The Court Of Public Opinion

For many people, the court system might as well be a maze. When it comes to a business dispute over a contract, the court system works in a particular manner.

What Courts Hear Contract Disputes?

The court system in the United States actually makes a lot of logical sense if you understand the terminology used. Well, if you are an attorney. The system is broken down by subject matter and then categorized by objective issues like the amount of damages being claimed. Common court branches include criminal, civil and family law divisions to mention just a few.

What court hears business contract disputes? Contract issues are covered under a set of laws known as civil law. If you have been in a lawsuit, you know it is rarely civil! The term, instead, refers to the matter being monetary in nature. At its root, the dispute has money at issue. Contract disputes fall within the business law and civil court jurisdiction. Ah, but there is more.

While civil courts hear contract disputes, the specific court is determined by the amount of money at issue. The exact amounts differ by state, but generally there are three levels. Small claims civil courts decide matters under $5,000 or so and you are not allowed to use an attorney. These are the disputes you see on television. Municipal civil courts usually hear contract disputes that have monetary values above small claims levels but below $25,000. If the claim involves an amount over $25,000, then it is heard in superior court.

Before heading off to court, it is important that you first read the contract in question very closely. Most contracts these days contain arbitration clauses. Arbitration is an effort to resolve things without taking up the time and resources of the court system. If you have such a clause, the parties typically agree to have a retired judge here the dispute and render a judgment in favor of one party.

Business contract disputes happen each and every day. Civil courts are usually going to handle them, but make sure you to check for arbitration clauses.

Gerard Simington is with FindAnAttorneyForMe.com – offering contract law articles.

The Benefits Of Small Claims Court

Johnny B. Good walked into the photo store with seven rolls of film to develop. Id like my honeymoon photos developed as soon as possible. We were in Italy and I took the most amazing pictures in my life, he said. No problem, answered the clerk at the photo store. Well have them ready by the end of the day, she replied. After work, Johnny returned to the photo store to claim his developed pictures. Uh, are you sure you brought them in? asked a different clerk. She looked everywhere, they couldnt be found. The next day the clerk who took the film learned that the cleaning person inadvertently threw 10 rolls of undeveloped film in the trash. Furious, Johnny demanded justice. These are irreplaceable memories. Memories of a lifetime! What am I going to do?

Q: Does Johnny need a lawyer? Can he handle it himself in small claims court?

A: Johnny doesnt need a lawyer. Small claims court is the perfect place for this claim.

Johnny needs to file a claim in his local small claims court. Theres a small fee to start the case, and they give you forms telling you what to do. Make sure that you keep all documents and on the day you are scheduled to appear in Court, make sure you arrive with all of your witnesses to support your claim. Theres only a Judge, no jury in small claims court, and make sure you are dressed neatly and cleanly.

The rules of evidence are the same in small claims court, but there is a tendency to be less formal since the litigants are not lawyers. Do not forget that the Court is still entitled to respect and the proceedings are recorded either by tape recorder or by court stenographer. After all witnesses tell the Judge their version of what happened, the Judge will usually put his decision in writing and mail it to the litigants. (They do this so that the losing party doesnt start screaming, yelling, and disrupting the courtroom immediately after a decision.).

IS IT WORTH IT TO GO TO SMALL CLAIMS COURT?

The short answer is yes. The long answer may be no. In small claims court in New York, you will get to present your case to the Judge rather quickly after youve filed your claim.

But if there are adjournments by either side, then you will have appeared multiple times, lost time from work on each occasion, and waited endlessly in the courtroom, simply to be told that you must come back on another day.

Remember, there are hundreds of small claims filed every week. On any given day, the Judge might have 20-40 cases to dispose of. Not each case requires a trial, and many cases get put off for another day. Some cases may be resolved in a binding mediation with a lawyer appointed by the Court.

You must determine whether the time you are going to spend waiting around a courtroom for justice is worth missing at least partial days off from work. If you choose to have your case heard in the evening session because you cant get off from work, just keep in mind that youre not alone. Lots of other folks will also be there waiting to have their case heard.

While in the courtroom, you can expect to hear cases that are very trivial. You might even wonder why someone would bother to bring a claim for such nonsense, or why theyd spend any of their valuable time pursuing such a ridiculous claim.

The answer to the question stems from the right every citizen of this State has- the right to bring suit if they feel theyve been wronged by someone else. Thats the price of freedom. Democratic countries allow its citizens the right to seek compensation for damages, whether its personal injury or a contract that was broken. A promise is a promise. People should be held accountable for their actions.

Are there cases that even in small claims court dont belong there? Probably yes. But we, as spectators, dont have the right to criticize the claim, only the process. Does it make for interesting viewing? You bet. Even better than daytime TV or the latest reality show! Why? Because this is real life. This is reality.

So, to answer the question Is it worth it to go? Yes. Everyone should go at least once, if only to observe the small matters that are important to people.

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I know it may sound simple, but there are things a Will does and certain things it cannot do. Most people dont have a will and dont even want to talk about it since it relates to death. A lot of people dont even have life insurance, either. I had a boss that was speaking to his accountant one time, If I die- started my boss, and his accountant said, There is no IF, its just WHEN. We all will die and it would be nice to have a will to help your family decide what to do with your money and belongings.

Why do you need a will? Would you rather probate courts decide the fate of your children? The court decides where the kids are sent for foster care. That should be enough to scare you out of your shoes. The court will also decide what happens to your assets. Yes, all your stuff and money. So you may have money and a nice house, then its all gone and the kids are sent to the state home.

I know, it sounds harsh. So what can a will do for me?

First, a will can indicate where your assets and property go. You can also name a guardian for your children and their property. You can also name an executor to administer the will. This executor can be given powers and compensation for taking care of your estate.

But heres the tricky part a will cant override anything with a named beneficiary. For example, your life insurance has a beneficiary that was established at the time you wrote the policy. Also, a will cant nullify the terms of a trust youve established.

So what should you do? Inventory your assets that will pass through the will. Like checking accounts, CDs, stocks, bonds, real estate, etc. These are called probate assets. Nonprobate assets would include things like your life insurance. These items have named beneficiaries.

Make a list of your beneficiaries and decide what you want them to have. If you have children from your current marriage, then the decision would probably be very easy give the items to your spouse. If you have kids from a previous marriage, plan carefully and list them as well as their relationship so the executor will have no questions and will hopefully limit anyone contesting the will.

I hope this gave you some idea as to why a will is an important planning tool not for you, but for your family. You dont make a will for yourself, as you will be dead, you make one for your survivors.

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Q: What is an autopsy, and why would it help my case?

A: An autopsy is an in-depth examination of a dead person, by a doctor. The doctor who performs the examination is usually a pathologist who looks to find the precise cause of death. They do this by looking at all of the internal organs, including the brain, heart, lungs, liver, kidneys, and spleen. Each area of the body is examined for evidence that contributed or caused that person’s death.

In a case involving claims of wrongful death (where a person or family has claimed that their loved one died because of somone else’s carelessness) having an autopsy is crucial to proving your case. While an autopsy is vital to support such a case, it can also shed light on the possibility that your loved one did not die as a result of wrongdoing.

It’s a double edged sword. The autopsy could help your claim by showing that your loved one died from wrongdoing, or it could show that the treatment or actions that happened before death did not play a role in causing the death.

There are some religions that prohibit autopsies, and in those cases, it becomes extremely difficult to prove, with a reasonable degree of probability, that wrongdoing (such as malpractice) caused their death. In those cases, we must rely on other evidence to support our claim.

I am often called upon by grieving families to ask whether an autopsy should be performed on their loved one. As in life, there are no set answers to this crucial question. Emotions run high following a family death; questions about improper treatment may cloud a family’s judgment; uncertainty about the cause of death may also add to a feeling of helplessness.

The most common case where an autopsy is performed is in a traumatic accident. In murder or homicide cases autopsies are always performed as the police want to know exactly what caused the person’s death. They can usually use this information to track the perpetrator.

In New York, if a person dies suspiciously, or within 24 hours of having had surgery, an autopsy will usually be performed to determine the precise cause of death.

For example, I had a case where a man on dialysis came home one day, and was found later by his family in his bathroom having bled to death. The walls were covered with blood and there were open bandages all over the floor. An autopsy was able to confirm that the man’s shunt (the place where the dialysis needle was put into his arm each session) had gotten infected and progressively larger with each session. Nobody recognized that he was starting to bleed when he left the dialysis center. Unfortunately, when he arrived home, the shunt ruptured and since it was connected to an artery, blood shot out all over the bathroom, creating what looked like a murder scene. It was only through the autopsy that we were able to prove our case successfully.

Autopsies are usually performed by the County Medical Examiner. In the five boroughs of New York City, Brooklyn, Bronx, Queens, Manhattan and Staten Island, autopsies are performed by the New York City Medical Examiner’s Office. In Nassau, it’s the Nassau County Medical Examiner, and in Suffolk, it’s the Suffolk County Medical Examiner.

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Q: When you question my doctor at a deposition, can I be present? Can I ask questions too?

A: During a lawsuit, each side gets to question the other side during a procedure called a deposition. (It’s also called an examination before trial- EBT). During a deposition, it’s an opportunity for me to get specific answers about what happened to you or your loved one. There are important strategies used by experienced trial lawyers when questioning a doctor in your case.

Not only are we trying to establish facts, as the doctor recalls them, but are also attempting to lock the doctor into a position about what was done for you, and why. I will always ask the doctor to read his treatment record, and then have him or her explain the reasons for treating you the way he did.

As a victim or family member of a loved one involved in the case, you are always welcome to be present when I question the doctor at his deposition. However, I must caution you that sitting across from the person whom you believe caused you or your family serious harm is very unsettling. The urge to reach across the table and do something physical is ever-present. The urge to verbally respond to a comment by the doctor is also very strong. Please remember, if you wish to be present, you can. BUT, the focus and emphasis is on questioning the doctor, NOT your desire to give him or her a piece of your mind.

If you have certain questions you feel are important to your case, by all means discuss them with me before the deposition. You will not be permitted to ask questions yourself.

Importantly, if you choose not to be present when I question the doctor…not to worry. I can send you a copy of the transcript so you can read it at your leisure. In my experience, 99 times out of 100, my client will choose not to be present during a doctor’s deposition.

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Q: During my case, will I have to be examined by a doctor for the defense?

A: In almost every type of injury case the answer is yes. When you put your medical condition in issue, and you claim you were injured because of another’s wrongdoing, the defense has a right to have you examined by a doctor of their choosing. This allegedly (at least in theory) allows them to evaluate your current medical condition to see for themselves whether you are truly as disabled as you claim to be.

The reality is that there are many doctors who are routinely used by various insurance companies to perform Independent medical exams. This term is really a farce, since there is nothing Independent about this exam. The defense insurance company selects this doctor. They send him your records. They pay his fee for the exam. In some cases, the referrals to doctors for these types of exams will make up the bulk of a doctor’s practice. In that instance don’t you think that the doctor is more likely to MINIMIZE your injuries, and make the defendant’s position better, so as to encourage the insurance company to keep sending patients to the doctor to examine?

If the doctor gave an unbiased, totally objective medical opinion in every instance, I am pretty sure that many of the monetary offers by insurance companies would be much fairer and higher than they currently are. Remember, insurance companies are in business to MAKE MONEY. Not to give it away. Also, these doctors who are doing these exams see the patient only one time; and not for treatment. They don’t have the benefit of seeing the patient many times, over a period of weeks, months or even years. There is no real relationship that develops during this solitary exam. How can a physican realistically evaluate someone’s medical condition without the benefit of seeing and evaluating them over time?

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Photographers often follow certain legal practices to protect themselves, but cannot be sure that they will work when challenged. One such example is using a model release to obtain a models permission to use photographs taken of him or her in specific ways. The good news is that the standard model release was recently put to the test, and it passed with flying colors.

In 2002, Russian tennis player, Anastasia Myskina, who then was 20 years old, posed for photographs by Mark Seliger. Seliger first photographed Myskina for the Gentleman’s Quarterly’s 2002 Sports issue and then photographed her topless. Myskina had signed a model release that said she consented to the use of her name and the pictures by the magazine and by others it may authorize, for editorial purposes.

After winning the French Open in 2004, a Russian newspaper published the topless photos. Myskina filed an $8 million lawsuit against the publisher, Conde Nast Publications Inc., Gentleman’s Quarterly and Seliger alleging emotional distress and economic injury.

The New York judge who presided over the case held that Myskina’s rights were not violated despite her insistence that she did not understand the signed model release and was not fluent in English at the time. Instead, the Judge stated that, absent allegations of fraud, duress or some other wrongdoing, Myskina’s claimed misunderstanding of the release’s terms does not excuse her from being bound on the contract. Nor can she avoid her obligations under the release because of her purported failure to read its contents.

Even though the photographer allegedly told Myskina that the topless photos were for himself, the Judge found that the oral agreement contradicted the plain language of the written agreement and was not admissible. The Judge then dismissed the case.

As a photographer, it is important to protect yourself as much as possible. Fortunately, the model release is one way that has been proven to be effective.

Take my advice; get professional help. PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved

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True Story:

A photographer recently settled for $275,000 with the Dallas Cowboys after the Cowboys used one of his pictures on clothing and other merchandise without permission. But after the settlement was reached, the Cowboys barred the photographer from ever working in Texas Stadium where the Cowboys play.

The photographer had given a digital file of a photograph to the Cowboys who considered it for use on season tickets. The Cowboys then bought only 250 copies to resell as prints to the public. Later, the Cowboys used the same image on clothing and other items, without getting permission from the photographer for the additional usage. The photographer had not registered his photo with the U.S. Copyright Office.

When the photographer discovered the infringements and inquired about it, the Cowboys offered him $1,000 in merchandise gift certificates. After trying to negotiate a settlement on his own for about a year, he hired a lawyer. Three years later, a settlement was reached.

Morals of the story:

-Many infringements come from uses beyond that agreed to. The infringements can come from uses on different products, for longer terms, in extra forms such as print or electronic, in other locations, etc.

-Watch your clients use of your work closely.

-Register your images with the U.S. Copyright Office before you give, or within three months of giving, them to a client.

-Even if you havent registered your photographs with the U.S. Copyright Office, you are entitled to actual damages from infringements. They can be hard to prove, but sometimes they can add up to substantial sums.

-While you may be a good negotiator, it can help to have a lawyer to give weight to your position.

-If you have to sue a client, you probably wont get work from that client again.

-Legal matters can take time; be patient for your rewards.

Take my advice; get professional help.

PhotoAttorney

Copyright 2005 Carolyn E. Wright All Rights Reserved PhotoAttorney

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Very few people sit around, trying to think of ways to pay their lawyer MORE money. Actually, they are probably sitting around, thinking that THEIR lawyer is sitting around, thinking about ways to CHARGE more money. This isn’t true – lawyers can charge plenty of money ethically, because litigation is complex, and usually involves hours of preparation. Lawyers usually charge by the hour. Hours of preparation. Hourly rate. Hours hours hours…

So how do you keep the lawyer fees down? REDUCE the hours the lawyer charges for preparation! In other words, there are things you can gather or prepare for your case, that could be done by your lawyer. If they are done by you, the cost to you is time.

For example, let’s take a divorce, with a modest estate, with custody at dispute. Since the divorce involves property, give your lawyer the last 4 or 5 bank statements, portfolio statements, 401(k) or pension statements, and other such investment and financial statements. Own a house? Provide the last appraisal. No appraisal? In that case, it’s actually cheaper to just order one right now, because it’s going to come in eventually. Oh, and all the same documents for your spouse (don’t break any laws getting the documents, however. It’s not necessary). Make a list of all your deductions fromyour paycheck, utility bills, monthly payments (like car payments, insurance, etc.), other regular payments (like quarterly tax payments, real estate taxes, etc.). Your locality may have a form for this, but do it now on your own.

INVENTORY YOUR HOUSE! There is NOTHING more important than to have an accurate list of the items in your house. If anything is declared on insurance riders, like jewelry or musical instruments, include that also. Take pictures of every room, with the furniture in its usual place. If you have receipts for items you purchased, get them! Make a note of any item you think is not or should not be marital property. You may be wrong on everything, but having such a list makes it easier to review and develop strategy with your lawyer.

Income is usually looked at, so bring your last 4 or 5 Federal and state income tax returns and attachments, 6 months of pay stubs and bonuses, and statements showing investment income. If you run your own business, your books! Profit and loss statements, balance sheets, and checking account statements. Same information for your spouse, if you can get it easily. Bring any documents showing the existence of loans.

Where custody is involved, get school records, medical records, pickup and dropoff logs at the daycare, diaries, letters from the children to you, counseling records, and the like. Go through your check book (if it’s your name or is a joint account) and make a list of checks you wrote for ANYTHING involving the children. If it’s a joint account, then list EVERY check involving the children, whether you or your spouse actually wrote the check, because a joint account means it is your money, regardless of who wrote the check.

Finally, SUMMARIZE! First, ask your lawyer to ASK you to summarize. That way it’s work product and can’t be discovered by the other side. Summaries are excellent tools to save you money on lawyer fees by focusing the lawyer on the important facts. At the same time, summaries help you remember key points, and develop the story of your case.

The suggestions in this article will save you money, by saving your lawyer the time to gather these documents. It might annoy you,to do what you hired a lawyer to do … until you remember that you hired your lawyer to PRESENT the case. Take yourself out to dinner on the money you save!

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In one of the most widely misreported and misunderstood cases in recent memory, a Albuquerque, New Mexico jury awarded 79 year-old Stella Liebeck $2.9 million for severe burns suffered after she spilled a cup of McDonald’s coffee, which she had placed between her knees.

The jury’s award was for $200,000 in compensatory damages and $2.7 million for punitive damages (because of McDonald’s callous conduct). The jury also found Mrs. Liebeck 20% negligent, reducing the compensatory damages to $160,000. The trial judge also reduced the punitive damages to $480,000. Mrs. Liebeck did not receive $2.9 million, or $2.86 million, or $740,000. The parties entered a post-verdict settlement for a undisclosed amount.

(States have different legal standards with respect to negligence. New Mexico uses a comparative negligence rule, which assigns blame and, therefore, judgments proportionally. Other states such as North Carolina use a contributory negligence standard, which bars a plaintiff from recovery if their actions contributed even 1% to the accident!)

THE FACTS OF THE CASE

Mrs. Liebeck, while a passenger in her grandson’s car, purchased a cup of coffee at the drive-thru window at McDonalds. While the car was stopped, she placed the cup securely between her knees and attempted to remove the lid. The cup accidentally tipped over and poured the scalding (180-190 Fahrenheit) hot water onto her lap.

She suffered third-degree burns over 16 percent of her body. During her eight day hospitalization she underwent skin grafting and painful whirlpool treatment for debridement (removal of damaged tissue) of her wounds. She has extensive scarring and was disabled for more than two years.

Despite these very painful and debilitating injuries and their expensive medical treatment, Mrs. Liebeck offered to settle with McDonald’s for $20,000.

McDonald’s refused to settle and the case went to trial.

FACTS PRESENTED AT TRAIL

The jury heard the following evidence in the case:

McDonalds’s coffee sales are $1.3 million per day.

By corporate specifications, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit; Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds; Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years;

The chairman of the department of mechanical engineering and bio-mechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor in chief of the leading scholarly publication in the specialty, the Journal of Burn Care and Rehabilitation;

McDonald’s admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years — the risk was brought to its attention through numerous other claims and suits, to no avail;

From 1982 to 1992, McDonald’s coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;

Not only men and women, but also children and infants, have been burned by McDonald’s scalding hot coffee, in some instances due to inadvertent spillage by McDonald’s employees;

At least one woman had coffee dropped in her lap through the service window, causing third-degree burns to her inner thighs and other sensitive areas, which resulted in disability for years;

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature;

McDonald’s admitted that it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not;

McDonald’s witnesses testified that it did not intend to turn down the heat — As one witness put it: No, there is no current plan to change the procedure that we’re using in that regard right now;

McDonald’s admitted that its coffee is not fit for consumption when sold because it causes severe scalds if spilled or drunk;

Liebeck’s treating physician testified that her injury was one of the worst scald burns he had ever seen.

Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.

In refusing to grant a new trial in the case, Judge Robert Scott called McDonald’s behavior callous. Moreover, the day after the verdict, the news media documented that coffee at the McDonald’s in Albuquerque [where Liebeck was burned is now sold at 158 degrees. This will cause third-degree burns in about 60 seconds, rather than in two to seven seconds [so that, the margin of safety has been increased as a direct consequence of this verdict.

By Wayne C Walker, President of Capital Transaction Group Inc. a leader in litigation financial services www.captran.com.

This information is opinion and not intended to be legal advice. Readers should not act on this information without seeking the advice of a competent attorney. 2003 CapTran

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