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Archive for the ‘Civil Remedies’ Category

How to Handle a Civil Lawsuit

Wednesday, October 8th, 2008

It doesn’t matter if you are involved in a civil lawsuit because you are the defendant or because you are the plaintiff: either side can be a scary side to be on. There are over 40 million civil lawsuits that are filed in the nation every year, which means that there is a very good chance that you may be involved in one. Knowing what to do beforehand can help you to handle a civil lawsuit with much more ease.

The Plaintiff
If you are the plaintiff, it is your responsibility to prove that the person who wronged you is guilty and needs to provide compensation. There are a number of reasons that you would want to sue somebody or a company. If, for instance, you sent one of your belongings, such as a car, in for repair and it came back even more broken than it was before, you may have a lawsuit. Before you decide to take matters into a court of law, however, you may want to speak with the people whom you are considering suing first. If you do not, the judge or jury may feel that you did not try everything you could before bringing the matter to court.

Make sure that you speak with them and try to resolve the matter, but also keep track of what you do. If you speak with them, mark it on a calendar and write a detailed account of what was discussed. If they call, write down that they did and what was discussed. Having all of the information handy can be the difference between winning and losing a lawsuit.

You may also want to hire a lawyer, especially if the monetary amount due to you is rather large. If you are only suing for a small amount, you can likely avoid this step, unless you want to ensure victory.

The Defendant
People tend to panic when they get sued, but you should not. The key to successfully proving your defense is to stay calm and to get organized. To begin with, find out what you are getting sued over. If you are unsure, do not hesitate to try to contact the person who is suing you to ask for clarification. If they refuse to give it to you, make sure you make note of that fact. As with the plaintiff, it is vital that you keep a record of everything so that you can prove your innocence. You may want to hire a lawyer, especially if you are confused or if the amount you are being sued over is a great deal, as they can help you to know what to do and what not to do in specific situations over the course of the suit.

A lawsuit can be a bit intimidating, but as long as you remain cool and collected and have the information that you need handy, you can make your case and win your side.

Grandparents and child custody rights

Sunday, September 21st, 2008

Child custody is divided into both the legal custody of the child, the individual who has the right to make life decisions for the child (including educational matters, health care, religious instruction, etc.), and the physical custody of the child, meaning the individual with whom the child will primarily reside. Child custody laws vary by state, but each state has laws covering the rights of grandparents. It is wise to consult an attorney with experience in family law matters to assist you in determining what your rights are in your state.

Generally, grandparents have the right to seek partial and/or full custody of or visitation with a grandchild by petition of the family law court. This right to custody could apply in a case where either one or both natural parents are deceased or when there is a divorce or separation. Also, if the grandparent feels that the child is in danger of either physical or mental abuse, or is in an unsafe or unfit environment due to drug use or mental illness, they have a right to petition the court. Another situation where a grandparent may seek custody of a grandchild is if the grandparent has had physical custody of the child for at least a year, and has acted in the role of a parent. This could be as a result of parental neglect or the death of the parent.

Visitation with the child can take place by mutual agreement with the parents or, if that is not possible, by order of the court. Generally a schedule is created, as with parental visitation, allowing the grandparents to see or speak with the child on certain days at certain times.

The burden of proof rests with the grandparents to show that it is in the child’s best interest for the grandparent to have custody of the child, that their concern for the child’s well being is genuine, and that the present relationship between the grandparent and grand child resulted from prior parental consent or court order. It is the obligation of the court to determine what are the best interests of the child or children when granting custody or visitation rights. Therefore, there needs to be a valid reason why a child would be better served by living with or visiting with their grandparents than by not doing so.

Grandparents may also seek visitation or partial custody, allowing them to visit with the grand child without parental consent or supervision. Once again, the burden of proof rests with the grandparent to show that the child may be subject to harm if such visitation is not allowed. In some instances, grandparents are allowed only supervised visitation. Although, grandparents are not generally denied visitation rights without a valid reason, the grandparents’ rights to visitation against the parents’ wishes is not always clear under the law.

It is best to seek legal advice from a family law expert when petitioning for grandparents’ rights, as the process can be complex and you will wish to ensure that it is handled in the best interests of the child.

Preparing for a deposition for a civil lawsuit

Saturday, June 14th, 2008

It is a word that many of us who watch law dramas hear about but it is something few of us ever imagine giving in person. A deposition is a very serious legal proceeding that requires a person to speak under oath to lawyers representing both sides of a civil lawsuit. If you lie and are caught, you can face serious legal repercussions so it is important to know exactly what you are getting yourself into before you sit down in the court room. Let’s take a look at what a deposition is and how the whole procedure works.

When you are asked to give a deposition, you will appear in a courtroom with a court reporter and lawyers representing both sides of the case. The only thing that will essentially be missing will be a judge and a jury; other than that, it will feel just like testifying in court. Both lawyers will question you, and your testimony will be recorded and used at the trial. There are a few different reasons why you may be asked to give a deposition.

The first is that both lawyers are collecting evidence for an upcoming trial. What you say on your deposition can be used during the trial, read out loud so that the jury can hear it and is considered just as serious and legally binding as if you were testifying during the trial itself. A deposition is also used for what is known as discovery. Discovery is the period before the trial where the lawyers try to collect information, follow leads and discover evidence, almost like a police officer investigating the case. Your deposition can also be used to impeach another witness if your testimonies clash – that’s why it is so important to always tell the truth in your deposition. Finally, a deposition can almost be practice to see how you would look/react/sound in front of a real jury. Even if you give a deposition, you may be called back to testify at a trial.

You have the right to read the deposition that is written by the court reporter and sign it saying that what is there is correct. No matter what anyone tells you, you do not have to waive this right if you don’t want to.

Let’s take a look at a few helpful tips that can help calm your nerves during this sometimes uncomfortable experience. First off, it is always a good idea to be honest. Some people come to a deposition with the intention of protecting a friend or exaggerating what they saw, but having to remember a web of lies is difficult, and you can commit perjury without even knowing it and that can lead to jail time. If you have your own lawyer, listen to them, otherwise answer every question that is asked of you to the fullest of your ability. Finally, if someone asks you a question and you don’t fully understand, it is extremely important to ask so that you don’t give an untrue answer at any point, even if it is by accident.

Small Claims Court: An Overview

Saturday, June 14th, 2008

Going to court is not an experience most of us look forward to, but even if heading in front of a judge is something you dread, it is vitally important for people everywhere to know their rights and know what to expect if you find yourself heading to small claims court. Most people have heard of small claims court but they aren’t quite sure how it works or what is involved in a small claims court proceeding. Let’s take a look at what small claims court is for and what you will have to do to prepare yourself for an appearance in front of the judge. Before we start, it is extremely important to note that state law dictates much of what goes on in small claims court, which means that your experience, rules and format may differ depending on the state you call home.

In short, small claims court is used to resolve disputes between private citizens for small amounts of money. Although each state has its own limit on how much money can be at stake with a small claims case, the limit is usually set at $5,000. According to recent statistics, the overwhelming majority of cases brought to small claims court in the United States represent tenant/landlord disputes as well as disputes over small amounts of money, sometimes only a few hundred dollars.

Agreeing to go to small claims court can limit your rights depending on where you live. In some states, trying your claim in small claims court means that this is the end of the line for your claim and you give up the right to try your case in a more formal court of law, while other states give the right of appeal so that any decision can be tried in a higher court. Make sure you understand the laws in your area before you being your court proceedings.

In general, most small claims court proceedings don’t need lawyers. The entire small claims court system is set up with the idea of keeping things as simple and straight forward as possible and in most cases, people represent themselves. The only time one can really expect to see a lawyer in small claims court is if a corporation is involved since they have them on staff already.

Along with lawyers, you also seldom see juries, although there are exceptions. Most, if not all, decisions are made by the judge presiding over the case.

In some states, the parties involved may be asked to use a third party arbitrator instead of a traditional judge in small claims court. This is to help save time and expense as most small claims court dockets are extremely busy. In states where arbitration isn’t available, many counties have booklets or information available to the general public for resolving difficult cases outside of the court system.

Small claims court is a necessary and important part of the United States court system that is used each and every day to solve minor disputes from coast to coast.

The difference between civil law and criminal law

Saturday, June 14th, 2008

With so many television shows on right now that use the United States court system as a background, it can be a bit confusing figuring out the difference between civil law and criminal law. Let’s take a look at just a few of the main differences between the civil law system and the criminal law system in the United States.

First off, if you are headed to court for criminal law, that means that a law (state or federal) has been broken. In civil law, no laws have been broken but your rights as a citizen of your state or of the United States has been infringed upon. For example, if you feel that you were sexually harassed at work, then you would file a civil lawsuit since there are no federal or state laws that expressly forbid something like sexual harassment, although it is definitely something you can sue for.

Another major difference between civil and criminal law is economic rewards. In a criminal case, you seldom see a judge or a jury reward monetary rewards because a law was broken since the violation didn’t come against a person, it came against a law, but in civil court, a judge can award cash settlements as part of the punishment since a civil trial will look at a wrong done between one person to another. The same crime, say, manslaughter, can have two trials, a civil one that looks at the personal damage done by one person to another and a criminal trial that looks at the laws broken by the act. Some people mistakenly view this as a violation of the double jeopardy law, but that law only comes into affect if criminal proceedings are tried twice for the same crime.

One final major difference between civil and criminal law is the burden of proof. In the case of criminal law, the burden of proof is always on the state or on the federal government that is prosecuting the case. That means that the person being accused of a crime never has to prove they didn’t do it, they simply have to prove that the case presented by the prosecution is faulty. In civil court, the burden of proof is on the plaintiff in most cases. They must prove that they have been wronged and that the defendant is responsible.

So how do you know if you have been a victim of a civil violation or a criminal crime? Most people who are confused about what has just happened to them do one of two things: they call a lawyer or they call the police. In both cases, the person you call will inform you if you should call the other. The system works to help protect people’s rights, and although the police and lawyers may appear to have an adversarial relationship on television, they are both important parts of the United States system of law that is used to protect each and every one of its citizens.

Understanding Mediation

Saturday, June 14th, 2008

In practically every state and in every jurisdiction, mediation serves as an unofficial branch of the United States court system and helps to keep thousands of cases clear of courtrooms each and every year. The impact of mediation is unquantifiable, but it is easy to say that if it wasn’t for alternative dispute resolution in all its various forms, the court system of the United States would be so clogged and so overloaded that the entire system would essentially break down. Let’s take a look at how mediation works and when it is appropriate to use it to resolve a dispute of your own.

In most cases, a mediator is used to help two private parties (it could be two individuals, an individual and a company or even two companies) communicate in a clearer fashion. A mediator has no power of judgment, although a resolution is the obvious desired result of both parties. The mediator, instead, helps the two sides talk out their problems or helps set ground rules so that both parties feel comfortable expressing their points to the other side. Mediators are used for several reasons, but they are used most commonly because it is a much faster, much more direct way to solve disputes between parties than waiting for the slow wheels of the state or federal court system to click into place. Using a mediator can also be significantly less expensive, and it helps give both sides the feeling that no one necessarily “lost” or was “beat”; instead, both sides essentially acted like adults, talked things out and agreed upon a resolution without one being forced to act.

According to historians, mediation goes all the way back to the ancient Greeks and Romans, but the practice fell out of style in the Middle Ages and was only brought back within the last few hundred years. Today, thousands of disputes are solved through mediators each and every year.

There are many different kinds of mediation that tend to all fall under this umbrella like term. In some cases, two parties may use a conciliator to solve their issues. Depending on the agreed upon terms that both parties sign off on, a conciliator will act more like a lawyer for both sides simultaneously. He or she will often have express knowledge of the subject or the issue that the two sides are debating over and he or she may provide relevant facts as they pertain to the case being heard. The fine print in the case of mediation is always decided on before the mediation begins so that both parties feel at ease with the terms and conditions.

While there is no iron clad list of rules and ethics for mediators, they are generally expected to follow the same basic unwritten laws that include impartiality, neutrality and honesty at all points during the mediation. Often times, both parties will have to agree on the mediator chosen. This selection process is often the most drawn out part of the mediation process.

When is a civil lawsuit the right choice?

Saturday, June 14th, 2008

Every year, tens of thousands of civil lawsuits are filed against individuals in the United States. While most of these lawsuits do have merit, some of them do not and are a legitimate waste of time. The question that many people who feel that they have been wronged have to ask themselves at one point or another is if they feel that their experience warrants a civil lawsuit being filed. Let’s take a look at a simple mental checklist you can go through to see if you should contact a lawyer and file a civil lawsuit in court.

By far, the biggest motivation for filing a civil lawsuit is the possibility of a monetary reward, but for some people, having to go through the rigorous court system is more than enough of a deterrent to never file a civil lawsuit, no matter what. This often is a much harder decision than most people think as the grind of the court system can wear down anyone, but depending on what your case is about, the promise of a cash reward is more than enough to get the wheels of justice moving. A simple Google search on the type of civil lawsuit that you are considering filing can give you a general idea of the chances of success you might have, although it is important to understand that every case stands on its own merits.

Probably the second most common motivation for filing a civil lawsuit is to expose the violation in rights that occurred and for the offending party to be prosecuted. Since there can be no jail time for a civil case, a punitive damage reward is often the only form of justice that can be handed out. You often hear many civil plaintiffs say that they aren’t pursuing the case for the financial award but so that others know of what happened in hopes that others will seek justice through the court system just like they did. Again, you will have to weight the time consuming nature of court proceedings against your will of exposing the violation in rights that happened to you to see if you want to go ahead and pursue a civil court case.

One excuse that many people use for not pursuing a civil court case is that they can’t afford representation. In criminal court, if you can’t afford a lawyer, the state or the federal government will provide a lawyer for you free of charge. Depending on where you live, it may be difficult or even impossible to find free or low cost legal representation, but there are nationwide organizations like the ACLU that will provide a free lawyer to help represent your case. Often times, the costs of going to court can seem overwhelming but they can be overcome, even if you live in a rural area.

Going to court is never an easy choice, and it is something that most of us wish we could avoid, but there are times when justice needs to be served and a civil lawsuit must be filed.

Finding the right lawyer for your civil suit

Saturday, June 14th, 2008

If you are like millions of people in the United States, you have likely had to face a judge in a civil court of law. While civil law attempts to be a streamlined version of criminal law without lawyers and often without juries, there are no laws forbidding the use of lawyers in civil court cases, and if you find yourself in civil court with a company or large corporation or with someone looking at the chances of losing $5,000 (the usual limit for small claims court) then a lawyer is often present. Since most corporations and even mid sized companies have lawyers on staff full time, they often show up in civil court proceedings each and every time. Let’s take a look at how you can pick the best lawyer for your civil case.

The first question you need to ask yourself when it comes to picking out a lawyer for a civil lawsuit is if you really need one at all. The limit in most states for civil proceedings is $5,000, so if your lawyer fees are going to run in the hundreds of dollars or thousands of dollars, you likely don’t need the help of a lawyer. In most cases, the civil court system is designed for an individual to represent themselves. You don’t need any prior information on law or any specialized training to win your case. However, if you are going up against someone who is using a lawyer or if you are going up against a large company, it is a good idea to protect your interests with a lawyer who has extensive civil court experience.

The next step in finding the perfect civil court lawyer is to make sure that the circumstances in your case match up with the field of expertise that your lawyer has. If you are going to small claims court for a personal injury, make sure your lawyer has extensive background in that area. The same is true if you are going to small claims court because of a sexual harassment case. Don’t just choose the biggest law firm in your area, make sure you match up your case with a lawyer who excels in that field.

Once you’ve picked your lawyer, make sure you are forthright in letting them know if you really want to go to court or not. Once your case has been decided on by a judge and a trial has been scheduled; many cases never make it any farther than that because a settlement has been reached. If you aren’t interested in offering or accepting a settlement, make sure you inform your lawyer of that so that a trial can occur. If you don’t want the hassle and the time consuming nature of a trial to take place, make sure your lawyer understands that a settlement is preferred.

Hiring a lawyer is one of the biggest decisions you will ever have to make. If you are headed to small claims court, you may not need one, but if you decide that a lawyer is the right way to go, make sure you choose wisely.