Castlewood Investment Properties has tied up with Singapore-based HomePlace International and their Indian partner, Land Solutions, to offer properties in Hungary, the US and the UK, among other places.
The company says it is betting on Non-Resident Indians and Indians of high income group wanting to invest more in global properties.
“Indian investors are always on the radar of any international developer,” said Mr Christopher Comer, Managing Director, Castlewood International in a release.
It is also looking to tap corporates, developers and banks, among others.
The company is offering 300 houses in South Carolina in the US, and in Budapest in Hungary at prices starting at $250,000.
The project in Budapest, Károlyi István City Centre, is a waterfront gated community consisting of condominiums and luxury apartments.
While the Fairways by Castlewood, at the Myrtle Beach in South Carolina offers two level and four bedroom Heritage town houses.
The company promises to provide consultancy and also arrange 70 per cent of the cost through bank loans.
Friday, November 28, 2008
Singapore realty co woos rich Indians
SINGAPORE: Fearing a crash in local real estate prices, many well-heeled Indians are buying properties in Singapore. While such purchases could be pure investments, the lure of permanent residentship offered to certain investors under the Singapore law may have also influenced the decision. Many are drawn by the sheer ease in buying a house in Singapore.
The Far East Organization, one of Asia’s largest real estate groups, is among the real estate developers looking to pull in Indians to invest in the Southeast Asian country. The group will soon complete the development of Silversea, a premium residential seafront property, aimed at foreign buyers.
“People from across Asia are looking to buy properties in Singapore attracted by its urban infrastructure. The number from India has only been increasing,” says Far East’s chief operating officer, Mr Chia Boon Kuah. Along with a stunning sea view of the east coast, Silversea also promises a window to the country’s rapidly rising financial district, which houses properties like the New Downtown, Marina Bay Financial Centre and Gardens by the Bay. The apartments are priced at about $1.5 million each.
While Far East will have a Silversea exhibition in Kuala Lumpur soon, it is targeting other markets, such as Indonesia, India, China, and the Middle East. Mr Kuah expects to sell around a half of Silversea apartments to foreign buyers.
Singapore has attracted real estate investors for many years now. Thanks to a stable, business-friendly administration and a safe and multicultural environment, most buyers believe that prices would appreciate from hereon. However, Mr Kuah admits that the global financial market turmoil has caused a small price dip.
Officials from Far East Organization said the Singaporean government will provide various facilities for prospective property buyers; for instance, exempting them from the sales profit tax and providing them with permanent resident permits.
The government is expected to grant permanent resident permits to 40,000-50,000 expatriate residents every year. Around 14% of non-local property buyers in Singapore are Indians, according to government data. The Singapore government has targeted a population of 6 million, from 4.6 million at present, in the next three years.
The Far East Organization, one of Asia’s largest real estate groups, is among the real estate developers looking to pull in Indians to invest in the Southeast Asian country. The group will soon complete the development of Silversea, a premium residential seafront property, aimed at foreign buyers.
“People from across Asia are looking to buy properties in Singapore attracted by its urban infrastructure. The number from India has only been increasing,” says Far East’s chief operating officer, Mr Chia Boon Kuah. Along with a stunning sea view of the east coast, Silversea also promises a window to the country’s rapidly rising financial district, which houses properties like the New Downtown, Marina Bay Financial Centre and Gardens by the Bay. The apartments are priced at about $1.5 million each.
While Far East will have a Silversea exhibition in Kuala Lumpur soon, it is targeting other markets, such as Indonesia, India, China, and the Middle East. Mr Kuah expects to sell around a half of Silversea apartments to foreign buyers.
Singapore has attracted real estate investors for many years now. Thanks to a stable, business-friendly administration and a safe and multicultural environment, most buyers believe that prices would appreciate from hereon. However, Mr Kuah admits that the global financial market turmoil has caused a small price dip.
Officials from Far East Organization said the Singaporean government will provide various facilities for prospective property buyers; for instance, exempting them from the sales profit tax and providing them with permanent resident permits.
The government is expected to grant permanent resident permits to 40,000-50,000 expatriate residents every year. Around 14% of non-local property buyers in Singapore are Indians, according to government data. The Singapore government has targeted a population of 6 million, from 4.6 million at present, in the next three years.
The height of luxury
Now, see the view from India’s most expensive condominium from a hot air balloon.
To help sell what is billed as India's tallest and Noida's most premium residential property, real-estate company Assotech is offering hot air balloon rides to a height of 120 metres. Undeterred by the global credit crunch, Assotech is spending on free balloon rides to market its most unique selling proposition, the view from the 35-level towers, touted as among the priciest in India.
“We offer a 360-degree panoramic view from the buildings. Your condominium will have views of both the Noida golf course and the bio-diversity garden to one side,” said Rajeev Rai, vice president (corporate), Assotech. Called Celeste Towers, among its other firsts will be helipads on the roof of the twin towers, besides an infinity swimming pool and “the best of luxury in each condominium”.
In all, there will be 60 condominiums, each occupying an entire floor. The remaining five levels in each tower are reserved for a spa, gymnasium and the pool. The most expensive value is reserved for the 30th floor, which is a penthouse and is said to cost upwards of Rs 7 crore. The other floors, with an area of 4,750 sq ft, are priced between Rs 4.35 crore and Rs 4.43 crore based on a Preferential Location Charge (PLC) formula.
Rai waved off concerns that the global financial crisis might affect his bookings. He claimed the project had a “soft-launch” in February 2008 and as of today “30 per cent of the capacity has been booked”. The project is penciled for delivery by March 2011. “We are only looking at a select 60 buyers. The address, Noida Sector 44, is coveted. Anyway, the luxury segment is not affected by a slowdown,” he insisted.
Each condo is designed to suit the lives of “a couple and two children”. The views are emphasised with large scale use of plate glass windows and large balconies with wooden decks. The landscaping for the project is being done by Belt Collins of Singapore, who are said to specialise only in “seven-star properties”. There is guaranteed parking for three “large luxury sedans” and, of course, you can use your personal chopper. Also thrown in with ownership here is a tie-up with private jet leasing firm Club One Air, who will offer a free privilege card worth Rs 35 lakh.
There is a 13 per cent discount on offer for those willing to fork up a massive downpayment at booking. But Rai denied it had anything to with a credit crunch. If Assotech delivers on its promise, the only hot air coming will be from the balloon.
To help sell what is billed as India's tallest and Noida's most premium residential property, real-estate company Assotech is offering hot air balloon rides to a height of 120 metres. Undeterred by the global credit crunch, Assotech is spending on free balloon rides to market its most unique selling proposition, the view from the 35-level towers, touted as among the priciest in India.
“We offer a 360-degree panoramic view from the buildings. Your condominium will have views of both the Noida golf course and the bio-diversity garden to one side,” said Rajeev Rai, vice president (corporate), Assotech. Called Celeste Towers, among its other firsts will be helipads on the roof of the twin towers, besides an infinity swimming pool and “the best of luxury in each condominium”.
In all, there will be 60 condominiums, each occupying an entire floor. The remaining five levels in each tower are reserved for a spa, gymnasium and the pool. The most expensive value is reserved for the 30th floor, which is a penthouse and is said to cost upwards of Rs 7 crore. The other floors, with an area of 4,750 sq ft, are priced between Rs 4.35 crore and Rs 4.43 crore based on a Preferential Location Charge (PLC) formula.
Rai waved off concerns that the global financial crisis might affect his bookings. He claimed the project had a “soft-launch” in February 2008 and as of today “30 per cent of the capacity has been booked”. The project is penciled for delivery by March 2011. “We are only looking at a select 60 buyers. The address, Noida Sector 44, is coveted. Anyway, the luxury segment is not affected by a slowdown,” he insisted.
Each condo is designed to suit the lives of “a couple and two children”. The views are emphasised with large scale use of plate glass windows and large balconies with wooden decks. The landscaping for the project is being done by Belt Collins of Singapore, who are said to specialise only in “seven-star properties”. There is guaranteed parking for three “large luxury sedans” and, of course, you can use your personal chopper. Also thrown in with ownership here is a tie-up with private jet leasing firm Club One Air, who will offer a free privilege card worth Rs 35 lakh.
There is a 13 per cent discount on offer for those willing to fork up a massive downpayment at booking. But Rai denied it had anything to with a credit crunch. If Assotech delivers on its promise, the only hot air coming will be from the balloon.
NRI Corner
Under the Foreign Exchange Management Act (FEMA), a 'person resident in India' includes a person residing in India for more than 182 days during the course of the preceding financial year but does not include a person who has gone out of India or who stays outside India (for employment, business, vocation, or for any other purpose) or a person who has come to or stays in India (other than for employment, business, vocation in India, or for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period).
All other persons are non-resident Indians (NRIs).
Rules of purchase
NRIs are permitted to buy and sell property in India but acquisition and transfer of immovable property by them should be in accordance with the FEMA.
Property should be purchased through a registered conveyance deed but can also be purchased on Power of Attorney. In the latter case, an agreement to sell and a power of attorney are executed by the seller in favour of the buyer. However, the same is not formally registered with the office of Registrar and as such no stamp duty is to be paid for the purchase.
NRIs do not require permission of the Reserve Bank of India (RBI) to acquire residential/commercial property in India, as RBI has granted general permission to foreign citizens of Indian origin, whether resident in India or abroad, to purchase immovable property in India for their bonafide residential purpose.
However, the purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from NRE/FCNR accounts maintained with banks in India. Foreign citizens of Indian origin, purchasing residential immovable property in India under the general permission, are required to file a declaration in form IPI 7 with the Central Office of RBI at Mumbai within a period of 90 days from the date of purchase of property or final payment of purchase consideration along with a certified copy of the document evidencing the transaction and bank certificate regarding the consideration paid.
Sale of property
RBI has granted general permission for sale of such property. However, where another foreign citizen of Indian origin purchases the property, funds towards the purchase consideration should either be remitted to India or paid out of balances in NRE/FCNR accounts.
In respect of residential properties purchased on or after May 26, 1993, RBI considers applications for repatriation of sale proceeds up to the consideration amount remitted in foreign exchange for the acquisition of the property for two such properties.
The balance amount of sale proceeds if any, or sale proceeds in respect of properties purchased prior to May 26, 1993, will have to be credited to the ordinary non resident rupee account of the owner of the property. Applications for repatriation of sale proceeds are considered provided the sale takes place after three years from the date of final purchase deed or from the date of payment of final instalment of consideration amount, whichever is later.
Applications for necessary permission for remittance of sale proceeds should be made in form IPI 8 to the Central Office of RBI at Mumbai within 90 days of the sale of the property. RBI has also granted general permission to foreign citizens of Indian origin to acquire or dispose of properties up to two houses by way of gift from or to a relative who may be an Indian citizen or a person of Indian origin whether resident in India or not, subject to compliance with applicable tax laws.
Moreover, RBI also permits non-resident persons (foreign citizens) of Indian origin to transfer by way of gift immovable property held by them in India to relatives and charitable trusts/organisations subject to the condition that the provisions of any other law, including Foreign Contribution (Regulation) Act, 1976 are complied with.
In addition to the above, properties other than agricultural land/farm house/plantation property can be acquired by foreign citizens of Indian origin provided the purchase consideration is met either out of inward remittances in foreign exchange through normal banking channels or out of funds from the purchasers' NRE/FCNR accounts maintained with banks in India and a declaration is submitted to the Central Office of RBI in form IPI 7 within a period of 90 days from the date of purchase of the property/final payment of purchase consideration. They can also dispose of such properties.
Renting out property
RBI has granted general permission for letting out any immovable property in India. The rental income or proceeds of any investment of such income are eligible for repatriation.
All other persons are non-resident Indians (NRIs).
Rules of purchase
NRIs are permitted to buy and sell property in India but acquisition and transfer of immovable property by them should be in accordance with the FEMA.
Property should be purchased through a registered conveyance deed but can also be purchased on Power of Attorney. In the latter case, an agreement to sell and a power of attorney are executed by the seller in favour of the buyer. However, the same is not formally registered with the office of Registrar and as such no stamp duty is to be paid for the purchase.
NRIs do not require permission of the Reserve Bank of India (RBI) to acquire residential/commercial property in India, as RBI has granted general permission to foreign citizens of Indian origin, whether resident in India or abroad, to purchase immovable property in India for their bonafide residential purpose.
However, the purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from NRE/FCNR accounts maintained with banks in India. Foreign citizens of Indian origin, purchasing residential immovable property in India under the general permission, are required to file a declaration in form IPI 7 with the Central Office of RBI at Mumbai within a period of 90 days from the date of purchase of property or final payment of purchase consideration along with a certified copy of the document evidencing the transaction and bank certificate regarding the consideration paid.
Sale of property
RBI has granted general permission for sale of such property. However, where another foreign citizen of Indian origin purchases the property, funds towards the purchase consideration should either be remitted to India or paid out of balances in NRE/FCNR accounts.
In respect of residential properties purchased on or after May 26, 1993, RBI considers applications for repatriation of sale proceeds up to the consideration amount remitted in foreign exchange for the acquisition of the property for two such properties.
The balance amount of sale proceeds if any, or sale proceeds in respect of properties purchased prior to May 26, 1993, will have to be credited to the ordinary non resident rupee account of the owner of the property. Applications for repatriation of sale proceeds are considered provided the sale takes place after three years from the date of final purchase deed or from the date of payment of final instalment of consideration amount, whichever is later.
Applications for necessary permission for remittance of sale proceeds should be made in form IPI 8 to the Central Office of RBI at Mumbai within 90 days of the sale of the property. RBI has also granted general permission to foreign citizens of Indian origin to acquire or dispose of properties up to two houses by way of gift from or to a relative who may be an Indian citizen or a person of Indian origin whether resident in India or not, subject to compliance with applicable tax laws.
Moreover, RBI also permits non-resident persons (foreign citizens) of Indian origin to transfer by way of gift immovable property held by them in India to relatives and charitable trusts/organisations subject to the condition that the provisions of any other law, including Foreign Contribution (Regulation) Act, 1976 are complied with.
In addition to the above, properties other than agricultural land/farm house/plantation property can be acquired by foreign citizens of Indian origin provided the purchase consideration is met either out of inward remittances in foreign exchange through normal banking channels or out of funds from the purchasers' NRE/FCNR accounts maintained with banks in India and a declaration is submitted to the Central Office of RBI in form IPI 7 within a period of 90 days from the date of purchase of the property/final payment of purchase consideration. They can also dispose of such properties.
Renting out property
RBI has granted general permission for letting out any immovable property in India. The rental income or proceeds of any investment of such income are eligible for repatriation.
Friday, November 7, 2008
Hiring a Personal Injury Lawyer
Why do I need a lawyer?
When you or your loved one suffer an injury as the result of somebody else's action, perhaps it seems natural that the person would offer to compensate you for your injury, or that their insurance company will do the right thing and offer a fair settlement. Unfortunately, that rarely happens. Many people will not take responsibility for their actions, and insurance companies profit from undercompensating injury victims. Insurance companies and their lawyers also know the governing law backwards and forwards, and they know that most non-lawyers have no idea what legal rights and remedies they possess.
An experienced personal injury lawyer knows how to build your case, how to negotiate your case with an insurance company, and, if necessary, how to take your case to trial. While it is possible to negotiate your claim with an insurance company yourself, insurance companies will typically do everything they can to take advantage of you and to effect the lowest possible settlement, while attempting to elicit statements from you that will damage your position if you ultimately decide to sue.
A lawyer is in a good position to help you obtain a favorable settlement that, even with the attorney fee deducted, significantly exceeds what you can obtain on your own.
How much does a personal injury attorney cost?
Personal injury lawyers almost always accept cases on a contingent fee (or "contingency fee") basis, meaning that they if they win they receive a percentage of the award as their fee. If they lose, they do not receive an attorney fee. (Please note that attorney fees are different from costs, and you may be responsible for certain costs associated with your case, such as the filing fee for your lawsuit, even if you lose. While this is rarely an issue, as most civil litigation settles short of trial, you may wish to clarify the issue of costs with your lawyer.)
The amount of the contingent fee your lawyer will charge will vary somewhat from state to state. In most states, the attorney fee will be between one third and 40% of a personal injury award. Attorney fees for workers' compensation cases are more tightly regulated, and are typically lower than for regular personal injury matters. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney's contingent fee - however, the best personal injury lawyers are usually not willing to negotiate their fees. They know that they are often able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney.
Where Can I Find An Attorney?
You can find the names of attorneys from a variety of sources. You may seek advice from friends, or from your doctor or another health care professional. You may look in the Yellow Pages or an online lawyer directory. You may contact a State Bar lawyer referral service. There are many ways to seek a personal injury lawyer, but there are no magic answers to finding a good lawyer.
Go To An Attorney You Trust, And Seek A Referral
One of the best ways to find personal injury lawyer is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that they give you the name of a lawyer who can handle your case - what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to a lawyer who can.
You should note within this context that attorneys frequently receive "referral fees" when they send personal injury cases to other lawyers or law firms. The amount of this fee can be significant - it is usually about a quarter to a third of the fee received by the personal injury lawyer who handles your case. This gives the attorney an incentive to refer you to a good personal injury lawyer - but if this possibility makes you at all uncomfortable you shouldn't hesitate to ask if the attorney referring your case expects a referral fee.
Referral Services & Membership Organizations
Many state bar organizations offer referral services to help people find attorneys. Usually, any member of the organization can list with its referral service, and you can't know just from the referral that the lawyer is truly qualified to handle your case.
There are also a number of specialty organizations, such as the American Association For Justice , which offer online directories of their membership. Most lawyers with significant personal injury practices are members of the AAJ. However, most legal organizations are open to all attorneys, and membership means only that the attorney has paid the membership fee.
Internet Lawyer Directories
A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any personal injury lawyer who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case.
There are also a large number of websites on the Internet which look informational, but in fact are owned by law firms. Be wary of any "injury information" site that lists law firms or offers lawyer referrals, particularly if it does not make obvious the identity of its sponsor.
Advertising
The issue of attorney advertising is addressed in the next two questions:
o Should I hire the guy with the 1-800 number, and all of the ads on TV?
o Should I hire the guy with the big "yellow pages" ad?
Should I hire the personal injury law firm with the 1-800 number, and all of the ads on TV?
Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can't get much attention for your case.
Please note that, when it comes to hiring a personal injury lawyer, many of the best personal injury attorneys do little or no advertising. They get their cases through "referrals" from other attorneys, due to their reputations for doing good work and getting good results.
Should I hire the lawyer with the big "yellow pages" ad?
If you look at the "full page" ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns.
Many of the biggest ads will be from personal injury law firms, who anticipate that their large advertisements will bring them large numbers of injury cases. Many of the better personal injury lawyers and firms do pay for full-page ads. However, as was previously noted, some of the best personal injury lawyers do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford in order to make their practices appear better than they really are.
If you look through the yellow pages, you will see that most lawyers claim to specialize in "personal injury" cases. Many of these lawyers have handled very few personal injury cases, and some have never had even a single injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case.
Are there special types of personal injury lawyers for different types of cases?
Yes. When you are seeking a personal injury lawyer, you should consider that most personal injury lawyers do not practice medical malpractice law, and many do not handle workers' compensation cases. Just as you would seek a specialized doctor to provide a special type of medical care, the practice of medical malpractice law is very specialized and in seeking a lawyer it is almost always best to seek out a lawyer or law firm which has significant experience in that area of law. Some lawyers specialize primarily in workers' compensation law, which is typically handled through a special system of administrative courts.
Further, beyond workers' compensation and medical malpractice, certain law firms specialize in particular types of injury or cause of action. There are personal injury law firms which focus primarily on burn injuries, or brain and spinal cord injuries. There are personal injury firms which concentrate primarily on car accidents, construction accidents, or litigation over defective products. You will benefit from asking whether a lawyer you consult has experience with your type of injury before you make your hiring decision.
If I meet with an injury lawyer, do I have to hire him?
No. Although personal injury attorneys rarely charge for an initial meeting with a potential client, before your meeting you should ask if there is a fee for an initial consultation. If there is, you will be obligated to pay that fee even if you do not hire the attorney. However, even when the consultation is free, you have every right to take some time to think before you hire a lawyer, and you have every right to decide not to hire the lawyer. Hiring a personal injury lawyer is a big step, and there is nothing wrong with consulting several lawyers to find one who makes you comfortable.
What should I ask the attorney before I hire him?
The questions you should ask will vary with your case. Consider the following list to be a starting point:
* What are your areas of specialization?
* Have you handled cases like mine before? How many? What was the outcome?
* Will you be the only attorney who works on the case? If not, who else will work on it?
* How long will it take for this case to be resolved?
* Will you take my case on a contingent fee basis?
* Are there things I should do to improve my case, or to help you?
* How will you keep me informed about the progress of my case?
* If I contact your office with questions, how long will you take to return my call?
* If you are unavailable or on vacation, who can I speak to about my case?
* How often do you go to trial?
* If I am not happy with a settlement offer and you want to settle, will you go to court anyway?
* If I am happy with the offer but you think we can win more at trial, will you follow my wishes?
* Have you ever been disciplined by an ethics committee, or been suspended from the practice of law? If so, why?
* What "continuing legal education" courses have you attended during the past few years? Have you taught any?
Please note that, as desirable as references may be, it is usually not possible for personal injury lawyers to give references from past clients due to attorney-client confidentiality. However, you may wish to ask for references from other attorneys.
Should I ask for a written retainer agreement?
Yes. A written retainer agreement is the best way to ensure that your rights are protected, and in many jurisdictions is required for a contingent fee agreement to be valid. Many personal injury lawyers use a relatively short fee agreement, but even if it looks short and simple you should take your time and read the whole agreement before signing. If there is something you don't understand, ask for clarification before you sign.
What if I hire an injury lawyer, but I don't like the work he does?
Your lawyer works for you, and you have the right to terminate the attorney-client relationship. Please note, however, that your lawyer is still entitled to compensation for work performed on your case. If the lawyer was representing you on a "contingent fee" basis, the lawyer will often be entitled to a portion of the proceeds of your case once it has been resolved.
Usually, before you fire your lawyer, you will want to first talk to a different attorney. Sometimes the new attorney will tell you to try to work out your problems with your lawyer. If you choose to hire the new attorney, the new attorney should be willing to work out the details relating to any fees you may owe to your prior lawyer.
If I want to appeal my case, does my attorney have to represent me?
Generally not, unless your retainer agreement requires your attorney to take on the appeal. Your lawyer will ordinarily only have to represent you on the matters specified in your retainer agreement. Once a final judgment has been entered, your lawyer ordinarily has no further responsibility to represent you or to appeal your case.
What if a dispute arises?
In the event that a dispute arises between you and your lawyer, many state bars offer dispute resolution services. These services can be of particular benefit in the event of fee disputes. If you feel that your lawyer has acted in an unethical manner, each state has a "grievance" procedure where you can file a complaint against your lawyer and have your complaint investigated.
When you or your loved one suffer an injury as the result of somebody else's action, perhaps it seems natural that the person would offer to compensate you for your injury, or that their insurance company will do the right thing and offer a fair settlement. Unfortunately, that rarely happens. Many people will not take responsibility for their actions, and insurance companies profit from undercompensating injury victims. Insurance companies and their lawyers also know the governing law backwards and forwards, and they know that most non-lawyers have no idea what legal rights and remedies they possess.
An experienced personal injury lawyer knows how to build your case, how to negotiate your case with an insurance company, and, if necessary, how to take your case to trial. While it is possible to negotiate your claim with an insurance company yourself, insurance companies will typically do everything they can to take advantage of you and to effect the lowest possible settlement, while attempting to elicit statements from you that will damage your position if you ultimately decide to sue.
A lawyer is in a good position to help you obtain a favorable settlement that, even with the attorney fee deducted, significantly exceeds what you can obtain on your own.
How much does a personal injury attorney cost?
Personal injury lawyers almost always accept cases on a contingent fee (or "contingency fee") basis, meaning that they if they win they receive a percentage of the award as their fee. If they lose, they do not receive an attorney fee. (Please note that attorney fees are different from costs, and you may be responsible for certain costs associated with your case, such as the filing fee for your lawsuit, even if you lose. While this is rarely an issue, as most civil litigation settles short of trial, you may wish to clarify the issue of costs with your lawyer.)
The amount of the contingent fee your lawyer will charge will vary somewhat from state to state. In most states, the attorney fee will be between one third and 40% of a personal injury award. Attorney fees for workers' compensation cases are more tightly regulated, and are typically lower than for regular personal injury matters. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney's contingent fee - however, the best personal injury lawyers are usually not willing to negotiate their fees. They know that they are often able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney.
Where Can I Find An Attorney?
You can find the names of attorneys from a variety of sources. You may seek advice from friends, or from your doctor or another health care professional. You may look in the Yellow Pages or an online lawyer directory. You may contact a State Bar lawyer referral service. There are many ways to seek a personal injury lawyer, but there are no magic answers to finding a good lawyer.
Go To An Attorney You Trust, And Seek A Referral
One of the best ways to find personal injury lawyer is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that they give you the name of a lawyer who can handle your case - what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to a lawyer who can.
You should note within this context that attorneys frequently receive "referral fees" when they send personal injury cases to other lawyers or law firms. The amount of this fee can be significant - it is usually about a quarter to a third of the fee received by the personal injury lawyer who handles your case. This gives the attorney an incentive to refer you to a good personal injury lawyer - but if this possibility makes you at all uncomfortable you shouldn't hesitate to ask if the attorney referring your case expects a referral fee.
Referral Services & Membership Organizations
Many state bar organizations offer referral services to help people find attorneys. Usually, any member of the organization can list with its referral service, and you can't know just from the referral that the lawyer is truly qualified to handle your case.
There are also a number of specialty organizations, such as the American Association For Justice , which offer online directories of their membership. Most lawyers with significant personal injury practices are members of the AAJ. However, most legal organizations are open to all attorneys, and membership means only that the attorney has paid the membership fee.
Internet Lawyer Directories
A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any personal injury lawyer who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case.
There are also a large number of websites on the Internet which look informational, but in fact are owned by law firms. Be wary of any "injury information" site that lists law firms or offers lawyer referrals, particularly if it does not make obvious the identity of its sponsor.
Advertising
The issue of attorney advertising is addressed in the next two questions:
o Should I hire the guy with the 1-800 number, and all of the ads on TV?
o Should I hire the guy with the big "yellow pages" ad?
Should I hire the personal injury law firm with the 1-800 number, and all of the ads on TV?
Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can't get much attention for your case.
Please note that, when it comes to hiring a personal injury lawyer, many of the best personal injury attorneys do little or no advertising. They get their cases through "referrals" from other attorneys, due to their reputations for doing good work and getting good results.
Should I hire the lawyer with the big "yellow pages" ad?
If you look at the "full page" ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns.
Many of the biggest ads will be from personal injury law firms, who anticipate that their large advertisements will bring them large numbers of injury cases. Many of the better personal injury lawyers and firms do pay for full-page ads. However, as was previously noted, some of the best personal injury lawyers do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford in order to make their practices appear better than they really are.
If you look through the yellow pages, you will see that most lawyers claim to specialize in "personal injury" cases. Many of these lawyers have handled very few personal injury cases, and some have never had even a single injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case.
Are there special types of personal injury lawyers for different types of cases?
Yes. When you are seeking a personal injury lawyer, you should consider that most personal injury lawyers do not practice medical malpractice law, and many do not handle workers' compensation cases. Just as you would seek a specialized doctor to provide a special type of medical care, the practice of medical malpractice law is very specialized and in seeking a lawyer it is almost always best to seek out a lawyer or law firm which has significant experience in that area of law. Some lawyers specialize primarily in workers' compensation law, which is typically handled through a special system of administrative courts.
Further, beyond workers' compensation and medical malpractice, certain law firms specialize in particular types of injury or cause of action. There are personal injury law firms which focus primarily on burn injuries, or brain and spinal cord injuries. There are personal injury firms which concentrate primarily on car accidents, construction accidents, or litigation over defective products. You will benefit from asking whether a lawyer you consult has experience with your type of injury before you make your hiring decision.
If I meet with an injury lawyer, do I have to hire him?
No. Although personal injury attorneys rarely charge for an initial meeting with a potential client, before your meeting you should ask if there is a fee for an initial consultation. If there is, you will be obligated to pay that fee even if you do not hire the attorney. However, even when the consultation is free, you have every right to take some time to think before you hire a lawyer, and you have every right to decide not to hire the lawyer. Hiring a personal injury lawyer is a big step, and there is nothing wrong with consulting several lawyers to find one who makes you comfortable.
What should I ask the attorney before I hire him?
The questions you should ask will vary with your case. Consider the following list to be a starting point:
* What are your areas of specialization?
* Have you handled cases like mine before? How many? What was the outcome?
* Will you be the only attorney who works on the case? If not, who else will work on it?
* How long will it take for this case to be resolved?
* Will you take my case on a contingent fee basis?
* Are there things I should do to improve my case, or to help you?
* How will you keep me informed about the progress of my case?
* If I contact your office with questions, how long will you take to return my call?
* If you are unavailable or on vacation, who can I speak to about my case?
* How often do you go to trial?
* If I am not happy with a settlement offer and you want to settle, will you go to court anyway?
* If I am happy with the offer but you think we can win more at trial, will you follow my wishes?
* Have you ever been disciplined by an ethics committee, or been suspended from the practice of law? If so, why?
* What "continuing legal education" courses have you attended during the past few years? Have you taught any?
Please note that, as desirable as references may be, it is usually not possible for personal injury lawyers to give references from past clients due to attorney-client confidentiality. However, you may wish to ask for references from other attorneys.
Should I ask for a written retainer agreement?
Yes. A written retainer agreement is the best way to ensure that your rights are protected, and in many jurisdictions is required for a contingent fee agreement to be valid. Many personal injury lawyers use a relatively short fee agreement, but even if it looks short and simple you should take your time and read the whole agreement before signing. If there is something you don't understand, ask for clarification before you sign.
What if I hire an injury lawyer, but I don't like the work he does?
Your lawyer works for you, and you have the right to terminate the attorney-client relationship. Please note, however, that your lawyer is still entitled to compensation for work performed on your case. If the lawyer was representing you on a "contingent fee" basis, the lawyer will often be entitled to a portion of the proceeds of your case once it has been resolved.
Usually, before you fire your lawyer, you will want to first talk to a different attorney. Sometimes the new attorney will tell you to try to work out your problems with your lawyer. If you choose to hire the new attorney, the new attorney should be willing to work out the details relating to any fees you may owe to your prior lawyer.
If I want to appeal my case, does my attorney have to represent me?
Generally not, unless your retainer agreement requires your attorney to take on the appeal. Your lawyer will ordinarily only have to represent you on the matters specified in your retainer agreement. Once a final judgment has been entered, your lawyer ordinarily has no further responsibility to represent you or to appeal your case.
What if a dispute arises?
In the event that a dispute arises between you and your lawyer, many state bars offer dispute resolution services. These services can be of particular benefit in the event of fee disputes. If you feel that your lawyer has acted in an unethical manner, each state has a "grievance" procedure where you can file a complaint against your lawyer and have your complaint investigated.
Do I Need A Criminal Defense Lawyer?
Any person who is facing a criminal charge, no matter how minor, will benefit from consulting a competent criminal defense lawyer. Even if the lawyer is not retained to provide representation in court, a consultation will help a criminal defendant understand the nature of the charges filed, available defenses, what plea bargains are likely to be offered, and what is likely to happen in the event of conviction.
For serious charges, it will be a rare defendant who does not benefit from having a competent criminal defense lawyer assist with the negotiation of a plea bargain, or to prepare a case for trial.
A criminal defense lawyer should also be able to identify important pretrial issues, and to bring appropriate motions which might significantly improve a defendant's situation, or even result in the dismissal of charges.
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For serious charges, it will be a rare defendant who does not benefit from having a competent criminal defense lawyer assist with the negotiation of a plea bargain, or to prepare a case for trial.
A criminal defense lawyer should also be able to identify important pretrial issues, and to bring appropriate motions which might significantly improve a defendant's situation, or even result in the dismissal of charges.
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How Much Will My Defense Cost?
The cost of a criminal defense lawyer can vary significantly depending upon the jurisdiction, and the nature of the charges which have been filed (or which are expected to be filed) against the defendant. A lawyer will typically require a greater retainer for a complex case than for a simple case. The amount of a retainer will also typically increase with the severity of the charge filed against a defendant. Sometimes, though, a relatively minor charge can require a higher retainer, where the attorney expects to have to engage in extensive motion practice, or where it will be necessary to utilize expert witnesses.
In a misdemeanor case, although as previously noted the typical fee will vary significantly between cities, counties, and states, it is not unusual for a lawyer to request a retainer of several thousand dollars. For felony cases, retainers often start at $5,000 - $10,000, and can be $25,000 or more for serious or life felonies, such as sexual assault cases or homicide. The anticipated cost of expert witnesses can also significantly increase a retainer.
Be wary of entering into a retainer agreement which calls for additional payments if the case will go to trial. It is not unusual for appellate lawyers to hear clients recite that they entered into guilty pleas after they were unable to come up with the necessary funds to pay their lawyers to proceed with a trial. If you do decide to enter into an agreement whereby you will pay an additional retainer if your case goes to trial, make sure that it is an amount you can afford.
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In a misdemeanor case, although as previously noted the typical fee will vary significantly between cities, counties, and states, it is not unusual for a lawyer to request a retainer of several thousand dollars. For felony cases, retainers often start at $5,000 - $10,000, and can be $25,000 or more for serious or life felonies, such as sexual assault cases or homicide. The anticipated cost of expert witnesses can also significantly increase a retainer.
Be wary of entering into a retainer agreement which calls for additional payments if the case will go to trial. It is not unusual for appellate lawyers to hear clients recite that they entered into guilty pleas after they were unable to come up with the necessary funds to pay their lawyers to proceed with a trial. If you do decide to enter into an agreement whereby you will pay an additional retainer if your case goes to trial, make sure that it is an amount you can afford.
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Finding a Criminal Defense Lawyer
It is unfortunately not always easy to find a good criminal defense lawyer. Here are some suggestions:
Referrals - It may be possible to find a criminal defense lawyer from somebody who is familiar with the lawyer's practice. For example, if you regularly work with a lawyer or law firm, that lawyer may be able to suggest a competent criminal defense lawyer in your area. If your county is served by a public defender's office, sometimes a defender's office will be willing to suggest a competent are defense lawyer. If you have a friend or family member who has been in trouble with the law, that person may be able to make some suggestions.
Courtroom Observation - You may wish to sit through some public sessions of court while criminal cases are being argued. If you find a particular lawyer's performance to be impressive, you may take note of the lawyer's name and later contact the lawyer about the possibility of representing you.
Professional Organizations - Each state, and some major cities, have organizations of criminal defense lawyers. Some of those organizations offer referral services or online directories, which you can use to find a defense lawyer in your area.
Directories - There are a number of online directories which include criminal defense lawyers, including Lawyers.com and FindLaw.
State versus Federal Charges - There are additional factors you may wish to consider when hiring a federal criminal defense attorney.
After you have located one or more attorneys whom you wish to consult about your case, call them to schedule appointments. (Find out at that time if they offer a free initial consultation, or if you will be charged for the meeting.) Try to speak with the criminal defense lawyer over the phone before scheduling the appointment. Ask about the lawyer's general experience with criminal defense, and any specific experience with cases like yours.
Trust your instincts - if you aren't comfortable with an attorney you consult, try a different office. You do not have any obligation to hire a lawyer merely because you consulted with that lawyer. If your lawyer is promising you that your case is easy, or makes promises that you won't go to jail, speak to other lawyers before signing a retainer agreement - some lawyers misrepresent the gravity of a defendant's situation or the complexity of a case in order to entice the defendant to pay a retainer, and then blame the judge or prosecutor when the rosy scenario they initially promised turns out to be a nightmare.
Read the entire fee agreement with the lawyer before you sign it, and make sure you get a copy for your own records.
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Referrals - It may be possible to find a criminal defense lawyer from somebody who is familiar with the lawyer's practice. For example, if you regularly work with a lawyer or law firm, that lawyer may be able to suggest a competent criminal defense lawyer in your area. If your county is served by a public defender's office, sometimes a defender's office will be willing to suggest a competent are defense lawyer. If you have a friend or family member who has been in trouble with the law, that person may be able to make some suggestions.
Courtroom Observation - You may wish to sit through some public sessions of court while criminal cases are being argued. If you find a particular lawyer's performance to be impressive, you may take note of the lawyer's name and later contact the lawyer about the possibility of representing you.
Professional Organizations - Each state, and some major cities, have organizations of criminal defense lawyers. Some of those organizations offer referral services or online directories, which you can use to find a defense lawyer in your area.
Directories - There are a number of online directories which include criminal defense lawyers, including Lawyers.com and FindLaw.
State versus Federal Charges - There are additional factors you may wish to consider when hiring a federal criminal defense attorney.
After you have located one or more attorneys whom you wish to consult about your case, call them to schedule appointments. (Find out at that time if they offer a free initial consultation, or if you will be charged for the meeting.) Try to speak with the criminal defense lawyer over the phone before scheduling the appointment. Ask about the lawyer's general experience with criminal defense, and any specific experience with cases like yours.
Trust your instincts - if you aren't comfortable with an attorney you consult, try a different office. You do not have any obligation to hire a lawyer merely because you consulted with that lawyer. If your lawyer is promising you that your case is easy, or makes promises that you won't go to jail, speak to other lawyers before signing a retainer agreement - some lawyers misrepresent the gravity of a defendant's situation or the complexity of a case in order to entice the defendant to pay a retainer, and then blame the judge or prosecutor when the rosy scenario they initially promised turns out to be a nightmare.
Read the entire fee agreement with the lawyer before you sign it, and make sure you get a copy for your own records.
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Private Defense Counsel or Appointed Counsel?
People who are charged with felony offenses, and many individuals who are charged with misdemeanors, may be eligible for appointed counsel or for assistance through a public defender's office. When a defendant petitions for a court-appointed lawyer, the trial judge will typically make an assessment of the defendant's resources to determine if the defendant will qualify for an appointment of a criminal defense lawyer. When an appointment is made, although the defendant may be ordered to repay certain attorney fees following a guilty plea or conviction, there will not ordinarily be any fee in the event of acquittal or dismissal of the charges.
Some people assume that a court appointed criminal defense lawyer will offer services which are inferior to a privately retained lawyer. While it is certainly true that some public defenders, some appointed lawyers, and some private attorneys will prove to be insufficiently skilled or dedicated to their work to provide an effective defense, it is generally asserted that the average public defender will provide better representation than the average private criminal defense lawyer. The primary reasons for this include experience, as a professional public defender will typically have much more experience with criminal cases than a private lawyer, the ability to collaborate with other experienced lawyers within the office, and also due to the resources and systems available to a typical public defender's office. Many private criminal defense lawyers take appointments - meaning that if you are charged in a jurisdiction that appoints private lawyers to represent criminal defendants, many of the lawyers you might otherwise retain will be among those to whom a court might assign your case. And even if you are ordered to repay legal fees, the cost of an appointed lawyer is almost always significantly lower than the cost of a retained lawyer.
In short, if you can hire an effective criminal defense lawyer you should not hesitate to do so. But, if your means are limited, you should also not hesitate to request an appointed defense lawyer, and should not fear that you will receive inferior representation just because your lawyer was appointed.
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Some people assume that a court appointed criminal defense lawyer will offer services which are inferior to a privately retained lawyer. While it is certainly true that some public defenders, some appointed lawyers, and some private attorneys will prove to be insufficiently skilled or dedicated to their work to provide an effective defense, it is generally asserted that the average public defender will provide better representation than the average private criminal defense lawyer. The primary reasons for this include experience, as a professional public defender will typically have much more experience with criminal cases than a private lawyer, the ability to collaborate with other experienced lawyers within the office, and also due to the resources and systems available to a typical public defender's office. Many private criminal defense lawyers take appointments - meaning that if you are charged in a jurisdiction that appoints private lawyers to represent criminal defendants, many of the lawyers you might otherwise retain will be among those to whom a court might assign your case. And even if you are ordered to repay legal fees, the cost of an appointed lawyer is almost always significantly lower than the cost of a retained lawyer.
In short, if you can hire an effective criminal defense lawyer you should not hesitate to do so. But, if your means are limited, you should also not hesitate to request an appointed defense lawyer, and should not fear that you will receive inferior representation just because your lawyer was appointed.
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Changing Lawyers
It is important to note that your constitutional right to effective assistance of counsel relates almost exclusively to the performance of appointed counsel. It is virtually impossible to convice an appellate court that the incompetence of counsel of your own choosing constitutes an error requiring reversal. If you are not comfortable with the competence of your lawyer, retained or appointed, consult with a second lawyer to have your situation reviewed. It may well turn out that your lawyer is competent - but it is you who could go to prison, not your lawyer, if the lawyer is inept.
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Family Law
Family law issues usually arise in the context of divorce proceedings, child custody disputes, and child protective proceedings. Child protective proceedings arise when the state, acting to protect minor children, attempts to place children into foster care, or to terminate parental rights and to place the children for adoption.
When you are filing for divorce, or if a divorce has been filed against you, you will find that there are a wide range of attorneys who practice family law, and that the fees can vary enormously between law offices. The cheapest attorney is rarely the best, but in an amicable divorce you may find that all you really need is an attorney who won't stand in your way while you negotiate a settlement. You usually will not need to spend a lot on legal fees if you are in agreement on custody and property issues.
When there are disagreements, choose your attorney carefully. If possible, get references from people you know who have recently divorced. As family law is very stressful, a great many attorneys do not practice in the area, and as a consequence it is relatively easy for attorneys with little skill or experience to develop a family law practice. While the most expensive option is not necessarily the best, when faced with contested divorce or custody litigation there is some truth to the old saying, "You get what you pay for." If you try to save money by hiring the cheapest attorney you can find, you may well learn that you gave up more in property, spousal support, or rights to retirement benefits than you "saved" by hiring the wrong lawyer for your case.
Most people do not need to hire the "best" divorce attorneys, or the most expensive. However, if you have a large marital estate, if you have issues of abuse or domestic violence, if the marital estate includes a family business, stock options, or shares in a "closely held" corporation, or if there are other factors which will complicate the evaluation of your fair share of the marital estate, you should consider a specialist.
When you are filing for divorce, or if a divorce has been filed against you, you will find that there are a wide range of attorneys who practice family law, and that the fees can vary enormously between law offices. The cheapest attorney is rarely the best, but in an amicable divorce you may find that all you really need is an attorney who won't stand in your way while you negotiate a settlement. You usually will not need to spend a lot on legal fees if you are in agreement on custody and property issues.
When there are disagreements, choose your attorney carefully. If possible, get references from people you know who have recently divorced. As family law is very stressful, a great many attorneys do not practice in the area, and as a consequence it is relatively easy for attorneys with little skill or experience to develop a family law practice. While the most expensive option is not necessarily the best, when faced with contested divorce or custody litigation there is some truth to the old saying, "You get what you pay for." If you try to save money by hiring the cheapest attorney you can find, you may well learn that you gave up more in property, spousal support, or rights to retirement benefits than you "saved" by hiring the wrong lawyer for your case.
Most people do not need to hire the "best" divorce attorneys, or the most expensive. However, if you have a large marital estate, if you have issues of abuse or domestic violence, if the marital estate includes a family business, stock options, or shares in a "closely held" corporation, or if there are other factors which will complicate the evaluation of your fair share of the marital estate, you should consider a specialist.
Wednesday, November 5, 2008
Credit Card Debt in Divorce
While divorcing couples frequently carry credit card debt, often little attention is paid to these debts beyond their being assigned to one spouse or the other in the divorce judgment.
Care must be taken that a spouse will not be held responsible for additional credit card debts incurred by the other, and that each spouse is protected to the maximum extent possible if the other fails to make payments and ultimately to pay off their share of any joint credit card debt.
Remember: Creditors are not obligated to respect the terms of your divorce judgment.
Assigning Responsibilty for Credit Card Debt
Often the parties to a divorce will assign to each spouse the responsibility for specific credit cards and their associated debt. To help ensure that all joint debts are identified, including any credit cards which may have been taken out by one spouse without the other's knowledge, it may be beneficial to get copies of the credit reports of the divorcing couple, and to make sure that the debt from any creditor not paid off in full is assigned to one spouse or the other.
Cutting Off Your Liability For Additional Debt
When you divorce, you should make sure that you either close any joint credit cards, or that at a minimum you have your name removed from any joint accounts which will continue to be used by your spouse. This will not end your liability for debts incurred up to that point, but should end your responsibility for any new debts incurred on those accounts by your spouse.
Similarly, if you hold any accounts in your own name for which your spouse is an authorized signer, you should revoke the authorization.
Protecting Yourself From Default or Bankruptcy
It is not unusual after a divorce for one spouse to fail to pay off a joint credit card debt which predates the divorce. If appropriate steps weren't taken to cut off liability, sometimes a joint account will remain open with both spouses liable for the new charges, even though the new charges are made after divorce. The debt load on these cards, delinquent payments, and any default or referral to a collection agency, will appear on the credit reports of both account holders. The creditor will also be able to pursue either or both account holders for payment, including interest, penalties, and possibly legal fees. The creditor does not have to be fair - if it wants, it can direct all of its collection efforts at the innocent spouse.
Thus, a divorce judgment should include a deadline by which the joint credit card debts allocated to each spouse will be paid off in full, and provide for appropriate remedies in the event that repayment does not occur. Note that refinancing credit card debt is often as simple as applying for a new credit card and requesting a balance transfer.
There should be a "hold harmless" clause in the divorce judgment which prevents the spouse who is responsible for the debt from trying to shift any responsibility back onto the other spouse, and an "indemnification" clause which requires the spouse who is responsible for the debt to repay any losses suffered by the other spouse, including any payments made toward the debt by that spouse, or legal fees incurred in defending against a collection action or returning to court to compel compliance with the terms of the divorce judgment.
There is also language which can be included in a divorce judgment, which can help protect an ex-spouse from being left without recourse if the other spouse declares bankruptcy before paying off the credit card debts. Ask your lawyer if it is possible to include language which will make the spouse's obligations under the divorce judgment non-dischargeable, or significantly less likely to be discharged, based upon the manner in which the debt and repayment obligation are characterized in the divorce judgment, for example by characterizing the timely payment of the debt as being necessary for the support of the other spouse.
Care must be taken that a spouse will not be held responsible for additional credit card debts incurred by the other, and that each spouse is protected to the maximum extent possible if the other fails to make payments and ultimately to pay off their share of any joint credit card debt.
Remember: Creditors are not obligated to respect the terms of your divorce judgment.
Assigning Responsibilty for Credit Card Debt
Often the parties to a divorce will assign to each spouse the responsibility for specific credit cards and their associated debt. To help ensure that all joint debts are identified, including any credit cards which may have been taken out by one spouse without the other's knowledge, it may be beneficial to get copies of the credit reports of the divorcing couple, and to make sure that the debt from any creditor not paid off in full is assigned to one spouse or the other.
Cutting Off Your Liability For Additional Debt
When you divorce, you should make sure that you either close any joint credit cards, or that at a minimum you have your name removed from any joint accounts which will continue to be used by your spouse. This will not end your liability for debts incurred up to that point, but should end your responsibility for any new debts incurred on those accounts by your spouse.
Similarly, if you hold any accounts in your own name for which your spouse is an authorized signer, you should revoke the authorization.
Protecting Yourself From Default or Bankruptcy
It is not unusual after a divorce for one spouse to fail to pay off a joint credit card debt which predates the divorce. If appropriate steps weren't taken to cut off liability, sometimes a joint account will remain open with both spouses liable for the new charges, even though the new charges are made after divorce. The debt load on these cards, delinquent payments, and any default or referral to a collection agency, will appear on the credit reports of both account holders. The creditor will also be able to pursue either or both account holders for payment, including interest, penalties, and possibly legal fees. The creditor does not have to be fair - if it wants, it can direct all of its collection efforts at the innocent spouse.
Thus, a divorce judgment should include a deadline by which the joint credit card debts allocated to each spouse will be paid off in full, and provide for appropriate remedies in the event that repayment does not occur. Note that refinancing credit card debt is often as simple as applying for a new credit card and requesting a balance transfer.
There should be a "hold harmless" clause in the divorce judgment which prevents the spouse who is responsible for the debt from trying to shift any responsibility back onto the other spouse, and an "indemnification" clause which requires the spouse who is responsible for the debt to repay any losses suffered by the other spouse, including any payments made toward the debt by that spouse, or legal fees incurred in defending against a collection action or returning to court to compel compliance with the terms of the divorce judgment.
There is also language which can be included in a divorce judgment, which can help protect an ex-spouse from being left without recourse if the other spouse declares bankruptcy before paying off the credit card debts. Ask your lawyer if it is possible to include language which will make the spouse's obligations under the divorce judgment non-dischargeable, or significantly less likely to be discharged, based upon the manner in which the debt and repayment obligation are characterized in the divorce judgment, for example by characterizing the timely payment of the debt as being necessary for the support of the other spouse.
Catastrophic Personal Injury Cases
The purpose of this article is not to suggest that injuries that are not "catastrophic" do not justify substantial compensation. Instead, the purpose of this article is to highlight the long-term effects that can be associated with particularly severe injuries, and the importance of obtaining quality legal representation for those injuries.
By "catastrophic," I mean to refer to injuries which require significant medical treatment, and which usually have a long-term or permanent effect on an injured person's life. Some injuries are catastrophic, but with good medical attention the injured person can make a good or excellent recovery. Others cause permanent disability, significant suffering, and may substantially shorten an injured person's lifespan.
It is often a good idea to seek specialized legal assistance with catastrophic injury cases. For example, some personal injury attorneys have a much better understanding of closed head injuries or burn injuries than others. A catastrophic injury can necessitate a lifetime of medical care, or repeated reconstructive surgeries. It is helpful to have an attorney who understands the treatment and recovery process. A severely burned child may require repeated surgeries to accommodate growth, in addition to various cosmetic surgeries. A child with a bone fracture that affects a growth plate may face difficult bone-stretching procedures, and may never have normal use of an affected limb. If an attorney understands the long-term effects of an injury, the attorney will be better able to argue for just compensation. If you wish to hire a personal injury lawyer, you may find this article on "How To Hire A Personal Injury Lawyer" to be helpful.
When a person suffers a spinal cord injury, the person may face a life of disability and dependency. An active person can suddenly become an invalid, with injuries that cannot be treated by even the most advanced medical treatments. While there is always hope of a future medical advance which will ameliorate or even cure spinal cord injuries, at present medical science is limited. A parent whose child suffers a brain or spinal cord injury may suddenly find that the child requires full-time care. A brain injury may cause a personality change, causing a spouse, parent or child to suddenly seem like a different person.
One of the true tragedies of life is that many people are catastrophically injured, but cannot recover adequately for their injuries. Legislatures throughout the country have imposed caps on "non-economic" damages, which can be ridiculously low. Ironically, studies indicate that huge jury verdicts are rare, and that most injury victims are undercompensated. By misrepresenting the exceptional case as the norm, insurance companies have successfully protected their wealth at the expense of society's most vulnerable injury victims.
The worst and most dangerous drivers often carry the lowest possible amount of insurance that the law allows, or carry no insurance at all. Few people would voluntarily allow themselves to suffer even a simple fracture of a bone, even for tens of thousands of dollars. The amount of suffering that results from living a lifetime with disfiguring scars, or with a spinal cord or brain injury, is inconceivable. Our society really should do more to take care of its own -- to make sure that people who suffer catastrophic injuries do not effectively lose their right to a reasonably normal life, just because an insurance company successfully lobbied for damages caps on personal injury or malpractice actions.
If you or a loved one face recovery from a catastrophic injury, seek assistance from an attorney who has experience with your type of injury, and who knows how to find every possible source of recovery. Even if you don't have a legal cause of action, an attorney may be able to assist you in obtaining government benefits.
By "catastrophic," I mean to refer to injuries which require significant medical treatment, and which usually have a long-term or permanent effect on an injured person's life. Some injuries are catastrophic, but with good medical attention the injured person can make a good or excellent recovery. Others cause permanent disability, significant suffering, and may substantially shorten an injured person's lifespan.
It is often a good idea to seek specialized legal assistance with catastrophic injury cases. For example, some personal injury attorneys have a much better understanding of closed head injuries or burn injuries than others. A catastrophic injury can necessitate a lifetime of medical care, or repeated reconstructive surgeries. It is helpful to have an attorney who understands the treatment and recovery process. A severely burned child may require repeated surgeries to accommodate growth, in addition to various cosmetic surgeries. A child with a bone fracture that affects a growth plate may face difficult bone-stretching procedures, and may never have normal use of an affected limb. If an attorney understands the long-term effects of an injury, the attorney will be better able to argue for just compensation. If you wish to hire a personal injury lawyer, you may find this article on "How To Hire A Personal Injury Lawyer" to be helpful.
When a person suffers a spinal cord injury, the person may face a life of disability and dependency. An active person can suddenly become an invalid, with injuries that cannot be treated by even the most advanced medical treatments. While there is always hope of a future medical advance which will ameliorate or even cure spinal cord injuries, at present medical science is limited. A parent whose child suffers a brain or spinal cord injury may suddenly find that the child requires full-time care. A brain injury may cause a personality change, causing a spouse, parent or child to suddenly seem like a different person.
One of the true tragedies of life is that many people are catastrophically injured, but cannot recover adequately for their injuries. Legislatures throughout the country have imposed caps on "non-economic" damages, which can be ridiculously low. Ironically, studies indicate that huge jury verdicts are rare, and that most injury victims are undercompensated. By misrepresenting the exceptional case as the norm, insurance companies have successfully protected their wealth at the expense of society's most vulnerable injury victims.
The worst and most dangerous drivers often carry the lowest possible amount of insurance that the law allows, or carry no insurance at all. Few people would voluntarily allow themselves to suffer even a simple fracture of a bone, even for tens of thousands of dollars. The amount of suffering that results from living a lifetime with disfiguring scars, or with a spinal cord or brain injury, is inconceivable. Our society really should do more to take care of its own -- to make sure that people who suffer catastrophic injuries do not effectively lose their right to a reasonably normal life, just because an insurance company successfully lobbied for damages caps on personal injury or malpractice actions.
If you or a loved one face recovery from a catastrophic injury, seek assistance from an attorney who has experience with your type of injury, and who knows how to find every possible source of recovery. Even if you don't have a legal cause of action, an attorney may be able to assist you in obtaining government benefits.
Car Accident Lawsuits
Despite significant safety improvements in automobile and in the design of roads, car accidents remain quite common. It is likely that any given person will be involved in at least one serious automobile accident during his or her lifetime. This article explores when a car accident may result in litigation.
If you are involved in a car accident, you may benefit from reviewing these suggestions about what to do after a car accident, and from consulting a personal injury lawyer.
Litigation After Car Accidents
Not every car accident will result in litigation. Where nobody is injured or injuries are minor, it may be possible to resolve all claims for medical care and property damage directly with the drivers' car insurance companies. The greater the damage or injury that results from a car accident, the more likely it is that a lawsuit will follow.
Causes of Car Accidents
There are a wide variety of possible causes for automobile accidents, including:
Driver Error - The most common cause of car accidents is driver error. Common errors which contribute to accidents include failure to yield the right of way, following too closely, driving at excessive speeds, unsafe passing, and disregard of traffic control devices.
Distractions - When the driver's attention becomes diverted from the road, the chances of an accident increase. Distractions may occur from outside of the car, such as when something at the side of the road draws a driver's attention. Distractions also occur inside cars, such as where the driver attempts to read or put on makeup while driving, change CD's in the CD player, dials a cellular phone, or attempts to parent an upset or unruly child.
Intoxication - Motorists whose ability to drive is impaired as a result of the consumption of alcohol or drugs are more likely to cause car accidents.
Bad Weather - Sometimes, bad weather conditions will contribute to an accident by interfering with visibility, diminishing traction on the road surface, or otherwise making it more difficult to drive a car. A driver should take the effects of the weather, such as strong cross-winds or slippery roads, into consideration when driving. Sometimes the weather will cause an unexpected hazard, such as black ice or flash flooding, which may not be detected by a driver until it is too late to avoid the hazard.
Road Design - A poorly designed roadway, intersection, or means of controlling traffic can at times cause or contribute to an accident. Poorly placed and poorly designed road signs or barriers can cause unnecessary injury when vehicles collide with them. At times, such defects will result in liability by the governmental agency responsible for the design and maintenance of the roadway, although governmental immunity may apply.
Road Conditions - The conditions of a roadway can be bad for a number of reasons, including weather, poor design or maintenance, or the presence of objects or debris on the roadway. Such factors can cause or contribute to accidents.
Vehicle Defects - At times an accident will result from a defect with a driver's vehicle, such as a tire blowout, brake failure, or other mechanical failure. Sometimes the injuries suffered in an accident will be made worse by a design or manufacturing defect with a vehicle, such as a design defect which makes an SUV more susceptible to rolling over in an accident or a gas tank more likely to ignite in a collision, or a manufacturing defect which causes a seatbelt to fail or an airbag to deploy improperly.
Most automobile accident litigation involves two vehicles, with a driver or passenger from the first vehicle claiming that the driver of the second vehicle caused the accident through negligent driving. Sometimes the litigation will involve the driver and passenger of a single vehicle, with the passenger claiming injury as a result of the driver's negligence. At times, litigation will be against a governmental agency which is alleged to have failed to properly design or maintain a roadway or intersection. Car accident litigation may also include a product liability claim against the manufacturer of a vehicle or part of a vehicle, alleging a design or manufacturing defect which contributed to the accident. A claim might also arise against a mechanic or service center whose work left a vehicle in a hazardous condition.
Special Issues
Special issues can arise in automobile litigation which make it more difficult to litigate a car accident claim, which make additional parties potentially liable for injuries, or which must be considered during the course of litigating a case. Special issues arising from the accident itself include:
Hit-and-Run Accidents: Where the driver who causes an accident fails to stop at the accident scene, it may be difficult for the victim of the accident to later identify the at-fault driver so as to bring a lawsuit.
Car-Pedestrian Accidents: Where a motor vehicle collides with a pedestrian, the pedestrian will often suffer catastrophic injury. Pedestrians often have difficulty making claims against drivers, with accidents frequently attributed to the conduct of the pedestrian.
Car-Motorcycle Accidents: Motorcycle drivers are susceptible to serious injury, even in collisions which would be relatively minor had they occurred between cars. Some suggest that motorcyclists suffer from a predisposition by juries to blame them for causing an accident, even where the driver of a car was clearly negligent.
Car-Bicycle Accidents: Bicyclists are vulnerable to serious injury when hit by cars, and are aslo susceptible to having drivers open car doors in front of them - a hazard which can cause them to be caterpaulted over the car door in a collision. Drivers often report that they did not see the bicyclist until after the collision, or that they misjudged the bicyclist's speed. Some bicyclists engage in very hazardous actions, such as ignoring traffic signals or riding on the wrong side of the road, making an accident much more likely. The most severe and lasting injuries to bicyclists tend to be head injuries, so helmet use is encouraged.
Bus Accidents: Bus accidents can be quite serious, given the size and mass of a typical bus, and the fact that passengers are usually unrestrained. Special issues can arise in accidents involving school buses, and in the context of loading and unloading passengers.
Semi Truck / Tractor-Trailer Accidents: The drivers of "big rigs" are subject to state and federal regulation, governing how many hours a day they can drive, how much sleep they are to get each night, and the condition and maintenance of their trucks. Drivers typically get paid by the mile driven, and thus have a strong incentive to ignore rules which limit their driving time. Obviously, when a semi truck causes an accident, the consequences to any smaller vehicle and its passengers can be devastating.
After-Market Vehicle Modifications: Where a vehicle has after-market modifications, such as being raised or lowered, having powerful or tinted headlights or foglights intalled, or window tinting, those modifications may affect both the safety of the vehicle for its occupants and the hazard posed by the vehicle to other drivers.
Accidents Caused by Road Debris: Where road debris causes an accident, whether in the form of objects or parts which have fallen off of vehicles, or debris that is kicked up from the roadway and collides with another vehicle, it can often be difficult to determine who was at fault for the presence of the debris on the road. States may also limit liability based upon how long the debris was on the road.
Special issues which may affect liability include:
Governmental Immunity: States may limit an injury victim's ability to sue when the driver of the vehicle that causes an accident is a governmental employee who is working at the time of the accident, or where the accident involves a government-owned vehicle.
Owner Liability: Where the driver of a vehicle has the owner's permission to operate that vehicle, many jurisdictions will hold the owner jointly liable for injuries caused by the driver's negligent operation of the vehicle.
Employer Liability: Where an employee is driving a vehicle "on the job", or as the lawyers might say "within the course and scope of employment", the employer may be jointly liable for injuries caused by the employee's negligent driving conduct.
Cellular Phone Usage: In a number of states, courts are increasingly receptive to the argument that where a driver who causes an accident is talking on a cellular phone, the call was work-related, and the driver's employer expects employees to handle work-related phone calls while driving, the employer may share liability for an accident caused by the employee.
Insurance Coverage
The insurance problems car accident victims have with insurance coverage typically fall into three categories:
Uninsured Driver - Where the at-fault driver is uninsured, it can be difficult for a person who is injured in a car accident to obtain appropriate compensation. Where the injured person is uninsured, states are increasingly modifying their laws to limit the uninsured accident victim's right to sue for pain and suffering damages. Many drivers carry "uninsured motorist coverage" through their own automobile insurance policies, so that they have a source of compensation in the event that the other driver fails to carry insurance or cannot be identified.
Underinsured Driver - Similar to the uninsured driver, some drivers carry inadequate insurance coverage, often at the minimum level required by state law. Many states have very low insurance requirements, which unfortunately means that some of the worst drivers on the road carry inadequate coverage due to the high cost of insurance which results from their bad driving records. Some carinsurance companies offer underinsured motorist coverage, so drivers can protect themselves in the event that they are in an accident caused by somebody who carries inadequate coverage.
Insurance Company Bad Faith - When people make claims with their insurance companies, they sometimes run into difficulty with the insurance company's refusal to negotiate the claim fairly. For example, an insurance company may refuse to offer fair value for a "totaled" car. In "no fault" states, where drivers insure for their own accident-related medical care, it can involve the improper denial of coverage or reimbursement by the insurance company.
Statute of Limitations
Anybody who is considering bringing a legal claim as a result of a car accident should note that their ability to pursue their claim will be limited by the statute of limitations of the jurisdiction where the accident occurred.
If you are involved in a car accident, you may benefit from reviewing these suggestions about what to do after a car accident, and from consulting a personal injury lawyer.
Litigation After Car Accidents
Not every car accident will result in litigation. Where nobody is injured or injuries are minor, it may be possible to resolve all claims for medical care and property damage directly with the drivers' car insurance companies. The greater the damage or injury that results from a car accident, the more likely it is that a lawsuit will follow.
Causes of Car Accidents
There are a wide variety of possible causes for automobile accidents, including:
Driver Error - The most common cause of car accidents is driver error. Common errors which contribute to accidents include failure to yield the right of way, following too closely, driving at excessive speeds, unsafe passing, and disregard of traffic control devices.
Distractions - When the driver's attention becomes diverted from the road, the chances of an accident increase. Distractions may occur from outside of the car, such as when something at the side of the road draws a driver's attention. Distractions also occur inside cars, such as where the driver attempts to read or put on makeup while driving, change CD's in the CD player, dials a cellular phone, or attempts to parent an upset or unruly child.
Intoxication - Motorists whose ability to drive is impaired as a result of the consumption of alcohol or drugs are more likely to cause car accidents.
Bad Weather - Sometimes, bad weather conditions will contribute to an accident by interfering with visibility, diminishing traction on the road surface, or otherwise making it more difficult to drive a car. A driver should take the effects of the weather, such as strong cross-winds or slippery roads, into consideration when driving. Sometimes the weather will cause an unexpected hazard, such as black ice or flash flooding, which may not be detected by a driver until it is too late to avoid the hazard.
Road Design - A poorly designed roadway, intersection, or means of controlling traffic can at times cause or contribute to an accident. Poorly placed and poorly designed road signs or barriers can cause unnecessary injury when vehicles collide with them. At times, such defects will result in liability by the governmental agency responsible for the design and maintenance of the roadway, although governmental immunity may apply.
Road Conditions - The conditions of a roadway can be bad for a number of reasons, including weather, poor design or maintenance, or the presence of objects or debris on the roadway. Such factors can cause or contribute to accidents.
Vehicle Defects - At times an accident will result from a defect with a driver's vehicle, such as a tire blowout, brake failure, or other mechanical failure. Sometimes the injuries suffered in an accident will be made worse by a design or manufacturing defect with a vehicle, such as a design defect which makes an SUV more susceptible to rolling over in an accident or a gas tank more likely to ignite in a collision, or a manufacturing defect which causes a seatbelt to fail or an airbag to deploy improperly.
Most automobile accident litigation involves two vehicles, with a driver or passenger from the first vehicle claiming that the driver of the second vehicle caused the accident through negligent driving. Sometimes the litigation will involve the driver and passenger of a single vehicle, with the passenger claiming injury as a result of the driver's negligence. At times, litigation will be against a governmental agency which is alleged to have failed to properly design or maintain a roadway or intersection. Car accident litigation may also include a product liability claim against the manufacturer of a vehicle or part of a vehicle, alleging a design or manufacturing defect which contributed to the accident. A claim might also arise against a mechanic or service center whose work left a vehicle in a hazardous condition.
Special Issues
Special issues can arise in automobile litigation which make it more difficult to litigate a car accident claim, which make additional parties potentially liable for injuries, or which must be considered during the course of litigating a case. Special issues arising from the accident itself include:
Hit-and-Run Accidents: Where the driver who causes an accident fails to stop at the accident scene, it may be difficult for the victim of the accident to later identify the at-fault driver so as to bring a lawsuit.
Car-Pedestrian Accidents: Where a motor vehicle collides with a pedestrian, the pedestrian will often suffer catastrophic injury. Pedestrians often have difficulty making claims against drivers, with accidents frequently attributed to the conduct of the pedestrian.
Car-Motorcycle Accidents: Motorcycle drivers are susceptible to serious injury, even in collisions which would be relatively minor had they occurred between cars. Some suggest that motorcyclists suffer from a predisposition by juries to blame them for causing an accident, even where the driver of a car was clearly negligent.
Car-Bicycle Accidents: Bicyclists are vulnerable to serious injury when hit by cars, and are aslo susceptible to having drivers open car doors in front of them - a hazard which can cause them to be caterpaulted over the car door in a collision. Drivers often report that they did not see the bicyclist until after the collision, or that they misjudged the bicyclist's speed. Some bicyclists engage in very hazardous actions, such as ignoring traffic signals or riding on the wrong side of the road, making an accident much more likely. The most severe and lasting injuries to bicyclists tend to be head injuries, so helmet use is encouraged.
Bus Accidents: Bus accidents can be quite serious, given the size and mass of a typical bus, and the fact that passengers are usually unrestrained. Special issues can arise in accidents involving school buses, and in the context of loading and unloading passengers.
Semi Truck / Tractor-Trailer Accidents: The drivers of "big rigs" are subject to state and federal regulation, governing how many hours a day they can drive, how much sleep they are to get each night, and the condition and maintenance of their trucks. Drivers typically get paid by the mile driven, and thus have a strong incentive to ignore rules which limit their driving time. Obviously, when a semi truck causes an accident, the consequences to any smaller vehicle and its passengers can be devastating.
After-Market Vehicle Modifications: Where a vehicle has after-market modifications, such as being raised or lowered, having powerful or tinted headlights or foglights intalled, or window tinting, those modifications may affect both the safety of the vehicle for its occupants and the hazard posed by the vehicle to other drivers.
Accidents Caused by Road Debris: Where road debris causes an accident, whether in the form of objects or parts which have fallen off of vehicles, or debris that is kicked up from the roadway and collides with another vehicle, it can often be difficult to determine who was at fault for the presence of the debris on the road. States may also limit liability based upon how long the debris was on the road.
Special issues which may affect liability include:
Governmental Immunity: States may limit an injury victim's ability to sue when the driver of the vehicle that causes an accident is a governmental employee who is working at the time of the accident, or where the accident involves a government-owned vehicle.
Owner Liability: Where the driver of a vehicle has the owner's permission to operate that vehicle, many jurisdictions will hold the owner jointly liable for injuries caused by the driver's negligent operation of the vehicle.
Employer Liability: Where an employee is driving a vehicle "on the job", or as the lawyers might say "within the course and scope of employment", the employer may be jointly liable for injuries caused by the employee's negligent driving conduct.
Cellular Phone Usage: In a number of states, courts are increasingly receptive to the argument that where a driver who causes an accident is talking on a cellular phone, the call was work-related, and the driver's employer expects employees to handle work-related phone calls while driving, the employer may share liability for an accident caused by the employee.
Insurance Coverage
The insurance problems car accident victims have with insurance coverage typically fall into three categories:
Uninsured Driver - Where the at-fault driver is uninsured, it can be difficult for a person who is injured in a car accident to obtain appropriate compensation. Where the injured person is uninsured, states are increasingly modifying their laws to limit the uninsured accident victim's right to sue for pain and suffering damages. Many drivers carry "uninsured motorist coverage" through their own automobile insurance policies, so that they have a source of compensation in the event that the other driver fails to carry insurance or cannot be identified.
Underinsured Driver - Similar to the uninsured driver, some drivers carry inadequate insurance coverage, often at the minimum level required by state law. Many states have very low insurance requirements, which unfortunately means that some of the worst drivers on the road carry inadequate coverage due to the high cost of insurance which results from their bad driving records. Some carinsurance companies offer underinsured motorist coverage, so drivers can protect themselves in the event that they are in an accident caused by somebody who carries inadequate coverage.
Insurance Company Bad Faith - When people make claims with their insurance companies, they sometimes run into difficulty with the insurance company's refusal to negotiate the claim fairly. For example, an insurance company may refuse to offer fair value for a "totaled" car. In "no fault" states, where drivers insure for their own accident-related medical care, it can involve the improper denial of coverage or reimbursement by the insurance company.
Statute of Limitations
Anybody who is considering bringing a legal claim as a result of a car accident should note that their ability to pursue their claim will be limited by the statute of limitations of the jurisdiction where the accident occurred.
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