Is an Exceptional Attorney Essential?

Is there a distinction between essential and exceptional? How essential is it to choose the superb things we do and seek an outstanding result? Is an exceptional attorney essential? Perhaps, many individuals might have been content in utilizing a physician, dentist, accountant, and/or an attorney as long as they were not inferior.

However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

I believe the majority of individuals want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the benchmark or measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or abandoned the job, not actually completing the project.

In the practice of law, it can make a huge difference if the attorney focuses on a comprehensive approach, paying attention to each of the legally significant facts, doing more than being hurried to get the work done, even with far less insight and strategic steps are planned and/or utilized. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you first evaluate the advantages of requesting a detailed analysis, thorough scope of work to be performed involving, among other things, indispensable steps, such as a risk assessment; an examination of pivotal facts and legal principles; focused research; essential strategizing; and utilizing credible forensic experts to evaluate and provide an opinion integrated into a cogent and compelling report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, fitness, judgment, lawfulness, honesty, moral turpitude, competency, etc.

In summary, what some individuals may have previously thought were unnecessary because they did not think they required selecting an attorney who is exceptional, now are considering the very important criteria and issues as constituting essential characteristics in choosing the best lawyer (and the things they do).

Is An Exceptional Lawyer Essential?

Do you consider an “exceptional” lawyer to be essential? Will you truly be content employing a mediocre attorney?

There may have been a point when one distinguished between exceptional and essential. In the past, many individuals may have been content in utilizing a physician, dentist, accountant, an attorney and/or any professional, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose to utilize the services of an exceptional or superior individual. In this regard, therefore, the significant keyword and the number one criterion in selecting the people we employ or retain to perform services (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the apparent cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, competence is the same criteria because it can be critical. The website Avvo provides a profile on all of the attorneys in the United States. This website provides one with the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, competent, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project. The cost to correct the deficient workmanship can exceed the original price of the contract or simply be overwhelming as to the nature and time to resolve.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a full risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into a proper and lengthy forensic report concerning such issues, including those directly or indirectly, related to the standard of care, competency, prudence, judgment, fitness, lawfulness, honesty, moral turpitude,  etc.

In summary, what some may have previously thought were unnecessary principles because they did not think they required selecting an attorney who is exceptional, now are considering the above issues as extremely important fundamentals and, therefore, essential characteristics in choosing the right lawyer to provide advice and representation (and most if not all of the things they do).

Unanimous Jury Verdict is Required in Serious Crimes

Today, in the case of RAMOS vs LOUISIANA, April 20, 2020 (No. 18-5924), the U.S. Supreme Court ruled a unanimous jury verdict  is required in cases involving serious crimes. It held the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury trial, also requires the verdict in serious crimes to be unanimous. Since 1968, the 6th Amendment has been applied against states under the 14th Amendment of the Constitution. Duncan v. Louisiana, 391 U.S. 145 (1968).

Up to this point, a single juror’s vote to acquit a defendant was enough to prevent a conviction in 48 States and the federal courts. The state of Oregon now remains the only state that permits a non unanimous verdict in the case of a serious offense; this distinction exists because the right to a jury trial is inapplicable to “petty offenses.

The Court addressed the historical significance by declaring: “The requirement of juror unanimity emerged in 14th-century England and was soon accepted as a vital right  protected by the common law.” It further reasoned: ” So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”

The result of the Court’s decision is that defendants and prisoners in Louisiana and Oregon, the only two states in recent years that have allowed such verdicts, will have their cases overturned claiming their verdicts are now void.

Coronavirus: School of Higher Learning

Currently, we have a Coronavirus Pandemic, but we can also turn a crisis into an opportunity; and, use some of our time as a SCHOOL OF HIGHER LEARNING.

If we have children, they can learn what they may never have in school. … for an hour a day, if not more. For adults, we can use some of our time to search for and reflect upon information as well on the following topics:

1) How we can focus on positive thoughts.

2) How to budget and economic principles of supply and demand.

3) Team work.

4) Employing a physical regimen.

5) Safety principles.

6) Health objectives.

7) Family values and religion.

8) Ethical and moral choices.

9) Time out, and finding inner peace.

10) Rules and laws.

11) Hearing and not just listening.

12) Our police and other First Responders.

13) Our military.

14) Our healthcare systems and their key members and participants.

15) Charity.

16) Positive differences between liberal and conservative values.

17) Searching through old photos.

18) Being a participant in a support group.

19) Reflecting on the meaning of love.

20) Having a deeper sense of compassion for family.

21) Engaging others through communications, offering comfort and companionship.

22) Discovering how to deal with life’s inconveniences.

23) Learning to achieve confidence and self control.

24) Democracy vs. socialism.

25) Needs vs. wants.

 

As much as children and adults know about these and other topics, we all need to be reminded of the beauty in life, the opportunities, the value of knowledge, and the choices we have and can make.

Most importantly, the goal is to find the SILVER LINING in the current “Coronavirus” Pandemic and world crisis…. spending special moments with our children, regardless of their age; our immediate and extended family; as well as past, current and new friends and associates. We can use this time to also be reminded to view Life truly as an adventure.

“Life is either a daring adventure or nothing at all!” – Helen Keller

 

Serious Ongoing Concerns re: Hacking on the Internet

Hackers are highly motivated to obtain and then sell &/or use the information they obtain from illegal means of accessing the online files and records we have for illegal gain.  As such, there are serious ongoing hacking concerns each of us must be vigilant accessing the internet.

In a most recent newspaper account, there was a report that over 10 million customers of MGM Resorts international had their records accessed because MGM was hacked; it said someone had gained unauthorized access to the company’s “cloud” server. [The “cloud” being something everyone speaks highly about since businesses maintain their data and information on the internet and not on their premises].

It has been reported that Yahoo, owned by Verizon, allegedly has had  the largest data breach in U.S. history. Others are Capitol One [July, 2019: 100 million said to be 30% of the population]; Marriott [ 2018 500 million];  Equifax one of the three largest credit bureaus[ 2017 146 million accounts (names, birth dates, social security numbers, addresses and some driver’s license numbers + 209,000 U.S. credit card numbers were exposed).  2018,(they found an additional 2.4 million U.S. consumers’ names and partial driver’s license information were stolen)]. FEMA [2019 the Federal Emergency Management Agency announced about 2.5 million disaster victims] and, just one other familiar business is Facebook [2019 540 million records; they admitted it has not properly secured passwords].

Also, reported were other familiar companies with various types of content hacked, such as INSTAGRAM, EVITE, SPRINT, STATE FARM, CHOICE HOTELS, MOVIE PASS; DOOR DASH, ADOBE, DISNEY Streaming Services, MACY’S E-Commerce site, T-MOBILE, and ZYNGA are some of those identified via information and  data protection services.

Clearly, security issues on the internet can be compromised. 

Everyone has to be proactive, because  the question that is being asked is “not” who is next, but WHEN will be the next hacking!

 

WHAT YOU SAY CAN REALLY HELP

Whether it is Valentine’s Day, an Anniversary, Holiday or Birthday, what you say can really help; it not only leaves a lasting impression, but it can bring a smile to the person with whom you are communicating, or because of the occasion you are celebrating. The same thing can be true when we SMILE, whether it is your encounter with another person at the gas station, grocery store, or waiting for an elevator, seeking a promotion in the job you have, or searching for new employment.

Often, we forget and/or do not realize how important it is to truly SMILE, as it is one of the most powerful communications we have.  Smiling is part of our demeanor, which speaks as loudly and potentially louder than the actual words we say. Perhaps it is because the first thing a person encounters is one’s facial appearance, and next their body position or movements, even with their arms and hands. These provide “indirect” expressions, which can set the stage for the feelings we have and those we want to generate [and, those we may not have intended as well]. Finally, what we say is meaningful because it is a “direct” statement and expression.

There is an old adage, “smile and the whole world smiles with you.” Our smile is a very compelling form of expression. It has also been said, a person may live longer by smiling (or course, when done sincerely); maybe it is because we create endorphins in our body that build positive chemical and physical reactions, enhancing our health.

Think about and underscore why you are grateful and appreciate the person and/or company with whom you come in contact. What you say can truly help.

When you are eager to interview for a new job, or seeking a promotion, what you say can also really help. Focus on what is great about the other person’s role and the company business or operations. Do the research first if you want to have a persuasive presentation or simply to underscore certain elements and priorities. Do not improvise. Of course, when talking to a loved one or a person with whom both of you feel comfortable, being spontaneous about your feelings can often be more compelling than rehearsing what to say.

One’s knowledge and enthusiasm are pivotal elements in so many parts of our life. For the job interview, research the business online, including their website. Consider their mission statement and core values. Familiarize yourself with the person with whom you are speaking, their employment position, perhaps how long they have been associated with the business, etc.  It may help what you say by asking appropriate questions; including the other person’s professional background, but not anything that can be considered part of their personal life.

On the other hand, it is sometimes helpful to create your own list of things “not to say.” Remember some words are like a “double-edge” sword, such as having intended a positive statement, but resulting in a negative or unfavorable reaction. Therefore, consider your words and the things not to say, and remember what you say can really help.

 

 

 

Check Your Auto Insurance Policy Coverage

If you have not recently checked your automobile insurance policy and coverage page, this is a good time of the year to review your benefits (and the limitations or exclusions). Notably, automobile insurance rates are set primarily by a driver’s safety record and their annual miles driven. The following is for INFORMATIONAL PURPOSES ONLY, and not intended as legal advice.

1. B.I.  this is Bodily Injury. In other words, your LIABILITY COVERAGE that pays a THIRD PARTY for his/her personal injuries caused by you. In discussing your policy with your insurer, you want to decide whether the BI limits are “enough” to cover the possible value of any claims that might be made against YOU, now as well as later, to protect your assets now and in the future, including but not limited to all the money you have, real estate,  stock, valuables, retirement funds, etc. Err on the side of caution because after a lawsuit is filed and a  judgment is ordered against you, it is good ten (10) years, and can be renewed every ten years thereafter or it will expire. CA Civil Procedure Code § 683.110 (2018).

2. P.D.  this pays a third party for property damage, including the lower of the cost of repairs to or replacement of their car, caused by you; remember, you need enough to cover the possible value of cars today [and the reasonable future during the period of coverage you are purchasing] that may be damaged as a result of an accident.

3 & 4. BOTH COMPREHENSION and COLLISION WITH LOW DEDUCTIBLE.  it is important to choose a practical dollar amount, and not just because it is more affordable. Each of these are often an optional coverage, but are recommended !!

“Collision” coverage pays YOU for your own car’s damage if caused by you; the third party has no insurance OR their insurer claims you are at fault (in full or part) and you want you car repaired or to collect damages to any part of your car at the outset.

“Comprehensive” covers theft, vandalism, glass and windshield damage, fire, accidents with animals, weather/acts of nature, etc. to YOUR vehicle.

5. UNINSURED MOTORIST (UM) AND UNDER-INSURED MOTORIST (UDM).  these pay YOU for your injuries if the at-fault third person has no insurance. In some states, these may be optional coverage, but they are highly recommended because there are far too many individuals who do not have insurance, yet cause harm and damages to others who are, and you who may not be, “not” at-fault.

6. UNINSURED P.D (UMPD).  this pays for YOUR car damaged if the at-fault third party has no insurance. In some states, this may be an optional coverage; however, it may not be necessary if you have collision insurance, which also pays for damage caused by another driver without coverage or insufficient coverage.

7. RENTAL. consider the daily amount YOU would need to pay to get a rental car if the at-fault third party has no insurance, or a rental vehicle is needed when an accident was a result of your mistake or negligence. This is often optional coverage but many individuals consider it worthwhile.

8. MEDICAL PAYMENTS. commonly referred to as “MedPay,” this is optional coverage; however, it has the benefit of paying for the care and treatment of passengers, and you, in your vehicle who are injured as a result of a vehicular accident, regardless of who is deemed at fault. In addition, it will pay for your family and your medical bills if struck by a vehicle, even if on foot or in another individual’s vehicle.

9. UMBRELLA POLICY. these policies cover all losses whether from your car, boat, motorcycle, in your home, etc. YOU should read your coverage and determine whether you have this because it is beneficial and some even have special additional coverage. These policies are issued in amounts starting with $1 million; $2 million; $5 million, and more. They are actually inexpensive when considering the amount of coverage one is purchasing. However, these policies require a minimum dollar amount of LIABILITY coverage in the underlying auto, home, and other policies, such as $500,000. This too is optional coverage, but highly recommended !!

 

Minimum CALIFORNIA COVERAGE, but for most individuals it is considered to be “totally” INADEQUATE [see information set forth above]:

  • $15,000 for injury/death to one person.
  • $30,000 for injury/death to more than one person.
  • $5,000 for damage to property

Price is not the only criterion when choosing (auto) insurance. You want the insurer to be a really good company with a reliable track record of settlements when claims are made so that payments are processed without excess delays.

Voidable Employer Agreements

A “voidable” agreement is one that may appear at the outset to be capable of being enforced, however, it can thereafter be attacked, invalidated, nullified, deemed not binding, void and unenforceable. In contrast, a “void” agreement from the beginning cannot be legally enforced.

On October 13, 2019, the governor signed Assembly Bill 51, to be effective January 1, 2020. Pursuant to this new legislation and thereafter, a California employer may NOT condition pre-employment, a promise of continued employment, &/or the receipt of any employment related benefit or additional compensation, on an employee giving up her/his right to pursue a legally enforceable claim, such as that which can be brought under the California employment discrimination law, and certain other employment laws in full or part, in any administrative or court proceeding. The new law says that any agreement that conditions employment on agreeing to arbitrate employment related disputes is unenforceable.

Hence, any existing contract or agreement that is modified or extended, on and after January 1, 2020, in which an employer requires an employee to waive the right to bring a claim in the court system, and not exclusively by arbitration, must be a matter of actual voluntary consent, and not by signing an agreement that is tantamount to coercion. It is likely that when an employee has a genuine choice, (s)he will not agree to bind themselves to arbitration in advance.

Those in support of past mandatory arbitration clauses in agreements claimed it saved the parties time and money and, therefore, was less expensive, more efficient, and necessary for employers to resolve disputes through arbitration and not in the (overburdened) court system.

On and after 1/1/20, a major issue that arises in the enforcement of an arbitration provision of a contract or agreement is whether both sides in a dispute agree to this method of resolving a dispute after the dispute arises, and the parties then have an opportunity to evaluate their individual rights and own best interests for resolving a claim or dispute. This is another way of requiring an arbitration agreement to be entered into knowingly and voluntarily, and not as a condition of employment. 

Notwithstanding the above, Assembly Bill 51 raises an issue whether its applicability is invalidated, &/or is otherwise unenforceable because it is in conflict with the Federal Arbitration Act [FAA]. In this regard, the U.S. Supreme Court has held the FAA bars a state from passing a law that rejects, limits or marginalizes arbitration agreements. Because a state law cannot conflict with federal law, therefore,  the applicability of California AB 51 will be subject to legislative amendment, and/or potential court action by one or more employee unions, a class action lawsuit, etc.

In summary, the conclusion one can reach from AB 51 is that arbitration agreements are “voidable,” but not necessarily or automatically void.

 

 

Independent Contractor or Employee?

On September 18, 2019, California Governor Newsom signed into law Assembly Bill 5 that establishes  the minimum requirements to be classified as an “Independent Contractor;” otherwise effective January 1, 2020, these individuals will be deemed employees with all of the rights and benefits typically afforded to workers. The background for the new law stems from the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018).

This new legal standard mandates a three-prong test [the criteria], as follows: (1) the worker is free from the control over how to perform his/her services; (2) the tasks, job or services are outside of the usual and customary activities of the business; and (3) the worker is engaged in an independent and established workplace. The burden of complying with these requirements is on the employer [business entity], and if not, the worker has to be classified as an employee. Essentially, a worker is presumed to be an employee unless the business entity can establish it has met the three criteria above. Moreover, the U.S. Court of Appeals in the case of Vazquez v. Jan-Pro Franchising International, Inc. held the Dynamex decision to be applicable retroactively; this places an additional burden on employers for any claims that are made by workers for services they performed prior to the April 30, 2018 decision in the Dynamex case.

There are exceptions for certain fields of endeavor; however, that is beyond the scope of this blog and, if additional information, guidance or legal advice is desired, one should consult with an “Employee Rights Attorney.”

FETAL TISSUE RESEARCH

Recently, the National Institutes of Health (NIH) issued restrictions on obtaining research grants using “fetal tissue” in order to qualify for federal funding.

It is important to note that “fetal research” is generally research that is performed using living fetuses either inside the uterus (in utero) or outside the uterus (ex utero). However, fetal research can also include embryos, which is the earliest stages after fertilization of an ovum by a sperm. In addition, the techniques can be invasive and noninvasive. Most importantly, the outcome has resulted in improved techniques of both in-vitro fertilization and embryo transfer, as well as major advances in the diagnosis and treatment of conditions that threaten the survival of fetuses and pregnant women.

On the other hand, “fetal tissue research” involves cells that are removed from dead fetuses to establish, among other purposes, cell lines or for use as transplantation material. These fetal tissue are obtained from an abortion, either elective, induced or spontaneous (natural). When fetal cells are cultured, they grow and multiply in laboratory dishes. These cells are used to test the efficacy of a drug and whether it causes damage to genetic material or to test the impact of infection. Because the cells continue to grow and multiply, a small number of cells can result in a huge quantity and thereby used as a source of more cell lines or for transplants. “Fetal tissue transplantation” has been more controversial because of legal, ethical and social issues, including the ownership of embryos.

In the 1950’s, fetal tissue research and the use of fetal cell lines produced a major medical breakthrough, the development of polio vaccine.  However, the earliest known use of fetal cells for transplantation occurred when a group of physicians transplanted fetal brain cells into a patient with Parkinson’s disease, which is a progressive disease in which cells degenerate and die. Since that time, many of the human experiments have been done outside the United States, seeking to determine whether transplanting fetal cells can reduce the effects of, if not ultimately cure, a variety of diseases, as well as neurological and blood disorders, including diabetes.

These newest restrictions will require all applications and renewals of grants to perform research that involves tissue collected from elective abortions must provide a detailed justification, documenting why no alternative methods could accomplish the same goals.  In addition,  there must be documentary evidence each woman who is involved first gave permission for her aborted fetus to be donated for biomedical research. Furthermore, the restrictions prohibit graduate and postdoctoral students who receive NIH training funds from “proposing fetal tissue research.”

This subject  remains highly controversial.

Opinions are polarized and naturally emotional, they continue to focus on highly charged religious, ethical, legal and social grounds. Those scientists in favor of fewer restrictions on fetal tissue research claim their studies with mice implanted with tissue from aborted fetuses have proven results, helping to better understand certain diseases as well as to develop therapies for cancer, HIV,  Parkinson’s disease, and the Zika virus.

Opponents argue stem cell research will take place on foreign soil if the ability of scientists to obtain NIH funding is limited. Others contend fetal tissue still needs to be harvested since the only way to make a comparative presentation requires a scientist seeking an NIH grant to document the lack of effective alternative research methods.

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