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Ultimately We All Pay the Price of Frivolous Lawsuits

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 19 Nov 2009 09:39:24 -0500

Remember the woman who sued McDonald's because their coffee is hotU She didn't have the common sense to put her hot coffee somewhere other than between her legs while riding in a car, then blamed McDonald's when she was burned. It would be a classic example of a frivolous lawsuit--except for the fact that the woman actually won her case.

By definition, a frivolous lawsuit is one that is based on a legal claim that has no merit. In other words, it's a case the plaintiff stands no chance of winning. Why do people and companies file themU A lot of reasons. They may want to harass the defendant. They may want to stall or cost the other party money. And many frivolous lawsuits are filed because of the misguided notion that we must blame someone--anyone--for our own mistakes.

Shortly after the McDonald's coffee case, I heard the company's top lawyer (someone who's since left the company) speak at a conference. The coffee case was ridiculous, he said, but McDonald's had faced even sillier lawsuits.

Each McDonald's cashier register has a packet of bills that are rigged with an exploding dye packet, he told us. Employees know that if the store is robbed, they should give the rigged packet to the robber. A mechanism in the store's door will trigger the device, which then explodes and marks the robber with a permanent dye. That makes a lot of sense, I thought. Then he told us about the employee who robbed his own store. Among other things, this guy stole a rigged dye packet. It exploded as he was leaving with it, and he suffered some injuries. What did he doU He sued McDonald's.

It left me speechless. It still does, in fact.

Most big companies--which are perceived as having money to spare--are the target of frivolous lawsuits. These companies have attorneys who evaluate the lawsuits and know the suits are baseless, but sometimes the company decides that it's easier to settle the case than spend time and resources defending the case. Decisions like that add fuel to the fire, because as long as plaintiffs know there is a chance they might get some money, they'll continue to file these frivolous lawsuits.

(Don't get me wrong. I'll root for David versus Goliath if I think David's intentions are honest. But these lawsuits end up increasing a company's costs, which, in turn, increases the price companies charge for their products and services. Ultimately, consumers like you and me end up paying the cost when companies settle these frivolous suits.)

Judges usually have little patience for frivolous lawsuits that actually make it to court. Under federal and state rules, attorneys are required to do due diligence before filing a suit in an effort to keep frivolous claims out of the court in the first place. If an attorney makes a frivolous claim on behalf of his client (or if the individual, representing himself makes a frivolous claim), the judge can fine the attorney and/or the individual. For example, making a frivolous argument in US Tax Court could cost you up to $25,000 in fines.

Individuals who decide to represent themselves in lawsuits--without the expertise of an attorney to represent them--often make frivolous arguments in court simply because they don't fully understand the laws and the legal system. If you're representing yourself in small claims court, the judge will probably be understanding and explain why a claim, argument or motion is baseless. But if you're representing yourself in other courts, judges may have less patience, and you could be fined or required to pay your opponent's legal fees. This is an instance where it pays to have an experienced attorney representing you.

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When Pets Attack

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 17 Nov 2009 09:31:33 -0500

If you've turned on the TV in the last week, you've probably seen Charla Nash--the woman who was savagely attacked by a chimpanzee--being interviewed by Oprah Winfrey and The Today Show's Meredith Vieira. Last February, Nash's friend and employer Sandra Herold called to ask for Nash's help in containing Herold's pet chimpanzee Travis. When Nash arrived at Herold's home, Travis attacked her. Nash lost both hands, both eyes, her nose and her lips in the mauling, and remains hospitalized. She hopes she'll eventually be a candidate for a face and hand transplants.

Nash has reportedly sued Herold for $50 million and the state of Connecticut for $150 million. She alleges the state knew Travis was dangerous, but failed to remove him from Herold's home. Herold's attorney, however, has suggested that because Nash was Herold's employee, her claim should be treated as a worker's compensation issue. (Nash worked at Herold's towing company.) This would significantly limit any award Nash could receive, and would shield Herold from personal liability.

Every pet owner wants to believe that their pet--be it a dog, cat or chimp--is friendly and would never hurt anyone. But the Centers for Disease Control and Prevention estimate that 4.7 million Americans are bit by dogs alone each year, and more than 900,000 of those bites require medical treatment. Every pet owner should understand the potential legal consequences if their pet injures a non-family member.

Generally, if your dog bites someone, you'll be liable if you were unreasonably careless or if you knew your dog had a tendency to bite and did nothing to protect others from being bitten.

In addition, you're responsible if strict liability law is followed in your state. Strict liability, also called absolute liability, means that you are liable for any losses suffered by the injured person, even if you weren't at fault and careless in any way. That means if your dog bites, you will pay, no excuses.

Every Dog Gets One Bite

In a number of states, the one bite rule applies. Under this rule, you aren't liable the first time your dog bites. However, once your dog does bite someone, or attempts to bite someone, you're automatically on notice that your dog bites, and you'll be liable if your dog bites again. The rule is designed to deter dog owners from keeping a pet that they know has the propensity to bite.

Dangerous Breeds

Usually a homeowner's insurance policy will cover you for dog bite claims. However, many insurance companies are putting provisions in their policies that exclude certain breeds of dogs which are considered inherently dangerous, such as Pit Bulls, Rottweilers and Doberman Pinschers.

A number of state and local governments have passed laws to restrict or ban certain breeds, regardless of a particular dog's behavior. Some laws require owners of dangerous breeds to obtain a certain level of public liability insurance in case their dog attacks someone.

Wild and Exotic Animals

Owning an exotic or wild animal as a pet increases your liability exposure, and you could be breaking the law, depending on where you live.

In most states, if your wild or exotic animal injures someone, the doctrine of strict liability applies. Check your state and local laws to find out whether it's legal to keep the type of animal you want, and if there are any restrictions or registration requirements. Remember, the laws differ among states and localities. You can't assume that your wild or exotic pet is welcome everywhere.Damages

If your pet does injure someone, you'll be required to compensate the victim for any damages suffered as a result of the attack. You'll be responsible for the victim's medical bills and lost wages. If your animal tore the victim's clothing, you will have to pay for that as well.

You'll also have to compensate the person for the pain and suffering they endured because of the attack. This includes both physical and mental injuries. If you were grossly negligent, or if you intentionally caused the attack, you may have to pay punitive damages.

Worker's Compensation Claims

In Nash's case, it sounds as if Herold may claim that Nash was helping to wrangle the chimp as part of Nash's job responsibilities. (Just to be clear: Nash worked at Herold's towing company.) If Herold successfully makes that argument, Nash's compensation would be significantly limited.

State laws vary as to the exact compensation available, but injured workers may be entitled to:

Temporary total disability while they can't work at all (this is a percentage of the employee's previous actual earnings, depending on the state's laws)
Payment of their medical bills
Permanent partial disability payments

People who aren't able to work at all after their injuries may be entitled to total disability.

State laws vary widely as to how permanent disability is determined. As crude as it sounds, in some states there are schedules that list the amount of compensation to be paid for a particular injury. For example, a certain dollar amount will be paid for the amputation of a limb at a certain joint.

In some cases, a vocational rehabilitation expert may get involved and give an opinion as to an employee's future potential to earn compared to their earning potential prior to being injured.

The employer's workers' comp insurance may be responsible for vocational rehabilitation training.

Workers' comp is an exclusive remedy, which means that injured workers can't sue their employers, but are only entitled to benefits under their state's workers' comp laws.

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Considering AdoptionU Consider Adopting a Child in Foster Care

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 12 Nov 2009 09:41:12 -0500

November is National Adoption Month. According to several surveys, more than one-third of Americans have considered adopting a child, but only about 2 percent of Americans have actually adopted a child. There are a number of reasons why people consider adoption, but don't follow through on it. These include the cost of adoption, the lack of adoptable children or children who fit specific age/gender/racial parameters, the time is takes to complete an adoption, and administrative hurdles that must be completed prior to adopting a child.

One of the biggest sources of adoptable children is the U.S. foster care system. According to the U.S. Department of Health & Human Services' Children's Bureau, in 2007 (the most recent year for which data is available) approximately 783,000 children were in foster care in the United States, more than 130,000 of those children were waiting to be adopted, but only 51,000 were actually adopted during the year.

Many prospective parents don't consider kids in foster care because they may be older, be a racial minority or be part of a group of siblings. Prospective parents may also be concerned about potential health or behavioral problems, or fear that biological parents may attempt to regain custody.

These concerns are all valid, but if you are considering adoption, it's still worthwhile to investigate adopting a child from foster care because you may find a child who's the perfect addition to your family.

As a foster parent who is considering adoption, or a prospective parent considering the adoption of a child in foster care, here are some legal issues to be aware of.

Differences from Traditional Adoptions

Several key factors differentiate foster child adoptions from traditional adoptions.

Foster care adoptions are usually handled by state agencies, though the state may outsource responsibilities to a private agency. Also, foster care adoptions cost significantly less than traditional adoptions, or may even be free. If the child is considered a "special needs" child, subsidies may be available. (Special needs children include those who are minorities; have siblings who also need adopting; were exposed to drugs or alcohol before they were born; are older than 5; or have mental, physical or emotional problems.) In addition, you may qualify for a federal adoption tax credit.

Types of Foster Child Adoptions

There are several ways in which prospective parents can adopt foster children. Prospective parents can:

Adopt a child or group of siblings whose parents have already relinquished their parental rights or had those rights terminated.
Take in a foster child whose biological parents still have rights. The foster parents agree, in advance, to adopt the child if he or she isn't reunited with the parents or placed with another biological family member. This type of adoption is called "concurrent planning" because multiple avenues of resolution are being pursued simultaneously.
Adopt a child who was placed with you as a foster child, but whom you didn't originally intend to adopt.

Adoption Tax Credits

Federal laws allow for parents to deduct certain expenses incurred during adoption. Parents are subject to certain income limits, but if they are eligible, the Tax Code allows for the following:

Credit is given for qualifying expenses, which include adoption fees, attorney costs, court costs and travel expenses
Credit is subtracted from your total tax liability
Credits may be taken in the year following the year in which expenses are incurred, or the current year in which the adoption becomes final
You may not take a credit for adoption expenses that were reimbursed by your employer, but reimbursed expenses may be excluded from your gross income
The adopted child must be under 18, or physically and/or mentally unable to care for himself; and
The adoption of a child with special needs may allow you to deduct more qualified adoption expenses.

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Seized Property, Police and the US Supreme Court

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 10 Nov 2009 09:43:19 -0500

Did you hear about the man in Minnesota who was arrested and given a DUI after he drove his motorized recliner into a parked carU I'm not sure which is the stranger part of the story: That someone would take the time to add wheels and a motor to a reclining chair, or that you could be charged with driving a chair while intoxicated.

As of Friday, this strange story got a bit stranger: Proctor, Minn., police report that they sold the motorized recliner on eBay for $10,099.99 to an unidentified bidder.

State and federal laws allow government officials, including the police, to seize property if it has been used in the commission of a crime, or if it was bought with the proceeds of a crime. A Wall Street Journal article estimates that $1 billion in cash and property is seized annually in the United States. In fact, some critics argue that forfeiture laws are less about punishing the guilty, and more about enriching government agencies, which keep the income earned from selling seized property.

It's easy to understand the logic behind seizing a drug dealer's exotic car collection, or seizing Bernie Madoff's luxury homes. But imagine you lent your car to a friend who's later arrested for DUI or soliciting a prostitute. How would you feel if the police impounded your car and refused to return itU

The government has a process for returning seized property to its rightful (and innocent) owners, but that process can drag out for years, and many people often give up rather than pursuing the matter. However, the U.S. Supreme Court is hearing a case to determine whether innocent property owners are entitled to a prompt hearing to reclaim their property. In the case before the court, the plaintiffs argued that Chicago officials were taking too long to return property seized in drug cases. In Illinois, it can take up to 6 months following seizure before a hearing is held. The plaintiffs said that was too long, and a federal appeals court agreed.

"Our society is, for good or not, highly dependent on the automobile," wrote Seventh Circuit Court of Appeals Judge Terence Evans in the decision. "Consider the owner of an automobile which is seized because the driver--not the owner--is the one accused and whose actions caused the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure or even to post a bond to obtain its release."

Illinois officials disagree with the appeals court's decision, so the case will now be decided by the U.S. Supreme Court. A decision is expected in the Spring.

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Buyer's RemorseU You May Be Able to Cancel Your At-Home Purchase

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 05 Nov 2009 09:21:00 -0500

I recently considered replacing some carpet in my home, and my first call was to one of the companies that offers at-home appointments where they'll measure the space, show you samples and provide quotes on the spot.

The salesman who came to my house was talented. Even though the quote was about 300% more than I hoped to pay, he had an answer to my every sales objection. He repeatedly cut the price. He asked me how low it would have to go for me to sign a contract on the spot (then called his manager for approval to drop it even further). Then he casually mentioned, "Plus, if you sign a contract now, the Federal Trade Commission rules say you legally have the right to cancel it within three days at no cost to you. That gives you time to sleep on it."

I signed a contract on the spot--after all, I could cancel it!--and immediately after he left, I had second thoughts. I hadn't comparison shopped. The final price was still more than I'd budgeted. After doing a bit more research, I decided to cancel the order. But first I wanted to research the Federal Trade Commission's Cooling-Off Rule.

The rule gives you three business days to cancel a purchase of at least $25 if you made the purchase at home or another location that isn't the seller's permanent place of business. The sales person must tell you about your cancellation rights when you make the purchase, the contract or receipt must include the cancellation policy, and the sales person must give you two copies of the cancellation form.

Some types of purchases are exempt from the cooling-off rule. These include:

Phone and mail-order purchases
Purchase that aren't intended for personal, family or household use
Purchases that were negotiated at the seller's permanent place of business, even if the contract was signed elsewhere
Real estate, securities, insurance, motor vehicle, and arts and crafts purchases
Home maintenance and repairs
Purchases related to emergencies

In my instance, the salesman told me about the cancellation policy, but didn't give me copies of a cancellation form and the contract didn't include cancellation language. (In fact, it said that the contract couldn't be cancelled.) I was a little concerned about whether I'd actually be able to cancel the contract, but I took a few steps to ensure that the purchase was cancelled.

First, I called the carpet company and told them I'd like to cancel the order per the FTC's three-day cooling off rule. The man I spoke to assured me that the order would be cancelled, and I asked him to email or fax written confirmation of the cancellation to me.

I also checked with my credit card to see if the deposit I'd paid had been refunded. After two business days, no sign of a refund appeared, so I wrote a letter to the company, and included a copy of cooling-off rule from the FTC's website. In the letter, I included my order number, detailed my conversation with the person who confirmed my cancellation and referenced the FTC cooling-off rule. I sent the letter certified mail, and ensured that it was postmarked within three business days of my purchase.

About a week later, I had my refund.

If you unsuccessfully try to get a refund that you're entitled to under the FTC's cooling-off period, you should contact the FTC at Consumer Response Center, Federal Trade Commission, Washington, DC 20580. You should also see if your state has its own cooling-off rule, because state consumer protection agencies may also be able to assist you.

If you made a partial or complete payment using a credit card, contact the card issuer to see if you can dispute the charge.

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