The Court Of Public Opinion

Anyone who cares about the feelings of their family members, or their own final health care treatment, should consider executing a Living Will. It has become an essential element in the practice of Estate Planning Attorneys.

Why? A Living Will permits the patient to communicate, in advance, the medical care decisions he or she would make if rendered incapacitated, so that their family wont be put in the difficult position of having to do so for them.

The recent nationwide controversy caused by the unfortunate situation of a woman in Florida, who did not possess a Living Will, has demonstrated the family pain created by this issue and sparked renewed public interest in the Living Will. Clients from California to New Jersey have contacted Estate Planning Attorneys to learn more about them.

The Basics:

The legal name for a Living Will is an Advanced Directive, a document codified nearly 15 years ago by The New Jersey Advanced Directives for Health Care Act.

In New Jersey, according to the law, an Advanced Directive, or Living Will, in and of itself, is a simple document needing only to be in writing, signed and dated in the presence of two subscribing adult witnesses who must attest to the fact that the person is of sound mind and free from duress and undue influence. Alternatively, it simply may be signed, dated and acknowledged before a notary public, an attorney or other person authorized in New Jersey to administer oaths.

The Advanced Directive becomes operative when it is transmitted to the attending physician who has determined that the patient lacks the capacity to make a particular health care decision.

Once made, the patient may revoke the Advanced Directive either by oral or written notification of the revocation to the Health Care Representative, physician, nurse or other health care professional, or by any other act evidencing an intent to revoke the document. In other words, the patient can change his or her mind, at any time, simply by saying so.

What It Does:

Consistent with the terms of an Advance Directive, life-sustaining treatment may be withheld or withdrawn from a patient if the life-sustaining treatment is:

Experimental and not proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process;

The patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;

The patient is in a terminal condition as determined by the attending physician and confirmed by a second qualified physician, or

The patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medial intervention to be withheld or withdrawn may be reasonably judged to outweigh the likely benefits to the patients from such intervention or imposition on an unwilling patient would be inhumane.

The law allows the attending physician, consistent with the terms of the Advance Directive, to issue a Do Not Resuscitate Order.

Two Types — Instruction and Proxy:

There are two types of New Jersey Advanced Directive, or Living Will: An Instruction Directive and a Proxy Directive. You may choose to create either one or both.

The first type, an Instructive Directive is what clients usually mean when referring to a Living Will. It provides instructions and directions regarding health care in the event that the patient subsequently lacks such decision-making capacity. The Instruction Directive may state the persons general treatment philosophy and objections together with the persons specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment.

The second type, the Proxy Directive is more similar to a Power of Attorney because it appoints a Health Care Representative to make health care decisions in the event the patient subsequently loses the capacity to make such decisions.

A person may appoint as his Health Care Representative any competent adult, including a family member, a friend or a religious adviser. Once the persons attending physician determines that a person lacks decision- making capacity (along with confirmation of another physician, unless that persons lack of decision-making capacity is clearly apparent), the Health Care Representative has the authority to make health care decisions on behalf of the patient. The Health Care Representative is to make all health care decisions the patient would have made had he or she possessed decision-making capacity, or where the patients wishes cannot be determined adequately, to make a decision in the best interest of the patient.

In carrying out the persons wishes, the Health Care Representative is to give priority to that patients Instruction Directive, if one exists. Also, a Proxy Directive can be written in New Jersey so as to place specific limitations upon the authority of the Health Care Representative.

Also important to note, the Living Will statute in New Jersey covering Proxy Directives specifically protects the patients Health Care Representative from liability. The law states that the Health Care Representative is not imposed with any liability for any portion of the persons health care costs, not subject to criminal or civil liability for any action performed in good faith and in accordance with the provisions of the act to carry out the terms of the Advance Directive.

Physician and Hospital Responsibilities:

Interestingly, the law requires the attending physician to make affirmative inquiry of the patient, his family or others as appropriate under the circumstances, concerning the existence of an Advance Directive. In other words, the attending physician must initiate the question of a Living Will. The attending physician is required to note in the patients medical records whether an Advance Directive exists and the name of the patients Health Care Representative, if any. If an Advance Directive exists, a copy must be attached to the patients medial records.

Health care institutions including hospitals, nursing homes, home health care agencies and hospice programs are required to adopt policies and practices that are necessary to provide for routine inquiry at the time of admission and other appropriate times concerning the existence and location of an Advance Directive. Moreover, health care institutions must adopt policies and practices necessary to provide appropriate informational materials concerning Advance Directive to all interested patients, their families and their Health Care Representatives, and to assist those patients in discussing the executing an Advance Directive.

These health care institutions will also be required to adopt policies and practices necessary to educate patients, their families and Health Care Representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, included but not limited to family and social services, self-help and advocacy services, employment and community living, and the use of assisting devices. Health care institutions must establish procedures and practices for resolution of the disputes among the patient, and Health Care Representative and attending physician in the event there is disagreement concerning the patients decision making capacity or in the interpretation of the Advance Directive concerning the patients course of treatment.

The New Jersey law on Living Wills expressly states that it should not be interpreted to impair the obligations of health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.

The patients family, Health Care Representative, and appropriate others should be informed that if a person has appointed a Health Care Representative and subsequently lacks decisions-making capacity concerning a particular health care decision, the attending physician must obtain the informed consent for, or refusal of, health care from the Health Care Representative after discussing the nature and the consequences of the persons medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. However, if the patient is subsequently found to possess adequate decision-making capacity, the patient shall retain legal authority to make the health care decision.

Moreover, even if the patient lacks decision-making capacity, but nonetheless clearly expresses the wish that medically appropriate measures be utilized to sustain life, that wish shall take precedence over any contrary decision of the Health Care Representative and over any contrary statement in the patients Instructive Directive.

Conclusion:

The services of an Estate Planning Attorney are not necessarily required in New Jersey to execute a Living Will just as they are not required to execute a Real Estate Contract or a Last Will & Testament provided the document is in the proper form, correctly drafted, signed and witnessed. However to be sure that a Living Will conforms to New Jersey legal guidelines and that the patients wishes in the event of incapacity are clearly expressed so as to be understood and followed it may be prudent to consult a lawyer experienced in Estate Planning before the occasion arises in which the Living Will is needed.

Thomas G. McMahon, Esq. is a attorney in the Princeton-based law firm Pellettieri, Rabstein & Altman who specializes in estate planning and tax litigation. You can reach Mr. McMahon at 609-520-0900, or visit http://www.pralaw.com

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Choosing the right lawyer can often seem like a daunting task in today’s world of scammers and frauds; television and the media often instill in us a stereotype of ruthless lawyers who only care about money and prestige. And while there are some who fall into that category, the majority of men and women practicing as lawyers are solid professionals who want to do their job well and honestly care about the services they’re performing.

There are numerous excellent lawyers around; you just have to make sure you get the one that’s right for you. All lawyers are not equal and do not specialize in the same tasks; many take on roles in specialty fields of law, such as personal injury law and finance law. It is up to you to determine what kind of lawyer you need; luckily there is a wealth of resources on the web for people who need to figure out what kind of lawyer they need.

Remember, you wouldn’t hire a divorce attorney to help you with tax problems, and you certainly wouldn’t hire a tax attorney to help you with a divorce case. Thus it is imperative to determine what kind of case you have and find a lawyer accordingly.

After you’ve figured out what type of lawyer you need, it’s time to find one. Ask everyone you know if they have any recommendations. If they don’t, do what research you can online and find someone who meets your needs. Before you contact them, look at their credentials. Call the bar association or visit their website to determine if the person really has a license and how clean of a record they have. Find out how many cases they’ve won or lost, how many have been thrown out, and any other details that might help you decide.

When you contact your lawyer, request references from pervious patients before you make an appointment; this is a great way to determine if the lawyer is good and takes care of their clients. Many lawyers offer free consultations, so don’t be afraid to take advantage of the opportunity to check them out. While you’re there, you can also ask for a list of client references.

After you choose your lawyer, you will sit down with them and discuss fees. Most lawyers, regardless of specialty, will request a retainer just for hiring their services. On top of the retainer you may be charged hourly or on contingency. Contingency simply refers to the percentage of money a lawyer may earn if you win your case; in some situations they may take as much as 40%.

Retaining the right lawyer makes all the difference in your case; it could be the difference between winning and losing. If you have a good, expert attorney defending you who is a specialist in the area in which you need representation, you’re on the right path.

MyAbogado.com is a popular legal directory that helps users locate legal professionals across the country while providing the legal community and litigation support providers with a low cost method to market their services to other professionals and members of the public across the country. To find out more, please visit Myabogado.com.

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We live in an information-oriented society. Technology allows us to do business and make transactions literally in a matter of seconds. This abundance of information has given rise to a new crime - identity theft. In fact, according to a 2003 release from the Federal Trade Commission, almost 10 million people in the United States may be victimized by identity bandits each year.

So what does that mean? Someone has stolen your credit card your credit card company can help you with that, right? Well, according to the FTC, almost 60% of identity theft issues dont pertain to your existing credit card accounts. Identity theft can occur as a result of new lines of credit being opened in your name either through credit cards or bank loans as well as phone/utility fraud and even employment related fraud. Because we are susceptible through so many avenues in our daily life, we are all at risk.

What can you do? Where would you turn if you found yourself in this situation? Would you know where to start to clear your name? Well, now you dont have to worry about what to do as we have the answer.

As you already know, Pre-Paid Legal Services, Inc. is a pioneer of the legal services industry. With more than 30 years of experience in providing legal rights protection to our members, we have now teamed with Kroll Inc., the worlds leading independent risk consulting company. Kroll is a 30 year old, publicly traded company that provides a broad range of investigative, intelligence, financial, security, and technology services to help clients reduce risks, solve problems, and capitalize on opportunities. Headquartered in New York with more than 60 offices on six continents, Kroll has a multidisciplinary corps of more than 2,200 employees and serves a global clientele of law firms, financial institutions, corporations, nonprofit institutions, government agencies, and individuals. Over the last three years, Kroll has developed a unique solution for victims of identity theft. This new service is now available to Pre-Paid Legal members through the IDENTITY THEFT SHIELD benefit.

What does this benefit provide our members?

The Identity Theft Shield gives you easy access to the resources you need to understand your credit ratings and to fight back if an identity thief threatens your financial standing. This benefit is designed to alert you to suspicious account activity, to restore any resulting damage to your credit history and to reimburse you for covered out-of-pocket expenses you may incur in the process.

1. Credit Report Through Experian

Make sure your financial records are accurate.

Your credit standing is one of your most important financial assets. It not only affects your ability to get credit, it often dictates the interest rate at which you can borrow. It can also affect your ability to purchase insurance or to find employment. Some insurance companies and prospective employers use your credit rating to gauge your sense of responsibility.

Experts recommend you review your credit report regularly. The Identity Theft Shield makes it easy. Members are entitled to an up-to-date credit report from Experian at no additional charge.

Personal Credit Score and Analysis from Experian

Know your credit score . . . and how it affects your ability to borrow.

Your credit score is derived from the information in your credit report. This score is used by lenders to determine your creditworthiness. The higher the number, the better your chance of being approved for the credit you want.

A detailed analysis of your Personal Credit Score will be included with your Credit Report. You can use this analysis to evaluate your current credit standing.

2. Continuous Credit Monitoring Through Experian

Learn of suspicious activity before your credit is ruined.

A professional thief can assume your identity in just a few hours. But it can take years for you to repair your credit standing.

Early detection is key to minimizing the damage caused by thieves who steal you name.

With your Identity Theft Shield membership, your credit files will be monitored through Experian daily. Suspicious activity will be brought to your attention, providing you with early detection. Youll receive prompt notice if any new accounts are opened in your name . . . or if negative notations are added to your credit report.

3. Fraud Restoration Service

Get personal assistance and advice from experts.

Any discrepancy in your credit report should be addressed at once. Call our Customer Services Department at the designated Identity Theft Shield number and explain your concerns. If it is identity theft, our fraud investigators will assist you every step of the way. A Fraud Restoration package with complete and detailed materials, aids, and instructions will be rushed to you.

If you sign a Limited Power of Attorney, you will be entitled to Enhanced Restoration Services. Kroll will work with you to determine the extent of the fraud in your credit and regarding your identity. On your behalf, Kroll will issue fraud alerts to the three major credit repositories, the Federal Trade Commission, the Social Security Administration, and the United States Postal Service. Kroll will work with the bureaus, creditors, and collection agencies to restore your credit accuracy with regard to your identity theft issues. If necessary and reasonable, Kroll will work with law enforcement, the department of motor vehicles, and other organizations to resolve your identity theft issues

If you decline the Limited Power of Attorney, you will receive Basic Consulting Services. Kroll will work with you to determine the extent of the fraud in your credit and regarding your identity. Kroll will provide you with contact information and procedures for the organizations you will need to work with. Kroll will provide sample letters and forms and be available to you through a toll-free phone number for assistance and advice throughout the process of restoring your identity.

Now, it is important to understand any identity theft that occurred prior to the membership enrollment or any situations relating to a business identity are not covered. Identity Restoration will not apply if the identity theft is the result of a dishonest, criminal, malicious, or fraudulent act you, your spouse, or child participated in, directed, or had knowledge of. Restoration services will not be provided for a preexisting, known stolen identity event. You must be an active, paid member to receive restoration services. Plan benefits do not cover financial losses arising from the identity theft.

$25,000 Identity Theft Restoration Reimbursement Benefit Pays your covered out-of-pocket expenses.

The Identity Theft Shield includes up to $25,000 in a fraud restoration reimbursement benefit. This coverage will reimburse you for covered expenses you may incur while working to clear your name. These include:

• lost wages up to $500 per week with a maximum of up to four weeks

• legal defense fees and expenses

• the cost of notarizing affidavits or similar documents, long distance telephone calls, and even postage!

• the cost of re-filing applications for loans, grants, or other credit instruments

Some restrictions of the restoration reimbursement benefit include: Insurance benefits and services provided by member companies of American International Group, Inc. (AIG). The description is a summary only. It does not include all terms, conditions and exclusions of the policies described. Please refer to the actual policies for complete details of coverage and exclusions. Coverage may not be available in all jurisdictions. Coverage available only if the stolen identity event occurs while you are an Identity Theft Shield member and is reported to us within six months.

Did you know, that on average, victims spend more than 175 hours and $1,500 in out-of-pocket expenses to clear their names. With Pre-Paid Legals IDENTITY THEFT SHIELD, the cost of combating identity theft is much less. For just $9.95/month, IDENTITY THEFT SHIELD members have the added security of knowing they have someone to fight the battle for them. And, the best thing is this monthly fee provides benefits to both you, the member, and your spouse.

Reports on identity theft are everywhere; television, newspapers, magazines, talk shows, etc. Now that you know this benefit is available, doesnt it make sense to have this sort of coverage? Imagine the peace of mind you would have knowing you and your spouse would have access to all of these services if you found yourself to be an identity theft statistic? Contact the person who referred you to this call to sign up for your Identity Theft membership. Dont wait until it is too late - do it today!

For a full list of disclosures and exclusions, please consult the Identity Theft Shield written material provided by Pre-Paid Legal.

About The Author

Mark Freink, Independent Associate for Pre-Paid Legal Services, Inc.

markfreink@prepaidlegal

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Lawyers often receive inquiries about the legalities of recording phone or other conversations in Arizona. In particular, the issue frequently arises in family law cases where child custody is at issue. Related to the recording issue is the bugging issue.

There are a number of variables that affect the answer to the central question, whether it is legal to either record or even bug conversations. First, bugging and recording are two different issues under Arizona law, often related, but also potentially very different under the law. Second, the laws regarding bugging and recording vary significantly by jurisdiction so what is legal in one state may be illegal in another. As well, the federal law may vary from state laws.

The following is a very brief analysis of the bugging and recording law in Arizona:

A. Bugging, otherwise known as wiretapping, typically means placing a device on a phone that allows one to eavesdrop on a conversation or other transmission. Bugging by a private party is considered illegal almost all of the time for two reasons primarily: First, it allows someone to listen to a private conversation between two or more unsuspecting parties. Second, bugs are usually placed without permission so you have a number of infractions inherent in such trespass-like activity. If you suspect someone has placed a bug on your phone or other device, you should call the police.

B. In the case of a telephone or in-person conversation, recording simply means making a copy of the conversation between two or more people. Recording is illegal in Arizona if NO party to the conversation knows that the conversation is being recorded. However, in Arizona, and this varies by state, if one party to the conversation knows that the conversation is being recorded, it is not illegal. Thus, if someone tape records a phone call or conversation involving him/herself and another person, even one who is unaware of being recorded, that’s legal in Arizona. If the same person taps into a phone line and records a conversation between two people who are unaware they are being recorded, it is ILLEGAL. Arizona and federal law are similar in this respect; however, recording conversations is illegal in certain other states unless all parties know of the recording and consent. There may be some cross-jurisdictional issues involved when tape recording a conversation across state or national boundaries. Prior to tape recording, I recommend that you consult an attorney in the appropriate jurisdiction.

In summary, bugging/wiretapping is always illegal while tape recording is legal in Arizona as long as one party to the conversation is aware the conversation is being recorded. However, don’t make assumptions about the law in other states -consult an attorney to determine what is allowed.

Wilcox & Wilcox, P.C. Trent Wilcox For the Firm

Phoenix office: 3030 N. Central Ave., Ste. 705 Phoenix, Arizona 85012 Ph: 602-631-9555 Fx: 602-631-4004

Goodyear office: 1616 N. Litchfield Rd., Ste. 240 Goodyear, Arizona 85338 Ph: 623-344-7880 Fx: 602-631-4004

Visit our website: www.wilcoxlegal.com

Check out our web log: www.arizonafamilylaw.blogspot.com

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota. Information in this article may apply only to Arizona.

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An ideal lawyer will not just have a string of impressive credentials or gold lettering on his door. He or she will be caring, concerned, and devoted to their work. You need to think carefully before laying your trust in a lawyer after all in some cases your life, future, money or property will be in his hands.

Apart from doing extensive research to short list possible lawyers you must ensure that there is not conflict of interest, that you understand everything the retainer agreement states, and that you have checked the references and details regarding the practice.

You will know the lawyer you have chosen is the perfect one if:

1.He makes an effort to spend time to understand your case himself. He will not assign a legal assistant to take facts of the case down.

2.From experience and knowledge he will know what is relevant and what is not. He will set aside and ignore irrelevant facts, opinions, and personal emotions that cloud the case on hand.

3.He will insist that the footwork for the case be done thoroughly. All facts must be checked for accuracy and solid arguments jotted down with backing of earlier rulings.

4.He will not just focus on the problem at hand but examine the problem from all sides. This will create a complete picture highlighting all factors of relevance and the different ways one can approach the case.

5.He will use his foresight and anticipate moves by the opposition or opinions of the jury or judge and plan way ahead. Like a master chess player he will plan the case not by the day but by many hearings ahead.

6.He will not waste time beating around the bush or create verbose statementsmany words strung together which look impressive but mean nothing. He will insist that the case and its arguments be clearly stated.

7.He will be self-disciplined, thorough, and self confident. Courteous at all times he will respect you as well as all the staff who work for him.

8.He is recommended by not just his friends and relatives but by other professionals of good standing and from his field.

9.He will not just present to you his victories but be happy to tell you why and how he lost certain cases.

10.He will lay the cards on the table and tell you clearly whether your case stands to win or loose. He will not claim that winning is guaranteed. He will be honest and upfront about his opinions and advice.

The bottom line is that the lawyer must be worthy of your trust. Use your inborn instincts and dont go by the lawyers good looks or fancy car or office. After all it is competence in law and in court that is of essence to you.

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Financing a lawsuit provides monetary help when a person seeks legal remedy in a court of law, and does not have the finances to bear the expenditure. The expenses covered by lawsuit financing companies include attorney fees, medical bills, health care, rent and mortgage, food etc. Cases funded by lawsuit firms include personal injury, workers compensation, motor vehicle accidental injury, wrongful death, medical malpractice, product liability, breach of contract, fraud and others.

However, this should not be mistaken for a loan, as it is non-recourse. That is, the client does not have to repay the amount if he or she loses the lawsuit. The risk is undertaken entirely by the companies. A loan, on the other hand, usually has a definite payback schedule within a fixed period. As there is no way of determining how long a case will run, there is no rigid schedule of repayment followed by lawsuit financing companies.

These companies usually lookout for cases that have a strong chance of winning, in order to reduce the risk of losing money. They have an in-house attorney who studies cases, and decides which of those are more likely to win. Subsequently, they fix the amount that is to be provided to the client, according to his or her needs.

There are basically three types of funding:

1. Pre-settlement funding:

Companies provide funds before the verdict is announced. These are generally provided when the client, due to some injury or some other reason, cannot work and earn money to pay the fees. If however, the verdict goes against the client, the company does not retrieve the money.

2. Post-settlement funding:

Firms give money only after the lawsuit is settled. In such cases, however, they do allow partial advances.

3. Attorney Loans:

The firms directly provide the attorney a long-term credit that will take care of all the expenses incurred.

However, before accepting help from such companies, it would be wise to consider the terms of repayment, and options available. The terms include the flat fee and the recurring fee. One should make an exploratory survey of different companies, and choose the one that is the most suitable. However, the chances of getting such funding would be negligible, if a case has a higher probability of losing, because lawsuit-financing firms scrutinize each case very carefully before providing help. Generally, this kind of service is provided to only those whose attorneys are ready to bear the huge expenses, which the client cannot provide.

Some clients are often compelled to obtain lawsuit financing at a high cost. For example, they may either need to pay their medical bills, pay the rent or mortgage, or avail of health care facilities. If there is no other source of income, lawsuit loans are often the best option. It is advisable to involve your attorney in processing a lawsuit loan, since he or she may be able to find you a funding company that offers the best terms. An attorney will also be able to help you review the contract before you sign up with the lawsuit funding company.

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Wrongful death refers to a lawsuit which alleges that the victim was killed as a consequence of negligence or misdeed of another. Usually, wrongful death occurs as a result of personal injury accidents, medical malpractice, auto accidents, workplace accidents, dangerous or defective products, mesothelioma and other accidents. When the proximate cause of the wrongful death of the decedent roots from reckless, careless or negligent acts of another, his actions are often subject to personal injury and/or wrongful death suits.

The loss of a family member causes great pain, turmoil, as well as inconceivable loss of the family. In the stage of grieving, it is hard or impossible to function in everyday life and carry on, let alone think about making a wrongful death claim. This stage leaves the decedents family feeling powerless with so many questions unanswered. When you are ready to receive settlement or filing a wrongful death suit, an experienced wrongful death lawyer can be of great help. Though a wrongful death claim cannot replace your loss but it is as close to justice.

If you have lost a loved one due to the negligence of a person or a company, you may have the right to receive compensation from an insurance company or from the person or company responsible for said death. Surviving family members are strongly encouraged to immediately consult with a wrongful death lawyer to safeguard the critical evidence of the fatal accident and to avoid being estopped to institute a claim.

The immediate aftermath of a wrongful death is to hire the services of the right lawyer. Hiring an experienced wrongful death lawyer is a critical decision that may significantly affect the lives of the decedents family. Wrongful death lawyers appreciate the complexity in legal issues as well as the powerful emotional trauma absorbed in a wrongful death claim. Experienced wrongful death lawyers will vigilantly represent the rights of the victim while assisting the family members in a dependable and considerate manner by providing information regarding the practical and legal aspects of personal injury law and wrongful death claims including survivor actions, Social Security Disability and Windows Benefits.

To be able to show evidences that a wrongful death happened, an investigation in connection with the death shall be conducted. It is necessary that the wrongful death lawyer have the necessary resources to acquire records and reports as well as thorough information for successful case results. Clients should feel confident about their legal action. With the help of a diligent wrongful death lawyer, the process in recovering the reasonable compensation will be smoother.

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Do you know anyone who has been hit by a reckless driver or a careless motorist, shot dead due to mistaken identity, killed due to medical malpractice, etc.? These are examples of wrongful death cases. Generally, these cases are caused by another persons negligence, carelessness, malpractice or inaction. Even though the death is unintentional, it is still the responsibility of the defendant to provide just compensation for the survivors or victims of wrongful death cases.

Prior to a wrongful death incident, you can file wrongful death lawsuits if you are a relative of the wrongful death victims. Winning these civil lawsuits can recover payment for damages to the victims lives. The compensation may cover medical and funeral costs, lost wages including future earnings, lost benefits, lost inheritance, pain and suffering, mental anguish, loss of support or companionship, general damages, and punitive damages. However, the last compensation may not be awarded without additional evidence of malicious intent.

Simply, the immediate family members such as the parents, spouses and children of the deceased can file the wrongful death lawsuits on their loved ones’ behalf because they are almost always eligible to file a claim. Minors may need an adult guardian to take a wrongful death lawsuit to court. Moreover, other family members including the stepparents, grandparents and dependents may also be permitted to file suit in some states.

If you realize you have a valid wrongful death claim, you must first consult one of the experienced wrongful death lawyers in your area. Doing so is very important because a wrongful death lawyer can help you gather evidence, understand the law, complete necessary paperwork, and build a convincing lawsuit against the defendant. In addition, to have an attorney can also help lessen the pain, stress and suffering you may be experiencing due to the incident.

The law states that there is a certain amount of time allotted that a person who has lost a loved one due to wrongful death has to initiate a lawsuit. Family members are usually allowed between one and three years from the time of death to file a claim. If they fail to do so, their claims may be shelved forever. Therefore, if you have lost a loved one because of wrongful death, speak to a personal injury attorney for details regarding the reliability of your case now. After all, your loved ones deserve justice for their untimely death and you too for your misery.

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Introduction

In late June of 2003, I received an e-mail from Daniel Harris, who introduced himself as maritime lawyer from Seattle. He had found me through the internet and was asking me whether I was interested in helping arrest transshipped cargo in Dalian. I was excited about the task and I surfed Dan’s website [http://www.harrismoure.com and learned Dan owns a small international law firm in Seattle, called Harris & Moure. I replied to him immediately and sent him some relevant provisions concerning cargo arrests under China legal system. He was very happy with my prompt and helpful reply and we soon were working together on the case. He later told me he was so impressed with my responses that he had picked me over numerous other lawyers throughout China.

Brief of the case

OOO Bolshoretskoe is a Russian fishing company that sold 400 Tons of pollock worth around US$700,000 to Alimex Seafood A/S, a Danish company. The pollock was scheduled to be transshipped from Dalian to Europe. Alimex had not yet paid Bolshoretskoe for the product. Bolshoretskoe owed Daxin Petroleum Pte, Ltd., a Singapore fuel supply company, around US$400,000 for fuel. M/V IVAN POLZUNOV, the vessel carrying the pollock, was scheduled to call on Dalian on 4 July, 2003. Our task was to seize the pollock for Daxin to get Bolshoretskoe to pay its debt.

Bolshoretskoes debt to Daxin arose in July and December, 2002, when Daxin supplied bunker products for two Russian fishing vessels, TOSNO and PHOENIX. To secure these fuelings, Bolshoretskoe signed a guarantee letter to Daxin in which Bolshoretskoe assigns all receivables resulting from production, deliveries and selling of Salmon or Pollock on/from board of F/T PHOENIX in favor of Daxin for the amount of the bunker supply. In addition, Bolshoretskoe agrees that property title to salmon or pollock products covering the amount of the bunker shall pass to Daxin immediately upon processing and/or storage of the products on board of PHOENIX.

Daxin was not paid on its two fuel deliveries, and Bolshoretskoe was refusing to pay. It is estimated the TOSNO and PHOENIX owed a combined total of around $20 million in unpaid debt to various creditors.

Intensive and orderly preparation for cargo arrest

After studying the relevant documents and analyzing the entire history of the case, we determined that either Bolshoretskoe or Alimex would pay Daxin if we arrested the cargo in China. So we set about to do just that.

First, we prepared all necessary legal documents pursuant to Chinese law. Due to the various different legal systems and languages involved (China, Russia, Singapore and the United States), our preparations were extremely time consuming. As we were preparing our documentation and firming up our strategies, Dan was also preparing to come to Dalian.

However, the day before Dan was to leave the United States, he learned that the pollocks transport vessel, the IVAN POLZUNOV, had secretly changed its plans in an effort to avoid arrest. It would not be calling Dalian on July 4, 2003; it would be calling Qingdao on July 8, 2003. Because all legal documents had been prepared for the Dalian Maritime Court, Bolshoretskoes change in plans necessitated we completely change our plans also. With time so much of the essence, we asked Sunfanlong, who works in Qingdao Wincon law firm, to work with us and we transferred all legal documents to him.

Successful Arrest of the cargo

On July 7, 2003, Dan arrived in Qingdao. The IVAN POLZUNOV arrived in Qingdao the next day and began to discharge 15 containers of pollock for transshipment to Europe. When the judge, Wincons lawyer and Dan saw that the containers were being offloaded on trailers for transport to the container terminal, they went straight to the terminal to deliver the arrest papers on all 15 containers. However, after waiting nearly five hours at the terminal and waiting well into the night, only three containers had arrived and been arrested. Nobody seemed to know what had happened to the other twelve containers. We were concerned Bolshoretskoe and/or Alimex had learned of our arrest warrant and had hidden the other twelve containers. Adding to our worries was that we had by now learned that Alimex was to ship all 15 containers to Europe the very next day. We checked everywhere for the missing twelve containers. We checked with various trucking companies. We checked all around the terminal. Nothing. Eventually, we learned that the twelve containers had been in the terminal all along, but had been issued separate bills of lading from the first three and placed in a somewhat separate area. We had succeeded in arresting all fifteen containers.

After our having engaged in twelve days of intensive e-mail and telephone communication together, Dan showed up at Dalians airport. His high praise of our work conveyed his satisfaction of our efficient job. Dalian and Qingdaos picturesque scenery and modern city construction impressed Dan deeply and changed his previous imagination regarding this part of China. He loved the food and our culture and talked about returning some day with his family on holiday.

Hard success to acquire guaranty and lift the arrest

Now that we had the pollock under arrest, we would need to maintain it in its frozen condition at the terminal. Pollock is a valuable fish and the costs and risks during the arrest period were high. The sooner we could resolve the dispute, the sooner the fish would be on its way, and the better it would be for all parties.

The day after we arrested the cargo, we received a letter from Alimexs lawyers in Denmark, claiming Alimex owned the arrested cargo, not Bolshoretskoe, and threatening Daxin with criminal action. Alimexs lawyers copied this letter to the court and to Daxin. Though confident that it was in the right, this threat of criminal action did not sit well with Daxin. We replied to Alimexs lawyers by lecturing them on Chinese and international law and by declaring that Alimex would suffer even more losses if it insisted on pursuing litigation in China instead of cooperation. The reaction from Alimexs lawyers was overwhelming. They wrote me a letter filled with furious and derogatory words and stated they would never communicate directly with us again. The case had fallen into deadlock.

Despite the initially tough attitude of Alimexs lawyers, we knew we could not abandon our efforts to achieve a settlement, particularly since we knew settlement made sense for all parties. We proposed a three way agreement between Daxin, Alimex and Bolshoretskoe, whereby Alimex would keep its purchase price funds and not pay any party for the fish until the dispute between Daxin and Bolshoretskoe had been resolved through arbitration in Canada. Alimex would then pay the winner of the arbitration up to the purchase price of the fish. Alimex would also agree not to pursue any claims against Daxin for wrongful arrest. Upon the signing of this agreement, Daxin would release its arrest of the cargo. Daxin secured oral agreements from both Bolshoretskoe and Alimex to go forward with such an agreement.

For the fish to go out on the next liner to Europe, Dan and I had to work overtime in drafting the appropriate agreements. This time, the multitude of languages and time zones (China, Russia, Singapore, Seattle, and Denmark) worked to slow us down, and by the time Bolshoretskoe received its Russian language copy of the agreement, only a few hours remained before the pollock needed to be loaded on the liner to Europe. But, at the last minute, Bolshoretskoe changed its mind and decided it would not sign. All our hard work had been for naught. We were all exhausted.

The next liner to Europe was leaving in six days. During the weekend, we stopped talking with opposing parties and communicated with only Dan and Daxin. We went back over the case history and analyzed each partys positions and risks. We concluded that Bolshoretskoe was Daxins real adversary. It was Bolshoretskoe that owed the money and it was Bolshoretskoe that had avoided payment for so long. It also was Bolshoretskoe that had backed out of its oral agreement. There had been no prior conflicts between Daxin and Alimex. Though Alimex was listed as the consignee of the pollock on the Bill of lading, it had yet to actually pay for the fish. Above all else, Alimex wanted the pollock sent to Europe so it could fulfill its commitments with its European buyers.

If we could persuade Alimex to provide a deposit or the purchase price to the Qingdao Maritime Court, we would lift our cargo arrest. If, on the other hand, Alimex insisted on paying the purchase price directly to Bolshoretskoe, the arrest would remain in place, and Alimex would be unable to fulfill its supply contracts with its European buyers. Daxin would be left fighting a two front war against Alimex and Bolshoretskoe in the Chinese courts.

We told Alimex that if it did not immediately settle, we would move the court to require Alimex pay the Pollock purchase price to the court and seeking the immediate sale of the pollock at auction. Within hours, we received contact from a Chinese lawyer retained by Alimex, who would, he informed us, be going to court to have our illegal arrest thrown out. The court ignored him.

The next liner for Europe was coming to Qingdao the next day and it finally began dawning on Alimex that if it wanted to get the pollock to Europe and to its customers, it would need to settle with us. Intensive settlement talks began anew and another oral agreement was reached. Alimex would guarantee to pay up to the amount of the pollock purchase price to whomever prevailed between Daxin and Bolshoretskoe. Alimex also agreed not to pursue any claims against Daxin arising from Daxins allegedly wrongful arrest of the cargo. A settlement was drafted and signed and the parties worked diligently to get the arrest lifted in time for the product to make it on that days liner to Europe.

Daxin had a Guarantee Agreement from an established and well funded Danish company and we had achieved a smashing victory on this exciting arrest of cross-border transshipping cargo.

Somewhat smooth sailing in recovering Daxins award.

We then filed Daxins case against Bolshoretskoe in the Qingdao Maritime Court. Bolshoretskoe consistently failed to attend any court hearings and we eventually secured a default judgment against it.

Alimex then paid Daxin all but US$15,000 of the amount it had guaranteed, but claimed entitlement to withhold US$15,000 for itself to help pay for the costs it had incurred in China defending against Daxins arrest. One e-mail from Dan threatening arbitration in London (pursuant to the Guarantee Agreement) for the $15,000, plus all fees and costs, convinced Alimex it had no case on this either. Alimex paid the remaining US$15,000 to Daxin and the case was over.

After six months, close cooperation and flexibility by lawyers on both sides of the Pacific had given us full and total victory.

Epilogue

A few months after I closed the case, Dan sent me an e-mail telling me he had heard from one of his Danish clients that Alimexs Danish lawyers had told them of our great job on this case. Dan and I have since worked on a couple additional cases together, but it will be this first one that I will always remember. In thinking of this case, I know I will never forget the sleepless nights I spent communicating with lawyers and parties in four times zones. But I also know that the pride I feel from knowing how much we achieved, despite having to work through the laws of so many countries under such tight deadlines, is what will always stand out.

Our wisdom, our legal knowledge and our strenuous diligence had garnered us high praise not only from our foreign colleague and from our client, but also admiration from the opposing party. I share this honor with Harris & Moure, with our Fada Law Firm and with Qingdaos Wincon Law Firm, and with our Chinese Lawyers.

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This is Part 3 of this 4-part article. Please refer to the other 3 parts to read this article in full.

In this Part 3 of this multi part article you will have an opportunity to read about the retainer fee, contingency fee and statutory fee. Please refer back to Part 1 and Part 2 of this multi part article to learn more about the other fees.

Retainer Fee - As the name implies, this fee is paid to the lawyer, often monthly or annually, to retain or keep the lawyer available to the client. It means that your lawyer would have to turn down other cases in order to remain available for you. As a result, you will probably be billed at a higher rate. This type of fee is called a true retainer and is often paid by large corporations to make sure they have access to their lawyers whenever they need advice or representation.

However, the more common type of a retainer fee is actually a down payment or a deposit. The client would put money into a special account, and the lawyer deducts fees as services are completed. The client is responsible for reviewing the account periodically. The legal fees will be subtracted from the retainer until the retainer is used up. Then, the lawyer will either ask you to pay another retainer or bill you for the additional time spent on your case.

Another way of using a retainer fee agreement is to have the lawyer be on-call to handle your legal matters over a period of time. Some legal work would be covered by the retainer fee while other legal services would be billed separately. Your lawyer needs to explain the details of your retainer agreement to you in advance, since there are several different types of retainer agreements. The retainer fee is usually non-refundable. Also, the unused money from this retainer agreement is usually refundable. Most attorneys require retainers for most kinds of cases. Make sure you ask your lawyer what your retainer agreement covers and what is refundable.

Contingency Fee - This type of fee agreement is commonly used for accident, personal injury, medical malpractice, workers’ compensation and other cases involving a law suit for money. It means that you will pay your lawyer a certain percentage (usually one third) of the money you recover if you win your case or if you settle out of court. If you lose, the lawyer doesn’t get paid. However, whether you win or lose you still have to pay any court costs and other expenses, such as the cost of expert witnesses. These expenses can be quite high. In some cases, the lawyer may use the money you receive from the case to pay some of these additional costs for you when they are due. But some lawyers will ask you to pay the expenses as they arise, since there is no guarantee that you will win your lawsuit.

Make sure you get the contingency fee agreement in writing and it must spell out the percentage the lawyer will get. Also, it needs to include whether this percentage is figured before or after costs and expenses have been deducted. In some cases, the percentage could vary depending on whether the case is settled out of court, goes to trial or has to be appealed. If so, those varying percentages must be stated in the agreement. You can try to negotiate an agreement in which the lawyer accepts a lower percentage. Lawyers settle most personal injury cases through negotiations with insurance companies before going to trial, which will require less legal work. No matter what, before you enter into a contingency fee agreement, your lawyer must explain all of the details relevant to your case and you must fully understand it to avoid any un-needed disputes after the fact.

Statutory Fee - For a certain legal work the cost is set by statute of law hence the name statutory fee. This means that the lawyer’s fee is either set or must be approved by the court. Your lawyer will let you know if your case would include statutory fee.

Summary of Attorney Fees

Regardless of which fee agreement is agreed upon between you and your lawyer, always ask to obtain a copy of the agreement. While only contingency fee agreements must be in writing, it is best for you to you have a written fee agreement for your case to avoid possible misunderstanding and un-needed disputes. Besides all the things mentioned up to now, your fee agreement must mention whether you’re required to pay for related matters that may come up as a result of your case which are not covered by your agreement or may not be mentioned in the agreement. Also, depending on the laws in your state of residence, your fee agreement may have to state whether your attorney’s fees are set by the law or they have been worked out between you and your lawyer.

For some cases it is impossible to know the time your lawyer would take to resolve your legal issue. For this reason you need to ask your attorney to estimate the cost and time that would take for your case and to include it in your fee agreement. Keep in mind that many unexpected factors may affect your case and the actual cost may be greater than the estimate. You may want to negotiate a limit on your total fees to protect you from these uncertainties.

If you have an hourly agreement, you might want to be billed weekly or monthly to give you a chance to review the services performed by your lawyer and to justify whether you’re receiving a fair value. Ask your lawyer to provide in the bill a break down of the time spent on each task and to describe the work performed for each charge.

Don’t be intimidated or afraid to talk to your lawyer regarding his or her fees or to push your attorney into disciplined routine of providing you with regular updates on your charges. Not all lawyers (as it is with people in general) are disciplined. And attorney fees as well as other legal fees are astronomical. Since these fees are coming out of your pocket, it is important that you deal with your lawyer openly and of course in a businesslike fashion until you are satisfied with the services rendered and his or her costs.

Other legal fees - covered in Part 4 of this article.

Disclaimer: The author and publisher of this article have done their best to give you useful, informative and accurate information. This article does not represent nor replace the legal advice you need to get from a lawyer, or other professional if the content of the article involves an issue you are facing. Laws vary from state-to-state and change from time-to-time. Always consult with a qualified professional before making any decisions about the issues described in this article. Thank you.

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