Tens of thousands of contracts are entered into each day. Whether you are buying a home or a new car, there will be a written contract executed by the buyer and seller. The contract binds both parties and passes ownership from the seller to the buyer. In essence, every contract will include certain necessary elements found in all contracts. Anyone attempting to prepare a binding contract should know the basics of contract law to assure they have prepared a legally binding agreement.
Step 1
Understand what is necessary to have a legally binding contract. A contract is an instrument that reflects an agreement to mutually bind two or more parties. The most important thing is that within the wording of your contract it is obvious that there has been a "meeting of the minds",with both parties agreeing to be bound under the law. Your contract should reflect that one is "offering" a specific product or service. Following with wording that the other party "accepts", and agrees to purchase the offer.
Step 2
Spell out in detail the terms of your agreement. Following the acceptance clause, your contract should clearly identify all parties to the contract. There should be no doubt about the product being sold or the act that is to be performed. Include any legal descriptions, serial numbers or model numbers that are relevant to the transaction. A performance contract should specify the work to be performed, including when, where and how.
Step 3
Include all important times relevant to your contract. Your contract should have an execution date, which is the date both parties achieve mutual agreement. A contract should include the agreed delivery date of a product or service. If your contract is a performance contract, then include a date when there is a presumption that the non-performing party has not honored their agreement to perform a certain act. Many performance contracts spell out the penalties and damages for late performance.
Step 4
Provide a remedies clause with your contract. Your written contract should have a paragraph specifying what remedies are available to the non-breaching party in the event of a breach. The first part of your remedies clause will designate a certain state that will have jurisdiction over the contract's legal interpretation and the parties to the contract. This will mean that any laws at issue, including any statutes of limitation, will be governed by the laws of the designated state. Your remedies clause should include language to the effect that the breaching party will be responsible for any court cost and reasonable legal fees associated with any prospective litigation.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Saturday, May 7, 2011
Thursday, May 5, 2011
How To Prepare For A Settlement Conference
Settlement conferences resolve lawsuits before a trial.
A settlement conference, in general, is a meeting between two parties trying to resolve a dispute. The parties will usually agree on a mediator. The designated mediator will attempt to bring the parties together. Settlement conferences are routinely used in both the federal and state courts, and are even entered into before a lawsuit is filed. Settlement conferences are routinely used in labor disputes, corporate battles and by any two or more parties wanting to resolve a dispute.
Consider whether the matter is ready to go to a settlement conference. Settlement conferences are usually done only after all evidence has been gathered by both parties and the issues of dispute clearly defined. In preparation for a settlement conference, the parties will usually have a fair assessment of each party's weakness or advantages. In civil lawsuits the parties will have an in-depth knowledge of all damages incurred and the degree of relative fault.
Decide on the forum that will be followed at the settlement conference. Both parties must mutually agree on a neutral mediator and usually a neutral location. Most private mediators are usually lawyers who have chosen to provide this service. Any matter presently before a court can be ordered by the judge to go to a settlement conference, or agreed upon by the parties. The settlement conference may be mediated by the actual judge or magistrate. Both state and federal courts have procedural rules dealing with the specifics of court-ordered mediation. The most important thing, is to make sure the mediator is unbiased, and has successful experience in mediation.
Prepare for the settlement conference as you would for a trial. Both sides will have an opportunity to voice their opinions and offer relevant evidence on their behalf. In the event any bodily injuries are involved, be sure to have present all medical bills and records. There should be a narrative letter from the treating doctor stating the incident at issue caused the medical problems at issue, and the treating doctor should provide a prognosis as to any permanent impairment or future medical needs. Other experts may have been retained, and their final reports should also be available at the settlement hearing. All invoices and any out-of pocket expenses should be in everyone's possession at the conference.
A winning settlement is a fair and reasonable settlement
Be willing to compromise. During any settlement negotiations both sides should be reasonable and willing to accept a fair and reasonable offer. A wise technique is to make small adjustments at a time in your settlement demands. The mediator, after opening comments from both parties, will ultimately separate the parties with their respective representative/attorney. The mediator will then go from party to party, stationed in separate rooms with their representative, conveying the outstanding offers on the table. A typical settlement conference may have dozens or more offers and counter-offers during the negotiations. Remember that a winning settlement is a fair and reasonable settlement, and will avoid a costly and time consuming trial or continued losses to both sides if not resolved.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and varrious social issues.
A settlement conference, in general, is a meeting between two parties trying to resolve a dispute. The parties will usually agree on a mediator. The designated mediator will attempt to bring the parties together. Settlement conferences are routinely used in both the federal and state courts, and are even entered into before a lawsuit is filed. Settlement conferences are routinely used in labor disputes, corporate battles and by any two or more parties wanting to resolve a dispute.
Consider whether the matter is ready to go to a settlement conference. Settlement conferences are usually done only after all evidence has been gathered by both parties and the issues of dispute clearly defined. In preparation for a settlement conference, the parties will usually have a fair assessment of each party's weakness or advantages. In civil lawsuits the parties will have an in-depth knowledge of all damages incurred and the degree of relative fault.
Decide on the forum that will be followed at the settlement conference. Both parties must mutually agree on a neutral mediator and usually a neutral location. Most private mediators are usually lawyers who have chosen to provide this service. Any matter presently before a court can be ordered by the judge to go to a settlement conference, or agreed upon by the parties. The settlement conference may be mediated by the actual judge or magistrate. Both state and federal courts have procedural rules dealing with the specifics of court-ordered mediation. The most important thing, is to make sure the mediator is unbiased, and has successful experience in mediation.
Prepare for the settlement conference as you would for a trial. Both sides will have an opportunity to voice their opinions and offer relevant evidence on their behalf. In the event any bodily injuries are involved, be sure to have present all medical bills and records. There should be a narrative letter from the treating doctor stating the incident at issue caused the medical problems at issue, and the treating doctor should provide a prognosis as to any permanent impairment or future medical needs. Other experts may have been retained, and their final reports should also be available at the settlement hearing. All invoices and any out-of pocket expenses should be in everyone's possession at the conference.
A winning settlement is a fair and reasonable settlement
Be willing to compromise. During any settlement negotiations both sides should be reasonable and willing to accept a fair and reasonable offer. A wise technique is to make small adjustments at a time in your settlement demands. The mediator, after opening comments from both parties, will ultimately separate the parties with their respective representative/attorney. The mediator will then go from party to party, stationed in separate rooms with their representative, conveying the outstanding offers on the table. A typical settlement conference may have dozens or more offers and counter-offers during the negotiations. Remember that a winning settlement is a fair and reasonable settlement, and will avoid a costly and time consuming trial or continued losses to both sides if not resolved.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and varrious social issues.
Wednesday, April 27, 2011
The Responsibilities of the Fedreal and State Courts
Federal & State Court Responsibilities
The founding fathers of the United States adopted the US Constitution in 1787, and it still is the supreme legal document of the country. The country's leaders divided the government into three branches: the legislative, the administrative and the judicial. The judicial branch encompasses the court systems, composed of the federal and state courts that interpret and govern the laws of the land.
The state and federal courts administer all litigation, dealing with both civil and criminal causes of action. State courts handle matters local to that state, while federal courts handle disputes between individuals or businesses of different states. Federal courts also handle lawsuits dealing with federal statutes, such as federal civil rights laws and any other violation of federal statutes adopted by the United States Congress. In both civil and criminal matters, the federal courts may have exclusive jurisdiction over a federal matter, or concurrent jurisdiction with the state on certain civil disputes valued more than $75,000 between parties of different states.
Both the state and federal courts are held responsible for enforcing the nation's criminal laws. State criminal violations are prosecuted in a state court, while criminal violations involving federal laws or that occurred in multiple states will be prosecuted in the federal courts. Both the state and federal courts administer the court system, including all jury trials. Once an individual is convicted, the courts are required to monitor the convicted criminal if he is granted parole.
There are certain courts at both the state and federal level that have very specific and unique responsibilities. Federal bankruptcy courts handle matters exclusively dealing with individuals or businesses involved in bankruptcy proceedings. In each state, there are specific courts that will only handle estate matters, such as the legal administration of wills. There are both state and federal administrative courts that deal strictly with the rulings of a specific governmental administration, such as the Social Security Administration or the Unemployment Administration.
Each year, both state and federal legislatures pass hundreds of legal statutes. When disputes arise about the interpretation of any legislative statute, the state and federal courts will be called upon to render a decision interpreting the statue as a matter of law. Neither the United States president nor the U.S. Congress has the power to overrule the United States Supreme Court's interpretation of the United States Constitution or any federal statute.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
The founding fathers of the United States adopted the US Constitution in 1787, and it still is the supreme legal document of the country. The country's leaders divided the government into three branches: the legislative, the administrative and the judicial. The judicial branch encompasses the court systems, composed of the federal and state courts that interpret and govern the laws of the land.
The state and federal courts administer all litigation, dealing with both civil and criminal causes of action. State courts handle matters local to that state, while federal courts handle disputes between individuals or businesses of different states. Federal courts also handle lawsuits dealing with federal statutes, such as federal civil rights laws and any other violation of federal statutes adopted by the United States Congress. In both civil and criminal matters, the federal courts may have exclusive jurisdiction over a federal matter, or concurrent jurisdiction with the state on certain civil disputes valued more than $75,000 between parties of different states.
Both the state and federal courts are held responsible for enforcing the nation's criminal laws. State criminal violations are prosecuted in a state court, while criminal violations involving federal laws or that occurred in multiple states will be prosecuted in the federal courts. Both the state and federal courts administer the court system, including all jury trials. Once an individual is convicted, the courts are required to monitor the convicted criminal if he is granted parole.
There are certain courts at both the state and federal level that have very specific and unique responsibilities. Federal bankruptcy courts handle matters exclusively dealing with individuals or businesses involved in bankruptcy proceedings. In each state, there are specific courts that will only handle estate matters, such as the legal administration of wills. There are both state and federal administrative courts that deal strictly with the rulings of a specific governmental administration, such as the Social Security Administration or the Unemployment Administration.
Each year, both state and federal legislatures pass hundreds of legal statutes. When disputes arise about the interpretation of any legislative statute, the state and federal courts will be called upon to render a decision interpreting the statue as a matter of law. Neither the United States president nor the U.S. Congress has the power to overrule the United States Supreme Court's interpretation of the United States Constitution or any federal statute.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Tuesday, April 26, 2011
How To Prepare To Give A Deposition
How to Prepare To Give A Deposition
Depositions are part of the discovery process in state and federal court litigation. At the deposition questions about issues relevant to the lawsuit are asked of a person who may or may not have critical evidence important to the lawsuit. The testimony is sworn testimony. The one being deposed may be a party, a witness or an expert. The one taking the deposition (an attorney) and the one being deposed need to be well prepared.
Step 1
Understand what will be expected at the deposition. The one giving the sworn testimony will be given a specific time and place where the deposition will take place. The deposition is usually done in one of the attorney's conference rooms. It is wise to arrive thirty minutes or an hour before the deposition to go over the testimony with your attorney. Take all documents requested by your attorney and all documents requested by the opposing attorney. Be prepared to give sworn testimony that can be used against you in court.
Step 2
Speak slowly and clearly. A court reporter will be present to record every word spoken by everyone in the room. You will be sitting next to your attorney and across from the opposing counsel. You want to make sure that you are not misquoted in the transcript. Specifically answer "yes" or "no" and do not volunteer information beyond what can effectively answer the question. An "uh-huh" can be interpreted as either a yes or a no. Do not guess at an answer. Feel free to say you are not sure.
Step 3
Familiarize yourself with all documents or records that you may be called upon to identify. Any company records, medical records or photographs to be discussed by you and admitted as exhibits in the deposition should already be in your possession and fully understood by you and your attorney. Feel free to ask for ample time to review any documents presented with which you are not familiar.
Step 4
Take time to consider your testimony. Remember that every word you say may very well be brought out by opposing counsel in the actual trial before a judge or jury. If you are consistent throughout, your testimony will appear more credible. Lying in a deposition is the same as lying in court and can be grounds for criminal perjury. It is wise to require the court reporter to furnish you and your lawyer with a copy of the deposition for you to review and sign before the deposition is filed and becomes an official legal record of your testimony.
User Bio:
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Depositions are part of the discovery process in state and federal court litigation. At the deposition questions about issues relevant to the lawsuit are asked of a person who may or may not have critical evidence important to the lawsuit. The testimony is sworn testimony. The one being deposed may be a party, a witness or an expert. The one taking the deposition (an attorney) and the one being deposed need to be well prepared.
Step 1
Understand what will be expected at the deposition. The one giving the sworn testimony will be given a specific time and place where the deposition will take place. The deposition is usually done in one of the attorney's conference rooms. It is wise to arrive thirty minutes or an hour before the deposition to go over the testimony with your attorney. Take all documents requested by your attorney and all documents requested by the opposing attorney. Be prepared to give sworn testimony that can be used against you in court.
Step 2
Speak slowly and clearly. A court reporter will be present to record every word spoken by everyone in the room. You will be sitting next to your attorney and across from the opposing counsel. You want to make sure that you are not misquoted in the transcript. Specifically answer "yes" or "no" and do not volunteer information beyond what can effectively answer the question. An "uh-huh" can be interpreted as either a yes or a no. Do not guess at an answer. Feel free to say you are not sure.
Step 3
Familiarize yourself with all documents or records that you may be called upon to identify. Any company records, medical records or photographs to be discussed by you and admitted as exhibits in the deposition should already be in your possession and fully understood by you and your attorney. Feel free to ask for ample time to review any documents presented with which you are not familiar.
Step 4
Take time to consider your testimony. Remember that every word you say may very well be brought out by opposing counsel in the actual trial before a judge or jury. If you are consistent throughout, your testimony will appear more credible. Lying in a deposition is the same as lying in court and can be grounds for criminal perjury. It is wise to require the court reporter to furnish you and your lawyer with a copy of the deposition for you to review and sign before the deposition is filed and becomes an official legal record of your testimony.
User Bio:
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Sunday, April 24, 2011
How To Transfer Title To Real Estate
How to Transfer Real Estate Without a Lawyer
Overview
A deed can be recorded without an attorney
Real estate is transferred thousands of times each day. Most transactions are done by real estate attorneys, however, a non-attorney can legally transfer his own property to another person without an attorney. Such a transfer is valid, provided the land owner is aware of certain essential legal requirements and ensures that the transfer complies with the law.
Step 1
Locate a vaild legal description
Obtain the property's legal description. All real estate has a unique legal description, which specifically describes the property. An address is not the legal description. The legal description may include a metes and bound description, or exact measurements from a surveyor's report. You can often locate the property's legal description from previously recorded deeds or mortgages.
Step 2
Real estate tranfers have to be in writing
Prepare the deed. Any transfer of real estate has to be in writing to be valid. The deed should identify the present and future owner and contain words that make it clear you are conveying the property to the new owner. Include the legal description in the body of the document. The document should be dated, signed and the signature of the conveyor notarized.
Step 3
The deed is filed as a public record
Record the deed with the court in the county where the real estate is located. Real estate deeds are typically filed in the county's Recorder of Deeds. A filing fee will be assessed by the clerk when the deed is filed, and the original deed will be returned to the new owner after the recording is complete.
Step 4
Record the deed as soon as possible. The ownership of the real estate will transfer upon the execution of a legal deed. However, the ownership interest may not be protected until it is recorded.
Warnings
* This article does not constitute legal advice, and prior to drafting your deed, you should speak with competent legal counsel, because the factual circumstances of your situation and the laws of your jurisdiction may require special attention.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Overview
A deed can be recorded without an attorney
Real estate is transferred thousands of times each day. Most transactions are done by real estate attorneys, however, a non-attorney can legally transfer his own property to another person without an attorney. Such a transfer is valid, provided the land owner is aware of certain essential legal requirements and ensures that the transfer complies with the law.
Step 1
Locate a vaild legal description
Obtain the property's legal description. All real estate has a unique legal description, which specifically describes the property. An address is not the legal description. The legal description may include a metes and bound description, or exact measurements from a surveyor's report. You can often locate the property's legal description from previously recorded deeds or mortgages.
Step 2
Real estate tranfers have to be in writing
Prepare the deed. Any transfer of real estate has to be in writing to be valid. The deed should identify the present and future owner and contain words that make it clear you are conveying the property to the new owner. Include the legal description in the body of the document. The document should be dated, signed and the signature of the conveyor notarized.
Step 3
The deed is filed as a public record
Record the deed with the court in the county where the real estate is located. Real estate deeds are typically filed in the county's Recorder of Deeds. A filing fee will be assessed by the clerk when the deed is filed, and the original deed will be returned to the new owner after the recording is complete.
Step 4
Record the deed as soon as possible. The ownership of the real estate will transfer upon the execution of a legal deed. However, the ownership interest may not be protected until it is recorded.
Warnings
* This article does not constitute legal advice, and prior to drafting your deed, you should speak with competent legal counsel, because the factual circumstances of your situation and the laws of your jurisdiction may require special attention.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Saturday, April 23, 2011
A Guide To Workers Compensation Benefits
If you have been injured on the job or know someone who has, then you are somewhat familiar with your state's workers compensation laws. Worker's Compensation benefits are not the same and somewhat limited from the damages you would expect to receive in a typical personal injury claim. Worker's compensation benefits are specific to each state and do not encompass damages like pain and suffering, loss of consortium or mental anguish, the normal damages you would expect in a typical car accident or medical malpractice claim, etc.
Benefits For A Job Injury:
Benefits you will receive for an on the job injury are specific to each state's workman's compensation laws and depending on your state the amount you can receive is spelled out in detail in the worker's compensation statutes of each state.
Do you have a job injury?
First, it has to be determined if you have an on the job injury. An on the job injury is described as an injury arising out of the course and scope of your employment. In other words, you were performing a work duty that you would be performing only because you were on or about your employer's work, and as a result you are injured. This could be a trip to the post office or falling in the company parking lot on the way to sign in for work. Keep in mind that many people have pre-existing conditions-bad knees, bad back or even a weak heart. However, the law in most states is that you still have a worker's compensation claim if your work duty aggravated your pre-exiting condition causing additional damage and in essence a new injury.
Notice to your employer:
If you have or think you have an on the job injury you will have to notify your employer as soon as possible. Notice to the employer must indicate when, where,how and the nature of your injury. Usually oral notice to your supervisor or company nurse is sufficient. However, written notice is suggested. Each state has a time period of when you must give notice and failure to give notice to your employer within the time frame required in your state could bar your claim. The time frame to give notice to your employer is relatively short and usually is between one month to ninety days.
Once notice is given to the employer, then most states require that the employer give you a doctor or a panel of doctors to choose from that you will choose as the doctor that will provide an initial diagnosis and plan of care. If no choice is given then you are free to go to your own doctor. Your company can offer a choice of doctors at a later date. Your treating doctor you choose is critical as he will dictate your plan of treatment, your time off of work and if you have any permanent impairment, the doctor will assess your restrictions, any work limitations and any anatomical impairment, which will dictate the medical opinion as to any assessment for an award for any permanent disability.
The Three Types of Worker's Compensation Benefits you are entitled:
Worker's Compensation entitlements or benefits are divided into three categories. First, the employer has to pay for all your medical cost, including prescription drugs and even travel expenses if you have to travel a long distance. Secondly, the employer has to pay you a weekly benefit if you are unable to return to work. This weekly benefit is usually paid every two weeks and the amount is spelled out in your state worker's compensation statute. Each state varies in the maximum and minimum the employer has to pay you weekly while you are getting treatment and unable to work. Lastly, when the doctor releases you or when you reach maximum medical improvement, you may have a permanent impairment attributed to your job injury. At this point the employer's doctor or your doctor will have to assess your permanent impairment, if any, that you may have acquired due to your job injury, including an injury that makes a pre-existing condition worse.
What if you are permanently impaired:
If you do have a permanent impairment, then the employer would owe you an additional sum and have to compensate you, in essence, for your future lost earning capacity. The amount you would be entitled for a permanent impairment is different in each state, and many factors are relevant to determine a just amount. The permanent impairment benefit is paid to you in a lump sum or in installments over a period of time, as agreed upon. The worker's compensation statutes of each state is specific on this issue, and the worker' compensation statutes of each state have a scheduled amount for an arm, leg, finger, etc. And certain injuries are deemed injuries to the body as a whole. There are many factors in determining and assessing your award for permanent impairment, but the medical professional who have assessed your permanent impairment upon your release are key factors in your final worker's compensation award. Again, as to you specifically, how does your injury affect your ability to work in the future based on your education and work experiences.
This has been a general discussion of what to expect if you have been injured on the job. As an attorney I have handled hundreds of injured worker's claims in Tennessee and Mississippi, and I am not trying to advise you on your specific state laws. Each state is somewhat different and I advise you to consult with an experienced worker's compensation attorney in your state. Often there are disputes between the employee and employer regarding the benefits outlined above, and an attorney may be necessary to give advice and act as your advocate. Most attorneys specializing in this area work on a contingency basis and their maximum fees are regulated by the states worker's compensation statutes.
Hopefully, you never experience a job injury, but unfortunately many workers will and it is a difficult time for them and their families. Keep in mind that the worker's compensation benefits are your entitlement and are meant to provide for you and your family if you do have an on the job injury.
Benefits For A Job Injury:
Benefits you will receive for an on the job injury are specific to each state's workman's compensation laws and depending on your state the amount you can receive is spelled out in detail in the worker's compensation statutes of each state.
Do you have a job injury?
First, it has to be determined if you have an on the job injury. An on the job injury is described as an injury arising out of the course and scope of your employment. In other words, you were performing a work duty that you would be performing only because you were on or about your employer's work, and as a result you are injured. This could be a trip to the post office or falling in the company parking lot on the way to sign in for work. Keep in mind that many people have pre-existing conditions-bad knees, bad back or even a weak heart. However, the law in most states is that you still have a worker's compensation claim if your work duty aggravated your pre-exiting condition causing additional damage and in essence a new injury.
Notice to your employer:
If you have or think you have an on the job injury you will have to notify your employer as soon as possible. Notice to the employer must indicate when, where,how and the nature of your injury. Usually oral notice to your supervisor or company nurse is sufficient. However, written notice is suggested. Each state has a time period of when you must give notice and failure to give notice to your employer within the time frame required in your state could bar your claim. The time frame to give notice to your employer is relatively short and usually is between one month to ninety days.
Once notice is given to the employer, then most states require that the employer give you a doctor or a panel of doctors to choose from that you will choose as the doctor that will provide an initial diagnosis and plan of care. If no choice is given then you are free to go to your own doctor. Your company can offer a choice of doctors at a later date. Your treating doctor you choose is critical as he will dictate your plan of treatment, your time off of work and if you have any permanent impairment, the doctor will assess your restrictions, any work limitations and any anatomical impairment, which will dictate the medical opinion as to any assessment for an award for any permanent disability.
The Three Types of Worker's Compensation Benefits you are entitled:
Worker's Compensation entitlements or benefits are divided into three categories. First, the employer has to pay for all your medical cost, including prescription drugs and even travel expenses if you have to travel a long distance. Secondly, the employer has to pay you a weekly benefit if you are unable to return to work. This weekly benefit is usually paid every two weeks and the amount is spelled out in your state worker's compensation statute. Each state varies in the maximum and minimum the employer has to pay you weekly while you are getting treatment and unable to work. Lastly, when the doctor releases you or when you reach maximum medical improvement, you may have a permanent impairment attributed to your job injury. At this point the employer's doctor or your doctor will have to assess your permanent impairment, if any, that you may have acquired due to your job injury, including an injury that makes a pre-existing condition worse.
What if you are permanently impaired:
If you do have a permanent impairment, then the employer would owe you an additional sum and have to compensate you, in essence, for your future lost earning capacity. The amount you would be entitled for a permanent impairment is different in each state, and many factors are relevant to determine a just amount. The permanent impairment benefit is paid to you in a lump sum or in installments over a period of time, as agreed upon. The worker's compensation statutes of each state is specific on this issue, and the worker' compensation statutes of each state have a scheduled amount for an arm, leg, finger, etc. And certain injuries are deemed injuries to the body as a whole. There are many factors in determining and assessing your award for permanent impairment, but the medical professional who have assessed your permanent impairment upon your release are key factors in your final worker's compensation award. Again, as to you specifically, how does your injury affect your ability to work in the future based on your education and work experiences.
This has been a general discussion of what to expect if you have been injured on the job. As an attorney I have handled hundreds of injured worker's claims in Tennessee and Mississippi, and I am not trying to advise you on your specific state laws. Each state is somewhat different and I advise you to consult with an experienced worker's compensation attorney in your state. Often there are disputes between the employee and employer regarding the benefits outlined above, and an attorney may be necessary to give advice and act as your advocate. Most attorneys specializing in this area work on a contingency basis and their maximum fees are regulated by the states worker's compensation statutes.
Hopefully, you never experience a job injury, but unfortunately many workers will and it is a difficult time for them and their families. Keep in mind that the worker's compensation benefits are your entitlement and are meant to provide for you and your family if you do have an on the job injury.
How To Prove Dental Malpractice
How to Prove Dental Malpractice
Overview
Sometimes a dentist or a doctor will make a mistake in treating a patient. A dentist or doctor who makes a mistake has committed malpractice. Many times a dental procedure by the dentist is just a bad result. However, not all bad results are considered malpractice. The law spells out what is considered malpractice, and every state has their own unique process for proceeding against a negligent dentist. However, in the broadest terms, the definition of malpractice is uniform in all the states, and the first concern when one considers pursuing a malpractice claim is always a matter of law, and whether or not the dentist was negligent as defined by the law,and in essence, did the dentist "not follow the acceptable standard of care in the community".
Step 1
Discover evidence of malpractice.
Discover proof to establish the dentist's negligence. Just because a dental procedure ends with a bad result does not mean it necessarily constitutes malpractice. The first step is to request the dental records of the dentist. All patients are entitled to a copy of their dentists' records. The dentist's records will outline the diagnosis, course of treatment and procedures performed. Any expert that will conclude that malpractice occurred will start with the dentist's records.
Step 2
Assess the damages suffered
Assess the plaintiff's damages. Damages for malpractice are usually awarded in a dollar amount to the plaintiff. A plaintiff should be awarded for all allowed damages related to the specific malpractice act. Those damages will be all out of pocket expenses related to the malpractice. This would include the medical cost to correct the damages incurred. There would also be subjective damages for pain and suffering, and so forth.. If the plaintiff lost time from work, then an amount for lost wages past and future should asserted.
Step 3
File suit in a timely matter
File the lawsuit in a timely manner in the right court. A malpractice lawsuit is too complex to file in a small claims court and should be filed in a court of record with unlimited jurisdiction. The specifics of the malpractice act should be spelled out in the complaint. Every state has a time limit to file a malpractice lawsuit. The time to file may be one year or it may be five years depending on the state where the malpractice occurred and where the lawsuit will be filed. For example, in Tennessee you have only one year to file a malpractice lawsuit. The limitation period begins to run when the prospective plaintiff knew or should have known of the malpractice. Most states have a statute of repose, and after a certain number of years any malpractice claim is barred regardless of lack of notice.
Step 4
Find an expert that will attest to the malpractice
Find an expert to testify against the dentist at fault. To prove any case involving medical or dental malpractice, another licensed dentist has to be retained to say the dentist committed malpractice. The other dentist, the plaintiff's expert, will have to testify that he has reviewed the medical file, considered the facts and examined the plaintiff. The expert must conclude that in his opinion the defendant dentist deviated from the acceptable standard of care in the community where the defendant dentist practiced dentistry(and the deviation caused the injuries asserted). And the expert should be aware of the standard of care in the community at issue (where the defendant was practicing) , as the standard in Hope, Arkansas, may be different than the standard of care in New York City.
Tips
* Malpractice lawsuits against doctors or dentists are some of the most complicated lawsuits to pursue. Very few individuals could deal with all the legal complexities of a malpractice lawsuit without prior legal training
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Overview
Sometimes a dentist or a doctor will make a mistake in treating a patient. A dentist or doctor who makes a mistake has committed malpractice. Many times a dental procedure by the dentist is just a bad result. However, not all bad results are considered malpractice. The law spells out what is considered malpractice, and every state has their own unique process for proceeding against a negligent dentist. However, in the broadest terms, the definition of malpractice is uniform in all the states, and the first concern when one considers pursuing a malpractice claim is always a matter of law, and whether or not the dentist was negligent as defined by the law,and in essence, did the dentist "not follow the acceptable standard of care in the community".
Step 1
Discover evidence of malpractice.
Discover proof to establish the dentist's negligence. Just because a dental procedure ends with a bad result does not mean it necessarily constitutes malpractice. The first step is to request the dental records of the dentist. All patients are entitled to a copy of their dentists' records. The dentist's records will outline the diagnosis, course of treatment and procedures performed. Any expert that will conclude that malpractice occurred will start with the dentist's records.
Step 2
Assess the damages suffered
Assess the plaintiff's damages. Damages for malpractice are usually awarded in a dollar amount to the plaintiff. A plaintiff should be awarded for all allowed damages related to the specific malpractice act. Those damages will be all out of pocket expenses related to the malpractice. This would include the medical cost to correct the damages incurred. There would also be subjective damages for pain and suffering, and so forth.. If the plaintiff lost time from work, then an amount for lost wages past and future should asserted.
Step 3
File suit in a timely matter
File the lawsuit in a timely manner in the right court. A malpractice lawsuit is too complex to file in a small claims court and should be filed in a court of record with unlimited jurisdiction. The specifics of the malpractice act should be spelled out in the complaint. Every state has a time limit to file a malpractice lawsuit. The time to file may be one year or it may be five years depending on the state where the malpractice occurred and where the lawsuit will be filed. For example, in Tennessee you have only one year to file a malpractice lawsuit. The limitation period begins to run when the prospective plaintiff knew or should have known of the malpractice. Most states have a statute of repose, and after a certain number of years any malpractice claim is barred regardless of lack of notice.
Step 4
Find an expert that will attest to the malpractice
Find an expert to testify against the dentist at fault. To prove any case involving medical or dental malpractice, another licensed dentist has to be retained to say the dentist committed malpractice. The other dentist, the plaintiff's expert, will have to testify that he has reviewed the medical file, considered the facts and examined the plaintiff. The expert must conclude that in his opinion the defendant dentist deviated from the acceptable standard of care in the community where the defendant dentist practiced dentistry(and the deviation caused the injuries asserted). And the expert should be aware of the standard of care in the community at issue (where the defendant was practicing) , as the standard in Hope, Arkansas, may be different than the standard of care in New York City.
Tips
* Malpractice lawsuits against doctors or dentists are some of the most complicated lawsuits to pursue. Very few individuals could deal with all the legal complexities of a malpractice lawsuit without prior legal training
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Friday, April 22, 2011
How to Find the Best Attorneys and Lawyers
How to Find the Best Attorneys and Lawyers
Overview
How to find the best lawyer to represent your in your case.
In the event someone is faced with a legal obstacle, the first question is "how can I find a good lawyer." All lawyers are trained in the law and have a degree from a reputable law school. And all practicing lawyers have passed a board exam to become a licensed attorney in his state. That said, it is no secret that not all lawyers are equally qualified and it goes to reason that if one is facing a major legal battle she wants the best lawyer available on her case. Finding the best lawyer can be done several ways.
Step 1
Consider lawyers that advertise. Many lawyers that advertise on television or in the yellow pages list their specialty. However, just because a lawyer advertises does not mean that she is a good lawyer. It should mean that she practices in a certain area of the law and has experience in that specialty. You might want to avoid a lawyer who practices a little of everything and, in essence, is a "jack of all trades and a master of none." Feel free to ask any lawyer about how many cases she has litigated that are similar to your case and how many of those cases that she won.
Step 2
Ask friends, relatives or other lawyers. Almost everyone has had a need for a lawyer at some point in his life, and most people can recommend or not recommend a lawyer for a specific task. The best reference is from an actual lawyer. Active lawyers know better than anyone else the best lawyers in their field of expertise. A defense lawyer will know the best plaintiff lawyers in his jurisdiction. A criminal prosecutor will know the best criminal defense lawyers, and so forth.
Step 3
Go to the court house and watch the attorneys in action. Go to court on a motion day when a number of attorneys will address the judge over a small period of time. Be sure to go to a criminal court if you have a criminal issue, and a civil court for a non-criminal issue. Listening to the various attorneys as they argue for their client will give you a wealth of information about each attorney's courtroom experience and knowledge of the law.
Step 4
Check databases of lawyers such as Findlaw. There are a number of Internet sites that keep an extensive database of attorneys in every state. The attorney's name, address and specialty is listed. However, little is said about the attorney's qualifications on most databases. One publication, Martindale-Hubble is a valuable resource, as the listed attorneys are rated by their fellow lawyers in their degrees of expertise and proficiency.
Step 5
Interview as many attorneys as possible after you have narrowed down your list to those you are most interested in. Just because an attorney has a great reputation does not mean that he is the right fit for you. In the interview, ask the attorney who will be handling the case, whether it will be him or a junior associate. Ask yourself how you feel about the overall feel of the office. For example, is there a professional atmosphere and does the staff seem courteous and competent? Not only are you hiring the lawyer, you are also hiring his staff.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues, and screenplays.
Overview
How to find the best lawyer to represent your in your case.
In the event someone is faced with a legal obstacle, the first question is "how can I find a good lawyer." All lawyers are trained in the law and have a degree from a reputable law school. And all practicing lawyers have passed a board exam to become a licensed attorney in his state. That said, it is no secret that not all lawyers are equally qualified and it goes to reason that if one is facing a major legal battle she wants the best lawyer available on her case. Finding the best lawyer can be done several ways.
Step 1
Consider lawyers that advertise. Many lawyers that advertise on television or in the yellow pages list their specialty. However, just because a lawyer advertises does not mean that she is a good lawyer. It should mean that she practices in a certain area of the law and has experience in that specialty. You might want to avoid a lawyer who practices a little of everything and, in essence, is a "jack of all trades and a master of none." Feel free to ask any lawyer about how many cases she has litigated that are similar to your case and how many of those cases that she won.
Step 2
Ask friends, relatives or other lawyers. Almost everyone has had a need for a lawyer at some point in his life, and most people can recommend or not recommend a lawyer for a specific task. The best reference is from an actual lawyer. Active lawyers know better than anyone else the best lawyers in their field of expertise. A defense lawyer will know the best plaintiff lawyers in his jurisdiction. A criminal prosecutor will know the best criminal defense lawyers, and so forth.
Step 3
Go to the court house and watch the attorneys in action. Go to court on a motion day when a number of attorneys will address the judge over a small period of time. Be sure to go to a criminal court if you have a criminal issue, and a civil court for a non-criminal issue. Listening to the various attorneys as they argue for their client will give you a wealth of information about each attorney's courtroom experience and knowledge of the law.
Step 4
Check databases of lawyers such as Findlaw. There are a number of Internet sites that keep an extensive database of attorneys in every state. The attorney's name, address and specialty is listed. However, little is said about the attorney's qualifications on most databases. One publication, Martindale-Hubble is a valuable resource, as the listed attorneys are rated by their fellow lawyers in their degrees of expertise and proficiency.
Step 5
Interview as many attorneys as possible after you have narrowed down your list to those you are most interested in. Just because an attorney has a great reputation does not mean that he is the right fit for you. In the interview, ask the attorney who will be handling the case, whether it will be him or a junior associate. Ask yourself how you feel about the overall feel of the office. For example, is there a professional atmosphere and does the staff seem courteous and competent? Not only are you hiring the lawyer, you are also hiring his staff.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues, and screenplays.
Thursday, April 21, 2011
How To Conduct An Accident Investigation
How to Conduct an Accident Investigation
Overview
Accidents occur thousands of times each day. Most accidents require one or more individuals to investigate its circumstances to see how it happened, who caused it, and how it could have been avoided. Many times the facts discovered in the investigation will be pertinent to a claim by the injured party for damages and relevant to future settlement negotiations or a civil trial to assess fault and damages.
Step 1
Inspect the scene of the accident as soon as possible. Whether the accident is a car wreck or a slip and fall, it is imperative to do a thorough inspection of the accident scene. Take photographs of the scene from several angles. If there was a car wreck, take photos of skid marks and all vehicles involved. If there was a slip and fall then look for any slippery substances or obstructions on the floor. Note the lighting conditions and whether there were warning signs that may exculpate future liability.
Step 2
Interview relevant witnesses.
Interview all witnesses. Some witnesses may have actually observed the accident as it occurred. And other witnesses, such as police officers or emergency medical personnel, are witnesses that arrive at the scene after the accident. The early impressions of all witnesses about what they saw or recorded in a report is critical to understanding how the accident occurred. Record addresses and phone numbers of all witnesses for future reference.
Step 3
Get a statement from the injured party.
Record a statement from the injured party. At the first opportunity, get an in-depth statement from the injured party. Find out exactly how the injured party claims the injury occurred, the specifics of the resulting injury, and the names of all witnesses that the injured party can remember, including contact information. The questions should include information about the medical history of the injured party in the past and the medical history related to the incident at issue.
Step 4
Prepare a written report and open file.
Prepare a final incident report. A written report and an open file outlining everything that has been discovered about the injury will need to be prepared. The file will include all statements from witnesses and the injured party, and all photographs taken in the investigation. The documents to be included will be any related police or medical reports completed. The investigator should prepare his own summary outlining his findings and his own assessment of how the injury occurred and the extent of the injuries.
Tips
* The most important thing in investigating an accident is to get to the scene and question the witnesses as soon as possible. People will forget the facts as time goes on and the accident scene will change likewise as time passes.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Overview
Accidents occur thousands of times each day. Most accidents require one or more individuals to investigate its circumstances to see how it happened, who caused it, and how it could have been avoided. Many times the facts discovered in the investigation will be pertinent to a claim by the injured party for damages and relevant to future settlement negotiations or a civil trial to assess fault and damages.
Step 1
Inspect the scene of the accident as soon as possible. Whether the accident is a car wreck or a slip and fall, it is imperative to do a thorough inspection of the accident scene. Take photographs of the scene from several angles. If there was a car wreck, take photos of skid marks and all vehicles involved. If there was a slip and fall then look for any slippery substances or obstructions on the floor. Note the lighting conditions and whether there were warning signs that may exculpate future liability.
Step 2
Interview relevant witnesses.
Interview all witnesses. Some witnesses may have actually observed the accident as it occurred. And other witnesses, such as police officers or emergency medical personnel, are witnesses that arrive at the scene after the accident. The early impressions of all witnesses about what they saw or recorded in a report is critical to understanding how the accident occurred. Record addresses and phone numbers of all witnesses for future reference.
Step 3
Get a statement from the injured party.
Record a statement from the injured party. At the first opportunity, get an in-depth statement from the injured party. Find out exactly how the injured party claims the injury occurred, the specifics of the resulting injury, and the names of all witnesses that the injured party can remember, including contact information. The questions should include information about the medical history of the injured party in the past and the medical history related to the incident at issue.
Step 4
Prepare a written report and open file.
Prepare a final incident report. A written report and an open file outlining everything that has been discovered about the injury will need to be prepared. The file will include all statements from witnesses and the injured party, and all photographs taken in the investigation. The documents to be included will be any related police or medical reports completed. The investigator should prepare his own summary outlining his findings and his own assessment of how the injury occurred and the extent of the injuries.
Tips
* The most important thing in investigating an accident is to get to the scene and question the witnesses as soon as possible. People will forget the facts as time goes on and the accident scene will change likewise as time passes.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
How To Negotiate A Fair Settlement
How to Negotiate Settlements Without an Attorney
Overview
A personal injury caused by the negligence of someone else is an ordeal. In most instances, there is liability insurance coverage to pay the innocent claimant for damages. If an individual decides to pursue a claim on their own without an attorney, they need to understand the law, remedies available and how to submit a demand package.
Step 1
Know All Damages Allowed By Law
The law in every state allows recovery from the at-fault party for damages incurred. Any related out-of-pocket expenses are to be reimbursed to the injured party. The out-of-pocket expenses to consider are medical expenses, including travel costs, property damages and related drug costs. Lost wages from work are also recoverable. And subjective damages for a reasonable amount for pain and suffering and loss of enjoyment of life are to considered.
Step 2
Provide Complete Medical Records and Bills
If an individual is pursuing a claim without an attorney, then it will be their responsibility to document their losses. To go forward with a settlement demand, the injured party will have to have medical records and copies of itemized medical bills and prescription drug charges. The doctor's records should reflect specifics of the injury and a causal connection to the incident that was caused by the at-fault party and the doctor's final prognosis.
Step 3
Provide Documentation Of Lost Wages
The innocent party should also recover for lost wages resulting from time away from work caused by dealing with the accident at issue. The treating doctor needs to address the claimant's inability to work because of the injury at issue. And corresponding written documentation needs to be supplied by the claimant's employer regarding the lost time away from work and the average amount of the injured party's normal pay.
Step 4
Prepare Demand Package Documenting All Injuries
Once a party knows the full extent of their injuries related to the act of the at-fault party's negligence, then the demand package has to be prepared and submitted to the liability insurance carrier. The package provides written documentation for all out-of-pocket damages and a reasonable demand for pain and suffering, which, depending on the injury, could be as much as ten times the actual out-of-pocket expenses.
Step 5
Negotiate with an Adjuster to Arrive at a Fair Settlement
An adjuster will be assigned to the claim and will make contact with the injured claimant requesting a statement and copies of all documents related to the claimant's losses. Ultimately, the final demand package with the related documents is provided to the adjuster, who will negotiate with the claimant to arrive at a fair and reasonable final dollar settlement, evidenced by a documented and executed release signed by the claimant.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Overview
A personal injury caused by the negligence of someone else is an ordeal. In most instances, there is liability insurance coverage to pay the innocent claimant for damages. If an individual decides to pursue a claim on their own without an attorney, they need to understand the law, remedies available and how to submit a demand package.
Step 1
Know All Damages Allowed By Law
The law in every state allows recovery from the at-fault party for damages incurred. Any related out-of-pocket expenses are to be reimbursed to the injured party. The out-of-pocket expenses to consider are medical expenses, including travel costs, property damages and related drug costs. Lost wages from work are also recoverable. And subjective damages for a reasonable amount for pain and suffering and loss of enjoyment of life are to considered.
Step 2
Provide Complete Medical Records and Bills
If an individual is pursuing a claim without an attorney, then it will be their responsibility to document their losses. To go forward with a settlement demand, the injured party will have to have medical records and copies of itemized medical bills and prescription drug charges. The doctor's records should reflect specifics of the injury and a causal connection to the incident that was caused by the at-fault party and the doctor's final prognosis.
Step 3
Provide Documentation Of Lost Wages
The innocent party should also recover for lost wages resulting from time away from work caused by dealing with the accident at issue. The treating doctor needs to address the claimant's inability to work because of the injury at issue. And corresponding written documentation needs to be supplied by the claimant's employer regarding the lost time away from work and the average amount of the injured party's normal pay.
Step 4
Prepare Demand Package Documenting All Injuries
Once a party knows the full extent of their injuries related to the act of the at-fault party's negligence, then the demand package has to be prepared and submitted to the liability insurance carrier. The package provides written documentation for all out-of-pocket damages and a reasonable demand for pain and suffering, which, depending on the injury, could be as much as ten times the actual out-of-pocket expenses.
Step 5
Negotiate with an Adjuster to Arrive at a Fair Settlement
An adjuster will be assigned to the claim and will make contact with the injured claimant requesting a statement and copies of all documents related to the claimant's losses. Ultimately, the final demand package with the related documents is provided to the adjuster, who will negotiate with the claimant to arrive at a fair and reasonable final dollar settlement, evidenced by a documented and executed release signed by the claimant.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Statutes Of Limitations For Bodily Injuries
Statute of Limitations for Bodily Injuries
Overview
If someone other that the injured party caused an injury, then an issue always arises as to how long does the injured party have to bring a legal action against the at-fault party. Each state has specific time frames in which the injured party must file a legal action against the at-fault party, and if that time period lapses then the suit is barred by a statute of limitations.
Legal Definition of Bodily Injury
Bodily injury is an injury to the human body. This can occur in a car accident, a slip-and-fall in a gas station parking lot or many other ways. Bodily injury can also result in mental and emotional harm to an injured party, and this too is considered bodily injury. Damages for pain and suffering, mental anguish and loss of enjoyment of life are also bodily injury damages.
Each state has its own time limitations
If someone causes another to suffer a bodily injury, then the state where the injury occurred will determine the applicable statute of limitations. In some states it may only be one year from the injury date, while in others it may be five years. Regardless, if the injured party does not file a lawsuit against the at-fault party within the statute of limitations and then later attempts to bring suit, his claim will be barred.
Tolling of Statute of Limitation
On most types of bodily injuries in most states the statute of limitations can be tolled. The term "tolled" means that an injured party has time beyond the time frame of a state's limitation period to still file suit until certain events occur. In essence, a minor will usually have additional time to file suit within a time frame after she reaches an adult age of majority, as defined by the state. The actual date that an injured party knows or should have known a doctor or lawyer committed malpractice begins the tolling of the limitation period. Also, injured parties that are mentally incompetent by the injury or otherwise are given additional time to file suit.
Certain injuries have unique statutes of limitations.
Most bodily injuries and the applicable statute of limitations are grouped generally. However, certain types of injuries that occur have their own statue of limitations. For example, most states have unique limitation periods as to the time frame to bring suit against a doctor or hospital, and similarly with lawyers and malpractice. Defective product claims also have their own unique statutes of limitations in most states.
A statute of repose can bar a suit forever.
In considering the statute of limitations as to bodily injury claims, it is important to address any statutes of repose that may apply to the injury at issue. For example, in most states a product liability claim against a home builder or a manufacturer will be barred after a certain amount of years regardless of any tolling provisions discussed above (and forever barred). The statute of repose is usually considerably longer than the number of years allowed under the statute of limitation to file suit
Keywords
Overview
If someone other that the injured party caused an injury, then an issue always arises as to how long does the injured party have to bring a legal action against the at-fault party. Each state has specific time frames in which the injured party must file a legal action against the at-fault party, and if that time period lapses then the suit is barred by a statute of limitations.
Legal Definition of Bodily Injury
Bodily injury is an injury to the human body. This can occur in a car accident, a slip-and-fall in a gas station parking lot or many other ways. Bodily injury can also result in mental and emotional harm to an injured party, and this too is considered bodily injury. Damages for pain and suffering, mental anguish and loss of enjoyment of life are also bodily injury damages.
Each state has its own time limitations
If someone causes another to suffer a bodily injury, then the state where the injury occurred will determine the applicable statute of limitations. In some states it may only be one year from the injury date, while in others it may be five years. Regardless, if the injured party does not file a lawsuit against the at-fault party within the statute of limitations and then later attempts to bring suit, his claim will be barred.
Tolling of Statute of Limitation
On most types of bodily injuries in most states the statute of limitations can be tolled. The term "tolled" means that an injured party has time beyond the time frame of a state's limitation period to still file suit until certain events occur. In essence, a minor will usually have additional time to file suit within a time frame after she reaches an adult age of majority, as defined by the state. The actual date that an injured party knows or should have known a doctor or lawyer committed malpractice begins the tolling of the limitation period. Also, injured parties that are mentally incompetent by the injury or otherwise are given additional time to file suit.
Certain injuries have unique statutes of limitations.
Most bodily injuries and the applicable statute of limitations are grouped generally. However, certain types of injuries that occur have their own statue of limitations. For example, most states have unique limitation periods as to the time frame to bring suit against a doctor or hospital, and similarly with lawyers and malpractice. Defective product claims also have their own unique statutes of limitations in most states.
A statute of repose can bar a suit forever.
In considering the statute of limitations as to bodily injury claims, it is important to address any statutes of repose that may apply to the injury at issue. For example, in most states a product liability claim against a home builder or a manufacturer will be barred after a certain amount of years regardless of any tolling provisions discussed above (and forever barred). The statute of repose is usually considerably longer than the number of years allowed under the statute of limitation to file suit
Keywords
How To File A Civil Complaint
How to File a Civil Complaint in Court
Overview
A civil complaint is a lawsuit filed in a court that handles civil matters. Unlike a criminal lawsuit, a civil complaint deals with disputes between individuals or business entities. Common civil lawsuits are matters such as auto accident claims, breach of contract and defamation claims. The suit may be argued in front of a judge or a jury, depending on both parties' preferences. Complaints in a small claims court are heard only by a judge.
Step 1
Find the proper court in which to file
Examine the nature of your claim and the proper court in which to file, ensuring that the court has jurisdiction over both the subject matter and the parties involved. Every county will have designated courts to hear civil matters, which typically are disputes between individuals or business entities. A small claims court can hear minor claims and are tried only before a judge; if you desire a jury trial, you must request one in a court that allows jury trials.
Step 2
The complaint should be formatted properly.
Format your complaint in an organized manner. The complaint will outline your claim and the damages against the defendant. The first section will be the name of the court where filed. For example, it would read as follows, "In The Seventh District Civil Circuit Court Madison County." The second section would name the parties and their respective addresses. The third section would be headed "The Plaintiff's Allegation of Facts", in other words, your facts asserted against the defendant. The facts may be a breach of contract, an auto accident or any wrongful act. The fourth section would be "The Allegation Of Damages And Prayer For Relief." The damages section will outline your damages and include the verdict you want the court to render. If you request a jury trial, this should be included in bold print somewhere on the complaint. After your complaint is complete, you will then sign and date. Make several copies.
Step 3
The defendant needs to know the wrong being asserted
Write out all the facts relied upon by you to support your complaint against the defendant. Allegations of fact are usually listed in short paragraphs, with each paragraph numbered sequentially. Include specific dates and the details of any wrongful actions to support your complaint. Ensure the defendant has ample notice of why she is being sued. And, likewise, explain the damages you are asserting and what legal relief you are asking the court to grant. If your claim is nominal and you are filing in a small claims court, this usually will only be a one-page form and the details need not be quite as specific.
Step 4
File your complaint and have it served on the defendant.
File your complaint with the proper court and have the court's clerk issue a summons to the defendant. Pay a filing fee, which varies from court to court. The summons and your complaint will then be served by a sheriff's deputy or private process server. Whoever serves the papers will note the date of service on the summons and return it to the court of filing. The defendant will then have a certain number of days to file a written response. Small claim lawsuits do not usually require an answer, and the summons to the defendant will merely designate the initial trial date in the near future.
Skill
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Overview
A civil complaint is a lawsuit filed in a court that handles civil matters. Unlike a criminal lawsuit, a civil complaint deals with disputes between individuals or business entities. Common civil lawsuits are matters such as auto accident claims, breach of contract and defamation claims. The suit may be argued in front of a judge or a jury, depending on both parties' preferences. Complaints in a small claims court are heard only by a judge.
Step 1
Find the proper court in which to file
Examine the nature of your claim and the proper court in which to file, ensuring that the court has jurisdiction over both the subject matter and the parties involved. Every county will have designated courts to hear civil matters, which typically are disputes between individuals or business entities. A small claims court can hear minor claims and are tried only before a judge; if you desire a jury trial, you must request one in a court that allows jury trials.
Step 2
The complaint should be formatted properly.
Format your complaint in an organized manner. The complaint will outline your claim and the damages against the defendant. The first section will be the name of the court where filed. For example, it would read as follows, "In The Seventh District Civil Circuit Court Madison County." The second section would name the parties and their respective addresses. The third section would be headed "The Plaintiff's Allegation of Facts", in other words, your facts asserted against the defendant. The facts may be a breach of contract, an auto accident or any wrongful act. The fourth section would be "The Allegation Of Damages And Prayer For Relief." The damages section will outline your damages and include the verdict you want the court to render. If you request a jury trial, this should be included in bold print somewhere on the complaint. After your complaint is complete, you will then sign and date. Make several copies.
Step 3
The defendant needs to know the wrong being asserted
Write out all the facts relied upon by you to support your complaint against the defendant. Allegations of fact are usually listed in short paragraphs, with each paragraph numbered sequentially. Include specific dates and the details of any wrongful actions to support your complaint. Ensure the defendant has ample notice of why she is being sued. And, likewise, explain the damages you are asserting and what legal relief you are asking the court to grant. If your claim is nominal and you are filing in a small claims court, this usually will only be a one-page form and the details need not be quite as specific.
Step 4
File your complaint and have it served on the defendant.
File your complaint with the proper court and have the court's clerk issue a summons to the defendant. Pay a filing fee, which varies from court to court. The summons and your complaint will then be served by a sheriff's deputy or private process server. Whoever serves the papers will note the date of service on the summons and return it to the court of filing. The defendant will then have a certain number of days to file a written response. Small claim lawsuits do not usually require an answer, and the summons to the defendant will merely designate the initial trial date in the near future.
Skill
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Wednesday, April 20, 2011
How To Cross-Examine An Expert Witness
The need to cross-examine an expert witness arises most often during the proceedings of a civil or criminal trial, when the expert is offered by the opposing side. If the expert has testified in your favor there would obviously be no need to cross-examine. Many matters during litigation are beyond the knowledge of most jurors or judges. There are certain areas where the training and experience of an expert is required to explain critical information relevant to the issue. When one attorney offers the testimony of an expert to support his case, then the other attorney will have the opportunity to question the opposing expert in what is called cross-examination.
Reserch The issue
Research the issue that the expert will address. Any attempt to cross-examine an expert without preparation would be a futile endeavor. If someone is deemed an expert, the cross-examiner can assume the expert is far more knowledgeable about the subject. The cross-examiner needs to have researched the issue. Thoroughly understand the issue and all relevant evidence. All relevant documents, reports, records and so forth need to be reviewed and highlighted. In essence, there should be no surprises.
Find Ways To Discredit The Expert
Find any way to discredit the opponent's expert. In most litigated matters, it is usually one expert disagreeing with another expert. Sometimes the best way to support your position is to discredit the opponent's expert. Some experts may have testified only for defendants 90 percent of the time. Some experts have committed malpractice or been disciplined by their fellow professionals. Many times there is inconsistency in an expert's prior report or testimony. Anything presented that can discredit the expert will make your expert seem more credible than the opponent's expert.
Rely On Industiry Publications
Research relevant industry publications. There are professional publications addressing almost any matter where an expert would be needed. These publications are research studies prepared by other experts in the field to educate and inform professionals of pertinent findings. There are manuals and guidebooks as well. Some of the instructions and findings in these recognized publications may contradict the expert's opinions. If the publication is recognized, then the cross-examiner can question why that expert's opinion differs from what is found in these professional manuals or research studies. The key is to get the expert to agree that the publication is generally accepted and relied upon by professionals in the field.
Consult With Your Expert
Rely upon your own expert. By the time you cross-examine the opponent's expert, you should have retained your own opposing expert. The expert to be deposed will have most likely prepared a written statement provided in discovery. Your expert will be familiar with all documents, photos and any records. Remembering that the opposing expert is more knowledgeable about the subject than you, go over all the facts and relevant technical issues with your own expert before the deposition. Your expert can point out essential flaws in the opponent's position, and will have key questions to submit in hopes of discrediting the opponent's expert.
How To Handle An Automobile Accident Claim
How to Handle Auto Accident Claims
Overview
Auto accidents have been inevitable ever since the car was invented.
Hundreds of auto accidents occur every day, and someone will be responsible for investigating the claim. It will be the investigator's responsibility to determine what caused the accident and what damages, if any, are associated with the claim. The investigator may work for an insurance company as an adjuster or may be a legal assistant for the law firm of the injured party. Regardless, the procedures and information retrieved will, in essence, be the same type of evidence to resolve the claim
Step 1
Interview all witnesses as soon as possible.
Interview all witnesses as soon as possible. The first and foremost witnesses to interview would be the actual parties to the car wreck. All parties should be interviewed as soon as possible to record what each one claims caused the accident, and what injuries, if any, are being asserted. Get the name and addresses of any witnesses and take their statements as soon as possible. Be sure to get all verifiable addresses and phone numbers for future contact. Forward medical releases to the injured parties so any medical records can be obtained.
Step 2
Police reports contain valuable information
Retrieve all initial reports filed. In most car accidents, the authorities are called to the scene of the accident. A policeman will usually be at the scene to issue any citation and to prepare an accident report. This accident report will contain valuable information about the accident. It will quote the observations of the parties and any witnesses. It will give an initial assessment of damages, including any physical injuries. A diagram will be drawn to duplicate the officers' assessment of how the accident occurred. Every city or county files these reports at the local police station. The reports are normally available to the public for a small fee.
Step 3
Photographs can document much of what happened
Take photographs of all relevant evidence. As soon as possible, visit the scene of the accident and photograph the scene from several directions. Note and photograph any skid marks that may be relevant. Go to the body shop to photograph the damaged vehicles from several angles. These photographs will be valuable information to any experts retained and can be used in a prospective trial to help explain how the accident occurred.
Step 4
Doctors' assessment of injuries is vitally important
Acquire all medical records and doctor's office notes relevant to the injuries allegedly sustained in the auto accident. Request medical records from the emergency medical team at the scene, as well as the emergency room records and names of the treating doctors. The medical providers should also provide an itemized list of any and all medical expenses incurred. The treating doctor should address the issue of causation. Did the accident at issue cause the injuries at issue? The treating doctor should address whether there will be any permanent impairment or future medical bills related to the injuries sustained in the car accident.
Step 5
Work out a settlement.
Attempt to negotiate a fair settlement. Once all the relevant evidence has been acquired and the injured party has been released by the doctor with a final prognosis, the parties should attempt to settle the matter out of court. The settlement usually is in a dollar amount, considering all the injured party's out-of-pocket expenses and any lost wages in the past or projected in the future. A reasonable amount should be included for pain and suffering. Relative fault also should be a factor in any proposed settlement.
Skill
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
Judging The Severity Of A Car Accident
View Article: How to Judge the Severity of a Car Accident
David Burlison,JD
Overview
The first accident did not follow very far behind the first car to take the road. Most accidents are minor fender benders, but some are severe, causing death or permanent injuries. Judges, juries and insurance adjusters are routinely called upon to assess the severity of an accident. They will consider all relevant information before them as evidence and decide if damages should be awarded.
Step 1
Assess the property damage. The damage to the vehicles is the first sign of the severity of a car accident. Accidents range from minor fender benders to major crashes totaling all the vehicles involved. Logically, devastating property damage would indicate a severe accident.
Step 2
Consider the injuries to the humans involved in the accident. The most severe accidents are those that result in the loss of human life. Arriving at a dollar amount for loss of life should be relative to the overall loss resulting from the bodily injuries. The actual out-of-pocket cost for medical care required is relatively easy to compute, but the mental and physical pain is far more subjective.
Step 3
Calculate the pain and suffering. Serious injuries or death not only effect the victim, but family members will suffer, too. A young boy in a wheelchair for the rest of his life will have a huge price to pay. Likewise, his family will have a steep price to pay monetarily and emotionally.
Step 4
Assess loss of income to the victim and his family. A injured victim that was hospitalized will have a loss of income to him and his family. Some injuries will result in permanent disabilities and future loss of income. There may be occasions where a family member will have a loss of income as the caregiver to the injured party. The emotional toll of no longer being able to work should also be considered as an additional element of pain and suffering.
David Burlison practiced law for 25 years In Tennessee and Mississippi. He has traveled extensively throughout the world, and once lived and worked in the U.S. Virgin Islands. He has published numerous articles with Demand Studios, Ezine Articles, GoTo Articles and Hubpages. His publications have covered subjects dealing with law, travel and various social issues.
A Layman's Guide To Legal Matters
This blog will provide general discussion of relevant legal issues in a layman's language. I am David Burlison, an attorney that practiced law in Tennessee and Mississippi twenty-five years.
Reading my discussions on various legal issues is not to be construed as giving anyone legal consultation, and all legal matters should be addressed by a licensed attorney in your respective state. However, I have tried to address common legal matters that anyone might face so that one might have a general understanding of a legal matter before they consult their attorney. And I've tried to word the discussions in a way more understandable to the average layman in this regard.
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