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Archive for January, 2008

Seat Belt Safety: Do the Numbers add up?

Saturday, January 12th, 2008

Seatbelts remain one of the most controversial elements in driving safety, since people can’t seem to agree on whether or not they are really making them safer in a vehicle. The idea behind the seatbelt is very simple and we all know that law dictates we wear one while operating a vehicle or whether we are a passenger. The strap restrains you in case of a sudden stop or an accident and by doing so it is thought to significantly increase your chances of surviving or of not sustaining any injuries during such an event. Fatalities are caused when people are sent through the windshields of vehicles who have collided with another vehicle or some other object and when this happens the injuries can be very great due to broken glass and the impact on landing sometimes on pavement or another dangerous object.

Because of this, seatbelt laws are in place and without wearing one in the majority of U.S. States you will be ticketed and fined an amount according to the local law enforcement agency. The American government, as well as a great many public organizations are dedicated to the enforcement of seatbelt laws to bring down the numbers of fatal accidents happening each day on American roads. But is there actually a link between strict seatbelt laws and lower fatalities on the road? A 2002 report reveals that of the ten States with the lowest road fatalities, five enforced the strictest seatbelt laws and five did not; in fact in New Hampshire, the only State without any seatbelt laws at all, the streets were rated third safest in all the country.

Clearly the link between strict seatbelt laws and road safety is not as straightforward as it might be; politicians continue to lobby for stricter rulings as do concerned citizens but the fact remains that a safe road is a safe road regardless of legislation. We must begin to consider whether or not people in New Hampshire wear their seatbelts as often as they do in any other State with strict laws regardless of the fact that they legally need not. Numbers are likely the same as in most other States, leading to the logical conclusion that like with most laws, they will be obeyed by those who would have done so in the first place and disregarded by those who would have done otherwise.

Not unlike removing speeding laws from highways, removing seatbelt laws has no particular effect on the safety of drivers on the roads. Although the laws were set in place with good intentions, perhaps it is best to admit that people will do as they please and their own safety should be left in their own hands. Of course there is no doubt that seatbelts are capable of saving lives and that they often do, law enforcement is too often ineffective in making people act a certain way when they are naturally inclined not to.

What are the differences in Helmet Laws from State to State?

Saturday, January 12th, 2008

Helmet laws are a relatively new addition to local legislation in America and other parts of the world, and as such many of us are actually still unaware what is expected of us in terms of a helmet. These laws pertain to both bicycles and motorcycles, and the specifics are written in terms of both age and the type of helmet accepted as safe on a certain type of vehicle. The differences come because of age standards and the specifics of operating a vehicle that may be expected to take high speeds. Bicycle helmet laws are usually in place for under 16 or 18 year-olds to protect children who otherwise often try to ride without proper protection.

If you are caught driving a motorcycle without a helmet, or with a helmet that is deemed inappropriate for the machine, you will be subject to points taken off your license or to a fixed fine. In Nevada this will mean 2 points removed; in Louisiana a fifty dollar fine. Pennsylvania police will fine you a total $92 for a helmet infraction or speeding on a motorcycle and the fine varies from State to State according to the severity with which the infraction is viewed and to the taxes and extra fees attached to the ticket.

Missouri law concerns not only bicycles and motorcycles but also some toy vehicles – the fines range in size but the highest extent of prosecution is $100 for the fine and possibly another $100 for the court fees if you wind up fighting the ticket. These laws are more restricting than most because they require parents to actually ensure that their children are not operating any toy vehicle that might be subject to the helmet legislation. In such a case, the parents would be responsible for providing their child or children with the proper helmet and of course for paying any incurred fines.

What denotes the proper helmet, you might be wondering? In most cases it is considered to be the helmet manufactured by the same maker as the vehicle (in terms of a motorcycle) and claimed by such to be used in conjunction with said vehicle. For bicycles and other toy vehicles, however, there will be local legislation pertaining to the safety standards and what the helmet should be made of and how it should fit the head. Certain head circumferences will require a different size of helmet than others, for example, and also a different amount of padding between the head and the inner part of the helmet.

Perhaps the widest range in fines for failing to wear a helmet while operating a motorcycle is in Oregon, where the amount may be anywhere from a general $67 to an astounding $300 in Brookings. It is best to look in with your local government office to find out exactly what is expected of you while biking, and just remember not to assume that the laws are the same when you cross the State line!

Just what is the legal premise behind carpool lanes?

Saturday, January 12th, 2008

Surely you have noticed the carpool lanes that have sprung up more and more in communities across the country over the last several years – if you use them they are a treat and if you don’t qualify they can seem nothing more than a cruel tease. The cars filled with passengers get to work on time, bypassing the tedium of early morning traffic, and the rest of the driving population is doomed to sit and inch forward for what can seem like most of the commute. So what is the legal basis for the carpool lane?

Largely, the entire reason for the creation of the carpool or high-occupancy vehicle (HOV) lane is so that not only can normally heavy traffic lanes be thinned out but so that commuters are encouraged to pollute less by using fewer vehicles between them. Depending on the State and region, motorcycles may be allowed to use the lane and there may be full-time or part-time restrictions on the lane use. Full-time carpool lanes will obviously have carpool laws in effect for 24 hours a day, while part-time lanes may only do so during peak traffic times to effectively thin out the traffic and allow drivers to get through more quickly.

Since there is about 7% of the driving population that actually counts as a high occupancy participant, carpool lanes can very often be the most efficient lanes to travel on to and from work. Often times corporations, businesses and other organizations will set up carpools or vanpools with their employees and associates to take advantage of the easy drive and often also to promote a cleaner environment and a higher level of pollution awareness. While those left in the single-driver lane may complain of the speed of their own journey it is hoped that as more time goes by, more commuters will choose to carpool and therefore cut down the traffic drastically, perhaps one day eliminating the need for a specified carpool lane.

In terms of the legality of the lane, the specific rules are dependent on the local legislation because each region will have interpreted the idea of carpooling differently in accordance with the needs of its own drivers. Generally speaking, you are legally allowed to use the HOV lane if you carry at least one passenger, if you are driving a motorcycle and in some cases if you are driving an emergency vehicle such as a ambulance or a police car. Any attempts to use the lane and benefit from a quicker journey if you have no passengers will result in ticketing and a penalty determined by the State.

Carpool lanes were created to help curb a growing problem with traffic, and since the population has grown since the inception of the HOV lane it only makes sense that more and more drivers make the effort to share car space. It won’t just clear up traffic congestion, it will work towards cleaner air in cities as well – both noble endeavors!

Is a trademark really necessary?

Saturday, January 12th, 2008

If you’re wondering if you need a trademark, the answer is yes and no. Your business will have very little chance at competing in its industry if there is nothing distinct about it. However, that doesn’t necessarily mean you must formally register a trademark.

That depends on what it is that makes your company so distinctive and what you have to lose if the use of your trademark is unauthorized.

Obtaining a trademark is a bit more complicated than you might think. First of all, you have to make sure the trademark you pick is truly your trademark. This requires intensive research of the trademarks already in existence. Then you must go through the federal registration process and put your trademark into action. So it is a hassle. Is it a big enough hassle, though, that you should avoid it?

There are many benefits to owning intellectual property like a trademark. The biggest one is simply that if someone or some entity uses your trademark without your permission, you can hold their feet to the fire. In other words, it will be hard for people to benefit financially from your trademark. So if you have a commercial product, then there is little doubt that a registered trademark will be a valuable possession of yours.

However, if you don’t have a commercial product or service, it may be a wasted investment. Still, a trademark – in the general, informal sense – is absolutely key to the success of your company. Not only will it help to guide you and your employees toward your ultimate goals, but it’s a great way to make your company stand out from the crowd. This means more investors and customers for you! It’s hard to be a big fish in the pond if you don’t have something that distinguishes you.

The bottom line is: yes, you do need a trademark. The good news is a trademark can be just about anything and you may have one without ever officially recognizing it – through actual use.

Only when you register it will you have to categorize it. A word, image, design, symbol, or a combination of any or all of these – that’s the typical trademark, but anything that obviously distinguishes the source of your products and services from others will suffice. Unless of course you’re infringing on other trademarks by doing so.

So, once you’ve got your trademark, should you register it? There’s little reason not to. After all, when you register your trademark, you’re giving it power. Power in court, if you should ever be so unfortunate to end up there. Unregistered trademarks are honored by the law as well but it’s just more difficult to protect them.

Good luck creating your trademark or acknowledging the trademark you already have.

The Cost of Being Different

Saturday, January 12th, 2008

Is your company unique and distinguished from its peers? Hopefully. But if you use a symbol, word, image, design, phrase, or any combination of these, to illustrate how distinguished you are… there might be a price you’ll have to pay. Luckily, whether or not you buy trademark rights is entirely up to you: you’re not required to do so. So what do you do?

The benefits of a trademark are pretty obvious: your company’s unique identity is easily communicated to the public and no one can capitalize on it but those who are authorized to. However, what about the costs? If trademarks can be easily used without official federal registration, why bother to spend the money and time to go through the trademarking process?

Indeed, through actual use, you may already have a trademark or you may be able to develop a trademark without ever having to deal with the US Patent Office. So why take that extra step toward making your trademark more legitimate? Well, in addition to forcing you to compare your trademarks to others and perhaps discover you are actually infringing on a trademark that’s already in existence, registering your trademark means that you will have a lot more power in court. In other words, if there is unauthorized use of your service mark, it will be handled by the law and likely in your favor. The more popular and commercial your product or service, the more advisable it is you register your trademark.

Intellectual property isn’t always cheap however. As a result, it’s important you have someone on your side who knows all about trademarks and essentially can help you buy your trademark rights. There are attorneys who specialize in patents and during this process, they will be great friends to you. The US Patent Office, too, has a lot of great resources for people just like you. Just visit its website and you can read a bunch of literature on the topic!

The free trademark is the kind that establishes itself based simply on your use of it. However, this isn’t easily protected. However, to get more protection and perhaps peace of mind, you could spend up to a few thousand dollars on formal trademark rights. As well, any company that takes its trademark seriously, whatever it is, will have to also anticipate the legal fees required to defend it.

Another tip for trademark-seekers: your trademark rights might be only at the local level or they may be nationwide. This is extremely important and will of course affect how much money you spend. There is another expense, too: searching for other trademarks that may resemble yours. Too often, this step isn’t taken and there are severe consequences later.

If you’re not yet ready to legitimize your trademark by registering it, you can still lay claim to it by making it with “TM” (which stands for trademark). Trademarks are all around us, whether registered or unregistered. So make sure that you remember this as you consider the costs of trademark rights.

Small Claims Without Big Lawyers

Saturday, January 12th, 2008

Involving a lawyer in your small claims case is generally not necessary. Small claims court is meant to be a more informal version of the courtroom in which the regular person can bring their disputes resolved by a judge without the need for lawyers. The size of these law suits is considered “small” and so involving high prices lawyers would generally defeat the purpose. The lawyers’ fees would often be far higher than the monetary value of the whole case itself.

All the forms you need in order to file in small claims court are available to you from the Court Clerk’s Office. These forms usually contain the basic information you need to fill them out. You do not need a lawyer or any professional person to fill in this claim form. They are intended for everyday people to use.

Many people feel that they should consult a lawyer before they go into court with their claim. You should remember that because this type of court is a little more informal than other courts are, you will not be required to act like a lawyer to present your case. All you really require are the details of your case and all the proof you can gather.

If you show up to act on your own behalf in small claims court, you should be prepared. You should have all your receipts, bills, payment slips, contracts or other documentation that pertains to your case. If you have any witnesses, you will want to make sure they are coming (you may be more comfortable having them subpoenaed so you can be sure they will appear). If you have pictures that relate to the case, bring them along. If your case involves damaged goods, bring those with you as well (as long as they fit into the court).

The judge will ask you questions and listen to your side of the story. They will do the same for the other party. They will then deal with any evidence you have that they feel should be examined. This court is not run in a way that should intimidate you. As long as you have the facts of the case, you have everything you need to appear in small claims court.

Some states allow small claims courts to deal with amounts over $10,000. If your case is for a substantial amount of money and you are able to file in a jurisdiction that allows for that size claim, you may prefer to spend a little money on some advice from a lawyer. Some people book an hour with a professional just to get a little advice about what they might want to focus on for the best results.

In most cases, seeking legal advice from a lawyer prior to heading into your court date is very unnecessary. The judges in small claims court are more than equipped to sort their way through your case with you when you get there. Just prepare yourself by knowing all the details of your case and making sure you are armed with all your evidence on the day of court to discuss it with the judge.

Preparing and Filing Small Claims Just Requires YOU

Saturday, January 12th, 2008

You are not actually ready to file a small claims suit until you have first determined where you will make the claim. In most states, you cannot file a claim against someone who does not live or own property in that state. You must decide if you will file in the county and state that the defendant lives in or if you will file where they own other property or work. You must be confident that the district court you wish to file with has jurisdiction over the defendant.

Once you have made the decision as to which court you will file with, you will then need to fill out the small claims forms. The Court Clerk in the area you have chosen will be able to provide you with these forms. They will also let you know how many copies you will need to provide with your suit.

As you fill out the small claims forms, you will need to have some very specific information. The full name of the defendant and their street address will be needed as well as their telephone number. In a case where you are making a claim against a business, you will need the full legal name of the business and its owner or agent. You can often get this kind of information from the U.S. Department of Commerce.

You will need to know the exact amount of money you are filing for when you fill out your claim forms. If you have a figure in mind, be ready to list out how you have arrived at that amount. You cannot simply file for the maximum small claims limit without an accounting of the calculation.

When you file, you must pay the filing fee. In most states the fee is around $40. Some states use a graduated filing fee that costs more for higher monetary claims than it does for lesser claim values. If you win the case, your cost of filing with the small claims court will be added onto the judgment amount against the defendant.

If you have to hire the services of a law officer to deliver the claim to the defendant, you will be required to pay for that service. Many people choose to have the forms sent to the defendant via registered mail with a return receipt for proof of delivery.

Once you have filed your claim, you will need to prepare for your day in court. You will want to make sure you have all the documents, witnesses and evidence you need to prove your case as decisively as possible. Keep all this information together and ready for court.

You will be informed by the Clerk’s Office when your court date is set. You will need to show up and be ready to speak to the judge and tell your side of the story. Be sure you have revisited your evidence again very close to court date so as to remind yourself of the details of your case.

Revenge and the courtroom

Saturday, January 12th, 2008

If you have had your property damaged by an ex-friend or partner or been otherwise slighted by some relatively small infraction of the law, it can seem very appealing to take your case into court and get revenge on someone you’ve wanted to take down for some time. This method of revenge via court case is actually not entirely uncommon in small claims court, and it is through such cases that many people realize they shouldn’t have sweated the small stuff.

The problem is, small claims court can often seem like the best option for teaching someone a lesson. Everyone has someone in their life who such seems to be around to cause trouble and make their life difficult. They often seem stupid or senselessly angry and invoking the letter of the law on such a person seems like a great way to get them to stop and think about their actions. When you put yourself in this position, however, you can find yourself putting on a charismatic, boastful show to the judge and anyone else present because you just know that you are right and you have done the entire world a favor.

Taking on this superior attitude is not something that will be appreciated in a courtroom. The judge will see right through your claim of a broken window (or something else equally mundane) to your hatred of the defendant. Revenge cases, while seemingly straightforward to the plaintiff in every since instance, never turn out the way they might expect. Where a person might be a menace, a constant irritant and certainly in need of some personal clarity, this does not mean that their one single small act of vandalism or slander will not generally incur any harsh penalties. In fact, in dealing with certain aggressive attitudes it may just be adding fuel to the fire.

In some cases, the court will treat the offender exactly as you might have wished, and you will see them shrink under scrutiny and possibly even break down in tears. You may discover truths about that person you had no idea about, and instead of elation at their prosecution simply wish you had left well enough alone. Believe it or not, your conscience could kick in and have you feeling so sorry for the person you dragged into court that you will wish you’d never considered taking it so far!

The bottom line is, if you are having issues with a neighbor or someone else in your family or community (and yes, revenge cases are often centered on feuding family members) it is best to try to work it out at home. You will save yourself court fees, the disapproving look of the judge who will know exactly what you are up to, and it will certainly reflect better on your own character to do so. No one likes to live with regret or remorse, so before you take it to court, ask yourself if you are simply being petty!

Know Your Limits in Small Claims Cases

Saturday, January 12th, 2008

The amount you can sue for in small claims court varies widely. If you are considering such a legal pursuit, you should be aware of what the limit are for your area.  Some states have different limits within them as well.  An example is Tennessee where the basic limit for small claims is $15,000 but can be up to $25,000 in some counties of that state.

If you have a legal matter that involves not being paid for services rendered, goods purchased or for cases of unpaid rent due to you or for damaged property, you may file in small claims court.  You may also file a claim in this court for security deposits that have not been returned to you if they are due.  The amount of money involved in the claim must be less than or equal to the small claims limit in your state in order to use this venue of justice.  The small claims courts throughout the United States will not settle any legal matters that involve slanderous remarks, damaged reputations or libel cases. 

Generally, state courts do not allow you to file a claim against someone who does not live or own property in state that you wish to file in.  You may file a claim in the state that the person does live or own property in, but you must remember that you may be required to travel to that state when the case is being heard.

Many people make small claims even though the limit is lower than the amount of their loss.  They often do this because they find small claims court is a faster and less costly way to settle their legal matter.  This may or may not be the most effective suit for you depending on what you want out of the matter. You will most likely be unable to pursue the matter any further legally once it has been dealt with in small claims court, so if the limit is not high enough, consider your other legal options.

The small claims court limits are listed below for each state.  Remember that if you are making a claim against someone in a state other than your own, you must check the limit in the state the claim will be filed. 

State

Claim Limit

Alabama

$3,000

Alaska

$10,000

Arizona

$2,500

Arkansas

$5,000

California

$7,500

Colorado

$7,500

Connecticut

$5,000

Delaware

$15,000

District of Columbia

$5,000

Florida

$5,000

Georgia

$15,000

Hawaii

$3,500

Idaho

$4,000

Illinois

$10,000

Indiana

$6,000

Iowa

$5,000

Kansas

$4,000

Kentucky

$1,500

Louisiana

$3,000

Maine

$4,500

Maryland

$5,000

Massachusetts

$2,000

Michigan

$3,000

Minnesota

$7,500

Mississippi

$2,500

Missouri

$3,000

Montana

$3,000

Nebraska

$2,700

Nevada

$5,000

New Hampshire

$5,000

New Jersey

$3,000

New Mexico

$10,000

New York

$3,000 – $5,000

North Carolina

$5,000

North Dakota

$5,000

Ohio

$3,000

Oklahoma

$6,000

Oregon

$5,000

Pennsylvania

$8,000

Rhode Island

$2,500

South Carolina

$7,500

South Dakota

$8,000

Tennessee

$15,000 – $25,000

Texas

$5,000

Utah

$7,500

Vermont

$3,500

Virginia

$2,000

Washington

$4,000

West Virginia

$5,000

Wisconsin

$5,000

Wyoming

$5,000

 

Gather Your Evidence Early

Saturday, January 12th, 2008

When you are going to court for a small claims suit, you will want to bring with you any evidence that you can to help illustrate your case. Evidence can help prove your claim and failing to present such evidence might have a detrimental effect on your whole small claims suit.

If you have any signed contracts or agreements that pertain to the issue at hand, make sure you bring them along on court day. The details that are contained in such documents often make judgment much easier to make simply due to the fact that they list out the specific responsibilities of both parties involved. Some contracts and agreements even list out what is to happen in the case of dispute.

Another excellent type of evidence that you can bring with you to court is any receipts you have for payments made to the other party with regard to the service or goods you were to receive from them in this transaction. Your cancelled checks are good evidence to show payments you have made as well. In the case that the payments were to be made to you by the other party, bring any copies of payments they did make to you, if you have any such evidence.

Copies of any bills and invoices you have presented to the other party will be helpful as well. If your case involves money owed to the other party, you will want to bring any bills and invoices you have received, whether they are correct or not. These are extremely helpful to the judge in assessing how this case evolved to the point it now sits.

If your case involves goods that are easily brought to court, you should bring them. Damaged items and defective items that are a crucial part of the case should always be presented unless they are too large or dangerous to bring into the courtroom. In the case where you cannot bring the items into court, you may want to bring some pictures of them for illustration in their absence. If you must bring pictures, be sure that they include some close ups as well as overview shots so that the judge can see as much as possible.

Estimates for repairs to your damaged goods should also be brought with you to help you present your case. If your case is one that involves estimates for work to be done, it is advisable to bring three different estimate quotes rather than only one.

Often, small claims suits may involve witnesses. People who were present during transactions or conversations between you and the other party can be helpful in your case in many circumstances. If you do have any witnesses, be sure to bring them with you on your court date. The judge may wish to ask some questions of witnesses from both sides in order to get the full story.

Be ready for when you get your day in small claims court. Gather all your evidence together as early as possible in the case so that you know you’re prepared. Go through it all again before the date to be sure you remember what you have with you and make sure it is all organized so that you can produce it easily when the time comes.