Tort Law and Mass Torts

Posted October 13th, 2012 by admin and filed in Uncategorized

A tort can be most simply defined as a civil wrong. Tort law differs from criminal law in that tort doesn’t have to be an illegal action but something done that causes harm on a personal level. Whereas a crime is generally brought by the state because it causes harm to the society as a whole.

The word tort comes from a Latin word meaning “twisted” or “turned aside.” A more specific definition would be an act that is turned aside from the standard of proper conduct. Tort law seeks to compensate the victim for his loss. The definition of tort law itself brings many cases into question. The reason for this is because the standard of proper conduct must be specifically defined in order to determine what type of  conduct is wrongful.

Therefore, some cases are quite easy for judges to discern while others are more difficult. The easier cases are used by judges, lawyers and tort scholars to develop policies and principles that set the standard for the more difficult cases. The majority of tort cases are brought by an individual plaintiff against an individual defendant resulting from a singular event.

However, more and more in recent decades, mass torts have become more frequent. A mass tort involves multiple injuries produced by a single accident. Examples of mass torts include explosions, the sale of a harmful drug, or the use of asbestos. Mass torts are challenging for the court because of the massive number of cases involved. Even when the court does undertake a mass tort, it is difficult to adequately divide justice amongst victims with different injuries who may sue at various times.

What is Plea Bargaining?

Posted October 5th, 2012 by admin and filed in Uncategorized

Frequently, when reflecting on the criminal process, images of a heated courtroom stand-off between the prosecution and defense come to mind. However, ninety to ninety-five percent of all criminal cases actually never make it to the courtroom. Instead, they are terminated with out a trial when the defendant pleads guilty. To execute this type of arrangement, lawyers use plea bargaining.

A plea bargain is an agreement between the defendant (through the mediation of the attorney) and the prosecutor. The details of the agreement mean the defendant will plead guilty in exchange for the prosecutor’s reduction of the seriousness of the charges against the defendant. This may mean even dismissing some of the charges pending against the defendant, abstaining from bringing forth other charges or helping the defendant receive a more lenient sentence.

Often, the prosecutor will initially assign as many charges possible in the case to permit himself more leverage in the plea bargaining process. The defendant’s attorney will often initiate a plea bargaining when the likelihood of conviction of his client is quite high. Due to the lack of funding available to the courtroom process, plea bargaining is also an affordable option. It is less time-consuming for attorneys and judges who often have a backlog of cases at hand. There isn’t the time or money for every case to go to court.

In white-collar crimes, often the defendant is not even required to plead guilty in order to take advantage of the plea bargaining process. Instead, the defendant may enter a plea of “no contest” or “nolo contendere.” This is simply a statement that he does not oppose the charges against him but is not technically an admission of guilt.

Due Process Defined

Posted September 30th, 2012 by admin and filed in Uncategorized

Due process is the legal requirement that the government must respect the constitutional rights of its people. Both the fifth and fourteenth amendment refer to a person’s right to life, liberty and property. In order to follow due process, the government must abide by the requirements of the law. Interestingly, although these terms are granted by the constitution as a person’s entitlement, the constitution also place tremendous power in the hands of the government to deprive a person of them if the right procedure is followed.

Due process obligates the government to allow for a fair trial, a right of appeal, and an attorney for the accused if he needs one. It helps secure that government policies and rules of law will be followed properly. Notice of the issues, an opportunity to present evidence and arguments, the cross-examination of witnesses, the right of representation by an attorney etc. are all included in the notion of due process.

Definitions of a Person’s Rights

  • The right to life arises most frequently in death penalty cases. However, it is also an issue in abortion cases.
  • The sense of liberty includes by constitutional definition, physical freedom. The Supreme Court defines liberty as “not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized…as essential in orderly pursuit of happiness by freemen.”
  • The right to property includes tangible and intangible property. Without a fair procedure, the government cannot legally use or confiscate property.

The Role Legal Secretaries Play in Assisting Lawyers

Posted September 23rd, 2012 by admin and filed in Uncategorized

A legal secretary is a valuable assistant to a lawyer. Typical job responsibilities range from administrative tasks to basic accounting as well as the preparation and filing of legal documents. There is no specific degree qualifying someone as a legal secretary. However, they are not just administrative assistants because they must have detailed knowledge of legal procedures in order to adequately perform their job responsibilities.

History of Legal Secretaries

Three to four hundred years ago in England, legal secretaries existed but were known as clerks. Their role was to copy the results of lawsuits and other legal matters for their superiors while they occupied themselves with the business of law. The clerks were in training for the law profession themselves and were in essence, apprentice lawyers.

Specific Job Responsibilities

Although a legal secretary’s job responsibilities generally include correspondence, pleadings, filings, keeping the legal calender for the lawyer and proof reading, they can vary depending on the type of lawyer the legal secretary serves.

A legal secretary to a…

  • Tax Attorney prepares tax returns, keeps up-to-date and informed about current tax laws, and contacts clients,
  • Estate and Trusts Attorney helps prepare wills and the final tax returns for the deceased.
  • Real Estate Attorney verifies accuracy of the title search, appraisal and deed and participates in actual closing.
  • Corporate Attorney helps draft contracts and other documents.
  • Criminal Attorney takes calls from those recently arrested and handles the paperwork for their release.
  • Solo Attorney handles a large amount of responsibilities for the lawyer including all administrative functions and some accounting functions as well.

 

The Role Paralegals Play in Assisting Lawyers

Posted September 13th, 2012 by admin and filed in Uncategorized

Lawyers spend a lot of time preparing for cases. They also spend time interacting with clients. Many tasks require their specialized knowledge of the law. However, there are other tasks paralegals can undertake for the lawyer.

The Role of Paralegals

The main role paralegals serve in assisting lawyers is researching. They support lawyers by gathering and organizing background information and data to support the case involved. In addition, they may draft arguments, make suggestions for witnesses and help the lawyer with documents during the trial.

With the help of a paralegal, a lawyer is much more productive with his time. Paralegals may also perform office duties like organizing files and maintaining the firm’s financial files. A paralegal may be employed by a law office or work free-lance. They bill their time like lawyers but at a much lower hourly rate.

Two Types of Paralegals

There are two types of paralegals: transitional and career.

  • Transitional paralegals: Typically, transitional paralegals have graduated from college and choose to work as a paralegal for a year or two before attending law school.
  • Career paralegals: Career paralegals have made the role as a paralegal a long-term career. The educational requirements for this position vary from region to region. Some firms desire paralegals to be an “ABA”-approved paralegal school graduate.

Paralegals lighten a lawyer’s workload. Their hard work, experience and dedication to research, organization and paper work saves the lawyer time and allows him to focus on the practice of law.

 

A Variety of Law Environments

Posted September 10th, 2012 by admin and filed in Uncategorized

There are a variety of work environments for those who practice law. They range from private practice, corporations, and government to nonprofit, education, group and prepaid legal services. By far, the majority of lawyers are employed in private practice where they focus on criminal or civil law.

Private Practice

When a lawyer has a private practice, he must also handle the business aspects of the job. Solo practitioners work alone with a legal staff. Unfortunately, solo practitioners show the lowest per capita income of any group of attorneys. On the other hand, the highest paid group of private practice lawyers work in large law firms. Yet, small law firms comprise the largest part of the private practice sector.

Corporations

An in-house lawyer of a corporation has the opportunity to do a variety of legal work. An in-house lawyer works in a law department, most likely earning a better salary then in a law firm and have numerous fringe benefits.

Government

Government lawyers work for federal, military, state, judicial, city and quasi-governmental agencies. The financial payoff is less than the other two options mentioned above but there is better job security and better work hours.

Nonprofit

These positions are government funded, providing law services for people who cannot afford them. In addition, nonprofit lawyers can work for specific political action, law reform and special interest groups.

Education

Lawyers can work at all educational levels. In addition to being employed in a school system, whether it be at a college on down to primary school, a lawyer may also host educational seminars or workshops. Sometimes a private practice lawyer supplements his position with a teaching position, a great asset to add to any resume.

Group and Prepaid Legal Services

This type of law environment serves the middle class. However, these legal plans are not very popular. They offer legal services through a trade or professional association such as a union.

 

An Overview of the History of Law

Posted August 30th, 2012 by admin and filed in Uncategorized

Mankind has an innate need for rules and regulations to govern their behavior. Some may think they prefer something close to anarchy because they fear any type of authority. When no form of government or law exists, a group will seek to arrange them, no matter how loosely. Watch children play and often a game is invented with rules governing their play. A collection of rules established by some authority is a basic human need.

The first legal system on record is the Code of Hammurabi in 1900BC. It is named after the Mesopotamian ruler who appropriated it. It consisted of a series of laws defining crimes and their punishments. Prior to the code of Hammurabi, rulers changed laws at will. With the adoption of this code, Hammurabi governed his society by the rule of the law, which modern societies still employ today.

The study and profession of law has its roots in Roman times. As the laws of society became more complex, experts in understanding the law were needed. A group of Roman aristocrats studied and established the law. They became known as legal advisors or juris consults. Soon after, orators studied the law and presented cases. The birth of litigation began when procurators started writing up documents. Law schools were even founded to educate citizens about the law. Essentially, Europe’s legal profession has its roots in the Roman system.

After the Norman Conquest, “common law,” based on custom, was founded in England’s royal courts. Next, “equity” was developed on the code of conscience. In the 18th century, there was the introduction of “natural law,” emphasizing the natural rights of humans.

 

The Bar Exam

Posted August 25th, 2012 by admin and filed in Uncategorized

The journey towards a career in law can be long and arduous. A bachelor degree must be obtained, law application process endured and law school completed. Once a student graduates from law school, the bar exam must be passed in order to be permitted to practice law in that state.

The requirements and exams vary from state to state. The Multistate Bar Examination is required in 48 states, including Puerto Rico and the Virgin Islands. Interestingly, Louisiana and Washington do not obligate lawyers with this qualification. The bar exam lasts for 6 hours.

Occasionally, the state will tack on a State bar exam in addition to the Multistate Bar Examination. In some states, the Multistate Essay Examination may also serve as part of the requirement.

The last ten years have seen an addition to the traditional bar exam in some states. The Multistate Performance Testing has been added to evaluate the practical skills of novice lawyers. It is typically given at the same time as the bar but some states allow it to be taken during law school after a completion of a course on legal ethics.

Beginning in 2001, law students in 52 jurisdictions were also obligated to pass the Multistate Professional Responsibility Examination. This helps assess the law student’s knowledge of the ABA Codes of Professional Responsibility and Judicial Conduct. Just like the Multistate Performance Testing, this exam may also be taken during law school after a course on legal ethics.

In addition to the numerous components of the bar exam, a character and fitness investigation is performed. This also entails being fingerprinted and disclosing confidential medical information about psychological treatments etc. A convicted criminal or a participant in immoral activities almost always disqualifies the law student from certification.

The Socratic Teaching Method

Posted August 18th, 2012 by admin and filed in Uncategorized

The Socratic teaching method is the common form of teaching used in law schools. Prior to a student’s entrance into law school, he may not have much experience with the Socratic method. Due to the enormous class size, professors depend on the Socratic method to provide active learning and participation amongst around one hundred students.

The name Socratic teaching method finds its origin with the classic Greek scholar Socrates. It is used to stimulate critical thinking where there often is no right or wrong answer. The discussion actually is debate of sorts.

The Socratic Teaching Method in Law Classes

In a law school setting, professors will call on students who don’t necessarily volunteer. The student will then be required to summarize the details of a case assigned to the class. The student then must take a position either for or against the case. After doing so, the professor then asks numerous questions of the student, probing him to defend his position.

At first, this teaching method can be intimidating. But speaking in public comprises a large part of a lawyer’s job. The Socratic method allows for ample practice in forming a thorough and effective argument. It also fosters the development of analytical and reasoning skills. The professors use it to give their students a greater understanding of the intricacies of the law.

The law must not just be memorize. A lawyer must skillfully apply it to a variety of situations. The Socratic teaching method offers ample opportunities to do this in the classroom before a lawyer must do this in the courtroom.

 

A Lawyer’s Job Description

Posted August 13th, 2012 by admin and filed in Uncategorized

The profession of lawyer is a service industry. At the core of the profession is the desire to help people. There are a variety of work settings available to a lawyer. A lawyer may serve in public service. The largest paychecks however are in the corporate practice of law such as corporate law, mergers/acquisitions, corporate finance, tax or working in house for a corporation.

Essentially, a lawyer is committed to the peaceful resolution of disputes. To provide this function, a lawyer plays both roles of advocate and advisor.  As an advocate, his job is to represent one of the parties in criminal or civil actions. As an advisor, he offers counsel to his clients of their legal right and obligations while recommending specific courses of action. He may also act as negotiator, helping to settle a case to his client’s advantage. At times, he serves as an intermediary between clients. Having strong communication, evaluation and interpersonal skills assists a lawyer in his variety of functions.

Whether playing the part of advocate or advisor, all lawyers interpret the law and apply it to particular situations. Occasionally, lawyers are met with a personal conflict when handling a case. He might find himself at odds with his responsibilities to his client, to the legal system and to his own personal interests. In these cases, he must use good professional and moral judgement to resolve the matter. In doing so, he must also adhere to the Rules of Professional Conduct and seek out other lawyers for sound advice.