One of the great things about living in America, is we have something called “the rule of law.”
So, just what is that?
Well, in the U.S., instead of having a king sitting on a throne, we believe “the law is king.” That means that we believe we are ruled by laws, not other men and women. “The rule of law.” It’s precious stuff, friends.
So, what does any of that have to do with lawsuits.
Well, it turns out, that people just living their daily lives, are going to have problems that come up in dealing with other people.
There’s two ways to solve problems having to do with money, property or your person, what we call “civil” problems.
One is something called “self help.” In other words, if your neighbor built a high fence and you don’t like it, self help is taking a saw and cutting it down without permission.
Only we learned a long time ago that self help causes all kinds of problems. If you don’t believe me, try cutting down your neighbor’s fence and report back to me what happens. No, just kidding. Don’t do that. Self-help isn’t really all that helpful.
The other way to solve civil problems is something called a civil justice system.
When someone wants to solve a problem using the civil justice system, they file papers asking for some kind of relief. That’s basically what a lawsuit is. Pretty simple, huh?
Now, there is plenty of debate these days about whether there are too many lawsuits, or too few, and all that kind of stuff that I know you hear about all the time.
But, the truth is, when you have a civil problem, it become real important to you that someone can help you solve that problem in the fairest, least expensive and quickest way.
Now, I’m not here to give you legal advice and there are differences in how courts work in each state and in the federal system. Still, spend a little time with me and I think I can tell you some things that you didn’t know before and, hopefully, will help you with whatever problem you need to fix.
I was in Fresno County on a case and picked up The Selma Enterprise to read during breakfast. Fine little paper!
Anyhow, a column titled “You and the Law” caught my eye and I thought, “Wow, this is good stuff!”
The columnist is Bakersfield attorney Dennis Beaver (661/323-7911 or Lagombeaver1@gmail.com) who it turns out writes a regular column.
Mr. Beaver graciously gave me permission to reprint his column, so here you go:
You and the Law
But the Phone Book Ad Said, ‘No Recovery Fee’!
By David Beaver, Esq.
It is impossible to turn on TV, open the phone book to the attorneys section or surf the Web and not find ads for personal injury lawyers, which generally all sound pretty much the same and stress, “No recovery, no fee.”
Sounds like a great way of hiring a lawyer, doesn’t it? The ads want you to think, “The lawyer who takes my case puts in all the time and gets paid only if we get paid. For me, it’s a no-brainer, a free ride, I can’t lose. Sure, I’ll sign!”
So you phone the “800” number flashed on your screen and wind up hiring the “No recovery, no fee” lawyer, who then loses your case after years of litigation. Are you on the hook for anything?
Well, you could easily get a letter from the attorney which reads, “I am sorry that we lost your case. Now we need to talk about how you are going to pay us for …”
“Pay us? What part of the no-fee stuff means that I have to pay anything at all?” you might be thinking. And, in fact, one of the most frequent complaints to state bar associations from unhappy clients deals precisely with the meaning of the words “no fee” and the resulting confusion. So, what does “no fee” really mean?
No fee does not mean free
Ron Jones specializes in business and real estate law in Hanford and sees the public confusion as a result of two factors.
“When most people think of hiring a lawyer — let’s say, in a divorce or contract dispute — they usually are concerned with the amount that lawyer will bill for time spent on the case. If it is a personal injury matter, fees are often on a percentage basis — for example, one-fourth to sometimes half of the amounts recovered, plus costs.
“There is generally more to most cases than just the lawyer’s time,” Jones points out. “The written retainer agreement lawyer and client sign must set out clearly what out-of-pocket expenses incurred the client will be expected to pay. There is a difference between attorney fees — what a lawyer charges for time, document preparation and advice — and costs, which are other expenses incurred for the client’s benefit.”
Some example of costs
Costs can include any and all of the following, and again, we are not talking attorney time, rather, the out-of-pocket expenses which clients can be responsible for:
• Postage and shipping costs
• Photocopy and binding expense
• Travel expense, including mileage, train and airplane
• Lodging and meal expense
• Deposition and court reporter charges
• Video conferencing/long-distance telephone charges
• Expert witness fees, such as forensic accountants in divorce cases
• Private investigators
• Computerized research if the law firm is charged by the provider
• Possibly secretarial and paralegal time
• Court filing fees.
“Who pays what, under what circumstances and when, should be clearly set out in writing,” Jones observes. He describes three basic types of retainer agreements:
1) The client pays attorney fees and all related costs and expenses, such as hiring a private investigator, an accident reconstruction expert, accountant, etc.
2) The law firm covers everything and the client reimburses the law firm out of the recovery, only if there is one.
3) The client pays no attorney fees unless the case is successful, but does pay the out-of-pocket costs.
“Fee agreements where the lawyer covers all expenses related to the case are typical in personal injury cases where it is likely there is going to be a recovery. You will not normally find this in cases which have a limited chance of success or which have a low dollar value,” he notes.
“It is important for the public to understand that law is a business with a bottom line. Reasonable lawyers try to not accept cases which appear as doubtful or which have a minimal chance for success. With most personal injury cases — where the lawyer is paid a contingent fee — an experienced attorney who is good at selecting cases will only take those which will likely provide a desirable result.”
How not to be surprised
“Always read the retainer (fee agreement) very carefully,” Jones stresses. “If you do not understand the fee agreement, but are inclined to hire the lawyer, it is a good idea to take that retainer to another attorney and pay for a consultation in which it can be clearly explained to you. Also, it’s a good idea to set out in writing, that before your lawyer incurs any costs which might exceed, say, $1,000, that your approval is required.”
“Finally,” the Hanford lawyer underscores, “when you do not have a working history with that attorney and fees are expected to exceed $1,000, California law requires a written, signed agreement.”
Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to him at 661-323-7911 or emailed to him at firstname.lastname@example.org.
“[W]hen a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [Citation.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner’s acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]” (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712 [Jones ], disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466–1471 [Sanchez ].) Stated another way, “when the owner has accepted a structure from the contractor, the owner’s failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable.” (Sanchez, supra, 47 Cal.App.4th at p. 1467.) The doctrine applies to patent defects, but not latent defects. “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Sanchez, supra, 47 Cal.App.4th at p. 1467.)
Neiman v. Leo A. Daly Co. (Cal. Ct. App., Oct. 30, 2012, B234537) 2012 WL 5333416
California is blessed with great weather and many places to enjoy it. Three days off work jammed roads and driving distracted can be a deadly combination this weekend.
Memorial Day Weekend brings increased traffic and a sad history of a high number of highway tragedies and the needless loss of life.
“When everything comes together just right like on Memorial Day weekend, we hit the road and unfortunately some of us hit each other,” reports Chris Cochran of the state Office of Traffic Safety.
Law enforcement throughout California will be looking for drivers and passengers who don’t buckle up during the “Click-it or Ticket” seat belt enforcement campaign. They will be on the lookout for drivers and passengers – including passengers in the back seat, day and night.
So when you load up the family in the car this weekend please do so safely.
Eliminate those distractions you can control. (cell phone, texting, eating, grooming, etc.)
Share the road. Watch out for other drivers, riders and pedestrians on the road.
Don’t put your own life at risk, or the life of your family or friends. One needless car wreck can wreck it all.
Between the California Highway Patrol and local law enforcement agencies throughout the state, 57,000 tickets were issued during Distracted Driving Awareness month, for driving while using a handheld cell phone or texting, and another 3,800 for additional distracted driving violations which could include eating, grooming, programming a GPS, and other functions.
“Unfortunately, we’re seeing that the problem of cell phone use for talking and texting while driving is not going away anytime soon,” said California Office of Traffic Safety (OTS) Director Christopher J. Murphy. “There are those who understand the dangers and have curtailed their use, while others think the hazards apply to everyone else but them.”
The ability to safely multi-task while driving is myth. While many people know texting while driving increases crash risk, the lack of understanding about the risks of phone conversation, even hands-free, while driving remains a challenge. Talking on hands-free or handheld cell phones requires the brain to multitask – a process it cannot do safely while driving.
To explain the limitations of the human brain when multitasking the National Safety Council (NSC) released a white paper, “Understanding the Distracted Brain: Why driving while using hands-free devices is risky behavior.“
It only takes a second to swerve a few feet.
Swerving out of your lane to the left could put you in line of another vehicle coming in the opposite direction. Swerving to the right could cause you to hit a pedestrian or another car slowing down to turn right. Big trucks do not have the ability to stop or swerve to miss a car that unexpectedly swerves into their lane.
Looking away for only a second, you could miss seeing the motorcycle in front of you or one that is splitting lanes next to you.
Looking away for only a second is all it takes to potentially cause serious injuries to yourself or another person – or worse – even death. One teenage driver currently under arrest said the distraction of a hand-held cell phone caused her to fatally hit a 44-year-old jogger.
April was Distracted Driving Awareness Month and May is Motorcycle Safety Awareness month. The consistent message here is to be aware of the distractions that take your mind and eye off the road, even for that nano second.
Common sense tips to protecting yourself from distracted driving:
> Put your cell phone out of reach when you get in the car so you won’t be tempted to use it.
> Mention on your outgoing voicemail message that you won’t answer when you are driving.
> Don’t call or text anyone when there is a good chance that they may be driving.
> When you must call or text, pull into a parking space.
> Never eat, groom, program a GPS, check Facebook, run an app, read or otherwise allow your full attention to leave the task of safely driving.
Share the road. Drive safe.
According to new research published in the Journal of Neuroscience even mild head injuries can cause significant abnormalities in brain function that last for several days.
Scientists at the Virginia Commonwealth University School of Medicine say this may explain the neurological symptoms experienced by those who have experienced a head injury associated with sports, accidents or combat.
Previous research has shown that even a mild case of traumatic brain injury (TBI) can result in long-lasting neurological issues, such as slowing of cognitive processes, confusion, chronic headaches, post-traumatic stress disorder, and depression.
Protect your brain. Head injuries can occur from playing sports, a motorcycle crash, an auto accident, falling on the ground and many other accidents. TBI affects all ages, all ethnic communities, and all professions, but is particularly prevalent in young children and older people where it is now the leading cause of death and disability. Among older people, falls are the primary cause of TBI, and among younger people, car crashes and sports injuries are significant contributors.
People are becoming more aware of brain trauma, but it’s important to continually educate yourself.
Read more on Traumatic Brain FAQ’s .
Drive safe, be aware of other drivers on the road, including motorcycle riders, bicyclists and pedestrians. Wear a helmet when you ride a motorcycle, a bicycle or play certain sports.
Share the road.
The forecasters are predicting warm and clear weather this weekend, stressing the importance of alertness when out on the road.
April was Distracted Driving Awareness Month and May is Motorcycle Safety Awareness Month. It is essential that all road users are reminded to never drive, ride, walk or bicycle while distracted.
Whether a driver is at an intersection or changing lanes, they should always keep an eye out for motorcyclists. Because motorcycles have a much smaller profile than other vehicles, it can be difficult for drivers to judge the distance and speed of an approaching motorcycle.
Motorcyclists have responsibilities, too. They should obey traffic rules, be alert to other drivers, never ride while impaired or distracted, and always wear proper protective gear, including a helmet.
The warmer weather brings more traffic to the roads, especially near the parks and beaches. During thsi time, it’s important to be more vigilant in staying alert while driving and riding.
“Share the Road” is the message during Motorcycle Safety Awareness Month
In a car versus motorcycle crash, the biker will lose every time, however, the passengers in the car can also be fatally hurt at the same time.
NHTSA encourages local, State, and national organizations to use this model “Share the Road” language in their driver awareness programs:
- Road users are reminded to never drive, bike, or walk while distracted. Doing so can result in tragic consequences for motorcyclists.
- A motorcycle has the same rights and privileges as any other vehicle on the roadway.
- Allow a motorcyclist a full lane width. Although it may seem that there is enough room in the traffic lane for a motor vehicle and a motorcycle, the motorcycle needs the room to maneuver safely. Do not share the lane.
- Because motorcycles are small, they can be difficult for other road users to see them, or judge their speed and distance as they approach.
- Always signal your intentions before changing lanes or merging with traffic. This allows motorcyclists to anticipate traffic flow and find a safe lane position.
- Because of its smaller size, a motorcyclist can be hidden in a vehicle’s blind spot. Always check for motorcycles by checking mirrors and blind spots before entering or leaving a lane of traffic and at intersections.
- Don’t be fooled by a flashing turn signal on a motorcycle – motorcycle signals may not be self-canceling and motorcyclists sometimes forget to turn them off. Wait to be sure the rider is going to turn before you proceed.
- Remember that road conditions that are minor annoyances to motorists can pose major hazards to motorcyclists. Motorcycle riders may change speed or adjust position within a lane suddenly in reaction to road and traffic conditions such as potholes, gravel, wet or slippery surfaces, pavement seams, railroad crossings, and grooved pavement.
- Allow more following distance — three or four seconds – when following a motorcycle so the motorcycle rider has enough time to maneuver or stop in an emergency. In dry conditions, motorcycles can stop more quickly than cars.
Shared Respect Among All Road Users Can Save Lives
Motorcycles are vehicles with the same rights and privileges as any motor vehicle on the roadway. Motorcycle Safety Awareness Month is a national initiative aimed at getting motorists and motorcyclists to “share the road” with each other.
“NHTSA estimates that helmets saved 1,829 motorcyclists’ lives in 2008, and that 823 more could have been saved if all motorcyclists had worn helmets.”
Motorcycle helmets provide the best protection from head injury for motorcyclists involved in traffic crashes.
Protect your brain! It’s the only one you’ll ever have! Learn more.
May is Motorcycle Safety Awareness Month.
Every year around prom and graduation, a number of high schools around the country host elaborate mock crashes to drive home the dangers of distracted driving. Police officers, firefighters and emergency medical personnel stage a mock motor vehicle collision on the grounds of the schools in an effort to remind students how driving under the influence of alcohol or drugs or driving while districted by texting or talking on a cell phone can have deadly consequences. The practice dates back to the early 1990s. The scenes are meant to shock and startle.
But they may not pack the punch organizers are going for even as emergency responders, fire-rescue trucks, helicopters and other community resources are deployed to show what happens after a major crash. Research shows that a few days after the mock crash the gripping display of twisted bodies and metal fades from teen’s minds, and their sense of invincibility returns, said Penny Wells, executive director, Students Against Destructive Decisions (SADD).
According to the Department of Health and Human Services, Office of Adolescent health (HHS), motor vehicle crashes are the leading cause of death for U.S. teens, accounting for more than one in three deaths of high school students.
Parents need to encourage your young driver to drive responsibly by following speed limits and avoiding distractions while driving such as talking on a cell phone, focusing on the radio or even looking at fellow passengers instead of the road. When parents set the example, it is more likely the teens will do the same.