Friday, December 18, 2009
Importance of Briefing
Thursday, December 10, 2009
Motion for Complaint Sample
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
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 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
KNOW ALL MEN BY THESE PRESENTS, That Charles D. Hoover and Martha L. Hoover, of the State of
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
or 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 Law
comprises 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
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
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
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.
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.
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.
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.
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.
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.
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 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
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.