Friday, December 18, 2009

Importance of Briefing

While doing legal research, you will find briefing cases to be absolutely essential to gaining an understanding of case law. Simply reading cases fosters passive participation and retention. In other words, you can read a case over and over without gaining any real understanding of thee court’s reasoning. But if you put pen to paper and translate what you have read into your own words, you become actively engaged. The active engagement dramatically enhances your ability to critically reflect on the case. Writing forces the brain to engage in a creative process. In this process, you begin to see connections and interrelationships, to ask critical questions, and to postulate possible extensions of legal principles. Without engaging in such a critical thinking process, you might never get past a superficial understanding of a case. You might also find that you are confused or do not really understand what the court is saying. To better understand the difference between active and passive learning, reflect for a moment on the difference between your preparation for a multiple-choice exam and your preparation for an essay exam. Is it not true that your understanding of a subject need be only fairly superficial for you to pass a typical multiple-choice test? Do you not have to be much better prepared and possess a much higher level of understanding to pass an essay exam on the same material? By the same token, reading a case several times may allow you to pass a superficial multiple-choice test on it, but writing a case brief better prepares you for an in-depth essay exam.

Thursday, December 10, 2009

Motion for Complaint Sample

0 Small Claims 0 County Court 1 District Court
0 Probate Court 0 Juvenile Court 0 Water Court
Larimer County, Colorado
Court Address: 201 LaPorte Ave, Larimer County, Fort Collins, Colorado

Patty Plaintiff,

Plaintiff,

v.

Dennis Dimwit,

Defendant
Rick Jennings
1609 Oakridge Drive
Fort Collins, CO 80525
Phone Number: (307) 223-2669
FAX Number: (970) 223-2796
E-mail: rickj@yahoo.com
Atty. Reg. #: 22344












Case Number:



Div.: Ctrm:

Complaint for Damages


The Plaintiff appears, by and through her attorney, Rick Jennings, and respectfully submits this complaint against the defendant, Dennis Dimwit.

I. JURISDICTIONAL ALLEGATIONS

This Court has jurisdiction over the parties and the subject matter of this action.

1. The Plaintiff, Patti Plaintiff, resides at 234 Cowcrapsmell Street, Greeley, Weld County, Colorado.

2. The Defendant, Dennis Dimwit, resides at 567 Harmony Ave, Fort Collins, Larimer County, Colorado.

3. Venue for this complaint is correct pursuant to C.R.C.P. 98(c)(1)




II. GENERAL ALLEGATIONS

1. On June 30, 2007, at approximately 9:00 p.m., Patty Plaintiff was crossing Broadway Street at its intersection with Iowa Street in Denver, CO.

2. She had just stopped at the 7-11 Store at the northwest intersection of those two streets to buy some bottled water and some breath mints.

3. Her destination was Herman’s Hideaway, which is located across the street from the 7-11 at 1540 S. Broadway, Denver, CO.

4. Dick and Chicks, a popular rock-n-roll band from the 80’s was having a reunion concert and Patty was scheduled to meet a girlfriend there.

5. As Patty crossed the street, within the crosswalk and with the light, Dennis Dimwit was driving his 2006 Lexus sedan southbound on Broadway.

6. The light facing Dennis was green and when he was approximately 150 ft. north of the intersection the light turned yellow.

7. Dennis then sped up to pass the intersection before the light turned red.
8. Patty stepped into the crosswalk once the light indicated she could go and was crossing the street, carrying her water bottle, chewing her breath mints, when Dennis hit her going approximately 35 m.p.h.

9. Patty was tossed approximately 20 feet into the intersection and when she landed, she had broken her right leg at the femur.

10. She was taken to University Hospital in Denver by ambulance where she was treated in the emergency room.

11. The medical expenses, including follow-up medical care were $6,000. Patty missed three days of work which caused $500 in wage loss.

III. FIRST CLAIM FOR RELIEF – NEGLIGENCE

12. Plaintiff incorporates paragraphs 1 through 11 as if fully set forth herein.

13. Mr. Dimwit owed a duty to Ms. Plaintiff and the general public to drive safely and obey all traffic laws.

14. Mr. Dimwit breached that duty when he sped up in order to get through the light before it turned red.
15. This action caused Mr. Dimwit to run the light while Ms. Plaintiff was in the crosswalk and strike her with his vehicle.

16. Patty Plaintiff received a broken leg and a trip to the hospital resulting in the amount of $6,000. Patty also missed three days of work having $500 in lost wages. General damages in the amount of $18,000 are requested.

17. Mr. Dimwit is liable to Ms. Plaintiff for the injuries and damages described.

III. SECOND CLAIM FOR RELIEF – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

18. Plaintiff incorporates paragraphs 1 through 17 as if fully set forth herein.

19. Mr. Dimwits’ acted with negligent conduct when he sped up and struck Ms. Plaintiff.

20. Ms. Plaintiff experienced pain and suffering as a result of the accident.

21. Mr. Dimwits’ actions were the cause of Ms. Plaintiff’s emotional distress.

22. Patty Plaintiff incurred hospital bills worth $6,000. She also missed three days of work having $500 in lost wages. General damages in the amount of $18,000 are requested.

23. Mr. Dimwit is liable to Ms. Plaintiff for the injuries and damages described above.

WHEREFORE Plaintiff requests that this court enter its judgment against Dennis dimwit in an amount to be determined at trial. Plaintiff further requests that this court grant to her such other and further relief, including but not limited to interest from the date of the cause of action accrued pursuant to statute and costs, including expert witness and attorney’s fees, as the court finds to be just and proper under the circumstances.

PLAINTIFF DEMANDS A TRIAL TO A JURY OF SIX.

Dated:__________ PATTY PLAINTIFF, PLAINTIFF

_________________________
Rick Jennings, #22344
Attorney at Law
1609 Oakridge Drive
Fort Collins, CO 80525

Plaintiff’s address:
234 Cowcrapsmell Street
Greeley, CO

Verification

State of Colorado )
) ss.
County of Larimer )

The undersigned Plaintiff, having been first duly sworn upon her oath, deposes and states that hse is the Plaintiff in the above-referenced action, that she has reviewed the foregoing Complaint, and that the statements made therein are true and correct to the best of her knowledge, information, and belief.

_______________________
Patty Plaintiff, Plaintiff

Subscribed and sworn to me before this _____day of _____20___, by Patty Plaintiff.
Witness my hand and official seal. My commission expires:


______________________
Notary Public
Address: 1609 Oakridge Drive
Fort Collins, Co 80525

Tuesday, December 8, 2009

Rights of Finders of Personal Property

Lost Property:

1. Owner unintentionally parted with possession.
2. Rights superior to any one except the original owner. Does not have a duty to seek to locate true owner.
3. The original owner has retained ownership, and has the right to the return of the property.

Misplaced Property:

1. Owner intentionally put the property in a place but unintentionally left it there.
2. None: person in possession of found personal property holds it for the owner, and has rights superior to everyone except the owner.
3. The original owner has retained ownership and has the right to the return of the property.

Abandoned Property:

1. Owner intentionally placed property out of their possession with the intent to relinquish ownership of it.
2. Finder who takes possession with intent to claim ownership acquires ownership of the property.
3. The owner who abandoned the property has no further rights in it.

Types of Ownership of Personal Property

1. Joint Tenancy
2. Tenancy in common
3. Tenancy by the entirety
4. Community property
5. Dower and Courtsey

Monday, December 7, 2009

Types of Deeds

A deed is a written document that transfers ownership of real property from one person to the next. There are three main types of deeds that are used in the United States. These include; general warranty deed, limited warranty deed, and quitclaim deed.
A general warranty deed is a deed containing full warranty of title. There are six covenants or warranties in a general warranty deed. These include; covenant of seisin, covenant of right to convey, covenant against encumbrances, covenant for further assurance, covenant for quiet enjoyment, and covenant for warranty. These covenants or warranties are made by the grantor, or the person who is transferring ownership of the land.
Covenant of Seisin- Seisin means the right to possession of property. The seller will warrant that the grantor has possession of the land being transferred. The covenant of seisin also warrants that the grantor has ownership or title to the land.

Covenant of Right to Convey- This is a promise made on behalf of the grantor of the deed that the grantor owns the land and has the right to transfer ownership of the land. An interest in the land held by another person would cause a breach of this covenant.

Covenant against Encumbrances- This is a promise that the land is unencumbered or that the land is free and clear from mortgages, liens, taxes, leases, easements, or any other restrictions that might restrict the use of the land or be a debt on the land.

Covenant of Further Assurance- This is a promise that in the future, the seller will make any conveyance necessary to vest in the buyer of the deed the title intended to be conveyed.

Covenant of Quite Enjoyment and Warranty- These two covenants are usually the same. They involve a warranty that the buyer of the deed will be able to quietly enjoy the land without fear of eviction and without fear of any third party assertion of adverse claims.

A limited warranty deed is a deed in which the grantor covenants only against the lawful claims of people claiming by, through, or under the grantor.

A quitclaim deed contains no warranties of title and only transfers the interest the grantor has in the land and not the land itself. These types of deeds are usually found in foreclosure deeds, executor’s deeds, administrator’s deeds, and trustee’s deeds.

Example Warranty Deed

Warranty Deed

STATE OF Colorado COUNTY OF Larimer

KNOW ALL MEN BY THESE PRESENTS, That Charles D. Hoover and Martha L. Hoover, of the State of Colorado, for the consideration of $78,325 U.S. Dollars and other good and valuable considerations, in hand paid hereby transfer ownership to James C. Brooks and Doris L. Brooks, the following real property situated in the County of Larimer and State of Colorado, to wit:

ALL THAT TRACT or parcel of land lying and being in the Southeast Quarter of Township 14 North, Section 3, Range 15 West, Todd County, Wisconsin, and being more particularly described as Lot 14, Block A, of The Blue Springs Subdivision as per Plat recorded at Plat Book 3, Page 47, Todd County, Wisconsin Plat Records, which Plat is incorporated herein and made a part of this description by reference.

THIS CONVEYANCE IS SUBJECT TO THE FOLLOWING TITLE EXCEPTIONS:

(a) unpaid real estate taxes for the current year

(b) Mortgage from First Federal Savings and Loan Association for Charles D. Hoover and Martha L. Hoover in the amount of $78, 325 dated August 15, 2000, recorded August 16, 2000, at Mortgage Book 212, Page 82, Todd County, Wisconsin.

TO HAVE AND TO HOLD the said tract or parcel of land, with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoove of the said buyer forever in FEE SIMPLE.

IN WITNESS WHEREOF, the seller has signed and sealed this deed, the day and year above written.

The foregoing instrument was acknowledged before me this 9th day of October, 2008.

Witness my hand and official seal. My commission expires____________

_______________________________

Notary Public

Friday, December 4, 2009

Family Law Overview

Family Lawor domestic relations law involves many topics related to the status of family and its members. These include marriage, divorce or dissolution of marriage, adoption, guardianships, conservatorships etc.
Although Family Lawcomprises many facets, they are all directly or indirectly related to the marital relationship. Marriage is the legal union of one man and one woman, for the purpose of creating a family. The right to marry is a basic freedom that is protected by the U.S. Constitution, provided that parties meet the legal qualifications for marriage under their state law.
Legal Requirements to Marry-
Every state has established legal requirements to enter into a valid marriage. These include competence to marry, gender, and a good faith agreement to create a genuine marital relationship.
Legal Restrictions to Marry-
The legal restrictions or reasons to debunk a marriage include consanguinity , being under the minimum age of consent, mental incapacity, health or a preexisting marriage.
Consanguinity- This is the blood relationship between persons who intend to marry. Every state has laws that forbid marriage between parent and child, brother and sister, as well as uncle and niece. Marriage between first cousins also is forbidden in thirty states. A purported marriage between relatives in this group is void.
Minimum Age- All states have established a minimum age that must be reached before a person legally may consent to marry.
Mental Capacity- To be competent to marry, parties must have the mental capacity to understand the nature, effect, and consequences of marriage at the time of the marriage. The level of capacity is different for marriage than it is for entering into other types of contracts. To annul a marriage on this ground, the petitioning spouse must prove lack of capacity by clear and convincing evidence. (If you ever get married in Vegas to someone you just met and you were severely inebriated, then this would be an example of a marriage that will be annulled, never existed.)
Health Standards- States require parties to a marriage to meet certain health standards before they can marry. An example would be they must be free from venereal disease.
Preexisting Marriage- This is self explanatory in that no party to the marriage can be married to someone else at the time of the marriage. If one does marry another while still being married could face possible criminal prosecution for bigamy.
Mutual Consent- Both parties must consent to the marriage voluntarily and in good faith. Consent given under duress can lead to an annulment.
Gender- Every state has statutes in place that require individuals to be of opposite gender.

Example Easement

Bob Hoskins, with land ownership in the City of Fort Collins, County of Larimer, State of Colorado hereinafter referred to as Grantor, In consideration of the sum of $10,000, in hand paid by Excel Energy, Inc., hereinafter referred to as Company, whose headquarters are located at 1508 17th Street, Denver, Colorado, the receipt and sufficiency whereof is hereby acknowledged, the grantor, Bob Hoskins, located by 53454 County Rd. 45, Fort Collins, Colorado 80525, does hereby grant and convey to said Company, its successors and assigns the right, privilege and easement to go in, upon and along the tract of land owned by the grantor to 53454 County rd. 45, Fort Collins, Colorado 80525 of Larimer County, together with the right to construct, operate and maintain upon said land its lines for transmitting electric current, erected on one line of poles, with wire and other necessary apparatus, fixtures and appliances; with the right to permit the attachment of the wires and appliances of any other company, to said poles; together with the right at all times to enter upon said premises for the purpose of inspecting the lines, making repairs, removals, alterations, and extensions thereon; also the right to cut away or trim and keep clear of said lines all trees, limbs of trees and other obstructions that may interfere or be likely to interfere wit ht the proper operation of said lines; also the right of ingress and egress over said lines to and from said lines.
Grantor, does hereby grant and convey to said Company, its successors and assigns the right, privilege and easement to go in, upon and along the tract of land owned by the Grantor to 53454 County Rd. 45, Fort Collins, Colorado 80525 of Larimer County, together with the right to construct, operate and maintain upon said land its lines for the flow of gas, to be placed in the ground according to state building codes, with pipe and other apparatus, fixtures and appliances; with the right to permit the attachment of the pipes and appliances of any other company, to said pipes; together with the right at all times to enter upon said premises for the inspecting of the lines, making repairs, removals, alterations, and extensions thereon; also the right to cut away or trim and keep clear of said lines all tree roots, and other obstructions that may interfere or be likely to interfere with the proper operation of said lines; also the right of ingress and egress over said lines to and from said lines.
The Grantor does not convey any land, but merely grants the hereinabove described rights, privileges and easements. Said Company shall not be liable for, or bound by, any statement or agreement or understanding not herein expressed.

IN WITNESS WHEREOF, the said easement has hereinto set ____________ hand_______________ and seal___________, this 2nd day of October, 2008.
_______________________
By:____________________
Title:___________________

Notary Public__________________
My Commission Expires:

Thursday, December 3, 2009

Example Settlement Letter

LAW OFFICE OF
THOMPSON & THOMPSON

2345 Litigator Way
Fort Collins, CO 80525
________________________________________________________________________
August 27, 2008
Ms. Sandie Everitt
Attorney at Law
1234 Riverside Rd.
Fort Collins, CO 80526

RE: Scott Walker v. Tanya Brewster
District Court
Larimer County, Ohio

Dear Ms. Everitt:

In the interests of bringing the case of Scott Walker v. Tanya Brewster to a speedy and just conclusion, I have been authorized by our client, Scott Walker, to make the following settlement offer to your client. Please consult with your client, give this settlement offer all due consideration, and contact our office with your response within two weeks from the receipt of this letter.

Facts Surrounding the Accident- On December 4, 2003, at approximately 4:30 p.m., five year old Jesse Walker was severely wounded by a bullet accidentally fired from a 9-millimeter Beretta semiautomatic pistol. The shooting occurred in the home of Jesse’s parents, Scott and Claudia Walker.
Scott and Claudia also have a two-year-old daughter, Kym, and Scott has a 13-year-old child, T.J. Walker, from a previous marriage. Only Jesse, Kym and T.J. were in the house at the time of the shooting. T.J. was visiting Scott for the weekend and brought the pistol with her. Tanya Brewster was married to Scott Walker for four years and divorced on May 17, 1994. In August of 2003, Carl Newhouse began living with Tanya and T.J. in the home owned by Tanya. The pistol involved in the shooting is registered to Carl and was stored in the garage of Tanya’s home.

Theories of Recovery-
The defendant knew there was a gun being stored in the house and negligently failed to make sure she knew where the gun was being stored as pursuant to Colorado Criminal Code §105: Criminal Storage of a Firearm.
The defendant should have made sure that there was a lock either on the gun itself or on the case that held the gun pursuant to Colorado Criminal Code §105: Criminal Storage of a Firearm.
Pursuant to Colorado Criminal Code §105: Criminal Storage of a Firearm (a), a person commits the offense of criminal storage of a firearm if he or she keeps, or allows to be kept for any length of time, any firearm within his or her dwelling, and a child of 16 years of age or younger obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person.
Pursuant to Colorado Criminal Code §105: Criminal Storage of a Firearm (b), A person will not be found guilty under this section if he or she stores the firearm using a trigger-lock or other locking device on the firearm that prevents the firearm from functioning, stores the firearm in a secure, locked container or takes other means reasonably designed to insure that a child of 16 years of age or younger will not come into possession of the firearm.
The defendant, Tanya Brewster, violated these statutes and was negligent in her actions with the storage of the hang gun as well as not locking it properly. In her witness statement Tanya Brewster stated that she was reluctant at first, but then submitted to the gun being in her house. Her boyfriend, Carl Newhouse, convinced her that it would be safe and that he took a firearm safety course and that he would show Tanya the materials from the class. She stated that she read the handout on “Safe Storage of Handguns.” This handout which is Exhibit B in this case, states that “all adults in the house must know exactly where a handgun is stored.” It also states that “a handgun must have some lock either on the gun or on the storage case holding the gun.” It further states that “criminal liability is imposed when a child 16 years or younger obtains a firearm that has not been safely stored and a serious injury results.”
TJ Walker was able to obtain the handgun, take it to school, as well as take it to her father’s house where the shooting occurred. According to TJ’s witness statement, there was no lock on the case nor the gun itself and was loaded as well. Tanya Brewster was negligent in not knowing where the gun was located, and not having made sure it was properly locked.
Tanya Brewster owed a duty to her child to make sure that she knew where the gun was being stored as well as know that the gun was kept safe by use of a trigger lock and/or lock on the storage container. She also needed to make sure that the ammunition for the gun was stored in a separate place than where the gun was stored. Tanya breached that duty by not knowing where the gun was stored in the house or that it was kept safely from the ammunition or had a lock on it. This breach of duty was the proximate cause of TJ finding the gun, taking the gun to Scott Walker’s home, ultimately resulting in the shooting of Jesse Walker. The shooting of Jesse Walker permanently paralyzed him and he will incur medical costs the rest of his life which is dictated below.

Medical Expenses- The medical expenses incurred by Scott Walker through his son, Jesse’s injuries, have been itemized on the list below.
a. Emergency and Intensive Care Services------------------------------------ $ 9,400
b. Surgical Procedures----------------------------------------------------------- $14,400
c. Inpatient Hospital Services--------------------------------------------------- $11,000
d. Prescription Medication------------------------------------------------------ $ 350
e. Specialized Equipment------------------------------------------------------- $3,500
f. Physician Office Visit--------------------------------------------------------- $1,750
g. Physical Therapy-------------------------------------------------------------- $2,000
h. Estimated Annual Medical Expenses--------------------------------------- $15,000
i. Multiplied by estimated remaining life expectancy of 65 years--------- $975,000
TOTAL---------------------------------------------------------------------------$1,017,000

Jesse became permanently paralyzed as a result of the shooting. He will require specialized medical care for the rest of his life.

Proposed Settlement- The plaintiff is asking for a total of $1,017,000 in damages. According to the defendant’s violation of the Criminal Code Statutes, a jury is likely to award the full amount in damages. However, in the interests of a speedy trial and just end to the suit, the plaintiff is willing to settle for an immediate cash award of $500,000. This represents slightly under half of the anticipated recovery should this matter go to trial.
As counsel for the plaintiff, I urge you to take this settlement offer to your client in the spirit in which it is offered. I will look forward to your affirmative response.

_______________________
Jessica Thompson
Attorney at Law

Example Express Irrevocable Living Trust

DECLARATION OF TRUST

This declaration of trust made on August 12, 2008, by John Q. Public, city of Fort Collins, county of Larimer, State of Colorado hereinafter referred to as settlor.

Section One
Declaration of Trust

I, John Q. Public, as settlor, have assigned Acme Bank and Trust as trustee and I hereby declare that they hold in trust the securities in the amount of $1,000,000 given to the trustee by the me from the my stock in General Motors, and that Acme Bank and Trust will hold such securities, and all substitutions and additions, as the trust estate, for the use and benefit of my twins Bob and Sue Public hereinafter referred to as beneficiaries.

Section Two
Purpose of Trust

The trustee shall receive and collect the income, profits, interest, and dividends from the trust estate and, after first deducting all taxes, and other charges, shall pay the income to the beneficiaries for the amount of college tuition at an institution of their choice, or when the beneficiaries turn twenty-five years of age. At the age of twenty-five the beneficiaries will receive income from the trust annually for the rest of their natural lives.

Section Three
Termination of Trust

The trust will be an irrevocable trust and upon the creation of said trust shall be irrevocable and shall not be subject to amendment or modification. The trust will terminate either when funds run out or at the death of both beneficiaries with the remainder of the trust going to the AIDS Awareness Program charity.

Section Four
Disposition of Income and Principal

After paying the necessary expenses incurred in the management and investment of the trust estate, including compensation of trustee for its own services, the trustee will pay the net income of the trust and distribute the principal of the trust to the beneficiaries equally, in the amount of $9,000 a year annually based on their estimated years left of life.


Section Five
Perpetuities Savings Provision

The remainder of the trust at the death of both beneficiaries will go to AIDS Awareness charity. It will not go to the children of the beneficiaries or the beneficiaries children’s children. If it did so the trust would be void if any income of the trust went to anyone born after twenty-one years after the death of all currently living beneficiaries.

Section Six
Powers of Trustee

Trustee shall have the power to do all acts, institute all proceedings, and exercise all rights, powers, and privileges that an absolute owner of the trust property would have, subject always to the discharge of trustee’s fiduciary obligations.

In witness, I have executed this declaration of trust on the 12th day of August, 2008, above written.

_______________________
Signature of Settlor

_______________________
Signature of Witness

Wednesday, December 2, 2009

Legal Ethics

Ethics are defined as those standards by which conduct is measured. Because Paralegals are professionals they are held to a higher ethical standard than an average person. Professional ethics are governed by a set of written rules that establish the limits of permissible conduct in the professional’s contacts with others as well as the manner in which the professional advances their practice. The general ethics that every paralegal needs to know and work by include:
1. If it doesn’t feel right do not proceed until it does.
2. Read and understand the ethical rules.
3. Make sure everyone you come in contract with understands you are a paralegal and not an attorney.
4. Never tell anyone who is not working on a case anything about the case. Keep your confidences.
5. Know what legal advice is and do not be coaxed into giving it.
6. Never make contact with an opposing party in a legal dispute, without permission of your supervising attorney.
7. Disclose your inexperience when you do not know how to complete an assignment.
8. Do not sign anything unless you know it is accurate and that it is permissible for you to sign it.
9. Never pad your time sheets.
10. Know the rationalizations for unethical conduct.
a. It is always done.
b. The other side does it.
c. The cause of our client is just.
d. If I don’t do it I will jeopardize my job.
Also, as a general rule, the paralegal needs to make known their status with every person they have contact with, either on the phone or in person, that they are a paralegal or legal assistant and not an attorney. One of the strictest parts of the ethics field is the regulation of the unauthorized practice of law. Each state defines the unauthorized practice of law differently so it’s hard to write a clear definition. A common aspect that all definitions include is that when an individual violates a UPL statute it is a criminal offense.
The five things that paralegals absolutely can never do while working as a paralegal include:
1. A paralegal cannot accept cases from potential clients.
2. A paralegal cannot set fees.
3. A paralegal cannot give direct legal advice to clients.
4. A paralegal cannot negotiate legal matters on behalf of clients.
5. A paralegal cannot represent clients in court settings. (There are exceptions to this however)
I highly suggest reading the model rules of professional conduct that the American Bar Association has set forth regarding the ethics of paralegals within their scope of employment.

Contract Law Overview

What is a contract?

A contract is a legally enforceable agreement that meets certain specified legal requirements between two ore more parties in which each party agrees to give and receive something of legal value. It is distinguished from a gift in that each party gives and receives something of legal value.

Requirements for a Contract to Exist-

In determining whether a contractual relationship exists there must be all six of the requisite elements present in order to make a valid contract.

These include Offer, Acceptance, Consideration, Legality of the subject matter, Contractual capacity, and Contractual intent.

Offer:

An offer is a proposal by one party to another manifesting an intention to enter into a valid contract. Every valid contractual relationship starts with an offer.

Acceptance:

The party to whom the offer is made must accept the proposal to create a contract.

Consideration:

Consideration is the subject matter of the contract. It is the thing for which the parties have bargained. Consideration does not always mean the “price.” Although money may be part of the bargain, it is not always the complete bargain. The crucial aspect of consideration is that each party both gives and receives consideration (something of value).

Legality of the Subject Matter:

A contract can only be formed for a legal purpose and must fulfill any statutory regulations with respect to form.

Contractual Capacity :

The contractual capacity of a contract refers to the ability of a person to enter into a valid contract. This mostly deals with the age of the party and the person’s mental condition.

Contractual Intent:

If it can be shown that the parties did not subjectively intend to form a contractual relationship, there will be no contract. To determine intent not only the words of the contract itself but also the surrounding circumstances must be analyzed to determine whether a contract exists.

Method of Creation: Express, Implied, or Quasi-contracts

A contract is formed either by the words or conduct of the parties and is classified accordingly.

Express-

An express contract is one in which the mutual assent of the parties is manifested in words, either orally or in writing.

Implied-

An implied contract is one in which the promises of the parties are inferred from their actions or conduct as opposed to specific words being used.

Quasi-contract-

A Quasi-contract is a contract that looks like a valid contract but is not a contract because one of the requisite elements is missing. In the interests of fairness, the law has determined that a party should be entitled to some remedy if injured by such a situation.

Type of Obligation: Bilateral or Unilateral

All contracts are either bilateral or unilateral. The type of obligation of a contract refers to the kind of duty imposed on the parties to the contract.

Bilateral-

A bilateral contract is a promise for a promise. With a bilateral contract, the parties are expecting a mutual exchange of promises, with the performance to be carried out only after the promises have been given.

Unilateral-

A unilateral contract is a promise for an act. With a unilateral contract, the contract is only created when one side has performed a requested act. Instead of an exchange of mutual promises a unilateral contract is an exchange of a promise for an act.

To determine if a contract is bilateral or unilateral one must determine the intent and the specified wishes of the parties involved. Courts generally go along with what the parties could most reasonably expect under the circumstances because that would indicate the true meeting of the parties’ minds with respect to the manner of acceptance sought.

Type of Form: Formal and Informal

Formal-

A formal contract is a contract that was written and signed under seal, historically. The seal was used as the consideration for the agreement.

Informal-

An informal contract is any contract that is non-formal. Informal contracts are agreements that meet all the requirements of valid contracts.

Timing: Executory and Executed Contracts

Timing is one of the most critical questions for the parties to a contract. The timing element indicates when the parties have enforceable rights and obligations.

Executory-

An executory contract is a contract in which one or both of the parties still have obligations to perform.

Executed-

An executed contract is complete and final with respect to all of its terms and conditions.

Enforceability: Valid, Void, Voidable and Unenforceable

Valid-

A valid contract is an enforceable contract that meets all of the six requirements. There is a proper offer and acceptance, a legally valid consideration is given and received, the parties have the legal capacity to enter into a contract, the contract is for a legal purpose and the parties genuinely intend to contract. Either party can bring a lawsuit for the enforcement of a valid contract.

Void-

A void contract is a circumstance in which there is no contract and therefore the law does not entitle the parties to any legal remedy.

Voidable-

In a voidable contract a party to the agreement has the option of avoiding their legal obligation without breaching the contract, but if they wished, could affirm their obligation and thereby be contractually bound. A contract entered into by a minor is an example of a voidable contract.

Unenforceable-

An unenforceable contract is a valid contract for which the law offers no remedy if its obligations are not fulfilled.

Tuesday, December 1, 2009

Substantive vs. Procedural Law

All law is either substantive or procedural. Substantive law is the law setting forth the rights and duties of individuals. For every right, there is a corresponding duty. Procedural law is the law setting forth the rules that must be followed when working within the legal system. The case law created by the courts can be either substantive or procedural law. Contract law, is a type of substantive law which defines what parties must do to create a contract and what their rights are if the party with whom they contracted fails to honor their obligations under the contract. The primary source of procedural law in the federal courts is court rules. Judges create and adopt their own rules for the conduct of cases in their courts. Each court similarly also has their own sets of rules called rules of civil procedure. Failure to comply with procedural law can result in a case being dismissed or some other consequence. Although paralegals must learn a certain amount of substantive law, they must master procedural law.
All substantive law is either public or private or criminal or civil. Public law consists of rules which involve the relationship of government to society as a whole. Constitutional law, administrative law, and criminal law are examples of public law. Private law consists of rules which involve the relationship of private individuals to each other. Most civil law is private law, including tort law, contract law, and most property law.
Criminal law consists of rules designed to protect society by providing minimum standards of conduct which must be observed by each of its members. Civil law consists of legal rules that focus on the rights and duties of individuals in relation to each other.

Administrative Law Overview

What is Administrative Law?
Administrative law is the law concerning the organization and operation of administrative agencies and the relations of administrative agencies with the legislature, the executive, the judiciary, and the public.
Administrative law has three functions:
1) Statutes endowing agencies with powers and establishing rules of substantive law relating to those powers.
2) Body of agency-made law, consisting of administrative rules, regulations, reports or opinions containing findings of fact, and orders.
3) Legal principles governing the acts of public agents when those acts conflict with private rights.
Functions of Administrative Agencies
Legislative: Writing rules and regulations
(Agencies write the rules and regulations that make up administrative law)
Executive: Seeing that rules and regulations are carried out
(Agencies ensure that the administrative regulations created by the agency and the statutes created by the legislature are carried out)
Judicial: Interpreting regulations and statutes
(Agencies interpret the regulations and statutes governing the agency)
Administrative Agencies Rule Making Power-
Administrative agencies are created when congress or a state legislature pass legislation that broadly defines the powers of that agency. This is called an Enabling Statute. Based on the enabling statute, that agency then has the authority to create rules and regulations.
Administrative agencies must conform to various requirements mandated by the constitution and by statute when creating these rules. This is because of the Administrative Procedure Act (APA).
The APA requires agencies to:
1) Keep the public currently informed of their organization, procedures, and rules.
2) Provide for public participation in the rule-making process.
3) Prescribe uniform standards for the conduct of formal rule-making.
Administrative Law Judges (ALJ)-
An administrative law judge is a judge who resolves disputes between individuals and agencies regarding the application or interpretation of rules and regulations.
Decisions made by administrative law judges include:
Establishment of rates for gas, electrical, communication and transportation
Radio and television broadcasting licensing
Compliance with federal standards relating to interstate trade, labor relations, advertising, consumer products, and food and drugs
Transportation and industry health and safety regulation
Adjudication of claims relating to Social Security benefits, workers’ compensation, and international trade.
Research of Administrative Law-
Research in Administrative law requires the familiarity with the Code of Federal Regulations (CFR) and the Federal Register. These two should be used simultaneously to determine the relevant agency ruling or regulation, to update the rule or to determine whether the rule remains effective.
The CFR is a compilation of rules published in the Federal Register by the executive departments and agencies of the federal government.
The Federal Register provides a chronological publication of agency rules and regulations.
The Federal Regulatory Directory is a source for basic information concerning administrative agencies. The directory presents the information needed to deal with the multitude of federal regulatory agencies.
Paralegals Role-
A paralegal working in a law firm may be responsible for analyzing administrative regulations and helping determine their applicability to clients’ activities.
A paralegal in a corporate department for a regulated industry, like banking, may be responsible for helping attorneys review applicable administrative regulations and evaluate corporate compliance with those regulations.
A paralegal working for an administrative agency may be responsible for drafting proposed rules, gathering facts to determine whether an individual or entity has complied with agency rules, or analyzing surveys to assess whether a new rule is appropriate.

Monday, November 30, 2009

Legal Research

Legal researchis one of the aspects of law that a paralegal absolutely needs to be incredibly proficient in. It is also one of those things that takes time and practice to fully master. It also helps to enjoy performing legal research. It is very important to be able to find the law more than it is to know the law. Proficiency in legal research is the foundation for a successful career as a paralegal. If you cannot perform legal research tasks accurately and efficiently, you will not be a successful paralegal.
There are basically two ways to perform legal research. The first one was the initial way to perform legal research and that was to use the law library and look through books of cases written on paper. The other, and the more technologically savvy and modern is to perform legal research online using Westlaw, Loislaw or some other program. This is the choice of almost every law firm and is the quickest way to perform your research.
To be able to perform legal research the paralegal must know the sources of law in the United States. The first is previous cases or common law. Common law is defined as that body of law that develops and derives through judicial decisions as distinguished from statutes or constitution by Blacks Law Dictionary. Judges follow and use case law to determine current disputes. The concept is called stare decisis pronounced star-ee diss-eye-sis. The doctrine of stare decisis means that once courts have announced a principle of law, they will follow it in the future in cases that are substantially similar.
The next source of law is contained in constitutions and statutes. A constitution sets forth the fundamental law for a nation or a state. It is the document that sets forth the principles relating to organization and regulation of a federal or state government. In the United States it is considered the supreme law of the land. A statute, or law, is a law passed by a legislative body.
A third source of law is administrative regulations. Administrative agencies include Department of Justice, Federal Bureau of Investigation, FDA, OSHA and the like. The agencies perform two functions. They act as a legislature by making rules and regulations that bind us and they act as a judiciary by hearing disputes and rendering decisions.
The fourth source of law in the United States is the Executive Branch. The executive branch creates laws in three ways. The branch creates treaties with the advice and consent of the Senate. Secondly, the president can issue executive orders to regulate and direct federal agencies and officials. Thirdly, the executive branch exerts influence on the law through policies on enforcing laws.
These are the sources of law in the United States legal system. From these sources comes every rule or law that must be abided by. Out of all the great multitude of legal authorities, they can be classified as either primary authority or secondary authority.
Primary authorities are official pronouncements of the law by the executive branch, legislative branch, and judicial branch. The key primary authorities are cases, constitutions, statutes and administrative regulations. Primary sources are those created by a governmental entity. If a legal authority does not fall within one of the previously mentioned categories, it is a secondary authority. Secondary authorities consist of legal encyclopedias, law review articles, books or other treatises dealing with legal issues, law dictionaries, annotations about the law, or expert opinions. The secondary authorities are not the law but rather provide comment, discussion, and explanation of the primary authorities and help you locate the primary authorities. Keep in mind that the purpose of secondary authorities is to explain the primary authorities and locate the primary authorities that must be followed by the court.

Saturday, November 28, 2009

Example Model Will

Last Will and Testament
Of
Sku B. Due

I, Sku B. Due, city of Dalmatian, State of Colorado, being of sound mind and body, hereby make this my Last Will and Testament revoking all former wills and codicils made at an earlier time.

ARTICLE I

I direct that all the funeral and burial arrangements be taken care of by my personal representative.

ARTICLE II

I give and devise my house located at 123 Doggy Lane, Dalmatian, Colorado 80350 to my wife Pat S. Due. I give my 2005 Harley Davidson Road King to my son, Over Due. To be fair, I want each of my daughters, Morning and Sunshine Due, to receive $18,500 each because that is what the Harley Davidson is worth. My coin collection is to be re-appraised at the time of my death and the worth is to be added to my augmented estate. I direct that a trust be created at the moment of my death out of which is to be paid the college tuition of my children.

ARTICLE III

I direct that all the rest, residue and remainder of my estate, real, personal and mixed, or in which I may have any interest to which I may be entitled, shall be given to my wife Pat S. Due. If my wife does not survive me, the remainder of my estate is to be divided up equally and given to my children, Over, Sunshine and Morning and any after born children.

ARTIVLE IV

I hereby nominate and appoint my wife, Pat S. Due to be Personal Representative of this will. If she shall fail to qualify or cease to serve, I nominate and appoint my brother, John Q. Due to serve as Personal Representative in her place.

ARTICLE V

I direct that any Personal Representative be exempt from giving surety on his or her official bond. The word personal representative shall mean any administrator of this will.

____________ ___________ Page 1 of 3
(Initial) (Date)

ARTICLE VI

I appoint my wife, Pat S. Due, as guardian of the persons and property of my minor children, Over Due and Sunshine Due. No guardian appointed in this will or any codicil need furnish any surety on any official bond.


ARTICLE VII

All inheritance, estate, and other taxes in the nature of death taxes, whether state or federal, and any debt that needs to be paid, with respect to any property passing under this will shall be paid by my Personal Representative out of the residue of my estate, and, in addition, my Personal Representative may in his or her discretion pay from my residue all or any part of such taxes attributable to property not passing under this Will.

ARTICLE VIII

Every heir, legatee, devisee, or beneficiary under this will who shall contest in any court any provision of this instrument shall not be entitled to any devises, legacies, or benefits under this will or any codicil to this will or any trust created by this will.

ARTICLE IX

I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person who may become my heir by reason of marriage or otherwise after the date of the execution of this will.

ARTICLE X

I, the undersigned testator, do hereby declare that I sign and execute this instrument as my last will, that I sign it willingly in the presence of each of said witnesses, and that I execute it as my free and voluntary act for the purposes herein expressed, this _____ day of _________, 2008.

________________________
Sku B. Due






___________ ___________ Page 2 of 3
(Initial) (Date)

ARTICLE XI

I, Sku B. Due, the testator, sign my name to this instrument this _______day of ________, 2008, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly, that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
______________________
Sku B. Due

ARTICLE XII

We, the undersigned witnesses, each do hereby declare in the presence of the aforesaid testator that the testator signed and executed this instrument as his last will in the presence of each of us, that he signed it willingly, that each of us hereby signs this will as witness in the presence of the testator, and that to the best of our knowledge the testator is eighteen years of age or over, of sound mind, and under no constraint or undue influence.

__________________ __________________
(Witness) (Witness)

__________________ __________________
(Witness) (Witness)

Subscribed, sworn to, and acknowledged before me by the said testator and witnesses this _______day of _________, 2008.

______________________
Notary Public
My commission expires:











___________ __________ Page 3 of 3
(Initial) (Date)

Wednesday, November 25, 2009

Example Durable Power of Attorney

I, Condoleezza Rice, a resident of Boulder, CO; designate George W. Bush, presently residing at 1600 Pennsylvania Ave. Washington, D.C., as my attorney in fact, herein referred to as “Agent,” on the following terms and conditions:
Authority to Act. The Agent is authorized to act for me under this Power of Attorney and shall exercise all powers in my best interests and for my welfare. This power of attorney will continue to be effective even though I become disabled, incapacitated, or incompetent.
Powers of Agent. The Agent shall have the full power and authority to manage and conduct all of my affairs, and to exercise my legal rights and powers, including those rights and powers that I may acquire in the future, including the following:
Collect and Manage. To collect, hold, maintain, improve, invest, lease, or otherwise manage any or all of my real or personal property or any interest therein;
Buy and Sell. To purchase, sell, mortgage, grant options, or otherwise deal in any way in any real property or personal property, tangible or intangible, or any interest therein, upon such terms as the Agent considers proper, including the power to buy United States Treasury Bonds that may be redeemed at par to pay federal estate tax and to sell or transfer Treasury securities;
Borrow. To borrow money, to execute promissory notes therefore, and to secure any obligation by mortgage or pledge.
Business and Banking. To conduct and participate in any kind of lawful business of any nature or kind, including the right to sign partnership agreements, continue, reorganize, merge, consolidate, recapitalize, close, liquidate, sell, or dissolve any business and to vote stock, including the exercise of any stock options and the carrying out of any buy sell agreement; to receive and endorse checks and other negotiable paper, deposit and withdraw funds (by check or withdrawal slips) that I now have on deposit or to which I may be entitled in the future in or from any bank, savings and loan, or other institution;
Tax Returns and Reports. To prepare, sign, and file separate or joint income, gift, and other tax returns and other governmental reports and documents; to consent to any gift; to file any claim for tax refund; and to represent me in all matters before the Internal Revenue Service;
Safe Deposit Boxes. To have access to any safety deposit box registered in my name alone or jointly with others, and to remove any property or papers located therein;
Proxy Rights. To act as my agent or proxy for any stocks, bonds, shares, or other investments, rights, or interests I may now or hereafter hold;
Legal and Administrative Proceedings. To engage in any administrative or legal proceedings or lawsuits in connection with any matter herein;
Transfers in Trust. To transfer any interest I may have in property, whether real or personal, tangible or intangible, to the trustee of any trust that I have created for my benefit;
Delegation of Authority. To engage and dismiss agents, counsel, and employees, in connection with any matter, upon such terms as my agent determines;
Restrictions on Agent’s Powers. Regardless of the above statements, my agent (1) cannot execute a will, a codicil, or any will substitute on my behalf; (2) cannot change the beneficiary on any life insurance policy that I own; (3) cannot make gifts on my behalf; and (4) may not exercise any powers that would cause assets of mine to be considered taxable to my agent or to my agent’s estate for purposes of any income, estate, or inheritance tax, and (5) cannot contravene any medical power of attorney I have executed whether prior or subsequent to the execution of this Power of Attorney.
Durability. This durable Power of Attorney shall not be affected by subsequent disability or incapacity of the principal.
Reliance by Third Parties. Third parties may rely upon the representations of the Agent as to all matters regarding powers granted to the Agent. No person who acts in reliance on the representations of the Agent or the authority granted under this Power of Attorney shall incur any liability to me or to my estate for permitting the Agent to exercise any power prior to actual knowledge that the Power of Attorney has been revoked or terminated by operation of law or otherwise.
Indemnification of Agent. No agent named or substituted in this power shall incur any liability to me for acting or refraining from acting under this power, except for such agent’s own misconduct or negligence.
Original Counterparts. Photocopies of this signed Power of Attorney shall be treated as original counterparts.
Revocation. I hereby revoke any previous Power of Attorney that I may have given to deal with my property and affairs as set forth herein.
Compensation. The Agent shall be reimbursed for reasonable expenses incurred while acting as Agent and may receive reasonable compensation for acting as Agent.
Substitute Agent. If George W. Bush is, at any time, unable or unwilling to act, I then appoint John McCain, presently residing at 241 Russell Senate Office Building, Washington, D.C., as my Agent.

Dated: August 14, 2008
_______________________________Condoleezza Rice
Signed in the presence of:
_______________________________Witness
_______________________________Witness
Subscribed and sworn to before me on [DATE].
____________________________________Notary Public, [COUNTY, STATE]My commission expires ______________.

Tuesday, November 24, 2009

Example Health Care Proxy

(1) Health Care Agent
I, Robert Fielding, hereby appoint: Bob Oberg, of 1109 Mets Ct., Santee, Ca 90210, (619) 562-4002, as my “health care proxy,” to make any and all health care decisions for me, except to the extent that I state otherwise or that I specify in a Living Will document. This proxy shall take effect only when and if I become unable to make my own health care decisions and have no reasonable hope of recovery. The judgment of my inability to make health care decisions is as agreed upon by the attending physician involved in my care, or by other means or additional health care professionals if required by my state law.

(2) Alternate Health Care Agent
If the person I appoint is unable, unwilling or unavailable to act as my health care agent, or has died, or has divorced from me, I hereby appoint: Julio Aguilar, 3525 Princess Ct., Santee, CA, 90210, (619) 562-8399, as my health care agent to make any and all health care decisions for me, except to the extent that I state otherwise.

(3) Expiration and Limitations
Unless I revoke it this proxy shall remain in effect indefinitely.

(4) General Instructions
I direct my health care agent to make health care decisions according to my wishes and limitations, as he or she knows. I have communicated with my agent my wishes regarding artificial nutrition and hydration and give my agent full authority to make decisions regarding artificial nutrition and hydration.

(5) Identification
Name: Robert Fielding
Signature: _________________________________________________
Date: _______________________
Address: 8399 Pebble Beach Santee, CA 90210

(6) Organ and Tissue Donation
I hereby make an anatomical gift, to be effective upon my death of any needed organs, tissues, or parts for the purposes of transplantation only.
Your Signature: _________________________________________________
Date: _____________________

(7) Effect of Copy: A copy of this document has the same effect as the original.

(8) Legal Variations: If, in my state, any instructions on this form cannot be legally followed, all remaining legally valid instructions should still be followed.

(9) Statement by Witnesses
I declare that the person who signed this document is personally known to me and appears to be of sound mind and acting of his or her own free will. He or she signed (or asked another to sign for him or her) this document in my presence. I am not named above as a health care agent for that person. If the person who signed this document resides outside of New York, I also declare that: I am not the person's health care provider, nor an employee thereof; I am not financially responsible for the person's health care; I am not an employee of any insurance provider for the person; I am not a creditor to the person nor entitled to any portion of the person's estate by way of will or other legal document; I am not related by blood, adoption, or marriage to the person.

Date: __________________ Date: ____________________
Witness:________________ Witness:__________________

(10) Notarization:
I, _________________________, a licensed Notary Public, hereby certify that the principal named above appeared before me and swore to me and to the witnesses in my presence that this instrument is an advance directive document, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it. I further certify that __________________and___________________, witnesses, appeared before me and swore that they witnessed Robert Fielding sign the attached health care power of attorney, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing, they were not related within the third degree to him or his spouse. I further certify that I am satisfied as to the genuineness and due execution of the instrument.
This the _____ day of _____________,20________.
County of_______________________________
State of _______________________________
Notary Public ________________________________________________
My Commission Expires: ______________________________________________

Monday, November 23, 2009

Example Separation Agreement

This was an assignment in school while obtaining my paralegal certificate. The names and facts herein are falsified and were created for the sole purpose of completing this assignment.


This agreement made this 27th day of May, 2008, between Karen Nicole Stevens, herein referred to as Wife and Daniel David Stevens, herein referred to as Husband.

The parties were married on September 1, 1992 in Boulder, Colorado. There are two children from this marriage named Jason Alexander Stevens born on July 4, 1995 and Jordan Michael Stevens born April 1, 1998.

Differences have arisen between the Husband and Wife as the result of which they are now living separate and apart. Husband and Wife have entered into this agreement freely, with the advice of counsel, and acknowledge the provisions are fair relating to their property rights, custody of their children as well as support to the spouse with more parenting time.

The Husband and Wife have made complete, fair and accurate disclosure to each other on all financial matters reflected in this agreement. Proof of this shall be attached to this agreement by means of financial affidavits.Neither party shall in any way molest, disturb or trouble the other or interfere with the peace and comfort of the other or compel or seek to compel the other to associate, cohabit or dwell with him or her by any action or proceeding for restoration of conjugal rights or by any means whatsoever. Neither party shall directly or indirectly make statements to each other, or any other persons, which are derogatory of the other party.

Custody of the children will be shared but will primarily reside with the Wife. Both spouses will have equal decision-making rights. Husband will have custody every other weekend but may not have the children near Husband’s girlfriend because this would not be in the best interest of the children and may be detrimental to their relationships with their father and mother. The Husband and Wife must adhere to the parenting plan that is attached to this agreement. The Husband may come during the week and visit his children but may not bring his girlfriend nor take the children home with him at the end of the visit. Also if the Wife so desires she may visit the children on the weekend but must be agreed with by the Husband because this is the only times the Husband has to see the children.

The Husband must pay the wife in child support for the time the children are at home all week. Child support in the amount of $1130 per month shall be given to the Wife for the support and maintenance of the Husband and Wife’s two children. This support was based and calculated on the financial information of both spouses found in the financial affidavits attached to this agreement. This support is to terminate when the children reach the age of 18 years. The support payments are to begin when this agreement becomes effective. The payments are to be halved between the two times the Father gets paid in the month. In other words, $565 will be paid to the Mother from the first check the Father receives in the month and $565 will be paid to the Mother from the second check the Father receives in the month.
The property at 4135 Columbine Rd. Fort Collins, CO 80525 is to be given the full deed to the Wife by the Husband. The Husband chose to leave the home and dissolve the marriage and it is in the best interest of the children not to have to move homes or schools. The Wife has an obligation to refinance the home loan within six months to get the Husband’s name off the loan. The Husband must pay $702.50 each month for the home loan until the Wife has refinanced the home loan. This is approximately half of the cost of the monthly payment for the current home loan.

The $10,000 the parties owe the petitioner’s parents for their home is to be added to the refinanced home loan that the petitioner receives. This money will be paid to the parents upon distribution of the refinanced loan.

The Husband and Wife are responsible for paying half of all the credit card debt that has accrued from their marriage. They owe approximately $7900 of which Husband and Wife respectively owe $3950. This is to be paid at the same rate that the parties paid while still married but split in half between the parties.

The Husband is entitled to the bedroom set the parties currently own. The Wife is entitled to the antique bedroom set that she inherited from her Aunt Tillie. The Husband will retain his coin collection free from any equity to pay the Wife. The rest of the personal property will be divided equitable amongst the parties after the signing of this document.



_______________________ __________
Petitioner Date

_______________________ __________
Respondent Date

_______________________ ___________
Witness Date

_______________________ ___________
Witness Date

Real Property Law

What is real property? Property is classified into two classifications; real and personal. Real property relates to land and those things attached including homes, office buildings or trees. Personal property (chattels) may include living objects like animals or inanimate objects such as a stereo. Property is either tangible or intangible. Tangible property is property that has a physical substance like a car. Intangible property is property that represents a set of rights or control or ownership of something of value.
Real property is more than just earth and the things that are attached to it. Real property includes everything beneath the surface of the earth and in the air space above. So an owner of real property usually owns all the minerals beneath the surface of the land provided any previous owner has no claim in those rights.
Trees, plants, and other things that grow may be considered real property. Annual crops produced by labor are considered personal property. An owner of real property has certain ownership rights to use water that is located on the surface or beneath the surface of the land. The right to the beneficial use of the water is governed by one of two areas of water law known as riparian rights and appropriation. Riparian rights are rights of the owners of lands adjoining streams, rivers, and lakes relating to the water and its use. An owner of riparian land has the right to use the water equally with other owners of riparian lands. Because of this a riparian owner has no right to interfere with the natural flow of water in the river, stream or lake. Appropriation on the other hand is a doctrine stating that water belongs to the person who first makes beneficial use of it. In this theory of water rights, it is required that a landowner show valid appropriation. The elements of valid appropriation are intent to apply water to a beneficial use, an actual diversion of water from a natural source, and application of the water to a beneficial use within a reasonable time.
What are the methods of acquiring ownership to real property? The main methods of acquiring ownership include inheritance, devise, sale, adverse possession or gift. Inheritance and devise are two ownership transfers that occur when the previous owner dies. Inheritance is the passage of title and ownership of real property from one who dies intestate (without a will) to people whom the law designates. To obtain ownership of real property through devise means that ownership transfers through a last will and testament. A will is a legal document prepared during the property owner’s lifetime that indicates where and how the owner’s property is to be dispersed at the owner’s death. The conveyance of real property in a will is referred to as a devise.
Ownership to real property can also be obtained by gift. A gift upon execution is irrevocable. The promise to make a gift is revocable. Real property can be obtained by buying the property. This is the transaction that involves most real estate paralegals and attorneys. Adverse possession is another method of obtaining ownership to real property. Adverse possession is a method of acquiring ownership to real property by possession for a statutory time period. The possessor must possess the property for a period of time ranging from seven to twenty years. The possession must be adverse, which means without the consent of the true owner. In addition to the possession being adverse, it must be public, continuous, peaceful, exclusive, and uninterrupted.

Friday, November 20, 2009

Real Estate Paralegal

The paralegal participates in every aspect of a real estate law firm. The skills used by paralegals in a real estate law firm include preparation of legal documents, examination and review of real property titles, preparation of land descriptions, preparation and review of leases, and fact-finding investigation required to represent purchasers, sellers, and lenders in connection with real estate transactions. Real estate paralegals are employed in private law firms, corporate legal departments, and government agencies. Real estate is a “bread-and-butter” section of many law firms, from sole practitioners to the largest national firms. Most paralegals employed by law firms or corporations are used to assist in the transfer of ownership to real property, the development and leasing of real property, and the closing of loans secured by real property.
A paralegal may prepare a real estate contract. The preparation of a real estate contract may be considered the practice of law in some states, so the paralegal would need to work under the supervision of an attorney. The attorney would do the final review and approval of the contract and would be responsible to the client for its content. The preparation of a real estate contract must be done with considerable care. It is important that all the language in the contract be drafted clearly.
The real estate paralegal must develop organizational skills and learn to work in a timely fashion. They must also never neglect the personal part of the practice of law. It’s important to get to know the clients and various styles of conducting business and to work within those parameters. If there’s one thing people care most about it’s their money. When you’re dealing with real estate, you’re dealing with a lot of money. Clients take this very seriously as should you. Be Positive. Be Professional.

How to Write a Motion

Review the Rules of Civil Procedure which govern the filing of motions for the state you’re in.
What are the requirements that have to be met?
Find or Create a flexible caption which is the first thing on the motion.
Name your motion
Opening paragraph
The Petitioner (or Plaintiff, or Defendant, or Respondent) appear, by and through (his or her) attorney, (insert attorney’s name) and respectfully requests that this court enter its order (state what you want the court to do)
List what you want, and why in numbered paragraphs. Remember to cite law. If you don’t, your motion can be stricken or denied. Some motions will require a brief in support of the motion and/or an affidavit.
Conclusory paragraph.
Wherefore, the Petitioner requests that this court (state again what you want the court to do). The Petitioner further requests that the court grant to (him or her) such other and further relief as it finds to be just and proper under the circumstances.
Date.
Respectfully Submitted and signature block
Certificate of Service

Certificate of Service
I hereby certify that on the ___day of ________ 2009, I served a true and correct copy of the foregoing (motion-use its full name) upon (who-counsel for the Defendant, for example) by (doing what? E.g. placing the same in the U.S. mail, first class postage prepaid, addressed as follows-or other method as provided in the rules)

Rick Jennings
Attorney at Law
666 Devil’s Way
Fort Collins, CO 80521

Proposed Order

Every motion needs to have a proposed order submitted with the motion. Remember the court is not your secretary and will not prepare the order. The lawyer (which means paralegal) who draft the motion writes the proposed order.
Exception: if there will be an actual hearing on the motion, then no order has to be submitted when the motion is filed; after the hearing, the prevailing party will be instructed to draft the order within a certain number of days.

Brief in support of Defendant’s Motion to ______

A brief in support of is the portion of the motion in which legal arguments are presented. It is similar to a legal memo, but rather than being neutral is argumentative in favor of your client’s position. In the Brief In Support of, begin with a paragraph again asking the court to do something. For Example:

The Defendant, by and through his attorney, Yogi Bear, respectfully submits the following Brief in Support of _______ which requests the court (do something).

Then continue with the argument. Cite applicable cases and statutes and explain why they pertain to our case and why the judge should rule in our favor.

End with another request to the court

Dated and Signed

Certificate of Service






As an example I have placed one of my motions for complaint that I completed during my training to get my paralegal certificate. The facts and parties in this case were artificial and do not exist.

COURT USE ONLY Small Claims County Court District Court
Probate Court Juvenile Court Water Court
Larimer County, Colorado
Court Address: 201 LaPorte Ave, Larimer County, Fort Collins, Colorado

Patty Plaintiff,

Plaintiff,

v.

Dennis Dimwit,

Defendant
Rick Jennings
1609 Oakridge Drive
Fort Collins, CO 80525
Phone Number: (307) 223-2669
FAX Number: (970) 223-2796
E-mail: rickj@yahoo.com
Atty. Reg. #: 22344













Case Number:



Div.: Ctrm:

Complaint for Damages


The Plaintiff appears, by and through her attorney, Rick Jennings, and respectfully submits this complaint against the defendant, Dennis Dimwit.

I. JURISDICTIONAL ALLEGATIONS

This Court has jurisdiction over the parties and the subject matter of this action.

1. The Plaintiff, Patti Plaintiff, resides at 234 Cowcrapsmell Street, Greeley, Weld County, Colorado.

2. The Defendant, Dennis Dimwit, resides at 567 Harmony Ave, Fort Collins, Larimer County, Colorado.

3. Venue for this complaint is correct pursuant to C.R.C.P. 98(c)(1)




II. GENERAL ALLEGATIONS

On June 30, 2007, at approximately 9:00 p.m., Patty Plaintiff was crossing Broadway Street at its intersection with Iowa Street in Denver, CO.

She had just stopped at the 7-11 Store at the northwest intersection of those two streets to buy some bottled water and some breath mints.

Her destination was Herman’s Hideaway, which is located across the street from the 7-11 at 1540 S. Broadway, Denver, CO.

Dick and Chicks, a popular rock-n-roll band from the 80’s was having a reunion concert and Patty was scheduled to meet a girlfriend there.

As Patty crossed the street, within the crosswalk and with the light, Dennis Dimwit was driving his 2006 Lexus sedan southbound on Broadway.

The light facing Dennis was green and when he was approximately 150 ft. north of the intersection the light turned yellow.

Dennis then sped up to pass the intersection before the light turned red.
Patty stepped into the crosswalk once the light indicated she could go and was crossing the street, carrying her water bottle, chewing her breath mints, when Dennis hit her going approximately 35 m.p.h.

Patty was tossed approximately 20 feet into the intersection and when she landed, she had broken her right leg at the femur.

She was taken to University Hospital in Denver by ambulance where she was treated in the emergency room.

The medical expenses, including follow-up medical care were $6,000. Patty missed three days of work which caused $500 in wage loss.

III. FIRST CLAIM FOR RELIEF – NEGLIGENCE

Plaintiff incorporates paragraphs 1 through 11 as if fully set forth herein.

Mr. Dimwit owed a duty to Ms. Plaintiff and the general public to drive safely and obey all traffic laws.

Mr. Dimwit breached that duty when he sped up in order to get through the light before it turned red.
This action caused Mr. Dimwit to run the light while Ms. Plaintiff was in the crosswalk and strike her with his vehicle.

Patty Plaintiff received a broken leg and a trip to the hospital resulting in the amount of $6,000. Patty also missed three days of work having $500 in lost wages. General damages in the amount of $18,000 are requested.

Mr. Dimwit is liable to Ms. Plaintiff for the injuries and damages described.

III. SECOND CLAIM FOR RELIEF – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

Plaintiff incorporates paragraphs 1 through 17 as if fully set forth herein.

Mr. Dimwits’ acted with negligent conduct when he sped up and struck Ms. Plaintiff.

Ms. Plaintiff experienced pain and suffering as a result of the accident.

Mr. Dimwits’ actions were the cause of Ms. Plaintiff’s emotional distress.

Patty Plaintiff incurred hospital bills worth $6,000. She also missed three days of work having $500 in lost wages. General damages in the amount of $18,000 are requested.

Mr. Dimwit is liable to Ms. Plaintiff for the injuries and damages described above.

WHEREFORE Plaintiff requests that this court enter its judgment against Dennis dimwit in an amount to be determined at trial. Plaintiff further requests that this court grant to her such other and further relief, including but not limited to interest from the date of the cause of action accrued pursuant to statute and costs, including expert witness and attorney’s fees, as the court finds to be just and proper under the circumstances.

PLAINTIFF DEMANDS A TRIAL TO A JURY OF SIX.

Dated:__________ PATTY PLAINTIFF, PLAINTIFF

_________________________
Rick Jennings, #22344
Attorney at Law
1609 Oakridge Drive
Fort Collins, CO 80525

Plaintiff’s address:
234 Cowcrapsmell Street
Greeley, CO

Verification

State of Colorado )
) ss.
County of Larimer )

The undersigned Plaintiff, having been first duly sworn upon her oath, deposes and states that hse is the Plaintiff in the above-referenced action, that she has reviewed the foregoing Complaint, and that the statements made therein are true and correct to the best of her knowledge, information, and belief.

_______________________
Patty Plaintiff, Plaintiff

Subscribed and sworn to me before this _____day of _____20___, by Patty Plaintiff.
Witness my hand and official seal. My commission expires:


______________________
Notary Public
Address: 1609 Oakridge Drive
Fort Collins, Co 80525

Thursday, November 19, 2009

The Electoral College

The Electoral College is a mechanism for the indirect election of public officials as defined by Webster’s Dictionary. In the United States it’s used for the purpose of electing the President and Vice President of the United States. It’s made up of a 538-member College and is created with each state having as many electors as it has representatives and senators in the national legislature, plus 3 for the District of Columbia. To be elected, a candidate must obtain an absolute majority in the Electoral College, currently 270. If no candidate gains an absolute majority the US House of Representatives makes the choice, with the delegation from each state having one vote.
Controversy has surrounded this institution for centuries. On the one hand, there are several factors that suggest the Electoral College should be maintained. For one, opponents claim that the college is not a good idea due to the fact that the president can be elected without getting the popular vote. This is completely untrue seeing as there is no popular vote to obtain. The presidency is determined by 51 separate popular elections, each of which is held in each state. The state's electors then go out and vote based on the results of this election. It logically follows that the presidency is determined by 51 popular votes, making the president determined by a "federal" popular vote. However, what opponents are attempting to say is that the presidency should be determined by a "national" popular vote. First and foremost, nowhere in the Constitution does it say that a federal popular vote is not a popular vote or that a popular vote must be national. What the opponents are proposing is to eradicate the states from the election process and essentially decrease state power in the executive branch and federal government. This would destroy the federal principle, which is the delicate balance of power between the federal government and the states. Additionally, the Electoral College gives a voice to human minorities. Opponents of the electoral system claim that the Electoral College fails in this regard because there has never been a female president, an African-American president, until today, or a Hispanic president. This is an unjust assault. The Electoral College is merely a system that is used to count votes and make a decision. How the people vote and for whom they vote is their own prerogative. Minorities do in fact have a voice with the Electoral College. Minorities can band together and form a coalition that wields a huge amount of political power. Their voting power may swing the election in a certain place, usually big cities. The Electoral College also maintains the small-state advantage. The small-state advantage allows small states in the Union to have a say in the presidential election process. Without the promise of being able to make a difference in the election process, there is virtually no reason a small state should remain in the United States. Without any power in government, there would be no reason to stay. Again, without this, candidates only have to campaign in large influential areas and ignore everywhere else. This would discourage the small states and would lower voter turnout even more than it is now. Likewise, some would argue that the small-state advantage means that the small states have more voting power than large states. The Electoral College is the only thing that promises a definite winner in a campaign, and promises a swift and sure decision. There are even provisions that take effect when no one gains the necessary majority, again something that would be a failing in a direct popular vote. It provides a swift and orderly transition of power, and maintains the balance of the three branches of government and the separation between church and state. On the other hand, while there are numerous reasons to keep the Electoral College, there are just as many reasons to abolish it. All of the above reasons can be refuted in an argument to abolish the Electoral College. For instance, many argue that the Electoral College is an antiquated system that was created to keep the people out of the government. There is no reason to keep the people out of government; people today are mainly well educated and literate-and not British insurgents. Thus, keeping the people out of the government, as the founders wanted, should no longer be an issue. There won't be any tyrannical majorities when everyone can read and think for themselves due to their education. The people should be allowed to directly elect their own officials and should not be forced to accept the will of a little more than 500 electors. This makes the will of the majority not important. Many maintain that the main problem with the Electoral College is the fact that, built into its very structure, the president may be elected without ever gaining the popular vote. This means that the people of this country will not support the president; he will not have the essential national support, a critical backbone without which the president's term would be severely crippled. It is argued that the Electoral College distorts presidential campaigns due to the fact that presidential campaigns would take place mainly in the swing states, meaning large developed and urban states would be the center of attention while the candidates ignored the other states. Small states and minorities have no power in this system and the fact that they do not hold enough power in the electoral system to have a significant impact. With their small amounts of electoral votes, campaigning in these states is not a priority, and although minorities can vote, their voices too are lost in the noise from the large states that are of interest to the candidates when campaigning. Meanwhile, some opponents of the Electoral College even say that the small states are grossly overrepresented in Congress in the first place, and by giving them this extra power, the Electoral College is in actuality distorting the balance of power between the states and tipping the balance in the favor of the small states. Perhaps the most important of all the points against the Electoral College is the fact that the college violates the one-vote one-person rule; each person's vote should count only as one person. However, when the state that the person is voting in has more electoral votes than another state, the power of those people voting in the first state would be more significant and have a greater impact on the overall election than the person voting in the second case. Their voting power becomes greater than the voting power of other individuals in other states, violating the principle that each person should have only one vote. After reviewing both sides of the controversy it is easy to understand why the government is so deadlocked over the issue of the Electoral College. Changing the system would require an amendment to the constitution, since this is the only way to change a stipulation of the document itself.





Bibliography
“Constitution of the United States,” Article 2, Section 1, Clause 2.

Deneen, Patrick. "Controversy in presidential race should not call Electoral College into question -." The Daily Princetonian. 17 Nov. 2000. 21 Jan. 2009 .

"NARA Federal Register U.S. Electoral College." National Archives and Records Administration. 19 Jan. 2009 .

Schmidt, S., Shelley, M., Bardes, B., (2009) American Government and Politics Today 2008-2009 Brief Edition. Wadsworth, Cengage Learning.