Practice Areas

Explore the practice areas provided by the Dayton Bar Association LRS.


Administrative Law

Administrative law governs the activities of administrative agencies of government, including rule-making, adjudication or the enforcement of regulations. At the federal level, administrative law encompasses the U.S. Congress. At the state level, it encompasses state representatives. And at the local town council and county commissions level, they can also make rules. Administrative law also includes the enforcement of these regulations by bringing actions against violators.

Attorneys practice administrative law on behalf of both the government and private clients. For example, an administrative law lawyer may help a client navigate administrative procedures in order to make sure they succeed in making a certain claim to an agency. They might work with a client to bring a formal court proceeding after they’ve exhausted administrative remedies. An administrative law attorney might also represent a private client in an action to challenge the constitutionality of a regulation or the legislative authority for a rule or regulation.

_____________________________________

Admiralty and Maritime

Admiralty and Maritime Law is a body of law that governs nautical issues and private maritime disputes. This area of law is inherently international because the majority of maritime activities take place in international waters.

Typical areas of maritime law include:

  • Marine Commerce
  • Maritime Navigation
  • Maritime Pollution
  • Seafarers Rights
  • Transfer of Goods and Passengers

_____________________________________

Adoption

Adoption Steps

  • Home study process: Every state requires a home study process, which is a series of interviews and home visits intended to evaluate the suitability or the adoptive parent or family, educate and prepare prospective parent(s), and appropriately place adoptees in the proper environment.
  • Locate a child available for adoption: While licensed adoption agencies may be your best source of adoption information, you can also volunteer to be a foster parent through a charity or government organization.
  • Adoption court procedures: All adoptions must be handled and approved by an adoption court to provide proper notice for all parties and ensure that all the legal requirements are met. In just about every adoption court proceeding, the court judge will follow the “best interests of the child” standard when deciding whether to approve the adoption.

Types of Adoption

While agency adoptions are the norm, you may also have the option of an independent adoption. International adoptions and open adoptions, where adoptive parents meet and possibly stay in touch with birth parents, can carry added regulations and restrictions.

_____________________________________

Agriculture

Agriculture law governs legal issues affecting the farming and ranching industries. Typical agriculture law issues include the use of pesticides, land use and zoning, environmental issues, and patents on genetically modified seeds. Because agriculture law focuses on an entire industry, it can affect small family farms as well as large commercial farming operations.

Agriculture law includes federal and state laws, as well as rules and regulations enacted by administrative agencies, such as the United States Department of Agriculture (USDA) and the Environmental Protection Agency (EPA).

Farms, both big and small, can face a host of federal, state, and local legal issues. Farmers may have regular contact with the federal and state government through aid programs, as well as environmental, safety, and employment regulations and regulations. At the local level, farmers may have issues involving land use and zoning. If you are facing an agriculture-related legal issue, contact an agriculture lawyer immediately to protect your rights and explore your legal options.

_____________________________________

Animal Law

Animal law is a combination of statutory and case law in which the nature of nonhuman animals is an important factor, including companion animals, wildlife, and animals used in entertainment, research, and raised for food. Animal law permeates most traditional areas of the law, including tort, contract, criminal, trust/estates, family, environmental, administrative, and constitutional law.

Some examples of animal law are: animal custody disputes in divorces and separations, veterinary malpractice cases, housing disputes, “no pets” policies, damage cases involving the wrongful death or injury to a companion animal, enforceable trusts for companion animals, domestic violence and anti-cruelty laws.

_____________________________________

Antitrust and Trade Regulation

Antitrust law aims to protect trade and commerce from unfair restraints, monopolies and price fixing through the Sherman Act and the Clayton Act. Most states also have their own antitrust laws patterned on federal laws.

The Department of Justice (DOJ) investigates antitrust matters and is authorized to convene a grand jury to indict suspects. The Federal Trade Commission (FTC) is the federal agency that seeks to promote free and fair competition in interstate commerce. Most antitrust issues arise when the DOJ or FTC investigates large companies about to merge. The mergers are often in the same industry and may involve unfair business tactics or outcomes.

Smaller corporations and businesses may also be involved in antitrust issues. Small businesses often file complaints about unfair competition with the FTC. These businesses often hire antitrust attorneys in order to ensure that the process for filing a complaint is followed and to help make the most persuasive case for government action.

_____________________________________

Appeals

An appeal is a request for a higher court to review a lower court's decision. An appeals lawyer handles cases on appeal when a party loses or wants to challenge a part of a decision made by the lower court. The appeals court reviews the record made in the trial court.

In appealing a case, no new facts or evidence can be added to the record. Based on written briefs, the appeals court decides whether to affirm or reverse the trial court's decision. Appeals cases are typically handled by an experienced lawyer skilled at research and writing.

_____________________________________

Arbitration

Arbitration is a method of resolving disputes outside of court. Most arbitrations happen because of an arbitration clause in a contract, in which the parties have agreed to resolve any disputes arising out of the contract through arbitration. Parties refer their disputes to an arbitrator who reviews the evidence, listens to the parties, and makes a decision. The arbitration process is less formal than a courtroom hearing or trial and usually less expensive.

An arbitration clause may make the arbitration either mandatory or voluntary. A dispute that is subject to mandatory arbitration must go through arbitration. In voluntary arbitration, both sides submit their disagreement to arbitration after it arises.

Arbitration may or may not be binding. In a binding arbitration, the arbitrator's decision is final. It may not be reviewed or overturned by a court except in very limited circumstances. In nonbinding arbitration, either party may reject the arbitration award and demand a trial instead. Parties often treat nonbinding decisions as an independent assessment of the strengths and weaknesses of a potential lawsuit, with the aim of fostering a settlement.

Often, an arbitration agreement will designate the American Arbitration Association (www.adr.org), JAMS (www.jamsadr.com), or the National Arbitration Forum ( www.arb-forum.com) to handle the arbitration. Arbitrators from these groups are often retired judges or practicing attorneys, although some are non-lawyers with expertise in certain areas. Parties do sometimes hire attorneys to help them through the arbitration process. If the dispute involves $10,000 or less, most individuals choose to handle the process alone, with guidance from the arbitrator. For disputes involving $100,000 or more, both sides usually hire lawyers for help.

_____________________________________

Asylum

To be granted asylum, a person must demonstrate that he or she is a “refugee,” that he or she is not barred from asylum for any of the reasons listed in our immigration laws, and that the decision-maker should grant asylum as a matter of discretion.

A person who meets the refugee definition may be granted asylum in the United States if they are not barred from asylum for any of the reasons listed in section 208 of the Immigration and Nationality Act (INA) and if the adjudicator decides that they should be granted asylum as a matter of discretion. Some people who need asylum will have their cases decided at the Asylum Office and others will have their cases decided at the Immigration Court. The standard for asylum is the same in both places.

Withholding of Removal

To be granted withholding of removal under section 241(b)(3) of the INA, a person must demonstrate that if returned to the country of origin he or she is more likely than not to be persecuted on account of race, religion, nationality, political opinion, or membership in a particular social group. There is no discretionary element here.

U.N. Convention Against Torture

The government of the United States has promised that it will not send anyone back to a country where he or she is likely to be tortured and so an immigration judge will consider eligibility for protection under the Torture Convention even if the asylum-seeker does not specifically request it. To be granted withholding of removal under the U.N. Convention Against Torture, a person must demonstrate that if returned to the country of origin he or she is more likely than not to be tortured. There is also no discretionary element here.

Temporary Protected Status (TPS)

The U.S. government may designate a foreign country for Temporary Protected Status (TPS) due to conditions in that country which temporarily prevent its citizens from returning safely, or when the country is unable to handle the return of its citizens, due to various short-term conditions, including ongoing armed conflict, environmental disaster, or an epidemic.

A person who is granted TPS may not be detained or removed from the United States, can work legally in this country, and may be granted a travel document to leave the U.S. and return. While TPS is a temporary benefit and does not lead to lawful permanent residence or any kind of permanent immigration status, holders of TPS  may also apply for asylum or any other form of more lasting immigration status if eligible for those forms of relief.

_____________________________________

Aviation

Aviation law covers legal issues affecting aircraft and airport operations, including aircraft navigation and maintenance, air traffic control safety, and pilot licensing requirements. Aviation law mostly operates at the federal level, with most aviation regulations and standards enforced by the Federal Aviation Administration (FAA), The Transportation Security Administration (TSA), and the National Transportation Safety Board (NTSB). While states have little authority to pass laws related to aviation, they may pass laws that do not hinder federal laws, as well as pass zoning laws that dictate the hours of operation and the noise levels of local airports.

When facing an aviation legal issue, businesses and individuals tend to hire experienced attorneys because the aviation industry is heavily regulated, and many pilots, shipping companies, and corporations that regularly use air transportation have trouble navigating the many rules and laws that are passed by Congress and imposed by federal agencies.

_____________________________________

Banking and Finance

The banking and financial industries are heavily regulated by both state and federal law. These laws impose reporting requirements for banks and other financial institutions, govern securities and other transactions, and regulate taxes. In addition to affecting banks, banking and finance law often plays a large role in mergers and acquisitions of corporations, stock purchases and investments by both individuals and companies, and tax audits of bank accounts. There are many laws, contracts, and regulations that may dictate how new business spend and account for investment funds. Small businesses and startups usually find they need to hire a lawyer from the beginning to ensure compliance with all legal rules.

The need to hire a lawyer for banking and finance-related legal issues can arise for individuals and companies alike: while individuals may have their bank accounts compromised by financial institutions that fail to follow federal regulations, businesses can run into securities issues when accepting investment funds. And large corporations and banks have a host of regulations that they must follow in order to conduct business. For this legal area, rather than finding a lawyer with general experience in banking and financial legal issues, you should hire an attorney with specific experience in your particular issue.

_____________________________________

Bankruptcy

Bankruptcy refers to the legal status of a person or business that cannot repay the debts owed to creditors. The Bankruptcy process normally initiated by the debtor, however formal Bankruptcy proceedings do not begin until there is an official court order by a United States Bankruptcy Court. Generally, Bankruptcy relieves the debtor from their debt by either discharging the debt or restructuring the debt.

Common types of bankruptcy include:

  • Chapter 7. This is basic liquidation of debt for individuals and businesses. It is the fastest and least complex form of bankruptcy.
  • Chapter 9. This is municipal bankruptcy. Only towns, cities, etc can apply for this.
  • Chapter 11. This is a reorganization or rehabilitation of debt which typically allows companies, or individuals with substantial assets, to continue operations while they follow a debt repayment plan.
  • Chapter 12. Rehabilitation of debt for family farmers and fishermen.
  • Chapter 13. Rehabilitation allows individuals with a regular source of income to develop a plan to repay all or part of their debts.
  • Chapter 15. International Bankruptcy - this helps foreign debtors to clear their debt.

_____________________________________

Business and Corporate

Business and Corporate Law focuses on aspects such as forming a company, shareholder rights, and basic commercial contracts.

Business and Corporate Law is regulated by both state and federal law. The federal law covers things such as stocks, investments, workplace safety (OSHA), and employment laws. State law adds additional regulations on top of the federal law.

It is important to note that each industry has its own unique business and corporate issues. For example, the business issues facing a pharmaceutical company is very different from the issues facing a pizza shop. When picking an attorney it is important to pick an attorney who has some familiarity with your industry.

Business and corporate attorneys can typically work on the following matters:

  • Advisory Agreements
  • Affiliate Agreement
  • Business Consultation
  • Business Licenses
  • Buyout Agreements
  • ByLaws
  • Corporate Disclosures
  • Corporate Formation
  • Corporate Restructuring
  • Delaware Incorporation
  • Founders Agreement
  • LLC
  • Loan Agreement
  • Non-Disclosure Agreement
  • Operating Agreement
  • Partnership Formation
  • Sales Agreement
  • Terms of Service
  • User Agreement

_____________________________________

Chapter 11 Bankruptcy

Chapter 11 Bankruptcy permits businesses, or individuals with substantial assets, to reorganize. It is available to every business, whether it is organized as a corporation, partnership, sole proprietorship, or by an individual.

How does Chapter 11 Bankruptcy work?

Petitions for Chapter 11 Bankruptcy are typically filed voluntarily, however the creditors can band together to file an involuntary Chapter 11 petition against a defaulting business.

Most businesses file their petition for bankruptcy where their primary place of business is located. However, they have the option to file for bankruptcy where they are domiciled. For example, many large corporations are incorporated in Delaware and will choose to file for bankruptcy there instead of in their home state.

During the Chapter 11 Bankruptcy process, the debtor continues to operate their business. However, the Court must approve decisions to sell assets, break leases, shut down or expand business operations, or entering into contracts and agreements.

The Reorganization Plan

The reorganization plan is a contract between the debtor and the creditors outlining how the business will operate and pay its debts in the future. Ultimately, the bankruptcy Court must “confirm” or approve the reorganization plan. The plan must meet numerous requirements:

  • Feasibility. The bankruptcy court must determine that the reorganization plan is likely to be successful. The debtor must be able to show that they are able to generate sufficient revenue in the future to repay creditors.
  • Good Faith. The plan cannot be in bad faith or generate revenue through illegal means.
  • Best Interests of Creditors. The plan must allow for creditors to receive as much as they would if the debtor’s case was converted to a Chapter 7 liquidation filing.
  • Fair and Equitable. This means that secured creditors (a creditor who has a mortgage or lien against property) are paid in full and the debt’s owners do not retain anything on behalf of their equity interest until the debt is paid in full.

_____________________________________

Chapter 13 Bankruptcy

Chapter 13 Bankruptcy allows an individual or business to keep their property, and they pay most or all of your debts back over a three to five-year period. However, Chapter 13 Bankruptcy isn’t for everyone. Because Chapter 13 requires that you repay your debts, you must prove to the Court that you can meet these payment obligations.

How does Chapter 13 Bankruptcy work?

Chapter 13 Bankruptcy requires you to fully repay certain debts. These are called “priority debts.” Priority debts include things like child support, alimony, wages you owe to employees, and certain tax obligations.

Your repayment plan must also include monthly payments for secured debts, such as your automobile loans and your mortgage. At the end of the month, any disposable income you have left will go towards repaying unsecured loans. Unsecured loans are things such as credit cards and medical bills.

_____________________________________

Chapter 7 Bankruptcy

Chapter 7 Bankruptcy allows an individual or a business to discharge their debts and in exchange they allow the court to sell their property. After the court distributes the debtor’s property to creditors, the debtor is typically no longer responsible for repaying any remaining debt.

This is often referred to as “liquidation bankruptcy.”

How does it work?

When you file for Chapter 7 Bankruptcy, you are technically placing the property you own and the debts you owe into the hands of the bankruptcy court. During this process, you’re not allowed to give away or sell any of your property and/or you cannot pay any of your debts without getting the consent of the court.

The court appoints a “bankruptcy trustee” to oversee this entire process. The trustee’s job is to review your list of assets, determine which assets are non-exempt, sell the non-exempt assets, and repay your creditors as much as possible.

_____________________________________

Child Abuse and Neglect

Child abuse is broadly defined in many states as any type of cruelty inflicted upon a child, including mental abuse, physical harm, neglect, and sexual abuse or exploitation. The specific crimes charged in instances of child abuse can include assault and battery.

Law prohibits willful or threatened act that harms or is likely to cause harm of physical abuse, neglect, sexual abuse, sexual exploitation, abandonment, or emotional/mental injury. Statute contains exemptions for religion, poverty, or corporal punishment. The harm must have been inflicted by non-accidental means. This includes intentional acts, actions that were careless (such as, allowing a known sexual offender or known abuser to be with a child alone), and acts of negligence (such as, leaving a child under a certain age at home alone). Also, the "harm" inflicted upon a child need not be actual, but may include "threats" or "risks of imminent harm".

In addition to state child abuse laws, all states have child protective services (CPS) agencies that investigate reports of abuse and neglect of children in a home. CPS also serves to place children who have been abused or neglected in safer homes, either through adoption or foster care.

Here are some examples of what child abuse warnings may include:

  • Physical warnings: unexplained burns, bites, bruises, and broken bones or parent's philosophy of harsh physical discipline
  • Emotional warnings: extreme behavior, delayed physical or emotional development, attempted suicide, and belittling by a parent or caregiver
  • Sexual warnings: difficulty walking or sitting, reports of nightmares or bedwetting, sudden changes in appetite, sudden refusal to change in front of others or participate in gym activities
  • Signs of neglect - frequent absences from school, obvious lack of medical or dental care, severe body odor, stays home alone

Mandatory Reporting Laws

Every state has mandatory reporting laws that require certain people to report apparent or suspected child abuse to a central authority, such as via a statewide toll-free hotline. The reports are meant to promote early intervention of child abuse.

_____________________________________

Child Support

In virtually all divorce or separation cases that involve minor children, the court will set out how the child is to be cared for financially. Child Support is a payment for a child’s care, made to the parent who has physical custody of the minor children.

The amount of child support will depend on the income of both parents and the amount of time the minor child resides with each parent. Many state guidelines also provide for add-on amounts for: child care, health care and health insurance, special education or and other related needs.

Can child support orders be modified?

Typically the courts will only consider child support modifications when there is a substantial change in one of the parent’s circumstances or income. Parents can be eligible for a child support modification following a job loss or other significant life event.

If you’re the parent who receives child support  on behalf of your child, you can be eligible for a child support modification if the child’s education costs or medical expenses have gone up considerably.

It is important to note that some states put a limit on how often they will reconsider child support awards. For example, some states will only review modification requests once every 24-months.

_____________________________________

Civil Law

Civil law is a body of rules that defines and protects the private rights of citizens, offers legal remedies that may be sought in a dispute, and is divided into four main categories: contract law, tort law, property law, and family law.

Contract Law
Contract law deals with agreements between two or more parties, each of which is obligated to hold up their portion of the agreement. Generally speaking, contracts may be oral or written, however there are certain types of contracts that must be put in writing.

Tort Law
Tort law is a branch of civil law that is concerned with personal injury and civil wrongdoing. A tort is a civil wrong, done by one person or entity to another which results in injury or property damage, and frequently involves monetary compensation to the injured party. There are three categories of torts: negligence, intentional tort, and strict liability. Negligence is an unintentional tort, to which there are four elements that must be satisfied: duty, breach of duty, causation, and damages. An intentional tort is a deliberate wrongdoing in which the defendant acted with intent to cause harm or injury. And lastly, strict liability is a tort that does not require actual negligence or intent to injure. It is based on an absolute or “strict” duty to ensure something is safe. Strict liability frequently comes into play with hazardous activities.


Property Law
Property law covers both personal property and real property. Personal property can be tangible, such as jewelry, animals, and merchandise, or intangible such as patents, copyrights, stocks, and bonds. Real property refers to land and anything built on it that cannot be easily removed, as well as anything under the surface of the land, such as oil and minerals.


Family Law
Family law is the branch of civil law that deals with marriage, divorce, annulment, child custody, adoption, birth, child support, and any other issues affecting families. The family court gets involved with dividing up property and finances after a divorce, establishing child custody, child support, and spousal support among other things.

_____________________________________

Civil Rights

Civil rights are an expansive and significant set of rights that are designed to protect individuals from unfair treatment. They are the rights of individuals to receive equal treatment in a number of settings, including education, employment, housing, public accommodations, and are based on certain legally-protected characteristics. Most laws guaranteeing and regulating civil rights originate at the federal level, through federal legislation such as the following laws:

  • Age Discrimination Act of 1975
  • Age Discrimination in Employment Act (ADEA)
  • Americans with Disabilities Act (ADA)
  • Civil Rights Act of 1964
  • Fair Housing Act (FHA)
  • Section 504 of the Rehabilitation Act of 1973
  • Voting Rights Act of 1965

Civil rights also come from federal court decisions. State that pass them through the state constitution and other laws can be more protective of civil rights than their federal equivalents. Municipalities like cities and counties can also enact ordinances and laws related to civil rights.

_____________________________________

Class Action

Class actions generally happen when a number of people have suffered the same or similar injuries. Often many of the individuals' injuries were relatively minor, such that they might not pursue legal redress on their own, but together, the value of the claims of the class add up. In class actions, people are often seeking justice for injuries caused by defective products or damages from consumer fraud, corporate misconduct, securities fraud, and employment practices.

Opting In: Notifying Class Members

Every person who would be affected by the court's decision in the class action is entitled to notice that the action has started. The court will order that the class representative, through his or her attorneys, make reasonable attempts to notify any unknown class members by general media such as television, an advertisement in a magazine or newspaper, or a posted flyer. People who are notified then have the opportunity to join in the action, called "opting in,” or to decide not participate as a member of the class, or "opting out."

Class Action Outcomes

In a class action, the court's decision applies to every participant who has opted into the class. All individuals who fit within the court's original definition of a class member are bound by the final court decision, even if they never actually go to court or otherwise participate in the lawsuit. The judge decides the basic question of who wins with regard to the entire group. If the defendant wins, the class lawsuit is dismissed and the individuals in the group are prohibited from filing new or individual lawsuits over the same issue against the same defendant. If the class of plaintiffs wins, the court finds the defendant liable for the plaintiffs' injuries, and the amount of recovery is later divided among the plaintiffs.

Payment to the participants in the class action usually follows a "plan of distribution." With the help of the parties and their attorneys, the judge develops the plan to distribute the amount that the plaintiff class won in the lawsuit minus the attorneys' fees and litigation costs. Each member of the class may receive certain percentage of the total amount fund, or may receive a certain dollar figure. When the parties in a class action lawsuit decide to settle, the presiding judge must approve the settlement, making sure it is fair to all parties.

_____________________________________

Commercial

Commercial law focuses on the sale and distribution of goods, as well as financing of certain transactions. Commercial law is primarily regulated by the Uniform Commercial Code (UCC), which is a model set of laws regarding the sales of goods, leases of good, negotiable instruments, and secured transactions. All states have adopted some form of the UCC, though each state is free to make its own modifications to the laws as it sees fit. Because many states have modified at least some of the UCC provisions to fit their needs, it is important to hire a lawyer familiar with the UCC as it has been enacted in your state. Other commercial law terms to know include:

  • Negotiable Instrument – A document that contains an unconditional promise to pay a specified amount of money on demand or at a specified time
  • Merger – The absorption of one company by another
  • Acquisition – The obtaining of a controlling interest in a company
  • Secured Transaction – A transaction intended to create a security interest in personal property or fixtures of a property
  • Security - A financial asset, such as a mortgage, provided to make certain that a debt obligation is fulfilled

Each industry faces its own unique commercial law issues. An attorney with experience in the type of business that your company conducts will be able to help you find legal solutions that also takes business ethics and industry practices into consideration.

_____________________________________

Constitutional

Constitutional law refers to rights carved out in the federal and state constitutions. The majority of this body of law has developed from state and federal supreme court rulings, which interpret their respective constitutions and ensure that the laws passed by the legislature do not violate constitutional limits.

At the federal level, most constitutional legal issues involve the Bill of Rights, which contains the first 10 amendments to the U.S. Constitution. These amendments contain such rights as the freedom of speech, the right to a fair trial, and the right to be free from certain types of discrimination. States also have their own constitutions, which usually contain the same rights guaranteed under the U.S. Constitution. While many state constitutions also establish additional rights, they may not take away any federal rights.

Constitutional law also involves the rights and powers of the branches of government. Both the federal and state constitutions outline three branches of government and give distinct powers and responsibilities to each one.

_____________________________________

Construction

Construction law involves any legal issue related to the construction of a building or other structure. Legal issues related to construction activities can arise under federal, state, or local laws.

Common construction-related legal disputes include workplace injuries and accidents, construction defects, contract issues, and problems with obtaining the proper planning or building permits.

Financial issues are some of the most common types of legal issues that can arise during a construction project, including when construction projects go over budget due to unanticipated labor or materials costs or when customers refuse to pay construction companies for a finished product that does not meet their expectations. When these legal issues arise, construction companies and contractors have a variety of legal options, ranging from suing for breach of contract to placing a lien on the finished work. Government contracts play a large role in construction law. When bidding on a government construction project, contractors must pay close attention to the specifications of the job to ensure that they will be able to comply with any additional requirements.

_____________________________________

Consumer

A consumer is anyone who acquires goods or services for their own use. Consumer law are laws on the rights of consumers and the free flow of accurate information in the marketplace, designed to prevent businesses from engaging in fraud or unfair practices, and to protect individuals from fraudulent behavior by businesses. Many consumer protection laws also involve credit, banking and related financial matters. Consumer transactions such as buying, selling and returning goods are regulated at both the state and federal levels.

_____________________________________

Contracts

A contract refers to a legally enforceable agreement between two or more parties, which can be a person or a corporation) that creates an obligation to do or not do something. Contracts typically involve parties who are competent to enter a contract, and a mutual agreement between these parties. Some contracts must be in writing. Although rules vary by state, most contracts involving real estate or goods worth more than $500, and require a year or more to complete.

When one of the parties breaks the terms of an agreement this is called a "breach." If the non-breaching party sues they can ask the court to "enforce" the contract. This may result in a court order for the breaching party to uphold their end of the contract or they might require payment for the breach if damages are determinable and more easily put the non-breaching party in a position to receive the benefit they sought in the contract.

When a breach of contract occurs and one or both parties wishes to have the contract enforced on its terms and attempts at informal resolution have failed the aggrieved party can file a lawsuit in the appropriate civil court. In some cases parties will attempt mediation before a lawsuit is filed. A party that is successful in mediation or court may be granted specific performance (an order commanding the breaching party to hold up their end of the agreement) or one of a number of different kinds of damages including compensatory damages, punitive damages, nominal damages, liquidated damages, or restitution.

_____________________________________

Copyright

Copyright is an intellectual property right that grants the creator of an original work a set of exclusive rights (generally, to use and distribute the work) for a limited period of time. The purpose of copyright is to encourage and support creativity in the arts and sciences by giving the creator (i.e. the author of a book, the painter of a painting, etc) a means of receiving compensation for the intellectual effort.

Traditionally, copyright was said to be territorial. This meant that copyright did not extend beyond a particular country's jurisdiction unless that country was part of an international agreement. Today, this is much less relevant because the vast majority of countries are party to at least one such agreement.

While all countries have a unique set of copyright laws, most countries recognize copyright in any completed work (without a requirement of formal copyright registration), copyright is enforced as a civil matter, and the duration of copyright is the entire life of the creator plus 50 - 100 years.

Registering a Copyright

The purpose of copyright registration is to create a verifiable record of the date and content of the work in question, which is extremely helpful in cases of copyright infringement or plagiarism.

International convention, primarily the Berne Convention, provides international rights without the requirement for national registration. However, the United States is still an outlier in that it provides legal advantages for registering works of U.S. origin.

_____________________________________

Criminal

Our legal system is largely comprised of two different types of cases: civil and criminal. Civil cases are disputes between people regarding the legal duties and responsibilities they owe each other. Criminal law broadly refers to federal and state laws that make certain behavior illegal and punishable by imprisonment and/or fines. The U.S. employs a common law system, which works in combination with state and federal statutes. As far as criminal laws are concerned, each state has its own penal code which defines crimes and the severity of any offense and punishment.

Criminal cases are generally categorized as felonies or misdemeanors based on their nature and the maximum imposable punishment. Each state is free to draft new criminal laws, so long as they are deemed constitutional. Thus, what is a crime in one state may not necessarily be a crime in a neighboring state.

Felonies

A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment.

Misdemeanors

Crimes that do not amount to felonies are typically called misdemeanors. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison.

Infractions

Lesser offenses, such as traffic and parking tickets, are often called infractions.

_____________________________________

Custody

There are several types of child custody. Joint custody is where both parents share parental rights and the living arrangements of their child. Courts generally prefer joint custody, but sole custody, where only one parent or guardian has the physical and legal custody over a child, is a possible arrangement as well. Physical custody refers to sharing a home with a child and handling his or her day-to-day care. Legal custody refers to the right to make important decisions on your child’s behalf, including those related to health care, religion, and education.

In most states, family courts determine child custody arrangements based on what is in the best interests of the child. To decide custody questions, the courts look at a number of factors, including parents’ desire and ability to care for the child, the emotional bond between the child and both parents, the adjustment needed if the child has to move to a new area, and, if old enough, the child’s wishes. Frequently, parents or other adults who have raised a child will be required by the court to take part in mediation.

Child Custody Problems

Sometimes issues arise where a parent keeps a child when it’s not his or her turn to care for the child. Occasionally, a parent claims a child on their taxes after it had already been established that the other parent would claim the child. When these problems arise, a child custody modification may be needed.

_____________________________________

Debt Collection

The Fair Debt Collection Practices Act (FDCPA) is a federal law that provides debtors with protection from abusive debt collection practices. The FDCPA considers any person who regularly collects debts owed to others as debt collectors. This definition includes attorneys who regularly collect debts, but it does not include creditors that collect their own debts. The types of debts covered by the FDCPA are any family, household, and personal debts, which includes medical care.

People who are subject to the FDCPA are prohibited from behaving in certain ways during the process of collecting a debt. A collection agency is not permitted to harass or abuse debtors, which includes a prohibition against publishing the name of a debtor on a blacklist or other posting that is public. Debt collection agents are also not allowed to provide false or misleading information in order to collect a debt, nor can they engage in shocking or unfair methods to collect. A debt collection agent is not permitted to contact a debtor before 8:00 a.m. or after 9:00 p.m., and is not permitted to directly contact a debtor who is represented by an attorney.

Debt collection efforts must comply with the bankruptcy orders. Usually, bankruptcy courts will issue an automatic stay stopping all debt collection while the case is under review. If you are dealing with debt collection issues, read the debtor's bankruptcy papers containing the creditors that are owed money and creditors that are secured and unsecured. If you decide to proceed, you should also file a proof of claim, which states your desire to be a part of the bankruptcy proceeding. Finally, be sure to comply with the decision of the bankruptcy court.

_____________________________________

Defamation

The term "defamation" covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." Defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.

Defamation law changes as you cross state borders, but there are some accepted standards that make laws similar no matter where you are. Generally in order to win your lawsuit, you must show that someone published a false statement that caused you injury, and that the statement did not fall into a privileged category.

Higher Burdens for Public Officials and Figures

People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit. When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with "actual malice,” meaning that public officials could only win a defamation suit when the statement that was made wasn't an honest mistake and was in fact published with the actual intent to harm the public figure. Other people in the public eye must also prove that the defamatory statements were made with actual malice.

_____________________________________

Disabilities

Understanding your plan's definition of disability can be key to qualifying for disability benefits. The definition of disability varies depending on your insurance policy. Many private disability insurance policies provide benefits if injury or illness prevents you from meeting the duties of your current job. Others, like Social Security disability insurance, use stricter definitions of disability, which will only provide benefits if you can no longer do any job at all. Some policies require you to be unable to work for several months before receiving benefits, but other policies, like short-term disability insurance, only provide benefits for a limited time.

Applying for Benefits

If your disability insurance is provided by an employer, federal regulations establish strict requirements for processing and responding to your claims. Your insurance provider is required to inform you of your plans requirements, including any time limits and deadlines for filing and any conditions that can be excluded from disability coverage. If you are applying for Social Security disability insurance, you'll need to provide detailed information regarding your disability.

While many disability claims are initially denied, Social Security disability insurance, and many private policies do allow you to appeal a denial, often several times.

_____________________________________

Divorce and Separation

Reasons for Divorce

Most states now offer what is known as a "no fault" divorce, which allows a court to enter a divorce decree without one party having to legally prove the other party did something wrong in the marriage. Here, one spouse may simply allege that the marriage has broken down and there's no reasonable hope it can be preserved, and a divorce can be granted with or without the other spouse's consent.

Alternatives to Divorce

Many states offer legal separations, which can allow spouses to make some of the same decisions as a divorce regarding their shared property, child custody, and child support. This option doesn't legally end the marriage and is generally used when couples want to retain their marriage status for religious or health care reasons.

Property Division

The division of marital property after a divorce will generally depend on whether you live in a community property state, which considers nearly all property obtained after the marriage as equally owned by both spouses and will generally split the property equally after the divorce. Absent community property statutes, it's typically up to the court to divide marital property between both parties. Courts will normally accept a property division agreement if the spouses can create their own.

Alimony and Spousal Support

Alimony and spousal support are interchangeable terms that refer to monthly payments from one ex-spouse to another following a divorce. These payments can be court-ordered or arranged by the parties involved and are intended to account for the adverse economic effect a divorce can have on one party. All spousal support agreements and amounts are unique, depending on the spouses' individual incomes and property, their earning capacity, the duration of the marriage, and whether children and child support are involved, among other factors.

_____________________________________

Domestic Abuse and Violence

The Office on Violence Against Women defines domestic violence as a pattern of abusive behavior in any relationship that’s used by one partner to gain or maintain control over another intimate partner. This behavior can include physical, sexual, emotional, psychological, and even economic abuse. Stalking and threats may be classified as domestic violence as well. And although we normally think of battered wives in the context of domestic abuse, non-married partners, family members, children, and other cohabitants can also be victims of domestic violence.

Every state has criminal statutes prohibiting domestic abuse. New laws requiring arrests and mandating harsher penalties have led to an increased rate of response and prosecution. Tort law allows victims of domestic violence to sue their abusers in civil court, and possibly recover damages for their physical, economic, and emotional injuries. Victims can also file for orders of protection, more commonly known as restraining orders, to prevent further abuse.

_____________________________________

DUI

Driving under the influence of alcohol or other impairing drugs is a crime in all 50 states and the District of Columbia, but DUI law varies by state. For the purposes of DUI law, generally you are "impaired" if your ability to safely operate a motor vehicle is appreciably affected by having consumed alcohol, illicit drugs, or prescription medications. Motorists who are shown to have a blood-alcohol concentration (BAC) of at least 0.08 percent are assumed to be impaired. Similarly, some states assume that any amount of certain drugs in the bloodstream constitutes impairment.

A DUI arrest is always preceded by a traffic stop, whether the police officer suspects drunk driving or has stopped a motorist for an unrelated reason, such as a burned-out taillight. After a police officer has conducted a traffic stop and suspects a DUI violation, he or she will conduct one or more tests to determine whether or not the motorist is impaired. Usually the process begins with a field sobriety test, in which the officer asks the driver to perform a set of tasks that would be difficult for a drunk driver to complete. The officer then uses an instrument to measure an individual's blood-alcohol concentration (BAC), most commonly called a breathalyzer.

The privilege of driving a motor vehicle can be suspended, along with criminal sanctions, if you are convicted of driving under the influence (DUI) of alcohol or other drugs. While you likely won't spend time in jail for your first offense (aside from perhaps an overnight stay), the minimum jail time for a second and third offense is 10 days and 30 days, respectively. But the cost of a DUI can also include steep fines and court fees, license suspension, and other negative consequences.

_____________________________________

Education

Compulsory Education

Education law is governed by the states. Every state requires all its children to be educated. For most students, this means that parents must send their students to an accredited public, private, religious school or have them home-schooled.

Student Rights

According to federal law, every student is entitled to a "free appropriate public education." This means that schools are required to make reasonable accommodations for students with disabilities. Students, parents, teachers, and doctors must collaborate and determine the best way to educate each child with special needs so that they can be adequately prepared for life after school.

Schools enact codes of conduct designed to keep students safe and focused on school work that often include bans on drugs and weapons on school property. Certain types of adult speech, such as obscenity, hate speech, and sexualized speech are considered disruptive to the functioning of the school, and are severely limited. However, a school can only protect students in ways that do not infringe on their constitutional rights, as students have limited rights to speech and privacy. Furthermore, schools cannot automatically expel students for bad behavior; instead, they must provide the student with notice and a hearing before revoking education privileges.

Teachers

The law has measures designed to protect teachers' rights as employees, as well as teachers' academic freedoms. One major vehicle for protecting teacher rights are teachers' unions, which sets standards on how long a teacher can work and what duties they may undertake.

_____________________________________

Elder Law

Elder law focuses on the concerns of older people. It’s a broad area of law that includes attorneys helping people plan for retirement, prepare advance health care directives, file Social Security and disability claims and appeals, help manage property and financial assets, and prepare estate-planning documents. Elder law attorneys also help locate government services and funding and offer input on care for patients needing support, and represent clients in cases involving appointing guardians, rights of an older person, and other disputes.

Estate Planning

Estate planning is a major part of elder law practice. Elder law attorneys can help prepare estate-planning documents to secure benefits. Securing Social Security and Medicare benefits as well as state-based aid can be critical in old age.

Advance Care Directives, Power of Attorney, and Guardianship

Elder law attorneys frequently help clients prepare advance healthcare care directives to spell out treatment wishes for when they will no longer able to make or communicate decisions. Granting a power of attorney can give someone the power to make healthcare decisions.

_____________________________________

Elections

Attorneys specializing in election law handle cases involving election financing and campaigns,  such as campaign contribution limits, as well as election fraud and the framework under which political parties may organize. Examples of their work also include cases involving corporate campaign contributions, how lobbyists are regulated on both state and federal levels, and ethics issues such as when a public official may or may not accept a personal gift, and what the reporting requirements are when lobbyists give personalized plaques or trophies to government officials.

_____________________________________

Employee Benefits

There are numerous common employee benefits that are frequently used. They include:

  • 401(k) plan. This plan allows an employee to choose what kind of investments the employer will make on the employee's behalf. The employer selects different investments to offer, while the employee chooses which they prefer.
  • Cafeteria plan. A plan in which the employer offers a variety of different benefits, and the employees choose those benefits that fit their individual needs.
  • Defined benefit plan. Also known as “unit benefit plan,” this is a plan in which employees are promised that upon retirement they will receive a specific amount of money according to a formula, a calculation that may be based on how long the employee worked for the company, and how much he or she earned.
  • Defined contribution plan. This plan refers to one in which the employer makes regular contributions of a specified amount of money.  In contrast to a defined benefit plan, it does not promise the employees any specific amount of retirement benefits. The employee's retirement benefit will depend on how much was contributed to his or her account, and how the plan's investments performed over the years.
  • Employee Stock Ownership Plan (ESOP). This plan is primarily funded by the company's own stock, and does not depend on whether the company has made a profit.
  • Fixed benefit plan. In this kind of plan, the amount of retirement benefits is based on a formula that does not include the number of years the employee worked for the company. It could be a particular dollar amount, and it may be based on some percentage of the employee's pay.
  • Individual Retirement Account (IRA). People who are not covered by any pension plan at work may use an IRA to save for retirement. In a traditional IRA, the contributions are made from the person's taxable income, and grow tax-free in the IRA. A Roth IRA is funded from a person's income, but that income is not taxed in the year it is earned.  Instead, the income grows over the years and is taxed when the person withdraws it after he or she retires.
  • Money-purchase plan. A defined-benefit plan in which the employer must contribute a specific amount of money each year to each participant's account.
  • Multi-employer plan. In this kind of plan, two or more employers pool their contributions for the benefit of their employees. The plan may be established and maintained according to the terms of a collective bargaining agreement between the employers and a labor union.
  • Profit-sharing plan. A profit-sharing plan may be funded from the company's profits, but is not required to be. The terms of a profit-sharing plan will set forth a formula to determine how much should be contributed each year, or the plan may leave the amount to the employer's discretion.
  • Qualified plan. A qualified plan is one that complies with ERISA, and requires certain standards of vesting and accrual of benefits, and compliance with "nondiscrimination rules."
  • Retirement plan. A retirement plan provides retirement income, or it is a savings device in which contributions appreciate over time, with income taxes deferred until withdrawals are made when an employee reaches a certain age.
  • SIMPLE plan. "SIMPLE" is an acronym for "savings incentive match plans for employees." It describes a plan in which employees can make tax-deferred investments and the employer makes matching contributions. The plan can take the form of an IRA or a 401(k) plan.
  • Simplified Employee Pension (SEP). In a SEP, the employer directly funds IRAs or annuities that are established by or on behalf of the employees.
  • Stock bonus plan. This plan is funded by shares of the company's stock.
  • Target-benefit plan. In this plan, the employer has some idea of what participants should receive for retirement benefits, uses an actuarial formula that will meet that target amount by the time the employee is ready to retire.
  • Thrift or savings plan. This plan indicates that the participating employees must make contributions. The employer may make matching contributions, but isn't required to.
  • Top-hat plan. A top-hat plan is one offering unfunded deferred-compensation plans for upper management or highly compensated employees. A top-hat plan is not subject to some provisions of ERISA.
  • Top-heavy plan. This plan provides benefits for key employees, such as officers or owners of the company, that are worth more than 60 percent more than the benefits offered to regular employees.
  • Welfare benefit plan. A welfare benefit plan provides medical benefits and other non-pension benefits to employees and their families.

_____________________________________

Energy & Utilities

A public utility is a business or service, which may be publicly or privately owned, engaged in supplying the public with electricity, gas, water, transportation, or telephone or telegraph service. The individual states' various public utilities commissions oversee electric companies, while electric utility boards are delegated power by the state legislature.

Energy law attorneys specialize in the energy business and work with power companies, municipal utilities, and energy producers. Much of their work involves compliance, or making sure energy companies and other involved parties are following the proper laws and regulations. Since energy extraction can be quite dangerous and potentially harmful to the environment, there are numerous safety and environmental regulations.

_____________________________________

Entertainment and Sports

Entertainment, sports, and leisure law covers a wide range of professions and media, including visual entertainment, performing arts, media, and both professional and amateur sports. An attorney who practices this area of law typically provides legal services such as contract negotiation, agent representation, labor law, merchandising, and licensing. This is a broad practice area encompassing both state and federal laws across several legal disciplines, including:

  • Copyright: A person's exclusive right to reproduce, publish, or sell his or her original work of authorship.
  • Agent: A person or entity authorized to act on behalf of and under the control of another in dealing with third parties.
  • Licensing: The sale of a license permitting the use of patents, trademarks, or other technology to another.
  • Contract: An agreement between two or more parties that creates in each party a duty to do or not do something and a right to performance of the other's duty or a remedy for the breach of the other's duty.

Any party to a contract or production involving entertainers, athletes, or other public figures may need the counsel or advice of an entertainment, sports, and leisure attorney. Agents representing actors or professional athletes often are licensed attorneys.

_____________________________________

Environmental

Laws protecting our shared waterways, air, trees and other natural resources intend to ensure a more sustainable future for generations to come. Many federal laws relate to the protection of the environment and the health and safety of U.S. residents. The following are major and preeminent federal regulations:

  • The Clean Air Act sets goals for clean air and contains detailed provisions for regulating emissions from various different sources.
  • The Clean Water Act makes it unlawful for any person or business to discharge any pollutant from a source point into navigable waters of the United States without a special permit from the EPA.
  • The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) addresses the handling of uncontrolled or abandoned hazardous waste sites, accidents, spills, and other emergency releases of pollutants or contaminants into the environment.
  • The Emergency Planning & Community Right-to-Know Act (EPCRA) provides assistance to local communities in protecting the public health, safety, and environment from chemical hazards.
  • The Endangered Species Act is intended to protect and assist in the repopulation of threatened or endangered plants, animals, and animal habitats.
  • The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the sale, distribution, and use of pesticides for the protection of human life and health as well as the life and health of threatened and endangered species.
  • The National Environmental Policy Act (NEPA) ensures that the government researches and properly considers the environmental impact of federal actions such as large construction projects.
  • The Occupational Safety & Health Act (OSHA) requires employers to provide their workers with a safe workplace.
  • The Pollution Prevention Act seeks to reduce the amount of pollution in the environment by making changes in the production, operation, and use of raw materials.
  • The Resource Conservation and Recovery Act (RCRA) authorizes the Environmental Protection Agency (EPA) to control the generation, transportation, treatment, storage, and disposal of hazardous waste.
  • The Safe Drinking Water Act (SDWA) addresses issues relating to the quality and safety of drinking water.
  • The Superfund Amendments and Reauthorization Act (SARA) reauthorized CERCLA to continue efforts to clean-up hazardous waste abandonments, spills, and releases.
  • The Toxic Substances Control Act (TSCA) allows for the testing, regulation, and screening of all chemicals produced or imported into the U.S. before they reach the consumer market place.

_____________________________________

ERISA

ERISA is the acronym for the Employee Retirement Income Security Act, a federal law that provides pensions, insurance companies, and private employers with guidelines regarding the administration of employee benefit plans. Although ERISA doesn't require private employers to provide pension plans it sets minimum standards for those that do.

ERISA Amendments

  • Consolidated Omnibus Budget Reconciliation Act (COBRA) ensures that employees that voluntarily resign or are let go under certain circumstances continue to receive healthcare coverage for a certain period of time
  • The Health Insurance Portability and Accountability Act (HIPAA) limits the pre-existing medical condition exception for health insurance coverage and established a period of 6 months prior to enrollment where the development of a new condition could not be deemed preexisting.
  • The Newborns' and Mothers' Health Protection Act (The Newborns' Act) provides mothers with minimum coverage that permits at least 48 hours in a hospital following childbirth and a minimum of 96 hours hospital stay following a cesarean section.

ERISA Violations

ERISA violations commonly include employers improperly denying benefits to employees. When there is a violation of the ERISA obligations of an employer there are two ways that penalties may be incurred:

  1. An aggrieved plan beneficiary can file a complaint against a violator, beginning with the administrative procedures to seek corrective action and eventually filing a lawsuit when the administrative remedies are exhausted.
  2. The Department of Labor's Employee Benefits Security Administration (EBSA) can initiate an action against the employer. Both civil and criminal penalties may result from ERISA violations.

_____________________________________

Expungement

Expungement is a court-ordered process where the legal record of an arrest or criminal conviction is “sealed” or erased. The availability and procedure of expungement varies according to the state or county in which the arrest and conviction occurred.

Are expunged records removed entirely?

Generally an expungement will still be an accessible part of a person’s criminal record, and it is viewable by certain government agencies. For example, criminal courts may still access the record and immigration and deportation courts can view the record.

However, no record of an expunged arrest or conviction will appear if an employer, school, or company conducts a background check.

Eligibility for expungement

Some states allow qualifying individuals to seal or expunge their criminal arrest records.

There are many factors which will determine if you’re eligible for expungement. Here are some of the top factors:

  • Jurisdiction
  • The nature and/or seriousness of the crime or charge
  • Whether you entered a guilty or no contest plea to an offense which is ineligible for expungement
  • The amount of time that has passed
  • Whether you’re currently under any type of probation, house arrest, or pretrial release
  • Your unique criminal history

It is important to note that not all states allow for expungement. For example, New York does not allow for the expungement of a criminal record at all.

_____________________________________

Family

Family law encompasses civil procedures and legal matters that involve family members' financial responsibilities, custodial rights, eligibility, and other obligations.

The following is a list of family law topics:

  • Marriage and Cohabitation: Eligibility requirements such as age and gender are primarily governed at the state level. Different states have different laws governing legal partnerships other than marriage.
  • Divorce and Alimony: Divorces come about via court order, either with or without legal representation. Sometimes one spouse will be required to provide financial support for the other after a divorce.
  • Child Custody and Child Support: When parents get divorced, the court must decide what is in the best interests of the children, which includes living arrangements and financial support.
  • Adoption and Foster Care: A variety of legal considerations may come into play when adopting or fostering a child.
  • Parental Liability and Emancipation: Parents often are liable for the actions of their children. Some children may become "emancipated" if they can prove their maturity and ability to live apart from their parents.
  • Reproductive Rights: Laws governing abortion, birth control, artificial conception, and other reproductive rights are established at the state level.

Because emotions can run high during some divorces, hiring an attorney for her legal knowledge and skills, as well as to negotiate with the other party to resolve difficult issues, can be invaluable.

_____________________________________

Federal Crimes

The United States Constitution provides for a federal government that is superior to state governments with regard to its enumerated powers. These powers include the authority to govern international affairs, interstate commerce, the currency and national defense. After the American Civil War, the Fourteenth Amendment applied the Constitution's Bill of Rights to state governments. Legislation passed by Congress, an Executive Order of the President, or a decision of federal courts pursuant to the Constitution are federal law.

Through the system of checks and balances, it is the Supreme Court makes final decisions regarding federal laws regarding specific cases brought before them. United States federal laws are codified in the United States Code.

_____________________________________

Foreclosure

When a lender forecloses on a home, it means mortgages have defaulted on and the property must be given up. The lender usually makes efforts to warn that  foreclosure is imminent, usually with certain deadlines. If the home is worth less than the amount remaining on the mortgage, the case may involve a deficiency judgment.

Types of Foreclosure

There are two main types of foreclosure initiated in the U.S., although a handful of states employs a few other methods. The two primary types are:

  1. Foreclosure by judicial sale - This is the required method of foreclosure in many states; the property is sold under the court's supervision, with proceeds paying off the mortgage lender and any lien holders.
  2. Foreclosure by power of sale - Most states allow this type of foreclosure; it involves sale of the property by the mortgage holder, without supervision of the court.

Acceleration

The concept of acceleration is used to determine the amount owed under foreclosure. Acceleration allows the mortgage holder the right when the mortgagor defaults on the mortgage to declare the entire debt due and payable. Virtually all mortgages today have acceleration clauses. However, they are not imposed by statute, so if a mortgage does not have an acceleration clause, the mortgage holder has no choice but to either wait to foreclose until all of the payments come due or convince a court to divide up parts of the property and sell them in order to pay the installment that is due. Alternatively, the court may order the property sold subject to the mortgage, with the proceeds from the sale going to the payments owed the mortgage holder.

Avoiding Foreclosure

Lenders generally would rather not take on the responsibility of the house, preferring monthly payments on the loan. Therefore, many lenders are willing to modify the loan, temporarily lower or suspend monthly payments in a process called "forebearance," come up with a repayment plan, or refinance. Other options include seeking government assistance, filing for bankruptcy, or simply selling the home yourself in order to avoid foreclosure and its stigma on your credit report.

_____________________________________

Franchising

A franchise is a legal and commercial relationship between the owner of a trademark and someone who seeks to use that identification in business activities. For example, Wendy’s restaurants all share the same branding and similar menu items, but they’re individually owned by franchisees.

Common terms in a franchise relationship are:

  • Franchise Disclosures: state laws that govern the disclosures franchisors must make to prospective franchisees. These are items such as average profit, operating costs, upfront capital expenditures, etc.
  • Royalties: the share of profit that the franchisee must pay to the franchisor.

If you are looking to enter into a franchise agreement, be sure to consult an attorney so they can review the master agreement and the franchise disclosure document for legalese, so that your rights are protected.

_____________________________________

Fraud

Fraud is a broad term that refers to the intentional deception of a person or entity by another made for monetary or personal gain. Laws against fraud vary from state to state, and can be criminal or civil in nature. While the exact wording of fraud charges varies among state and federal laws. the essential elements needed to prove a fraud claim in general include: (1) a misrepresentation of a material fact; (2) by a person or entity who knows or believes it to be false; (3) to a person or entity who justifiably relies on the misrepresentation; and (4) actual injury or loss resulting from his or her reliance. The main purpose of fraud is to gain something of value by misleading or deceiving someone into thinking something which the fraud perpetrator knows to be false.

Criminal fraud requires criminal intent on the part of the perpetrator, and is punishable by fines or imprisonment. Civil fraud, on the other hand, applies more broadly to circumstances where bad-faith is usually involved, and where the penalties are meant to punish the perpetrator and put the victim back in the same position before the fraud took place.

There are many types of fraud offenses, several of which occur through the mail, internet, phone, or by wire. Common types include:

  • bankruptcy fraud
  • tax fraud, or tax evasion
  • identity theft
  • insurance fraud
  • mail fraud
  • credit/debit card fraud
  • securities fraud
  • telemarketing fraud
  • wire fraud

Penalties for Fraud Offenses

Penalties for fraud offenses may include criminal penalties, civil penalties, or both. Most criminal fraud offenses are considered felony crimes and are punishable by jail, fines, probation, or all of the above. Civil penalties may include restitution or payment of substantial fines.

_____________________________________

Gaming

Gaming includes activities such as casinos, racetracks, and lotteries, is regulated under a combination of federal and state laws. States that permit such gaming usually have a commission established to oversee the regulation of the industry, such as licensing of those employed in the gaming industry. States that permit casinos and similar forms of gaming often have strict zoning regulations to keep such establishments away from schools and residential areas. Gaming establishments on Indian reservations must be in compliance with the federal Indian Gaming Regulatory Act and any other tribal gaming regulations that may apply.

Gaming attorneys typically work with casino owners, lottery operators, and other entities involved in gaming operations. They represent clients before state and local gaming regulatory bodies, as well as the National Indian Gaming Commission and other federal entities. Gaming attorneys also work with clients on other issues related to gaming operations, such as financing, taxes, tribal administrative matters, leases, and intellectual property rights.

_____________________________________

Government

Government law covers a broad area in the legal field. U.S. federal government law addresses government interactions on a national scale, and is largely composed of administrative law and constitutional law, while state and local government law deals largely with how government operates on the state and local level, with state and city governments and agencies, as well as interactions with businesses and private citizens.

The U.S. federal government’s three branches (the legislative branch, the judicial branch, and the executive branch) shares control of the country with state governments. State governments are made up of their own legislative, judicial and executive branches and are given a fair share of autonomy to create laws for their individual states, although federal law holds precedence. State law also establishes and regulates local government for cities, towns, counties, and other communities.

Local government law addresses a variety of issues, topics and legal areas, including:

  • Sunshine laws for public access to government records and processes
  • Municipal planning for land use and zoning law
  • Licensing and regulatory law
  • Labor rights, discrimination, wage laws and FLSA, FMLA, ADA and more with regards to employment and personnel law for government workers and employers
  • Utilities and telecommunication law for government entities such as gas, water & electric companies, cell phone towers and easements
  • Property taxes, assessments, user fees and other taxation law for city revenues
  • Eminent domain law; environmental law as it applies to government regulations
  • HRA’s and other housing agencies for development, redevelopment and affordable housing issues
  • Tax abatements and other forms of public finance; and government contracts.

_____________________________________

Government Contracts

Government contracts law is comprised of all the statutes, cases, rules, regulations, and procedures with which any company must comply to do business with the government Businesses contracting with the government face rules and regulations in virtually every aspect of making, performing, and eventually terminating a contract with an agency or department. Many of these rules were put in place to avoid favoritism and to give all bidders fair access to be awarded a contract. Additionally, the competitive bidding process is intended to ensure the lowest price for certain goods.

Terms to Know

  • Appropriation: In governmental accounting, an expenditure authorized for a specified amount, purpose, and time.
  • Bid Protests: The General Accounting Office (GAO) forum for bidders seeking federal government contracts who believe that a contract has been (or is about to be) awarded in violation of the law.
  • Comptroller General: The accounting officer of the U.S. who investigates financial claims against or on behalf of the government.
  • Federal Acquisitions Regulations (FARs): Regulations established to codify uniform policies for acquisition of supplies and services by executive agencies.
  • General Accounting Office (GAO): The federal government office that carries out legal, accounting, auditing, and claims settlement functions with respect to government programs and operations.

_____________________________________

Guardianship

A legal guardian is an adult who is appointed or chosen by a court to make decisions on behalf of an individual who cannot make their own decisions. Normally, a guardian is chosen for a minor, but sometimes a court will establish a guardian for an adult with special needs or an adult child can become an elderly parent’s legal guardian.

Guardianship for Minors

Since minors are generally protected and cared for by their parents, a minor's parents make any and all legal decisions that may be necessary for their welfare. However, in some cases a child may need a separate individual to attend to their legal rights, because the minor has inherited assets or no longer has a parent qualified to make legal decisions on his or her behalf. In these cases, a guardian can either be chosen voluntarily by the family or appointed by the court. Guardians for minors are usually selected with the best interests of the minor in mind.

Generally, the guardian provides whatever care would be given to a child by his or her parents. The guardian of a minor looks after the direct physical well-being of the minor and the assets of the minor's estate, including providing a legal residence in order for the ward to attend a public school, applying for public assistance benefits for a minor if needed, applying for public housing on behalf of a minor where necessary and bringing lawsuits on behalf of the minor. The guardian also receives and maintains any money due the minor for their care and support, and is required to maintain, account for, and preserve any excess funds beyond what is necessary to support the minor. The guardian also has to authorize any necessary medical or other care for the well-being and health of the ward.

Guardianships for minors are terminated when the minor reaches the age of majority, but can be reinstated by the court where it can be shown that the ward still requires supervision.

Guardianship and Disabilities

Guardianships for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. Guardianships are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration.

_____________________________________

Harassment

Criminal harassment is usually confined to state law, which has a wide variety of criminal laws forbidding harassment in many forms, including general harassment crimes as well as specific forms of harassment, such as stalking and cyberstalking. Generally, criminal harassment entails intentionally targeting someone else with behavior that is meant to alarm, annoy, torment or terrorize them. Most state laws require that the behavior cause a credible threat to the person's safety or their family's safety. Harassment charges can range from misdemeanor to high level felony charges depending on the circumstances. The following are common types of criminal harassment:

  • Stalking and Menacing. Stalking generally refers to a clear pattern of conduct through which the perpetrator causes the victim reasonable fear for their safety or their family's safety.In some states, "stalking" is specified as a separate offense from harassment. Other states include both harassment and stalking under a single general statute.
  • Interstate stalking is a federal crime. Some states punish stalking as a form of "menacing." Menacing can often include ongoing actions, such as stalking someone, which cause reasonable fear in the victim. Menacing also often includes single acts which are purposefully intended to create a reasonable fear in someone, such as brandishing a weapon.
  • Cyberstalking. Some states have enacted specific laws against stalking someone online. "Cyberstalking" generally refers to stalking someone through the internet, email, text messages, or other means of electronic communication.
  • Harassment and restraining Orders. While prosecutors can charge someone with criminal harassment, victims of abuse or harassment may also petition the court for a restraining order. Violation of these court orders may constitute a separate criminal offense, and may also increase the severity of a charge.

_____________________________________

Healthcare

WIth rising cost of quality medical care, prescription drug coverage and the need for long-term health care solutions for an aging population, healthcare law has become big business, and legal matters frequently arise. The following are general issues involved in healthcare law:

Patient Rights

A number of federal and state laws cover a wide range of areas related to medical care, patient records, and available treatment methods. For example, informed consent laws require medical professionals to disclose the potential risks, benefits, and alternatives involved with any treatment. The physician must then obtain the patient's written consent before proceeding. Once a patient has consulted with a physician, the Health Insurance Portability and Accountability Act (HIPAA) prevents the physician or any other medical providers from disclosing the patient's records without his or her consent. Legal issues often arise when a doctor or hospital makes an improper disclosure of a patient's records or fails to obtain informed consent before moving forward with a course of treatment. Finally, a number of states, including California and Colorado, have passed laws approving the use of marijuana as a medical treatment.

Medicare and Medicaid

Many Americans are unable to pay the high costs of health care on their own, and Medicare and Medicaid step in when they can’t. While Medicare is available to senior citizens and administered equally across all states, Medicaid is available to low-income Americans of any age and handled by the states.

Americans who are at least 65 years old are eligible for Medicare benefits. While Part A of Medicare covers base level medical services, Part B is an optional supplemental plan that's based on the patient's income level. Medicaid, on the other hand, covers the basic health care costs of individuals who fall below a certain income level.

_____________________________________

Immigration

In the United States, federal law governs who may enter the United States, how long they may stay, and what they are permitted to do while in the United States (ex: working).

Immigration benefits and enforcement is administered by the Department of Homeland Security (DHS). Prior to 2003 this organization was known as the Immigration and Naturalization Service (INS).

Under U.S. Immigration law, persons are either U.S. Citizens/Nationals or Aliens. Aliens can be lawful permanent residents (green card holders) or non-immigrant visa holders.

Typical immigration services that an attorney can help with include:

  • E-2 Visa
  • Green Card
  • H-1B Visa
  • H-1B Visa Transfer
  • H-2B VIsa
  • Immigration Consultation
  • J-1 Visa
  • L Visa
  • O Visa
  • TN Visa

_____________________________________

Indian and Native Populations

Native Peoples Law governs the Native Americans, Native Hawaiians, and Alaska Natives who live in the United States. Each tribe may create and enforce its own tribal law. The federal government issued several statutes and treaties that affect the provision of services to people on Native American reservations. Lawyers practice in this area help Native Americans find work or set up businesses with the people surrounding the reservation, or help the state enforce laws that apply to Native Americans.Some lawyers work within the tribes and help tribe members handle resolve their internal disputes or access government services to which they are entitled.

Laws relating to Indian and native populations often overlap with the following areas of law:

  • International Law: Because tribes are considered "sovereign governments" that live within the United States, federal laws that govern Native Americans are largely contained in treaties.
  • Municipal Law: Many tribes operate very similarly to cities on U.S. soil and must create ordinances for taxes, business licenses, police power, and other essentials.
  • Business Law: Many Native Americans wish to create businesses and market to people outside the reservation, and must set up their business according to applicable state and federal laws.
  • Land Use Law: The federal government sets aside land specifically for use by Native Americans.
  • Estate Planning: Native Americans are subject to different estate laws than other American citizens.

_____________________________________

Insurance

Insurance law relates to many kinds of insurance coverage. Below is a general list:

  • Health Insurance helps cover the cost of medical care, from routine check-ups and prescriptions to life-saving surgery. It’s currently mandatory for most people, and many obtain it through their employers, their state’s exchange program, Medicare or Medicaid.
  • Dental Insurance provides coverage for dental care. Most dental plans will pay a percentage of the costs of dental services.
  • Life Insurance has several different types, but the general idea is that one pays a regular premium to insure their life for a certain amount of money, and when one dies, the proceeds from the life insurance policy are paid out to surviving beneficiaries.
  • Auto Insurance is required by almost all states if one has a car. Auto insurance plans offer coverage for property damage and injuries to varying degrees.
  • Homeowners Insurance is required by many banks and lenders as a condition of one’s mortgage. Homeowners insurance helps cover the costs of unfortunate events, such as theft, vandalism, water damage from plumbing or heating issues, fires, hail, wind storms, and injuries sustained by someone while on the property.
  • Renters Insurance offers coverage for when someone is injured on the property, when personal belongings are stolen or damaged, or if one has to live somewhere else temporarily because the home is uninhabitable.
  • Earthquake Insurance may be added as an additional part of a homeowner’s or a renter’s insurance when their standard policies don't cover earthquakes.
  • Flood Insurance may be added as an additional part of a homeowner’s or a renter’s insurance when their standard policies don't cover earthquakes.
  • Boat Insurance offers coverage for recreational boat accidents and liability, including personal injury and property damage claims. It can also cover losses in case of theft, vandalism, and accidents caused by uninsured boaters.
  • Umbrella Insurance extends the coverage of an underlying insurance policy, like \home, car, or boat insurance. It adds additional coverage in case one is sued for someone else’s injuries or property damage. This can help cover the costs of legal defense and pay for the other party’s damages, such as medical bills, lost wages, and property damage. It can also help with legal fees if one is sued for libel, slander, or false imprisonment.
  • GAP Insurance is a type of auto insurance that covers the difference between what one owes on one’s car loan and the actual cash value of the car.
  • Pet Insurance can help one cover the costs of medical care for one’s pet.
  • Business Insurance can help cover the costs of unfortunate events such as theft, premises liability claims, product defect claims, defamation lawsuits, worker’s compensation claims, and many other issues.
  • Title Insurance is required by many lenders when purchasing a home, and covers the costs of dealing with a claim against one’s use or ownership of the property or claim of ownership that originated before one’s own title insurance went into effect. It can also recoup some losses if the claim against one’s use or ownership is successful.
  • Crop Insurance protects farmers’ and ranchers’ businesses against  loss of revenue due to declines in market prices, or the loss of crops due to natural disasters.
  • Fire Insurance may be added as an additional part of a homeowner’s insurance and it can add more coverage in case a fire damages their property, other buildings, and personal property. It will also usually cover damage caused by both smoke and water.
  • Credit Insurance is optional insurance one can take out to cover a loan or credit balance if one dies, becomes involuntarily unemployed, or goes on disability, subject to certain limits.

_____________________________________

Intellectual Property

Intellectual Property (IP) is a legal term that refers to products of the mind.

Intellectual property laws grant intellectual property owners a set of exclusive rights. The law views intellectual property rights as a form of property, commonly referred to as intangible property. The most common types of intellectual property rights are copyrights, patents, trademarks, and trade secrets.

Examples of works that can have intellectual property rights include music, literature, artistic works, discoveries, inventions, words, phrases, symbols, and designs.

Patents

Patents are granted by the United States Patent and Trademark Office (USPTO) through the patent application process. They give an inventor the exclusive right to make, use, or offer for sale their invention for a limited period of time. In order to file for a patent, the inventor must make a detailed public disclosure of the invention. Patents filed after June 8, 1995 are granted for a period of 20 years.

All inventors are strongly advised to do a patent search on their invention prior to investing significant time and resources.

Copyright

A copyright grants the creator of an original work the exclusive right to use and distribute it. Copyrights do not protect the actual idea, they only protect the artistic work used to express the idea. Copyrights are typically available to a wide range of artistic works, including: poems, theses, plays, literary works, motion pictures, choreography, musical compositions, sound recordings, paintings, drawings, sculptures, photographs, computer software, radio and television broadcasts, and industrial designs.

Trademarks

A trademark is a recognizable sign, design, or expression which identifies products or services as being from a particular source. An individual, a business, or any legal entity can own a trademark.

Trademarks can be registered with the USPTO and must be renewed every 10 years.

Trade Dress

Trade dress is a legal term that refers to elements of the visual appearance of a product or a product’s packaging that signal the source of the product to consumers.

Trade Secrets

A trade secret is confidential business information that gives one business a competitive edge over competitors or customers. A trade secret can be a formula, practice, process, design, instrument, pattern, or compilation of information.=

Infringement, Misappropriation, and Enforcement

Violation of intellectual property rights are called “infringement” with respect to patents, copyright, and trade secrets. “Misappropriation” is the used when referring to violation of trade secret rights. Violation of these rights can either be a breach of civil or criminal law, depending on the type of IP involved, the jurisdiction, and the nature of the violation.

Quick fact: according to Wikipedia, “as of 2011 trade in counterfeit copyrighted and trademarked works was a $600 billion industry worldwide and accounted for 5-7% of global trade.”

_____________________________________

International

International law is a system of treaties and agreements between nations that governs how nations interact with other nations, citizens of other nations, and businesses of other nations. International law typically falls into two different categories:

  • Private international law deals with controversies between private entities, such as people or corporations, which have a significant relationship to more than one nation.
  • Public international law concerns the relationships between nations. These include standards of international behavior, the laws of the sea, economic law, diplomatic law, environmental law, human rights law, and humanitarian law. Some principles of public international law are written, or "codified" in a series of treaties, but others are not written down anywhere. These are known as "customary" laws.

Most people never have to interact with international law. Those that do interact with international law are part of a large corporation's legal team or victims of international human rights abuses seeking asylum in safer countries.

_____________________________________

International Investment

International investment law governs foreign direct investment and the resolution of disputes between foreign investors and sovereign states. The past few decades have seen a dramatic increase in the number of bilateral investment treaties and other agreements with investment-related provisions, followed by a sharp rise in the number of disputes between private investors and sovereign states. The rise of international investment arbitration has generated a new and exciting practice area in global law firms.

_____________________________________

International Trade

International trade law includes the appropriate rules and customs for handling trade between countries, and is a very complex and an ever expanding practice area. There are four levels of international trade relationships:

  • Unilateral measures (national law)
  • Bilateral relationships (Canada-United States Free Trade Agreement)
  • Plurilateral agreements, and
  • Multilateral arrangements (GATT/WTO).

_____________________________________

Internet

Internet Law is a rapidly evolving practice area that currently consists of intellectual property law, contract law, privacy laws, among others.  

Internet Regulation

Aside from censorship of the Internet in some nations, there are four primary modes of regulation of the internet: laws, architecture, norms, and markets:

  • Laws of various states, countries, and international groups govern areas like gambling, child pornography, and fraud.
  • Architecture refers to how information can be transmitted across the Internet, including issues such as filtering software, firewalls, encryption programs, and the very basic structure of internet transmission protocols, like TCP/IP.
  • Norms refer to the ways in which people interact. Just as social norms govern what is and is not appropriate in offline society, norms affect behavior across the Internet. Where laws may fail to regulate certain activities online, social norms may allow the users to regulate such conduct.
  • Market regulation controls patterns of conduct on the internet through the traditional economic principles of supply and demand.

Net Neutrality

Net neutrality refers to regulations of the infrastructure of the Internet. Every piece of information transmitted across the internet is broken into what are called “packets” of data, then passed through routers and transmission infrastructure owned by a variety of private and public entities, like telecommunications companies, universities, and government agencies. This has become a major area of concern in recent years, because changes to laws affecting this infrastructure in one jurisdiction change how information is sent and received in other jurisdictions.

_____________________________________

Juvenile

Minors under the age of 18 years, who commit a crime, or otherwise violate established rules and statutes, are identified as juvenile delinquents, juvenile offenders, youthful offenders, or delinquent minors. Laws governing juvenile delinquency are largely enacted and regulated on a state by state basis.

Juvenile courts hear cases dealing with juvenile delinquents, incorrigible youth or status offenders, and issues of child neglect, abandonment or abuse. These courts are considered civil, not criminal and the minor is charged with committing a delinquent act, rather than a crime.

When a judge determines that a minor has committed a delinquent act, they pronounce the juvenile to be a ward of the court, and is allowed broad discretion when disposing of the case. This can include suspension of their driver's license, paying a fine, community service, ordering counseling, probation, home confinement, placement in a relative’s home or in a foster or group home, and even incarceration in juvenile corrections In extreme cases the judge can send the youth to an adult jail or state prison.

In addition to specialized courts of law for juvenile offenses, they are also detained in separate facilities, usually called juvenile corrections. These include short term facilities called juvenile halls or juvenile detention facilities and for longer terms, secured juvenile facilities. This corrections system includes social workers and probation officers, and the end goal is to rehabilitate the offender and deter them from repeat offenses.

_____________________________________

Labor and Employment

Labor and Employment Law covers the rights individuals have at their jobs. It typically covers things such as hiring, firing, employment contracts, employment benefits, working conditions, wages, and overtime.

Most employees in the United States are employees at-will. This is a term used in United States Labor and Employment Law for the contractual relationship in which an employee can be dismissed by their employer for any reason and without warning, as long as the reason for termination is not illegal (ex: firing an employee because of their race).

Despite employment at-will, employees do still have rights that employers must follow. For example, it is prohibited in the United States to discriminate against a worker because of:

  • Age
  • Disability
  • Genetic Information
  • National Origin
  • Pregnancy
  • Race/Color
  • Religion
  • Sex

Retaliation

In the United States, the Equal Employment Opportunity Commission (EEO) establishes laws that prohibit employers from punishing job applicants or employees for asserting their rights against things such as discrimination and harassment.

For example, it is unlawful for an employer to fire an employee, cut their pay, or demote them for reporting harassment in the workplace.

_____________________________________

Landlord-tenant

Landlord-tenant law is the area of law that covers the rental and lease of residential and commercial property. Residential property is where individuals or families reside, commercial property is where businesses set-up their physical location.

For most residential properties, landlords are required to follow rules that apply to your type of housing, and will also have to follow city, state, and federal laws about providing tenants with basic housing. This is sometimes referred to as the implied warranty of habitability, and it covers basic things such as roof repairs.

In addition, landlords are subject to the rights and responsibilities created by the lease. This document will typically cover topics such as how much rent you pay, when rent is due, and what happens if the tenant is late paying rent.

Both landlords and tenants can deal with a variety of legal issues when dealing with a commercial or residential lease agreement.

Landlord-tenant attorneys can typically work on the following matters:

  • Rental and Lease Agreements
  • Rent and Security Deposit Issues
  • Tenant Dispute
  • Tenant Eviction

_____________________________________

Land Use & Zoning

Land use and zoning law is the regulation of the use and development of public and private real estate. Zoning is the most common form of land-use regulation, used by municipalities to control local property development. Zoning regulations typically divide a municipality (such as a city) into residential, commercial, and industrial zones. Thus, zoning laws are intended to maintain a level of order and efficiency within a municipality, while keeping each zone optimized for its intended purpose.

Other legal issues pertaining to land use include easements, trespassing, and eminent domain. An easement is a limited, non-ownership interest in another party's property. For instance, one party may obtain an easement to gain legal access to their neighbor's driveway if that is the only way to access their house. Eminent domain law is involved when the government seizes property to build a freeway or a park and must give the property owner fair compensation. The crime of trespassing occurs when an individual enters another's property without consent.

_____________________________________

Legal Malpractice

Legal malpractice occurs when an attorney fails to perform according to the proscribed standards and codes of ethical and professional conduct. Not getting the expected outcome in a case is not enough to warrant a malpractice claim: attorneys must have been negligent, in breach of a contract, or otherwise in violation of the American Bar Association's Rules of Professional Conduct. In order to win a legal malpractice case against an attorney, it must be shown that a typical lawyer would have prevailed in your case.

For legal malpractice claims based on negligence, you need to prove the following four elements:

  1. The lawyer owed a duty to provide competent and skillful representation;
  2. The lawyer breached the duty by acting carelessly or by making a mistake;
  3. The lawyer's breach caused an injury or harm; and
  4. The harm caused a financial loss.

_____________________________________

Libel and Slander

Elements of Defamation

Defamatory statements fall into two categories: libel when it's written, and slander when it's spoken. Regardless of which form it takes, in order to be successful in a defamation lawsuit a person must usually show that:

  1. A person made a statement;
  2. The statement was published;
  3. The statement caused injury;
  4. The statement was false; AND
  5. The statement didn't fall into a privileged category.

Defenses to Defamation

  • Consent is an absolute defense. If the plaintiff consented to the publication of defamatory information about them, the consent is a complete defense.
  • Truth is a defense.
  • Privilege can be absolute or conditional. Absolute privilege means that the nature of the statement or the intent of the person making the statement doesn't matter, the privilege always applies. Conditional privilege depends on the circumstance in which the statement was made.

_____________________________________

Litigation

Criminal cases involve a charge prosecuted by a governmental body, seeking punishment for the violation of a criminal statute while civil cases involve private disputes between individuals where damages or some other remedy is requested.

Before filing a lawsuit, the plaintiff typically demands that the defendant perform certain actions to resolve the conflict. If the demand is refused or ignored, the plaintiff may start a lawsuit by filing a complaint in court and serving copies of it and a summons on the defendant. The complaint must state facts and the law showing the alleged injuries and attribute them to the defendant, and request money damages or equitable relief.

If the case doesn't settle early on, the discovery process begins. The plaintiff sends the defendant written questions seeking information involving the dispute. The parties may depose each other concerning the issues. The parties may request copies of documents for review, or ask to test or examine other types of physical evidence. The discovery process can last weeks or years, depending on the complexity of the case and the level of cooperation between the parties.

At trial, both sides can introduce evidence that will help to prove to the jury or the judge the truth of their positions. Once a final decision has been made at the trial court, the losing party may appeal the decision within a specified period of time.

_____________________________________

Marriage and Prenuptials

Marriage Licenses and Paperwork

Marriage

State laws determine most marriage requirements. There are state laws on age, proof of personal information, fees, waiting periods, and who may marry. In most states, getting married means that your spouse's income and debt now become yours, and vice versa.

Prenuptial Agreements

Generally, prenups protect assets that may otherwise be subject to marital property laws. Specifically, these documents may be used to:

  • Protect one party from taking on the debts of the other
  • Protect specified assets of one party
  • Determine the manner in which property is passed on after death
  • Simplify property division in the event of divorce
  • Clarify financial responsibilities of the parties

For a prenup to be valid in many states, it must satisfy the following conditions:

  • Prenup must be written and signed by both parties and properly executed.
  • Prenup must have been read prior to signing.
  • Prenup must not have been signed under duress.
  • Prenup must not have false information or be unconscionable.
  • Both spouses must have had independent counsel.

_____________________________________

Mass Torts

Also known as “class action,” mass torts generally happen when a number of people have suffered the same or similar injuries. Often many of the individuals' injuries were relatively minor, such that they might not pursue legal redress on their own, but together, the value of the claims of the class add up. In mass torts, people are often seeking justice for injuries caused by defective products or damages from consumer fraud, corporate misconduct, securities fraud, and employment practices.

Opting In: Notifying Class Members

Every person who would be affected by the court's decision in the mass tort is entitled to notice that the action has started. The court will order that the class representative, through their attorneys, make reasonable attempts to notify any unknown class members by general media such as television, an advertisement in a magazine or newspaper, or a posted flyer. People who are notified then have the opportunity to join in the action, called "opting in,” or to decide not participate as a member of the action, or "opting out."

Mass Tort Outcomes

In a class action, the court's decision applies to every participant who has opted into the action. All individuals who fit within the court's original definition of a class member are bound by the final court decision, even if they never actually go to court or otherwise participate in the lawsuit. The judge decides the basic question of who wins with regard to the entire group. If the defendant wins, the case is dismissed and the individuals in the group are prohibited from filing new or individual lawsuits over the same issue against the same defendant. If the class of plaintiffs wins, the court finds the defendant liable for the plaintiffs' injuries, and the amount of recovery is later divided among the plaintiffs.

Payment to the participants in the mass tort usually follows a "plan of distribution." With the help of the parties and their attorneys, the judge develops the plan to distribute the amount that the plaintiff class won in the lawsuit minus the attorneys' fees and litigation costs. Each member of the class may receive certain percentage of the total amount fund, or may receive a certain dollar figure. When the parties in a mass tort decide to settle, the presiding judge must approve the settlement, making sure it is fair to all parties.

_____________________________________

Media

Media law encompasses all legal issues affecting the media and telecommunications industries. These issues include free speech issues, defamation, copyright, and censorship. There are also issues involving privacy and whether content may be printed, broadcast over the air, or published online.

Media law used to primarily affect journalists, publishers, and large telephone companies. But since the advent of the Internet and desktop publishing, everyday people are just as likely to face similar legal complications.

_____________________________________

Mediation

Mediation is usually a voluntary process, although sometimes statutes, rules, or court orders

may require participation in mediation. Mediation is common in small claims courts, housing courts, family courts, and some criminal court programs and neighborhood justice centers. The mediation process is generally considered more prompt, inexpensive, and procedurally simple than formal litigation. It allows the parties to focus on the underlying circumstances that contributed to the dispute, rather than on narrow legal issues.

In mediation, the disputing parties work with a mediator, a neutral third-party, to resolve their disputes. The mediator facilitates the resolution of the parties' disputes by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems.

Whether a mediation agreement is binding depends on the law in the individual jurisdictions, but most mediation agreements are considered enforceable contracts. In some court-ordered mediations, the agreement becomes a court judgment. If an agreement is not reached, however, the parties may decide to pursue their claims in other forums.

_____________________________________

Medicaid and Medicare

Medicare

Medicare was created to help older Americans and certain disabled individuals pay their medical bills, and the program is paid for by the Social Security contributions you make while working. Most people age 65 or older are eligible for coverage based on their work history or that of their spouse.

Medicaid

Medicaid differs from Medicare in a couple key ways. First, Medicaid is available to low-income Americans, regardless of age. Second, Medicaid is largely handled by the states, while Medicare is administered by the federal government.

_____________________________________

Medical Malpractice

Medical malpractice is negligence committed by a medical professional. When a physician makes a preventable error that results in injury, the patient may file a medical malpractice suit for damages.

The Duty of Care

A physician has to owe a duty of care to a patient before their competency in performing the duty can be judged. Generally, once a doctor voluntarily decides to assist others or come to their aid, the doctor becomes liable for any injury that results from any negligence during that assistance. Once the requisite doctor-patient relationship is established, the doctor owes to the patient a duty of care and treatment with the degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances. This can be different than the standard of care for treatment and surgery.

Elements of a Medical Malpractice Claim

For negligence to be actionable, the following elements must exist:

  • There must be a duty owed to someone;
  • There must be a breach of that duty; and
  • The breach of that duty must result in harm or damage that is proximately caused by that breach.

In addition, “proximate cause” is a legal term that, in the medical malpractice sense, essentially asks whether, "but for" the alleged negligence of the medical professional, the harm or injury to the patient would have occurred. If the injury still would have occurred regardless of the alleged act of malpractice, then there is no valid claim.

_____________________________________

Mergers and Acquisitions

The process of two or more companies joining together to form a single business entity is referred to as a merger or an acquisition.

Before purchasing a business:

  • Review the financial documents of a business, including balance sheets, tax returns, and schedules of accounts receivable, payable, and inventory. The financial information of a company also includes any real estate owned by the business as well as physical assets.
  • Confirm that the business is in good standing. This information can be obtained by receiving copies of active status reports in the state the business is incorporated in.
  • Obtain a list of all the locations where the company is authorized to do business.
  • Review the company's articles of incorporation, bylaws, and minute book.
  • Find out if the company has any intellectual property, such as patents, trademarks, or copyrights.
  • Find out if there are any claims against the company's intellectual property, such as a patent infringement lawsuit.
  • Obtain a list of employees and employee benefits as well as a list of existing and potential customers.

_____________________________________

Military

All service members in the U.S. Armed Forces are subject to military law, consisting of the Uniform Code of Military Justice (UCMJ) and other statutory provisions. While it is similar to civilian law in many ways, such as the right to counsel and full protection under the Constitution, the UCMJ has many provisions and crimes unique to the military. These include rules against fraternization with officers; the discharge process; and the crimes of insubordination, absence without leave (AWOL), and desertion. The military tries cases through the court martial process, which is similar to a civilian trial but has its own rules and procedures.

_____________________________________

Natural Resources

Natural resources law often vary by state, and governs how people can use the parts of the environment that have some economic or societal benefit. Generally, these benefits include air or wind, light, water, soil and plants, animals that occupy the land, and underground minerals or oil. Natural resources law also helps define how natural resources may be bought or sold. Although there are some exceptions for public policy initiatives, once one has rights to a resource, they may generally sell those rights in any manner they choose.

_____________________________________

Non-Profit and Social Enterprise

A nonprofit organization is one that carries out a religious, scientific, charitable, literary, or educational purpose. Unlike a for-profit corporation, a nonprofit corporation is not required to pay taxes on its profits. Only profits related to the nonprofit's purpose and regular services are not subject to taxes. Other than the tax difference, nonprofit corporations must follow corporate formalities just like for-profit corporations.

Maintaining Tax-Exempt Status

To maintain its tax-exempt status, a nonprofit organization must abide by certain rules:

  • Nonprofits are not allowed to receive "substantial" profits from activities that don't relate to the nonprofit's purpose.
  • A nonprofit is not allowed to distribute its profits to officers, directors, or members.
  • Nonprofits have limitations on their non-business activities.
  • Nonprofits can only be involved in a limited amount of political lobbying.

_____________________________________

Patent

Patents are granted by the United States Patent and Trademark Office (USPTO) through the patent application process. They give an inventor the exclusive right to make, use, or offer for sale their invention for a limited period of time. In order to file for a patent, the inventor must make a detailed public disclosure of the invention. Patents filed after June 8, 1995 are granted for a period of 20 years.

Types of patents

There are a variety of different patent types:

  • Utility Patents protect the functional features of an invention. This is the most common type of patent, and generally the type of patent one would describe as an "invention." Utility patents are granted for inventions that discover any new and useful process, machine, article of manufacture, or composition of matter. A utility patent can also be granted for an improvement on a previously existing product. Utility patents can provide broader patent protection because they allow the inventor to protect the inventive concept, not just a single one variation.
  • Design Patents are granted for a new and original ornamental appearance of an article. An ornamental appearance can be a pattern on the face of an item, the shape of the item, or any other aspect of the invention that isn’t dictated by it’s function. Design patents only protect the appearance of the invention, not the functional features. This is a key difference between design patents and utility patents. Design patents provide less protection than utility patents because competitors can easily design around the patent by changing the overall look of their competing product.
  • Plant Patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Patent Search

Novelty is a requirement for any newly granted patent. An invention is not new, and therefore cannot be granted patent protection, if it was known to the public before the patent application is filed. The purpose of the novelty requirement is to prevent prior art (i.e. information that has already been made available to the public) from being protected by patent rights.

Inventors and investors alike are strongly encouraged to do a full patent search to see if a patent has already been filed or granted prior to investing time and resources in formally doing a patent application.

Patents can most easily be searched through either the USPTO's database or Google Patents.

_____________________________________

Pension and Profit Sharing

A profit sharing, or stock bonus, plan is a defined contribution plan under which your employer may determine how much will be contributed to the plan annually. Such plans contain a formula for allocating to each participant a portion of each annual contribution. A profit sharing plan or stock bonus plan may include a 401(k) plan.

_____________________________________

Personal Injury

"Personal injury" cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm.

Lawsuit

A formal personal injury case typically starts when a private individual files a civil complaint against another person, business, corporation, or government agency , alleging that they acted carelessly or irresponsibly in connection with an accident or injury that caused harm.

Settlement

Most disputes over fault for an accident or injury are resolved through informal early settlement, usually among those personally involved in the dispute, their insurers, and attorneys representing both sides. A settlement commonly takes the form of negotiation, followed by a written agreement in which both sides forgo any further action, choosing instead to resolve the matter through payment of an agreeable amount of money.

Statute of Limitations

Statute of Limitations puts a limit on the time a plaintiff has to file a lawsuit. Generally speaking, the period of time dictated by a statute of limitations begins when the plaintiff is injured or discovers the injury. Statutes of limitations are established by state law and often vary by type of injury.

_____________________________________

Power of Attorney

A power of attorney (POA) is a legal document that allows you to appoint a person or organization (your proxy) to manage your affairs if you are unable to do so. With that said, there are many different types of power of attorney that each grant your proxy different powers.

General Power of Attorney

A general power of attorney grants broad powers to a proxy to act on your behalf. Those powers typically include financial and business transactions, settling claims, making gifts, and purchasing life insurance.

Typically people will grant a general power of attorney if they are out of the country and need someone to handle their affairs, or if they are physically or mentally incapable of managing their affairs.

Special Power of Attorney

A special power of attorney is granted when you want to give a proxy very specific powers. For example, you can grant a special power of attorney to a trusted business partner to handle business transactions while reserving other powers for your family.

Health Care Power of Attorney

A health care power of attorney grants your agent or proxy the authority to make medical decisions on your behalf if you are unconscious, mentally incompetent, or unable to make decisions on your own.

This individual will make decisions regarding what type of facilities you’re kept in and what type of treatment you will receive. Many states also allow you to include your preference about being kept on live support within the health care power of attorney.

Health Care Power of Attorney

A health care power of attorney grants your agent authority to make medical decisions for you if you are unconscious, mentally incompetent, or otherwise unable to make decisions on your own. While not the same thing as a living will, many states allow you to include your preference about being kept on life support. Some states will allow you to combine parts of the health care POA and living will into an advanced health care directive.

_____________________________________

Privacy

An invasion of privacy occurs when there is an intrusion upon your reasonable expectation to be left alone. The four main types of invasion of privacy claims are as follows:

  • Intrusion of Solitude: Intruding upon another's solitude or private affairs is subject to liability if the intrusion is considered highly offensive to a reasonable person. Examples include someone illegally intercepting private phone calls, or snooping through someone's private records.
  • Appropriation of Name or Likeness: Plaintiffs may make a claim for damages if an individual or company uses their name or likeness for benefit without their permission. The plaintiff here is often a celebrity whose name or likeness has been used in an advertisement.
  • Public Disclosure of Private Facts: If an individual publicly reveals truthful information that is not of public concern and which a reasonable person would find offensive if made public, they could be liable for damages. This type of invasion of privacy claim must be weighed against the First Amendment's protection of free speech.
  • False Light: Generally, a false light claim must contain the following elements: (1) the defendant made a publication about the plaintiff; (2) it was done with reckless disregard; (3) it placed the plaintiff in a false light; and (4) it would be highly offensive or embarrassing to a reasonable person.

_____________________________________

Probate

Probate is the process of administering a decedent’s estate. This includes settling the decedent’s debts and legal title to the decedent’s property. If the decedent had a will, and the decedent had property subject to probate (i.e., property not held in a trust), the probate process begins with the executor presents the will for probate in a courthouse in the county where the decedent lived or owned property.

When selecting an attorney it is important to note the highly jurisdictional nature of probate law. Because it is done on a county by county basis, often times it can be helpful to find a local attorney who is familiar with the local processes and procedures.

Do all assets go through probate?

There are three types of property that do not have to go through probate:

  1. Property held jointly, with survivorship rights. This typically includes things such as real estate, motor vehicles, and other property with a title document.
  2. Property with a designated beneficiary. This includes life insurance policies, IRAs, and other bank accounts.
  3. Property held in trust. Property that is owned by a living trust, revocable or irrevocable, does not need to go through probate. Upon the decedent’s death, the trustee transfers the trust property to those designated as beneficiaries in the trust.

How long does probate take?

The length of the probate process is highly individualized to the particular decedent, but a typically probate process will take between six months to two years. The length of the process depends primarily on the size and complexity of the estate.

_____________________________________

Product Liability

Product liability laws vary from state to state, and are based on the premise that companies generally have a duty to protect consumers from potential hazards. Generally, a product is typically required to meet the ordinary expectations of a consumer: when a product has an unexpected defect or danger, the product cannot be said to meet those expectations.

Types of Product Defects

There are three types of defects that might cause injury and give rise to manufacturer or supplier liability:

  • Design defects are present in a product from the beginning, even before it is manufactured.
  • Manufacturing defects occur in the course of a product's manufacture or assembly.
  • Marketing defects are flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings.

Defenses to Product Liability Claims

Because a plaintiff must be able to connect the product with the party or parties responsible for manufacturing or supplying it, one defense often raised in product liability cases is that the plaintiff has not sufficiently identified the supplier of the identified product. Another defense is that the plaintiff substantially altered the product after it left the manufacturer's control, and this alteration caused the plaintiff's injury. And another defense is that the plaintiff misused the product in an unforeseeable way, and that their misuse of the product caused the injuries.

_____________________________________

Professional Malpractice

Professional malpractice is an act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to their client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing.

Except in cases of extremely obvious or intentional wrongs, in order to prove malpractice there must be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce his/her own expert to counter that testimony.

Professions which are subject to lawsuits based on claims of malpractice include lawyers, physicians, dentists, hospitals, accountants, architects, engineers and real estate brokers.

_____________________________________

Public Utilities

A public utility is a business or service, which may be publicly or privately owned, engaged in supplying the public with electricity, gas, water, transportation, or telephone or telegraph service. The individual states' various public utilities commissions oversee electric companies, while electric utility boards are delegated power by the state legislature.

Public utility law attorneys specialize in the energy business and work with power companies, municipal utilities, and energy producers. Much of their work involves compliance, or making sure energy companies and other involved parties are following the proper laws and regulations. Since energy extraction can be quite dangerous and potentially harmful to the environment, there are numerous safety and environmental regulations.

_____________________________________

Real Property

Real Property Law governs who can own and use land, and the rights and obligations related to ownership.

This practice area covers a wide range of legal areas. Real estate can either be residential or commercial, and it can be owned by one person or by many. Based on the unique setup of a particular property, different legal skills will be required.

Real Property attorneys can typically work on the following matters:  

  • Real Estate Litigation
  • Buying and Selling Commercial Real Estate
  • Buying and Selling Residential Real Estate
  • Commercial Lease
  • Construction Contract
  • Home Owner Association
  • Property Management Contract
  • Purchase & Sale Agreement
  • Real Estate Financing
  • Real Estate Foreclosure
  • Real Estate Investment Compliance
  • Real Estate LLC
  • Zoning, Planning, and Land Use

_____________________________________

Securities

A security is an instrument that evidences the holder’s ownership right in an organization. The most common instruments are stocks and bonds.

Securities law are the laws and regulations governing the financial instruments mentioned above. The rules are designed to prevent fraud, insider trading, and market manipulation. There is a focus on promoting transparency via reporting and enforcement.

How a securities attorney can help

Securities attorneys play a core role for companies looking to issue or manage securities, and for individuals looking to protect their investments or seek recovery from fraud.

Securities attorneys typically work on the following type of matters:

  • Convertible Notes
  • Fund Formation
  • Initial Coin Offerings
  • SAFE Documents
  • SEC Documents
  • Securities Regulations
  • Seed Financing
  • Series Financing
  • Stock Purchase Agreement
  • Subscription Agreement
  • Term Sheets

_____________________________________

Sex Crimes

Every state has laws against prohibiting the various types of sex crimes and each state has its own statute of limitations in which victims of sex crimes may file a lawsuit against the alleged offender.

The following is a common list of sex crimes:

  • Indecent Exposure: It is illegal for a person to expose their genitals in public.
  • Prostitution: Prostitution is a description of the crime of offering or engaging in sexual acts for payment and links to the relevant penal code section.
  • Rape: Situations that may constitute the crime of rape include date rape and statutory rape.
  • Sexual Assault: Sexual assault describes the catch-all crime that encompasses unwanted sexual touching of many kinds.
  • Solicitation: It's illegal to entice someone else to commit a crime (such as prostitution).
  • Statutory Rape: People below the age of consent cannot legally consent to having sex, even if there was no force or the perpetrator believed the victim was old enough.
  • Halloween Sex Offender: Halloween sex offender laws are intended to prevent convicted sex offenders from participating in Halloween festivities such as prohibiting convicted sex offenders from dressing up in costumes, decorating their homes, passing out candy or driving after dark.
  • Pimping and Pandering: "Pimping" and "pandering" are two distinct crimes. The crime of pimping in many states is defined as living or deriving support from the earnings of someone’s prostitution, knowing the person is a prostitute. Pimping also includes soliciting for the prostitute or receiving compensation for soliciting the prostitute. Pandering typically means the act of procuring prostitutes by means of influence, encouragement, enticement, persuasion, fraud, threat, arrangement, or other request, also known as being "the middleman."

People convicted of sex crimes, regardless of severity, are considered sex offenders by their respective state and face having their names added to state and federal sex offender registries.

_____________________________________

Sexual Harassment

In the United States it is unlawful to harass a person (an applicant or an employee) because of that person’s sex.

Title VII of the Civil Rights Act of 1964 puts sexual harassment into two groups:

  • Quid pro quo
  • Hostile work environment

Quid pro quo sexual harassment is where a manager asks or hints to their subordinate at sexual favors in return for employment benefits. Some common benefits include: wage increases, new offices, promotion, or more desirable shifts. Common repercussions for not accepting a supervisor’s advances include termination, threats, demotion, or wage decrease.

Hostile work environment sexual harassment is when there are repeated sexual advances, sexual gestures, jokes, or other comments that prevent an employee from doing their job.

Employer Liability

Broadly, it is the employer’s responsibility to maintain a workplace that is free of sexual harassment. Because of this, employers are often liable for their supervisors’ actions or another employees’ actions.

Most employers are encouraged to protect themselves by setting up a sexual harassment policy, and by establishing a clear reporting policy that employees can use when they feel they’re being sexually harassed in the workplace.

If an employer has been made aware of sexual harassment in the workplace or they should’ve been aware and they do not take action, they can face liability.

Documenting Sexual Harassment

Whether you’re the victim of sexual harassment or you’re an employer looking to set a policy for handling seuxal harassment claims, you should know what to document.

The following things are typically included:

  • The date, time and location of the event
  • The people directly involved in the incident
  • Whether this is a single incident or a repeated series of events
  • How the alleged sexual harassment impacted the employee

_____________________________________

Slip and Fall Accidents

“Slip and Fall” is a term used for a personal injury case where a person slips or trips and is subsequently injured on another’s property. These cases are a subset of premises liability claims or torts claims.

Slip and fall accidents can arrise from things such as torn carpeting, wet flooring, poor lighting, narrow stairs, and uneven terrain.

Typically the injured person (the plaintiff) must have sustained some type of bodily injury to be able to collect.

Establishing a Slip and Fall Case

There is no clear test for whether someone is legally responsible for someone else’s injury. In most cases, an individual injured in a slip and fall on someone else’s property most prove two things:

  1. The cause of the accident was a dangerous condition, and
  2. The owner or possessor of the property knew of the dangerous condition, i.e., a condition that presents an unreasonable risk to a person on the property that the person could not have anticipated under the circumstances.

It is important to note the requirements of prong two above. The injured person still has an obligation to avoid dangerous conditions that they could have reasonably anticipated.

_____________________________________

Social Security

Social Security is an earned benefit, funded through payroll taxes. To qualify for benefits later in life, you have to pay into the system, usually through working ten years or more. Your benefits' size and availability is impacted by how much you paid into the Social Security system when you were working, and  whether you take early, full, or late retirement. Even those who haven't worked a full ten years may be entitled to Social Security benefits in certain situations. Social Security can also provide benefits for those who are disabled or the dependents and survivors of a deceased worker.

Social Security Disability Insurance Benefits

Workers who have paid into Social Security and become disabled before retiring may be able to collect Social Security disability insurance benefits. Social Security has a strict definition of disability. You must be unable to work in your previous occupation, unable to perform any new work, and unable to work for at least a year. You'll want to know your disability onset date, how to prove your disability, and whether certain impairments are covered.

Applying for Benefits

When you claim your hard earned benefits will impact your Social Security payments for the remainder of your life. Early retirement can provide needed income as early as age 62, but delaying retirement until age 70 may result in much larger monthly payments.

_____________________________________

Sports

Sports law covers both professional and amateur sports. An attorney who practices this area of law typically provides legal services such as contract negotiation, agent representation, labor law, merchandising, and licensing. This is a broad practice area encompassing both state and federal laws across several legal disciplines, including:

  • Copyright: A person's exclusive right to reproduce, publish, or sell his or her original work of authorship.
  • Agent: A person or entity authorized to act on behalf of and under the control of another in dealing with third parties.
  • Licensing: The sale of a license permitting the use of patents, trademarks, or other technology to another.
  • Contract: An agreement between two or more parties that creates in each party a duty to do or not do something and a right to performance of the other's duty or a remedy for the breach of the other's duty.

Any party to a contract or production involving athletes may need the counsel or advice of a sports attorney. Agents representing actors or professional athletes often are licensed attorneys.

_____________________________________

Taxation

The U.S. has a progressive tax system. That means each level of income is taxed at a progressively higher rate. For the purposes of taxation, "income" typically includes any earnings, tips, commissions, dividends, alimony, capital gains, unemployment benefits, IRA distributions, and Social Security benefits received during the tax year.

Deductions are expenses that may be subtracted from your taxable income. Common deductions include student loan interest, medical and dental costs, property taxes, mortgage interest, and college tuition. Similar to deductions, tax credits reduce taxable income for certain groups of individuals, like first-time homebuyers and people caring for dependents.

_____________________________________

Telecommunications

Telecommunications law pertains to the systems of electronic communications and broadcasting across the United States. This area is heavily regulated by federal law and the Federal Communications Commission (FCC).

Media law encompasses all legal issues affecting the media and telecommunications industries. These issues include free speech issues, defamation, copyright, and censorship. There are also issues involving privacy and whether content may be printed, broadcast over the air, or published online.

_____________________________________

Torts

"Torts" are personal injuries caused by civil wrongs. Among other accidents, torts can cover the following:

  • Slip and fall injuries
  • Assault and battery
  • Defamation, libel, and slander
  • Emotional distress
  • Privacy issues
  • Dignitary torts
  • Nursing home abuse
  • Dog bites and other animal attacks
  • Wrongful death
  • Travel and aviation accidents

There are generally two types of torts:

Incidental Torts

Some tort cases can involve behavior where one party carelessly causes an accident. Generally, lawsuits attempting to prove fault for an accident are also referred to as negligence claims where one party owes a duty of care to another, fails to meet that level of care, and that failure causes a tangible harm to someone else. Most accidental tort cases hinge on being able to prove fault.

Intentional Torts

While many intentional torts are also criminal acts, civil law allows for tort lawsuits to help victims recover the full amount of their damages. The simplest form of intentional tort is a physical harm like battery or assault. Tougher tort cases include defamation, invasion of privacy, and intentional infliction of emotional distress. Other intentional torts include fraud, trespassing, and “conversion,” which resemble theft.

_____________________________________

Trade Dress

Trade dress describes all of the elements that a company might use to promote a product or service. Trade dress may include the packaging, labeling, the way a display appears on store shelves, and even the design of the product itself.

Statutory Source

In the United States, similar to trademarks, a product's trade dress is legally protected by the Lanham Act. The Lanham Act is the federal statute that regulates and protects trademarks and trade dress.

Purpose & Nature

The purpose of both trademark and trade dress protection is to protect the consumer from accidentally purchasing products that are designed to imitate other products. For example, it is arguable that the unique shape of a Coca-Cola bottle combined with its distinctive red logo has achieved brand significant in the mind of the consumer. Thus, other soda companies would be prevented from using this same, unique combination of attributes because consumers might erroneously believe they were buying a Coca-Cola product.

Can I register my trade dress?

Yes. Trade dress can be registered with the USPTO or with individual states. However, federal registration affords your trade dress a higher level of protection because it applies nationwide.

Registering your trade dress prevents other companies or individuals from using similar product packaging or design. This will prevent consumers from confusing your products with the products of a similar producer, and can ultimately help your products to remain distinctive in the marketplace.

What is first to use?

Federal trade dress rights are established from the earliest date of first use of the trade dress on goods and services in interstate commerce or in commerce with a foreign country. Thus, when wondering which company has superior claims to a particular trade dress, you must look at who used the trade dress first in commerce, not merely who registered their trade dress with the USPTO or state first.

What are trade dress registration requirements?

  • The trade dress must be filed under the owner's name and the owner must be providing the goods or services under the trade dress. An owner may be an individual or business entity.
  • Not functional. A trade dress cannot be functional, meaning that the configuration of shapes, designs, colors, or materials that make up the trade dress in question cannot serve a utility function outside of indicating a source to the consumer. For example, although consumers identified a unique spring design with a particular sign company, the spring could not get trade dress protection because it served a primarily utilitarian function.
  • Distinctiveness. The trade dress must be distinctive, meaning that consumers perceive the trade dress as identifying the source of a product. Product packaging is inherently distinctive. However, trade dress claimed in a product's design is said to need secondary meaning to acquire distinctiveness. This means that the registrant must offer proof that there is an association in the mind of the consumer between the trade dress and the source.

_____________________________________

Trademark

A trademark is a recognizable sign, design or expression which serves as a source identifier for consumers. A trademark is a form of intellectual property that can be owned by an individual, a business organization, or any other legal entity. Trademarks can be located on packaging, labels, vouchers, or on the product itself. Companies often feature trademarks on company buildings to show corporate identity.

Trademark Search

In the United States, the USPTO maintains a database of registered trademarks. The database is completely open to the public, however a licensed attorney may be required to interpret the meaning of the search results. Because trademarks are governed by federal law, state law, and common law - it is important to ensure that you are conducting a thorough search. Conducting a trademark search and relying upon the results of a licensed attorney can insulate business owners from being required to pay treble damages (3x normal damages) and attorney's fee in the event that a trademark infringement lawsuit is filed.

In Europe, trademark searches must be conducted with the OHIM (Community Trademark Office) and with individual country offices.

Trademark Registration

Trademarks are legally a form of property. Rights in relation to a trademark can be obtained through either actual use in the marketplace or through formal registration of the mark with the trademark office of a particular jurisdiction.

Trademark Registration in the United States

In the United States, the registration process includes roughly five steps. The entire process will require a minimum of 10 - 12 months.

A registered trademark confers a set of exclusive rights upon the registered trademark owner. Common rights include the right to exclusive use of the mark in the relation to products or services for which it is registered. Once trademark rights are established in a particular jurisdiction, these rights can generally only be enforced in that jurisdiction. However, there is a range of international trademark systems that allow for the protection of trademarks across multiple jurisdictions.

_____________________________________

Trade Secrets

A trade secret is a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information which is not generally known to the public or reasonably ascertainable by others. By definition, a trade secret must confer an economic advantage over competitors or customers upon the business.

Trade Secret Criteria

In most jurisdictions, a trade secret must meet these three criteria:

  • Is not generally known to the public;
  • Confers some sort of economic benefit on its holder. The benefit must derive specifically from not being publicly known, not just from the information itself;
  • Is the subject of reasonable efforts to maintain its secrecy.

Legal Protection of Trade Secrets

By definition, trade secrets are not disclosed to the public. Therefore, owners must seek to protect trade secret information from competitors and the public by implementing special procedures for handling it, technological & security safe guards, and proper legal protection.

Legal protections include:

  • non-disclosure agreements (NDA),
  • non-compete clauses (note: non-compete clauses are not enforceable in California),
  • Employee assignment of intellectual work produced during the course (or as a condition) of employment to the employer,
  • Non-disclosure agreements and non-compete clauses with vendors and licensees.

Legally protecting confidential information allows a perpetual monopoly in the secret information - the duration of a trade secret does not expire as a patent would. However, the lack of formal protection means that a third party is not prevented from independently duplicating and using the information once it is revealed to the public.

Coca-Cola is the most famous company to use trade secrets. It has no patent for it's Coca-Cola formula, and has been very effective in protecting the trade secret for decades (upwards of 20 years longer than if they had opted to get a patent on the formula). The disadvantage is that Coca-Cola has no protection if the information is ever uncovered by others through legal means (ex: reverse engineering).

_____________________________________

Traffic Violation

There’s nothing great about traffic violations, but unfortunately they’re something most divers will face in their long driving careers. With that said, it is important to have a broad understanding of the severity of traffic violations and what your options are.

In most instances, if you’re convicted of a traffic violation the following things can happen:

  • Negative impact on driving record, which can result in a suspension of your license depending on how many previous violations you have or the severity of this most immediate violation
  • Expenses: you will typically have to pay the ticket and any court fees, and sometimes can be required to attend traffic school.
  • Insurance increases: if you’re convicted of the violation, your car insurance rates can rise for years to come.

Common Defenses to a Traffic Violation

If you seek to fight a traffic violation with or without the help of an attorney, below are some of the most common defense.

  1. The Officer Does Not Appear

One of the most well known ways to win a traffic court hearing is by the office not showing up. But why is this?

In the United States every defendant has a Constitutional right to question your accuser. If the officer doesn’t show up you’re not able to assert this Constitutional right, and often times the Judge will waive the ticket and you’ll automatically win.

It is important to note that the severity of your traffic violation can significantly affect the Judge’s decision in this case. A speeding ticket where the accused was going 10 mph over the speed limit is more likely to get dismissed than someone who was speeding 45 mph over the speed limit in a school zone.

  1. Technicalities, Evidence, and Radar Guns

In most jurisdictions, radar guns need to be calibrated every 30-60 days for their evidence to be admissible in court. In reality, very few radar guns are recalibrated that frequently.

Verify that the gun used to clock your speed was calibrated in the required time.

  1. Documentation Issues

And finally, check your ticket or other paperwork for errors. It is possible that if an office cites the wrong law on the ticket, grossly misidentifies the location the traffic violation took place, or misidentified information about you or your vehicle, then the ticket may get dismissed.

_____________________________________

Transportation

Transportation law deals with public transportation on public highways and airspace, and is governed by both state and federal laws. Transportation laws can apply very broadly at the transport system level (such as laws pertaining to highways generally) or more narrowly to the transport of specific things (such as moving of highly flammable materials).

The United States Department of Transportation (DOT) sets broad transportation policy for the country. The DOT was established by Congress in 1966 “to assure coordinated, effective administration of the transportation programs of the Federal Government.” Under the DOT, there are 11 sub-agencies who are responsible for things such as highway planning, urban masstransit, railroad, aviation, and highways.

Some important federal laws which affect public transportation include:

  • The Americans with Disabilities Act of 1990: requiring transit agencies and public carriers to provide accessibility to persons with disabilities.
  • The Clean Air Act and Amendments: requiring transportation planning agencies and projects to provide for improved air quality as a metric and goal.

_____________________________________

Trusts and Estates

Everyone can benefit from estate planning. This is because your estate plan is more than just a list of who you want to give your property to. The plan includes additional documents such as a power of attorney, which gives someone the authority to make decisions on your behalf, and a medical directives guide, which outlines your wishes for your medical care if you are unable to make those decisions yourself.

A typical estate plan will include the following pieces:

  • Current will;
  • Trust
  • Power of Attorney
  • Medical Power of Attorney
  • Medical Directives
  • Retirement Accounts
  • Life Insurance Policies

Trusts

A trust is a legal entity that you can place your assets into. Creating a trust gives you more control over your assets because you get to design the rules of the trust. You decide how, when, and where the assets in the trust are distributed to a heir or beneficiary.

There are several benefits to setting up a trust. First, the assets in the trust do not need to be probated. If you establish a revocable living trust that terminates when you die, the assets in the trust will pass immediately to the beneficiaries. This saves your beneficiaries time and money. Other benefits include tax advantages for the creator of the trust and the beneficiaries, privacy from the public probate process, and the continuing effectiveness of a trust even if the creator dies or is incapacitated.

Probate is the legal process that takes place after someone dies. It includes proving to the Court that the deceased’s will is valid, identifying and inventorying the deceased’s property, having the property appraised, paying the deceased’s outstanding debts and taxes, and distributing the remaining property as the will (or state law, if there is no will) directs. Probate can take anywhere from 1-3 years, depending on your state’s laws.

_____________________________________

Unemployment Compensation

Unemployment Compensation deals with unemployment insurance, which provides temporary benefits to a person who loses their job through not fault of their own. Similar to workers’ compensation, if you are seeking unemployment compensation you should make a claim for unemployment benefits during your first week of total or partial unemployment.

Typically to receive unemployment insurance benefits, the individual must be ready, willing, and able to work. Additionally, you must be actively job seeking to qualify for these benefit.

I was fired from my previous job, can I receive unemployment benefits?

As with most legal issues - it depends.

In unemployment claims fault matters. For example, you may be eligible if you were fired for poor performance, but you may not be eligible for benefits if your previous employer is able to demonstrate you were fired for violating a company rule or for intentional misconduct.

Whether the employee was actually demonstrated for cause can depend on a number of factors, including:

  • The nature of the conduct which resulted in termination;
  • The number and sufficiency of previous warnings; and
  • Whether or not the employer condoned past instances of this behavior.

_____________________________________

Water

Water law in the United States deals with the ownership, use, and protection of water as a natural resource.

Some common issues all jurisdictions deal with include:

  • Public regulation of waters and water bodies, including flood control, environmental regulation, and public health.
  • The dichotomy between public and private rights in water, which include elements of eminent domain and the federal commerce clause. An example of this is whether a property owner who owns land surrounding a river upstream, could build a dam and negatively interfere with the water rights of those downstream.
  • The management and finance of public and quasi-public entities which operate local public works projects.
  • Treat rights for Native Americans and other groups.

_____________________________________

Wills and Living Wills

A will is a set of instructions that lists what will happen to your property once you die, names a guardian for your children and for your children’s property, how your debts and taxes will be paid, and what will happen to your pets.

The core difference between a will and a living will is the time they take effect. A will has no legal impact until after the parties in the will have died, at which time the will must be filed with a probate court. A living will takes effect while the parties are still alive.

Almost every state has the same basic requirements to create a valid will:

  • Capacity. You must have the capacity to make a will and be of “sound mind.” This means that when writing the will you must know what property you own and what it means to leave that property to someone once you die.
  • Creation. You must draft a document (your will) that lists who will inherit your property.
  • Signature. You must sign the document.
  • Witnesses. You must have the document signed by at least 2 witnesses.

_____________________________________

Workers Compensation

If you are injured on the job, you may choose to hire a lawyer to make sure you are awarded proper benefits. A workers’ compensation lawyer can help you file a claim, answer your questions, and represent you at hearings. There are often disputes in workers’ compensation cases about what injuries were work-related, the level of disability, the amount of benefits, and whether medical treatment is needed. If you have a hearing, the insurance company will be represented by a lawyer.

What injuries are covered by Workers’ Compensation law?

You can file a claim for workers’ compensation benefits if you have an accident at work. The general rule is that a workers’ compensation accident has to happen both while you are working and because of the work. However, there are many exceptions to these rules, so it is best to file for any accident that you think was work-related.

What are Workers’ Compensation benefits?

Workers’ compensation pays for three things: (1) time out of work; (2) medical expenses; and, (3) permanent injury (in some cases). There are also death benefits, which are paid when a worker is killed on the job or dies later as a result of a work-related injury or illness.

Workers’ compensation directly pays all of the medical bills for an on-the-job accident directly. The injured worker should never pay a doctor out of pocket for medical treatment in a workers’ compensation case.

The law also provides money awards for some kinds of injury if there is permanent damage. Whether there is an award depends on many things, including what body part was injured, the date of the accident, and how much time was missed from work, among other reasons.

The amount of compensation to which a person may be entitled also depends on his or her degree of disability. A person may be either partially or totally disabled. Partial disability means that a person can do some type of work, even if they cannot do the type of work they were doing at the time of the accident. Total disability is an inability to do any kind of work. In the workers’ compensation system, a person who is permanently totally disabled is unable do any work of any kind, even on a part-time basis. If you are permanently totally disabled from all work, then you may be paid for life.

Depending on the facts of your case, you may also be entitled to other kinds of benefits, such as Social Security Disability, Crime Victim’s Compensation, No-Fault, Long-Term Disability, or a disability retirement benefit.

Can I sue?

You cannot sue your employer or a co-worker for an on-the-job injury that was caused by their negligence: you can only file a claim for workers’ compensation benefits. However, if a third party was at fault, you can sue them.

_____________________________________

Wrongful Death

What is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil action brought by the survivors or the estate of a person who died due to the negligence or intentional actions of another.

Who Can File a Wrongful Death Claim?

Each state has a specific set of rules governing wrongful death claims, including rules identifying who can file a wrongful death lawsuit. A wrongful death claim is usually filed by a representative of the estate of the deceased victim, on behalf of survivors who had a relationship with the victim. In all states, a spouse may bring a wrongful death action on behalf of his or her deceased spouse, parents of minors may also bring a wrongful death action if one of their children is killed, and minors can collect compensation for the death of their parents. Usually, the more distant the familial relationship is, the harder it will be to show that you should be allowed to collect wrongful death damages. An attorney would be able to advise you as to whether your relationship with the deceased victim would allow you to bring a claim on their behalf.

What Must Be Proven?

In order to hold the defendant liable in a wrongful death claim, the plaintiffs must meet the same burden of proof that the victim would have had to meet had the victim lived.

What Damages are Available in a Wrongful Death Case?

Laws in each state provide the means to ease financial burden when a person or entity is legally responsible for causing the deceased person's death. Pecuniary, or financial, injury are the main measure of damages in a wrongful death action.

  • Pecuniary damages: Pecuniary injuries including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries from the decedent's death.
  • Punitive damages: Punitive damages can be awarded where the defendant engaged in a particularly reckless or egregious type of conduct resulting in the deceased person's death. Punitive damages are designed to punish the defendant and to deter similar behavior in the future. In most states, a plaintiff may not recover punitive damages in a wrongful death action. An attorney will be able to advise you as to whether your state allows punitive damages.
  • Survival Actions for Personal Injury: In addition, personal injury damages to the decedent may be recoverable. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate.