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The Legal Seagull: Law | Litigation | Self-Help | Legal History
22 minutes | Oct 23, 2018
What is a Demurrer (or Motion to Dismiss) for Failure to State a Claim?
One of the first obstacles a plaintiff (i.e., the party filing the lawsuit) encounters at the beginning of a lawsuit is a motion to dismiss (known in some states as a demurrer) for failure to state a claim (AKA failure to state a cause of action). In essence, this motion (or demurrer) challenged the LEGAL sufficiency of the complaint. In this episode, I will discuss*: The main grounds for a motion to dismiss (or demurrer) for failure to state a claim (AKA failure to state a cause of action) Common mistakes made by pro se / pro per parties (and even attorneys!) How certain defective complaints can be cured to defeat a motion to dismiss (or demurrer) Much more! For videos, articles, and podcasts regarding motions, discovery, trials, and everything civil litigation, check out TheLegalSeagull.com! * Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.
7 minutes | Oct 12, 2018
Affidavit vs. Declaration: What's the Difference Anyway?
The terms "affidavit" and "declaration" are often used interchangeably . . . but there are slight differences between the two. In this short episode, you will learn: - What is an affidavit? - What is a declaration? - How is an affidavit similar to a declaration? - What is the main difference between an affidavit and a declaration? - Why do some people prefer affidavits to declarations? - What obligations does an affiant or declarant have? Like this episode? Check out more video, podcasts, and articles at www.TheLegalSeagull.com and subscribe to the YouTube channel for more!
17 minutes | Jul 25, 2018
5 Things You Can Do to Protect Your Assets Before You're Sued
If someone sues you and obtains a judgment, he/she can pursue your personal assets to satisfy the judgment. This may include your savings, salary, personal property, jewelry, and even your house. Lawsuits can come out of nowhere. You get distracted and rear-end the car in front of you. Your rotting tree falls and demolishes someone's Jaguar. Your dog bites the pizza delivery girl, ending her lucrative side job as a hand model. [Fill in the blank with more unexpected and costly misadventures]. To maximize the effectiveness of asset protection, you really need to get things rolling BEFORE you're sued. After a lawsuit has been filed–and especially after a judgment is entered–many conveyances of money or property are considered invalid and can be reversed by a court of law. In this episode, I will explain five relatively simple steps you can take to protect your assets before you get sued: Form an asset protection trust Form a corporation or business entity Learn and understand your state's real estate protection laws (e.g., homestead exemptions, types of title, etc.) Increase retirement account contributions (employer-sponsored) Remember that laws regarding liability and judgment enforcement are largely based on state law and are therefore different in every state. The concepts and principles discussed in this episode are not state-specific and may not apply in your jurisdiction. This episode is not a substitute for the advice and services of an attorney licensed in your state. Note: This is a re-recording, re-mastering, and re-storing of an older episode by the same name. Like this podcast? Check out The Legal Seagull's website for more videos, blog posts, and podcast episodes! Subscribe to the Youtube channel! Like us on Facebook and follow us on Twitter and Instagram. * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at www.thelegalseagull.com/disclaimer
31 minutes | Jul 20, 2018
Essential Tips for Writing a Persuasive Motion
In this episode, I discuss how to write a clear and persuasive motion, using many of the lessons and techniques learned in almost a decade of litigation practice. Included are tips I learned from active and retired judges, and from excellent law and motion attorneys with whom I have been fortunate to work. Want to learn more on how to be an effective courtroom advocate and handle your litigation matter from A to Z? Check out Justice Navigator: The Ultimate Video Litigation Tutorial! Did you enjoy this podcast episode? Check out The Legal Seagull for litigation videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram! * Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
20 minutes | Jul 13, 2018
Should You Represent Yourself in Court?
Deciding whether to represent yourself in court is an important decision that should not be made lightly. That being said, with some exceptions, self-represented parties (“pro se” or “pro per” parties) CAN effectively represent themselves in court without an attorney. In this episode, I discuss the following factors to evaluate when making the critical decision of whether to represent yourself in court without an attorney: How complicated is your case? Where is your case venued (state vs. federal court)? How is your case worth? Can you devote the necessary time to your case? Can you handle the pressure (e.g., deadlines)? I also discuss a few types of cases where you should think twice (or three or four times) before deciding to represent yourself, and why you should NEVER represent yourself in a CRIMINAL case. Want to learn more? Check out Justice Navigator: The Ultimate Video Litigation Tutorial for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.
6 minutes | Jul 13, 2018
Can You Represent Yourself in Court?
Each year, millions of Americans find themselves involved in a lawsuit or a legal dispute with the significant possibility of an imminent lawsuit. With the rising cost of attorneys' fees, many people are left with the decision of whether to represent themselves in court without an attorney. These self-represented parties are referred to as “pro se” or “pro per” parties. In this episode, I discuss generally the question of whether you CAN legally represent yourself in court without an attorney. This is separate and apart from the equally (perhaps more) important question of whether you SHOULD represent yourself in court, which is the subject of the next video. Want to learn more? Check out Justice Navigator: The Ultimate Video Litigation Tutorial for video tutorials, sample litigation materials, and resources to help you represent yourself in court. Remember: Every jurisdiction has its own laws and court rules. Make sure you read, understand, and comply with the laws and court rules in your jurisdiction.
17 minutes | Jul 31, 2017
Revenge Porn Law: Rob Kardashian, Blac Chyna, and Nonconsensual Pornography
On July 5, 2017, Rob Kardashian, of the famous Kardashian TV family, uploaded multiple nude photographs of his ex-fiancee, rapper Blac Chyna, to his Twitter and Instagram accounts. Did Kardashian violate California's Penal Code section law banning the distribution of "revenge porn?" (nonconsensual pornography)? As in 38 states and the District of Columbia, California prohibits the intentional distribution of certain graphic photos and videos of another person without that person's consent. In this podcast, I will discuss whether Kardashian could be found guilty of this crime. Click here to read the full article.
8 minutes | Jun 29, 2017
Objection to Leading Question? Try Rephrasing
A leading question is one that suggests the answer sought by the examiner.* For example: "You met with Mr. Williams the evening of July 25th, correct?" (LEADING) vs. "When did you meet with Mr. Williams?" (NON-LEADING). Leading questions are generally not permitted on direct examination, but are allowed on cross-examination. Young attorneys new to litigation frequently find it difficult to overcome objections to leading questions. In this episode, we'll explore leading questions: What are they? Why are they problematic? What can you do if the judge sustains an objection to your question? Did you enjoy this podcast episode? Check out The Legal Seagull for litigation videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram! * Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.
55 minutes | Jun 6, 2017
Does Law School Prepare You To Be A Lawyer?
After three years of challenging legal education, incoming attorneys graduate from law school eager to take on the challenges of the profession and practice law. But does law school actually prepare attorneys for the rigorsof litigation practice? In this episode, I'm joined by my good friend and fellow attorney, Avi Ross. We reminisce about old times and recall our experiences entering the profession as new attorneys, the lessons we learned, and impart some tips (and warnings) for new attorneys entering the legal profession. Check out Justice Navigator: The Ultimate Video Litigation Tutorial for new attorneys and non-attorneys! Did you enjoy this podcast episode? Check out The Legal Seagull for videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram!
37 minutes | Apr 18, 2017
Tough Glove: The O.J. Simpson Fiasco
On June 12, 1994, the bodies of O.J. Simpson’s ex-wife, Nicole Brown, and her friend Ron Goldman, were found outside Brown’s condominium in Brentwood, California. In what is considered the "Trial of the Century," O.J. Simpson was ultimately acquitted of the murders. The most iconic moment of the trial was the fateful decision by Deputy District Attorney Christopher Darden to have Simpson try on two gloves found at the scene of the murder and outside Simpson's house. The glove debacle, which actually lasted only a couple of minutes, was the penultimate made-for-TV moment. It had all the right ingredients—theatrics, intrigue, drama, and suspense. As with the JFK assassination and 9/11, millions of people worldwide can recall exactly where they were when they watched the doomed glove demonstration. This episode will cover: Why the gloves were so important; What physical evidence was contained on the gloves; Why the gloves didn’t fit; Could the gloves have fit?; Why it was such a horrible idea to allow O.J. Simpson to try on the gloves; The origin of the phrase, "If it doesn't fit, you must acquit"; What impact the glove fiasco had on the trial; and Much more! NOTE: This episode contains graphic descriptions of violence and use of profanity. It is not recommended you listen to this episode in the presence of children or if you are offended by descriptions of violence. Did you enjoy this podcast episode? Check out The Legal Seagull for videos and blog posts. Follow us on YouTube, Facebook, Twitter, and Instagram!
32 minutes | Mar 8, 2017
Oh No! My Dog Bit Someone: Dog Bite Lawsuits
If your dog bit someone, do not panic. One of the first things you should do is educate yourself about your potential liability to the person injured. Each state has its own laws on the topic, but there are a few common patterns and defenses, which we will discuss in this article. Your best option is to hire an attorney or, if representing yourself, research the law in your state. Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways. Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that’s almost 1 dog for every 4 people. Although many bites result in minor injuries, dog bites can inflict serious injury. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these cases, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that “Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs.” Dog bites can be very expensive. The average claim rose to almost $40,000 in 2015. One-bite rule Although rare today, throughout history many states used the "one-bite" rule. Under this doctrine, an owner would not be legally liable injuries unless he or she had knowledge of the dog’s dangerous propensities, such as the dog biting someone in the past. In other words, the owner gets one “freebie” bite. In modern times, an owner could still be held liable if he or she had knowledge (or reason to believe) that the dog was dangerous. This may be due to the dog’s history, breed, or past behavior. While the one-bite rule is used in a small minority of states, two other legal theories are more common: negligence and strict liability. Negligence To prove liability for a dog bite injury under a theory of negligence, the victim must usually prove that the dog's owner/handler had a legal duty to use reasonable care to prevent injuries to others in public and those lawfully on his/her property. The general rule is that an owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability to people trespassing on the property. Depending on the state, the definition of “trespasser” differs tremendously, and may depend on such factors as whether: The property was gated, fenced, closed off, etc.; Warning signs (e.g., “NO TRESPASSING”) were posted; The person had a lawful basis to be on the property (e.g., mail carrier, delivery, police, etc.). The person was given implied consent to enter the property; and The age and maturity of the person injured. Next, the victim will have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state’s laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following: Failure to properly leash the dog; Failure to muzzle the dog; Failure to control the dog; and/or Violation of a statute or regulation (e.g., leash law). As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim’s injuries. Dog-bite statutes (AKA strict liability) Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, it is not typically a defense that you took all precautions to prevent the attack. In some states with strict liability, the victim must also prove that—prior to the attack—the owner knew the dog had a tendency to be dangerous (known as having "dangerous propensities"). This may include: Biting; Snapping; Snarling; Growling; and Fighting (humans or animals). Generally, it is not enough to show mere barking, chasing cars, or even jumping on people. Common Defenses in Dog Bite Cases The defenses available to you will depend on your state’s laws. That being said, here are a few common defenses to dog bite lawsuits (note that they may overlap): Statute of limitations Statutes of limitation limit the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed. If you are sued, check to see what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation. Contributory/comparative negligence Under this defense, the victim was negligent and caused (or contributed to) the victim’s own injuries. Here are some examples: Ignoring a warning sign (e.g., "VICIOUS DOG" or "BEWARE OF DOG"); Approaching the dog against your warnings; and Hurting the dog (e.g., stepped on its tail, tripped over it, or hit it with a door); Assumption of risk The victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include: Working in a profession where dog bites are likely and foreseeable (e.g., dog groomers, kennel workers, animal control, veterinarians); Approaching a dog known to be dangerous (e.g., growling, foaming at the mouth, history of aggression). Provocation The “victim” provoked the dog into attacking. This may include: Kicking, hitting, or punching; Chasing; Taunting, teasing, or yelling; and Straddling or riding. Under these circumstances, you may have a defense to assert, even in states with strict liability. Contact your homeowner’s insurance (or renter’s insurance) agent right away If you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report the claim. You may also need to submit a written declaration or affidavit. Many policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident did not occur on your property. Most policies require "prompt" notice of a potential claim, so do your best to notify your insurance company right away. Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs and documents presented. It will then determine whether to settle the claim or defend you in a lawsuit. If you did not disclose your dog on your application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself. Did you enjoy this article? Learn more by subscribing to The Legal Seagull’s podcast on iTunes, Stitcher, or Soundcloud. Follow us on Facebook, Twitter, and Instagram!
22 minutes | Feb 15, 2017
Protecting the President: The Secret Service
Few agencies are more shrouded in mystery than the United States Secret Service. It even has the word "secret" right in its name! In this episode, we trace the fascinating history of this federal agency–from its origins as an investigative agency charged with combating the prevalence of counterfeit currency to its present day responsibilities of protecting the President, Vice President, and several other categories of protected people. Did we mention that President Lincoln was assassinated on the very same day he signed legislation creating the Secret Service? Like this podcast? Learn more by visiting The Legal Seagull's website and following us on Facebook, Twitter, and Instagram!
46 minutes | Feb 8, 2017
Unhappiness and Depression Among Lawyers: An Epidemic
According to the Dave Nee Foundation, which promotes awareness of depression among lawyers, “lawyers are 3.6 times more likely to suffer from depression than non-lawyers.” In a February 2016 study published in the Journal of Addiction Medicine, it was noted that: “Levels of depression, anxiety, and stress among attorneys reported here are significant, with 28%, 19%, and 23% experiencing mild or higher levels of depression, anxiety, and stress, respectively.” Why are lawyers so unhappy? Why aren’t carpenters, plumbers, teachers, priests, or magicians the most unhappy profession? Is there something inherently different about the practice of law? Or is it the profession that attracts people prone to depression? To tackle these difficult questions, we interviewed Daniel Lukasik, an attorney who raises awareness of depression and helps lawyers obtain treatment. Like this podcast? Learn more by visiting The Legal Seagull's website and following us on Facebook, Twitter, and Instagram!
29 minutes | Jan 31, 2017
Net Neutrality: What is it, What is its Future, and Why Should You Care?
With the recent appointment of Ajit Pai to chair the Federal Communications Commission (FCC), the current regulatory regime of net neutrality is expected to be eliminated or significantly curtailed. The elimination of net neutrality may impact which websites and services you can access; the speed at which you can access them; and, ultimately, what it will COST you to access them. Like this podcast? Learn more by visiting The Legal Seagull's website and following us on Facebook, Twitter, and Instagram!
23 minutes | Jan 27, 2017
The Worst Supreme Court Decision Ever: Dred Scott v. Sandford (1857)
Dred Scott v. Sandford (1857) is widely considered to be the worst decision ever issued by the United States Supreme Court. Dred Scott, a slave, sued for his freedom on grounds that he had resided in the free state of Illinois and the territory of Wisconsin, thereby making him a free man. In a 7-2 decision authored by Chief Justice Roger B. Taney, the Supreme Court held that, as a descendant of slaves imported to the United States from Africa, Scott was not (and had never been) a United States citizen. Accordingly, he was considered property, and had no ground to bring a claim in federal court. The decision further struck down the Missouri Compromise Act of 1820, which had previously outlawed slavery in all future states north of the southern border of Missouri. At the stroke of a pen, the Supreme Court inflamed the already-explosive debate over slavery and precipitated the Civil War. Like this podcast? Learn more by visiting The Legal Seagull's website and following us on Facebook, Twitter, and Instagram!
12 minutes | Jan 24, 2017
Waivers and Releases of Liability: Those Things We Sign But Rarely Read
In one form or another, you're exposed to waivers of liability almost every day. Ever wonder what exactly you're giving up with these contracts? Spoiler alert: A LOT! Even The Legal Seagull has a waiver of liability in its disclaimer. Check it out! In this episode, we discuss: The prevalence of waivers and releases; The difference between waivers and releases; Where you're most likely to encounter these documents; What to look out for when reviewing them; How all this impacts you; and How courts treat waivers and releases of liability. Like this episode? Check out the video on The Legal Seagull's website and follow us on Facebook, Twitter, and Instagram!
28 minutes | Jan 20, 2017
Do I Need a Prenup? Marriage and Money
A prenuptial agreement (“prenup”) is a contract between two people, signed before marriage, detailing how assets and liabilities will be divided in the event of divorce or death. When this type of contract is signed during marriage, it is referred to as a postnuptial agreement. When it comes to uncomfortable conversations to initiate with your spouse-to-be, few discussions are more dreaded than that of whether to get a prenup. Will he think I’m greedy and obsessed with money? Will she think I don’t trust her? Will he doubt that I love him? Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways. Why people shy away from prenups. Some people worry that getting a prenup kills the romance by planning for a divorce before the wedding, at a time when the couple is madly in love and planning a future and family together. Others believe that a prenup is a self-fulfilling prophecy: Plan for a divorce and that is what you will get. For others, prenups do not necessarily present a moral or philosophical dilemma. They simply do not believe they will get divorced. This is not all that surprising. People tend to be optimistic—and love and passion sometimes cloud rational decision making. While most people know the frightening statistics—between 40-50% of marriages in the United States end in divorce—no one expects his or her marriage to fail. Many people never consider a prenup because they believe (mistakenly) that only the rich and famous need them. We’re both broke, why should we waste money we don’t have on something we won’t need? This is another common misconception. As discussed below, prenups can even be drafted to protect someone from his or her spouse’s debts, and to protect the spouse who is less financially stable. Marriage is like a business. You need to plan how to pay bills; feed yourselves; save money; manage debt; afford a home; and, eventually, start a family (not necessarily in that order). If you do not bring up the “M-word” (money) prior to marriage, it will come up after. I can personally guarantee that. Even if you ultimately decide not to get a prenup, strongly consider meeting with an attorney to discuss whether a prenup is in your best interests. Many attorneys offer free consultations for that purpose. Community property vs. equitable distribution states. There are two different systems for distribution of assets upon divorce—community property and equitable distribution. As of 2017, community property is the law in Arizona, California, Idaho, Nevada, New Mexico, Texas, Louisiana, Wisconsin, Washington, and Alaska (optional). This amounts to about 25% of the population of the United States. In community property states, income, assets, and debts obtained during marriage are split equally (50-50) between the spouses. In the remaining states (the majority) of the United States, the prevailing law is equitable distribution. Under this system, the judge has broad authority to distribute assets and liabilities in an equitable (fair) manner. Depending on the state, the judge may consider, among other things: The length of the marriage; Each party’s health, education, training, and age; and Whether a party is at “fault” for the marriage ending (e.g., adultery, abuse, etc.) SCENARIOS THAT APPLY TO ALMOST EVERYONE Protect money and property acquired prior to marriage. If you have assets you acquired prior to marriage, you probably want to protect them. This may include bank accounts, stocks, bonds, real estate, vehicles, personal items, jewelry, or a trust fund. This is especially important in community property states. Here is an example: Peter and Lois are about to get married. They live in a community property state. Peter has $25,000 he inherited from his mother and another $30,000 he saved while working at the local ice cream parlor. In theory, the assets acquired prior to marriage are Peter’s separate property and Lois would not be entitled to them upon divorce. The problem arises when assets get commingled, making it difficult to trace the source of the original assets. For example, Peter and Lois may: Fund joint bank accounts with assets they are bringing into the marriage; Mix Peter’s inheritance and savings with additional income earned during marriage (wages, bonuses, etc.); Use the funds for a down payment on a home; Invest money in stocks, bonds, and real estate; and Use funds to pay off bills and mortgage payments As the months and years go by, it becomes more and more difficult to determine what portion of the assets originated from Peter’s premarital assets. A well-drafted prenup may protect Peter from a contentious and expensive divorce and from losing a significant portion of his premarital assets. Protect income and assets obtained during Depending on the state, a prenup can protect income you earn during marriage and even limit the amount of alimony your ex-spouse can collect. Here is a simple (perhaps over-simplified) example to illustrate this point: Tarzan and Jane live in a community property state. Prior to marriage, Tarzan had $10,000 in savings, which he maintained in a separate account throughout the marriage. During their 20-year marriage, Tarzan refused to work, spending every day swinging on trees, eating bananas, and pounding his chest ferociously. With Jane working three jobs, the couple managed to save $200,000. When Tarzan filed for divorce, he kept his $10,000 premarital savings and half ($100,000) of the couple’s joint savings. I am NOT suggesting that Tarzan should not be entitled to anything because he did not work. Many families consist of one wage-earning spouse, with the other primarily responsible for raising children and managing the household. In some families, a spouse cannot work due to disability, illness, or incapacity. In this particular scenario, however, Tarzan does not appear to be contributing much of anything. A prenup could have eliminated Tarzan’s share of Jane’s wages, or at least limited it (e.g., 15% instead of 50%). Ensure your wishes are carried out if your will is invalidated. You might be reading this article and thinking, “When I die, my will already spells out who gets what.” Keep in mind that a will can be contested. If the will is successfully contested and invalidated by the court, your assets may be distributed in accordance with a prior will or your state’s intestate succession law. Here is an example: Martha and George are a childless married couple living in the State of Atlantis. Before they married, Martha had $50,000 that she won in the Atlantis lottery. Martha’s will states that upon death, the $50,000 should go to her sister Abigail. Martha is killed in a duel. George challenges the will on grounds that it did not comply with Atlantis law because it was not signed and there was only one witness instead of two. The judge sides with George and invalidates the will. With no valid will, Atlantis’ intestate succession law applies. George inherits everything, including the $50,000. Wills can be contested on numerous grounds, including but not limited to: Failure to comply with formalities; Undue influence; Lack of capacity; and Fraud If Martha and George had negotiated a prenup listing the $50,000 lottery prize as Martha’s separate property, George would not be entitled to that $50,000 upon her death. The moral of the story: Before participating in a duel, make sure your affairs are in order. Just kidding, do not participate in a duel! The real moral of the story: A prenup can serve as a “backup” if your will is found to be invalid. Reduce or eliminate uncertainty, extensive litigation, fighting, and bitterness in a divorce proceeding. When negotiating a prenup, soon-to-be spouses anticipate potential points of disagreement and determine in advance what will happen to their assets (and liabilities) if they divorce. When you are in love and planning a future together, discussing the division of your assets upon divorce can be a very uncomfortable conversation. But if you think that is hard, imagine that same conversation during a bitter divorce proceeding where each of you is represented by an aggressive attorney. Did I mention that each attorney bills at a rate of hundreds of dollars per hour? In law and love, nothing is certain; however, a well-drafted prenup can eliminate or reduce unpredictability, conflict, and financial loss. The few hundred—or thousand—dollars you save by not getting a prenup could cost you tens—or even hundreds of thousands—in attorney’s fees alone. COMMON SCENARIOS WHERE A PRENUP MAY MAKES SENSE You or your spouse have children from a prior relationship. Children from a prior relationship can introduce uncertainty and tension into your upcoming marriage. If I get divorced, will my spouse take money that I saved for my kids? If your soon-to-be spouse has children, he or she may have the same concerns. Whether you discuss it with them or not, your children may also be anxious. Will dad’s new wife get all of my future inheritance through divorce or death? What will happen to Grandpa’s priceless watch? A properly-drafted prenup can substantially reduce uncertainty, protect your children’s financial future, and allow everyone to breathe a sigh of relief. You own a business. A prenup can help protect the business you worked hard to create and grow. Even if you built a successful business prior to marriage, you could still face a claim by your ex-spouse that he or she is entitled to partial-ownership or some interest in the business. This is especially true in community property states if joint efforts were invested to support and build th
33 minutes | Jan 17, 2017
If You Die Tomorrow: Do You Need a Will?
If you died tomorrow without a will, who would inherit your assets? Who would be your children's guardian? What would happen to your remains and who would carry out that unenviable task? How would your debt and final expenses be paid? Do you really need a will, even if you're broke? What if you just want everything to go to your spouse? Our guest in this episode is trusts and estates attorney Adam Becker. Adam answers all these questions—and more—to help you plan for the inevitable. What is a will? NL: Let’s start with the basics. What is a will? AB: A will is a legal document that lets you decide who gets what, and at what time after you’ve passed away. NL: What other terms are there for a will? AB: Sometimes you’ll hear people refer to a living will. That is a different document that has more to do with healthcare decisions. You will also hear people refer to a trust, and there is a lot of confusion sometimes between what is a will, and what is a trust. The truth is that they’re related documents that usually work together. NL: You mentioned living wills. What is it called when you simply have a will that deals with your assets, and what will happen to them when you die? AB: We’d probably call that a testamentary will. That just means when you die there’s this piece of paper that tells people: “Here’s what I want done when I die. Who gets my assets, who is in charge of giving away those assets, who is going to look out for my children,” that’s a guardian named in a will. That’s what you typically would think of in a will that you might see in a movie or in a TV show. Who needs a will? . . . AB: Anybody who has assets needs a will, and certainly anyone who has children needs a will. NL: A lot of people . . . have said to me, “well I’m broke, I don’t have anything to give.” Or they’ll say, “I don’t care, I want my wife to get everything.” Would you agree that if you’re broke—or if you’re married—you don’t need a will? AB: No. I think nowadays there are online services that can do a good job of providing just a will very cheaply. Surprisingly, you can also write out your own will. I’ll speak for the State of California where I practice. If you take a piece of paper, and in your own handwriting write it, date it, and sign it, that is a legal document that would express who gets what when you pass away. Now, there’s drawbacks to doing things by yourself, and writing things out can often have mistakes, but I would say it’s better than nothing in some cases. Bank account beneficiaries NL: Specifically, for people who just want their spouse to inherit everything they have, do you think it’s important for those people to draft wills? AB: Well, there are ways around a will. For example, a bank account. I can name my spouse on my bank account, or as the beneficiary of the bank account. Then, when I die, she just shows up with my death certificate and claims the assets. So, we didn’t need a will in order to transfer that asset. I could put her on the deed to my house. I can get around having a will if I want to give everything to my spouse. But if I have other people that I want to make distributions to, or if I forget one of those assets, I forget to put her on one of those assets, then I will wish that I had a will, because that can transfer to her after I die. NL: What happens if there’s a conflict between the person you listed as your beneficiary, and your bank account, and what’s written in your will? I can’t remember who I listed for my bank accounts. I hope it’s you Olivia, but I probably need to go back and check. OL: You’re in big trouble if it’s not! AB: That’s a more complicated question, but I tell people to look out for this all the time. We draft a will, then the next step is to make sure that all our beneficiary designations line up with what we’ve said in the will. Because if there is a difference [and] that company that has the beneficiary designation on file, they are going to get the death certificate when you die, and they are going to say, “Sorry Neer, it says here that your mother is supposed to get this asset. Either go to court and tell us otherwise, or we’re paying this to your mother.” Preparing a will . . . AB: Like I mentioned earlier, there are online services that would help you to prepare a will. Usually they have a series of questions that you answer, and it fills out a will for you, so that would be one way. There are good wills that you can get online. [In California and some other states], you can also write a will yourself in your own handwriting, or you can go to an attorney, and have an attorney assist you through the process of preparing a will, or an estate plan. NL: When should you consider getting an attorney, versus . . . going to one of these online services, or getting a “fill-in-the-blank” printed form? AB: If you have children, I would certainly want to run my will by an attorney to make sure it was done correctly; to make sure that they are going to be taken care of by the people that you use; and, that the assets are going to get to them in the way that you want. If you have substantial assets, and by that I think I would say anything over $150,000, I’d want an attorney to review it. But I know a lot of attorneys who will just prepare a will for a very reasonable price, not much different from what you could pay for it online. The importance of wills for blended families NL: Let’s talk a bit about blended families where you have children that are the children of both people in the relationship, and then maybe they have children from prior marriages, or prior relationships . . . I want to bring up a hypothetical to illustrate, and flesh out these issues . . . Bob doesn’t have a will. Bob is married to Heather. They have two children together, and Bob has two children from a prior marriage. Bob would like everything to go to his wife, and he figures that’s what will happen. If Bob gets run over and killed by an ice cream truck tomorrow, what happens to his assets without a will? AB: So, Bob is married, but he’s got two children from a different marriage, and two children with Heather. If he dies tomorrow and he’s living in California, which is where I practice, everything would not go to his wife, Heather. Some people would be surprised to learn that. No will is there, so he can’t say who gets what. California law says that one-third of his assets would go to his wife, and two-thirds would go to his other children. NL: That’s clearly not what he intended for here . . . Assuming he had drafted a will, how could this have prevented the problem? AB: With a will, he could choose who gets what in any amount that he wants. Now, there’s some complications with community property and separate property. But just keeping things very simple, in a will, Bob gets to say “This is who I want to have my assets—and here’s the way in which I want them to get them.” Concerns involving minor children and young adults NL: Does the age of the children make a difference as far as planning whether or not you should get a will, and what the will should provide? AB: It certainly does. If you have minor children, they can’t receive the assets until they’re 18 years old. Someone can pay for them, and provide for their needs, but they can’t get the assets until they’re 18 . . . I have a friend I was speaking with, and he told me this story of a client of his who came to him and said, “My son is the beneficiary of a wrongful death lawsuit. His mother had passed away when he was very young because she had been hit by a driver, a city employee who was drunk.” They settled the lawsuit, and now he was going to inherit from the city a couple million dollars. He said, “My son is 17 and a half, and I don’t want him getting all this money, what can we do?” Well, sadly, there’s nothing you can do. The child is going to get that money, because the contract is between the city and the child. But my friend said, “I met with [the father and child] in the hopes of convincing the child to put some of these assets into a trust, or some other vehicle where the money wouldn’t be spent. Because who wants their 18-year-old to receive a couple million dollars? So he said, “I met with him, and we convinced him the right thing to do was to put this money up in a trust until he’s at least age 25. But his education would be paid for, his health would be paid for, if he needed money for groceries and things like that, that would be available. But he wouldn’t touch the money until he’s at least 25.” At the end of their meeting [the son] said, “Okay dad, that sounds like a good idea, except I want to keep enough money to buy a condo in Vegas and a Ferrari.” That illustrates to our clients why receiving a lot of money at a young age is usually not a good idea for children. NL: In effect, what you’re saying is that sometimes you want to protect your kids from themselves? AB: Correct. I always talk about two types of creditors with clients. One, up to a certain age, you want to protect people from themselves—they are their own worst creditor. Then, generally after a certain point, we’re worried about other outside creditors, and there’s ways we can help protect against those. But most people agree that until some age, 25, 30, 35, children are going to need guidance in how their money is spent, and you can set that up with the use of estate planning documents. . . . Making sure your wishes are carried out NL: Let’s say that: Bob’s son, Bobby Jr. . . from a prior relationship . . . [and Heather] have an on-and-off-again relationship—a very tense relationship—because Bobby Jr. and Heather just don’t get along. Bob really wants to make sure that Bobby Jr. is taken care of. What can he do as far as planning, crafting a will that will protect Bobby Jr., and make s
56 minutes | Jan 12, 2017
Defenses to DUI / DWI Cases: Drunk Driving, Drugs, and the Law
Driving under the influence of alcohol or drugs (DUI) is illegal in all 50 states. Some states refer to this as driving while impaired or driving while intoxicated (DWI). I interviewed Deputy Public Defender Omid Haghighat about the ins and outs of a DUI / DWI case, including potential defenses. Although we covered many common DUI / DWI issues (that may be applicable in your state), parts of this podcast pertain specifically to California law. Please read The Legal Seagull’s disclaimer before proceeding with this podcast.* Here is a transcript of the interview, slightly edited for reader comprehension and enjoyment: Types of DUI / DWI charges NL: Omid, welcome to the show. OH: Glad to be here. NL: What are the different types of DUIs? We all know about the 0.08% blood alcohol content level. A lot of people tend to think that’s pretty much the prime ingredient in most DUI convictions. What are the different types? OH: In any alcohol DUI charge basically you’re dealing with two charges. You’re dealing with one that says that you were driving and you had a blood alcohol level of over 0.08%. You have another charge that says you were driving and you were too impaired by either drugs, or alcohol, or a combination of both, to drive safely. It’s a little more complicated than that, but those are essentially the two types of charges. Let’s assume that we’re just talking about alcohol right now. Let’s say someone is driving, they get pulled over, they do a breath test ultimately, and they have a 0.14% blood alcohol level, according to the breath test machine. They can be charged with both driving with over a 0.08%, and being too impaired by alcohol to drive safely. If we’re talking about your blood alcohol level we’re talking about having tested it with either a breath test machine, or a blood test. So insofar as you’re using some scientific method to test your blood alcohol level, those are scientific. When it comes to being too impaired, or rather driving under the influence without the requirement of a blood alcohol level, there are a number of tests that officers use that are not testing your blood, or your breath, but in fact are testing your ability to do certain field sobriety tests, or otherwise. This is all regulated by the National Highway Traffic Safety Administration. Some of the tests that they have designed are said to be scientifically validated. So insofar as those tests are done correctly, and are scientifically validated, many prosecutors and officers will say that those are scientific tests as well. Getting pulled over: the initial stop NL: So we’re going to get into this whole area of the field sobriety tests, which is one of the things that most people know about, the whole “touch your nose,” “recite the alphabet backwards,” “try and walk in a straight line,” we’ll get to that. But it sounds like there might be some dispute over whether these tests are all valid, or that they successfully measure impairment. Let’s walk through the entire process. Let’s start with the time when someone is driving a car, they’ve left a bar, or their home, wherever it is that they’ve been having a good time, and they get pulled over. Now, there’s one of two ways this could happen. One is that they get pulled over the way everyone is probably used to getting pulled over, and then there’s the DUI stop. So why don’t we start with that. Take us through it. What happens at that point? OH: Well I just want to add that sometimes it’s not that they’re pulled over, but sometimes they get into a car accident. Then, when the police officers arrive and do a little investigation they start to realize that maybe one of the individuals in the car was under the influence. So that’s another way that essentially someone can have an officer initiate a DUI investigation. NL: Let’s start first with the whole DUI stop. The type that many of us in L.A. are used to, where you’re driving and all of a sudden you see a sign that there’s a sobriety checkpoint. What are your rights essentially when you see a sobriety checkpoint ahead? Is it illegal to turn your vehicle around to try to avoid it? I’m not suggesting that anyone should do that, but only to see what are the rights that are available to you as of the time that happens. OH: Well as far as I know, a DUI checkpoint isn’t like a black hole. If you come within the vicinity you aren’t required to be sucked into its oblivion. If you do turn around, however, an officer can see that, and oftentimes they do have officers in the outskirts of those checkpoints looking for people who are turning around. If the officers do see you turning around, that can raise their suspicions, and they can attempt to pursue you, and see if you commit a Vehicle Code violation, and then pull you over and initiate a DUI investigation. Otherwise, if you drive into the DUI stop—you’re there—and you have to comply with the officer’s requirements. Suspicion of alcohol / drugs: Police officer initiates DUI / DWI investigation NL: Now once you’re either pulled over, or you come to a DUI checkpoint, or it’s an accident, there comes a point when the police officer suspects you’ve been drinking, or at least claims to have suspected that you were drinking. What types of questions are they allowed to ask at that point in the investigation? OH: Well an officer can ask you anything. This is assuming that you’ve come into a legal checkpoint, or if you’ve legally been pulled over. An officer can ask you anything. The kind of questions they’ll ask is: “Where are you coming from?” “Have you had anything to drink tonight?” OH: The “Where are you coming from” is a question meant to see if you’re coming from a bar, and that will make them suspicious. But essentially they’ll ask these questions of anyone if they’re slightly suspicious of a DUI, but they don’t really begin to trigger their DUI investigation, I think, until they see what I consider the Holy Trinity of objective symptoms of drinking. NL: What’s the Holy Trinity? OH: I call it the Holy Trinity, they’ll put this in the report: They either smelled an alcoholic beverage on your breath; They’ll notice that you had bloodshot, red, watery eyes; or That you had slurred speech in responding to any of their questions. NL: I have read, without exaggerating, about 5,000 to 10,000 police reports in my career thus far. I strongly believe that there must be some bank that they draw these from, or that they’re copy-pasted, because I cannot tell you how many times I’ve seen this described the exact same way. “I detected a strong odor of alcohol emanating from his person.” Do you have any idea how this happens, that all these police officers tend to describe this in the exact same way? OH: I have some opinions. I’ve seen this happen, and I think there are two reasons for it. You’re never going to see a police report without these three things, because no officer is going to do a DUI investigation over someone that doesn’t seem like they’ve been drinking alcohol, so you’ll never see that police report. But on the other token, officers need to justify the DUI investigation, otherwise the results of their DUI investigation can be suppressed in what is called a suppression motion. That’s a Fourth Amendment violation motion. Because they can be said to have no reasons to prolong what should have been a routine traffic stop, and initiate a DUI investigation. So it depends on how cynical you are, really. Reasonable suspicion to pull you over… Probable cause to arrest you NL: This gets us to one of the main points here. So a police officer needs probable cause, is it, or reasonable suspicion of alcoholic impairment before they resume with any type of investigation, or asking you to submit to testing? OH: If a police officer pulls you over, all he needs is some reasonable suspicion to pull you over, that you committed some Vehicle Code violation, or that you might be under the influence. Let’s just talk about that. What does it take to be pulled over? Some people get pulled over for very obvious “under the influence” reasons. They are straddling lanes, maybe they’re in between two lanes. Maybe they’re swerving within their own lane. Maybe they’re drifting into another lane. Some of them are speeding, or maybe some of them are just driving erratically. People can be stopped for other reasons. I’ve had many DUI cases where someone was stopped because they had no seatbelt, they had an expired registration, their tail light was out. I even had an individual pulled over because his trailer hitch covered a tiny portion of his license plate number. So once they get pulled over all that’s required is reasonable suspicion. If the officer approaches the vehicle, and he smells the alcoholic breath, sees red, watery eyes, and he hears slurred speech, that can be enough for him to have further reasonable suspicion that you may be under the influence, and he can initiate a DUI investigation. They have that right. Now they don’t necessarily need probable cause until they arrest you. You’re not technically arrested, according to the police, until the end of a DUI investigation. So while they do need probable cause to arrest you, and take you to the station, the entire process, including the field sobriety test, the questions that they ask you, and even the preliminary alcohol screening breath test that they give you on the field, that’s all part of them establishing whether or not they have probable cause to arrest you, and take you to the station. Exercising the Fifth Amendment right to remain silent vs. talking to the police NL: One of our past episodes of The Legal Seagull, Episode 2, You Have the Right to Remain Silent, was about Fifth Amendment rights, the right to avoid self incrimination by not speaking to the police under many circumstance
36 minutes | Jan 3, 2017
OBJECTION! A Guide to Courtroom Objections
In large part due to Hollywood's sensational portrayal of courtroom dramas, most people have a very distorted understanding of how courtroom objections work. In this episode, we go over the most common objections, using actors to play the different court roles (e.g. attorney, witness, judge, etc.). Are you a new attorney or non-attorney seeking to represent yourself in court? Check out Justice Navigator! Like this podcast? Check out The Legal Seagull website for more videos, blog posts, and podcast episodes! Like us on Facebook and follow us on Twitter and Instagram. * This it not legal advice. All episodes of The Legal Seagull Podcast are subject to The Legal Seagull's disclaimer, located at http://www.thelegalseagull.com/disclaimer
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