New Lawyers Are Often Unemployed Or Challenged In Their Own Private Practice

By Lance Winslow

Perhaps you've read some of the challenges that newly minted degreed law students are going through these days. After all that schooling and passing the bar, many cannot find meaningful work. Law firms simply are not hiring much. Worse, if they go into private practice often they can't make it as a small business person. There is too much competition, and due to economic forces beyond their control, not enough work. You'd think that lawyers would be the last career standing. Actually not, as even some bankruptcy lawyers are nearly bankrupt.

The other day I was discussing a similar issue with Ashley Gray, a legal writer of sorts. She noted that; "Recently, many law firms have been experiencing financial problems as the Internet challenges their ability to charge high fees and other countries begin competing for business," you see Ashley has been working on an article about "the business of law" and considering some of the interesting changes we've seen in the last decade, mostly due to the Internet.

Indeed, I must say that I "totally agree" with Ashley's premise, and in some cases I feel for young new lawyers who have had schooling and have to compete with perhaps bad legal advice online by non-lawyers (borderline as practicing law without a license), or less-than-knowledgeable lawyers.

Further, I am concerned due to jurisdictional variation of law, meaning you read something online and it simply doesn't apply - for instance, there are 24 "Right-to-Work states" and the employment and labor laws are different so someone could read something online and become misinformed - ouch! Yes, I know, that was merely one example, but you see my point, which is why I do believe Ashley has hit on an important set of points much apropos to what is happening now.

Still, as bad as it is to deprive a new lawyer of an ability to work, I also feel that maybe lawyers shouldn't charge so much and maybe if the "rules of law" were more open and available the lawyers would be forced to charge less, and therefore businesses could run more efficient and individuals wouldn't go bankrupt defending themselves, or pay all the money to lawyers rather than an injured party, or defending against frivolousness.

So, on one hand we have a very self-serving industry, which some say has hijacked the law and held it for ransom, then on another hand, we have bad legal advice online which is so darn pervasive that it's getting really difficult for individual internet users to find the relevant legal information they need. Please consider all this and think on it.

Lance Winslow has launched a new provocative series of eBooks on Internet Legal Issues. Lance Winslow is a retired Founder of a Nationwide Franchise Chain, and now runs the Online Think Tank; http://www.worldthinktank.net

Why Seatbelts Aren't Important to Bus Safety

By Robert A Koenig

No passenger vehicle on the road today is without seat belts. The safety restraints save countless lives and prevent thousands of injuries in the event of an accident. That fact makes it all the more puzzling to find that buses, the vehicles that move large numbers of people daily, are not equipped with seat belts. Even school buses transporting rowdy children to and from school are exempt from the seat belt standard.

The Department of Transportation's National Highway Traffic Safety Administration must field the question of why seat belts remain absent from school buses frequently because it created a page devoted to answering that and related questions. Believe it or not, those yellow school buses with screeching brakes and shuddering turns are one of the safest vehicles running in the United States. An average of six children die in school bus crashes every year, compared to the hundreds killed while walking or riding their bikes.

While some school buses appear to be derelict relics of a bygone era, the design is sound and safe enough to house the precious cargo without a seat belt. Buses are heavier than most passenger vehicles on the road and also house the passengers much higher up. These two key factors mean that the impact forces of a crash are distributed differently and aren't felt as intensely as those traveling in lighter vehicles. It's like the passengers are in a safety pod above the accident.

Despite the design, there are still instances where children are injured or killed in a school bus accident. In some of these cases, a seat belt would have prevented the injury. As a result, some states and school districts have passed standards that require new buses be equipped with safety restraints. However, that is a higher cost because of the added equipment and because fewer children can be seated on the bus. Many schools are content with the fact that buses are seven times safer than passenger cars.

The greater danger in school bus related accidents comes once the bus has come to a stop to unload passengers. Other drivers may not obey the law that requires all traffic to stop on both sides of the street, leading to a pedestrian accident when a child attempts to cross the road. All official school transportation accidents account for 2 percent of student accidents. Of all accidents involving students going to and from school, 75 percent occurred when privately driven by a parent or other guardian.

Was your child injured in a traffic accident? Don't wait to speak to an accident lawyer who can help assess your case. Visit http://bestaccident-attorneys.com for more information about accident related claims and personal injury law.

Nature and Purpose of Process Service

By Robin R Enos

The first step in understanding the concept of service of process is to know the legal meaning of the word "process". In its broadest sense, "process" is the same with "proceeding" and includes a legal proceeding from beginning to end. Used in a narrow strict sense, the word "process" refers to the method by which the courts compel obedience to its demands. The most encompassing definition of judicial "process" refers to all writs, warrants, summonses, and orders of courts of justice or judicial officers.

In addition, "process" as defined by the codes is synonymous to a writ or summons issued by the courts in the course of a judicial proceeding of either a civil or criminal nature. A "writ" is an order issued in the name of the people or of a court or judicial officer. A "summons" is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The process by which a witness (not a party to an existing law suit) is compelled to appear before a court or magistrate is required is called a subpoena.

Among the processes served by the courts, service of summonses has the most significance mainly because it is the means by which the courts acquire personal jurisdiction over the defendant in a lawsuit. Before a lawsuit can even commence, the courts have to get the defendant within the scope of its powers. It is an order signed by proper authority directing the party served to appear within a stated time, and giving the party notice that unless he or she does so, judgment will be entered against him or her by default.

Service of summonses is an aspect of Due Process of Law. The content of the summonses inform the defendant that a lawsuit was commenced against him and he is required to appear before the court. Failure to do so would have grave consequences.

Similarly, failure of proper service of summons is detrimental to Plaintiff especially if summons was not served within the statutory period or within the Statute of Limitations. It may result to the dismissal of the action for lack of jurisdiction. Delay in service or in the return of process beyond a reasonable time or the periods prescribed by statute are grounds for dismissal of the action.

Therefore, service of process is an important aspect of our constitutional right. Failure to abide by the requirements of proper service of process results to consequences to both Plaintiff and Defendant. Jurisdiction over the parties is necessary for the validity of any personal judgment. Failure to serve process can result to dismissal of actions.

Hence, it is essential that a competent process server will issue or tender the writ, summons or other processes. Making a strong foundation by serving legal processes right is a basis to a successful lawsuit. He or she must know that behind the sheets of paper he or she is going to serve lie the rights of a party to a judicial relief.

To get your papers served fast, efficiently, economically, and in a manner that will satisfy the Court - or just to discuss your California Process Service needs - contact PremierLegalSupportService.com at (855) 768-5283. Available 24/7.

We have also prepared you a Process Service Request Form for your convenience.

What About Home Foreclosures?

By Arren Weathers

One of the options that most of the people who are looking to buy homes go for is home foreclosures. A foreclosure refers to a legal process that is specified that a lender can pursue in order to recover the amount of money owed by the borrower who has since stopped paying through the forceful sale of their assets that were listed as collateral for the loan. This is usually preceded by the mortgage lender obtaining a termination of the equitable rights by the borrower through a court order or operational law. There are a host of reasons as to why borrowers may be unable to make their payments. In fact, some of these reasons push some people to voluntarily opt for home foreclosures. These include the loss of employment meaning that the steady flow of income has been interrupted. Others may opt for it when they have been forced out of employment due to medical conditions that are incurable. Being in debt that results in having too many bills also contributes to foreclosures. A job transfer to a different state, wrangles with your co-owner or even divorce can lead to this.

Foreclosures are usually initiated by banks that file for the same on specific property through the judicial system of a particular state. Generally, there are three types of home foreclosures namely the strict foreclosure, power of sale and judicial foreclosure. The strict foreclosure is where a public auction option is eliminated and the property that is foreclosed it moved to a mortgage holder directly. This kind of foreclosure is only allowed when the balance on the mortgage is bigger compared to the value of the property.

The second type of foreclosure is the judicial foreclosure that allows the borrower a thirty day period to make payment from the day the foreclosure notice is issued. If the borrower fails to make the payment and this period elapses, the property is automatically put up for a public auction and subsequent ownership transfers from the person who has defaulted to the one who wins at the auction. Finally, there is the power of sale foreclosure that is also referred to as non-judicial foreclosure. This is particularly applicable the borrower used a deed of trust when securing the property. Alternatively, it may also be applied where a power of sale clause is used in the mortgage terms. Thus, the non-judicial foreclosure has the process covered within the loan document so that the lender will only mail you on their intention to begin the process of foreclosure on your property.

When you are facing an imminent home foreclosure, you will need to critically look at your financial situation in order to determine the best possible option. This may call for a review of your expenditure as well as budgeting if it will help you make your payments. You will also do well to ensure that you are in contact with your lender on a regular basis especially when they contact you. In conclusion, although home foreclosures may be necessitated by factors that are beyond your control you are at liberty to explore all the options that can prevent it.

Benkiran Law Firm, P.A. is an Orlando Business Attorney who is also an Orlando Foreclosure Lawyer. Stop by their site for more information on all business and personal matters

6 Ways Health Care Directives Fail

By Bill G Peterson

One of the most important pieces of a person's estate plan is the Health Care Directive. Simply put, the Health Care Directive (or HCD for short), spells out how a person wants to be cared for when they become disabled. I say when they become disabled, because people are six times more likely to become disabled than die in a given year. We will all be disabled at one point; it could be the last 20 minutes of our life or the last 20 years.

Because of the risks of disability, it is wise to have your health care wishes legally stated. This is where the Health Care Directive comes into play. The HCD will state the treatments or procedures you would like once you become disabled. Additionally, the HCD will state the treatments or procedures you would not like. In fact, stating what you would not like may be just as important.

Since it is such an important document, the HCD should be reviewed every three to five years. Just like a Will or a Trust, the HCD may need to be updated. Here is a list of six ways that Health Care Directives fail:

1. Not in Doctor's Hands (Accessibility)-When the time comes for you to use your Health Care Directive, you may not be conscious. If that's the case, you will want your HCD to be in your doctor's hands when you arrive at the hospital. In fact, this is a simple step that many people do not take, which can lead to your wishes being dismissed when a new HCD is created (see #6).


2. No HIPAA Authorization-An incredibly important document that should accompany your Health Care Directive is a HIPAA Authorization. HIPAA stands for the Health Insurance Portability and Accountability Act. This document authorizes other Loved Ones to receive updates on your treatment status. If you are an elderly parent, you may want your adult children to know about your health.


3. Not Properly Written-A Health Care Directive that is poorly written will not get better with age! Different people want different options when it comes to deciding their healthcare choices. Usually a "template" HCD cannot offer these choices.


4. Wrong Parties-The people whom you designate on your HCD should actually be the people you want to make decisions on your behalf. Surprisingly, I have seen many HCDs that spell out the wrong people (or parties).


5. Old / Out of date-What happens when the person you designated as your Agent seventeen years ago has already passed away? Or what happens when your Agent has moved to California and won't be able to travel to Minnesota? An out of date HCD is a ticking time bomb.


6. Revoked By Accident-Yes, this happens. In fact, it can happen quite easily. Here's how: if the doctor at the emergency room asks your spouse or child about a HCD and they are unsure, they may sign a new "template" HCD right in the emergency room lobby. Chances are, this "template" HCD may not be the same as the well thought out version you completed with your attorney while you were peaceful and sound of mind.

A Health Care Directive is an essential part of most people's estate plans. However, it must be reviewed regularly to ensure that it continues to protect you as you wish. It's a good idea to talk with an experienced estate planning attorney to see what is best for you.

Bill Peterson is a Minnesota Estate Planning Attorney with over 40 years of experience as a lawyer. He can help you plan for the future by creating a Minnesota Estate Plan. For more information, please visithttp://www.mnestateplan.com or call toll free at 1-888-910-5297.

The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.

Critiquing an Expert Report - Assumptions

By Jason Kwiatkowski

The most important step to critiquing an expert report involves identifying and assessing the reasonableness of the assumptions relied upon by the expert. The extent to which the underlying assumptions are not reasonable and/or not supported can significantly impact the reliability of the findings.

An expert report should identify the underlying assumptions. In Canada, Chartered Business Valuators (CBVs) must follow CICBV Practice Standard 310 for Expert Reports which states,

"At a minimum, all Expert Reports that will (or likely will) be disclosed publicly (e.g. in open court, in a prospectus, etc.) shall include the assumptions used and the procedures followed to determine the reasonableness and appropriateness of key assumptions." [1]

While reviewing the report, key questions to consider regarding assumptions include:

• Are they reasonable?
• Are they supported by the facts of the case, independent research or third party evidence?
• Are they within the expert's area of expertise?

These questions apply to many expert reports, including those that quantify economic damages in a civil or commercial dispute as well as those that include a business valuation in a shareholder or matrimonial dispute.

Reviewing a complex technical report on damages or business valuation can be a daunting task. There will likely be many minor assumptions and a few key major assumptions. Major assumptions are those that, when altered, will alter the conclusions significantly. Conversely, minor assumptions will have less of an impact on the conclusions when changed. A list of the major and minor assumptions relied upon by the expert should be prepared while reviewing the report.

In my experience, it is common to find fewer than 5 major assumptions underlying a damages calculation or business valuation. The goal is to identify the key major assumptions and assess their reasonableness in light of the facts of the case and the independent research conducted by the expert to support those assumptions. Where assumptions are found to be unreasonable or unsupportable, a sensitivity analysis should be performed to identify the impact on the conclusions of using more reasonable or supportable assumptions.

Examples of major assumptions in a commercial dispute involving a lost profit claim include:

• Volume and/or pricing assumptions with respect to the revenue projections;
• Incremental direct cost assumptions and the resulting profit margin assumptions;
• Time period assumption over which the lost profits have been calculated; and
• Discount rate assumption which has been applied to present value the future lost profits.

I was asked to review an expert report on damages in a breach of tender matter involving a school board and one of its suppliers. The supplier was not selected as the winning bidder and sued for lost profits. The plaintiff's expert quantified lost profits based on the estimated volumes in the original tender bid and did not consider the fact that: a) the actual volumes awarded to the successful bidder were much lower; and b) the school board was not obliged to order the quantities indicated in the original tender.

Our responding report identified this, among other things, as a major concern. This case never proceeded to trial as the parties ended up settling for much less than the plaintiff's expert's assessment.

In another matter, I was retained to review and critique the plaintiff's expert report in an estate litigation involving a business valuation and damages quantification. Ultimately, I presented expert evidence in Court on, among other things, the opposing expert's underlying assumptions. This is noteworthy because the plaintiff's claim was dismissed with the Judge indicating in the Reasons for Judgment that:

"There are a considerable number of assumptions made by the plaintiff's expert that I do not accept as being reasonable." [2]

Both of these cases illustrate the importance of reasonable and supportable assumptions underlying the conclusions contained in an expert report. In my view, being able to identify and assess the major assumptions in an expert report is the most important factor in effectively critiquing an expert report.
__________________________

1. CICBV Practice Standard No. 310 - Report Disclosure Standards and Recommendations (Section 9.2) (https://cicbv.ca/practice-standards/)

2. http://www.canlii.org/en/on/onsc/doc/2011/2011onsc5259/2011onsc5259.html

Jason Kwiatkowski, CA, CBV, ASA, CEPA
President, Valuation Support Partners Ltd. (http://www.vspltd.ca)

For an independent expert's perspective on any opposing expert's report on economic damages or business valuation, contact Mr. Kwiatkowski at jason@vspltd.ca

Defending Your Professional License: What You Need to Know

By Stacie Patterson

A vast majority of licensed professionals go through their entire career without being investigated by a licensing agency. Those who do face scrutiny are often unaware of the process they're about to enter, and as a result, are typically unprepared at the onset to adequately defend themselves.

Do you need an attorney? Do you want to participate in the investigation? Can you continue to practice? How long does the process take? What are the best case/worse case scenarios? These are just some of the questions that may run through professionals' minds upon receipt of a letter from their licensing agency notifying them that an investigation into alleged unethical conduct is imminent. Here are some answers:

• Discuss your situation with an attorney who has experience with license defense. This might sound a bit self-serving-since that's what I do-but I'm not marketing myself; I'm simply recommending that you address license agency scrutiny with an attorney who's handled similar cases. And, it's critical to be brutally honest with your attorney about what an investigation could uncover, so she can guide you appropriately.


• Understand that it may be in your best interest not to participate. The licensing agency is going to conduct its investigation with or without your participation, and the last thing you want to do is provide fodder to it. An agency investigation is often broader than indicated, and you won't be privy to discovery at this juncture-so you won't know exactly what information it has on you and what's being alleged. Your attorney-who knows the entire picture if you've been frank with him-will be able to help you make an informed decision regarding your participation, understanding that the best outcome is the agency deciding it doesn't have enough information to proceed.


• Remove emotion from your decision-making. This is certainly easier said than done, since it's human nature for us to look at any set of facts in a way that benefits us, and color the truth to our advantage. You need to trust your attorney to be an unbiased advocate-and remember that facts can be spun in multiple ways.


• Be aware of the possible next steps. In the event the agency chooses not to close the file, it may file an accusation, which is similar to a criminal complaint, at which time the right to discovery kicks in, so you can see what information it has. As an alternative, the agency may issue a citation, which technically isn't considered discipline and is usually resolved with a fine and/or requirement to complete applicable classes, or a public or private reprimand, the former of which is often available via the Internet.


• Be professional, and proactive as needed. In most circumstances, you'll be allowed to practice during the investigation into your alleged behavior, which in some instances can take years. This delay can be used to your benefit, if there is an issue to address, by entering into rehab or taking other applicable mitigating actions to demonstrate your ability to correct past misdeeds. It goes without saying that your ongoing behavior must be totally above reproach.


• Realize how the process can end. If an accusation is filed, you often have the opportunity to negotiate a resolution or you can assert your right to a hearing. The worst outcome will be to lose your license-but even then you often can reapply after a period of time.

Something to never lose sight of is that it's a privilege, not a right, to have a professional license. And, like a felony conviction, a license revocation can adversely affect your career for the rest of your life. For example, a Realtor licensing board may look askance at an applicant who had her nursing license taken away; the industries are totally different, but behaving ethically and professionally is a common bond.

Stacie L. Patterson
Professional License Defense & Criminal Defense Lawyer
Since starting her own practice in 2008, Stacie focuses on professional license and criminal defense. Before starting her own law firm, Stacie was a trial attorney with a small litigation firm focused on professional liability defense and white collar criminal defense. She represented individuals under investigation and/or being prosecuted for white-collar offenses in both federal and state court. Prior to that, Stacie worked as a deputy public defender for 11 years, defending individuals charged with serious felonies and misdemeanors including DUIs, drugs, murder, rape, child molestation and domestic violence.

The Benefits of Using a Private Investigator For Your Investigative Needs

By Nicholas Chua

When many people think about a private investigator, they conjure up images of detectives from TV shows and movies. They may envision a glamourized version of a detective's workday, but they fail to consider the incredible amount of skill and expertise that is needed to be successful in this line of work. If you need to conduct an investigation yourself, it may have crossed your mind to simply assume the role of an investigative agent yourself. However, there are several key benefits that you can enjoy when you do engage the services of a private investigator.

Better and Faster Results

A private investigator is a highly skilled and trained individual. Many of these professionals have a background in law enforcement, a criminal justice degree or other backgrounds that have been helpful in establishing their current career path. Some investigators may have specialization in background investigations, computer forensics, financial forensics or other areas that may be helpful to you. Furthermore, because these professionals have conducted numerous investigations and have established industry connections that can be utilized as needed, these professionals generally can provide you with improved results. In fact, a private investigator may use his sleuthing skills to uncover information that you may never be able to uncover on your own.

A Safer Experience

There are many different scenarios when a private investigator's services may be used. With some cases, an investigation involving possible criminal activity may be conducted. In other cases, those being investigated may stand to lose significantly, and they may not be happy about your investigation. For example, your case may involve corporate fraud, or it may involve infidelity in a marriage where a prenuptial agreement is in effect. Some people will lash out when they discover they are being investigated. A private investigator will use expert skills to uncover the true facts and accumulate evidence that may be admissible in court, but he will do so discretely so that the investigation remains unknown to those who are the subject of your inquiry.

The fact is that you may be able to uncover the truth about a matter that you are looking for through your own efforts. However, in many cases, it is better to use the professional skills of a private detective. The skills, education and experience of this type of professional can be used to help you find the information you seek in a faster yet discreet manner, and the professional may use techniques that will deem the information discovered to be admissible in court.