Thursday, December 23, 2010
Tuesday, December 14, 2010
The Price of Trade Secrets
The term "trade secret" conjures up images of Kentucky Fried Chicken's 11 herbs and spices that make up its secret recipe. Or Coca Cola's recipe that is known to only two or three persons in the world. However, these are only examples of a trade secret. There are many other (more mundane, but nonetheless important) trade secrets that are worthy of protection.
If you are a business owner, or work for a business, large or small, odds are good that you deal with trade secrets. Pricing information may be one such secret. Lots of folks may think that pricing information is not a secret, every customer gets an invoice, right? That's not always the case.
If you are involved in competitive bidding, then you know how important pricing data is. If a competitor knows what your bid is on a job, he can undercut you by the thinnest of margins, and snatch up every job because your competitor knows what you'll bid before you do.
That is why it is so essential to guard any formula used to price your goods or services, and only share this trade secret with top level management.
Additionally, you might ask yourself, what is stopping top management from jumping ship and becoming that competitor? How do you keep your trade secrets from walking out the door with that key employee?
It may be wise to get anyone privy to this secret information to acknowledge that it is, in fact, confidential. But, talk is cheap. It's not enough that you want to keep a trade secret, you need to be able to show the steps you are taking to keep that information private and the advantage it gives your business.
That is where a good confidentiality or nondisclosure agreement comes into place. By signing the agreement, the employee confirms that he or she knows that the information is confidential, and agrees not to disclose it to third parties.
Will a nondisclosure agreement absolutely prevent the loss of your trade secrets? No, nothing will. But it will make it less likely and put you and your business on stronger footing if litigation is necessary to prevent disclosure of your company's lifeblood – its secrets.
Collin J. Wynne
The Vethan Law Firm PC
Wednesday, December 1, 2010
Should You Include An Arbitration Provision in Your Employee Agreement
Arbitration is a valid alternative to litigation and is found in many of our routine agreements. For instance, your agreement with your credit card company, your cable company and your stock broker all probably contain provisions that require you to arbitrate any disputes arising from those agreements. But do your agreements with your employees contain arbitration provisions? Are such provisions of value to you and your business?
Arbitration is a creature of contract and most arbitration agreements arise as a result of a contract between two or more parties. In times past, most arbitration agreements were in the context of commercial transactions, but their use has greatly expanded. There is a very strong public policy in favor of arbitration (instead of litigation) and such agreements have become much easier to enforce over the last 20 years.
A recent case from the Texas Supreme Court confirms that an employer and its employee may enter into a valid agreement to arbitrate all disputes, even when the employment is "at will." In re 24R, Inc., 2010 Tex. LEXIS 794 (Tex. 2010). http://www.supreme.courts.state.tx.us/historical/2010/oct/091025.pdf In that case, Plaintiff, Frances Cabrera had worked for 24R, Inc., d/b/a "The Boot Jack," as an "at will" employee and had signed a series of three arbitration agreements during the 15 years she worked for The Boot Jack. After being terminated, Cabrera filed an unsuccessful discrimination claim with the Texas Workforce Commission, and after that claim was dismissed, a lawsuit against The Boot Jack. The trial court overruled The Boot Jack's motion to compel arbitration and a petition for writ of mandamus was filed with the Texas Supreme Court, which overruled the trial court's decision.
But how does this affect your business and its bottom line?
Arbitration is often preferable in employer/employee disputes because the process is confidential, expensive written discovery may be limited, and an arbitrator is less likely to be swayed by emotional arguments than a jury. Therefore, your company's "dirty laundry" is not aired to the world and you are not at the whim of a jury of 12 people to determine the resolution of your dispute.
Furthermore, the decision of an arbitrator (panel of arbitrators) is generally not subject to appeal, and is therefore final. From a business standpoint, arbitrating a dispute with a former employee just may make more sense than filing a lawsuit and taking the case to trial.
Lee Keller King
The Vethan Law Firm, PC
Tuesday, November 23, 2010
Avoid Disagreements Between Your General and Health Care Power of Attorney Agents
A general power of attorney and a health care power of attorney are two very important estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along.
A general power of attorney allows a person you appoint -- your agent -- to act in your place for financial purposes when and if you ever become incapacitated. A health care power of attorney is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.
While the health care agent is the one who makes the health care decisions, the person who holds the general power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your general power of attorney agent thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.
The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible -- for example, perhaps the person you would choose as health care agent is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.
If you have questions about whom to name for these roles, or you haven't yet executed these all-important documents, contact my office for help.
A general power of attorney allows a person you appoint -- your agent -- to act in your place for financial purposes when and if you ever become incapacitated. A health care power of attorney is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.
While the health care agent is the one who makes the health care decisions, the person who holds the general power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your general power of attorney agent thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.
The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible -- for example, perhaps the person you would choose as health care agent is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.
If you have questions about whom to name for these roles, or you haven't yet executed these all-important documents, contact my office for help.
Thursday, November 18, 2010
Vethan Law Firm Wins in Federal Court
Attorneys of The Vethan Law Firm won a $2.8 million jury verdict, Wednesday, November 17, 2010, representing the plaintiff in Civil Action No. 4:09-cv-02644; David Homoki dba Global Check Services v. Conversion Services, Inc.; in the United States District Court for the Southern District of Texas; Houston Division. Attorneys Charles Vethan and Elyse Farrow were ably assisted at trial by newly-licensed attorney, Collin Wynne and paralegal Eneyda Sauceda, with research and briefing assistance from Lee Keller King. The trial was presided over by the Hon. David Hittner, United States District Judge and tried to an eight-person jury.
The federal jury awarded Plaintiff, David Homoki d/b/a Global Check Services $2.1 million against Defendant, Conversion Services, Inc. of Houston, and $700,000 against Defendant, Electronic Payment Systems of Englewood, Colorado. The verdict was based on Global Check’s claims that Conversion Services breached its contract with Global Check, and violated its fiduciary duty to Global Check as its agent/broker. Additionally, the jury found that Electronic Payment Systems conspired with Conversion Systems to violate Conversion Services’ fiduciary duty to Global Check. Attorneys fees are still to be determined by the Court. The jury found against Conversion Services on its counterclaim against Global Check for payment of unpaid residuals.
Mr. Homoki, a resident of California, had contracted with Conversion Services to market Global Check’s services to merchants. Global Check is in the business of processing and guaranteeing payment of customer checks, including checks post dated up to 90 days. Conversion Services was also responsible for servicing the merchant accounts, after they were signed up with Global Check.
The relationship ended in 2009 after Global Check became aware that Conversion Services was misrepresenting its products and not servicing its clients. Global Check subsequently learned that Conversion Services was, unbeknownst to Global Check, selling a similar product from Electronic Payment Systems and switching Global Check’s merchants to Electronic Payment Systems, after receiving a finder’s fee from Global Check to sign up the merchant.
Thursday, October 21, 2010
Death and Taxes...It's a Good Year to Die
"Anyone may arrange his affairs so that his taxes shall be as low as
possible; he is not bound to choose that pattern which best pays the
treasury. There is not even a patriotic duty to increase one's taxes.
Over and over again the Courts have said that there is nothing sinister
in so arranging affairs as to keep taxes as low as possible. Everyone
does it, rich and poor alike and all do right, for nobody owes any
public duty to pay more than the law demands."
-Judge Learned Hand
As you may have heard, due to legislative gridlock, there is no estate tax in 2010. However, the estate tax is back with a vengeance in 2011. Unless Congress changes things, the estate tax will be at a rate of 55% for all estates above $1 million. Most folks who hear about this are probably thinking to themselves, “Surely you don’t mean that if I leave my family 11 million dollars, the government gets $5.5 million of it?” No, I don’t mean that (and stop calling me “Shirley”).
The Feds only get a hold of $5.5 million if you manage to pass all your wealth through your estate. So don’t feel bad if you didn’t die in 2010, you can leave amounts to loved ones through non-probate transfers (meaning these amounts aren’t part of your “estate” for estate tax purposes).
For example, one way to keep money out of your estate is the annual gift tax exclusion. You can give $13,000 per person, per year ($26,000 if you combine your spouse’s exclusion) without having to pay a gift tax. This is one way you can avoid the estate tax without even having to die (most people prefer this).
People like to talk about how high taxes used to be. For instance in the 1950’s the highest marginal income tax rate was above 90%. However, what they don’t say is that very few people paid this tax rate (thanks to numerous loopholes under the tax code). The same is true for the estate tax. With careful planning (and some good advice) the estate tax can be avoided. Like Judge Learned Hand said it isn’t your patriotic duty to pay the Feds. any more than required.
possible; he is not bound to choose that pattern which best pays the
treasury. There is not even a patriotic duty to increase one's taxes.
Over and over again the Courts have said that there is nothing sinister
in so arranging affairs as to keep taxes as low as possible. Everyone
does it, rich and poor alike and all do right, for nobody owes any
public duty to pay more than the law demands."
-Judge Learned Hand
As you may have heard, due to legislative gridlock, there is no estate tax in 2010. However, the estate tax is back with a vengeance in 2011. Unless Congress changes things, the estate tax will be at a rate of 55% for all estates above $1 million. Most folks who hear about this are probably thinking to themselves, “Surely you don’t mean that if I leave my family 11 million dollars, the government gets $5.5 million of it?” No, I don’t mean that (and stop calling me “Shirley”).
The Feds only get a hold of $5.5 million if you manage to pass all your wealth through your estate. So don’t feel bad if you didn’t die in 2010, you can leave amounts to loved ones through non-probate transfers (meaning these amounts aren’t part of your “estate” for estate tax purposes).
For example, one way to keep money out of your estate is the annual gift tax exclusion. You can give $13,000 per person, per year ($26,000 if you combine your spouse’s exclusion) without having to pay a gift tax. This is one way you can avoid the estate tax without even having to die (most people prefer this).
People like to talk about how high taxes used to be. For instance in the 1950’s the highest marginal income tax rate was above 90%. However, what they don’t say is that very few people paid this tax rate (thanks to numerous loopholes under the tax code). The same is true for the estate tax. With careful planning (and some good advice) the estate tax can be avoided. Like Judge Learned Hand said it isn’t your patriotic duty to pay the Feds. any more than required.
Tuesday, October 19, 2010
Charitable Remainder Trusts: Income for Life and a Good Deed at Death
Many people like the idea of leaving bequests to favorite charities in their wills. But instead of leaving money to a charity in your will, you can put that money into a charitable remainder trust and collect income while you are still alive. Charitable remainder trusts have many other advantages, including reducing your income and estate taxes and diversifying your assets.
A charitable remainder trust is an irrevocable trust that provides you (and possibly your spouse) with income for life. You place assets into the trust and during your lifetime you receive a set percentage from the trust. When you die, the remainder in the trust goes to the charity (or charities) of your choice
A charitable remainder trust has many benefits:
•At the time you create the trust, you will receive an income tax deduction for charitable giving.
•Any profit from the sale of investments within the trust are not subject to capital gains tax, which means the trustee may have more freedom in managing the assets.
•When you die, the assets in the trust will pass outside your estate and be eligible for the estate tax charitable deduction.
The downside of a charitable remainder trust is that it is irrevocable, meaning once you create the trust, you can't cancel it. While you can't revoke the trust, you may have the ability to change the beneficiary if you decide to give to a different charity. You may also serve as trustee, giving you control over how the trust assets are invested. In addition, note that any income you receive from the trust will be subject to income taxes.
To find out if a charitable remainder trust is right for you, talk to a qualified estate planning or elder law attorney.
A charitable remainder trust is an irrevocable trust that provides you (and possibly your spouse) with income for life. You place assets into the trust and during your lifetime you receive a set percentage from the trust. When you die, the remainder in the trust goes to the charity (or charities) of your choice
A charitable remainder trust has many benefits:
•At the time you create the trust, you will receive an income tax deduction for charitable giving.
•Any profit from the sale of investments within the trust are not subject to capital gains tax, which means the trustee may have more freedom in managing the assets.
•When you die, the assets in the trust will pass outside your estate and be eligible for the estate tax charitable deduction.
The downside of a charitable remainder trust is that it is irrevocable, meaning once you create the trust, you can't cancel it. While you can't revoke the trust, you may have the ability to change the beneficiary if you decide to give to a different charity. You may also serve as trustee, giving you control over how the trust assets are invested. In addition, note that any income you receive from the trust will be subject to income taxes.
To find out if a charitable remainder trust is right for you, talk to a qualified estate planning or elder law attorney.
Wednesday, October 6, 2010
Prenuptial Agreement –Another Business Decision
Raising the prospect of a pre-nup with a future spouse may not be seen as a romantic overture. While money can’t buy you love, a bad relationship can get you to the “Big D.”
The reality is that an estimated 50% of all marriages end in divorce. DivorceRate.org states that when individuals enter marriage a second or third time, the likelihood of repeating the whole process of divorce increases to 67%, and on to 74%. These staggering statics are a valid reason for concern, especially for business people and entrepreneurs in community property and common law states, such as Texas.
Entering into a pre-nup while a couple is on amicable terms allows the couple to make decisions that are in their best interest, without emotions taking control. It is infinitely simple for business lawyers to craft a pre-nup and determine a liquidation of the business interest without the baggage of a divorce proceeding. And a pre-nup is a planning tool, a prudent business owner must examine prior to entering into a new marital relationship.
Where is the Romance?
Part of any business planning strategy involves planning for contingencies. For business people looking at entry into a marital relationship, after their business becomes profitable, premarital or prenuptial agreements are essential tools to protect the business.
A well structured pre-nup could potentially lessen the costly and lengthy legal process that a divorce can bring upon an individual. It allows business lawyers to work with family law attorneys and structure either an agreed liquidated amount for non business owning spouses community property interest in the business, if any, or the method by which that spouse’s interest would be preserved by the business owner.
Elyse M. Farrow
Wednesday, September 29, 2010
Prevent Your Power of Attorney from Being Ignored
A durable power of attorney is one of the most important estate planning documents there is. It allows someone you appoint -- your agent or "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated. However, many people experience difficulty in getting banks or other financial institutions to recognize the authority of an agent under a power of attorney.
Banks are often reluctant to accept powers of attorney for fear of being sued if the power of attorney isn't valid. A certain amount of caution on the part of financial institutions is understandable. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss.
To prevent problems later, contact your bank when you execute your power of attorney to find out what information it needs to accept the document. Many banks or other financial institutions have their own standard power of attorney forms. If this is the case, get the bank's form and sign it in addition to your own power of attorney form. While, it isn't legally necessary, signing the bank's form can save your agent a lot of trouble and time down the road. In addition, you can provide the bank with copies of your power of attorney. It is also a good idea to update your power of attorney frequently so the bank knows it is current.
If a bank is giving you a hard time about accepting a power of attorney, you can try talking your way up the chain of command. You can also have the lawyer who prepared the power of attorney call the bank. If that doesn't work, you may have to have a lawyer deal with the bank.
Banks are often reluctant to accept powers of attorney for fear of being sued if the power of attorney isn't valid. A certain amount of caution on the part of financial institutions is understandable. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss.
To prevent problems later, contact your bank when you execute your power of attorney to find out what information it needs to accept the document. Many banks or other financial institutions have their own standard power of attorney forms. If this is the case, get the bank's form and sign it in addition to your own power of attorney form. While, it isn't legally necessary, signing the bank's form can save your agent a lot of trouble and time down the road. In addition, you can provide the bank with copies of your power of attorney. It is also a good idea to update your power of attorney frequently so the bank knows it is current.
If a bank is giving you a hard time about accepting a power of attorney, you can try talking your way up the chain of command. You can also have the lawyer who prepared the power of attorney call the bank. If that doesn't work, you may have to have a lawyer deal with the bank.
Friday, September 24, 2010
Parol Evidence in Contracts
When structuring a contract, it is axiomatic that the parties to the contract must say what they mean and mean what they say. Problems arise when people engage in “do it yourself contracts", using online forms, which are inapplicable to Texas law or the transaction, or, my favorite - write out the deal on your computer over a glass of wine.
A contract dispute, for goods or services, becomes exponentially more complex when the parties to the dispute are forced to resort to parol evidence (not parole - as in get out of jail) to prove what they meant in the contract.
Parol evidence is essentially evidence outside of the four corners of a contract, which may be used to explain a provision in the contract that has not been clearly addressed in the agreement. If an attorney must rely on parol evidence to explain a material term of the contract, he or she may typically look at the course of dealings, verbal testimony, and other outside evidence. For obvious reasons, this is not the preferred method to decipher the true agreement of the parties. It always boils down to a "he said - she said" scenario.
A Houston contract lawyer will typically draft a contract to ensure that all material terms agreed to by the parties are contained in the contract, and limit the likelihood that parol evidence will be introduced to decide the matter.
The problem that business lawyers face if the contract does not contain all the material terms of the deal is that they must construe the intent and agreements of the parties by relying on extrinsic evidence. The end result, especially if the dispute winds up in court may yield a result neither party wanted.
Charles M.R. Vethan
Managing Partner
A contract dispute, for goods or services, becomes exponentially more complex when the parties to the dispute are forced to resort to parol evidence (not parole - as in get out of jail) to prove what they meant in the contract.
Parol evidence is essentially evidence outside of the four corners of a contract, which may be used to explain a provision in the contract that has not been clearly addressed in the agreement. If an attorney must rely on parol evidence to explain a material term of the contract, he or she may typically look at the course of dealings, verbal testimony, and other outside evidence. For obvious reasons, this is not the preferred method to decipher the true agreement of the parties. It always boils down to a "he said - she said" scenario.
A Houston contract lawyer will typically draft a contract to ensure that all material terms agreed to by the parties are contained in the contract, and limit the likelihood that parol evidence will be introduced to decide the matter.
The problem that business lawyers face if the contract does not contain all the material terms of the deal is that they must construe the intent and agreements of the parties by relying on extrinsic evidence. The end result, especially if the dispute winds up in court may yield a result neither party wanted.
Charles M.R. Vethan
Managing Partner
Finding Top Expert Injury Lawyers
Where Can I Find a Personal Injury Attorney Referral:
Friends, Friendlies and Family
The first thing to do is to speak to friends, family and coworkers who were once injured and had already had an experience with an Injury lawyer who had represented them in their personal injury lawsuit claims. If your friend, family or coworkers had good experiences with their accident lawyers, put that particular lawyer on your list of legal counselors to speak with. In all events, never make a decision about retaining a particular lawyer just because someone said he or she was good. Everyone has a different responses to an injury lawyer's particular style or lack thereof, as well as personality or lack thereof. Don't make a decision until you have researched the lawyer's bar record and check their online verdicts and settlements information, as well as having discussed your case, its pitfalls and strong points and then having decided that you are at ease working with him or her.
Legal Groove's Lawyer Directory
Legal Groove offers a totally different worldwide and human edited lawyer directory that contains free legal forms, legal articles, bios and legal profiles for each attorney. This is the type of free information that will guide you through the accident attorney selection process. The lawyer profiles can tell you about your lawyer's experiences, his or her legal education, percentage contingency fees, and their vision of the practice of law. Legal Groove has made a determination that as of the listing date, each lawyer listed in the groove directory has a valid law license/bar card and is in good standing with their prospective licensing agency, bar association. Every lawyer in most countries takes an oath to communicate regularly with their clients.
Legal Groove assures that its listed attorneys will provide you a free estimate of the time and cost, if any, involved in your contingency fee case. Groove also takes care to ask its attorneys to provide you with a written retainer agreement that spells out how each attorney will litigate your legal claims in Court. Legal Groove's lawyer directory covers California, Nevada, Arizona and other countries like the United Kingdom and even Germany.
Other Law Firms
Another great way in finding experienced injury lawyers is to get referral from other experienced personal injury lawyers in other states or cities not in the jurisdiction where your lawsuit will be filed. Lawyers regularly refer cases to each other. Many injury lawyers will know someone who litigates plaintiffs' injury claims. As with all referrals, do your own independent research too!
We hope you have enjoyed this free article on finding experienced injury lawyers that was provided by excellent Toronto personal injury attorneys. Our Toronto car accident attorneys want to help.
Friends, Friendlies and Family
The first thing to do is to speak to friends, family and coworkers who were once injured and had already had an experience with an Injury lawyer who had represented them in their personal injury lawsuit claims. If your friend, family or coworkers had good experiences with their accident lawyers, put that particular lawyer on your list of legal counselors to speak with. In all events, never make a decision about retaining a particular lawyer just because someone said he or she was good. Everyone has a different responses to an injury lawyer's particular style or lack thereof, as well as personality or lack thereof. Don't make a decision until you have researched the lawyer's bar record and check their online verdicts and settlements information, as well as having discussed your case, its pitfalls and strong points and then having decided that you are at ease working with him or her.
Legal Groove's Lawyer Directory
Legal Groove assures that its listed attorneys will provide you a free estimate of the time and cost, if any, involved in your contingency fee case. Groove also takes care to ask its attorneys to provide you with a written retainer agreement that spells out how each attorney will litigate your legal claims in Court. Legal Groove's lawyer directory covers California, Nevada, Arizona and other countries like the United Kingdom and even Germany.
Other Law Firms
Another great way in finding experienced injury lawyers is to get referral from other experienced personal injury lawyers in other states or cities not in the jurisdiction where your lawsuit will be filed. Lawyers regularly refer cases to each other. Many injury lawyers will know someone who litigates plaintiffs' injury claims. As with all referrals, do your own independent research too!
We hope you have enjoyed this free article on finding experienced injury lawyers that was provided by excellent Toronto personal injury attorneys. Our Toronto car accident attorneys want to help.
Sunday, September 19, 2010
Nursing Home Residents Have Rights
Many people incorrectly believe that once someone enters a nursing home, their freedom is over. In fact, nursing home residents have many rights, and it is important to know those rights and to be able to enforce them.
Nursing home residents' rights are protected under federal law. In broad terms, nursing homes are required to ensure that every nursing home resident be given whatever services are necessary to function at the highest level possible. Following are some of the specific protections that residents have:
• Nursing home residents have the right to privacy in all aspects of their care. This means phone calls and mail should be private, and residents should be able to close doors and windows. In addition, residents may bring belongings from home, and nursing home staff is required to assist the residents in protecting those belongings.
• Residents have the right to go to bed and to get up when they choose, eat a variety of snacks outside meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary.
• Residents have the right to leave the nursing home and belong to any church or social group they wish to.
• Residents must be allowed to participate in planning their care. Residents may also manage their own financial affairs.
• Residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice and an opportunity for appeal. For more information on fighting a nursing home discharge, click here. click here
For a full list of nursing home resident rights, click here
If a disagreement with the nursing home does arise, there are a number of steps you can take to enforce the resident's rights. The first step would be to talk to the nursing home staff directly. This may be all it takes to solve the problem. If that doesn't work, then you may need to talk to a supervisor or administrator. The next step is to contact the ombudsperson assigned to the nursing home. He or she should be able to intervene and get an appropriate result. Contact information for the Ombudsman Program in your state can be found at: www.ltcombudsman.org/ombudsman. Additional steps include reporting the nursing home to the licensing agency and hiring a geriatric care manager to intervene. If the direct approach isn't working, you may need to hire a lawyer to try and resolve the issues. The last resort is to move the resident to a different facility.
For more information on resolving nursing home disputes, click here.
Nursing home residents' rights are protected under federal law. In broad terms, nursing homes are required to ensure that every nursing home resident be given whatever services are necessary to function at the highest level possible. Following are some of the specific protections that residents have:
• Nursing home residents have the right to privacy in all aspects of their care. This means phone calls and mail should be private, and residents should be able to close doors and windows. In addition, residents may bring belongings from home, and nursing home staff is required to assist the residents in protecting those belongings.
• Residents have the right to go to bed and to get up when they choose, eat a variety of snacks outside meal times, decide what to wear, choose activities, and decide how to spend their time. The nursing home must offer a choice at main meals, because individual tastes and needs vary.
• Residents have the right to leave the nursing home and belong to any church or social group they wish to.
• Residents must be allowed to participate in planning their care. Residents may also manage their own financial affairs.
• Residents may not be moved to a different room, a different nursing home, a hospital, back home or anywhere else without advance notice and an opportunity for appeal. For more information on fighting a nursing home discharge, click here. click here
For a full list of nursing home resident rights, click here
If a disagreement with the nursing home does arise, there are a number of steps you can take to enforce the resident's rights. The first step would be to talk to the nursing home staff directly. This may be all it takes to solve the problem. If that doesn't work, then you may need to talk to a supervisor or administrator. The next step is to contact the ombudsperson assigned to the nursing home. He or she should be able to intervene and get an appropriate result. Contact information for the Ombudsman Program in your state can be found at: www.ltcombudsman.org/ombudsman. Additional steps include reporting the nursing home to the licensing agency and hiring a geriatric care manager to intervene. If the direct approach isn't working, you may need to hire a lawyer to try and resolve the issues. The last resort is to move the resident to a different facility.
For more information on resolving nursing home disputes, click here.
Wednesday, September 15, 2010
Do You Have a Right to Monitor Your Employees' Electronic Messages?
E-mail and text messaging is a way of life in the modern business world. Use of various forms of electronic communication by employees has risen dramatically, with no end in sight. It seems every worker has an employer-provided Blackberry, Droid or iPhone device.
But what rights do you as an employer have for monitoring or reviewing your employees’ messages?
In its recent decision in City of Ontario v. Quon, the U.S. Supreme Court held that a police officer did not have a right to privacy regarding personal text messages sent and received via a city-owned two-way alphanumeric pager. The City of Ontario’s policies and procedures specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources” and the employee signed a statement acknowledging that he had read and understood the Policy.
However, the New Jersey Supreme Court held in Stengart v. Loving Care Agency Inc. that an employee who sent and received e-mail messages on an employer-issued laptop computer had a reasonable expectation of privacy in her private, password-protected internet e-mail account, and the act of sending and receiving e-mails to her attorney via a company laptop did not eliminate the attorney-client privilege that protected them. This was despite the employer’s policy that allowed the company to review any messages sent on its electronic systems, but allowing "occasional personal use" of e-mail.
How do you as an employer act to protect your business and monitor your employees’ electronic communications to ensure they are not harmful to your business?
As in many employment issues, the first line of defense is to have a clearly worded policy related to the use of employer-issued electronic devices and computers. That policy should include, at the minimum, (1) specific definitions of the work devices and messages that are covered by the policy; (2) a provision regarding personal use of the devices; (3) a provision informing employees that the employer may monitor and log all work devices and accounts; (4) a waiver of any expectation of confidentiality or privacy in messages sent over those devices; and (5) clearly stated consequences for violation of the policies.
These policies should be provided to all employees and a signed acknowledgement obtained from each employee.
Furthermore, any search must be motivated by a legitimate, work-related purpose and no unfocused “fishing expeditions” for undefined information should be allowed. The law is still developing in this area and caution is the best policy.
Any questions regarding the scope of any investigation or monitoring should discussed with legal counsel prior to any action. The combination of clearly defined policies and procedures, and competent representation, should minimize the employer's exposure to costly litigation.
Lee Keller King
Senior Associate at The Vethan Law Firm
Lee Keller King
Senior Associate at The Vethan Law Firm
Wednesday, September 8, 2010
Study: Location, Firm Size Key to Billing Rates
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| Law Firm |
A lot of interesting statistics jump out. For starters, legal bills increased at rates that exceeded inflation, in-house Lawyers who spent more at a particular law firm were not getting any discounts, and partner status added nearly $100 on average to a lawyer's rate regardless of experience.
But what most struck us about the report was its portrayal of an industry fraught with inconsistency. The vast majority of lawyers -- 85 percent -- charge clients different rates for the same work. The location of the biller and the size of the biller's firm -- not the biller's experience -- are the variables that most influence how much a client will pay. And though in-house counsel talk a good game about keeping rates in check, they approve almost three-fourths of all timekeepers' rate hikes.
Thursday, September 2, 2010
Intellectual Property Licensing
When clients talk to our trademark attorneys or business lawyers about the scope of a license – whether for trademarks, copyrights, or other intellectual property matters, the first question they usually ask is, “what does the license cover, and how much can I push the envelope?” I am often reminded of a misbehaving 5-year-old child who, being punished for doing something inappropriate in a social setting, asks his or her parent, “How do I know I cannot do something unless you tell me?” While the statement is precocious coming from a 5-year-old, that attitude is not as endearing in the context of intellectual property law.
Licenses for copyrights, trademarks, and other intellectual property are creatures of contract. As a contract, a license must specify what the licensor allows a licensee to do with the licensed intellectual property. If the licensee takes any action or utilizes intellectual property for purposes not allowed by the license, that person is an infringer, not subject to the protection of the law. In structuring a license for a copyright, trademark, or, for that matter, any other intellectual property, the following considerations must be considered.
First, what is the intellectual property sought to be licensed? The scope of the licensed rights must be defined with specificity, so that the grant of rights is apparent to an objective third party. Business lawyers should be able to construct a license with the appropriate granting language, as well as the following considerations.
Second, after the intellectual property to be licensed has been identified, the licensor must delineate the permitted use and exploitation of the licensed intellectual property. This becomes part of the granting clause of the license, which should unambiguously identify the terms of usage and exploitation.
Third, the license contract must specify the term and territory of the license. Most times, in traditional businesses, a license will be granted for a particular time within particular geographical parameters. This limits the area in which a license may be exploited, and allows the licensor to control or limit the actual dilution or threat of dilution in the licensed intellectual property. The issue of territory becomes more complicated when dealing with businesses that sell primarily online. In fact, it is arguable that there can be no territorial definition, for license purposes, online. There is also a practical prohibition to online licensing as it is difficult to track all sales made by a licensee utilizing the trademark, copyright, or other intellectual property, whether for simple audit purposes or to control the dissemination of the intellectual property. The term of the license is important because it controls how long a licensee may utilize the licensed intellectual property. If the term of the license is too long, it may be effectively a quasi-assignment of the intellectual property rights, which the licensor would not want because it may dilute the value of the licensor’s trademark, copyright, or other intellectual property interest.
Fifth, and finally, a license agreement must provide for the terms under which the license may be involuntarily terminated, upon determination by the licensor of any impermissible acts or exploitation of the intellectual property – essentially examined under contract law, or provide for a sunset provision by which the license expires by its own terms.
In entering into license negotiations, the licensor and the licensee must fully and frankly explore their common business relationship during the term of the license, with the licensor imposing some degree of control on license grant, and the licensee negotiating a realistic right to fully and fairly exploit the rights granted in the license.
Charles M. R. Vethan
Managing Partner
Licenses for copyrights, trademarks, and other intellectual property are creatures of contract. As a contract, a license must specify what the licensor allows a licensee to do with the licensed intellectual property. If the licensee takes any action or utilizes intellectual property for purposes not allowed by the license, that person is an infringer, not subject to the protection of the law. In structuring a license for a copyright, trademark, or, for that matter, any other intellectual property, the following considerations must be considered.
First, what is the intellectual property sought to be licensed? The scope of the licensed rights must be defined with specificity, so that the grant of rights is apparent to an objective third party. Business lawyers should be able to construct a license with the appropriate granting language, as well as the following considerations.
Second, after the intellectual property to be licensed has been identified, the licensor must delineate the permitted use and exploitation of the licensed intellectual property. This becomes part of the granting clause of the license, which should unambiguously identify the terms of usage and exploitation.
Third, the license contract must specify the term and territory of the license. Most times, in traditional businesses, a license will be granted for a particular time within particular geographical parameters. This limits the area in which a license may be exploited, and allows the licensor to control or limit the actual dilution or threat of dilution in the licensed intellectual property. The issue of territory becomes more complicated when dealing with businesses that sell primarily online. In fact, it is arguable that there can be no territorial definition, for license purposes, online. There is also a practical prohibition to online licensing as it is difficult to track all sales made by a licensee utilizing the trademark, copyright, or other intellectual property, whether for simple audit purposes or to control the dissemination of the intellectual property. The term of the license is important because it controls how long a licensee may utilize the licensed intellectual property. If the term of the license is too long, it may be effectively a quasi-assignment of the intellectual property rights, which the licensor would not want because it may dilute the value of the licensor’s trademark, copyright, or other intellectual property interest.
Fifth, and finally, a license agreement must provide for the terms under which the license may be involuntarily terminated, upon determination by the licensor of any impermissible acts or exploitation of the intellectual property – essentially examined under contract law, or provide for a sunset provision by which the license expires by its own terms.
In entering into license negotiations, the licensor and the licensee must fully and frankly explore their common business relationship during the term of the license, with the licensor imposing some degree of control on license grant, and the licensee negotiating a realistic right to fully and fairly exploit the rights granted in the license.
Charles M. R. Vethan
Managing Partner
Wednesday, August 25, 2010
To Mediate and/or Arbitrate? That is the Question.
Alternative Dispute Resolution (“ADR”) is sometimes viewed as the latest, “trendy” way to resolve your case. ADR is generally a process that takes place outside the courthouse, although many courts now require parties to utilize ADR at some point before trial during a lawsuit. However, many parties are now leaving the courthouse completely out of the picture, and deciding to solely use some type of ADR, such as mediation or arbitration, to resolve or litigate their claims. ADR consists of several types of processes, but I am only focusing here on mediation and arbitration.
A mediation consists of the parties and their counsel, and a neutral third party known as the mediator. The mediator is not a decision maker, but assists the parties in amicably resolving the dispute. The mediator helps parties in developing settlement options, and may offer his or her opinion as to the strengths and weaknesses of a party’s case. Parties can agree to mediate their claims, or may be ordered by the court to mediate the case prior to trial or arbitration. Mediation is the ADR process in which the parties have the most control of their outcome, versus going to arbitration or court where an arbitrator, judge or jury makes the decisions. Parties often favor mediation because parties are able to mold unique settlements that may not be available in court or arbitration, Furthermore, the costs of mediation are typically less than the costs of litigating a claim in court or in arbitration.
Arbitration is a form of dispute resolution based on an agreement by the parties to arbitrate their claims, rather than utilize the courts. An arbitration consists of the parties and their counsel, and at least one arbitrator who acts as the judge and jury or decision-maker. Whether to use one arbitrator, or a three-person panel, is a decision made by the parties in their arbitration agreement.
Arbitration is conducted similarly to a trial, but is more informal and may not utilize the rules of evidence and procedure utilized in a trial. Generally, parties are able to mutually agree on an arbitrator, or at least strike potential arbitrators, whereas in a Texas court, you are assigned a specific judge. Parties also must give up their right to a jury trial in arbitration. Arbitration is typically binding and unappealable, although there are a few exceptions that allow arbitration to be non-binding or appealable. Once the arbitrator issues a final ruling, the prevailing party files it in court to effectuate a collectable, enforceable judgment.
The costs of mediation and arbitration are generally split between the parties, making it an attractive option for parties. However, in arbitration, unlike a judicial proceeding, all costs, including the cost of the arbitrator(s), are incurred by the parties. Arbitration decisions are typically reached much more quickly than a judicial proceeding, and are generally final. Both mediation and arbitration allow parties to reach decisions and judgments more narrowly tailored toward the parties than a judicial proceeding can allow.
Elyse M. Farrow, Associate
The Vethan Law Firm, P.C.
A mediation consists of the parties and their counsel, and a neutral third party known as the mediator. The mediator is not a decision maker, but assists the parties in amicably resolving the dispute. The mediator helps parties in developing settlement options, and may offer his or her opinion as to the strengths and weaknesses of a party’s case. Parties can agree to mediate their claims, or may be ordered by the court to mediate the case prior to trial or arbitration. Mediation is the ADR process in which the parties have the most control of their outcome, versus going to arbitration or court where an arbitrator, judge or jury makes the decisions. Parties often favor mediation because parties are able to mold unique settlements that may not be available in court or arbitration, Furthermore, the costs of mediation are typically less than the costs of litigating a claim in court or in arbitration.
Arbitration is a form of dispute resolution based on an agreement by the parties to arbitrate their claims, rather than utilize the courts. An arbitration consists of the parties and their counsel, and at least one arbitrator who acts as the judge and jury or decision-maker. Whether to use one arbitrator, or a three-person panel, is a decision made by the parties in their arbitration agreement.
Arbitration is conducted similarly to a trial, but is more informal and may not utilize the rules of evidence and procedure utilized in a trial. Generally, parties are able to mutually agree on an arbitrator, or at least strike potential arbitrators, whereas in a Texas court, you are assigned a specific judge. Parties also must give up their right to a jury trial in arbitration. Arbitration is typically binding and unappealable, although there are a few exceptions that allow arbitration to be non-binding or appealable. Once the arbitrator issues a final ruling, the prevailing party files it in court to effectuate a collectable, enforceable judgment.
The costs of mediation and arbitration are generally split between the parties, making it an attractive option for parties. However, in arbitration, unlike a judicial proceeding, all costs, including the cost of the arbitrator(s), are incurred by the parties. Arbitration decisions are typically reached much more quickly than a judicial proceeding, and are generally final. Both mediation and arbitration allow parties to reach decisions and judgments more narrowly tailored toward the parties than a judicial proceeding can allow.
Elyse M. Farrow, Associate
The Vethan Law Firm, P.C.
Wednesday, August 18, 2010
Tulips And Housing – Will We Never Catch Wise?
People were shocked and amazed a few years ago by the crash of the American housing industry. Why is this? There have been crashes before. In fact, it seems that a boom/crash cycle is the natural order of things in finance.The first great boom/crash cycle of which I am aware is the Tulip Mania in the Netherlands back in the 17th Century. The Dutch people became enthralled with tulips and many invested their savings in tulip speculation. At the peak of Tulip Mania in 1637, some single tulip bulbs sold for more than 10 times the annual income of a skilled craftsman. And then – inevitably – the crash came.
This is not just ancient history; there have been many boom/crash cycles within living memory, but we just do not seem to remember them when the next boom comes along.
For instance, does anybody remember Beanie Babies? At one time it seemed the market for Beanie Babies, the plush toys that you could buy in almost every store, would never stop growing. But it did. And many people who had ‘invested’ in Beanie Babies were caught holding the bag, or the baby.
What should we learn from this? Nothing that Mom and Dad did not tell us when we were young:
“What goes up, must come down.”
“If a deal seems too good to be true, it probably is.”
“Don’t put all your eggs in one basket.”
The best protection from being caught out in the next boom/bust cycle is to educate yourself. Know the past so that you are not bitten by the future.
And the next time you hear of a business investment that seems to be too good to be true, ask yourself – “Is it?”
Lee Keller King
Senior Associate at The Vethan Law Firm
Wednesday, August 11, 2010
Origins of a Corporation
Many today do not realize how much our modern financial and business system depends on an ancient creation – the liability-limiting corporation. The alleged oldest commercial corporation in the world, the Stora Kopparberg mining community in Falun, Sweden, obtained a charter from King Magnus Eriksson in 1347. One of the earliest English joint-stock companies was the East India Company (also known as the East India Trading Company, English East India Company, or the British East India Company), which was chartered by Elizabeth I in 1600. However, it was not until the enactment of the Limited Liability Act of 1855 that publicly owned corporations in Great Britain gave their stockholders protection from liability for the debts of the corporation.
In the United States, legislators of the various states retained a tight rein on corporations for 100 years after the American Revolution. Initially, corporate charters were limited to purposes that benefited the public, such as construction of roads or canals. The powers of corporations were also limited by the states, which often forbade corporations to own stock in other corporations, or own any property not directly connected to the corporation’s chartered purpose. The concept of today’s modern corporation – charted to engage in “any lawful business” was absent. It was not until the 1886 U.S. Supreme Court case of Santa Clara County v. Southern Pacific Railroad Company that the modern concept of a corporation as a separate legal entity took root in the United States.
So what does that have to do with me, you ask? If you are a business owner, it may be the difference between a bad business year and total financial ruin.
Many business owners do not realize the benefits of incorporation, or other forms of liability-limiting business formation. Many a sole proprietor has learned too late that the business’s debts are his/her debts, and failure of the business means the owners’ assets may be seized by creditors to pay the debts of the business. More than 124 years after the Santa Clara County v. Southern Pacific Railroad case, too many business owners risk their personal fortunes by trusting in archaic business forms such as the sole proprietorship or the general partnership, when a limited partnership, corporation or limited liability company might cost little, but protect much.
There is an old saying in equity – “The law does not favor the one who sleeps on his rights.” The law also does not favor the man or woman who is ignorant of their rights and the risks inherent in business. Educate yourself, or you may get a rough lesson from your creditors.
Lee Keller King
Senior Associate at The Vethan Law Firm
In the United States, legislators of the various states retained a tight rein on corporations for 100 years after the American Revolution. Initially, corporate charters were limited to purposes that benefited the public, such as construction of roads or canals. The powers of corporations were also limited by the states, which often forbade corporations to own stock in other corporations, or own any property not directly connected to the corporation’s chartered purpose. The concept of today’s modern corporation – charted to engage in “any lawful business” was absent. It was not until the 1886 U.S. Supreme Court case of Santa Clara County v. Southern Pacific Railroad Company that the modern concept of a corporation as a separate legal entity took root in the United States.
So what does that have to do with me, you ask? If you are a business owner, it may be the difference between a bad business year and total financial ruin.
Many business owners do not realize the benefits of incorporation, or other forms of liability-limiting business formation. Many a sole proprietor has learned too late that the business’s debts are his/her debts, and failure of the business means the owners’ assets may be seized by creditors to pay the debts of the business. More than 124 years after the Santa Clara County v. Southern Pacific Railroad case, too many business owners risk their personal fortunes by trusting in archaic business forms such as the sole proprietorship or the general partnership, when a limited partnership, corporation or limited liability company might cost little, but protect much.
There is an old saying in equity – “The law does not favor the one who sleeps on his rights.” The law also does not favor the man or woman who is ignorant of their rights and the risks inherent in business. Educate yourself, or you may get a rough lesson from your creditors.
Lee Keller King
Senior Associate at The Vethan Law Firm
Friday, August 6, 2010
Architects and Engineers: What Can They Copyright and Protect?
Recently, there has been much confusion as to what rights architects, engineers, and other professionals have in the original works they create, and remedies available to them if those works are illegally taken. Essentially, architectural and engineering drawings, photographs, and other original works, even though used for business purposes, are copyrightable. Specifically, the U.S. Copyright Act provides certain distinct rights that a creator of works has. These rights include (1) the right to reproduce the works; (2) the right to create derivative works; (3) the right to distribute those works; (4) in the case of literary, music, or dramatic works, the right to perform those works; (5) the right of public displaying; and (6) the right of digital transmission. These are statutory exclusive rights vested in Section 106 of the Copyright Act.In the event works are illegally taken or infringed upon, the Copyright Act also specifies the remedies available to the author of such original works. One of the initial analyses done is to determine when the work was published or first published, and when the copyright was filed for registration. The Copyright Act allows the Court to impose statutory damages for copyright infringement if the statutory damages and attorney’s fees for copyright infringement if the infringement occurred after the registration or, the infringement occurred before registration but the registration was filed within three months of the first publication. This requirement provides an incentive for a creator of original works to obtain a registered copyright as soon as possible. Regardless of whether the copyright is registered, the author of the original works does have a copyright in what he or she has created. The question is what legal remedies are available at the time the registration is filed. The registration must also be filed as prerequisite to federal litigation for copyright infringement.
Regardless of whether the author of the original works is entitled to statutory damages or attorney’s fees, all cases of copyright infringement involve a claim for lost profits in the form of actual damages, any additional profits of the infringer, and injunctive relief, (which prevents further infringement of the copyrighted works). However in many cases, the owner of copyrights cannot prove what their lost profits were because the infringer has naturally and necessarily taken market share away from the copyright owner. As such, the copyright law allows a copyright owner to establish the infringer’s profits by presenting proof only of the infringer’s gross revenue, and claiming such gross revenues are a proper measure of profits. In other words, an examination of an infringer’s tax return and the gross revenues received is sufficient to prove damages in a copyright case. In no situations, the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted works. See Section 504 of the Copyright Act. Essentially, the recovery of the infringer’s profits is a form of disgorgement remedies allowed by the Federal Copyright Statute.
Two things are important when considering a copyright lawsuit. First, it is imperative that the creator of an original work must timely file for copyright registration. This allows the copyright owner to seek statutory damages and attorney's fees. This is important if the copyright owner cannot prove damages for such infringement. However, even if proof of damages are problematic, the copyright owner may seek disgorgement, which is permitted upon showing that an infringer has presented the same or substantially the same product as his, her, or its own.
Charles M. R. Vethan
Managing Partner
Monday, July 26, 2010
Choosing the right litigation Lawyer for your business
Risks and laws are involved with every type of business, whether the business is new or an established one. To solve the legal matters through trial and discussion is the work of the business Litigation lawyer. Any dispute related to your personal, public or civil matters can be resolved with the help of a litigation lawyer.
Litigation is a term used to describe all legal steps involved in settling a controversy between two or more parties. There are instances when you are not able to protect your rights as a business owner and have to sue for damages. In such situations, it has become very important to choose the right person for your legal affairs.
While selecting the right litigation attorney for your business deals, it is important to consider checking the past records of the person you want to handle your legal matters. The complexity in business deals occurring today makes it really significant to have an expert business attorney.
Such lawyers are proficient in analyzing the business and its functions, are capable of handling contract negotiations and preparation, are aware of rules and regulations of the federal and state securities, buy and sell agreements between the parties, can manage business disputes and civil law and have a good understanding of Internet laws, copyrights and trademarks of the business organizations.
Hiring a Business lawyer can be a complex and confusing process as selecting the right candidate for your legal issues involves a lot of discussions and matters related to your business concerns. You should talk with many people and friends before making a choice.
A business litigation lawyer must be aware of your Business Legal Issues and should be honest in their work. It is good to get a recommendation from a close friend, relative or a colleague. But remember, every legal situation varies. Hence, the recommended lawyer might not be suitable for your type of business problems.
Source : ArticleBase
Litigation is a term used to describe all legal steps involved in settling a controversy between two or more parties. There are instances when you are not able to protect your rights as a business owner and have to sue for damages. In such situations, it has become very important to choose the right person for your legal affairs.
While selecting the right litigation attorney for your business deals, it is important to consider checking the past records of the person you want to handle your legal matters. The complexity in business deals occurring today makes it really significant to have an expert business attorney.
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| Business Law |
Hiring a Business lawyer can be a complex and confusing process as selecting the right candidate for your legal issues involves a lot of discussions and matters related to your business concerns. You should talk with many people and friends before making a choice.
A business litigation lawyer must be aware of your Business Legal Issues and should be honest in their work. It is good to get a recommendation from a close friend, relative or a colleague. But remember, every legal situation varies. Hence, the recommended lawyer might not be suitable for your type of business problems.
Source : ArticleBase
Friday, July 23, 2010
LegalZoom Sued for Deceptive Practices
One of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.
The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino's estate.
Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom's advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company's customer service department would resolve them.
But after the living trust documents were created and signed, the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. Mr. Ferrantino died in November 2007.
Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds -- a more difficult task following Mr. Ferrantino's death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino's estate thousands of dollars.
The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.
"Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only 'customized' to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances," the lawsuit states, adding that "the customer service representatives are not lawyers and cannot by law provide legal advice."
Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.
"LegalZoom's business is based on nurturing the false sense of security that people do not need to hire a traditional attorney," says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. "The complaint points out that LegalZoom advertises that you don't need a real attorney because its work is legally binding and reliable. That's misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums."
"LegalZoom preys on people when they're at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust," adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster's lead counsel.
One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.
This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.
The lawsuit was filed in Los Angeles Superior Court on May 27, 2010, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino's estate.
Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster in July 2007 to help him use LegalZoom to execute a will and living trust. Based on LegalZoom's advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company's customer service department would resolve them.
But after the living trust documents were created and signed, the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. Mr. Ferrantino died in November 2007.
Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds -- a more difficult task following Mr. Ferrantino's death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino's estate thousands of dollars.
The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.
"Nowhere in the [company's] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only 'customized' to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances," the lawsuit states, adding that "the customer service representatives are not lawyers and cannot by law provide legal advice."
Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.
"LegalZoom's business is based on nurturing the false sense of security that people do not need to hire a traditional attorney," says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. "The complaint points out that LegalZoom advertises that you don't need a real attorney because its work is legally binding and reliable. That's misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums."
"LegalZoom preys on people when they're at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust," adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster's lead counsel.
One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.
This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.
Wednesday, July 21, 2010
The True Meaning of Fiduciary Duty
The highest duty owed by one person to another, recognized by law. That is a scary legal requirement as it applies in corporate law. Texas Corporate Law, similar to the corporate law of other States, such as Delaware, imposes a heightened duty upon a director, officer, or senior employee of a company to the company. Fiduciary duty is broken down into two components: a duty of loyalty and a duty of care to the corporation. This duty is not merely a passive duty owed by an individual to the corporation. It is a duty to ensure that a corporate opportunity or corporate benefit is not illegally taken by a person in a position of trust. In short, it prevents someone from “feathering their own nest” at the expense of the company with which he or she is affiliated. While the law imposes fiduciary duties on corporate directors and senior officers of a company, a fiduciary duty may be recognized under Texas law depending on the nature of the relationship. If an individual is in a position of trust and confidence of the company, has controlled of the company or its information, a jury may determine that a fiduciary duty exists.
In cases involving claims for a breach of fiduciary duty, the moving party, whether it is the corporation, or someone suing derivatively on behalf of a corporation, alleges that an individual has taken something that does not belong to him or her, and has injured the corporation. In such a case, the remedies that a Court may impose is not only a disgorgement of all benefits, regardless of whether part of the benefit taken by the wrongdoer was valid, but may also impose punitive damages against the wrongdoer.
The question arises as to why this duty exists in the first place. Essentially, when acting as a corporate collective-hence the corporation-certain individuals are entrusted with information that is valuable to the survival and growth of a corporation, which is recognized as a distinctly new entity under the law. In breach of fiduciary duty cases, a business lawyer will bring a claim seeking to punish the wrongdoer and impose a constructive trust on all monetary benefit that has been improperly derived. It is an important consideration for all senior personnel in a corporation, before they involve themselves in taking advantage of a benefit that their principal may also benefit from, to obtain a statement of release or a statement of non-interest from the board of directors of the company. In doing so, any prospective endeavor, should it yield any significant return, will belong to the individual, without any claim made upon it by the corporation.
Charles M. R. Vethan
Managing Partner
In cases involving claims for a breach of fiduciary duty, the moving party, whether it is the corporation, or someone suing derivatively on behalf of a corporation, alleges that an individual has taken something that does not belong to him or her, and has injured the corporation. In such a case, the remedies that a Court may impose is not only a disgorgement of all benefits, regardless of whether part of the benefit taken by the wrongdoer was valid, but may also impose punitive damages against the wrongdoer.
The question arises as to why this duty exists in the first place. Essentially, when acting as a corporate collective-hence the corporation-certain individuals are entrusted with information that is valuable to the survival and growth of a corporation, which is recognized as a distinctly new entity under the law. In breach of fiduciary duty cases, a business lawyer will bring a claim seeking to punish the wrongdoer and impose a constructive trust on all monetary benefit that has been improperly derived. It is an important consideration for all senior personnel in a corporation, before they involve themselves in taking advantage of a benefit that their principal may also benefit from, to obtain a statement of release or a statement of non-interest from the board of directors of the company. In doing so, any prospective endeavor, should it yield any significant return, will belong to the individual, without any claim made upon it by the corporation.
Charles M. R. Vethan
Managing Partner
Monday, June 28, 2010
What Is the Generation-Skipping Transfer Tax?
The estate tax gets all the press, but if you are leaving property to a grandchild, there is an additional tax you should know about. The generation-skipping transfer (GST) tax is a tax on property that is passed from a grandparent to a grandchild (or great-grandchild) in a will or trust. The tax is also assessed on property passed to unrelated individuals more than 37.5 years younger. Like the estate tax, it is currently repealed, but is scheduled to return in 2011.
The GST tax was designed to close a loophole in the estate tax. Normally, grandparents would leave their estates to their children, incurring estate taxes. Then the children would pass on the estates to the grandchildren, incurring estate taxes again. Wealthy individuals realized they could leave their estates to their grandchildren directly and avoid one set of estate taxes. Congress established the GST tax to prevent this by taxing transfers to related individuals more than one generation away and to unrelated individuals more than 37.5 years younger.
A GST tax is imposed even when property is left in trust for a grandchild. For example, suppose a grandparent sets up a trust that leaves income to her children for life and then the remainder to her grandchildren. The part of the trust left to the grandchildren will be subject to a GST tax.
The GST tax has tracked the estate tax rate and exemption amounts. In 2009, the federal government exempted $3.5 million from the tax and the tax rate was 45 percent. The GST tax expired in 2010 along with the estate tax, but it is scheduled to return in 2011. Unless Congress acts in the meantime, the 2011 GST tax exemption amount will be $1 million and the tax rate will be 55 percent.
The GST tax was designed to close a loophole in the estate tax. Normally, grandparents would leave their estates to their children, incurring estate taxes. Then the children would pass on the estates to the grandchildren, incurring estate taxes again. Wealthy individuals realized they could leave their estates to their grandchildren directly and avoid one set of estate taxes. Congress established the GST tax to prevent this by taxing transfers to related individuals more than one generation away and to unrelated individuals more than 37.5 years younger.
A GST tax is imposed even when property is left in trust for a grandchild. For example, suppose a grandparent sets up a trust that leaves income to her children for life and then the remainder to her grandchildren. The part of the trust left to the grandchildren will be subject to a GST tax.
The GST tax has tracked the estate tax rate and exemption amounts. In 2009, the federal government exempted $3.5 million from the tax and the tax rate was 45 percent. The GST tax expired in 2010 along with the estate tax, but it is scheduled to return in 2011. Unless Congress acts in the meantime, the 2011 GST tax exemption amount will be $1 million and the tax rate will be 55 percent.
Tuesday, June 1, 2010
Don't Let Your Life Insurance Trigger An Avoidable Estate Tax
Although your life insurance policy may pass to your heirs income tax-free, it can affect your estate tax. If you are the owner of the insurance policy, it will become a part of your taxable estate when you die. While the federal estate tax is currently zero, the exemption will be $1 million and the rate will increase to 55 percent on January 1, 2011, if Congress fails to act in the interim.
In New Jersey, the estate tax may be triggered for estates exceeding $675,000. You should make sure your life insurance policy won't have an impact on your estate's tax liability.
If your spouse is the beneficiary of your policy, then there is nothing to worry about in the short term. Spouses can transfer assets to each other tax-free. But an en estate tax may be triggered on your spouses death that could have been avoided with proper planning.
If the beneficiary is anyone else (including your children), the policy will be a part of your estate for tax purposes. For example, suppose you buy a $200,000 life insurance policy and name your son as the beneficiary. When you die, the life insurance policy will be included in your taxable estate. If the total amount of your taxable estate exceeds the estate tax exemption, then your policy will be taxed.
In order to avoid having your life insurance policy taxed, you can either transfer the policy to someone else or put the policy into a trust. Once you transfer a policy to a trust or to someone else, you will no longer own the policy, which means you won't be able to change the beneficiary or exert control over it. In addition, the transfer may be subject to gift tax if the cash value of your policy (the amount you would get for your policy if you cashed it in) is more than $13,000. If you decide to transfer a life insurance policy, do it right away. If you die within three years of transferring the policy, the policy will still be included in your estate.
If you transfer a life insurance policy to a person, you need to make sure it is someone you trust not to cash in the policy. For example, if your spouse owns the policy and you get divorced, there may be no way for you to get it back. A better option may be to transfer the life insurance policy to a life insurance trust. With a life insurance trust, the trust owns the policy and is the beneficiary. You can then dictate who the beneficiary of the trust will be. For a life insurance trust to exclude your policy from estate taxes, it must be irrevocable and you cannot act as trustee.
If you want to transfer a current life insurance policy to someone else or set up a trust to purchase a policy, consult with your estate planning law attorney.
In New Jersey, the estate tax may be triggered for estates exceeding $675,000. You should make sure your life insurance policy won't have an impact on your estate's tax liability.
If your spouse is the beneficiary of your policy, then there is nothing to worry about in the short term. Spouses can transfer assets to each other tax-free. But an en estate tax may be triggered on your spouses death that could have been avoided with proper planning.
If the beneficiary is anyone else (including your children), the policy will be a part of your estate for tax purposes. For example, suppose you buy a $200,000 life insurance policy and name your son as the beneficiary. When you die, the life insurance policy will be included in your taxable estate. If the total amount of your taxable estate exceeds the estate tax exemption, then your policy will be taxed.
In order to avoid having your life insurance policy taxed, you can either transfer the policy to someone else or put the policy into a trust. Once you transfer a policy to a trust or to someone else, you will no longer own the policy, which means you won't be able to change the beneficiary or exert control over it. In addition, the transfer may be subject to gift tax if the cash value of your policy (the amount you would get for your policy if you cashed it in) is more than $13,000. If you decide to transfer a life insurance policy, do it right away. If you die within three years of transferring the policy, the policy will still be included in your estate.
If you transfer a life insurance policy to a person, you need to make sure it is someone you trust not to cash in the policy. For example, if your spouse owns the policy and you get divorced, there may be no way for you to get it back. A better option may be to transfer the life insurance policy to a life insurance trust. With a life insurance trust, the trust owns the policy and is the beneficiary. You can then dictate who the beneficiary of the trust will be. For a life insurance trust to exclude your policy from estate taxes, it must be irrevocable and you cannot act as trustee.
If you want to transfer a current life insurance policy to someone else or set up a trust to purchase a policy, consult with your estate planning law attorney.
Saturday, May 15, 2010
What is a Durable Power of Attorney?
For most people, the durable power of attorney is the most important estate planning instrument available--even more useful than a will. A power of attorney allows a person you appoint -- your "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated.
In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.
A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.
While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."
In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.
A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.
While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."
Tuesday, April 27, 2010
What Is Estate Planning?
The definition of Estate Planning is easy: it is a plan for your estate. Your estate is what you own; it is your stuff.
If you become mentally incapacitated, perhaps by accident or illness, you can no longer manage your stuff. You can't buy or sell what you need, pay you bills, or file your taxes. Someone will have to do this for you. If you plan for this with Powers of Attoney or Trusts, you get to choose who helps you manage your stuff. If you don't, a judge will choose someone for you after an expensive court proceeding. You may not agree with the judges choice and it may be a stranger who is charging you hourly.
When you pass away, the ownership of you stuff must pass to someone else (sorry). If you plan in advance for this, you get to choose who gets what, when they get it and how they get it. You even get to avoid taxes that will be due if no planning is done. You can do this by getting a Will or Revocable Living Trust. You can also control who gets what with beneficiary designations such as with life insurance and retirement accounts. Bank accounts can be designated Payable on Death (POD) to your beneficiary. You can also own an asset jointly with someone else so that they become the sole owner if you die. If you do not plan in advance, the law sets forth who gets what.
A typical Estate Plan may have a Will, Trust, Financial Power of Attorney, Healthcare Power of Attorney and a Living Will. This planning is really not so much for you but for your loved ones. If you have an Estate Plan, check to see if it needs an update. If you don't have a plan, get one. Your loved one's will thank you someday.
If you become mentally incapacitated, perhaps by accident or illness, you can no longer manage your stuff. You can't buy or sell what you need, pay you bills, or file your taxes. Someone will have to do this for you. If you plan for this with Powers of Attoney or Trusts, you get to choose who helps you manage your stuff. If you don't, a judge will choose someone for you after an expensive court proceeding. You may not agree with the judges choice and it may be a stranger who is charging you hourly.
When you pass away, the ownership of you stuff must pass to someone else (sorry). If you plan in advance for this, you get to choose who gets what, when they get it and how they get it. You even get to avoid taxes that will be due if no planning is done. You can do this by getting a Will or Revocable Living Trust. You can also control who gets what with beneficiary designations such as with life insurance and retirement accounts. Bank accounts can be designated Payable on Death (POD) to your beneficiary. You can also own an asset jointly with someone else so that they become the sole owner if you die. If you do not plan in advance, the law sets forth who gets what.
A typical Estate Plan may have a Will, Trust, Financial Power of Attorney, Healthcare Power of Attorney and a Living Will. This planning is really not so much for you but for your loved ones. If you have an Estate Plan, check to see if it needs an update. If you don't have a plan, get one. Your loved one's will thank you someday.
Tuesday, April 20, 2010
What Does A Personal Injury Attorney Do?
Personal injury attorneys specialize in helping clients who have suffered a physical, emotional, or mental harm and believe that another party is responsible for that injury.Although most commonly associated with car accident cases, personal injury attorneys also handle slip and fall cases, defective products, assault injuries, and work and home accidents. Some Personal Injury Lawyers also handle workers compensation cases, asbestos litigation, and even hospital and medical malpractice suits because the burden of proof in those suits is similar.
Under the law, the plaintiff in a personal injury suit may recover monetary compensation when they are hurt if they can prove that the defendant is liable for it. The standards for liability differ from state to state, but generally a person suing is required to prove that the defendant's action or inaction was the primary cause of the plaintiff's harm. To prevail in a lawsuit, the plaintiff must prove that the defendant's negligent or malignant actions are the proximate cause of the plaintiff's injury and that the defendant had a legal duty to act more responsibly.
For instance, in a car accident suit, the plaintiff is required to prove that the defendant's behavior caused the accident and that the plaintiff was injured as a result of the car crash.
Friday, April 16, 2010
Who is a business lawyer?
Genuine businessmen know for certain how vital the role of a lawyer is to any kind of business. A business attorney specifically provides an in depth guidance right from the start.The Business Lawyers or business attorney is beside you as you ponder on the type of business that you would intend to start on. He will then guide you as you go through the steps of establishing your business and most particularly with that of obtaining all legal necessities such as the permits, licenses, and all other legal matters.
Remember that the absence of any single legal requirement may lead to the closure of your business. Hence, as defined, the business lawyers will be your mentor in correctly handling your business every step of the way.
If your company needs the help of a business lawyers attorney, visit Torontobarristers.com today to learn more.
Friday, April 9, 2010
What Is An Estate?
As an estate planning attorney, the term "estate" has a specific meaning to me. Yet I am constantly reminded that the term "estate" often means something else to others. For example, prospective clients often say to me "I don't need estate planning, I only need a Will".
What does the word "estate" mean to you? I used to picture a mansion in the English countryside surrounded by a large well manicured lawn behind an iron gate and brick walls. Law school changed that meaning for me.
Your estate is simply what you own in your own name or jointly with others. So your estate may include a house, car, bank accounts and investment accounts like mutual funds or other stocks and bonds. Your retirement plan, such as an IRA or 401k is part of your estate. The value of your insurance policy is part of your estate even though someone else is getting the money. Other estate assets are debts owed to you and the value of any business you may own. Your estate even includes your "stuff" like the contents of your home.
So we all have an "estate". You can plan ahead to decide what should happen to your estate should you die or become incapacitated. There is a term for planning ahead like that, wait ... it is on the tip of my tongue ... Estate Planning!
What does the word "estate" mean to you? I used to picture a mansion in the English countryside surrounded by a large well manicured lawn behind an iron gate and brick walls. Law school changed that meaning for me.
Your estate is simply what you own in your own name or jointly with others. So your estate may include a house, car, bank accounts and investment accounts like mutual funds or other stocks and bonds. Your retirement plan, such as an IRA or 401k is part of your estate. The value of your insurance policy is part of your estate even though someone else is getting the money. Other estate assets are debts owed to you and the value of any business you may own. Your estate even includes your "stuff" like the contents of your home.
So we all have an "estate". You can plan ahead to decide what should happen to your estate should you die or become incapacitated. There is a term for planning ahead like that, wait ... it is on the tip of my tongue ... Estate Planning!
Wednesday, April 7, 2010
Litigation Lawyers - Their Area of Practice
Litigation lawyers take up civil lawsuits that are brought before courts involving two parties in which one is a complainant and the other is a defendant. The process of filing a lawsuit in a court of law is called litigation. The person who files the lawsuit is called complainant or plaintiff as he/she seeks legal remedy for the action of the defendant.
Area of Sphere of Litigation Lawyers
Litigation lawyers take up cases involving dispute resolution of private law, conflict between individuals, between business entities and non-profit organizations. They may even take up cases involving government at one side and a private individual or entity at other. If you have been aggrieved due to certain government action and want to file a lawsuit for the injury, you can take help from a litigation lawyer.
Simply put, cases not involving criminal law are taken up by litigation lawyers. Their legal expertise helps you to fight your cases and get a fair judgment. These lawyers have knowledge and skills in civil rights laws involving civil issues such as business, personal injury and employment.
Notably, all civil disputes need not culminate in lawsuits. Even in such cases, litigation lawyers would prove helpful in negotiating a settlement outside court.
Qualities of Good Litigation Lawyers
The field of civil litigation is very large but the usual practice is that a litigation lawyer specializes in one area of civil litigation. Before hiring a litigation lawyer, it is best to assess his/her training and experience in the field related to your case. A good litigation lawyer is one who:
- Is capable of initiating negotiation processes before things go out of hand and reach a trial process in a law court in proper manner.
- Is competent to negotiate with good faith and looks after the client's interests properly.
Has the ability of communicating the legal intricacies to the clients.
- Is capable of communicating and interpreting decisions of the court in proper manner.
- Is persuasive and knows how to persuade the opposing counsel, jury, judge and client.
- Should also be fair, honest and reasonable in charging the clients for the legal services.
Hiring a litigation lawyer can be a costly affair in Australia. If you are in need of an effective litigation lawyer at an affordable price, consult with Rosendorff for successful resolution of litigation cases.
Source : Ezinearticles
Wednesday, March 31, 2010
What They Can Do For You - Business Lawyers
Business lawyers and attorneys can advise you on how to properly structure your business, (be it through a sole proprietorship, partnership, joint venture, corporation), on how to deal with disputes that may have arisen during the course of your business operations, or on how to dissolve the business. With respect to the latter, it is worth mentioning that I have and am dealing with a number of business dissolution here in Toronto (it may be the poor economic times?). There are a number of issues which come up which you may not realize (i.e. unless you're a lawyer and you are trained on and deal with these things regularly). Typically, these issues include:
* Division of business assets.
* Responsibility for business liabilities - particularly the lease, supplier agreements, employment agreements, and tax obligations.
* Preparing the necessary paperwork (e.g. bookkeeping, taxes, government forms) to dissolve the business.
* Ensuring compliance with the business' internal documents (e.g. partnership agreement, corporate by-laws and resolutions, shareholder agreements, and articles of incorporation, etc.).
* Informing customers (both past and present), employees, and other stakeholders of what is happening with the business.
At the end of the day, you will likely need a number of documents and agreements prepared by a business lawyer in order to help oversee the business dissolution. For example, you should have a lawyer explain the various options and then draft some type of dissolution agreement for all the parties to sign off on. Next, you may need your lawyer to draft and/or negotiate terminate and release of liability agreements for landlords and suppliers, etc. Finally, your lawyer may be called upon to prepare the government forms to submit in order to dissolve the corporation. Finally, if business partners take issue with and dispute the steps along the way towards dissolution, then lawyers may be also called upon to try to negotiate a settlement or resolve the issues through litigation.
In any event, you should definitely consult a business lawyer before trying to do any of these things yourself. Doing so will save you time, money and aggravation in the long run and make sure that your rights are protected and your interests
Business lawyers and attorneys can also help you understand your legal rights and obligations with respect to your business. They can tell you if a particular course of action could be challenged by (1) breaching a private contract, (2) giving rise to a possible tort liability, and/or (3) violating a statute or regulation established by the government.
Source: Ezinearticles
Tuesday, March 23, 2010
Employment Law Is An Important Part Of Business Law
Business law is one of the branches of the huge field of law. There are many things one has to keep in mind when starting a business; let it be a small or a large business. Breaking these laws may land you in deep trouble, so it is always advisable to have some basic knowledge of both small business law and business corporate law. With this knowledge, you are sure of being able to run your business smoothly without any hindrance from the law whatsoever!
One of the most important areas to consider in business law is employment law. If you don't comply with all the employment laws and regulations, it is highly likely that you will end up in lots of trouble! There are different laws that actually rule the employment basis of both the regular employees and the contract employees of a business. Some of the employment business laws that have to be met by you are FLSA, the Fair Labor Standards Act, The Immigration Reform and Control Act of 1986, Americans with Disabilities Act, the Civil Rights Act of 1966 and the Equal Pay Act of 1963. However, these laws are not connected to the various state employment business laws that you may find to your business! These laws are a different thing altogether. To confirm that your business meets all the employment laws, it is always better to checkup with your HR department.To run a business, it is important to have a business permit or a license. If you do not have one, there is a high possibility of you having to shutdown your business and to pay hefty fines and penalties. Moreover, in addition to federal business law it is required that you meet the state business law regulations too. And if you have an international based
business, you have to be aware of the different international business laws and how they can affect your business, you and your bottom line. You at least have to meet the general international business laws, import laws, any specialized export laws and laws of the country you maintain business with.
Those running online businesses may be of the impression that there are no business laws pertaining to the internet. However, this is not so. There are many internet and online business laws that have to be followed to maintain any online business. The reason for these laws is that the internet explosion over the past decade has forced the government to introduce internet compliance laws to maintain some law and regulation over the internet. So if you by any chance run a website make sure that you abide the internet business laws. If you don't do so, there is a high possibility of your site being shut down and of you, in the mean time, facing criminal prosecution and huge fines.
Remember that it is not advisable for you to try and comply with all the business laws on your own. There are numerous laws, and the best mode of avoiding falling into any trap would be to get the help of some professional business law firm. These tips are just to give you an idea of the types of business laws existing. However, even if you do hire a business law firm, it is also better, and important for you to have some basic knowledge of business laws!
One of the most important areas to consider in business law is employment law. If you don't comply with all the employment laws and regulations, it is highly likely that you will end up in lots of trouble! There are different laws that actually rule the employment basis of both the regular employees and the contract employees of a business. Some of the employment business laws that have to be met by you are FLSA, the Fair Labor Standards Act, The Immigration Reform and Control Act of 1986, Americans with Disabilities Act, the Civil Rights Act of 1966 and the Equal Pay Act of 1963. However, these laws are not connected to the various state employment business laws that you may find to your business! These laws are a different thing altogether. To confirm that your business meets all the employment laws, it is always better to checkup with your HR department.To run a business, it is important to have a business permit or a license. If you do not have one, there is a high possibility of you having to shutdown your business and to pay hefty fines and penalties. Moreover, in addition to federal business law it is required that you meet the state business law regulations too. And if you have an international based
business, you have to be aware of the different international business laws and how they can affect your business, you and your bottom line. You at least have to meet the general international business laws, import laws, any specialized export laws and laws of the country you maintain business with.
Those running online businesses may be of the impression that there are no business laws pertaining to the internet. However, this is not so. There are many internet and online business laws that have to be followed to maintain any online business. The reason for these laws is that the internet explosion over the past decade has forced the government to introduce internet compliance laws to maintain some law and regulation over the internet. So if you by any chance run a website make sure that you abide the internet business laws. If you don't do so, there is a high possibility of your site being shut down and of you, in the mean time, facing criminal prosecution and huge fines.
Remember that it is not advisable for you to try and comply with all the business laws on your own. There are numerous laws, and the best mode of avoiding falling into any trap would be to get the help of some professional business law firm. These tips are just to give you an idea of the types of business laws existing. However, even if you do hire a business law firm, it is also better, and important for you to have some basic knowledge of business laws!
Sunday, March 14, 2010
Does Your Will Name an Alternate Beneficiary?
Does Your Will Name an Alternate Beneficiary?
What will happen to your estate if your primary beneficiary does not survive you? If your will does not name an alternate beneficiary, your estate will be divided according to state law. The way the state divides your estate may not agree with your wishes. Your money may go to someone you don't like or to someone who is unable to handle it.
For example, suppose your will divides your estate among your spouse and three children. If one child dies before you, do you want his or her portion of your estate to go to your grandchildren? To your other children? To your spouse? Or perhaps to a charitable organization or institution? Another issue to consider is whether the person who would inherit under the law is too young or has special needs. In that case, you may need a trust to protect the assets.
Double check your will to make sure it names an alternate beneficiary. And if you don't already have a will, being able to name an alternate beneficiary is an important reason to create one.
Naming an alternate is a good idea for other provisions in your will as well. If you have young children, you should also consider naming an alternate guardian for your children in the event your first choice is unable to fulfill his or her obligation. In addition, you may want to appoint an alternate executor in case the first one cannot serve.
What will happen to your estate if your primary beneficiary does not survive you? If your will does not name an alternate beneficiary, your estate will be divided according to state law. The way the state divides your estate may not agree with your wishes. Your money may go to someone you don't like or to someone who is unable to handle it.
For example, suppose your will divides your estate among your spouse and three children. If one child dies before you, do you want his or her portion of your estate to go to your grandchildren? To your other children? To your spouse? Or perhaps to a charitable organization or institution? Another issue to consider is whether the person who would inherit under the law is too young or has special needs. In that case, you may need a trust to protect the assets.
Double check your will to make sure it names an alternate beneficiary. And if you don't already have a will, being able to name an alternate beneficiary is an important reason to create one.
Naming an alternate is a good idea for other provisions in your will as well. If you have young children, you should also consider naming an alternate guardian for your children in the event your first choice is unable to fulfill his or her obligation. In addition, you may want to appoint an alternate executor in case the first one cannot serve.
Sunday, March 7, 2010
Outline of Canada's Court System
The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the court is federal in nature while others are provincial or territorial.The Canadian constitution gives the federal government the exclusive right to legislate criminal law while the provinces have exclusive control over civil law. The provinces have jurisdiction over the administration of justice in their territory. Almost all cases, whether criminal or civil, start in provincial courts and may be eventually appealed to higher level courts. The quite small system of federal courts only hear cases concerned with matters which are under exclusive federal control, such as immigration. The federal government appoints and pays for both the judges of the federal courts and the judges of the superior-level court of each province. The provincial governments are responsible for appointing judges of the lower provincial courts.
Saturday, February 20, 2010
General Durable Power of Attorney
Your Durable Power of Attorney
For most people, the durable power of attorney is the most important estate planning instrument available--even more useful than a will. A power of attorney allows a person you appoint -- your "attorney-in-fact" or "agent" -- to act in your place for financial purposes when and if you ever become incapacitated.
In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.
A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.
While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."
For most people, the durable power of attorney is the most important estate planning instrument available--even more useful than a will. A power of attorney allows a person you appoint -- your "attorney-in-fact" or "agent" -- to act in your place for financial purposes when and if you ever become incapacitated.
In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.
A power of attorney may be limited or general. A limited power of attorney may give someone the right to sign a deed to property on a day when you are out of town. Or it may allow someone to sign checks for you. A general power is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself.
A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately upon their execution, even if the understanding is that they will not be used until and unless the grantor becomes incapacitated. However, the document can also be written so that it does not become effective until such incapacity occurs. In such cases, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.
However, attorneys report that their clients are experiencing increasing difficulty in getting banks or other financial institutions to recognize the authority of an agent under a durable power of attorney. A certain amount of caution on the part of financial institutions is understandable: When someone steps forward claiming to represent the account holder, the financial institution wants to verify that the attorney-in-fact indeed has the authority to act for the principal. Still, some institutions go overboard, for example requiring that the attorney-in-fact indemnify them against any loss. Many banks or other financial institutions have their own standard power of attorney forms. To avoid problems, you may want to execute such forms offered by the institutions with which you have accounts. In addition, many attorneys counsel their clients to create living trusts in part to avoid this sort of problem with powers of attorney.
While you should seriously consider executing a durable power of attorney, if you do not have someone you trust to appoint it may be more appropriate to have the probate court looking over the shoulder of the person who is handling your affairs through a guardianship or conservatorship. In that case, you may execute a limited durable power of attorney simply nominating the person you want to serve as your conservator or guardian. Most states require the court to respect your nomination "except for good cause or disqualification."
Monday, February 8, 2010
Different Types of Law in Toronto Canada
Every citizen should be familiar with the Law of the Land. There is no excuse for not knowing the law. It can help a person to defend him or herself at a time of legal crisis. Even when you have not acted against the law, you might need to know the law in order to protect yourself from people who might violate the law. To know ones rights and privileges is not only beneficial, it is absolutely essential. You will never know when the information you have at your disposal might come in handy. Having it ready before any crisis strikes will help you take immensely wiser and more informed decisions which you will not regret later. Just as there are varied disciplines in the field of medicine, there is a wide range of divisions when it comes to law. For instance, everyone knows that you don't visit a general physician for a severe heart ailment. You want to consult a heart specialist in this case. Likewise, for every particular type of law, there are specific attorneys who specialize in that particular field. It really helps to search and identify the suitable attorney for your particular case, instead of heading to the nearest or most familiar attorney for every case.Here are some of the different types of law that Toronto law firms can assist you in:
• Accidents and Injuries: Involved in an accident where you suffered personal injury?
•Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
•Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
•Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
•Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.)
•Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
Criminal: Charged with a criminal offence? Appealing a conviction?
•Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
•Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
•Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
•Immigration: Need to immigrate to Canada? Fighting against deportation?
•Insurance: Having difficulties with your Insurance company?.
•Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
•Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
•Notary Public / Commissioner: Need to notarize or commission your documents?
•Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
•Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
•Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.
Try to consult Canadian Law firm and Toronto attorneys and bring an end to all your worries.
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