Category: Legal Nuggets

Legal Nuggets- Wrongful Death

Although death is inevitable, many deaths come sooner than they should. A “wrongful death” is one that results from negligence, carelessness, incompetence, malpractice, avoidable-accident, neglect, assault and battery, recklessness, and other malfeasances by third-parties. I have handled many types of wrongful death cases over my twenty-plus years of practicing law. If you have a loved-one die in circumstances that you feel could be the result of wrongful actions (or failures to act), please contact me for a free consultation, during which I will gently advise you, not pressure you.

Legal Nuggets- Wills and Living Trusts

Many people contact me about setting-up a Living Trust, instead of a “Last Will and Testament”. I generally recommend the use of a Will, not a Living Trust, but there are exceptions to every rule.

One of the big differences between a Trust and a Will is that before a trust is effective the property has to be actually transferred to it. If you died before you actually signed a deed transferring your home to the trust, then the property would go into your estate. However, there may be restrictions on such transfers in your mortgage on the house. Also, the transfer of the property to the trust would in some circumstances constitute a taxable event, or as a gift that invokes the requirement to file a gift tax return with the IRS and/or your state taxing authority.

If you use a Will, then no deed is required to make the Will effective in controlling the disposition of your property after your death. You can change your Will as often as you please and however you like, prior to your death. But the amendment of your Living Trust could require that you deed real estate out of the trust or to the “Amended Trust.”

Many people simply want to insure that certain assets transfer to their spouse upon their death in the least expensive and simplest manner possible. In many such cases the solution is to title the property or account “jointly, with right of survivorship,” not create a Living Trust. Nonetheless, there are some cases that are appropriate for Living Trusts. It is best, therefore, to consult your tax adviser and your legal adviser before you make a decision on how best to proceed with your plans for how you want your property to be distributed upon your death.

Why Do You Need to Call a Lawyer?

For the same reason you call:

-the exterminator, he can spray strong poison without contaminating himself or you, just as a lawyer can say or write strong words against the other side without hurting you in the process;

-the dentist, he can pull out that painful, infected tooth without causing more damage to the other teeth, just as a lawyer can solve your main legal problem without causing you additional, painful problems;

-the plumber, he can get the toilet to flush again without your having to get your hands dirty, just as a lawyer can deal with the legal-manure without your having to get dirty;

-the car mechanic, he can get your automobile running smoothly so you can get places, just as a lawyer can get your legal-life running smoothly so you can accomplish your goals;

-a doctor, she can prescribe the proper remedy for your illness, just as a lawyer can advise the proper remedy for a legal problem;

-a minister, he helps you deal with life’s tragedies, just as a lawyer helps you deal with many of the same tragedies.

Just as it is a bad idea to try to cut out your own appendix, or perform some other surgery on yourself, so it is a bad idea to try to advise yourself on your legal rights and responsibilities. Just as medical science, computer science, international trade, and other fields grow more and more complex every day, so does the law. As long as legislators, judges, bureaucrats, and other rule-makers live and breathe, our legal system will grow in both the sheer number of laws and complexity. Please call someone who is trained and experienced to lead you through the legal mine fields or you are taking grave risks. I can be your guide if you call me at (864) 232-1676.

Legal Nuggets- Why Do I Need an Attorney on My Injury Claim?

The people insurance companies use to investigate and settle claims are called “adjusters.” Insurance adjusters know more about personal injury claims than you do. They may not be as intelligent as you or have as high an IQ as you, but they have had much more training and experience than you. Insurance adjusters get legal training and have access to lawyers for questions. They also learn a lot of medicine from both training and experience. They also have access to medically trained personnel.

Many insurance adjusters have attended jury trials and understand the legal system very well. They know about statutory deadlines for filing lawsuits and are aware of what basic types of evidence are admissible in a trial. Also, many adjusters have a good estimate of likely jury verdicts in injury cases. They know what type of cases jurors are likely to dislike.

Knowledge is power and the insurance adjusters have it. The only way to make sure you have equal power is to hire an experienced attorney. He or she will be able to advise you about the law that applies to your case. And an attorney will either know a lot of the medical information pertinent to your case or will know how to get the information.

If you want to be on equal footing (or better) with your insurance adjuster, consult a professional with the experience and knowledge it takes to successfully fight them.

Legal Nuggets- Underinsurance

In S. C., in the context of automobile accidents and insurance, “underinsurance” is the term usually used for a type of coverage that:

  1. Is optional;
  2. Requires the payment of a separate, additional premium;
  3. Can be purchased in amounts up to the amount of Liability coverage you are carrying;
  4. Is intended to supplement the basic liability coverage that is available to an injured person in a motor vehicle collision;
  5. Covers the policyholder, as well as resident relatives; and
  6. Is subject to rules under South Carolina’s law that are unique and that are different from the laws of our neighboring states.

In serious car wrecks many questions will come-up about underinsurance coverage. The rules on underinsurance in SC are complex. Our understanding of them comes mostly from reading cases that have been decided by our appellate courts. An attorney must be well-versed in those cases in order to fully understand this area of insurance law. The law surrounding underinsurance can be very confusing, especially to people with no legal training or education.

Legal Nuggets- Divorce: Contested or Uncontested

Many people are confused about the meaning of an “uncontested divorce.” This confusion stems from the fact that divorce cases encompass many, many issues. For example, in a divorce the parties divide ownership of all marital assets and establish custody and visitation for all their children. Other issues may include alimony, child support and attorneys fees. So while the issue of divorce may not be contested by your spouse, all the related issues may be disputed.

When an attorney speaks of an “uncontested divorce” she or he is referring to a divorce case in which ALL the issues are uncontested, not just the issue of divorce.

Additional confusion arises from the question of whether the divorce is a no-fault divorce or a divorce based on fault grounds. A no-fault divorce is generally one that is based on the fact that the parties have separated for a required period of time and do not intend to cohabitate in the future. A fault based divorce is one granted on grounds, such as adultery, physical cruelty, or habitual drunkenness.

Thus, a no-fault divorce can be contested and a fault based divorce can be uncontested. It all depends on the circumstances of the case.

The confusion over these terms can be problematic when you are seeking an estimate of attorney’s fees from an attorney you are considering hiring to obtain your divorce. If you say you want an uncontested divorce and want an estimate of the attorney’s fees, be certain that there are no issues that could be disputed in the case. How do you reach that certainty? Go over the following check list and decide if you and your spouse could possibly disagree over them. If you answer yes then your divorce is not really “uncontested.”

  1. Who will get to continue living in the martial abode (house, apartment, mobile home)?
  2. If you have acquired other property (whether real or personal) during the marriage, who will get to keep it?
  3. Do you have any pets? Who will own and control them?
  4. Do you have life or health insurance that names the other spouse as an “owner” or “beneficiary” or “insured?”
  5. Do either of you have children? Who will have custody, who will be allowed to visit the children, and who will support the children?
  6. Did you buy a car during the marriage? If so, who will get it and all its related expenses and responsibilities?
  7. Are there any possible tax liabilities that arose during the marriage, such as capital gains or other taxes on the withdrawal of money in a retirement plan, sale of real estate, or employment of a worker?
  8. Are there any joint accounts or joint credit cards or other debts?
  9. Have either of you signed any long-term contracts that could bind the other, such as a lease, waste disposal contract, or a furniture rent-to-own contract?

Because of the complex relationships we build when we are married, it can be very involved to separate the parties. Thus, you need to be aware that there are many potential issues that can raise their ugly heads when you seek a divorce. Your divorce will not be truly “uncontested” unless there are no issues that you and your spouse disagree over.

Call me to discuss your divorce case and I will help you sort out the possible sources of disagreement. If your divorce will be truly uncontested, then I can represent you at a very reasonable rate. However, if your divorce will have contested issues I will have to take them into account when quoting you a fee.

Legal Nuggets- True Costs of a Lawsuit

  1. Legal Fees- Your attorney will have to work much harder if you file a lawsuit. If you are paying on an hourly basis this will cost you directly. If you are on a contingency fee basis, the attorney will be much less willing to compromise his or her fee.
  2. Court and Litigation costs- You will have to pay additional fees for the following types of expenses if you pursue a lawsuit:
    • filing fee (From $35 to $150) per case
    • service fees (from $15 to $350) per party
    • depositions (from $100 to $1,000 each)
    • expert witness fees (from $ 125 per hour to $350 per hour)
    • misc. fees (copying, postage, travel, report fees, etc.)
  3. Time- Filing a lawsuit often delays the settlement of your case for months or years, however, sometimes it speeds up settlement (it all depends).
  4. Emotional costs- Litigation can cost you tremendously in terms of emotional energy and well-being. The depositions are not “fun” like going to the dentist, for example. Having to answer all types of questions: in writing, orally in depositions, and orally on the witness stand is laborious, stressful, and sometimes embarrassing. If you pin all your hopes on winning a big verdict you will often be disappointed and the feeling of loss can be overwhelming. There is an emotional gain from settling: you get it over-with and you can MOVE-ON WITH YOUR LIFE.
  5. Uncertainty- One can Never be certain of the outcome of a court case, and this costs you in many ways: planning for the future is difficult; it causes anxiety; it makes it difficult to evaluate the cost/benefit of your actions; and it means realistically that you have risk, or, in other words, that you could suffer the consequences of a bad verdict.

Legal Nuggets- Statutes of Limitations

“STATUTES OF LIMITATION”

“Statutes of limitation are time limits-limits on the life of the legal right to bring a lawsuit. Their purpose is to prevent the bringing of a lawsuit so long after the occurrence that it would be difficult for the person sued to defend themselves. It also promotes the resolution of civil disputes. However, the amount of time varies with the type of lawsuit, with the state where the situation arose, and whether the lawsuit would be handled in state or federal court.

“Generally, you must file a lawsuit to stop the time limit from running. Once the lawsuit is properly filed and served, the time limitation is no longer an issue. While other time limits affect what procedures you must follow during a lawsuit, these are not the limits that are referred to as “statutes of limitation.”

“Sometimes it can be difficult to determine when a statutory time limit begins to run. For example, defects in the construction of a house may not show themselves for many years after the construction was completed. Should the time start running when the construction was done or when the problem began to show? What if the defect caused moisture problems and those problems were difficult to diagnose?

“The basic rule is that the time limit begins running when the victim knew or should have known they were injured. This is called the discovery rule. This rule can be harsh when the injured person fails to recognize quickly the nature of their injury. For example, a victim of medical malpractice may be rendered unable to clearly comprehend what is wrong with them or that the condition was caused by malpractice. In this impaired state they may fail to realize they were wronged.

“Because the discovery rule could effectively extend the statute of limits indefinitely for certain cases, the legislatures also pass laws called statutes of repose. These statutes limit how long a person can sue for a wrong regardless of when they discover it.

“Obviously, you must be vigilante to discover your injuries or wrongs and how quickly you must sue. These time limits are strictly enforced. If you are only a day late in filing a suit, you will lose the right to do so by operation of the statute.”

Legal Nuggets- Should I Settle My Legal Case

In deciding whether to settle, you first have to identify your options. Your options for concluding or ending your legal case are usually these:

  1. Settle with the “other side.”
  2. Go to trial and get a decision from the court.
  3. Drop the case.

Sometimes you may have the option of settling with one or more parties, but not with another party or parties. However, to bring the case to an end, you must settle with or get a court decision regarding every party (or drop your case against one or more parties).

In making your decision on whether to settle, some factors you need to consider are:

  1. How long will each option take?
  2. Will taking the case to court cost more money? How much more?
  3. If you win in court will the losing party appeal and if so what delays and expenses will come with the appeal?
  4. What are my chances of winning or losing in court, especially when all the costs are considered?
  5. Do you know the major drawbacks of taking the case to court?
  6. What problems will the Rules of Evidence cause for my case if I go to court?
  7. Do you expect to gain anything besides money by taking your case to court?
  8. Have you ever observed a case being tried in a court before in real life–not on Television or a movie?
  9. What does your lawyer recommend? Why would you disregard your own lawyer’s advice and recommendations?
  10. Do you realize that in a wreck case the court will not allow you to mention insurance in the presence of the jury? How will that limitation hurt your case?

Please discuss your case and settlement options completely with your attorney.

Legal Nuggets- Moving to a New Disaster

Evidence is increasing that undertaking a “do it yourself” move can be hazardous to your health. I’m not referring to the risk of hurting your back lifting heavy furniture. I am talking about getting injured or killed in a automobile/truck/trailer collision. In the last decade there have been more and more serious accidents caused by poorly maintained rental trucks and trailers. There have also been terrible wrecks caused by improper towing of trailers as a result of poor advice and bad match-ups of cars with trailers.

You need to be very cautious when towing a trailer, renting a truck or trailer, or otherwise being involved in a do-it-yourself move. However, if you or anyone you know gets injured when engaging in this type of activity, please feel free to contact me for a free consultation about your legal rights and remedies.