One of the first obstacles a plaintiff (i.e., the party filing the lawsuit) encounters at the beginning of a lawsuit is a motion to dismiss (known in some states as a demurrer) for failure to state a claim (AKA failure to state a cause of action). In essence, this motion (or demurrer) challenged the LEGAL sufficiency of the complaint. In this episode, I will discuss*:  The main grounds for a motion to dismiss (or demurrer) for failure to state a claim (AKA failure to state a cause of action) Common mistakes made by pro se / pro per parties (and even attorneys!) How certain defective complaints can be cured to defeat a motion to dismiss (or demurrer) Much more!  For videos, articles, and podcasts regarding motions, discovery, trials, and everything civil litigation, check out TheLegalSeagull.com! * Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

One of the first obstacles a plaintiff (i.e., the party filing the lawsuit) encounters at the beginning of a lawsuit is a motion to dismiss (known in some states as a demurrer) for failure to state a claim (AKA failure to state a cause of action). In essence, this motion (or demurrer) challenged the LEGAL sufficiency of the complaint. In this episode, I will discuss*: <ul> <li>The main grounds for a motion to dismiss (or demurrer) for failure to state a claim (AKA failure to state a cause of action)</li> <li>Common mistakes made by pro se / pro per parties (and even attorneys!)</li> <li>How certain defective complaints can be cured to defeat a motion to dismiss (or demurrer)</li> <li>Much more!</li> </ul> For videos, articles, and podcasts regarding motions, discovery, trials, and everything civil litigation, check out <a href="http://TheLegalSeagull.com" rel="nofollow" target="_blank">TheLegalSeagull.com</a>! * Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

What is a Demurrer (or Motion to Dismiss) for Failure to State a Claim?

The terms "affidavit" and "declaration" are often used interchangeably . . . but there are slight differences between the two. In this short episode, you will learn: - What is an affidavit? - What is a declaration? - How is an affidavit similar to a declaration? - What is the main difference between an affidavit and a declaration? - Why do some people prefer affidavits to declarations? - What obligations does an affiant or declarant have? Like this episode? Check out more video, podcasts, and articles at www.TheLegalSeagull.com and subscribe to the YouTube channel for more!

The terms "affidavit" and "declaration" are often used interchangeably . . . but there are slight differences between the two. In this short episode, you will learn: - What is an affidavit? - What is a declaration? - How is an affidavit similar to a declaration? - What is the main difference between an affidavit and a declaration? - Why do some people prefer affidavits to declarations? - What obligations does an affiant or declarant have? Like this episode? Check out more video, podcasts, and articles at <a href="http://www.TheLegalSeagull.com" rel="nofollow" target="_blank">www.TheLegalSeagull.com</a> and subscribe to the <a href="https://www.youtube.com/channel/UCagLtY-gqvyQ1uUnSvd2gnA" rel="nofollow" target="_blank">YouTube channel</a> for more!

Affidavit vs. Declaration: What's the Difference Anyway?

If someone sues you and obtains a judgment, he/she can pursue your personal assets to satisfy the judgment. This may include your savings, salary, personal property, jewelry, and even your house. Lawsuits can come out of nowhere. You get distracted and rear-end the car in front of you. Your rotting tree falls and demolishes someone's Jaguar. Your dog bites the pizza delivery girl, ending her lucrative side job as a hand model. [Fill in the blank with more unexpected and costly misadventures]. To maximize the effectiveness of asset protection, you really need to get things rolling BEFORE you're sued. After a lawsuit has been filed–and especially after a judgment is entered–many conveyances of money or property are considered invalid and can be reversed by a court of law.  In this episode, I will explain five relatively simple steps you can take to protect your assets before you get sued:   Form an asset protection trust Form a corporation or business entity Learn and understand your state's real estate protection laws (e.g., homestead exemptions, types of title, etc.) Increase retirement account contributions (employer-sponsored)  Remember that laws regarding liability and judgment enforcement are largely based on state law and are therefore different in every state. The concepts and principles discussed in this episode are not state-specific and may not apply in your jurisdiction. This episode is not a substitute for the advice and services of an attorney licensed in your state. Note: This is a re-recording, re-mastering, and re-storing of an older episode by the same name. Like this podcast? Check out The Legal Seagull's website for more videos, blog posts, and podcast episodes! Subscribe to the Youtube channel! Like us on Facebook and follow us on Twitter  and Instagram.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

If someone sues you and obtains a judgment, he/she can pursue your personal assets to satisfy the judgment. This may include your savings, salary, personal property, jewelry, and even your house. Lawsuits can come out of nowhere. You get distracted and rear-end the car in front of you. Your rotting tree falls and demolishes someone's Jaguar. Your dog bites the pizza delivery girl, ending her lucrative side job as a hand model. [Fill in the blank with more unexpected and costly misadventures]. To maximize the effectiveness of asset protection, you really need to get things rolling BEFORE you're sued. After a lawsuit has been filed–and especially after a judgment is entered–many conveyances of money or property are considered invalid and can be reversed by a court of law.  In this episode, I will explain five relatively simple steps you can take to protect your assets before you get sued:  <ul> <li>Form an asset protection trust</li> <li>Form a corporation or business entity</li> <li>Learn and understand your state's real estate protection laws (e.g., homestead exemptions, types of title, etc.)</li> <li>Increase retirement account contributions (employer-sponsored)</li> </ul> Remember that laws regarding liability and judgment enforcement are largely based on state law and are therefore different in every state. The concepts and principles discussed in this episode are not state-specific and may not apply in your jurisdiction. This episode is not a substitute for the advice and services of an attorney licensed in your state. Note: This is a re-recording, re-mastering, and re-storing of an older episode by the same name. Like this podcast? Check out The Legal Seagull's <a href="http://www.thelegalseagull.com/blog" rel="nofollow" target="_blank">website</a> for more videos, blog posts, and podcast episodes! Subscribe to the <a href="https://www.youtube.com/channel/UCagLtY-gqvyQ1uUnSvd2gnA" rel="nofollow" target="_blank">Youtube channel</a>! Like us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a> and follow us on <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>  and <a href="https://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer</a>, located at <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">www.thelegalseagull.com/disclaimer</a>

5 Things You Can Do to Protect Your Assets Before You're Sued

In this episode, I discuss how to write a clear and persuasive motion, using many of the lessons and techniques learned in almost a decade of litigation practice. Included are tips I learned from active and retired judges, and from excellent law and motion attorneys with whom I have been fortunate to work. Want to learn more on how to be an effective courtroom advocate and handle your litigation matter from A to Z? Check out Justice Navigator: The Ultimate Video Litigation Tutorial! Did you enjoy this podcast episode? Check out The Legal Seagull for litigation videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram! * Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

In this episode, I discuss how to write a clear and persuasive motion, using many of the lessons and techniques learned in almost a decade of litigation practice. Included are tips I learned from active and retired judges, and from excellent law and motion attorneys with whom I have been fortunate to work. Want to learn more on how to be an effective courtroom advocate and handle your litigation matter from A to Z? Check out <a href="http://www.justicenavigator.com" rel="nofollow" target="_blank">Justice Navigator: The Ultimate Video Litigation Tutorial</a>! Did you enjoy this podcast episode? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> for litigation <a href="http://www.thelegalseagull.com/videos" rel="nofollow" target="_blank">videos</a> and <a href="http://www.thelegalseagull.com/blog" rel="nofollow" target="_blank">blog posts</a>. Follow us on <a href="https://www.youtube.com/c/TheLegalSeagull" rel="nofollow" target="_blank">YouTube</a>, <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>! * Please read The Legal Seagull’s <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer.</a> This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

Essential Tips for Writing a Persuasive Motion

Deciding whether to represent yourself in court is an important decision that should not be made lightly. That being said, with some exceptions, self-represented parties (“pro se” or “pro per” parties) CAN effectively represent themselves in court without an attorney. In this episode, I discuss the following factors to evaluate when making the critical decision of whether to represent yourself in court without an attorney:  How complicated is your case? Where is your case venued (state vs. federal court)? How is your case worth? Can you devote the necessary time to your case? Can you handle the pressure (e.g., deadlines)?  I also discuss a few types of cases where you should think twice (or three or four times) before deciding to represent yourself, and why you should NEVER represent yourself in a CRIMINAL case. Want to learn more? Check out Justice Navigator: The Ultimate Video Litigation Tutorial for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

Deciding whether to represent yourself in court is an important decision that should not be made lightly. That being said, with some exceptions, self-represented parties (“pro se” or “pro per” parties) CAN effectively represent themselves in court without an attorney. In this episode, I discuss the following factors to evaluate when making the critical decision of whether to represent yourself in court without an attorney: <ul> <li>How complicated is your case?</li> <li>Where is your case venued (state vs. federal court)?</li> <li>How is your case worth?</li> <li>Can you devote the necessary time to your case?</li> <li>Can you handle the pressure (e.g., deadlines)?</li> </ul> I also discuss a few types of cases where you should think twice (or three or four times) before deciding to represent yourself, and why you should NEVER represent yourself in a CRIMINAL case. Want to learn more? Check out <a href="http://www.JusticeNavigator.com" rel="nofollow" target="_blank">Justice Navigator: The Ultimate Video Litigation Tutorial</a> for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

Should You Represent Yourself in Court?

Each year, millions of Americans find themselves involved in a lawsuit or a legal dispute with the significant possibility of an imminent lawsuit. With the rising cost of attorneys' fees, many people are left with the decision of whether to represent themselves in court without an attorney. These self-represented parties are referred to as “pro se” or “pro per” parties. In this episode, I discuss generally the question of whether you CAN legally represent yourself in court without an attorney. This is separate and apart from the equally (perhaps more) important question of whether you SHOULD represent yourself in court, which is the subject of the next video. Want to learn more? Check out Justice Navigator: The Ultimate Video Litigation Tutorial for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

Each year, millions of Americans find themselves involved in a lawsuit or a legal dispute with the significant possibility of an imminent lawsuit. With the rising cost of attorneys' fees, many people are left with the decision of whether to represent themselves in court without an attorney. These self-represented parties are referred to as “pro se” or “pro per” parties. In this episode, I discuss generally the question of whether you CAN legally represent yourself in court without an attorney. This is separate and apart from the equally (perhaps more) important question of whether you SHOULD represent yourself in court, which is the subject of the next video. Want to learn more? Check out <a href="http://www.justicenavigator.com" rel="noopener nofollow" target="_blank">Justice Navigator: The Ultimate Video Litigation Tutorial</a> for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.

Can You Represent Yourself in Court?

Rob Kardashian

Blac Chyna

On July 5, 2017, Rob Kardashian, of the famous Kardashian TV family, uploaded multiple nude photographs of his ex-fiancee, rapper Blac Chyna, to his Twitter and Instagram accounts. Did Kardashian violate California's Penal Code section law banning the distribution of "revenge porn?" (nonconsensual pornography)? As in 38 states and the District of Columbia, California prohibits the intentional distribution of certain graphic photos and videos of another person without that person's consent.  In this podcast, I will discuss whether Kardashian could be found guilty of this crime. Click here to read the full  article.

On July 5, 2017, Rob Kardashian, of the famous Kardashian TV family, uploaded multiple nude photographs of his ex-fiancee, rapper Blac Chyna, to his Twitter and Instagram accounts. Did Kardashian violate California's Penal Code section law banning the distribution of "revenge porn?" (nonconsensual pornography)? As in <a href="https://www.cybercivilrights.org/revenge-porn-laws/" rel="noopener nofollow" target="_blank">38 states and the District of Columbia</a>, California prohibits the intentional distribution of certain graphic photos and videos of another person without that person's consent.  In this podcast, I will discuss whether Kardashian could be found guilty of this crime. Click here to read the full <a href="http://www.thelegalseagull.com/revenge-porn-law-rob-kardashian-blac-chyna-nonconsensual-pornography/" rel="nofollow" target="_blank"> article</a>.

Revenge Porn Law: Rob Kardashian, Blac Chyna, and Nonconsensual Pornography

A leading question is one that suggests the answer sought by the examiner.* For example: "You met with Mr. Williams the evening of July 25th, correct?" (LEADING) vs. "When did you meet with Mr. Williams?" (NON-LEADING). Leading questions are generally not permitted on direct examination, but are allowed on cross-examination. Young attorneys new to litigation frequently find it difficult to overcome objections to leading questions. In this episode, we'll explore leading questions:  What are they? Why are they problematic? What can you do if the judge sustains an objection to your question?  Did you enjoy this podcast episode? Check out The Legal Seagull for litigation videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram! * Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

A leading question is one that suggests the answer sought by the examiner.* For example: "You met with Mr. Williams the evening of July 25th, correct?" (LEADING) vs. "When did you meet with Mr. Williams?" (NON-LEADING). Leading questions are generally not permitted on direct examination, but are allowed on cross-examination. Young attorneys new to litigation frequently find it difficult to overcome objections to leading questions. In this episode, we'll explore leading questions: <ul> <li>What are they?</li> <li>Why are they problematic?</li> <li>What can you do if the judge sustains an objection to your question?</li> </ul> Did you enjoy this podcast episode? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> for litigation <a href="http://www.thelegalseagull.com/videos" rel="nofollow" target="_blank">videos</a> and <a href="http://www.thelegalseagull.com/blog" rel="nofollow" target="_blank">blog posts</a>. Follow us on <a href="https://www.youtube.com/c/TheLegalSeagull" rel="nofollow" target="_blank">YouTube</a>, <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>! * Please read The Legal Seagull’s <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer.</a> This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

Objection to Leading Question? Try Rephrasing

After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice?  In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession. Check out Justice Navigator: The Ultimate Video Litigation Tutorial for new attorneys and non-attorneys! Did you enjoy this podcast episode? Check out The Legal Seagull for videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram!

After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice?  In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession. Check out <a href="http://www.thelegalseagull.com/justice-navigator-legal-resources/" rel="nofollow" target="_blank">Justice Navigator: The Ultimate Video Litigation Tutorial</a> for new attorneys and non-attorneys! Did you enjoy this podcast episode? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> for <a href="http://www.thelegalseagull.com/videos" rel="nofollow" target="_blank">videos</a> and <a href="http://www.thelegalseagull.com/blog" rel="nofollow" target="_blank">blog posts</a>. Follow us on <a href="https://www.youtube.com/c/TheLegalSeagull" rel="nofollow" target="_blank">YouTube</a>, <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>!

Does Law School Prepare You To Be A Lawyer?

On June 12, 1994, the bodies of O.J. Simpson’s ex-wife, Nicole Brown, and her friend Ron Goldman, were found outside Brown’s condominium in Brentwood, California. In what is considered the "Trial of the Century," O.J. Simpson was ultimately acquitted of the murders. The most iconic moment of the trial was the fateful decision by Deputy District Attorney Christopher Darden to have Simpson try on two gloves found at the scene of the murder and outside Simpson's house. The glove debacle, which actually lasted only a couple of minutes, was the penultimate made-for-TV moment. It had all the right ingredients—theatrics, intrigue, drama, and suspense. As with the JFK assassination and 9/11, millions of people worldwide can recall exactly where they were when they watched the doomed glove demonstration. This episode will cover:  Why the gloves were so important; What physical evidence was contained on the gloves; Why the gloves didn’t fit; Could the gloves have fit?; Why it was such a horrible idea to allow O.J. Simpson to try on the gloves; The origin of the phrase, "If it doesn't fit, you must acquit"; What impact the glove fiasco had on the trial; and Much more!  NOTE: This episode contains graphic descriptions of violence and use of profanity. It is not recommended you listen to this episode in the presence of children or if you are offended by descriptions of violence. Did you enjoy this podcast episode? Check out The Legal Seagull for videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram!

On June 12, 1994, the bodies of O.J. Simpson’s ex-wife, Nicole Brown, and her friend Ron Goldman, were found outside Brown’s condominium in Brentwood, California. In what is considered the "Trial of the Century," O.J. Simpson was ultimately acquitted of the murders. The most iconic moment of the trial was the fateful decision by Deputy District Attorney Christopher Darden to have Simpson try on two gloves found at the scene of the murder and outside Simpson's house. The glove debacle, which actually lasted only a couple of minutes, was the penultimate made-for-TV moment. It had all the right ingredients—theatrics, intrigue, drama, and suspense. As with the JFK assassination and 9/11, millions of people worldwide can recall exactly where they were when they watched the doomed glove demonstration. This episode will cover: <ul> <li>Why the gloves were so important;</li> <li>What physical evidence was contained on the gloves;</li> <li>Why the gloves didn’t fit;</li> <li>Could the gloves have fit?;</li> <li>Why it was such a horrible idea to allow O.J. Simpson to try on the gloves;</li> <li>The origin of the phrase, "If it doesn't fit, you must acquit";</li> <li>What impact the glove fiasco had on the trial; and</li> <li>Much more!</li> </ul> NOTE: This episode contains graphic descriptions of violence and use of profanity. It is not recommended you listen to this episode in the presence of children or if you are offended by descriptions of violence. Did you enjoy this podcast episode? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> for <a href="http://www.thelegalseagull.com/videos" rel="nofollow" target="_blank">videos</a> and <a href="http://www.thelegalseagull.com/blog" rel="nofollow" target="_blank">blog posts</a>. Follow us on <a href="https://www.youtube.com/c/TheLegalSeagull" rel="nofollow" target="_blank">YouTube</a>, <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>!

Tough Glove: The O.J. Simpson Fiasco

Join us as we explore the American legal system, litigation, and civil lawsuits. Learn how to protect your rights, be an effective advocate for your legal claims, and navigate the legal system. Whether you're a lawyer or have no legal background whatsoever, the Legal Seagull has something for everyone.www.thelegalseagull.com

Really easy listening and very educational.

Great

The podcasts are well-made and informative. Five stars!

Excellent Legal Counsel

Join us as we explore the American legal system, litigation, and civil lawsuits. Learn how to protect your rights, be an effective advocate for your legal claims, and navigate the legal system. Whether you're a lawyer or have no legal background whatsoever, the Legal Seagull has something for everyone. <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">www.thelegalseagull.com</a>

The Legal Seagull: Law | Litigation | Self-Help | Legal History

We’ve all heard about the Americans with Disabilities Act (“ADA”), but only a select few understand what it is, how it works, and what classes of people it protects. For many of us, our only familiarity with the ADA is that moment we find think we found an amazing parking spot and start to pull in, only to soon notice the universally-recognized blue and white emblem designating a spot for the disabled. In this episode, I will explain what rights the ADA is meant to protect, what qualifies as a “disability,” and what obligations the ADA imposes on employers, government agencies, and public accommodations. I will also discuss the unfortunate byproduct of this monumental civil rights statute—abuse by a number of unscrupulous attorneys and serial plaintiffs, who sometimes use unethical legal maneuvers to leverage “payoffs” from small businesses. To gain insight into this disturbing trend, I interview Marc Wasserman, an attorney who defends small businesses in lawsuits alleging non-compliance with the ADA. In this episode, we will be discussing the following: 1. The history of the ADA since its enactment in 1990, including its goals, protected classes, and definitions. “Disability” refers to “a physical or mental impairment that substantially limits one or more major life activities of such individual . . . major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working . . . a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The ADA also protects individuals who have a record of an impairment, and those who are “regarded as having such an impairment.” 2. The ADA’s prohibits employment discrimination against qualified individuals with a disability. It further restricts the type of questioning an employer may ask an applicant about his or her disabilities. The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires . . .” (Italics added for emphasis). 3. The ADA requires that both employers and “public accommodations” (i.e. almost all businesses and facilities open to the general public) provide reasonable accommodations  to individuals with disabilities, and remove barriers when doing so is readily achievable and does not cause undue hardship. 4. Public accommodations and government buildings must ensure access to all assistive walking devices, service animals, and equipment, unless doing so would be unfeasible or result in undue hardship. Further obligations include providing accessible parking spots and taking steps to communicate effectively with people who have communication-related disabilities (e.g. blindness, difficulty hearing or speaking, motor function deficit, etc.). 5. Interview with attorney Marc Wasserman regarding potential abuse of the ADA to extract settlements from small “mom and pop” businesses. As Wasserman indicates, there is significant evidence that some attorneys (and even plaintiffs) are acting in bad faith and in violation of discovery rules and litigation decorum.   Links for further reading: National Association of the Deaf et al. v. Netflix, Inc.: The National Association of the Deaf sued Netflix, a streaming video provider, alleging that failure to provide closed captioning for the majority of its content violated the ADA. The U.S. District Court for the District of Massachusetts ruled that Netflix was in fact a “public accommodation” within the meaning of the ADA, despite the fact that it is not a building or structure.  EEOC v. Kaufman: An employer refused to permit an employee to use a magnifying glass to accommodate diabetic retinopathy, a condition that caused her significant blindness. The employer then terminated her employment. The court found that the employer discriminated against the employee on the basis of her disability. EEOC v. Echostar Communications Corp: A blind applicant was denied employment based on her disability, even though the employer was advised that the applicant was trained in the use of sophisticated text-to-speech software that may have been available at little to no cost. The court found in favor of the plaintiff, and awarded significant punitive damages for willful violation of the ADA. PGA Tour, Inc. v. Martin: A professional golfer with a severe degenerative circulatory condition sued the PGA Tour, arguing that its refusal to allow him to use a golf cart violated the ADA. The U.S. Supreme Court found in favor of Martin, reasoning that requiring the PGA to reasonable accommodate him would not fundamentally alter the nature of the tournament, and would not afford Martin an unfair advantage. ADA Update: A Primer for Small Business: A great guide for small businesses, prepared by the Disability Section of the Civil Rights Division of the U.S. Department of Justice. ADA.gov: a great resource maintained the U.S. Department of Justice. It contains texts of the laws/regulations, design standards, technical assistance materials, information regarding enforcement, and news of the most recent cases.

We’ve all heard about the Americans with Disabilities Act (“ADA”), but only a select few understand what it is, how it works, and what classes of people it protects. For many of us, our only familiarity with the ADA is that moment we find think we found an amazing parking spot and start to pull in, only to soon notice the universally-recognized blue and white emblem designating a spot for the disabled. In this episode, I will explain what rights the ADA is meant to protect, what qualifies as a “disability,” and what obligations the ADA imposes on employers, government agencies, and public accommodations. I will also discuss the unfortunate byproduct of this monumental civil rights statute—abuse by a number of unscrupulous attorneys and serial plaintiffs, who sometimes use unethical legal maneuvers to leverage “payoffs” from small businesses. To gain insight into this disturbing trend, I interview Marc Wasserman, an attorney who defends small businesses in lawsuits alleging non-compliance with the ADA. In this episode, we will be discussing the following: 1. The history of the ADA since its enactment in 1990, including its goals, protected classes, and definitions. “Disability” refers to “a physical or mental impairment that substantially limits one or more major life activities of such individual . . . major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working . . . a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The ADA also protects individuals who have a record of an impairment, and those who are “regarded as having such an impairment.” 2. The ADA’s prohibits employment discrimination against qualified individuals with a disability. It further restricts the type of questioning an employer may ask an applicant about his or her disabilities. The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires . . .” (Italics added for emphasis). 3. The ADA requires that both employers and “public accommodations” (i.e. almost all businesses and facilities open to the general public) provide reasonable accommodations  to individuals with disabilities, and remove barriers when doing so is readily achievable and does not cause undue hardship. 4. Public accommodations and government buildings must ensure access to all assistive walking devices, service animals, and equipment, unless doing so would be unfeasible or result in undue hardship. Further obligations include providing accessible parking spots and taking steps to communicate effectively with people who have communication-related disabilities (e.g. blindness, difficulty hearing or speaking, motor function deficit, etc.). 5. Interview with attorney Marc Wasserman regarding potential abuse of the ADA to extract settlements from small “mom and pop” businesses. As Wasserman indicates, there is significant evidence that some attorneys (and even plaintiffs) are acting in bad faith and in violation of discovery rules and litigation decorum. Links for further reading: <a href="http://www.nad.org/sites/default/files/2012/June/MJP%20DENIED%20-%20JUDGE%20PONSOR%20ORDER%20-%206-19-12.pdf" rel="nofollow" target="_blank">National Association of the Deaf et al. v. Netflix, Inc.</a>: The National Association of the Deaf sued Netflix, a streaming video provider, alleging that failure to provide closed captioning for the majority of its content violated the ADA. The U.S. District Court for the District of Massachusetts ruled that Netflix was in fact a “public accommodation” within the meaning of the ADA, despite the fact that it is not a building or structure. <a href="http://www.eeoc.gov/eeoc/history/45th/ada20/ada_cases.cfm" rel="nofollow" target="_blank"> EEOC v. Kaufman</a>: An employer refused to permit an employee to use a magnifying glass to accommodate diabetic retinopathy, a condition that caused her significant blindness. The employer then terminated her employment. The court found that the employer discriminated against the employee on the basis of her disability. <a href="http://www.eeoc.gov/eeoc/history/45th/ada20/ada_cases.cfm" rel="nofollow" target="_blank">EEOC v. Echostar Communications Corp</a>: A blind applicant was denied employment based on her disability, even though the employer was advised that the applicant was trained in the use of sophisticated text-to-speech software that may have been available at little to no cost. The court found in favor of the plaintiff, and awarded significant punitive damages for willful violation of the ADA. <a href="http://supreme.justia.com/cases/federal/us/532/661/case.html" rel="nofollow" target="_blank">PGA Tour, Inc. v. Martin</a>: A professional golfer with a severe degenerative circulatory condition sued the PGA Tour, arguing that its refusal to allow him to use a golf cart violated the ADA. The U.S. Supreme Court found in favor of Martin, reasoning that requiring the PGA to reasonable accommodate him would not fundamentally alter the nature of the tournament, and would not afford Martin an unfair advantage. <a href="http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm" rel="nofollow" target="_blank">ADA Update: A Primer for Small Business</a>: A great guide for small businesses, prepared by the Disability Section of the Civil Rights Division of the U.S. Department of Justice. <a href="http://www.ada.gov/" rel="nofollow" target="_blank">ADA.gov: a great resource maintained the U.S. Department of Justice. It contains texts of the laws/regulations, design standards, technical assistance materials, information regarding enforcement, and news of the most recent cases.</a>

The Americans with Disabilities Act: Used and (Sometimes) Abused

A contract is a voluntary, private, legally enforceable agreement between two or more parties. To be valid, a contract must, atminimum, consist of an offer, acceptance, and consideration. In this episode, we discuss the formation of contracts, and delve into the following questions  What is the difference between bilateral and unilateral contracts? What is an “offer?” When does an offer expire? What constitutes “acceptance?” What is “consideration?” (HINT: it has nothing to do with being considerate!) When is consideration adequate?  Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

A contract is a voluntary, private, legally enforceable agreement between two or more parties. To be valid, a contract must, atminimum, consist of an offer, acceptance, and consideration. In this episode, we discuss the formation of contracts, and delve into the following questions <ul> <li>What is the difference between bilateral and unilateral contracts?</li> <li>What is an “offer?”</li> <li>When does an offer expire?</li> <li>What constitutes “acceptance?”</li> <li>What is “consideration?” (HINT: it has nothing to do with being considerate!)</li> <li>When is consideration adequate?</li> </ul> Like this podcast? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> website for more videos, blog posts, and podcast episodes! Like us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, follow us on <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>  and <a href="https://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer</a>, located at <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">www.thelegalseagull.com/disclaimer</a>

Basic Contracts 101: Contract Formation: Offer, Acceptance, and Consideration

A demand letter is a document that gives formal notice that you are considering legal action. Most demand letters contain a demand for money or some other form of remedy. Demand letters are typically written by attorneys. However, non-attorneys (known as pro se or pro per parties) can write their own demand letters, as long as doing so is not prohibited by state laws or court rules.* In this podcast, I will explain the following in detail:  Why writing a demand letter is so important Things to keep in mind when writing a demand letter What to put in a demand letter What to avoid when writing a demand letter How to finalize and send a demand letter  If you are serious about writing a persuasive, effective, and professional looking demand letter to help you successfully resolve your dispute, download The Legal Seagull’s free guide How to Write a Great Demand Letter by clicking here. The downloadable guide includes a high-quality, realistic sample that you can use to help you in writing a demand letter. WHY WRITE A DEMAND LETTER? If you are involved in a legal dispute, your first inclination might be to file a lawsuit. However, doing so without first attempting to resolve the dispute may be a huge mistake. Writing a persuasive and professional-looking demand letter may accomplish the same–or even better–results than a lawsuit, without the risks and expenses of taking your case through trial. Think about it this way: If you can get paid (or obtain something else you want) by spending 30-60 minutes writing a letter, rather than spending many hours and dollars pursuing a lawsuit, is that not worth the effort? There is no guarantee that your opponent will read your letter and immediately mail you a check; however, often enough, demand letters start a dialogue, which can lead to resolving your dispute without the need to file a lawsuit. Believe it or not, your opponent might not even realize that you have a grievance and are considering legal action! And, if your opponent knows, he or she might not take you seriously until you send a stern demand letter detailing your allegations and claims for damages.  Sometimes people try to ignore a legal dispute, hoping that it will simply go away. Occasionally that happens and they are lucky, but often enough, the dispute snowballs into a lawsuit. No one wants to be sued, and receiving a demand letter is not something most people can afford to ignore. If your grievance is against a company, your demand letter may trigger management to take your demands seriously and contact the company’s lawyers and liability insurance carrier. If your claims appear strong enough, this could contribute to an early settlement of your claim.  THINGS TO KEEP IN MIND WHEN WRITING YOUR DEMAND LETTER Writing a great demand letter is an art—not a science. Here are a few things you should consider when writing a demand letter: Be respectful and polite. No matter how much you dislike your opponent, there is no reason to resort to nastiness. The whole point of writing a demand letter is to resolve the claim without having to go through a lawsuit.  Put yourself in your opponent’s shoes. Imagine this: You come home after a long day of work and grab your mail. After opening up a few bills, credit card offers, and ads, you unexpectedly come across a nasty letter from someone who claims you breached a contract. The letter is loaded with aggressive threats and foul language, and barely contains any supporting facts. Are you likely to respond well? Would you be inclined to reach for your checkbook and mail back a check? Probably NOT! Now imagine this: You open up a letter that is professionally written, polite, and logically explains, with supporting facts, how you breached the contract. Would you be more likely to take the letter seriously and try to resolve the dispute? Probably! You are more likely to resolve a claim by being respectful, polite, and assertive than by making hostile accusations and being a jerk. It is best to start off with a positive tone. You can always take a harsher stance later on, if necessary. For example, if your opponent does not respond to your letter after a reasonable time, or refuses your demands, you can consider writing a more forceful demand letter or even filing a lawsuit. Make your letter appear professional. Type up your demand letter on a computer. Or, if you are old-fashioned, a typewriter will do. Include your contact information in the letterhead so your opponent can contact you. Do your very best to use proper grammar and spelling and to make the letter appear as professional as possible.  The demand letter needs to convey seriousness and competence. If you are not comfortable with your writing abilities, have a friend or family member help you write it. Know your audience. Depending on your opponent’s education, training, and level of sophistication, you may want your demand letter to be more—or less—detailed. Likewise, your choice of language should be adjusted accordingly. You should also take into account your relationship with your opponent. Is this someone you want (or need) to maintain a favorable relationship with? Do you want to continue doing business with your opponent in the future? Is it a member of your family? All this needs to be taken into account when deciding what tone to use in your demand letter. Keep it short but sweet. There is no ideal length for a demand letter. The length depends on your writing style, how long the dispute has been going on, how complex the facts are, and how much you feel you should divulge in your letter. That being said, in the modern world of smart phones, tablets, and other digital devices, attention spans tend to be very short.  Often in law, as in life, a short letter that gets to the point without too much fluff and blabbering gets better results than the opposite. When writing your demand letter, try to keep it between 1-3 pages, unless you feel you need more to get your points across.  WHAT TO PUT IN YOUR DEMAND LETTER Now that we have covered the basics, we will get down to the nitty-gritty of writing your demand letter: Start by recounting the history of your dispute. Even though you might remember the facts of your dispute, your opponent might not. Or, if he or she does, their recollection might be very different than yours. A demand letter is a great opportunity to relay your version of the facts.  The factual history should discuss the incident, event, or contract that forms the basis of the dispute. What happened that brought you to this point? You do not have to write a novel about it, but you should make it detailed enough to support your claims. Be sure to include any attempts you made to resolve the dispute, such as letters, e-mails, conversations, or settlement offers. Remind your opponent how reasonable you have been. Include facts and legal contentions You do not need to include EVERY fact and legal theory you can think of; however, it is generally helpful to recount the key facts and the causes of action you are considering (e.g., breach of contract, personal injury, negligence, defamation, etc.). Some demand letters spell out the relevant elements of each cause of action and facts to support each. It all depends on how much you want to divulge at this early point and what you think would best accomplish your goals. Recite your damages. “Damages” refers to the sums of money you claim for the harms you incurred or will incur in the future. If you are demanding money (or something else) to resolve your dispute—which is the whole point of writing a demand letter—it usually makes sense to describe the damages you incurred and what you believe you will suffer in the future.  Try to be as specific as you can with the damages. However, sometimes damages are difficult to quantify. If that is the case, do your best to be as specific and accurate as possible, and state in the letter that you are still working on calculating your damages. Do not forget to explain how your opponent’s conduct caused or contributed to those damages. Unless you do a good job explaining how your opponent caused your damages, do not expect him or her to write you a check!  Clarify that your investigation is ongoing. Make sure to state in your demand letter that you are still investigating the facts and that the letter does not contain a full recitation of the facts and damages you sustained. Moreover, write that you reserve the right to state additional facts and damages as your investigation continues. That way, if your understanding of the facts changes, or you realize you suffered additional damages, you could argue that you reserved the right to make changes in your original demand letter.  Demand preservation of evidence. It is illegal to destroy evidence when one knows or believes that a lawsuit has been filed or is likely to be filed; however, do not assume your opponent knows (or respects) that!  In a perfect world, you would not have to demand that your opponent preserve key evidence. Nevertheless, if you believe your opponent possesses physical evidence, documents, or electronic media that are capable of being “misplaced,” altered, destroyed, or deleted, be sure to remind your opponent to preserve all evidence until your dispute is resolved or litigation is completed. If you know of any specific evidence in your opponent’s possession that you want preserved, make sure to describe those items specifically when writing a demand letter. Explain why it makes sense to resolve case. If your opponent has not been sued before, he or she might not know the costs and risks of allowing a dispute to snowball into a lawsuit. Explain why it makes sense to resolve your dispute without dragging it through the court system. To successfully settle your dispute, you need to show your opponent what is at stake. You could include the following:  Save money on litigation costs and attorney’s fees; Avoid a judgment; Prevent a lengthy and expensive lawsuit; and  Avoid the burden of having to produce documents, respond to discovery requests, and take time off work to appear at depositions, court appearances, and trial.  You want your opponent to receive your letter and immediately understand the personal, professional, and financial consequences of failing to properly address your claims. Consider setting a deadline. There is a difference of opinion among attorneys as to whether you should give your opponent a deadline to respond to your demand letter. Some attorneys believe that a deadline creates a sense of urgency; others think that deadlines only irritate your opponent and make settlement less likely.  It is up to you to evaluate the facts of your case, your opponent’s personality, your history of dealing with your opponent, and whether it is in your best interest to set a deadline. If you set a deadline, make sure to follow through if your opponent fails to respond. If you do not receive a response by the deadline, be prepared to send a follow-up letter or file a lawsuit. If the statute of limitations is approaching for your lawsuit, be sure to set a deadline that leaves you enough time to file a timely lawsuit if you are unable to resolve the dispute with a demand letter. WHAT TO AVOID Nastiness and abusive language. There is nothing to gain—and a lot to lose—by allowing your potty mouth to get the best of you. Abusive language will only annoy your opponent, discourage productive dialogue, and make settlement negotiations more difficult—or even impossible. Furthermore, if your dispute leads to a lawsuit, imagine your embarrassment when your letter calling your opponent an “idiot,” “ignoramus,” or “poo poo head” is seen by the judge presiding over your case? Be completely accurate and truthful EVERYTHING you put in writing has the potential to be used against you. If you write something that is inaccurate or untrue, it could be used to cross-examine you at trial. That could be embarrassing, damaging to your credibility, and disastrous to your case.  If you are not sure about something, leave it out or put in something to qualify your statement, such as “I am informed and believe that…,” or “it is my understanding that…” Do NOT commit extortion! Extortion is a crime. Its elements differ in every state, so you want to make sure you do your research and comply with all applicable state/federal laws. The general pattern of extortion laws is that a person is guilty of extortion if he or she uses certain threats to induce someone to pay something, do something, or refrain from doing something. We cannot and will not interpret the extortion laws in your jurisdiction, but here are some general, non-state-specific pointers for things to absolutely avoid in your demand letter:  Any mention of damaging, destroying, or harming the property of your opponent, his/her family, or any other person. Any mention of accusing your opponent, his/her family, or anyone else, of a crime or disciplinary action. Any mention of exposing a secret of your opponent, his/her family, or anyone else. Any mention of causing shame, disgrace, disrepute, humiliation, or damage to the reputation of your opponent, his/her family, or anyone else Any mention of injuring or killing your opponent, his/her family, or any other person.  Unless your jurisdiction’s laws say otherwise, it is generally not considered extortion to merely threaten to file a lawsuit if your demands are not met—if in fact you intend to file a lawsuit. FINALIZING AND SENDING YOUR DEMAND LETTER Have someone proofread and edit your demand letter. When you think you are done writing the demand letter, ask a friend or family member to review and edit it. Pick someone with great grammar and spelling abilities. If you can find someone with a legal background, that would be a huge plus. This step is extremely important. We all have a tendency when writing to assume that the reader understands our writing as well as we do. In reality, no matter how many times you edit your own writing, you will almost always miss things that an independent set of eyes could uncover. If you give your demand letter to someone to review and they return it to you with a pat on the back and no recommendations for edits or changes, that means they did not do their job. Find someone else! Make a copy and send by certified mail. Once you have reviewed and finalized your demand letter, keep a copy and send the original by certified mail or some other form of “trackable” delivery.  If you are using the United States Postal Service (i.e., mail), consider using certified mail with return-receipt requested. You definitely want proof that the letter was delivered—especially if your dispute ends up in court. If you have never sent a letter by certified mail with return-receipt requested, ask someone at your local post office to help you. It is easy! In addition to sending the letter by mail or carrier, consider scanning it and sending a digital copy by e-mail. That will make it even harder for your opponent to deny having receiving it. Good luck! To download How to Write a Great Demand Letter, The Legal Seagull’s free guide and demand letter sample, click here. Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out Justice Navigator! Like this podcast? Then you'll love the video! Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram. * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer

A <a href="http://www.thelegalseagull.com/demand" rel="nofollow" target="_blank">demand letter</a> is a document that gives formal notice that you are considering legal action. Most demand letters contain a demand for money or some other form of remedy. Demand letters are typically written by attorneys. However, non-attorneys (known as pro se or pro per parties) can write their own demand letters, as long as doing so is not prohibited by state laws or court rules.* In this podcast, I will explain the following in detail: <ul> <li>Why writing a <a href="http://www.thelegalseagull.com/demand" rel="nofollow" target="_blank">demand letter</a> is so important</li> <li>Things to keep in mind when writing a demand letter</li> <li>What to put in a demand letter</li> <li>What to avoid when writing a demand letter</li> <li>How to finalize and send a demand letter</li> </ul> If you are serious about writing a persuasive, effective, and professional looking demand letter to help you successfully resolve your dispute, download The Legal Seagull’s free guide How to Write a Great Demand Letter by clicking <a href="http://www.thelegalseagull.com/demand" rel="nofollow" target="_blank">here</a>. The downloadable guide includes a high-quality, realistic sample that you can use to help you in writing a demand letter. WHY WRITE A DEMAND LETTER? If you are involved in a legal dispute, your first inclination might be to file a lawsuit. However, doing so without first attempting to resolve the dispute may be a huge mistake. Writing a persuasive and professional-looking demand letter may accomplish the same–or even better–results than a lawsuit, without the risks and expenses of taking your case through trial. Think about it this way: If you can get paid (or obtain something else you want) by spending 30-60 minutes writing a letter, rather than spending many hours and dollars pursuing a lawsuit, is that not worth the effort? There is no guarantee that your opponent will read your letter and immediately mail you a check; however, often enough, demand letters start a dialogue, which can lead to resolving your dispute without the need to file a lawsuit. Believe it or not, your opponent might not even realize that you have a grievance and are considering legal action! And, if your opponent knows, he or she might not take you seriously until you send a stern demand letter detailing your allegations and claims for damages.  Sometimes people try to ignore a legal dispute, hoping that it will simply go away. Occasionally that happens and they are lucky, but often enough, the dispute snowballs into a lawsuit. No one wants to be sued, and receiving a demand letter is not something most people can afford to ignore. If your grievance is against a company, your demand letter may trigger management to take your demands seriously and contact the company’s lawyers and liability insurance carrier. If your claims appear strong enough, this could contribute to an early settlement of your claim.  THINGS TO KEEP IN MIND WHEN WRITING YOUR DEMAND LETTER Writing a great demand letter is an art—not a science. Here are a few things you should consider when writing a demand letter: Be respectful and polite. No matter how much you dislike your opponent, there is no reason to resort to nastiness. The whole point of writing a demand letter is to resolve the claim without having to go through a lawsuit.  Put yourself in your opponent’s shoes. Imagine this: You come home after a long day of work and grab your mail. After opening up a few bills, credit card offers, and ads, you unexpectedly come across a nasty letter from someone who claims you breached a contract. The letter is loaded with aggressive threats and foul language, and barely contains any supporting facts. Are you likely to respond well? Would you be inclined to reach for your checkbook and mail back a check? Probably NOT! Now imagine this: You open up a letter that is professionally written, polite, and logically explains, with supporting facts, how you breached the contract. Would you be more likely to take the letter seriously and try to resolve the dispute? Probably! You are more likely to resolve a claim by being respectful, polite, and assertive than by making hostile accusations and being a jerk. It is best to start off with a positive tone. You can always take a harsher stance later on, if necessary. For example, if your opponent does not respond to your letter after a reasonable time, or refuses your demands, you can consider writing a more forceful demand letter or even filing a lawsuit. Make your letter appear professional. Type up your demand letter on a computer. Or, if you are old-fashioned, a typewriter will do. Include your contact information in the letterhead so your opponent can contact you. Do your very best to use proper grammar and spelling and to make the letter appear as professional as possible.  The demand letter needs to convey seriousness and competence. If you are not comfortable with your writing abilities, have a friend or family member help you write it. Know your audience. Depending on your opponent’s education, training, and level of sophistication, you may want your demand letter to be more—or less—detailed. Likewise, your choice of language should be adjusted accordingly. You should also take into account your relationship with your opponent. Is this someone you want (or need) to maintain a favorable relationship with? Do you want to continue doing business with your opponent in the future? Is it a member of your family? All this needs to be taken into account when deciding what tone to use in your demand letter. Keep it short but sweet. There is no ideal length for a demand letter. The length depends on your writing style, how long the dispute has been going on, how complex the facts are, and how much you feel you should divulge in your letter. That being said, in the modern world of smart phones, tablets, and other digital devices, attention spans tend to be very short.  Often in law, as in life, a short letter that gets to the point without too much fluff and blabbering gets better results than the opposite. When writing your demand letter, try to keep it between 1-3 pages, unless you feel you need more to get your points across.  WHAT TO PUT IN YOUR DEMAND LETTER Now that we have covered the basics, we will get down to the nitty-gritty of writing your demand letter: Start by recounting the history of your dispute. Even though you might remember the facts of your dispute, your opponent might not. Or, if he or she does, their recollection might be very different than yours. A demand letter is a great opportunity to relay your version of the facts.  The factual history should discuss the incident, event, or contract that forms the basis of the dispute. What happened that brought you to this point? You do not have to write a novel about it, but you should make it detailed enough to support your claims. Be sure to include any attempts you made to resolve the dispute, such as letters, e-mails, conversations, or settlement offers. Remind your opponent how reasonable you have been. Include facts and legal contentions You do not need to include EVERY fact and legal theory you can think of; however, it is generally helpful to recount the key facts and the causes of action you are considering (e.g., breach of contract, personal injury, negligence, defamation, etc.). Some demand letters spell out the relevant elements of each cause of action and facts to support each. It all depends on how much you want to divulge at this early point and what you think would best accomplish your goals. Recite your damages. “Damages” refers to the sums of money you claim for the harms you incurred or will incur in the future. If you are demanding money (or something else) to resolve your dispute—which is the whole point of writing a demand letter—it usually makes sense to describe the damages you incurred and what you believe you will suffer in the future.  Try to be as specific as you can with the damages. However, sometimes damages are difficult to quantify. If that is the case, do your best to be as specific and accurate as possible, and state in the letter that you are still working on calculating your damages. Do not forget to explain how your opponent’s conduct caused or contributed to those damages. Unless you do a good job explaining how your opponent caused your damages, do not expect him or her to write you a check!  Clarify that your investigation is ongoing. Make sure to state in your demand letter that you are still investigating the facts and that the letter does not contain a full recitation of the facts and damages you sustained. Moreover, write that you reserve the right to state additional facts and damages as your investigation continues. That way, if your understanding of the facts changes, or you realize you suffered additional damages, you could argue that you reserved the right to make changes in your original demand letter.  Demand preservation of evidence. It is illegal to destroy evidence when one knows or believes that a lawsuit has been filed or is likely to be filed; however, do not assume your opponent knows (or respects) that!  In a perfect world, you would not have to demand that your opponent preserve key evidence. Nevertheless, if you believe your opponent possesses physical evidence, documents, or electronic media that are capable of being “misplaced,” altered, destroyed, or deleted, be sure to remind your opponent to preserve all evidence until your dispute is resolved or litigation is completed. If you know of any specific evidence in your opponent’s possession that you want preserved, make sure to describe those items specifically when writing a demand letter. Explain why it makes sense to resolve case. If your opponent has not been sued before, he or she might not know the costs and risks of allowing a dispute to snowball into a lawsuit. Explain why it makes sense to resolve your dispute without dragging it through the court system. To successfully settle your dispute, you need to show your opponent what is at stake. You could include the following: <ol> <li>Save money on <a href="http://thelegalseagull.com/justice-aint-cheap-does-it-make-sense-for-you-to-sue/" rel="nofollow" target="_blank">litigation costs</a> and attorney’s fees;</li> <li>Avoid a judgment;</li> <li>Prevent a lengthy and <a href="http://thelegalseagull.com/justice-aint-cheap-does-it-make-sense-for-you-to-sue/" rel="nofollow" target="_blank">expensive lawsuit</a>; and </li> <li>Avoid the burden of having to produce documents, respond to discovery requests, and take time off work to appear at depositions, court appearances, and trial.</li> </ol> You want your opponent to receive your letter and immediately understand the personal, professional, and financial consequences of failing to properly address your claims. Consider setting a deadline. There is a difference of opinion among attorneys as to whether you should give your opponent a deadline to respond to your demand letter. Some attorneys believe that a deadline creates a sense of urgency; others think that deadlines only irritate your opponent and make settlement less likely.  It is up to you to evaluate the facts of your case, your opponent’s personality, your history of dealing with your opponent, and whether it is in your best interest to set a deadline. If you set a deadline, make sure to follow through if your opponent fails to respond. If you do not receive a response by the deadline, be prepared to send a follow-up letter or file a lawsuit. If the <a href="http://thelegalseagull.com/st-out-of-luck-dont-blow-the-statute-of-limitations/" rel="nofollow" target="_blank">statute of limitations</a> is approaching for your lawsuit, be sure to set a deadline that leaves you enough time to file a timely lawsuit if you are unable to resolve the dispute with a demand letter. WHAT TO AVOID Nastiness and abusive language. There is nothing to gain—and a lot to lose—by allowing your potty mouth to get the best of you. Abusive language will only annoy your opponent, discourage productive dialogue, and make settlement negotiations more difficult—or even impossible. Furthermore, if your dispute leads to a lawsuit, imagine your embarrassment when your letter calling your opponent an “idiot,” “ignoramus,” or “poo poo head” is seen by the judge presiding over your case? Be completely accurate and truthful EVERYTHING you put in writing has the potential to be used against you. If you write something that is inaccurate or untrue, it could be used to cross-examine you at trial. That could be embarrassing, damaging to your credibility, and disastrous to your case.  If you are not sure about something, leave it out or put in something to qualify your statement, such as “I am informed and believe that…,” or “it is my understanding that…” Do NOT commit extortion! Extortion is a crime. Its elements differ in every state, so you want to make sure you do your research and comply with all applicable state/federal laws. The general pattern of extortion laws is that a person is guilty of extortion if he or she uses certain threats to induce someone to pay something, do something, or refrain from doing something. We cannot and will not interpret the extortion laws in your jurisdiction, but here are some general, non-state-specific pointers for things to absolutely avoid in your demand letter: <ul> <li>Any mention of damaging, destroying, or harming the property of your opponent, his/her family, or any other person.</li> <li>Any mention of accusing your opponent, his/her family, or anyone else, of a crime or disciplinary action.</li> <li>Any mention of exposing a secret of your opponent, his/her family, or anyone else.</li> <li>Any mention of causing shame, disgrace, disrepute, humiliation, or damage to the reputation of your opponent, his/her family, or anyone else</li> <li>Any mention of injuring or killing your opponent, his/her family, or any other person.</li> </ul> Unless your jurisdiction’s laws say otherwise, it is generally not considered extortion to merely threaten to file a lawsuit if your demands are not met—if in fact you intend to file a lawsuit. FINALIZING AND SENDING YOUR DEMAND LETTER Have someone proofread and edit your demand letter. When you think you are done writing the demand letter, ask a friend or family member to review and edit it. Pick someone with great grammar and spelling abilities. If you can find someone with a legal background, that would be a huge plus. This step is extremely important. We all have a tendency when writing to assume that the reader understands our writing as well as we do. In reality, no matter how many times you edit your own writing, you will almost always miss things that an independent set of eyes could uncover. If you give your demand letter to someone to review and they return it to you with a pat on the back and no recommendations for edits or changes, that means they did not do their job. Find someone else! Make a copy and send by certified mail. Once you have reviewed and finalized your demand letter, keep a copy and send the original by certified mail or some other form of “trackable” delivery.  If you are using the United States Postal Service (i.e., mail), consider using certified mail with return-receipt requested. You definitely want proof that the letter was delivered—especially if your dispute ends up in court. If you have never sent a letter by certified mail with return-receipt requested, ask someone at your local post office to help you. It is easy! In addition to sending the letter by mail or carrier, consider scanning it and sending a digital copy by e-mail. That will make it even harder for your opponent to deny having receiving it. Good luck! To download How to Write a Great Demand Letter, The Legal Seagull’s free guide and demand letter sample, click <a href="http://www.thelegalseagull.com/demand" rel="nofollow" target="_blank">here</a>. Are you a new attorney or pro se / pro per party looking to learn how to act in court? Check out <a href="http://www.thelegalseagull.com/justice-navigator" rel="nofollow" target="_blank">Justice Navigator</a>! Like this podcast? Then you'll love the <a href="http://www.thelegalseagull.com/actincourt" rel="nofollow" target="_blank">video</a>! Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> website for more videos, blog posts, and podcast episodes! Like us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a> and follow us on <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a> and <a href="https://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>. * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer</a>, located at <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">http://www.thelegalseagull.com/disclaimer</a>

How to Write a Great Demand Letter

In this second part of our two-episode series on basic U.S. contract law, we discuss the various defenses to contract formation and breach, including: lack of acceptance, lack of consideration, lack of capacity, illegality, violation of public policy, unconscionability, ambiguity, misrepresentation, duress, Statute of Frauds, rescission, impossibility, prevention of performance, failure of condition precedent, and accord and satisfaction. Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

In this second part of our two-episode series on basic U.S. contract law, we discuss the various defenses to contract formation and breach, including: lack of acceptance, lack of consideration, lack of capacity, illegality, violation of public policy, unconscionability, ambiguity, misrepresentation, duress, Statute of Frauds, rescission, impossibility, prevention of performance, failure of condition precedent, and accord and satisfaction. Like this podcast? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> website for more videos, blog posts, and podcast episodes! Like us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, follow us on <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>  and <a href="https://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer</a>, located at <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">www.thelegalseagull.com/disclaimer</a>

Basic Contracts 102: Defenses

The Fourth Amendment of the United States Constitution prohibits “unreasonable searches and seizures.” For a police intrusion to be unconstitutional, it must be both: (a) a “search” AND (2) “unreasonable.” In this episode, we focus on the Supreme Court’s interpretations of a SINGLE word in the Fourth Amendment: “searches.”   “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added).”   You might be wondering, “What’s the big deal? A “search” is a search!” As with many constitutional issues- the more we learn- the more questions arise. In these times of rapid technological advances, when law enforcement agencies utilize everything from miniature cameras, drones, monitoring devices, GPSes, and drug-sniffing dogs, the meaning of “searches” has become more elusive than ever before.

The <a href="http://www.law.cornell.edu/constitution/fourth_amendment" rel="nofollow" target="_blank">Fourth Amendment</a> of the United States Constitution prohibits “unreasonable searches and seizures.” For a police intrusion to be unconstitutional, it must be both: (a) a “search” AND (2) “unreasonable.” In this episode, we focus on the Supreme Court’s interpretations of a SINGLE word in the Fourth Amendment: “searches.”   “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added).”   You might be wondering, “What’s the big deal? A “search” is a search!” As with many constitutional issues- the more we learn- the more questions arise. In these times of rapid technological advances, when law enforcement agencies utilize everything from miniature cameras, drones, monitoring devices, GPSes, and drug-sniffing dogs, the meaning of “searches” has become more elusive than ever before.

What is a Fourth Amendment "Search?"

Gary Kinder

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Neer Lerner, a natural person of sound mind and body, proprietor of The Legal Seagull Podcast, hereby bargains, assigns, and transfers the herein-described audio content to his listeners*! This over-the-top, convoluted, and archaic introduction is written in a difficult language called “legalese.” Legalese is not officially recognized by the United Nations or even by linguists or anthropologists. It refers to the unique tongue of lawyers. It is hard to describe the main attributes of legalese, but it sounds like a hybrid of old Shakespearean English, with words borrowed from Latin and French, and even a hint of robot-speak. The main characteristics of legalese are, including but not limited to (you see, even I am not immune to the legalese epidemic!):   1. Overly verbose and lengthy sentences; 2. Words that are intended to eliminate ambiguity, but paradoxically only add to the confusion; 3. Improper grammar and sentence structure; and 4. Use of the passive voice In this episode, I interview Gary Kinder, an expert in legal writing and in writing clearly, concisely, and to the point. For many years, Gary has trained lawyers at this nation’s most prestigious law firms, large corporations, and even courts, to eliminate unnecessary words and phrases to write more persuasively and clearly. A few years ago, he and his team of engineers created Wordrake, an incredible piece of software that, in a matter of seconds, scans your text and helps you identify inefficiencies, with the option of “raking” any unnecessary clutter to convey more meaning to your readers.      Gary and I discuss the following: 1. The origins of legalese and why it continues to pervade legal writing; 2. How legalese negatively impacts both lawyers and the public; 3. The birth of Wordrake and how it works; and 4. Practical advice as to common forms of legalese in writing, and how to detect and avoid them. Further resources Wordrake: You can try the software for free for 30 days. If you wish to purchase it, you may use the coupon code “Seagull” for a 5% discount. In the interest of full disclosure, please note that I earn a commission on purchases made with the coupon code. This does not in any way affect my recommendation- I have used Wordrake and found it to be outstanding, but I want you to be fully informed of the fact of my commission arrangement. Write to the Point: sign up for Gary’s newsletter, which contains lots of free valuable tips about effective writing. The Nature of Legal Writing by Peter Tiersma: A great article postulating some interesting theories of the rise of legalese and its continuing use.  Plain English for Lawyers by Richard Wydick: An essential resource for every lawyer. In light of the foregoing arguments, and the above-mentioned recommendations as stated in full herein, may we stipulate to confer again in the next episode. Stay legal!   * For purposes of illustration only. I still reserve all rights and avail myself of all applicable intellectual property protections. Just sayin’.

KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Neer Lerner, a natural person of sound mind and body, proprietor of The Legal Seagull Podcast, hereby bargains, assigns, and transfers the herein-described audio content to his listeners*! This over-the-top, convoluted, and archaic introduction is written in a difficult language called “legalese.” Legalese is not officially recognized by the United Nations or even by linguists or anthropologists. It refers to the unique tongue of lawyers. It is hard to describe the main attributes of legalese, but it sounds like a hybrid of old Shakespearean English, with words borrowed from Latin and French, and even a hint of robot-speak. The main characteristics of legalese are, including but not limited to (you see, even I am not immune to the legalese epidemic!): 1. Overly verbose and lengthy sentences; 2. Words that are intended to eliminate ambiguity, but paradoxically only add to the confusion; 3. Improper grammar and sentence structure; and 4. Use of the passive voice In this episode, I interview Gary Kinder, an expert in legal writing and in writing clearly, concisely, and to the point. For many years, Gary has trained lawyers at this nation’s most prestigious law firms, large corporations, and even courts, to eliminate unnecessary words and phrases to write more persuasively and clearly. A few years ago, he and his team of engineers created Wordrake, an incredible piece of software that, in a matter of seconds, scans your text and helps you identify inefficiencies, with the option of “raking” any unnecessary clutter to convey more meaning to your readers. Gary and I discuss the following: 1. The origins of legalese and why it continues to pervade legal writing; 2. How legalese negatively impacts both lawyers and the public; 3. The birth of Wordrake and how it works; and 4. Practical advice as to common forms of legalese in writing, and how to detect and avoid them. Further resources <a href="http://www.wordrake.com/" rel="nofollow" target="_blank">Wordrake</a>: You can try the software for free for 30 days. If you wish to purchase it, you may use the coupon code “Seagull” for a 5% discount. In the interest of full disclosure, please note that I earn a commission on purchases made with the coupon code. This does not in any way affect my recommendation- I have used Wordrake and found it to be outstanding, but I want you to be fully informed of the fact of my commission arrangement. <a href="http://www.wordrake.com/writing-tips/" rel="nofollow" target="_blank">Write to the Point</a>: sign up for Gary’s newsletter, which contains lots of free valuable tips about effective writing. <a href="http://www.languageandlaw.org/NATURE.HTM" rel="nofollow" target="_blank">The Nature of Legal Writing by Peter Tiersma</a>: A great article postulating some interesting theories of the rise of legalese and its continuing use. <a href="http://www.amazon.com/gp/product/1594601518/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=1594601518&amp;linkCode=as2&amp;tag=thelegsea-20&amp;linkId=PCM4QMV55ZQP64CR" rel="nofollow" target="_blank"> Plain English for Lawye</a><a href="http://www.amazon.com/gp/product/1594601518/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=1594601518&amp;linkCode=as2&amp;tag=thelegsea-20&amp;linkId=PCM4QMV55ZQP64CR" rel="nofollow" target="_blank">rs</a> by Richard Wydick: An essential resource for every lawyer. In light of the foregoing arguments, and the above-mentioned recommendations as stated in full herein, may we stipulate to confer again in the next episode. Stay legal! * For purposes of illustration only. I still reserve all rights and avail myself of all applicable intellectual property protections. Just sayin’.

Legalese: The Strange Language of Lawyers | Interview with Gary Kinder

Did you ever hear about the woman who spilled McDonald’s coffee on herself and was awarded five kachillion dollars by a jury?  Liebeck v. McDonalds,  the “hot coffee case” went to trial in 1994, and remains to this day one of the most notorious civil lawsuits in American history. The verdict was quickly (and sensationally) reported by late night talk show hosts, newspapers and magazines, and practically every national and local television channel. It even made its way into foreign newspapers. As the years passed, the story evolved, several important facts were omitted and others added, and the truth was lost in the annals of history. The “hot coffee case” has become a cause celebre for politicians and business tycoons, who, in support of their calls for “tort reform” legislation,  conveniently cast it as the archetypal “frivolous lawsuit.” Everyone knows of the case– but few people are aware of the actual facts. In this episode, we discuss the myths and truths of Liebeck v. McDonalds.

Did you ever hear about the woman who spilled McDonald’s coffee on herself and was awarded five kachillion dollars by a jury?  Liebeck v. McDonalds,  the “hot coffee case” went to trial in 1994, and remains to this day one of the most notorious civil lawsuits in American history. The verdict was quickly (and sensationally) reported by late night talk show hosts, newspapers and magazines, and practically every national and local television channel. It even made its way into foreign newspapers. As the years passed, the story evolved, several important facts were omitted and others added, and the truth was lost in the annals of history. The “hot coffee case” has become a cause celebre for politicians and business tycoons, who, in support of their calls for “tort reform” legislation,  conveniently cast it as the archetypal “frivolous lawsuit.” Everyone knows of the case– but few people are aware of the actual facts. In this episode, we discuss the myths and truths of Liebeck v. McDonalds.

Liebeck v. McDonalds: The Hot Coffee Case

Despite popular belief, “tort reform” has nothing to do with pastries or small cakes (see “tortes” or “tarts”). Torts include a variety of civil lawsuits (e.g. personal injury, wrongful death, medical malpractice, professional negligence, premises liability, defamation and more). “Tort reform” is a term coined by proponents of laws enacted in most states to “reform” our civil liability system. The most controversial of these laws are caps (limits) on the amount of damages a person can recover against a defendant in a medical malpractice lawsuit. In this episode, we discuss the stated purposes of caps on damages and the rebuttals of those who claim these laws amount to nothing more than “tort deform.” We discuss the following in detail: –  The history of “tort reform” laws in the United States. – The stated goals of “tort reform” laws: – Eliminating frivolous lawsuits and “lawsuit lotto.” – Reducing insurance companies’ payouts- thereby causing professional liability premiums to go down. – Reducing healthcare costs. – Preventing “defensive medicine” among physicians and hospitals. – The rebuttals by opponents of “tort reform” laws: – The lack of evidence that “tort reform” laws have reduced physicians’ premiums, healthcare costs, or defensive medicine. – Caps on damages tend to affect those who are most severely injured and in need of financial recovery, such as children, the elderly, and the poor. – Placing an arbitrary cap on damages invades the role of the jury, which has always had the role of deciding the extent of damages (if any). – Do caps on damages actually work? – Are caps on damages unconstitutional?

Despite popular belief, “tort reform” has nothing to do with pastries or small cakes (see “tortes” or “tarts”). Torts include a variety of civil lawsuits (e.g. personal injury, wrongful death, medical malpractice, professional negligence, premises liability, defamation and more). “Tort reform” is a term coined by proponents of laws enacted in most states to “reform” our civil liability system. The most controversial of these laws are caps (limits) on the amount of damages a person can recover against a defendant in a medical malpractice lawsuit. In this episode, we discuss the stated purposes of caps on damages and the rebuttals of those who claim these laws amount to nothing more than “tort deform.” We discuss the following in detail: –  The history of “tort reform” laws in the United States. – The stated goals of “tort reform” laws: – Eliminating frivolous lawsuits and “lawsuit lotto.” – Reducing insurance companies’ payouts- thereby causing professional liability premiums to go down. – Reducing healthcare costs. – Preventing “defensive medicine” among physicians and hospitals. – The rebuttals by opponents of “tort reform” laws: – The lack of evidence that “tort reform” laws have reduced physicians’ premiums, healthcare costs, or defensive medicine. – Caps on damages tend to affect those who are most severely injured and in need of financial recovery, such as children, the elderly, and the poor. – Placing an arbitrary cap on damages invades the role of the jury, which has always had the role of deciding the extent of damages (if any). – Do caps on damages actually work? – Are caps on damages unconstitutional?

“Tort Reform” or “Tort Deform?" (Part I): Caps on Damages

This episode covers the ins and outs of medical malpractice litigation, the main area in which I practice.* Whether you believe you are a victim of medical malpractice; a physician or other medical professional worried about being sued at some point; or just want to learn about this fascinating topic at the intersection of medicine and law, give it a listen! In this episode, we covers the following areas, in detail: – Statistics demonstrating the medical liability system’s impact on the economy. This includes both costs borne by insurance companies and medical co-pays and premiums incurred by patients and physicians. Many of the statistics can be found in this e-book, which contains the results of a 2009 survey undertaken by Jackson Health, a large national insurance carrier. – The nature and impact of “defensive medicine,” a phenomenon by which doctors, in an effort to minimize exposure to lawsuits, order medically unnecessary tests, imaging, hospitalizations, procedures, and surgeries.  – Analysis of the four elements necessary to prove medical malpractice: 1. Existence of a duty of care: usually in the form of a physician-patient relationship. 2. Breach of the standard of care: The standard of care generally refers to the level of skill, education, training, and judgment that a reasonably careful medical professional would exercise under similar circumstances. – This includes extensive discussion of the theories of liability against medical professionals and hospitals. 3. Causation: If the medical defendant breached the standard of care, the plaintiff must prove, to a reasonable degree of medical probability, that the breach caused or substantially contributed to the patient’s injuries or death. 4. Monetary damages: the plaintiff must prove the existence and extent of the alleged injuries. These may include special (economic) damages and general (non-economic) damages. Additional reading I highly recommend Complications: A Surgeon’s Notes on an Imperfect Science, by Dr. Atul Gawande. Written in a way that is understandable to non-doctors, he does a superb job of explaining the imperfection and fallibility of medicine and of doctors; the human errors that sometimes lead to questionable judgment and ill-fated decisions; and the seemingly insurmountable challenges that surgeons face when confronting a wide range of ailments. On a somewhat disconcerting note, the book also argues that some medical outcomes (good and bad) are the result of sheer luck or chance. * As always, the contents of this blog and podcast are not legal advice. If you have any questions about your legal rights or whether you have a case, please consult an attorney licensed in your state or locality. Medical malpractice laws vary across state lines. This article only  provides a general overview of medical malpractice laws throughout the U.S.

This episode covers the ins and outs of medical malpractice litigation, the main area in which I practice.* Whether you believe you are a victim of medical malpractice; a physician or other medical professional worried about being sued at some point; or just want to learn about this fascinating topic at the intersection of medicine and law, give it a listen! In this episode, we covers the following areas, in detail: – Statistics demonstrating the medical liability system’s impact on the economy. This includes both costs borne by insurance companies and medical co-pays and premiums incurred by patients and physicians. Many of the statistics can be found in this <a href="http://www.jacksonhealthcare.com/media/8968/defensivemedicine_ebook_final.pdf" rel="nofollow" target="_blank">e-book</a>, which contains the results of a 2009 survey undertaken by Jackson Health, a large national insurance carrier. – The nature and impact of “defensive medicine,” a phenomenon by which doctors, in an effort to minimize exposure to lawsuits, order medically unnecessary tests, imaging, hospitalizations, procedures, and surgeries.  – Analysis of the four elements necessary to prove medical malpractice: 1. Existence of a duty of care: usually in the form of a physician-patient relationship. 2. Breach of the standard of care: The standard of care generally refers to the level of skill, education, training, and judgment that a reasonably careful medical professional would exercise under similar circumstances. – This includes extensive discussion of the theories of liability against medical professionals and hospitals. 3. Causation: If the medical defendant breached the standard of care, the plaintiff must prove, to a reasonable degree of medical probability, that the breach caused or substantially contributed to the patient’s injuries or death. 4. Monetary damages: the plaintiff must prove the existence and extent of the alleged injuries. These may include special (economic) damages and general (non-economic) damages. Additional reading I highly recommend <a href="http://www.amazon.com/gp/product/0312421702/ref=as_li_tl?ie=UTF8&amp;camp=1789&amp;creative=390957&amp;creativeASIN=0312421702&amp;linkCode=as2&amp;tag=thelegsea-20&amp;linkId=PYVRYUTYLEIVKOGL" rel="nofollow" target="_blank">Complications: A Surgeon’s Notes on an Imperfect Science</a>, by Dr. Atul Gawande. Written in a way that is understandable to non-doctors, he does a superb job of explaining the imperfection and fallibility of medicine and of doctors; the human errors that sometimes lead to questionable judgment and ill-fated decisions; and the seemingly insurmountable challenges that surgeons face when confronting a wide range of ailments. On a somewhat disconcerting note, the book also argues that some medical outcomes (good and bad) are the result of sheer luck or chance. * As always, the contents of this blog and podcast are not legal advice. If you have any questions about your legal rights or whether you have a case, please consult an attorney licensed in your state or locality. Medical malpractice laws vary across state lines. This article only  provides a general overview of medical malpractice laws throughout the U.S.

Medical Malpractice Litigation: Treatment on Trial

n this age of social media, it has become easier than ever for ordinary Americans to find ourselves defendants in a defamation lawsuit. What sometimes begins as a mischievous or ill-conceived Tweet, Facebook post, Yelp review, Linkedin message, or Google + announcement could result in a libel lawsuit if the person or business mentioned in the communication believes that it is defamatory and contains false assertions of fact. In an increasingly litigious environment, watching what we type is not only good practice- it’s a necessity to minimize the risk of an expensive and burdensome lawsuit.* In this episode, I  discuss the following in detail: – Defamation can be divided into libel (for written statements), and slander (for verbal statements). – The elements of a claim for defamation: – Publication: the statement must be made to at least one person other than the person allegedly defamed. – The subject of the statement must either be named or referenced in a way that he, she, or it can be reasonably identified by others. (For example, “the daughter of Billy Ray Cyrus [insert allegation here].” – Falsity: truth is an absolute defense to the tort of defamation. The plaintiff has the burden of proving that the statement is in fact false. – Mere opinions do not qualify as defamatory statements. To amount to defamation, a statement must be an assertion of a false specific fact (or facts). Beware: merely qualifying a statement with “In my opinion…” does not necessarily shield one from liability for defamation! – Injurious: the statement must harm the plaintiff in some way. Examples include being subjected to humiliation, shame, hatred, contempt, disrepute, scorn, or ridicule. In addition, economic damages are available for harm to one’s business, livelihood, or profits. – Statement must not be protected by a privilege. – There are certain privileges that protect statements from liability for defamation: – Statements made by legislators in a legislative deliberation or proceeding. – Statements made in court proceedings – Statements between spouses – In some states, former employers  have certain protections for comments made in response to inquiries from prospective employers of a job applicant. – Defamation of ordinary citizens vs. “public figures” – “Public figures” refers not only to elected officials and civil servants, but also to people in “positions of such persuasive power and influence that they are deemed public figures for all purposes . . . They invite attention and comment.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972) Public figures may include judges, celebrities who take positions on issues of public concern, activists, journalists, community leaders, and other persons who take positions on matters of public concern. – When suing for defamation, public figures have to prove that the false statements were made with “actual malice”.  “Actual malice includes: (1) making statements that the person knows are false; OR (2) acting recklessly by making statements that he or she has strong reasons to believe are false, or entertains serious doubts about the truth of the statements, yet publishes them anyway. In the landmark 1964 decision in New York Times v. Sullivan (1964) 376 U.S. 254 , the U.S. Supreme Court ruled that the First Amendment protects speech against public figures because society has an interest in having people feel free and open enough to discuss matters of public concern without fear of litigation or prosecution. For those reasons, a public figure must prove that the alleged defamatory statements were made with “actual malice.” – Defenses to defamation: – Truth – Opinion/hyperbole: In Carl Sagan v. Apple Computer, Inc. (1994) 874 F. Supp. 1072, the U.S. District Court for the Central District of California granted Apple’s motion to dismiss Sagan’s libel lawsuit for Apple’s use of the internal code name “Butt-Head Astronomer,” an apparent reference to Sagan. The court held that use of the term “Butt-Head Astronomer” was merely hyperbole, and could not be reasonably interpreted as a specific assertion of fact regarding Sagan (i.e. no one would actually think he was a “Butt-Head Astronomer.” – Privilege – Reputation of statement target is so tarnished that even if statement was defamatory, it still could not harm their reputation further. – How social media contributes to the prevalence of defamation lawsuits: – The ease of posting statements on Twitter, Facebook, Yelp, etc. makes it easier than ever for anyone to post voluminous statements to a wide public audience. Prior to the age of the Internet, media was controlled by “gate-keepers” such as publishers and newspaper editors, which in turn made it very difficult for almost everyone to disseminate their statements. Social media has thus irretrievably broken the barriers to publication, which in many ways is a great development. –  Statements made through social media have a very lengthy lifespan– possibly eternal- which increases the audience of every statement and the likelihood that a disparaging statement could damage its target’s livelihood. In the age of newspapers, statements were available to the public for only a few short days before being relegated to archives. – What can we do to prevent defamation? – Think long and hard before posting anything online. Ask ourselves: – Is this a true statement? How do we know that? Is there a chance that it is not? – Can this statement harm someone’s reputation or livelihood? – Is this statement, whether true or false, worth getting sued over? – Does this statement involve an important issue of public concern that needs to be addressed to prevent injury or damage to others? – Talk to our children about the dangers of social media defamation, the permanence of online communications, and the need to be careful before making any statements online. Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook, follow us on Twitter  and Instagram.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer

n this age of social media, it has become easier than ever for ordinary Americans to find ourselves defendants in a defamation lawsuit. What sometimes begins as a mischievous or ill-conceived Tweet, Facebook post, Yelp review, Linkedin message, or Google + announcement could result in a libel lawsuit if the person or business mentioned in the communication believes that it is defamatory and contains false assertions of fact. In an increasingly litigious environment, watching what we type is not only good practice- it’s a necessity to minimize the risk of an expensive and burdensome lawsuit.* In this episode, I  discuss the following in detail: – Defamation can be divided into libel (for written statements), and slander (for verbal statements). – The elements of a claim for defamation: – Publication: the statement must be made to at least one person other than the person allegedly defamed. – The subject of the statement must either be named or referenced in a way that he, she, or it can be reasonably identified by others. (For example, “the daughter of Billy Ray Cyrus [insert allegation here].” – Falsity: truth is an absolute defense to the tort of defamation. The plaintiff has the burden of proving that the statement is in fact false. – Mere opinions do not qualify as defamatory statements. To amount to defamation, a statement must be an assertion of a false specific fact (or facts). Beware: merely qualifying a statement with “In my opinion…” does not necessarily shield one from liability for defamation! – Injurious: the statement must harm the plaintiff in some way. Examples include being subjected to humiliation, shame, hatred, contempt, disrepute, scorn, or ridicule. In addition, economic damages are available for harm to one’s business, livelihood, or profits. – Statement must not be protected by a privilege. – There are certain privileges that protect statements from liability for defamation: – Statements made by legislators in a legislative deliberation or proceeding. – Statements made in court proceedings – Statements between spouses – In some states, former employers  have certain protections for comments made in response to inquiries from prospective employers of a job applicant. – Defamation of ordinary citizens vs. “public figures” – “Public figures” refers not only to elected officials and civil servants, but also to people in “positions of such persuasive power and influence that they are deemed public figures for all purposes . . . They invite attention and comment.” <a href="http://www.law.cornell.edu/supremecourt/text/418/323" rel="nofollow" target="_blank">Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972)</a> Public figures may include judges, celebrities who take positions on issues of public concern, activists, journalists, community leaders, and other persons who take positions on matters of public concern. – When suing for defamation, public figures have to prove that the false statements were made with “actual malice”.  “Actual malice includes: (1) making statements that the person knows are false; OR (2) acting recklessly by making statements that he or she has strong reasons to believe are false, or entertains serious doubts about the truth of the statements, yet publishes them anyway. In the landmark 1964 decision in <a href="https://supreme.justia.com/cases/federal/us/376/254/" rel="nofollow" target="_blank">New York Times v. Sullivan (1964) 376 U.S. 254</a> , the U.S. Supreme Court ruled that the First Amendment protects speech against public figures because society has an interest in having people feel free and open enough to discuss matters of public concern without fear of litigation or prosecution. For those reasons, a public figure must prove that the alleged defamatory statements were made with “actual malice.” – Defenses to defamation: – Truth – Opinion/hyperbole: In <a href="http://www.leagle.com/decision/19941946874FSupp1072_11772" rel="nofollow" target="_blank">Carl Sagan v. Apple Computer, Inc. (1994) 874 F. Supp. 1072</a>, the U.S. District Court for the Central District of California granted Apple’s motion to dismiss Sagan’s libel lawsuit for Apple’s use of the internal code name “Butt-Head Astronomer,” an apparent reference to Sagan. The court held that use of the term “Butt-Head Astronomer” was merely hyperbole, and could not be reasonably interpreted as a specific assertion of fact regarding Sagan (i.e. no one would actually think he was a “Butt-Head Astronomer.” – Privilege – Reputation of statement target is so tarnished that even if statement was defamatory, it still could not harm their reputation further. – How social media contributes to the prevalence of defamation lawsuits: – The ease of posting statements on Twitter, Facebook, Yelp, etc. makes it easier than ever for anyone to post voluminous statements to a wide public audience. Prior to the age of the Internet, media was controlled by “gate-keepers” such as publishers and newspaper editors, which in turn made it very difficult for almost everyone to disseminate their statements. Social media has thus irretrievably broken the barriers to publication, which in many ways is a great development. –  Statements made through social media have a very lengthy lifespan– possibly eternal- which increases the audience of every statement and the likelihood that a disparaging statement could damage its target’s livelihood. In the age of newspapers, statements were available to the public for only a few short days before being relegated to archives. – What can we do to prevent defamation? – Think long and hard before posting anything online. Ask ourselves: – Is this a true statement? How do we know that? Is there a chance that it is not? – Can this statement harm someone’s reputation or livelihood? – Is this statement, whether true or false, worth getting sued over? – Does this statement involve an important issue of public concern that needs to be addressed to prevent injury or damage to others? – Talk to our children about the dangers of social media defamation, the permanence of online communications, and the need to be careful before making any statements online. Like this podcast? Check out <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> website for more videos, blog posts, and podcast episodes! Like us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, follow us on <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>  and <a href="https://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>.  * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">disclaimer</a>, located at <a href="http://www.thelegalseagull.com/disclaimer" rel="nofollow" target="_blank">www.thelegalseagull.com/disclaimer</a>

Watch Your Keyboard: Defamation in the Age of Social Media

Defenses to DUI / DWI Cases: Drunk Driving, Drugs, and the Law

Nick Yarris

Exonerated After 20 Years on Death Row: Interview with Nick Yarris, Formerly Inmate No. AM-6841

In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT! Even The Legal Seagull has a waiver of liability in its disclaimer. Check it out! In this episode, we discuss:  The prevalence of waivers and releases; The difference between waivers and releases; Where you're most likely to encounter these documents; What to look out for when reviewing them; How all this impacts you; and How courts treat waivers and releases of liability.  Like this episode? Check out the video on The Legal Seagull's website and follow us on Facebook, Twitter, and Instagram!

In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT! Even <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">The Legal Seagull</a> has a waiver of liability in its <a href="http://thelegalseagull.com/disclaimer/" rel="nofollow" target="_blank">disclaimer</a>. Check it out! In this episode, we discuss: <ul> <li>The prevalence of waivers and releases;</li> <li>The difference between waivers and releases;</li> <li>Where you're most likely to encounter these documents;</li> <li>What to look out for when reviewing them;</li> <li>How all this impacts you; and</li> <li>How courts treat waivers and releases of liability.</li> </ul> Like this episode? Check out the <a href="http://thelegalseagull.com/videos-free-legal-resources/" rel="nofollow" target="_blank">video</a> on The Legal Seagull's <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">website</a> and follow us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>!

Waivers and Releases of Liability: Those Things We Sign But Rarely Read

Dred Scott

Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court. Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man. In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court. The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri. At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War. Like this podcast? Learn more by visiting The Legal Seagull's website and following us on Facebook, Twitter, and Instagram!

Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court. Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man. In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court. The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri. At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War. Like this podcast? Learn more by visiting The <a href="http://www.thelegalseagull.com" rel="nofollow" target="_blank">Legal Seagull's website</a> and following us on <a href="http://www.facebook.com/thelegalseagull" rel="nofollow" target="_blank">Facebook</a>, <a href="http://www.twitter.com/lglseagull" rel="nofollow" target="_blank">Twitter</a>, and <a href="http://www.instagram.com/thelegalseagull" rel="nofollow" target="_blank">Instagram</a>!

The Worst Supreme Court Decision Ever: Dred Scott v. Sandford (1857)

June 2014 was a fascinating month for the law, with several significant rulings by the U.S. Supreme Court. The Court unanimously held that warrantless cell phone searches by police are unconstitutional (with few exceptions) and that a Massachusetts law requiring a 35-foot buffer zone outside of abortion clinics violates the First Amendment. In another groundbreaking decision in Hobby Lobby, the Court ruled that as applied to closely-held for-profit corporations, the Affordable Care Act’s provision mandating that employers provide contraceptive care against the employers’ convictions violates the Religious Freedom Restoration Act of 1993. Not all Supreme Court decisions affect the Average Joe, but each of these holdings has important implications for the ordinary citizen. This episode discusses these decisions in detail, as well as other interesting cases and legal issues from June 2014. The episode begins with a discussion of some recent cases from around the country: – The Missouri Supreme Court held that a flying hotdog, which was thrown by an MLB team’s mascot and hit a spectator in the eye, is not an assumed risk of watching a sports event. – A new phone app launched in San Francisco allows users to bid on public parking spots in a “peer to peer auction.” This has run afoul of San Francisco’s laws and drawn the ire of its city government. – A woman is suing the New York City MTA after being spooked by an advertisement for the show Dexter, which allegedly caused her to fall and sustain injuries. – The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark on grounds that it is disparaging to Native Americans. – New York’s highest court struck down former Mayor Bloomberg’s ban on large soda drinks in a death blow to that regulation. – The Ninth Circuit Court of Appeals ruled that potential jurors cannot be excluded on grounds of sexual orientation. – A California trial judge struck down California’s teacher tenure laws as unconstitutional. – The NFL has reached a settlement to compensate former players for neurological injuries sustained as a result of repeated concussions. This settlement has no cap on damages and provides up to $5 million for each affected player over a 65-year eligibility period.   The episode proceeds with a discussion of three recent U.S. Supreme Court cases: Riley v. California (warrantless cell phone searches); Burwell v. Hobby Lobby (ACA contraceptives mandate); and McCullen v. Coakley (abortion buffer zone): Riley v. California This case involves two defendants convicted of crimes based on information obtained from their cell phones, which were searched incidental to their arrests. Petitioner Riley was tried and convicted in California, and petitioner Wurie was convicted in a federal district court. Accordingly, the respondents were the State of California and the federal government, both of which argued that these searches were necessary and not unconstitutional. The Court rejected the respondents’ arguments and held that warrantless searches are unconstitutional, unless exceptional circumstances exist, such as an emergency (e.g. terrorism, ticking bomb, etc.). – The Fourth Amendment bans unreasonable searches and seizures. – In U.S. v. Robinson (1962), the Supreme Court held that upon lawful arrest, the police may search a suspect’s person and effects even if there are no concerns for destruction of evidence or danger to police officers. In that case, defendant was arrested and his cigarette pack was searched, revealing drugs. – The Supreme Court held in Chimel v. U.S. (1969) that when lawfully arresting a suspect, the police may search his immediate vicinity if there is a concern that evidence will be destroyed or of danger to the police officers. – The respondents urged the Supreme Court to extend Robinson to the instant case, arguing that a cell phone was a personal effect similar to any other. – The Court rejected the respondents’ arguments, holding that in light of their tremendous storage capacity and the private nature of their contents, cell phones implicate greater privacy concerns than other effects. Moreover, the concerns present in Chimel and Robinson do not apply to the digital contents of cell phones, which cannot be used as a weapon against the police. Moreover, the Court found there is little concern for destruction of evidence. Burwell v. Hobby Lobby The Supreme Court held that as applied to closely-held corporations, Department of Health &amp; Human Services (“HHS”) regulations imposing contraceptives coverage on employers violates the Religious Freedom Restoration Act of 1993 (“RFRA”). At issue were four out of twenty contraceptives mandated by the HHS, including two intrauterine devices (“IUDs”) and two “morning after pills,” which the petitioners argued constituted abortion, a practice that violates their religious beliefs. RFRA forbids the ““[g]overnment [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Court held: – Closely-held for-profit corporations are protected under the RFRA. The Court rejected the respondents’ arguments that it was intended by Congress to apply solely to people and non-profit corporations. – The HHS mandate substantially burdens the petitioners’ religious beliefs by requiring them to either be complicit in a practice that violates their religious convictions or pay massive fines. – The Court agreed with the government that it has a compelling government interest in providing free or affordable contraceptives; however, the HHS mandate is not the least restrictive way of furthering that interest. The government has less intrusive options, such as providing contraceptive care itself, or extending an accommodation to closely-held corporations similar to that extended to religious organizations. The episode goes on to discuss the potential implications of the decision, which the dissenting justices predict will open a floodgate of litigation and allow employers to object to a wide array of laws that they believe run contrary to their religious beliefs.   McCullen v. Coakley In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it illegal for any person to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” The petitioners claimed that the buffer zone violated their First Amendment rights by making it difficult or impossible for them to engage in “sidewalk counseling,” which involves engaging and providing women entering abortion facilities with information about alternatives to abortion. The Supreme Court held unanimously that the statute violated the petitioners’ First Amendment rights: – The First Amendment affords special protection to sidewalks and public walkways. However, governments may still restrict the time, place, and manner of speech, as long as the restrictions are content neutral (i.e. not based on the type or nature of the speech), and provided that the restriction is not more intrusive than necessary. – Massachusetts does have a legitimate interest in maintaining the sidewalks to protect the public and to allow access to the sidewalk and the abortion facilities. – However, Massachusetts failed to prove that it did not have alternatives that were less restrictive of the petitioners’ First Amendment rights. The Court pointed out that Massachusetts already had laws in effect to protect people from harassment and violence, and that it could enact further laws. Moreover, Massachusetts failed to produce evidence that law enforcement was ill-equipped to deal with potential violence, intimidation, or intentional obstruction of the entrance to abortion clinics.

June 2014 was a fascinating month for the law, with several significant rulings by the U.S. Supreme Court. The Court unanimously held that warrantless cell phone searches by police are unconstitutional (with few exceptions) and that a Massachusetts law requiring a 35-foot buffer zone outside of abortion clinics violates the First Amendment. In another groundbreaking decision in <a href="http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf" rel="nofollow" target="_blank">Hobby Lobby</a>, the Court ruled that as applied to closely-held for-profit corporations, the Affordable Care Act’s provision mandating that employers provide contraceptive care against the employers’ convictions violates the <a href="http://www.law.cornell.edu/uscode/text/42/chapter-21B" rel="nofollow" target="_blank">Religious Freedom Restoration Act of 1993</a>. Not all Supreme Court decisions affect the Average Joe, but each of these holdings has important implications for the ordinary citizen. This episode discusses these decisions in detail, as well as other interesting cases and legal issues from June 2014. The episode begins with a discussion of some recent cases from around the country: – The Missouri Supreme Court held that a flying hotdog, which was thrown by an MLB team’s mascot and hit a spectator in the eye, is not an assumed risk of watching a sports event. – A new phone app launched in San Francisco allows users to bid on public parking spots in a “peer to peer auction.” This has run afoul of San Francisco’s laws and drawn the ire of its city government. – A woman is suing the New York City MTA after being spooked by an advertisement for the show Dexter, which allegedly caused her to fall and sustain injuries. – The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark on grounds that it is disparaging to Native Americans. – New York’s highest court struck down former Mayor Bloomberg’s ban on large soda drinks in a death blow to that regulation. – The Ninth Circuit Court of Appeals ruled that potential jurors cannot be excluded on grounds of sexual orientation. – A California trial judge struck down California’s teacher tenure laws as unconstitutional. – The NFL has reached a settlement to compensate former players for neurological injuries sustained as a result of repeated concussions. This settlement has no cap on damages and provides up to $5 million for each affected player over a 65-year eligibility period.   The episode proceeds with a discussion of three recent U.S. Supreme Court cases: <a href="http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf" rel="nofollow" target="_blank">Riley v. California</a> (warrantless cell phone searches); <a href="http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf" rel="nofollow" target="_blank">Burwell v. Hobby Lobby</a> (ACA contraceptives mandate); and <a href="http://www.supremecourt.gov/opinions/13pdf/12-1168_6k47.pdf" rel="nofollow" target="_blank">McCullen v. Coakley</a> (abortion buffer zone): Riley v. California This case involves two defendants convicted of crimes based on information obtained from their cell phones, which were searched incidental to their arrests. Petitioner Riley was tried and convicted in California, and petitioner Wurie was convicted in a federal district court. Accordingly, the respondents were the State of California and the federal government, both of which argued that these searches were necessary and not unconstitutional. The Court rejected the respondents’ arguments and held that warrantless searches are unconstitutional, unless exceptional circumstances exist, such as an emergency (e.g. terrorism, ticking bomb, etc.). – The Fourth Amendment bans unreasonable searches and seizures. – In <a href="http://supreme.justia.com/cases/federal/us/414/218/case.html" rel="nofollow" target="_blank">U.S. v. Robinson (1962)</a>, the Supreme Court held that upon lawful arrest, the police may search a suspect’s person and effects even if there are no concerns for destruction of evidence or danger to police officers. In that case, defendant was arrested and his cigarette pack was searched, revealing drugs. – The Supreme Court held in <a href="http://www.oyez.org/cases/1960-1969/1968/1968_770/" rel="nofollow" target="_blank">Chimel v. U.S. (1969)</a> that when lawfully arresting a suspect, the police may search his immediate vicinity if there is a concern that evidence will be destroyed or of danger to the police officers. – The respondents urged the Supreme Court to extend Robinson to the instant case, arguing that a cell phone was a personal effect similar to any other. – The Court rejected the respondents’ arguments, holding that in light of their tremendous storage capacity and the private nature of their contents, cell phones implicate greater privacy concerns than other effects. Moreover, the concerns present in Chimel and Robinson do not apply to the digital contents of cell phones, which cannot be used as a weapon against the police. Moreover, the Court found there is little concern for destruction of evidence. Burwell v. Hobby Lobby The Supreme Court held that as applied to closely-held corporations, Department of Health &amp; Human Services (“HHS”) regulations imposing contraceptives coverage on employers violates the <a href="http://www.law.cornell.edu/uscode/text/42/chapter-21B" rel="nofollow" target="_blank">Religious Freedom Restoration Act of 1993 (“RFRA”)</a>. At issue were four out of twenty contraceptives mandated by the HHS, including two intrauterine devices (“IUDs”) and two “morning after pills,” which the petitioners argued constituted abortion, a practice that violates their religious beliefs. RFRA forbids the ““[g]overnment [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Court held: – Closely-held for-profit corporations are protected under the RFRA. The Court rejected the respondents’ arguments that it was intended by Congress to apply solely to people and non-profit corporations. – The HHS mandate substantially burdens the petitioners’ religious beliefs by requiring them to either be complicit in a practice that violates their religious convictions or pay massive fines. – The Court agreed with the government that it has a compelling government interest in providing free or affordable contraceptives; however, the HHS mandate is not the least restrictive way of furthering that interest. The government has less intrusive options, such as providing contraceptive care itself, or extending an accommodation to closely-held corporations similar to that extended to religious organizations. The episode goes on to discuss the potential implications of the decision, which the dissenting justices predict will open a floodgate of litigation and allow employers to object to a wide array of laws that they believe run contrary to their religious beliefs. McCullen v. Coakley In 2007, Massachusetts amended its <a href="http://statutes.laws.com/massachusetts/PARTIV/TITLEI/CHAPTER266/Section120E1_2" rel="nofollow" target="_blank">Reproductive Health Care Facilities Act</a> to make it illegal for any person to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” The petitioners claimed that the buffer zone violated their First Amendment rights by making it difficult or impossible for them to engage in “sidewalk counseling,” which involves engaging and providing women entering abortion facilities with information about alternatives to abortion. The Supreme Court held unanimously that the statute violated the petitioners’ First Amendment rights: – The First Amendment affords special protection to sidewalks and public walkways. However, governments may still restrict the time, place, and manner of speech, as long as the restrictions are content neutral (i.e. not based on the type or nature of the speech), and provided that the restriction is not more intrusive than necessary. – Massachusetts does have a legitimate interest in maintaining the sidewalks to protect the public and to allow access to the sidewalk and the abortion facilities. – However, Massachusetts failed to prove that it did not have alternatives that were less restrictive of the petitioners’ First Amendment rights. The Court pointed out that Massachusetts already had laws in effect to protect people from harassment and violence, and that it could enact further laws. Moreover, Massachusetts failed to produce evidence that law enforcement was ill-equipped to deal with potential violence, intimidation, or intentional obstruction of the entrance to abortion clinics.

Recent Landmark Supreme Court Rulings: Warrantless Cell Phone Searches | First Amendment Cases (Abortion Buffer Zone and ACA Contraceptives Mandate) | and More!

Native American law (or “Indian law” as it is sometimes called) lies at the intersection of federal, state, and tribal laws, some of which pre-date the arrival of European colonists in North America. In today’s episode, we discuss the nature of Indian law, its origins, applications, powers, jurisdictional issues, and sovereign immunity. I interview Thomas Weathers, an attorney with an active Indian law practice. Mr. Weathers is an Aleut and an enrolled member of the Qawalangin Tribe of Unalaska. He and I discuss the following in detail: – The origins of Native American law, both before and after the arrival of Europeans. Article 1, section 8 of the U.S. Constitution empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Constitution, however, in particular the Bill of Rights, does not apply to Indian tribes.  In 1968, Congress passed the Indian Civil Rights Act, which extended most of the Bill of Rights to Indian tribes. – As with the federal and state governments, Indian tribes enjoy sovereign immunity- they cannot be sued without their consent. Consent can be express, as when a Congressional statute specifically provides for a right to file lawsuits against a tribe. Tribes may also affirmatively waive their rights to sovereign immunity by entering into contracts that provide for other parties to seek redress in alternate forums (e.g. arbitration clauses that allow awards to be enforced in state or federal courts). In the absence of Congressional action or affirmative waiver by tribes, they are generally immune from lawsuits. – Tribal courts retain jurisdiction over most civil and criminal matters involving Indians; however, they have virtually no jurisdiction over non-Indians. Mr. Weathers discusses a few different factual scenarios to illustrate how jurisdictional issues may arise. – Mr. Weathers discusses some recurrent issues involving Indian law as it pertains to state business and contract law, and to commerce between Indians and non-Indians.

Native American law (or “Indian law” as it is sometimes called) lies at the intersection of federal, state, and tribal laws, some of which pre-date the arrival of European colonists in North America. In today’s episode, we discuss the nature of Indian law, its origins, applications, powers, jurisdictional issues, and sovereign immunity. I interview <a href="http://www.nativeamericanbar.org/leadership-2/thomas-weathers/" rel="nofollow" target="_blank">Thomas Weathers</a>, an attorney with an active Indian law practice. Mr. Weathers is an Aleut and an enrolled member of the Qawalangin Tribe of Unalaska. He and I discuss the following in detail: – The origins of Native American law, both before and after the arrival of Europeans. Article 1, section 8 of the U.S. Constitution empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Constitution, however, in particular the Bill of Rights, does not apply to Indian tribes.  In 1968, Congress passed the Indian Civil Rights Act, which extended most of the Bill of Rights to Indian tribes. – As with the federal and state governments, Indian tribes enjoy sovereign immunity- they cannot be sued without their consent. Consent can be express, as when a Congressional statute specifically provides for a right to file lawsuits against a tribe. Tribes may also affirmatively waive their rights to sovereign immunity by entering into contracts that provide for other parties to seek redress in alternate forums (e.g. arbitration clauses that allow awards to be enforced in state or federal courts). In the absence of Congressional action or affirmative waiver by tribes, they are generally immune from lawsuits. – Tribal courts retain jurisdiction over most civil and criminal matters involving Indians; however, they have virtually no jurisdiction over non-Indians. Mr. Weathers discusses a few different factual scenarios to illustrate how jurisdictional issues may arise. – Mr. Weathers discusses some recurrent issues involving Indian law as it pertains to state business and contract law, and to commerce between Indians and non-Indians.

Native Americans and the Law

Are you considering applying to law school? Have you been accepted to law school and are now considering whether to enroll? Deciding whether to attend law school is one of the most important decisions you will make. Regardless of your ultimate decision, there are many factors to consider. In this episode, we discuss (in great detail), and with many attempts at humor (some successful), whether law school is right for you.

Are you considering applying to law school? Have you been accepted to law school and are now considering whether to enroll? Deciding whether to attend law school is one of the most important decisions you will make. Regardless of your ultimate decision, there are many factors to consider. In this episode, we discuss (in great detail), and with many attempts at humor (some successful), whether law school is right for you.

Should You Go to Law School?

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