Monday, May 17, 2010

Tort Law Basics

What is a Tort?-
A tort is a civil wrong (other than a breach of contract) that causes injury or other damage for which our legal system deems it just to provide a remedy. The primary focus of Tort Law is to repair a private wrong.

Purposes for Tort Law-

Peace: In order to provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands.”

Deterrence: To deter wrongful conduct.

Restoration: To restore injured parties to their original state by compensating them for their injury.

Justice: To identify those who should be held accountable for the harm that resulted.

Categories of Torts-
There are three main categories of torts:
1. Negligence
2. Intentional Torts
3. Strict Liability Torts

1. Negligence is harm caused by the failure to use reasonable care.
2. An intentional tort is a tort in which a person either desired to bring about the result or knew with substantial certainty that the result would follow from what the person did or failed to do.
Types of intentional torts include: battery, assault, trespass, and false imprisonment.
3. Strict liability is having responsibility regardless of blameworthiness or fault.

Civil vs Criminal Law

Civil law is the area of law that encompasses lawsuits brought by individuals who have suffered private wrongs for which they are seeking some form of compensations. Civil law includes tort law, property law, domestic relations law, contract law and probate law. Criminal law is the area of law that deals with the wrongs done to an individual that result in harm to society as a whole. The purpose of criminal law is to punish those who commit crimes such as murder, robbery, theft, arson and sexual assault.
Although the same act can be both a civil wrong and a criminal wrong (theft), several differences exist between civil and criminal law. The purpose of civil law is to compensate victims by providing them with some form of monetary damages. The purpose of criminal law is to punish those who have committed a wrong. Punishment is accomplished by confining and/or fining the wrongdoer. The civil law acts on behalf of the individual wronged and that individual brings suit to recover damages. The criminal law acts on behalf of the state, which is considered the offended party, and the prosecutor of the state represents the state in the courtroom.
The plaintiff (person who sues) has a burden of proof known as the preponderance of the evidence that must be shown in court. In the preponderance of the evidence burden of proof, the plaintiff must prove that it is more likely than not the defendant committed the wrong. In the beyond a reasonable doubt standard, the state must remove all reasonable doubts from the jurors’ minds.

Friday, May 14, 2010

Wills: Basic Information

A will provides one of the easiest ways of giving an individual a voice in how they want their property to be distributed and avoid legal problems that may arise when someone dies intestate. To die intestate means to die without a will. To avoid probate, a will must be carefully designed and well-drafted to meet the needs of the testator and their intended recipients.

Validity

To be valid a will must be:
Made by an adult
Made by someone with testamentary capacity
Created Voluntarily

Formality

A will can be formal meaning word processed, signed and properly witnessed. It can also be holographic, meaning hand written with no witnesses (check your states statutes to see if they recognize holographic wills), or nuncupative, meaning an oral will.

Changing a Will (codicil)

Changing the terms of a will is done through a codicil, which is a separate instrument with new provisions that change the original will in some way.

Revoking a Will

The act of revoking a will must be accompanied by the testator’s intent to revoke the will. There are three methods for revoking a will.
The execution of a new will revokes a prior will. To revoke a prior will in some states, the new will must either expressly state that it revokes an earlier will or be inconsistent with the old will.
The marriage of a person who has made a will revokes the will in some states unless the will declares that it is made in contemplation of marriage to a particular person.
A divorce or dissolution of marriage revokes bequests and devises to a former spouse but not the will itself.

Types of Marriages

The different types of marriages include a ceremonial marriage, common law marriage, putative marriage, successive marriage and proxy marriage.

Ceremonial Marriage-
The traditional marriage in the United States is a ceremonial marriage.

Common Law Marriage-
A common law marriage is an agreement between a man and a woman to enter into a marital relationship, to cohabitate, and who hold themselves out as husband and wife without complying with the formalities of a ceremonial marriage. Only thirteen states currently allow common law marriages. These include Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas and in the District of Columbia.
If a common law marriage is created, it is recognized as valid by most other states. If the couple separates they must obtain a divorce to terminate their legal relationship because of this.

Putative Marriage-
A putative marriage is one in which at least one of the parties contracted to marry in good faith and without knowledge that some legal impediment existed to prevent a valid marriage. In a putative marriage, the innocent spouse makes a good faith commitment and goes through the ceremonial requirements for marriage.

Successive Marriages-
When a party is still married in the eyes of the state and marries another person, successive marriage exists. When there is evidence of more than one marriage, the law presumes the most recent one to be valid. This presumption may be rebutted by proof from the first spouse that the marriage never was terminated legally.

Proxy Marriage-
A proxy marriage is contracted or solemnized by one or more agents of the parties rather than by the parties themselves. These types of marriages are more likely during a war.

Qualities of Successful Paralegals

Ø P repared
Ø A nalytical
Ø R esilient
Ø A ble to work with details
Ø L ogical
Ø E ffective Communicator
Ø G ood professional judgment
Ø A ble to organize
Ø L iterate with computers

PREPARTION: Being prepared at all times is a must for successful paralegals. Their work must be completed within agreed-upon time frames no matter what their workload. Beyond that, they must anticipate what attorneys will need and be prepared to respond to these needs with little or no advance notice.

ANALYSIS: Analysis is required when preparing and reviewing documents as well as reading and applying the law. The ability to think critically and to find creative answers is essential.

RESILIENCY: Resiliency allows paralegals to adapt to changing circumstances and to persevere no matter what transpires. The litigation process can be very grueling and unpredictable, and attorneys’ moods can shift with the status of a case, so flexibility is a wonderful attribute.

ABILITY TO WORK WITH DETAILS: Being able to work with details is a key ingredient of paralegal success. Many paralegal tasks require astute attention to detail, and attorneys, who can sometimes be oblivious to the details of case management, rely on paralegals to attend to the minutiae they might overlook while attending to the planning of legal strategy.

LOGIC: Logic is the cornerstone of the law. Legal reasoning involves the application of legal principles to specific, factual situations and, therefore, requires the utilization of logic.

EFECTIVE COMMUNITION SKILLS: Having effective communication skills in both writing and speaking are vital to competent paralegals. They must be able to express themselves clearly, concisely, logically, and persuasively. Such skills allow them to work well with clients and other members of the legal team as well.

GOOD PROFESSIONAL JUDGMENT: Good professional judgment includes using suitable language, dressing appropriately, taking direction, responding appropriately to requests and questions, working within time constraints, and knowing when to ask for help.

ABILITY TO ORGANIZE: The ability to organize includes the ability to establish priorities, develop a work plan, delegate responsibility, and manage time. Efficiency allows successful paralegals to work for more than one attorney on more than one case simultaneously.

LITERACY IN COMPUTER TECHNOLOGY: Being computer literate is a must in today’s computer based legal environment. The more proficient paralegals are in using a variety of software programs, the more invaluable they are to the attorneys for whom they work.