Damages seem to be quite straightforward. If Percy was in a car accident and totaled his car, the cost of his car is part of his damages. If Percy were injured, those are damages too.
The problem is, what are damages meant for? In the law, damages are meant to make a person whole, and bring them back to the state they were in before an accident. In the case of things that aren't tangible (injuries, for example), measuring them is more an art than a science. That's where creative lawyering gets involved- how do you show that the damages somebody suffered are as great (or as little) as possible?
Monday, November 30, 2009
Friday, November 27, 2009
Causation
In the case I mentioned two days ago, it's fairly straightforward to see that if Darla ran her red light, then she caused an accident. However, sometimes it isn't all that easy.
The Plaintiff has to show in any negligence case that whatever happened, it acted as the proximate cause of the resulting damages. There must be a fairly clear link between the breach of duty (crash) and the damages (injuries and auto damage). For example, if I don't write my blog because I am on vacation and don't get to a computer that day, the vacation would be the proximate cause of that day's lack of blogging. The work I did six months ago, for which I was paid, which money I saved, which combined with the interest I earned helped to pay for the trip and the gas I used to drive to the airport? Not so much a proximate cause. There just isn't a link there.
Where is the exact borderline where a link becomes too weak? Sorry, there's no way to state that precisely, because if there were most of us lawyers would be out of a job.
The Plaintiff has to show in any negligence case that whatever happened, it acted as the proximate cause of the resulting damages. There must be a fairly clear link between the breach of duty (crash) and the damages (injuries and auto damage). For example, if I don't write my blog because I am on vacation and don't get to a computer that day, the vacation would be the proximate cause of that day's lack of blogging. The work I did six months ago, for which I was paid, which money I saved, which combined with the interest I earned helped to pay for the trip and the gas I used to drive to the airport? Not so much a proximate cause. There just isn't a link there.
Where is the exact borderline where a link becomes too weak? Sorry, there's no way to state that precisely, because if there were most of us lawyers would be out of a job.
A Thought on Black Friday
Take it easy out there. Shop online (don't wait for Cyber Monday!). It's called Black Friday because that was thought to be the day when retailers would come into the black, or be profitable, for the year. It's not Black and Blue Friday, because you're going to get bruised up from the stampede.
Thursday, November 26, 2009
Happy Thanksgiving!
Eat, drink, don't drive. Sleep, catch up with family and friends, and give thanks for having good things in your life. They're there, I promise.
Wednesday, November 25, 2009
Breach of Duty
Having determined that a duty exists between two people, an awful lot of litigation revolves around whether one person has breached that duty to the other.
What is involved is always a fact-sensitive inquiry. For example, say Percy and Darla are in a car accident at an intersection controlled by a traffic light. Both parties say, in my example, that the light was green for them when they were struck by the other car. Having established that both parties owe each other a duty of due care (i.e. not to crash at the intersection), the question is whether (if Percy sued Darla) Darla breached her duty by crashing into Percy. One way to show that would be to show that Darla ran a red light.
What is involved is always a fact-sensitive inquiry. For example, say Percy and Darla are in a car accident at an intersection controlled by a traffic light. Both parties say, in my example, that the light was green for them when they were struck by the other car. Having established that both parties owe each other a duty of due care (i.e. not to crash at the intersection), the question is whether (if Percy sued Darla) Darla breached her duty by crashing into Percy. One way to show that would be to show that Darla ran a red light.
Tuesday, November 24, 2009
Standards of Proof
If you find yourself in court, you are going to want to know how to get out because unless you're being paid to be there (and even then...), it's not a pleasant experience. As a plaintiff, you want to know what you need to prove in order to get your money. As a defendant, you want to defend yourself.
Also, you have probably seen enough criminal legal procedurals to know that the standard of proof in a criminal case is "beyond a reasonable doubt." You probably also have no real idea of what that actually means. Well, you're in luck. The next series of posts will talk about what the various standards of proof are, when you might find them, and when it's your burden to overcome them.
Also, you have probably seen enough criminal legal procedurals to know that the standard of proof in a criminal case is "beyond a reasonable doubt." You probably also have no real idea of what that actually means. Well, you're in luck. The next series of posts will talk about what the various standards of proof are, when you might find them, and when it's your burden to overcome them.
Duty (Not a Military Post)
The first element of civil negligence is "duty." The concept is that in order for one to be negligent toward another, there must be something in which they were negligent.
Some duties are assumed (a caretaker), and some are contracted (landlord/tenant). Most duties, however, fall into the category of "due care." Most people in everyday situations are supposed to exercise "due care" in what they're doing. It helps stops useless lawsuits, too; if someone I've never met gets into a car accident in another state where I've never been, I don't owe that person a duty (and they'd be well-advised not to sue me).
Of course, determining whether someone owes someone else "due care" or some other duty is also important, because it helps to gauge whether there's been a breach of that duty.
Some duties are assumed (a caretaker), and some are contracted (landlord/tenant). Most duties, however, fall into the category of "due care." Most people in everyday situations are supposed to exercise "due care" in what they're doing. It helps stops useless lawsuits, too; if someone I've never met gets into a car accident in another state where I've never been, I don't owe that person a duty (and they'd be well-advised not to sue me).
Of course, determining whether someone owes someone else "due care" or some other duty is also important, because it helps to gauge whether there's been a breach of that duty.
Monday, November 23, 2009
Negligence- What It Is, and How to Avoid It
The number one word you'll hear amongst trial lawyers, especially the ones that advertise on your TV, is negligence. That's the word that will determine whether you (as a client) get to recover for your damages, or whether you (as a defendant) have to pay. There are four elements to a claim of negligence, those being:
1. There must be a duty from one person to another.
2. There must be a breach of that duty.
3. The breach must be the cause of-
4. Damages, which are the subject of a lawsuit.
This week I'll talk about a fictionalized series of lawsuits involving negligence, and for ease of reference they will be between Percy (the Plaintiff) and Darla (the Defendant).
1. There must be a duty from one person to another.
2. There must be a breach of that duty.
3. The breach must be the cause of-
4. Damages, which are the subject of a lawsuit.
This week I'll talk about a fictionalized series of lawsuits involving negligence, and for ease of reference they will be between Percy (the Plaintiff) and Darla (the Defendant).
Friday, November 20, 2009
Proportionality in States of Mind- Not Just a New York Thing
Hooray for Billy Joel.
I know I haven't dealt with civil negligence yet. It's more complicated, and it's more useful for most people. It gets its own series.
As a general matter, the law sees liability as
criminal > civil
and
knowledge/intent > recklessness > criminal negligence > civil negligence > strict liability
because theoretically in the legal field, "It's an accident!" is supposed to mitigate a lot of your punishment (or on the other hand, the remedies that are available to you as the person wronged). Speaking in generalities, then, it's always good to have an idea where you fall on this scale, and if you can make a case that you weren't reckless, but merely negligent, you may be able to talk your way down out of something. Reckless driving, or driving in a way that willfully endangers others, carries maximum penalties of up to 3 months in jail and $500 in fines. The maximum penalties for careless driving, however, are a $200 fine and 15 days in jail. The insurance surcharges and DMV points are also correspondingly greater for reckless driving.
I know I haven't dealt with civil negligence yet. It's more complicated, and it's more useful for most people. It gets its own series.
As a general matter, the law sees liability as
criminal > civil
and
knowledge/intent > recklessness > criminal negligence > civil negligence > strict liability
because theoretically in the legal field, "It's an accident!" is supposed to mitigate a lot of your punishment (or on the other hand, the remedies that are available to you as the person wronged). Speaking in generalities, then, it's always good to have an idea where you fall on this scale, and if you can make a case that you weren't reckless, but merely negligent, you may be able to talk your way down out of something. Reckless driving, or driving in a way that willfully endangers others, carries maximum penalties of up to 3 months in jail and $500 in fines. The maximum penalties for careless driving, however, are a $200 fine and 15 days in jail. The insurance surcharges and DMV points are also correspondingly greater for reckless driving.
Thursday, November 19, 2009
Strict Liability
Short and sweet:
Then, there's always that kind of liability where you do something, and nobody cares why. The fact that you did it is enough. That's what is usually called "strict liability." Usually strict liability is only applied to civil fines and penalties, and not to anything that involves criminal liability (i.e. jail).
Then, there's always that kind of liability where you do something, and nobody cares why. The fact that you did it is enough. That's what is usually called "strict liability." Usually strict liability is only applied to civil fines and penalties, and not to anything that involves criminal liability (i.e. jail).
Discretion and Decision-Making in the Criminal Justice System
Here's something to consider when you're wondering how lawyers make their money.
Police officers are usually the first line of law enforcement. They may see something happen, but decide not to pursue it. They can use their discretion.
Attorneys who work for the State (at any level) can decide not to pursue a case brought to them, or to drop a case they are working on. They can use that discretion as well.
Judges can make rulings based on motions and other paperwork filed by attorneys, and those rulings often have huge impacts on a case. Juries can nullify a verdict by deciding not to convict someone for whatever reason, even though they're told they can't do that. These aren't really discretion in the sense I used it above, but as people they can make decisions.
Lawyers know they have angles at many or all of these venues. They will try to affect people's discretion and decision-making in their clients' favor. They don't have to be consistently successful to make a difference, either; one success can often lead to a dismissal or acquittal.
This is how lawyers make their money.
Police officers are usually the first line of law enforcement. They may see something happen, but decide not to pursue it. They can use their discretion.
Attorneys who work for the State (at any level) can decide not to pursue a case brought to them, or to drop a case they are working on. They can use that discretion as well.
Judges can make rulings based on motions and other paperwork filed by attorneys, and those rulings often have huge impacts on a case. Juries can nullify a verdict by deciding not to convict someone for whatever reason, even though they're told they can't do that. These aren't really discretion in the sense I used it above, but as people they can make decisions.
Lawyers know they have angles at many or all of these venues. They will try to affect people's discretion and decision-making in their clients' favor. They don't have to be consistently successful to make a difference, either; one success can often lead to a dismissal or acquittal.
This is how lawyers make their money.
Criminal Negligence
Negligence is a two-part beast; criminal and civil negligence are different. Civil negligence is a topic that I will discuss in much more detail next week; criminal negligence is something I can dispose of rather quickly.
Again, most of the time that we talk about criminal negligence it's in the context of homicide, which hopefully none of you will ever have to worry about. Criminal negligence is basically "careless, inattentive, neglectful, willfully blind, or" in other words, really, really dumb. What's the difference between criminal negligence and recklessness? Really, not all that much; depends on how zealous the prosecutor wants to be.
Again, most of the time that we talk about criminal negligence it's in the context of homicide, which hopefully none of you will ever have to worry about. Criminal negligence is basically "careless, inattentive, neglectful, willfully blind, or" in other words, really, really dumb. What's the difference between criminal negligence and recklessness? Really, not all that much; depends on how zealous the prosecutor wants to be.
Wednesday, November 18, 2009
Recklessness
The Model Penal Code defines recklessness as
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.
I pulled the definition from the criminal code because that's where recklessness is most often used as a legal tool. The key phrase here is "disregards a substantial and unjustifiable risk." The risk must be substantial (not imaginary) and unjustifiable (there must be no good reason for disregarding the risk). The justification is proportional to the gravity of the risk (you'll have to work hard to find a justification for homicide, for example).
If that doesn't make any sense, just understand that if negligence (to be defined later) is stupidity, then recklessness is either extreme stupidity or borderline purposeful stupidity.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.
I pulled the definition from the criminal code because that's where recklessness is most often used as a legal tool. The key phrase here is "disregards a substantial and unjustifiable risk." The risk must be substantial (not imaginary) and unjustifiable (there must be no good reason for disregarding the risk). The justification is proportional to the gravity of the risk (you'll have to work hard to find a justification for homicide, for example).
If that doesn't make any sense, just understand that if negligence (to be defined later) is stupidity, then recklessness is either extreme stupidity or borderline purposeful stupidity.
Tuesday, November 17, 2009
Intent and Knowledge
These are two different technical states of mind, but for most purposes it doesn't really matter which of them you fall into. Apologies in advance about my examples, but I would like to keep them G-rated. No killing people on this blog.
An example of intent: I hit the send button on my cell phone. I intend to hit the button. I thus intend to make a phone call.
An example of knowledge: I cracked two eggs into a saucepan (or other appropriate pan- I'm not an expert here). I turned on the burner, virtually certain that eventually I would cook my eggs. I have knowingly cooked my eggs.
An example of intent: I hit the send button on my cell phone. I intend to hit the button. I thus intend to make a phone call.
An example of knowledge: I cracked two eggs into a saucepan (or other appropriate pan- I'm not an expert here). I turned on the burner, virtually certain that eventually I would cook my eggs. I have knowingly cooked my eggs.
Monday, November 16, 2009
Michael's Post at Gavel Report
Michael over at Gavel Report has a different blog style than I do. He is very detailed and his posts require some serious reading. He also deals almost exclusively with criminal and constitutional law. I tend to do things in two-minute chunks because my attention span can't handle writing long posts.
That said, he's also talking about states of mind in the law. See his post here.
That said, he's also talking about states of mind in the law. See his post here.
What the Heck Were You Thinking?
This is the first time in a while that I've had to say this, but here it is.
This isn't legal advice. I don't want you to rely on this in any way. The best way to avoid criminal liability is to not break the law.
That said, have you ever wondered what the difference is between murder and manslaughter? The difference between "knowing" and that "you should have known?" That sometimes, what you think doesn't matter? (That might not be such a revelation.) Interestingly enough, the entire legal system bases a large part of the law on what can be proven about what someone is thinking at the time of an act. I'm going to write posts in the next week or so about six different "states of mind" that have a place in the law. How lawyers go about proving them is beyond the scope of this blog, but at least I can tell you in broad strokes what they're looking for.
The six states of mind I will write about:
Intent
Knowledge
Recklessness
Criminal negligence
Civil negligence
Strict Liability (i.e. it doesn't matter what you were thinking)
This isn't legal advice. I don't want you to rely on this in any way. The best way to avoid criminal liability is to not break the law.
That said, have you ever wondered what the difference is between murder and manslaughter? The difference between "knowing" and that "you should have known?" That sometimes, what you think doesn't matter? (That might not be such a revelation.) Interestingly enough, the entire legal system bases a large part of the law on what can be proven about what someone is thinking at the time of an act. I'm going to write posts in the next week or so about six different "states of mind" that have a place in the law. How lawyers go about proving them is beyond the scope of this blog, but at least I can tell you in broad strokes what they're looking for.
The six states of mind I will write about:
Intent
Knowledge
Recklessness
Criminal negligence
Civil negligence
Strict Liability (i.e. it doesn't matter what you were thinking)
Friday, November 13, 2009
Finders: It's a Different Kind of Work
Finders work and make money by getting clients. The work can be done by them or by other people, but as long as they are the ones getting the clients they will be fine.
Why is it good to be a finder?
Lots of money. Your income potential is quite unlimited. If you can bring in a steady stream of business, you can make plenty of money even without being responsible for all of the nitty-gritty work.
Not as much writing/research. Especially if you work in a larger firm environment, other people can do the work you generate. You might not have to worry about it as much, because you'll be able to spend your time meeting people and generating business instead.
Why is it bad to be a finder?
You only make money if you're bringing it in. You're the only one responsible for your business, and if you aren't bringing the money in then you aren't going to be making the money for long.
It's a lot of work. You have to have connections and farm them to generate business. People need to know who you are, and they need to give you that revenue.
Why is it good to be a finder?
Lots of money. Your income potential is quite unlimited. If you can bring in a steady stream of business, you can make plenty of money even without being responsible for all of the nitty-gritty work.
Not as much writing/research. Especially if you work in a larger firm environment, other people can do the work you generate. You might not have to worry about it as much, because you'll be able to spend your time meeting people and generating business instead.
Why is it bad to be a finder?
You only make money if you're bringing it in. You're the only one responsible for your business, and if you aren't bringing the money in then you aren't going to be making the money for long.
It's a lot of work. You have to have connections and farm them to generate business. People need to know who you are, and they need to give you that revenue.
Thursday, November 12, 2009
Minders: More Money, More Responsibility
Minders, as I mentioned earlier in the week, are supervisory lawyers.
Why is it good to be a minder?
The money is better. Supervisory attorneys get paid better than grinders, and they don't have to do a lot of the really dirty work with research and writing. In that vein...
There's less dirty research and writing.
Why is it bad to be a minder?
Responsibility. You are responsible for your own work and for the work of others. That can be a little bit of a problem, especially if there's a mistake.
It's hard to get there. You can't just start as a minder- you'll need to work your way up and pay your dues as a grinder until you get there. There are a lot fewer minders, though- so you're definitely not guaranteed anything.
Why is it good to be a minder?
The money is better. Supervisory attorneys get paid better than grinders, and they don't have to do a lot of the really dirty work with research and writing. In that vein...
There's less dirty research and writing.
Why is it bad to be a minder?
Responsibility. You are responsible for your own work and for the work of others. That can be a little bit of a problem, especially if there's a mistake.
It's hard to get there. You can't just start as a minder- you'll need to work your way up and pay your dues as a grinder until you get there. There are a lot fewer minders, though- so you're definitely not guaranteed anything.
Wednesday, November 11, 2009
Veteran's Day
Let's spend a moment today honoring the contributions of our veterans who have kept the freedom of our country intact for 225 years.
Tuesday, November 10, 2009
Grinders: They Get Eaten for Lunch
This is me being clever. Grinders have a high-stress existence, where they are often pressured to work long hours and produce a large volume of material.
Why is it good to be a grinder?
Job security. If you're good at what you do, and you can make yourself indispensable to another lawyer, you will always have a job.
In-the-trenches knowledge. If you always work in research and writing, you will never be too far from the actual law. If you enjoy law for the sake of law, this is a great job.
Why is it bad to be a grinder?
It's hard. Law is not easy, and writing and research are not very easy things to do. It may be that you're not naturally extremely talented at them.
There's a ceiling on your salary. Ultimately, if you aren't the one bringing in business, you are providing a skill and being paid for it. There is a limit to how much you will be paid, unless you work in a very specialized area, because there is a lot of supply to meet demand.
Why is it good to be a grinder?
Job security. If you're good at what you do, and you can make yourself indispensable to another lawyer, you will always have a job.
In-the-trenches knowledge. If you always work in research and writing, you will never be too far from the actual law. If you enjoy law for the sake of law, this is a great job.
Why is it bad to be a grinder?
It's hard. Law is not easy, and writing and research are not very easy things to do. It may be that you're not naturally extremely talented at them.
There's a ceiling on your salary. Ultimately, if you aren't the one bringing in business, you are providing a skill and being paid for it. There is a limit to how much you will be paid, unless you work in a very specialized area, because there is a lot of supply to meet demand.
Monday, November 9, 2009
What Kind of Lawyer Are You?
This isn't my creation; you've probably heard it before.
There are three types of lawyers: "finders," "minders," "grinders." What are they?
Finders are lawyers that get work, or specifically lawyers that go out and get clients who need them.
Minders are people who supervise lawyers and work. They know what they're doing and have experience and skills.
Grinders are lawyers who work for other lawyers. They do the work that is assigned to them.
There are three types of lawyers: "finders," "minders," "grinders." What are they?
Finders are lawyers that get work, or specifically lawyers that go out and get clients who need them.
Minders are people who supervise lawyers and work. They know what they're doing and have experience and skills.
Grinders are lawyers who work for other lawyers. They do the work that is assigned to them.
Friday, November 6, 2009
Advertising
A quick story on advertising:
A friend of mine owns a vacuum store, and once advertised in a newspaper and was convinced he was not getting results. For the last few months of his advertising contract he changed his ad to show that he would give away a vacuum, for free, no strings attached, to the first person who appeared in his store with the ad. On the last day of the contract, someone showed up and offhandedly mentioned the ad.
For several months, nobody had even bothered to show up to claim a free vacuum. Try and learn from this example, and be careful where you advertise. Advertising is expensive and probably not worth it unless you know the audience you're looking for, and it matches the advertising.
A friend of mine owns a vacuum store, and once advertised in a newspaper and was convinced he was not getting results. For the last few months of his advertising contract he changed his ad to show that he would give away a vacuum, for free, no strings attached, to the first person who appeared in his store with the ad. On the last day of the contract, someone showed up and offhandedly mentioned the ad.
For several months, nobody had even bothered to show up to claim a free vacuum. Try and learn from this example, and be careful where you advertise. Advertising is expensive and probably not worth it unless you know the audience you're looking for, and it matches the advertising.
Thursday, November 5, 2009
Universal Truth of Self-Employment #9: Confidence is Key
I was going to title this post "Be a Champion," but I don't want to be confused with a Yankees fan. (Congrats on #27, by the way. We Mets fans are still waiting for #3.)
Confidence is a key attribute for raising business. You can network and speak all you want, and get your name out there any way you see fit- but if you sound like the 98-pound weakling doing it, you're not going to reap any benefits from all your work.
If you don't believe in your practice, there isn't any reason for anybody else to do so either. Make sure people know you believe and love what you're doing, and the rest will follow naturally.
Confidence is a key attribute for raising business. You can network and speak all you want, and get your name out there any way you see fit- but if you sound like the 98-pound weakling doing it, you're not going to reap any benefits from all your work.
If you don't believe in your practice, there isn't any reason for anybody else to do so either. Make sure people know you believe and love what you're doing, and the rest will follow naturally.
Wednesday, November 4, 2009
What Do All These Methods Have in Common? (And a Quick Tech Tip)
Easy answer to that one: technology. The key to paperless work is your willingness to move your paper to a more tech-heavy format. Some of the solutions I have offered don't involve really intensive difficult technology- however, some of them require a state of mind that a lot of people just don't have.
Oh, one quick tech tip if you're going to do anything important on a computer (you know we all do): BACK UP YOUR HARD DRIVE. If you don't know how to do it, ask me or somebody else, and we'll help you. It'll probably involve getting yourself an external hard drive which you can back up easily and (fairly) quickly, and take with you so it's off-site. That way, even if there's a fire or the office is burglarized, you're fine.
Oh, one quick tech tip if you're going to do anything important on a computer (you know we all do): BACK UP YOUR HARD DRIVE. If you don't know how to do it, ask me or somebody else, and we'll help you. It'll probably involve getting yourself an external hard drive which you can back up easily and (fairly) quickly, and take with you so it's off-site. That way, even if there's a fire or the office is burglarized, you're fine.
Tuesday, November 3, 2009
Monday, November 2, 2009
Outsourcing Mailing and Other Paper Tasks?
I've heard suggestions that you should outsource mailings and other paper-based tasks.
Personally, I know there are great lengths to which you could go in order to minimize the paper trail in your office, but I find it hard to believe you're so busy (or, your support staff is so busy) that you can't make time to mail things.
Personally, I know there are great lengths to which you could go in order to minimize the paper trail in your office, but I find it hard to believe you're so busy (or, your support staff is so busy) that you can't make time to mail things.
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