Feb
07
2010

Attorneys: GET LISTED!

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Feb
07
2010

Personal Injuries Law-Understanding Legal Negligence Is Critical To Your Case

If you wish to pursue a personal injuries action against someone you will need to prove negligence on the part of the defendant.

But what exactly is negligence?
Firstly it is necessary to recognise that legal negligence and negligence as you would normally understand it are two different concepts. Ordinary, everyday negligence could be running late for a date or forgetting your wife’s birthday and whilst the consequences may be pretty severe in both these situations, it will not normally result in a law suit.

Legal negligence is a different concept and before looking at precisely what it is it must be pointed out that in order to sue for damages arising from a personal injury you will have to prove legal negligence.

Negligence forms a central plank in Tort law and it comprises 5 components, each of which must be proved to win your personal injury legal action.

Firstly the person who you are suing, the defendant, must owe you a duty of care under the law.
Secondly that duty of care must be broken. Thirdly there must be a direct link between the duty of care being broken and the injury that you then suffer.
Fourthly, there must have been some degree of forseeability between the action taken by the defendant and the subsequent injury that you suffered.

Finally any damage or injury that you have suffered must arise as a result of the conduct or action of the defendant.

Who owes me a duty of care?
In law, everybody owes you a duty of care but the standard of care that they owe you is that of the ordinary man. In other words the duty is based on the old legal concept of reasonableness which leads to the question “what would a reasonable man, exercising ordinary care in the circumstances, have done?”

So if and when your case comes to court the judge will explain to the jury this notion of duty of care and the reasonableness standard and the jury will answer the question “what would a reasonable person have done in this situation”. If the jury finds that the defendant, the person who injured you, acted reasonably and like an ordinary, sensible person would have acted, then you will lose your case.

It is important to realise too that the standard of reasonable conduct is an objective one which simply means that regardless of the particular characteristics of the individual concerned, the jury will decide what an ordinary person would have done.

A subjective test would be where the jury would make allowances for the intelligence, ability, education, social background etc. of the defendant. This clearly would be unfair on society because it would mean that really stupid people would, quite literally, get away with murder.

In conclusion to succeed with a personal injuries claim against another person you will need to prove your case on the balance of probability (the civil standard of proof) and that the 5 elements of negligence set out above were present.

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Feb
07
2010

Do I Really Need A Lawyer?

There are many occasions in our life when we need to hire a lawyer and before even looking at the questions you might put to any legal professional before engaging their services there is one question you need to ask yourself first-“do I need a lawyer?”

It is possible that whatever difficulty you are facing can be resolved without the need for a lawyer and the sensible use of dialogue and common sense can resolve many differences when your first instinct is to hit the phone book and dial A for attorney.

For example a dispute with a neighbour over a boundary fence, excessive noise or the myriad of problems which do occur from time to time with neighbours may be better addressed by speaking to your neighbour directly or through a third party such as a mediator.

Other instances that you might address yourself include the small claims procedure in your local state which is set up to allow people resolve their disputes without the need for hefty legal bills. Court staffs are generally very helpful with any questions that you might have and will give the correct forms to fill out and the proper procedure to follow.

An important factor to also consider before hiring a lawyer is this: the lay litigant, that is the ordinary person without legal representation, in my experience always gets a good deal from the court and the reason for this is the basis on which our laws are built.

When you think of laws and justice a symbol you will always see in your minds eye is the scales- the scales of justice. This represents a balancing of the rights of each person in a dispute on which the judge will pass judgement. Judges are very conscious of the need to ensure that when faced with a decision that they are keeping those scales balanced. When a judge is faced with a lay litigant on the one hand and an experienced legal professional on the other side of the argument the judge will always ensure that the scales are put in balance by being very helpful and courteous to the lay litigant to ensure that his rights are not trampled on by a slick, experienced lawyer.

For this reason you may consider representing yourself in minor matters and where the cost of hiring a lawyer is prohibitive or where you might just be totally strapped for cash. However you should think long and hard before representing yourself because it can prove very costly in the long run.

In my next article I will look at the critical questions you need answers to before hiring an attorney.

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Feb
07
2010

7 Critical Questions To Ask Before Hiring A Lawyer

Once you have decided that you need a legal professional to represent your interests and that there is too much at stake to try doing it yourself, then you need to choose carefully. Some of the critical questions you will need to ask are

Is there a free consultation at the outset to allow you to discuss your problem? Many lawyers will charge a fee for any type of consultation but there are many who will discuss the matter with you and allow both of you to see if you are comfortable working together
Is the attorney experienced in the area of law that concerns you now? For example you might have a child custody problem and a messy divorce. Your lawyer, who is a hot shot criminal or litigation attorney for example, will be no use to you if he/she does not practice day in and day out in the area of law that concerns you.
How does the lawyer arrive at his fee structure? Does he charge by the hour or can he give you an estimate of his fee for various steps up to a particular point in the litigation?
How long has he/she been in practice?
Is he/she registered with the appropriate licensing bodies in your state and does he carry professional negligence insurance?
What are the likely outcomes of my case? You must accept that no attorney can predict with certainty the outcome of a particular case but an experienced lawyer who is practicing daily in the area of law that concerns you should be familiar with local and national decisions and should be able to advise you of the various likely outcomes. He/she should be also familiar with the local judges’ views and prejudices because judges, like all other human beings, have their own world view and prejudices and this can be reflected in their judgments.
Ease of access-how accessible is your attorney going to be once the legal proceedings are instituted? The wheels of justice grind slowly and if your case is one that will run for some considerable time there are issues and questions that will arise to which you would like answers. You do not want to find that your attorney is inaccessible and your only option is his/her secretary or his messaging service.

A legal battle can be long, messy and expensive. It is important for you both personally and professionally that the person on whom you will be relying is the right person for you. You need to feel comfortable with your attorney and you need to be able to trust that they are representing your interests to the best of their ability.

Hopefully satisfying yourself with the answers to these questions will help you to make the right choice.

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