agreements” except that they are entered into after marriage instead of before. Also known as “postmarital agreements” or “postnups,” these increasingly popular contracts between marital partners are often used to spell out how assets and liabilities will be split upon divorce or death. Postnuptial agreements are also used to “fix” a marriage by punishing a spouse for bad behavior such as infidelity. In addition, it may be used to show commitment to a fractured marriage by guaranteeing a richer settlement to a partner if things do not work out. As a general matter, postnups address postmarital changes that have occurred that both spouses wish to clarify and resolve.

HINT: In some cases, a postnuptial agreement provides a spouse with a more generous share of the other spouse’s net worth than a prenup had provided due to changing financial circumstances.


DOING WHAT IS BEST FOR CHILDREN OF DIVORCE

Amidst the contentiousness that often surrounds divorcing couples, the non-custodial parent may feel that he or she has a legitimate concern that the money paid for child support is not being spent on the child. Or, there may be worry that the custodial parent is not raising the child in healthy and positive manner. Although the court does not usually involve itself in what may be regarded as family arguments regarding the upbringing of a child, it will become involved if it can be shown that the custodial parent’s conduct is contrary to the best interests of the child. The burden of proof in such matters rests with the non-custodial parent.

HINT: Because lawmakers have come to realize that visitation rights do not translate easily into laws, parents may be left to define reasonable visitation standards for grandparents and others.


COMPENSATORY DAMAGES

“Special damages” are awarded to compensate a victim for measurable monetary losses, while “general damages” are awarded for intangible losses.  These may include loss of reputation, loss of companionship, or emotional pain and suffering. Although these injury-related losses cannot be easily assigned dollar values, money is the only way in which these losses can be compensated. Thus they must be figured in with general damages. There is no restriction on the types of non-monetary losses that can increase the general damages sought by injury victims. Both general damages and special damages in a personal injury lawsuit are included under the broader category of “compensatory damages,” which are damages awards that are intended to compensate the victim, not punish the defendant.

HINT: Special damages may include lost wages or earnings, loss of irreplaceable items, costs associated with the replacement or repair of damaged property, and costs associated with medical expenses (such as hospital or medication bills).


TO SUMMARIZE

While civil trials usually involve disputes over the facts associated with a certain situation, there are cases in which both parties agree about the facts of the case, but disagree about the legal effect of the facts. In such a case, one or both of the parties may to move for “summary judgment.” The primary benefit of this legal device when utilized during civil litigation is that it can quickly move both parties to a legal resolution of their conflict without the need of a trial. The judge can take into account the agreed-upon facts of the case and determine how the law should be applied to the situation, and then issue a ruling.

HINT: After a lawsuit is filed and 20 days have passed, the party seeking to recover on a claim may move for summary judgment, while the party against whom a claim is made can move for summary judgment at any time.


WHY EXPERIENCE MATTERS

Lawyers have good reason to present their most compelling evidence at the beginning of a trial because research shows that jurors are most receptive and least likely to have developed an opinion early on. After that, research indicates that jurors are more likely to adopt “predecisional distortion.” That is to say that, once jurors develop a leaning or tentative preference (based upon some case-specific information), their tentative leanings influence the manner in which they view subsequent information. Jurors may not be consciously aware of their biases or that they are distorting the facts in an effort to support their views. Experienced lawyers utilize jurors’ propensities to make the best cases for their clients.

HINT: In widely publicized cases, pre-trial publicity has been found to influence jurors’ trial judgments and increase predecisional distortion.