For What It's Worth
- Arbitration v. court trials
- What is a tort?
- Where do our laws come from?
- How does a civil case differ from a criminal case?
- What can I expect if called as a juror?
- What can I expect if called as a witness at a trial or a hearing?
- What is a contract?
- How do professional liability claims differ from general liability claims?
- What is contributory negligence?
- What is a product liability or product defect claim?
- Why are some government entities immune from suit?
- What damages are recoverable if I am physically injured due to the fault of another?
- What is an intentional tort?
- Do divorce laws differ much from state to state?
- What are my rights as a tenant?
- Before entering into a real estate transaction what should I do?
- What are the different types of business organizations that a business can operate under?
- What are my rights if I am injured on the job?
- What type of insurance coverage should I have?
- What is a lien?
- What should I consider before signing a contract?
- Do I need an attorney for my legal problem?
- How do I go about choosing an attorney?
- What is the role of a judge in a trial?
- What is the role of a jury?
- Why are jury trials important?
- Can a jury’s decision be overturned?
- What is a contingent fee?
- If I hire an attorney, can his services be terminated?
- In contracts that I sign should I agree to a waiver of a jury trial?
Arbitration v. court trials
Many contracts that are in existence have mandatory arbitration clauses within them. A mandatory arbitration clause requires the parties to arbitrate any dispute that arises out of the contract. Before you sign such a contract you should understand the differences between arbitrating a dispute as opposed to filing a lawsuit and having the case tried before a judge or a jury.
Arbitrations are typically conducted by a single arbitrator who is either appointed under the terms of the contract or is agreed to by the parties. That arbitrator is entitled to be paid a fee. That fee may well exceed the legal fees that you incur in terms of arbitrating the matter. The largest arbitration association in the United States is the American Arbitration Association which has a very defined set of rules and has a number of approved arbitrators that the parties can agree on.
The reason that arbitration clauses appear in contracts is because most businesses do not want disputes between consumers litigated before a local jury. They would prefer to have it decided by an arbitrator which tends to remove from the case the unknown variable that exist when a case is presented to a jury.
If a case is presented to a jury for resolution, then the jury typically has a great deal of discretion as to how they decide the case. Arbitrators, some of whom are trained in the law, more often than not are going to side with the industry interest in terms of the contract dispute as opposed to siding with the consumer’s interest.
Arbitration proceedings are sometimes touted as being less expensive than court trials. That is not necessarily the case. Sometimes the fees paid to the Arbitration Association can equal or exceed the legal fees that may be incurred by either party in terms of litigating the matter.
As such, you need to think long and hard before signing a contract that requires mandatory arbitration.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is a tort?
A tort is simply a civil wrong that arises from something other than a breach of contract. For instance if you run a red light while operating your motor vehicle and collide with another vehicle, you have committed the tort of negligence. You can be sued for that.
Likewise if you punch someone in the nose you have committed the tort of assault and battery and you can be sued for that.
Most tort claims are covered by insurance and they can be tried in front of a judge or jury if the parties are not able to settle their tort claim.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Where do our laws come from?
Our laws come from a number of different sources. In particular, they come from the Constitution, at either the federal level or the state level, they come from the U. S. Congress at the federal level or state general assemblies at the state level. They come from court decisions either at the federal level or the state level. They also come from administrative agencies again either at the federal level or state level.
To some extent there can be a conflict between federal law and state law. Typically to the extent that there is any conflict between federal law and state law then federal law controls. That is, however, not always the case because the federal government was intended by our founding fathers to be a government of limited authority or limited jurisdiction. As such, the federal government cannot necessarily legislate or pass laws on every topic that effects us. The state governments, however, have general authority to pass legislation. The restrictions on state legislation whether it be from a legislative body, an administrative body or from a Court, is that in general it cannot conflict with federal law.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
How does a civil case differ from a criminal case?
A civil case involves a dispute between two individuals or companies. A criminal case involves a lawsuit initiated by the government, either at the state level or the federal level, against an individual or corporation alleging some criminal wrongdoing. A criminal case typically results in the criminal defendant either being fined or imprisoned if found guilty.
A civil case typically results in either a court order being entered directing that a person either do something or not do something or in the alternative can result in a judgment against one party directing that party pay a certain amount of money to the other party. A civil case cannot result in a criminal fine or sentence to jail.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What can I expect if called as a juror?
What you can expect depends very much upon the particular court system that is calling you as a juror. You may be called to serve as a federal juror or you may be called to serve as a state or local juror. Within each court system there are both civil and criminal matters.
The amount of time commitment that may be involved likewise is going to depend very much upon what court system is issuing the jury summons to you. If you are called to serve as a federal grand juror, you may be involved in that proceeding for many, many months.
Likewise, if you are called to serve as a juror on a complicated civil or criminal matter you could be involved in that trial for several weeks or months.
Typically at the time of your first appearance as a juror the judge or jury commissioner will explain to you what type of time commitment may be involved.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What can I expect if called as a witness at a trial or a hearing?
As a witness, you are simply being called upon to state what you know. The rules of evidence will normally govern exactly what you can be asked and what you can testify to. In most instances you are going to be asked questions about things you have personal knowledge of or documents that you have personal knowledge of.
In any trial or hearing the evidence that is presented comes in the form of testimony or in the form of documents that are presented. Testimony is simply that, i.e. a person testifying as to what he or she knows about a particular event or matter. A document likewise can be evidence of what that person knows and may serve as a substitute for further testimony on that subject.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is a contract?
A contract is simply an agreement between two people or companies typically to provide a service or product. A contract however can be as broad or as imaginative as the parties involved are. A necessary part of any contract is what is called consideration. Consideration is the “tit for tat” or the “quid pro quo” that the parties agree to. In most contracts the consideration is money in exchange for some product or service. However, there need not be an agreed exchange of money. There may be something else that constitutes the consideration.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
How do professional liability claims differ from general liability claims?
In a professional liability claim you are suing a professional person, i.e. a doctor, a lawyer or an architect or an accountant. Those particular professions involve certain specialities that typically are beyond the range of knowledge of most lay people. In order to properly pursue and prevail on a professional liability claim, in most instances, you are going to need an expert witness with some knowledge in that particular profession to testify as to what that professional person should have done in this instance, how they failed to do it and what consequences that failure has produced for you as the consumer or the plaintiff in a claim.
In a general liability claim you typically do not need an expert witness with knowledge in a speciality in order to prove your claim. The only exception to that would be if you have some medical expenses or bills that have been incurred or some special damage in that regard then you may need to bring a doctor or other professional into court to testify as to what those damages are and to testify that they are reasonable and necessary.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is contributory negligence?
Contributory negligence is a legal defense to a civil tort claim based upon negligence. Many states including Virginia, the District of Columbia and Maryland all adhere to the concept of contributory negligence which means that if a judge or jury were to find that you were guilty of negligence which contributed to your injury then you cannot recover as a result of that.
The law on contributory negligence is very harsh. Many states have abandoned that concept and have adopted a principle known as comparative negligence which means that even though there is some negligence on the part of the person bringing the claim as long as that negligence is less than 50% then the person can still recover but their recovery may be diminished or reduced by the percentage amount of their negligence.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is a product liability or product defect claim?
A product liability claim is one wherein you as a consumer or user of a product allege that there is a defect in the product which somehow has caused you some injury.
In order to prove exactly what that defect is normally you are going to have to bring in an expert witness with some specialized knowledge as to that product to testify as to how the product is defective and how that particular defect, in this instance, produced the injury.
Product liability claims can be very complex and likewise very expensive to pursue.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Why are some government entities immune from suit?
The logic of what is called sovereign immunity dates back to the days when we were ruled by kings. In those days the king could not be sued. The king could not be sued because the king was absolute, i.e. his power was superceded by no other human being within the realm of his kingdom.
Today we are no long ruled by kings in this country but the idea of the kingdom or the government being immune has continued to some extent on the theory that to allow the government to be sued for all of the same things that human beings could be sued for would be a waste of government resources and would expose the government to significant liabilities that may not be in the interest of the general public.
As such, in most jurisdictions some governmental entities and some governmental employees are immune from tort suits either in whole or in part. The law on this subject differs very much from one state to another.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What damages are recoverable if I am physically injured due to the fault of another?
In general, the damages that are recoverable are compensatory damages. The idea of the tort system of justice is to compensate the injured party for the loss suffered, i.e. to make them whole. To put it another way the objective is to put that person into the status that they were in before they were injured. In most instances that is impossible because the injury involves some physical injury. As such, all the court system can do is to compensate you with money for the injury that has been suffered.
Those compensatory damages that may be awarded are based upon such things as your physical injury, the duration of that physical injury, the permanency of that physical injury, if any, the medical expenses incurred, the loss of income incurred and the intangible element of the pain and suffering and anguish and embarrassment that you may have suffered.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is an intentional tort?
An intentional tort is a civil wrong that is committed by a person intentionally.
For instance, if I run my car into you on purpose with the idea of hurting you then that may not only be an act of negligence but it may actually be the intentional tort of assault and battery.
If I lie to you for the purpose of deceiving you and causing you to incur some expense or some damage as a result of my lying to you then I may have committed a fraud upon you and may be sued for that intentional tort of fraud.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Do divorce laws differ much from state to state?
A short answer is yes to this question. Divorce laws are very specific from one state to another. In general, however, the divorce laws provide for various types of divorce claims whether they be either fault claims or no fault claims. The typical fault claims for getting a divorce are adultery, desertion, or cruelty. The no fault claim is simply that, i.e. neither party is alleging any fault on the part of the other, they simply want a divorce. As part of many divorce proceedings, the Court also has the authority to divide the property that was acquired during the marriage and also to the resolve issues relating to child custody, child support and also spousal support.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What are my rights as a tenant?
Your rights as a tenant are, for the most part, governed by the written lease that you signed. Most jurisdictions also have a landlord/tenant act that may apply to your particular lease depending on how many rental units the landlord has. If there is a conflict between the lease and the landlord/tenant statute that governs your locality, then the law is going to prevail over the contract.
However, in general, your rights are most clearly defined by the lease that you sign.
If you did not sign a written lease, then you may be governed simply by whatever the oral terms were that were agreed to. The problem with an oral contract is it sometimes becomes a subject of dispute as to what the terms of that agreement were.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Before entering into a real estate transaction what should I do?
Depending on the size of the transaction you should probably have a realtor representing you and you should probably also have an attorney review the contract before you enter into the transaction. A realtor can guide you through some of the complexities of the transaction and can also assist you in terms of financing issues and property inspection issues. The attorney could help you in terms of the drafting the contract and what terms either should or should not be in the contract.
Real estate contracts can be very complex and if you are not familiar with those complexities you should seek professional advice.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What are the different types of business organizations that a business can operate under?
A business can operate as a sole proprietorship which simply means that it is an extension of the human being who formed the business. For instance, Joe Jones doing business as the ABC Company may be a sole proprietorship. What that means is that the only legal entity that is involved in that business is Joe Jones himself. The ABC Company is simply a trade name or what some people call a fictitious name for Joe Jones himself.
Other forms of business organization are partnerships, corporations, limited liability companies and limited liability partnerships. There are other forms of organization but those are the most common ones. Most people before going into business form either a corporation or a limited liability company because that provides them with some protection from contract liability. That is if the corporation enters into a contract which is not guaranteed by the people that are involved in the corporation then the only entity that is liable for that contract is the corporation itself. There are also other potential advantages in terms of forming a corporation for the pursuit of business interests.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What are my rights if I am injured on the job?
Injuries on the job are governed by state worker’s compensation statutes. The worker’s compensation statues throughout the United States are designed to replace tort claims brought by an employee against an employer. The thrust of the worker’s compensation statutes is that the employee if injured on the job is then entitled to prompt payment of all of his medical bills relating to that injury and to two-thirds of his average weekly wage during the period of time when he is disabled as a result of the injury. In return for that the employee gives up the right to sue the employer in a civil tort claim.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What type of insurance coverage should
I have?
The type of insurance coverage that you should
have is governed by the type of activity that
you may be entering into. If you are thinking
about buying a car and you have never owned a
car before, then most states require that you
have insurance coverage. The types of insurance
coverage that you probably should have are liability
coverage to protect you from claims brought by
other parties against you for your alleged negligence,
uninsured motorist coverage which gives you coverage
against parties that are uninsured if they should
cause some injury to you, medical payments coverage
which pays your medical bills irrespective of
who may be at fault from an automobile accident
and comprehensive coverage which protects your
automobile. If your vehicle is covered by a lien
from a lender then typically the lender will
require that you have comprehensive coverage
because they want the vehicle insured. They are
not so much concerned about you being insured
personally.
Other types of coverage you may have is homeowner’s coverage to protect your home from fire and other natural disasters and also to protect you from liability claims. In addition, there is general liability coverage that may protect you from certain business pursuits. The type of coverage that you need is governed by the activity that you are engaging in. How much coverage you need is likewise governed by what your other assets may be and the overall risk associated with the activity.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is a lien?
A lien is simply a security interest. The most common type of lien that most of us are familiar with is a mortgage. If you buy a home and you take out a mortgage from a bank then that mortgage is a lien against the real estate. What a lien means is that the person who holds the lien or in whose favor it exists has certain rights if you do not pay back the debt that you owe them pursuant to the agreement that has been entered into. Under the terms of a mortgage if you do not make the mortgage payments then the mortgage company may foreclose on your property, that is they may sell it at an auction to recover the amount of money that they loaned you plus the interest due plus expenses.
Other types of liens that arise may be seen in the context of personal injury claims where health insurance companies typically will assert a lien against any recovery for the medical bills that they have paid on your behalf. There are many other types of liens that exist.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What should I consider before signing a contract?
What you need to consider depends upon the type of contract that you are contemplating. Within any contract it is critical that the parties be properly identified. If you are dealing with a business entity other than a human being you need to make sure that business entity has in fact been properly formed, is recognized by the local or state government as being an existing entity and is in good standing. The contract should also clearly state exactly what the consideration is for the transaction.
In general terms you need to make sure that the contract is written in plain English that you understand. If there are terms used in the contract that you do not understand or have some concern that you may not understand the full import of them, then you should seek legal advice.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Do I need an attorney for my legal problem?
The answer to that question depends upon the complexity of the legal problem. If what you are contemplating is a $200.00 claim against a local plumber because you think he improperly repaired your toilet which caused the toilet to overflow on one occasion causing minor damage to your house then you probably do not need an attorney for that. If, however, you are contemplating an action against General Motors for a defect in their air bag in your automobile then you probably do need an attorney for that.
Most attorneys will provide you with a consultation that is either free or at a somewhat reduced rate for the purpose of determining whether or not the legal matter you have merits their involvement and to what extent they can help you. Quite frequently a phone consultation with an attorney will give you a quick answer to whether or not you need an attorney and whether it is likely that you are going to be able to find an attorney for the matter you are concerned about.
Making a few phone calls to different attorneys in that regard certainly cannot hurt.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
How do I go about choosing an attorney?
There is no magical answer to that question. Certainly a good source of referrals for attorneys is simply word of mouth. If you have a friend or an acquaintance that has been well served by an attorney in a particular matter then it may make sense to consult with that attorney to see if he or she can help you in regards to your matter.
The only reliable rating service that exist as to attorneys is the Martindale-Hubbell Law Directory. Martindale-Hubbell publishes a book which is on-line which rates attorneys in terms of ability and also in terms of ethical standards. In terms of ability attorneys are rated A, B, C or no rating at all. “A” is the highest rating. Martindale-Hubbell reports that only 10% of the lawyers in the nation that are potentially eligible to be rated get an “A” rating. The other rating that is provided by Martindale-Hubbell relates to whether or not the attorneys adhere to high ethical standards. That rating is simply designated by the letter “V” for “very” meaning that they are presumably very ethical. As such, an “A” “V” rated attorney is considered to be the highest rated attorney under the Martindale-Hubbell rating system.
The Martindale-Hubbell system however is not full proof and, as such, the best way for you to chose an attorney is to interview one or more attorneys for your matter and then make a decision as to which one you think is best qualified and best able to serve your particular interest.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is the role of a judge in a trial?
A judge is the presiding official in any civil or criminal trial. In that sense if a jury is also being impaneled for that case then the role of a judge becomes somewhat limited. The role of the judge in a jury trial is to be the decision maker as to legal issues. The jury then becomes the decision maker as to factual issues.
During the course of a trial there may be objections made to the admission of certain bits of evidence by one party or the other. The judge is called upon to rule on those objections and to decide whether or not the evidence is either admitted or not admitted. If the evidence is admitted, then that simply means that it may be considered by the judge and jury in the decision making process. If it is not admitted, then that evidence is not to be considered. If the case is being decided without a jury, then the judge becomes not only the decision maker as to the law but also as the decision maker as to the facts in which event the judge then makes the final decision in the case.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is the role of a jury?
A jury may be impaneled in those cases wherein there is some factual dispute. A factual dispute may be as simple as who ran the red light in an automobile accident case. In a criminal case it may be whether or not the defendant, in fact, is the one who robbed the 7-Eleven store.
Those questions are decided based upon the evidence that is presented to the jury. That evidence comes in the form of witnesses testifying or in the forms of exhibits or objects being admitted into evidence at trial by the judge. The jury is then called upon to solve the factual dispute that exists as to who ran the red light or who robbed the 7-Eleven store. The judge in such a jury case decides the legal issues dealing principally with the admissibility of evidence.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Why are jury trials important?
In front of a jury all people are equal. The lowliest individual can sue the mightiest corporation and in front of a jury those two parties are considered to be equal. As a practical matter, we know that they may not be equal because a large corporation can obviously afford to hire typically a better attorney than can the lowliest individual. If however that lowly individual is represented by a competent attorney, then that can “level the playing field” and that individual will not only have his day in court but may well be the prevailing party in front of a jury.
As such, the jury trial system as it exist in this country is important to our democratic process and any attempt to restrict the power of the jury is something that should be fought.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
Can a jury’s decision be overturned?
The answer to this question is yes. In any trial the judge is the ultimate decision maker because the judge has the authority in some rare instances to overturn a jury verdict. For instance, if a jury returns a $10 million verdict in a case that clearly is only worth $10,000.00 then the judge can overturn that verdict on the grounds of the jury award being excessive. Likewise in some states if the jury award is inadequate the judge may overturn the verdict on the grounds of it being inadequate, that is too low.
Also if the judge determines that during the course of the trial there was some procedural error or evidentiary error in terms of the admission of evidence that was important to the case then the judge can overturn the jury verdict for that reason and order a new trial either on all of the issues presented or on some of them.
In general though it is very rare that a judge overturns a jury verdict.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
What is a contingent fee?
A contingent fee is a legal fee that is contingent upon the outcome of the case. In most tort claims lawyers who represent plaintiffs, parties bringing claims, handle those matters on a contingent fee. That contingent fee, in most instances, is one-third of the gross recovery. If the gross recovery is $100,000.00 then the attorney’s fees is one-third of that. Most state bars require that attorneys also disclose to plaintiffs in tort claims or any contingent fee case that in addition to the attorney’s fee the client may be responsible for the cost of litigation. Those costs of litigation are typically such things as the cost of filing suit, the cost of hiring expert witnesses to testify at trial and other such cost of litigation.
If there is no recovery in the case, then there is no attorney’s fees that is due although an attorney may be required under the regulations of the State Bar to still hold the plaintiff responsible for those costs as referenced above.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
If I hire an attorney, can his services be terminated?
Hiring an attorney is no different than hiring any other professional. In hiring or retaining that attorney you have entered into a contract. Typically that contract is in written form. Any contract can be terminated. There may, however, be consequences of that termination by either party. If you terminate an attorney and he has devoted substantial time to your case and there is an eventual recovery in the case, then the attorney may be entitled to be paid at an hourly fee for the services rendered. That hourly fee is calculated against the contingent fee if in fact the retainer agreement called for the payment of a contingent fee to the attorney. As such, you cannot simply terminate an attorney in a contingent fee case and necessarily expect that the attorney is going to walk away and not make any claim for attorney’s fees. The attorney may be entitled to those attorney’s fee and also may be entitled to the recovery of costs associated with pursuing the litigation.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
In contracts that I sign should I agree to a waiver of a jury trial?
In general, you should not. The importance of a jury trial is that a jury tends to be a great equalizer between “the little guy” and large businesses. As such, most large businesses would prefer not to have their cases tried in front of a jury although that can vary to from one jurisdiction to another.
In general, you do not want to give up your right to a jury trial in contracts that you sign because it does tend to take away some leverage that you may have in terms of negotiating with the other party if you get into a dispute with that party.
See Brien Roche’s book “Law 101” published by Sphinx Publishing for more information on this subject. Click here.
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