Attorney Proz – Legal Blog and Other Helpful Information

How to Avoid the 12 Biggest Mistakes People Make in Hiring a Lawyer

March 23rd, 2013

I hate to see people taken advantage of and I hate to see people suffer after choosing the wrong lawyer. Maybe those are two of the reasons that I became a lawyer, so that I could do something about those situations. I have seen clients who had lawyers neglect their cases for not just weeks but years. I have heard complaints about lawyers who would not tell the client what was going on with their cases, but would bill the client when the client called to ask what was happening. I have heard complaints about lawyers who took money from clients without a clear understanding of the expectations on either side.

I also hate to have to clean up a mess made by another lawyer. It is much easier to assist a client and avoid potential problems than it is to repair damage from choosing the wrong lawyer. I have seen poorly drafted prenuptial agreements and separation agreements. I have had to step in to repair and finish a botched annulment. I have had to step in to repair and finish a botched divorce.

One woman’s tale of woe especially comes to mind. Around the office, we call her story “The Tale of the Nine Year Divorce.” She had hired an attorney to defend a divorce action here in Virginia and to counter sue for divorce. She was living out of state at the time and paid the attorney a significant retainer. There was no written contract. The lawyer she had chosen seemed to be afraid of the opposing counsel and did nothing to move the case forward. In fact, the lawyer allowed the case to be dismissed from the court docket for inaction.

Cases are not dismissed on this basis without prior notice to counsel of record. The lawyer did not notify his client of the potential dismissal. It was not until the court notified her of the dismissal that she found out what had happened. The client was in an automobile accident, as a result of which she was hospitalized and undergoing multiple surgeries. She trusted her lawyer to look out for her interests; she did not know or understand what should have been taking place and had no idea until she received notification from the court that the case had been dismissed.

When the client contacted the lawyer, he had the case reinstated. However, it was not until the opposing attorney withdrew from the case, that the lawyer acted to put forward the interests of his client. Meanwhile, the lawyer allowed the woman’s husband to abscond, fleeing the jurisdiction of the court, with the bulk of the marital assets. The lawyer did get an order of spousal support, but did nothing effective to collect or enforce the spousal support order against the defendant who was not paying.

In fact, the lawyer allowed tens of thousands of dollars of arrears to accumulate. Meanwhile, the lawyer asked for and got a court award of $10,000 of attorney’s fees from the absconded husband. When the lawyer realized that the husband had spent the money and the attorney fee award would not be easily collected, he began to demand money from the client. Being disabled and not having received a penny of the support award, she was unable to pay the lawyer and he withdrew from her case at the final hearing. Needless to say all of this left the woman with a bad taste in her mouth when it comes to lawyers.

The woman heard about me and came to me despite having had a bad experience, because she was in need of help. We were able to finish up the divorce and property division, which had been started 9-10 years prior and we began enforcement of the support award by attaching social security and retirement income due her husband.

Through our efforts collection began and an income stream began to flow to the client. We were also able to successfully defend the woman from an attempt by her husband to stop support payments and at the same time recover some of the items of personal property which had been awarded to her by the court. The woman still had to defend herself from a law suit brought by the lawyer who was demanding over $10,000 and had not credited the retainer which the woman paid at the beginning of the representation.

I have written this article in hopes that it may help you avoid the costly mistakes of the Nine Year Divorce.
There are two areas where people make mistakes. The first area is in selecting the lawyer and the second area is mistakes made after selecting the lawyer.


COMBINED EXPERIENCE HYPE. Law firms that tout “*** years of combined experience” are probably trying to magnify or enhance their credentials. If you are looking for a lawyer with experience, this hype does little to inform you of the actual experience of the individual lawyers. My question is if the lawyers each have significant years of experience, why don’t they say how much experience each lawyer has? Why? Because it sounds grander to use the combined figure. Even an ant looks like a mighty monster under a magnifying glass.

LAUNDRY LIST HYPE. Law firms that have a laundry list of services may not be the best choice for your situation. Remember the proverb “Jack of all trades, master of none”? You can certainly be a jack of all trades, but can you be a master at all trades? How much of the practice of the firm is devoted to your type of case? For example, does the law firm (and the particular lawyer) you are considering devote a significant portion of the practice to the type of case for which you are seeking representation?

Perhaps you are looking at one stop shopping and it is important to you to find a lawyer or law firm that can handle multiple matters for you. Then you may want to ask if the lawyer handles each of those areas, but you should also ask how much of the practice is devoted to each area and how much experience the lawyer has in each area. Are there client testimonials available for each area? Think carefully and decide if it may be worthwhile to seek out a more specialized practice for each of your problems.

BIGGER IS BETTER HYPE When it comes to law firms, bigger is not necessarily better, much less the best. If you want personal attention, you may find that a medium sized or smaller firm will be more attentive. Law firms that have group photographs with all of the clerks and secretaries are trying to look bigger to compete with mega firms with dozens or hundreds of lawyers. But in the final analysis size does not matter; bigger is not better than smaller, nor is smaller better than bigger. What does matter is personal care and attention. This is something that you will have to ask about and be sensitive to as you call on various lawyers and law firms in your search for the right lawyer and law firm for you and for your case.

IF IT SOUNDS TOO GOOD TO BE TRUE… [CHOOSING A LAWYER BASED ON COST] Cheapest is seldom the best. On the other hand, just because something costs a lot does not make it better than something that costs less. Would you choose a doctor or dentist based on how cheap his services are? No, not if you can help it. You want the best doctor, the most attentive doctor, the smartest doctor, the most knowledgeable doctor at the best price. Cost may be a legitimate factor in choosing a lawyer but it should be the last and least significant factor. Cost certainly should not override other factors such as ability, experience, reputation within the legal community and client testimonials. Can you afford cheap legal advice that may be bad or wrong?

ASSUMING AND NOT CHECKING Related to falling for hype in lawyer advertising is assuming and not checking. Don’t believe the yellow page ads. All lawyers are not equal. You should investigate any lawyer or law firm before engaging them. Inquire about his/her reputation in the legal community. Check out what clients have to say about the lawyer and the law firm. ASSUMING PRE-PAID LEGAL IS THE WAY TO GO. Don’t assume that pre-paid legal is the way to go. Just because you have pre-paid legal available for use does not mean that you should use them. The best lawyers are seldom members of a pre-paid legal service panel. You certainly should not allow the pre-paid attorney to represent you without first investigating him/her.

Of course, you may not need the best lawyer, but you should at least want to insure that the lawyer you choose is a good lawyer for the matter at hand. You should also realize that a lawyer may be a good lawyer for some matters and not for others. This is where knowledge, experience and ability must be weighed and examined. Does the firm or attorney you are considering take a “no holds barred” approach to family law? If so, be prepared for lengthy and expensive proceedings.

You should investigate a pre-paid lawyer as diligently as you would any other lawyer and ask the same questions. If the lawyer does not devote a significant portion of his/her practice to the area of law involved in your matter, you should look elsewhere. If the lawyer does not have a good reputation within the legal community, you should look elsewhere. If the lawyer cannot point to articles written or cases won, if he/she cannot point to client testimonials, you should look elsewhere.

Once you have done your homework and selected the lawyer and law firm you believe will best serve your needs and protect your needs and protect your interests, you could still make costly mistakes in hiring your lawyer.


NOT ASKING FOR A WRITTEN FEE AGREEMENT While oral contracts are recognized at law, enforcement can be problematic and requires proof of the essential terms. Without a written fee agreement, how can you be sure that you and your lawyer have truly reached an understanding? Basic contract law requires that there be a “meeting of the minds” to create a contract. It speaks of “an offer” and “an acceptance”. A written fee agreement serves to clarify and solidify the expectations of the client and the attorney. The agreement should spell out the responsibilities of each party and the parameters of the representation. This protects you and your lawyer. Written fee agreements are recommended by the Virginia State Bar and by the American Bar Association. If your lawyer does not bring up the subject of a written fee agreement or representation agreement, you should do so.

NOT ASKING TO READ A DOCUMENT BEFORE YOU SIGN IT. Whether it’s the fee agreement, a lease, an affidavit or a pleading, just because the document is presented to you by your lawyer, does not mean you should not read it carefully and ask questions about anything you do not understand. If the document is not correct or contains errors or omissions, you should bring those to the attention of your lawyer.

FAILURE TO ASK FOR A COPY OF WHAT YOU SIGN. You should always ask for a copy of a document that you are asked to sign. In our office, when we are retained, we give the client a pocket folder with copies of the fee agreement, office policies and, in appropriate cases, the client divorce manual.

FAILURE TO KEEP COPIES. You should have a safe place to keep important documents. If documents are from an attorney, they are important and worth keeping, at least until the case or matter is concluded and in some instances longer than that. The fact of the matter is, if you don’t keep the copies, you may not be able to get duplicates later. Believe it or not, I have had several clients over the years who were victims of unscrupulous lawyers who destroyed documents to avoid having to produce them when a conflict arose with the client. One actually shredded file documents in front of the client. Aside from those issues, most lawyers do not retain client files forever. In our office, we routinely shred aging closed files to make room for new files. We advise clients to retrieve anything they might want or need from their file when it is closed, because it is subject to destruction.

FAILURE TO ASK QUESTIONS. You should ask a lawyer you are considering who he/she would hire for a case such as yours. You should ask the lawyer you are considering questions about his/her experience and credentials. Can they point to satisfied clients who have given testimonials of their experiences with the lawyer and law firm? Who besides the lawyer will be working on your case? How do they handle telephone calls? How do they charge? What does the lawyer expect of you? How will he/she keep you informed of progress on your case? How does he/she plan to present your case/defense? You should ask questions about court procedures or other procedures pertaining to your case or legal matter. If there are terms that you do not understand, ask your lawyer to explain them to you.

FAILURE TO STAY IN TOUCH. If you move or change employment or telephone numbers, your lawyer may not be able to reach you to communicate about your case. It is important to keep your lawyer abreast of changes in your circumstances, employment and residence contact information.

FAILURE TO PROVIDE A CELL PHONE NUMBER. This is related to the failure to keep in touch. Depending on the nature of the representation, your lawyer may need to be able to reach you quickly. It is frustrating to the lawyer not to be able to reach you and it can adversely impact your case. You should take steps to insure that your attorney is able to reach you and speak with you promptly or within an hour or two. For example, suppose your lawyer is engaged in a negotiation in your behalf. If he/she is unable to reach you at a critical point in negotiation, it could result in “blowing” the negotiation or losing the deal.

In today’s world of instant communication, there is no reason not to facilitate communication with your lawyer.

What mistakes could have been avoided in the Tale of the Nine Year Divorce?

INVESTIGATION-The client could have investigated the lawyer before hiring him. She could have googled him. She could have interviewed more than one lawyer. She could have asked another lawyer who was the best divorce lawyer for a contested case with allegations of adultery and property issues. She could have asked the lawyer for client testimonials or client expressions of their experiences with him.

WRITTEN FEE AGREEMENT-She could have asked for a written fee agreement and a receipt for her retainer. Or she could have written the lawyer a letter setting out her understanding of the representation and of the fee charged or to be charged in the matter and the application of the retainer which she had paid, retaining a copy of the letter for her file.

QUESTIONS-She could have asked the lawyer how he charges and how much he would estimate the case would cost. She could have asked if he had experience with opposing counsel and if he was afraid of her or if he felt confident he could handle the case, despite opposing counsel. She could have asked what to expect and she could have asked about the procedure in a contested Virginia divorce.

She could have asked the lawyer what strategy he planned to use to defend her and how he planned to take her case on the offensive. She could have asked the lawyer how he planned to keep her abreast of developments and progress in her case and how long he estimated it would take to get to final hearing in the case. She could have asked him how he planned to enforce the spousal support order and what could be done to collect the money.

When the lawyer got a court order of attorney’s fees from her husband for $10,000, she could have questioned the lawyer about what he was doing and why. She could have asked for an itemization of charges and whether or not she would be responsible if her husband did not pay.

She could have consulted another attorney or the State Bar to ask about what was going on and what rights she had as a client.

COMMUNICATION – She could have made a greater effort to remain in touch with the lawyer and to keep him abreast of changes in her circumstances, such as her accident and being out of work due to disability from the accident. When time passed without hearing from the lawyer, she could have telephoned the lawyer. When the lawyer failed to return her telephone calls, she could have scheduled an appointment to see him or written him documenting his failure to return her telephone call and asking for a status report and what the next step would be.

When the lawyer began to demand money from the woman, she should have responded to the bills and letters in writing with questions about the charges. She could have demanded an itemization of charges and an accounting of the retainer which she had paid.

SECOND OPINION – When she became dissatisfied with the progress of her case, she could have sought a second opinion and considered changing counsel before the lawyer moved to withdraw from the case, or at least before the lawyer filed suit over the fees. In fact, when the case was dismissed by the court for inaction, she should have sought a second opinion and considered changing counsel and asking for the return of her retainer.

(c) 2009 by Virginia Perry, J.D. This article may be reproduced in whole or in part for personal, non-commercial use, provided the following language is included: “This copy right article/material is reproduced with the permission of the author, Virginia Perry, J.D.”

Virginia Perry, JD is a licensed Virginia attorney and has been actively engaged in the general practice of law with an emphasis on family law and trials for over 30 years.

For more information about Virginia Perry, JD or for additional publications and articles on family law, see the website at

Article Source:

Rental Law For Texas

March 23rd, 2013

Proper knowledge and sufficient information on rental laws in Texas will guide you to get your desired rental property in Texas. Texas housing laws are very clear in most points of tenancy rights and obligation.

Before you sign on any agreement with the landlord, and give him some money you cannot claim it back. The amount is quite small and legal hassles are many. So before you sign on the dotted line check the property and the landlord.

Ask the landlord to give a written list of criterion before you sign any agreement. You will loose your application money even if the landlord rejects your application. Texas housing laws clearly mentions an exception in this front – If the landlord do not post any criterion before hand then he has to return the entire amount the has received from you. (Section 92.3515, Property Code)

Without your application deposit or hold deposit the landlord is under no obligation to keep on hold any property for you. By giving a hold deposit you express an intention to hire the property. Remember application deposit is not application fee. Application fee is the amount you give to the landlord to carry out the background work. So it is typically not refundable.

The landlord has to provide a positive response within seven days, or else the application is ‘deemed rejected’. Although the law do not specify the number of days within which the ‘hold deposit’ or ‘application deposit’ has to be returned, but most agreements has a thirty days time limit for the landlord. (Tex. Prop. Code 92.352).

However, the land law in Texas is not clear what happens if you change your mind. Generally, you are expected to sign the rent agreement within three days of the landlord’s approval. If you change your mind then the landlord can forfeit any application deposit. So, enter this clause in your agreement before hand.

If you think, that the landlord has kept your application deposit in an unfair manner, then tell him in writing why you consider it to be in ‘bad faith’. Under, land laws in Texas you are entitled to $ 100 or three times application deposit, court fees and attorney fees. (Section 92.354, Property Code)

Rental Rights eviction – In Texas Rent laws eviction is also called “forcible entry and detainer” or “forcible detainer” they are generally filed on the Justice the peace or J. P. Court. To evict the tenant the landlord must prove that he has violated the terms of the agreement or not moved on after the landlord has not renewed the tenancy agreement. The landlord must give a proper notice to the tenant before moving court for eviction. In case of non-payment of rent you can plead hardships like loss of job, being in hospital etc. who ever loose has five days to appeal to a higher court.

Don’t get left out in the cold because you didn’t know about standard lease agreements. Be educated so you can live without the hassle of eviction.

Article Source:

Starting Your Own Business? Consult With These Professionals First.

March 17th, 2013

You have decided to take a big step and open your own business, congratulations! Now, really comes the hard part making sure that you have all your bases covered during every step of the way.

Once you start the process of registering your business, you might be surprised at just how many other professionals you are going to want to sit and have a consultation with before you get in too deep. The fact of the matter is, unless you are experienced at opening your own firm, there are going to be a lot of technical and complex issues that you are going to need answers to and just don’t have the time to research. That’s where these professionals come into play.

First things first, you are going to want to speak with a corporate attorney once you get the ball rolling. Why? Because these attorneys have very specialized skills in areas like intellectual property law and contract law that you will be able to consult as your business gets started.

This means that if you are starting your business as a partnership or corporation you can consult a corporate attorney and get their advice on how to best structure your firm and how to make a partnership contract that is fair to all parties involved.

The next person that you are most likely going to want to get a meeting with is an accountant. Business taxes are a lot more complicated than the personal taxes that you are used to. So it is incredibly important that you consult with an accountant because they can inform you on any deductions that you will be eligible for and any other tax benefits specifically related to your business.

Accountants will also be able to work with you to help get your taxes set up, or they can do your taxes for your business. And, since the vast majority of businesses pay estimated taxes on a quarterly basis, those tax bills are going to be coming due a lot sooner than you might realize.

Beyond consulting with a corporate attorney and accountant once you start your business, there are going to be a variety of other professionals that you are going to need depending on how your organization operates.

For instance, if your firm is one that deals in the buying, selling or remodeling of any sort of properties you are certainly going to want to have a real estate lawyer at your disposal. In fact, if you are considering even buying property upon which to develop an office for your company, having a real estate lawyer go over the paperwork is a very smart move.

From there, you might want to also consider speaking with a wealth investment adviser, who will be able to instruct you on how to keep your business and personal incomes and investments separate so as not to run into any tax implications down the line.

Once you have consulted with the proper professionals who can help you set up your business to run smoothly the process quickly becomes much less of a headache down the road.

To find out more about how a corporate attorney or a real estate lawyer can help you with your businesses needs, please visit

Article Source:

Driverless Cars: Whose Liability?

March 15th, 2013

The development of transportation technology is a slow, costly process. The motor vehicles that we use today operate in fundamentally the same way as those first sold to consumers in the early 1900′s. Indeed, only in recent decades has the electric engine developed into a viable substitute for the combustion engine.

The development of the law is a similarly slow process. If not for the ability of Parliament to proactively enact laws, we would have to wait for just the right set of circumstances to arise between disputing parties before the Courts would have an opportunity to make a ruling on an issue thereby making it law. That is not to say that enacting legislation is a swift process: the effect of a statute on the community must be considered and reconsidered over and over again to ensure that there are no unintended side-effects once a law comes into force.

Generally speaking, the law is able to keep up with technology. However, occasionally there are leaps in technological development which are so ground breaking that the law struggles to adapt. A common example is the Internet. It was not long ago that our lives were restricted to our local communities. And then one day we found ourselves socialising and conducting business with others around the world in real-time with essentially a click of a button. The disruptive innovation of the Internet gave rise to a global village in which anything could be achieved and the law did not see it coming. Even now, after two decades of the World Wide Web, there seems to be no fewer unresolved legal issues than there were when we all went online.

On 25 September 2012, Governor Jerry Brown of the State of California in the United States sat down with Google cofounder, Sergey Brin, to sign a bill establishing safety and performance guidelines for autonomous vehicles. The new law permits the operation of driverless vehicles on public roads for testing purposes. California is the third American State to enact legislation facilitating the issuing of road licences to self-driving cars, the other two States being Nevada and Florida. What was recently science fiction is now becoming a reality. How will the law deal with this new challenge?

Google is not the only company developing driverless car technology. General Motors Co., Audi AG, Toyota Motor Corp, Daimler AG and Nissan Motor Co. are among the other players each developing their own systems. Although each system differs from the other in some way, all of them share one common feature: no human input is required.

This new technology poses an interesting question: If a driverless car crashes, who is responsible?

Liability Today

Using a simple example, if a person driving a car was to lose control at speed and crash into a tree, we might consider the following parties as being potentially responsible:

  1. the driver (who we will assume is the owner of the car for the sake of this discussion);
  2. the car dealership who sold the car to the driver;
  3. a mechanic who had recently serviced the vehicle; or
  4. the manufacturer of the car (who for this discussion we will assume produces and assembles all of the parts of a vehicle, including the electronics).

There are numerous factors which would be taken into account in order for the Court to determine who is liable. Depending on the circumstances, multiple parties may be liable where more than one party is found to have materially contributed to the incident resulting in the injury or damage. Where multiple parties are culpable, they would share the liability in the proportions determined by the Court.

Who is liable is a question of fact. Some questions which the Court might seek answers to include:

  • How did the car lose control?
  • Was the driver operating the car responsibly in accordance with traffic rules? Perhaps the driver was using his or her mobile phone at the time of the crash.
  • How about environmental factors such as weather conditions?
  • Was there an unexpected obstacle on the road?
  • What type of terrain was the car driving on?
  • Was the car capable of handling that type of terrain?
  • When the driver purchased the car, what did the dealership represent the capabilities of the car to be? If the dealership advised the driver that the car could be used off-road when in fact it could not, then the dealer may be liable for the damage pursuant to one or more consumer guarantees existing under the current Australian Consumer Law.

Other questions might include:

  • What was the physical condition of the car?
  • Had the car been recently serviced?
  • If so, was it serviced properly by the mechanic?
  • If the car malfunctioned, did the mechanic overlook an issue with the car which might have caused the crash?
  • Or was the malfunction the result of a manufacturer’s defect such as a faulty braking system? Under the Australian Consumer Law, manufacturers are also required to compensate those suffering injury or damage as a result of a safety defect in one of their products.

Clearly, each case must be determined having regard to all of the relevant circumstances. To determine liability, the Courts will consider all such circumstances and logically work through the problem to arrive at a decision.

If we fast forward to an age of driverless cars, where all cars on the road are autonomous-how might the assessment of liability change?

Liability for Driverless Cars

A self-driving car is controlled by computer software-artificial intelligence designed specifically to operate the car without human input and to deal with traffic conditions and other variables to transport passengers to their desired destinations. One significant hurdle to the introduction of driverless cars is whether people would be willing to place their trust, and their safety, in the hands of computers. The trust and reliance required of passengers to driverless cars is particularly relevant as it is an established principle of law that relationships of trust give rise to duties of care.

The point of a driverless car is to allow people to simply set the destination and then enjoy the ride. The responsibility for the operation and movement of the vehicle lies with the company who manufactured the car and programmed its software. Today’s consumer protection laws would impose an obligation on the manufacturer to compensate any person suffering injury or damage as a result of any safety defect. However, will a manufacturer’s closer connection to the actual movement and operation of a driverless car result in the law placing more onerous obligations on the manufacturer such as a duty to ensure the safety of its customer?

For a conventional car which requires a person to drive, the car manufacturer is removed from the situation. The manufacturer has no control over where the car is driven, or the manner in which it is driven. As long as there is no safety defect in the car, the manufacturer is much more likely to avoid being liable for an accident.

Driverless cars are a different story. There may still be ways in which a car dealership or a mechanic might be responsible for a crash. However, a manufacturer has a much closer connection to the day-to-day operation of the vehicle due to its development of the software which controls its vehicles. In a sense, a manufacturer steps into the shoes of a driver of a conventional car.

To minimise or avoid liability, manufacturers might lobby consumers and their insurers to take on all risk associated with their driverless vehicles as a condition of purchase. Would consumers agree to take on the risk? It does not seem likely, especially if they can instead choose to buy a conventional car and drive it themselves.

Before driverless cars can become widespread, it is critical that an effective legislative framework is implemented so that the issue of liability can be appropriately dealt with before any accidents occur. Taking a reactive approach may result in a substantial loss of life and money.

It is not farfetched to consider that driverless cars may become significantly safer and less costly to operate than conventional cars. The use of self-driving cars may become a social good endorsed or mandated by Government. For example, a law may be introduced requiring all cars to be autonomous, with conventional cars being outlawed altogether. In such circumstances, it would make sense for the Government to intervene in some meaningful way to deal with accidents and the liability of injury and damage. Perhaps a public fund could be established to compensate the victims of accidents involving autonomous cars in the same way that the U.S. Government today maintains the National Vaccine Injury Compensation Program to compensate those found to be injured by certain vaccines.

Whether driverless cars are adopted on a large scale depends on how well car manufacturers, lawmakers and community members are able to work together to develop a workable regulatory system. There are many legal and social issues relating to driverless cars which need to be resolved before we will see any significant changes to private transportation. By discussing the issues, it might be possible to formulate effective laws to accommodate the evolving technology. If this can be achieved, then the transportation revolution may be sooner than we think.

Bennett & Philp Lawyers is a forward-thinking commercial law firm which specialises in servicing members of the motor trades industry. Contact us now on +61 7 3001 2999 and we will work with you to improve your business and minimise your risk.

Article Source:

If I Die Without A Will In Florida, Does The State Get Everything?

October 15th, 2011

In Florida, if you die without a Will, the state doesn’t take everything – but it does dictate who does. You’ve probably heard the warning, if you don’t draw up a Will, the state will draw one up for you. That is exactly what happens in Florida.


If you die without a Will, your probate estate is considered to be “intestate.” In those cases, the distribution of your assets will be governed by Florida’s law of intestate succession. It is a directive of what the Florida legislature believes is a fair allocation of your estate. Unfortunately, what the state believes is fair and what you believe is appropriate are often two completely different things.

It is important to note that intestate succession only affects property in the probate estate. All jointly owned property with a right of survivorship, all accounts with “Transfer on Death” provisions and all pensions, annuities and insurance policies with properly designated beneficiaries are not affected by intestate succession, because they are not a part of the probate estate. They automatically pass to the surviving joint owners and the beneficiaries named by the decedent. Likewise, property titled in the name of a revocable trust is not part of the probate estate and will pass to the beneficiaries named in the trust.

Any property owned solely by the decedent at the time of his or her death with no contractual means to distribute it will in the probate estate and subject to intestate succession if there is no valid Will.


So who gets the property in that situation? That depends on a number of factors. First, did the decedent leave a surviving spouse? If so, the following rules apply:

1. If there is a surviving spouse and the decedent has no living children or grandchildren or great-grandchildren (lineal descendants), then the surviving spouse gets the entire probate estate.

2. If the decedent has lineal descendants, and all of them are also lineal descendants of the surviving spouse, then the surviving spouse gets the first $60,000 of the probate estate and half of the balance of the probate estate. The lineal descendants split the remaining half.

3. If the decedent has lineal descendants, and one or more of them are not lineal descendants of the surviving spouse, then the surviving spouse gets one-half of the probate estate and the lineal descendants divide the other half equally among themselves.


If the decedent is survived by a spouse and lineal descendants, then the surviving spouse will receive a life estate in the Florida homestead, and after his or her death, the title to the homestead will pass automatically to the lineal descendants of the decedent who were alive at the time of the decedent’s death (not the spouse’s death). This distribution to the lineal descendants is made “per stirpes.” This means that if one of the decedent’s children dies before the decedent, the deceased child’s share will be divided equally among the deceased child’s children.


If there is no surviving spouse, then the entire Florida probate estate is distributed as follows:

1. Equally among the lineal descendants of the decedent. This distribution is made “per stirpes,”

2. If there are no lineal descendants (this means no children, grandchildren, great-grandchildren, etc.), then the entire probate estate is distributed to the decedent’s father and mother, or to the survivor of them.

3. If the decedent has no lineal descendants and no surviving parents, then the probate estate will divided equally among the decedent’s brothers and sisters and their descendants, per stirpes.

4. If we still haven’t found anyone to give the estate to, then one-half of the estate will be distributed to the decedent’s paternal side of the family and one-half to the decedent’s maternal side of the family. In doing this, we will look to the grandparents. If they are not surviving, then to uncles and aunts and their descendants.

5. If there are no relatives of the decedent, then the estate will be divided among the descendants (or other kin as described above) of the last deceased spouse of the decedent.

6. If we still can’t find anybody, then to the descendants of the decedent’s great-grandparents – but only if any of them were Holocaust victims (seriously).

7. Finally, if there are no persons to receive the estate after going through all of the steps above, then the property will escheat to the State of Florida.

As you can see, dying without a Will in Florida can cause unintended consequences and a lot of confusion.

Learn more about Florida probate and estate planning by visiting Dean Hanewinckel has helped his Florida clients with estate planning and probate issues since 1984. He is the author of 3 books, “The Official Snowbird’s Guide To Becoming A Florida Resident,” “Manifest Your Legacy” and “What To Do When A Loved One Dies – A Survivor’s Guide.”

Article Source:

Reforms to NC Criminal Law

May 18th, 2011

For the first time in about 100 years, the Republicans control the state legislature in Raleigh. Usually Republicans are regarded as “tougher” on crime than Democrats, and so it somewhat surprising that over the past 100 years North Carolina has developed a criminal justice system that is largely – though not entirely – difficult for criminal defendants.

Now that the Republicans are in control, some people had worried that the climate toward criminal defendants would be even more hostile. But some signs of reform are emerging from the General Assembly.

First, in 1994, North Carolina adopted structured sentencing which eliminated parole. Structured sentencing limits the way in which a judge can depart downward from a presumptive sentence, meaning that it favors harsh punishments.

As a result, while crime rates have fallen in North Carolina over the past decade, the number of people incarcerated in North Carolina’s jails and prisons has increased by 23 percent. The vast majority of the increase is the result of harsher punishments for non-violent drug crimes – drug possession, drug sales, maintaining a dwelling where controlled substances are used or sold, and so forth.

But now with a massive budget deficit looming, the Republican-controlled General Assembly is looking to lessen punishments for non-violent crimes and change certain felonies into misdemeanors.

This is the right approach. Violent felonies should be punished harshly. But non-violent crimes – where there is no victim and where there is merely the sale or possession of a drug – are costing North Carolinians billions of dollars in extra spending while achieving little in terms of safety.

Second, the General Assembly is considering introducing post-release supervision. While I don’t particularly favor creating new punishments after release, if someone has otherwise behaved properly in prison, and can be released early and placed on a supervision program, it can dramatically decrease costs and increase safety.

Raleigh criminal lawyer Damon Chetson helps people charged with serious felonies, misdemeanors, and other crimes in the state and federal courts of North Carolina. Call (919) 352-9411 for more information.

Article Source:

How Much Does a DWI in Texas Actually Cost?

May 4th, 2011

If you’ve driven down Barton Springs Road in Austin, you may have noticed a billboard sponsored by the Texas Department of Transportation. The billboard claims that a DWI could cost you $17,000 and directs readers to the website On the website, viewers can watch a YouTube video that illustrates through social media how an unnamed woman racked up $17,422 in debt from one night of drinking and driving.

But several Austinites have questioned the validity of the $17,000 price tag that TxDOT assigns to DWIs-enough, in fact, to prompt PolitiFact to research the true cost of driving drunk. Sure enough, the data that TxDOT relied on to create the billboard was taken from interviews with 30 people-a random assortment of DWI offenders, prosecutors, DPS employees, and more-rather than concrete data.

The video from shows a brief overview of where the $17,000 went, from the tow truck to bail and lawyer payments to a license fee. It also shows other non-monetary losses that the woman suffers, like missing out on a lake trip with friends, being dumped by her boyfriend, and getting fired-all of which, of course, are not guaranteed by a DWI.

PolitiFact found that a more accurate average of the cost of a DWI would be around $13,000. However, there are dozens of variables that even that number doesn’t account for. Attorney fees, fines, and insurance rate adjustments can vary greatly from case to case. Additionally, a University of Texas mathematician who contributed to the research claimed that an accurate average cost could only be determined on a regional basis, since attorney payments and court fees fluctuate depending on where the incident occurs.

Furthermore, even the label of “DWI” could refer to an incident involving a first-time offender who didn’t cause a collision or injuries, or a fourth-time offender who caused a three-car pileup. Obviously, the price tags for these two cases would be drastically different. For the former offender, the total for a lawyer, court fees, fines, and other costs could stay in the $6,000 range.

The message at the end of TxDOT’s video is valuable: designate a driver, and avoid spending money on court costs, towing and impoundment, and alcohol education. However, perhaps it would be more persuasive if the number displayed on the billboard reflected a more conclusive study on the cost of drinking and driving. A DWI charge will inevitably take a chunk out of your paycheck, but slapping a $17,000 price tag on all DWIs overlooks a myriad of factors that play into each case.

For more information about the costs of driving while intoxicated, visit the McMinn Law Firm which helps people who have been charged with an alcohol related offense and need an Austin DWI lawyer.

Article Source:

Basic Principles to Remember If You Must Be a Witness in Court

April 23rd, 2011

Most people have some form of apprehension about being called to testify as witnesses.

The trial of an action is not a scientific guess for the truth. Judges decide civil cases not on certainty but on probability. Judges will be able to decide after they sort through all the evidence, including the evidence of witnesses called upon to testify.

The outcome of most trials often depends from the inferences judges or juries draw after assessing the evidence as a whole.

If you have to testify in court, your testimony will be judged based on common sense and experience and on what appears to be probable.

Judges are well-trained to understand that the clothes you wear, your manners or clarity of expression are not as important as whether your story seems to the court to be more probable than your opponent’s. Usually experienced judges will follow the following routine when assessing the evidence. They start from the undisputed facts which you and the opponent accept. Then they add to those facts which are likely to be true (for example facts recorded in contracts, invoices, records or spoken to by independent witnesses, such as innocent by-standards), then they weigh the evidence of the witnesses who have a direct or indirect interest in the outcome of the litigation. They judge such witnesses to be unreliable if their evidence in any material sense is inconsistent with the undisputed or indisputable facts, or if they contradict themselves on important points. They use these objective tests to separate true from false and come to a conclusion which story seems the more probable, the plaintiff’s or the defendant’s.

Even if you have the law on your side, the wise cause of action is to avoid being overconfident. Many grave yards are full of cases that became victims of false confidence and arrogance.

To minimize your chances of losing, be ready to prepare yourself well ahead of trial. It is important to be aware of all the facts and evidence, including all the evidence your opponent is likely to adduce.

If your evidence is self-contradictory or inconsistent with the undisputed facts, you are likely to lose your case. To prevent this, you must be careful to review all relevant documents and all previous statements, oral and written.

To minimize the traumatic experience which is often associated with giving evidence in court, you must be adequately prepared so that your evidence becomes more effective. One of the best methods of preparation is to be familiar with all the relevant facts of your case; review your own notes and records carefully; examine all relevant documents; in short, work hard to ensure your recollection is as complete and accurate as possible.

For your evidence to be most effective in court you must be focused; you shall concentrate on the relevant material evidence, and steer away from irrelevant or marginally irrelevant evidence. To help you understand in your mind what relevant and not relevant evidence is, ask yourself the following two questions:

1. What are the main questions that the court has to decide? (They are referred to by lawyers and judges as “issues”)’

2. Is the evidence I am about to give directly connected or related with these questions? (If not, it is best to avoid referring to such evidence unless it is circumstantial or collateral to the main questions).

Stick to the facts and answer the questions that you are asked without too many qualifications. Also avoid giving the impression that you anticipate what is in the mind of the examiner.

You may wish to generate an outline of the important events in a chronological fashion. Try to re-live the relevant events as they occurred. A useful technique is to construct a list of specific questions based on the events you had experienced. Begin to sort out what you know firsthand and what you have learned from other sources.

Examinations of witnesses during the trial of an action are divided into the following categories: examination-in-chief, cross-examination and re-examination.

Examination-in-chief consists of a series of open-ended and non-leading questions which your lawyer will ask you about the relevant events and facts concerning the case. Listen to the question and wait until the whole question has been put before you begin to answer. If you do not understand the question, ask the examiner to repeat it. Answer the question you are asked completely, without volunteering additional information. Be precise and to the point. If you do not know an answer, do not guess; just say “I do not know the answer to that”. Do not rush. Do not argue or joke with the examiner. Be yourself. Above all tell the truth.

You may hurt your case if you are argumentative or give the impression that you are biased. Unless you are called as an expert witness (who may be asked to give an opinion) stick to the facts and avoid giving opinions. The difference between facts and opinion is this: facts relate to what you saw, heard and did; opinion relates to what you thought, inferred or guessed. When you give answers, speak toward the judge.

When your examination-in-chief ends, the opposing lawyer will begin his cross-examination which ideally should consist of a series of leading questions designed to elicit short answers, usually “yes” or “no”, but not always. Here are some fairly standard points to remember when you are being cross-examined:

• Make sure you understand the question; if you don’t understand it, say so;

• Answer the question asked. Give a complete answer, but do not volunteer any information not required by the question;

• When giving answers, use your own words, do not let words be put in your mouth; watch for false assumptions which may be rolled into the questions;

• If the question has more than one part, be assertive enough to ask the examiner which part you should answer first. Respond to all parts appropriately; if the question is confusing, your lawyer will probably object;

• Do not anticipate what the next question will be. Concentrate on the question asked and avoid outguessing the cross-examiner;

• Do not guess at an answer. If you do not know or remember, say so;

• The cross-examiner may ask you a question which cannot be answered with an unqualified “yes” or “no” answer. In such situations, be prepared to use the word “but” with the qualification “yes, but…”

• Avoid looking at the lawyer who has called you as his or her witness, as if you are looking for help or approval;

• Above all, avoid losing your temper or show that you are visibly upset;

• Avoid the temptation of trying to explain an unfavourable answer given by you; if the answer you gave was incomplete or wrong, the lawyer who has called you will have the opportunity on re-examination to solicit answers from you which hopefully will minimize or destroy the apparently harmful effect of those answers;

• You should not hedge or stall or argue with the cross-examiner; and

• Avoid giving the impression that you are too partisan or biased.

If a question is highly objectionable, your lawyer would most likely object. If this happens, stop talking; remain calm, collected and disinterested. After the argument is over, either the judge will ask you to answer or the cross-examiner will repeat the question or, if the question is ruled by the judge to be improper, you do not have to answer the question.

After the completion of your cross-examination, your lawyer will have the opportunity to ask you questions which are designed to allow you to correct or complete the answer or answers you have given in cross-examination. When you are asked such questions, listen carefully and ensure to give a complete answer which hopefully will repair any previously damaging answers or correct the wrong impression some of your answers during cross-examination have generated.

The judge may ask you questions during the examination-in-chief or cross-examination. Some judges are more inquisitive than others. Judicial interrogation is not necessarily a bad thing. But be careful not to let the judge put words in your own mouth. Be polite and courteous in your exchange with the judge, but guard against agreeing too readily with the judge’s suggestions or paraphrases unless they are completely accurate.

If you are called to testify as an expert witness, there are additional points that you should take into account. Your function as an expert witness is to provide scientific or technical information.

Whether your testimony is expected to last thirty minutes or thirty days, this depends on the nature of the case. In order to prepare for this potentially exhaustive experience, you need to be physically and mentally prepared. Proper exercise, good diet and adequate sleep will help you cope. Reduction of alcoholic consumption is also advisable. The objective is to be and feel rested and confident. Remember if you become tired and stressed out, the chances are you will start uncritically accepting the facts being put to you by the cross-examiner.

Information and Tips from a lawyer to non-lawyers
Author: Andreas Solomos, Barrister & Solicitor, Toronto, Canada

Article Source:

Patent Applications

April 22nd, 2011

hen you are thinking of filing a patent application, you must head to the USPTO to learn more. Or, you can learn more about filing patent applications online at informative sites like Patent UFO.

As a Tech & Patent Specialist, I’ve seen quite a bit. I’ve talked to all kinds of inventors. Many solo inventors are very easily confused about the different forms of Patents available, and what they protect (or do not protect).

Patent protection actually comes in three a variety of forms. Utility Patents supply broad protection to your conventional “gadget” kind of invention, including apparatus, methods, ways of making, processes, and now even software. Plant Patents are quite only of interest to agriculturists as they protect particular strains or varieties of plants. Design Patents are worth mentioning for 2 reasons. First, Design Patents are generally utilized by fraudulent invention brokers in many Patent invention con games. Second, Design Patents tend to overlap somewhat with copyright protection. A Design Patent only covers the ornamental outward appearance of an post of manufacture and thus provides extremely narrow protection.

The following is really a brief description on the several Patent Types and what they basically protect and don’t protect. You’ll find three easy kinds of Patents: Design Patents, Utility Patents, and Plant Patents. In addition, there’s anything known as a “Provisional Patent Application” which is not a Patent, but merely a ways of holding your location in line at the Patent Office – but only for your Utility Patent Application. This post also discusses bar date difficulties and foreign filing types, for example Patent Cooperation Treaty (PCT) and explodes the myth with the “International Patent”.

A Design Patent covers the External Ornamental Appearance of an object ONLY. It does not cover the Purpose of an invention (i.e., how it works) but rather only how it LOOKS.

Obtaining a Design Patent is one thing but easy.

There are legitimate situations wherever a Design Patent could be of value. I learned how to prepare and prosecute Design Patent Applications from at Agent who is now an in-house counsel at a large sneaker company. At the time, we each had been working for your downtown law organization and he and I prepared numerous Patents for this sneaker business on their various shoes. He was a beneficial teacher, and it was a excellent education.

Design Patents appear deceptively easy. However, they’re extremely subtle. The Specification, Claims, and Drawings are all the exact same issue – the drawings! For the novice, this appears to simplify things, but should you rely upon your draftsman to prepare the application, you could be in for a globe of woe.

Deciding what to “claim” and what to “disclaim” is part on the problem. If your Design Patent drawings include too a lot ancillary subject matter, they’re to narrow in scope. Remember that so that you can infringe, an individual need to copy all the claimed subject matter. For this reason, we usually put portions of the design in dashed lines in order to broaden the scope of protection. We try to “claim” only the key features or issues in the design, instead of the entire model being a whole.

Another component with the problem is making sure the invention is totally disclosed. All views from the object need to be provided (or disclaimed) in order to “define” the invention. Submitting plan drawings without the need of six plan views including a perspective view could trigger a “fatal” §112 rejection. The correct use of shading (and knowing as soon as not to use it) can be tricky as well.

Design Patents are quite intriguing for organizations who would like to protect the appearance of their solutions from cheap knock-off artists. For solo inventors, Design Patents could be much less useful. Unless you’re genuinely creating a product or service that may be likely to become ripped off, you are able to not require Design protection. A Design Patent is really effortless to “design around” merely by altering the ornamental appearance on the object. If you have a famous product, persons would like to copy it using a look-alike. But if you have occur up using a new Design, chances are, folks can design anything similar without having a lot difficulty.

And bear in mind that a Design Patent doesn’t cover any functional aspects of an invention! Relying upon Design Patent protection being a “cheap” type of protecting an inventive thought is short-sighted.

Design Patents are a tiny portion of my practice, and I usually discourage consumers from trying to acquire them, unless they quite particular needs tailored to Design Patent protection. For this reason too, I do not have a sample price quote for Design Patents on my site. Whilst a Design Patent can sometimes be filed for much less than $1000, it all depends upon the nature and extent from the Drawings required. As this price can vary considerably, a price quote in your Design case ought to be tailor-made for every applicant.

Another product or service worth mentioning with regard to Design Patents will be the overlap with Copyright protection. Copyright protection automatically attaches to a jobs as soon as it’s reduced to a fixed medium. Copyright applies only towards the expression of an idea, not for the underlying thought itself. Thus, whilst you may copyright a book, you cannot necessarily claim copyright to the overall story idea. Copyright is similar to Design Patent protection in that you can claim copyright for an ornamental sculpture in a similar way you possibly can claim Design Patent protection on the ornamental appearance of an write-up of manufacture. At a single time, the Patent Office required you, under the doctrine of election, to select one form of protection, but such is no longer the case.

Three differences worth noting about Design Patents: First, the term of a Design Patent is 14 many years inside date of ISSUE, instead of 20 many years during the date of FILING with utility Patents. Second, although a Design Patent can claim priority from a Utility Patent, it can not claim priority from a Provisional Application. Third, if you are filing within the USA from a foreign “Industrial Design” software package (or equivalent), the deadline for filing from the USA is SIX MONTHS from the overseas filing date (as opposed to 1 YEAR for Utility Patents.

Utility Patents are the conventional “gadget” Patents that nearly everybody is familiar with. Utility Patents are considerably much more expensive to obtain, as they require a complete description (Specification), drawings, and most importantly, CLAIMS.

The Claims of a Utility Patent describe the metes and bounds of one’s “intellectual property” and can be extremely tough to draft and prosecute, even to your skilled Agent. For this reason, it is a great concept to secure the services of the qualified Agent in preparing and prosecuting a Patent Application. A Patent with weak or narrow claims is not worth paying the trouble fee on.

Traditionally, Utility Patents had been informally broken down into 3 groups: Mechanical, Electrical, and Chemical. Having a background in Mechanical and Electrical Engineering, I pretty much limit myself to Mechanical and Electrical Patent preparation and prosecution. Chemical Patent procedure has some certain features finest left to individuals who specialize in that field.

The Patent Office now officially recognizes Software and Methods of Creating Firm as Patentable subject matter as well. I have written a number of Patents in this area, for instance a single on the initial Web Ways of Creating Firm Patents (Internet Couponing).

The term of a Utility Patent is commonly 20 years within the date of filing on the first software (under the new rules, you will find nevertheless some older cases “grandfathered in” under the old rules). It is possible to file a U.S. Software program from a foreign application within 1 YEAR with the filing date of the foreign application.

Don’t just rely on random articles. Take the time to learn more about how to file patent applications online.

An inventor and patent enthusiast.

Article Source:

Terms and Conditions: When Does a Website Require Them?

April 15th, 2011

Generally all websites should have terms and conditions. This will decrease the risk of the owner of the website’s liability for damage claimed to have been suffered by a visitor to their site, in a number of ways.

With a website being accessible to anyone, a website owner has no control over who accesses the site or how the information on the site is used. Not only do terms limit liability of the site owner they also, in most instances, form a contract with a user or visitor to your website. Essentially every website that provides any type of goods or service should include terms and conditions governing the payment or delivery of that good or service and in the instance of sale of a product or service on a website, the visitor or customer should be required to click to accept these.

Website terms and conditions are essential for a number of reasons. First with the commercial reality that when there is business online, and with potential clients anywhere in the world, by having terms that are clearly outlined, the governing law will be on the website owner’s terms and according to their country jurisdiction so there will be no ambiguity despite location of any buyer of goods or services. Another important note following this is that regulations differ from one country to another so the website owner will need to ensure their terms and conditions comply with the laws in their country.

When a website is providing any type of goods or services, it is absolutely essential to outline how and the terms upon which the goods and services will be provided; this may be as simple as conditionss of shipping or as complex as outlining specifics for a security trading account. These terms and conditions will also need to outline the extent of the website’s liability for these goods and services. A common example of this is when goods are provided, the website will be responsible for them while in their possession, but at the time of shipment onwards it is then the buyers responsibility. Other related terms of sale would also be included in the conditions of this type of transaction such as, for example, terms of return of goods, if any, and warranties on the goods or services.

With the worldwide accessibility of websites and website owners being willing to do business with any customer, websites owners should attempt to minimize any possible risks that are posed no matter how foreseeable and wherever possible through strongly worded website terms and conditions.

Want to know more? Click here for Free information on Website Terms and Conditions. Australian legal agreements and forms from

Article Source:

Attorney Proz – Legal Blog and Other Helpful Information
Entries (RSS) and Comments (RSS).

Switch to our mobile site

AttorneyProz® is not a lawyer referral service and never receives any portion of any attorney's fees. We welcome feedback from visitors but are not responsible for any attorney's advice. Use of AttorneyProz® is subject to our disclaimer, conditions of use and privacy policy. Use for marketing or solicitation is prohibited. © 2002 to 2011 - All Rights Reserved