Family Law Firm

A family law firm specializes in legal matters involving families though this basic definition has been expanded to include domestic partnerships, too. Most of these matters involve families in some type of crisis. For example, married couples who are seeking a legal separation or a divorce need legal assistance to help them get through the difficult task of dividing up their marital property in a fair and equitable manner. Because of the intense emotional nature of a separation or a divorce, it may be difficult for the couple to make these types of decisions on their own. Additionally, the laws regarding a legal separation and divorce vary from state to state. A few states are community property states and the remaining ones are considered equitable distribution states. This distinction makes a difference when it comes to the division of marital property. A person may need to hire an attorney from a family law firm to ensure that the other person has not hidden assets.

The adverse affects of divorce are even greater when minor children are involved. If the parents can't agree on custody issues, a judge will need to decide what is in the best interests of the children. Each parent will want to engage the services of an attorney from a family law firm to present his or her case to the judge. However, it would be a conflict of interest for both the parents to have attorneys representing them that work for the same firm. Laws regarding custody arrangements and child support also vary from state to state. The formulas for determining child support are often established either in state statute or by departmental regulation. Spousal support, or alimony, may also be a contentious issue between the two individuals. The attorneys will need to provide the judge with all the income and asset information so that fair decisions can be made on all these important issues. If, in later years, circumstances change enough to warrant making changes to these decisions, the individual will once again want to seek the advice and perhaps even engage the services of an attorney from a family law firm. For example, an individual who is receiving alimony may end up getting a great job that pays significantly more than that person was earning at the time of the divorce. The person who is paying the alimony will probably want to return to court and have the alimony payments either lowered or stopped completely.

Attorneys from a family law firm may also find themselves involved in cases involving the emancipation of minors or the termination of parental rights. These are very sad and tragic cases that can extremely harmful to emotional, and oftentimes the physical, well-being of a child. Children who reach a certain age may choose to separate themselves from their parents. By emancipating themselves, they become financially responsible for themselves. Mature teens may find that living on their own, though it can be a financial struggle, is better than living in a difficult home situation. Parental rights are most often terminated when a judge determines that parents are unfit to raise or care for their children who have most likely already spent a great deal of time in foster care situations. The parents may have gone through parenting classes and other types of counseling, such as anger management workshops, to help them develop parenting skills. But if the home situation doesn't improve, a judge may eventually terminate the parental rights, thus freeing the child to be available for adoption by a new family. A parent may choose to fight the state department that is seeking parental termination and may need to hire an attorney from a family law firm to represent him or her at the court proceeding.

Not all family civil issues are filled with sadness and anger. A family law firm that specializes in adoptions brings the fulfillment of a dream to many families. This is a fun and exciting time for both the adopting parents and the child that is being adopted. Especially for older children, this can be a very special day. Some families continue to celebrate the day an adoption became legal, year after year, almost like a second birthday for the child. The blessing of adoption has spiritual significance. As the apostle Paul wrote to the Christians in Ephesus, God chose "us in him before the foundation of the world, that we should be holy and without blame before him in love: Having predestinated us unto the adoption of children by Jesus Christ to himself, according to the good pleasure of his will, To the praise of the glory of his grace, wherein he hath made us accepted in the beloved" (Ephesians 1:4b-6). There are so many children in need of good homes, both in this country and internationally. An attorney who assists with the adoption process can receive great satisfaction in bringing new families together.

Aspiring family law attorneys will want to take specialized courses in the types of cases that they will be handling on behalf of clients. Litigation, negotiation, and counseling skills will be required for this profession, as well as good time management and organizational skills. As a student, the individual may want to intern in a family law firm to be sure that this is the type of work she will find both energizing and fulfilling. Handling divorces and child custody/support issues can be emotionally draining, so the attorney will need to know how to separate her professional life from her private life. But families are going to go through crises, and some families are going to experience the joys of adoption. Each group may need the services of a family law attorney to help navigate the court system.

For more information: http://www.christianet.com/lawyer

Douglas Factors in an MSPB Appeal of Federal Employee Suspension or Dismissal

Federal employees (and some postal workers) have a right to challenge an Agency's decision to suspend them for more than 14 days, terminate their federal civil service, or demote them to a lower-paying position. Appeals of these actions are filed with the Merit Systems Protection Board (MSPB). The MSPB is a quasi judicial agency that holds hearings to evaluate the merits of the above types of discipline for Federal Employees and some USPS employees.

Whenever a Federal Employee files an MSPB appeal challenging the above types of actions (also known as "adverse action"), the "Douglas Factors" are very likely to come up. So what are the Douglas Factors?

Douglas Factors
In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct. They are called the Douglas Factors because they come from an MSPB case, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The factors are a tool that the Deciding Official, and maybe the MSPB Judge, can use to evaluate whether the disciplinary penalty for the Federal Employee is consistent with the misconduct charged and promotes the efficiency of the Federal Civil Service.

Here, in abridged format, are the 12 Douglas Factors:

The nature and seriousness of the offense, the relation of the offense to the employee’s duties, whether the offense was intentional or inadvertent, or whether or not the offense was committed for gain, with malice, or repeatedly.
The employee’s job level and type of employment – supervisory or fiduciary, contact with the public, prominence of the position;
The employee’s past disciplinary record
The employee’s work record: length of service, quality of performance, and dependability
the effect of the offense upon the employee’s ability to continuing performing at a satisfactory level, and the effect on the supervisor’s confidence in the employee after the misconduct;
The consistency of the penalty with those imposed upon other employees for the same or similar offenses.
Consistency of the penalty with the Agency’s Table of Penalties (if any)
The notoriety of the offense and the impact on the reputation of the Agency;
The clarity with which the employee was notice of the rules violated in committing the offense, including warnings about the conduct;
The potential for the employee’s rehabilitation
Mitigating circumstances surrounding the commission of the offense (unusual job tensions, personality conflicts, bad faith issues, mental impairment, harassment, etc)
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by this employee or others.
At The Hearing
At hearing, the MSPB Judge will want to hear the Agency Deciding Official articulate that and how he or she considered the relevant factors. Not all of the factors are relevant. If you take the Deciding Official's deposition, you can learn: a) what facts the Deciding Official considered for each of these Douglas Factors; b) what evidence or material he relied on for those facts; c) whether the Deciding Official considered the facts as a factor to mitigate the proposed penalty to something lesser, or d) whether the Deciding Official considered the facts as a factor to support the proposed penalty, or as aggravating to enhance the penalty beyond what was proposed. Without knowing these four things, it will be very difficult to argue that the Deciding Official did not properly consider the Douglas Factors.

At an MSPB hearing, contrary to some bad guidance on the internet and in the Federal Civil Workforce, the Judge will not always make his or her own independent consideration of the Douglas Factors. Generally speaking, so long as the Agency supports all of its specifications and charges in the proposal and decision letter, then the Administrative Judge can only consider whether the Deciding Official's consideration of the Douglas Factors was thorough and reasonable. If, however, the Administrative Judge does not sustain all of the Agency's charges, then he or she can independently weigh the Douglas Factors, and impose the maximum reasonable penalty under the circumstances.

Not all of the Douglas Factors apply in every case. However, while it is a rare case where all of the Douglas Factors apply, it is not uncommon for the Deciding Official to fail to consider one or more of the factors that may have affected his or her penalty choice.

http://www.employmentlawfirms.com/resources/employment/employment-termination/federal-employee-postal-appeal.htm

Florida Bad Faith Insurance Law - Great Article Illustrates Importance of Strong Law

The newspaper article reproduced below, written in 2003, does an excellent job of illustrating the importance of having strong bad faith insurance laws designed to persuade insurance companies to settle cases for fair value rather force every case to trial.

Florida's bad faith laws impose a duty on insurance companies to act in the best interests of their insureds (customers). If an insurance company can and should settle a case within its insured's policy limits, it should. If the insurance company refuses and a final judgment in excess of the limits is then entered against the insured, the company may be forced to pay the full judgment, not just the policy limits.

Whether or not the carrier must pay the full judgment depends on the manner in which it handled the claim. If, based on all available information, the carrier could have and should have settled the case within the policy limits, it may very well be required to pay the full judgment ... as it should for needlessly exposing its insured to a significant money judgment.

Without meaningful bad faith laws, insurance companies would never settle cases within policy limits. Knowing that the most they will ever have to pay is what they should pay anyway, i.e., the policy limits, they will force every case to trial. Their purpose in taking every case to trial will be to put plaintiffs' lawyers on notice that to avoid trial, every case must be settled for less than policy limits, even cases worth much more than policy limits.

Without strong bad faith insurance laws, the only parties that will be exposed to excess judgments will be the insureds, those who purchase the insurance coverage to avoid such a scenario.

Under Governor Rick Scott, the Florida Legislature will attempt to gut Florida's bad faith laws. From their point of view, insurance company profits are more important than protecting individuals.

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Bad faith in the law

By MARTIN DYCKMAN
Published December 21, 2003

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TALLAHASSEE - The malpractice debate last summer was an emotional roller coaster ending in bitter disappointment for Florida physicians whose leaders had convinced them that there would be no relief from high insurance premiums without a flat $250,000 ceiling on pain and suffering awards. That line came straight from the insurance lobby, which actually wanted something else a lot more, and got it.

To the insurers, the more important goal was to erode Florida's bad-faith law, which they blame for forcing them to settle cases they say they shouldn't. That premise is partly true; the law is intended to encourage settlements and avoid costly trials. But legislators heard only opinion, not evidence, as to whether there are really too many before agreeing to make the doctors the guinea pigs in a dangerous experiment.

To illustrate what's at stake, let's look at the outcome of an important trial at Clearwater earlier this month. It involved an automobile accident, not medical malpractice, but the principles are the same. My colleague William R. Levesque reported the story in the Dec. 5 St. Petersburg Times.

The plaintiff was Xiao-Cao Sha, a 41-year-old violinist who suffered severe shoulder and neck injuries in a collision that the defense conceded to be the fault of the driver who had run a red light and hit the car in which Sha was a passenger. Sha, who had left the Florida Orchestra to seek opportunities in major orchestras, can no longer play without severe pain and can practice only 15 minutes a day. The defense didn't question that either.

The other driver was unusually well insured - for $1.75-million, says Sha's lawyer, Tom Carey - and Carey offered to settle for that. He might have settled for even less, I gathered, but not for as little as the defendant's carrier, Liberty Mutual, was willing to pay.

According to Carey, "they never made it to $200,000."

So the case went to trial, where Liberty Mutual's lawyer contended that Sha should be awarded no more than $189,000 because there was no guarantee she could have fulfilled her dreams and might never have earned more than $30,000 a year, her former salary with the Florida Orchestra. She could still have earned that, the lawyer said, by teaching and performing solos.

Imagine for a moment that the victim had been a young doctor about to start practice as a neurosurgeon and an insurance company had proposed that he or she settle for pediatrics or some other specialty that earns much less. Any red-blooded jury would have socked that company at least as hard as Sha's did.

The jury took less than hour to award her $5-million, which included some $1,375,000 for lost future wages and $3,456,000 for pain and suffering. More than twice, all told, the limits of the policy that the defendant and her husband had paid for and Sha would have accepted.

But because of the bad-faith law, Liberty Mutual would have to pay it all. The policyholders' personal assets wouldn't be at risk because of the company having gambled on taking the case to trial.

In fact, there was a side bet - called a high-low agreement - which Carey and the defense counsel had reached without the jury knowing it. The terms don't permit Carey to say how much it was for, but he and his client were plainly pleased with it. The check was signed, the case is over.

"They never would have walked up to me proposing a high-low if it weren't for the law of bad faith. They got a little frightened," Carey said.

To do away with that law, he warned, is to tempt insurance companies to stiff every claim and say "So sue us." In that event, he said, "our lawsuits would quadruple literally overnight." Even the 84 new trial judges the Supreme Court says Florida needs wouldn't be nearly enough.

Defendants, meanwhile, would be on the hook for all the excess verdicts. Their only protection would be to buy larger insurance policies, if they could get them.

The Legislature left the bad-faith law alone (but for how long?) with respect to everything but medical malpractice cases. Under the law as it has been changed for doctors and hospitals, an insurance company has 210 days - seven months - after a suit is filed to accept or propose a settlement for policy limits. After so much time, plaintiffs' lawyers say, there's little chance of avoiding a trial. But so long as the offer is made, even on the 209th day, the insurance company is no longer on the hook for a larger verdict. The doctor is.

"They've shifted the gambling losses from the insurance industry to the doctors," says Richard Slawson, a Palm Beach Gardens attorney who specializes in bad-faith suits against insurance companies. His clients are doctors, motorists and other people whose insurance carriers gambled on going to trial, and lost. What the Legislature did to the doctors - with the eager encouragement of the Florida Medical Association - was, Slawson says, a "travesty."

I sought Liberty Mutual's side of the Sha story. It sent word that it doesn't comment on cases in litigation. Not even, apparently, when they're over.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Who Owns the Patent Rights? Employer or Inventor?

When an employee creates an invention and then patents it, who owns the patent, the employer or the employee? The general rule is that an individual owns the patent rights to the subject matter of which he or she is an inventor, even though the invention was conceived and/or reduced to practice during the course of his or her employment.

There are two exceptions to this general rule:

Where an employee has entered into an express contract which assigns the employee’s inventions to his or her employer
Where an employee is hired to invent something or to solve a particular problem
Differences in Types of Employment
However, simply because an individual is employed does not necessarily grant the employer ownership of the patent. If an employee's employment is "general", then ownership of the patent will belong to him/her. Each situation must be evaluated on its own set of facts.

Inventions By Company Officers
If an employee is an officer of the employer, then typically any inventions created by him or her will be owned by the employer. This is true, even if the employee creates the invention at home and on his/her own time. This is because an officer of a corporation has a fiduciary duty to assign all inventions created by him/her to the corporation.

Patents of General Service Employees
In contrast, if an employee is hired for general services and the employee invents something at home and on his own time, the invention is owned by the employee (regardless of any employment contract).

An Example Patent Case
In one illustrative case, a court found that the employer owned the patent where the following conditions were present:

The employee was tasked with the specific goal of solving the problem to which the invention’s subject matter related to
The employee spent 70% of his employment time on this project
The employee reduced the invention to practice using the employer’s resources, i.e., the employer’s tools and materials
The employee recognized the employer’s role in the development of the invention.
The fourth factor was deemed the “most important” one by the court.

Royalty Free, Non-Exclusive "Shop Rights"
Even in instances where the employer does not own the employee's patent, it may have a "shop right" to use the patent on a non-exclusive, non-assignable, royalty-free basis. A shop right entitles an employer to use, without charge, an invention patented by one of its employees without liability for infringement. In addition, the employer has a royalty-free, non-exclusive and non-assignable license to use the invention. The right is based on the employer’s presumed contribution to the invention through materials, time, and equipment.

Determining an Employers Shop Right to a Patent
In determining whether an employer has a shop right, the following factors have been considered:

The contractual nature of the relationship between employer and employee
Whether the employee consented to the employer’s use of the invention
Whether the employee induced, acquiesced in, or assisted the employer in the use of the invention
Therefore, in general, an employer will have shop rights in an invention in situations where the employer has financed an employee’s invention by providing wages, materials, tools and a work place. Other factors creating shop rights include an employee’s consent, acquiescence, inducement, or assistance to the employer in using the invention without demanding compensation or other notice of restriction.

Shop Rights to an Independent Contractors Patent
Shop rights are not necessarily limited to the employer-employee relationship. Where an independent contractor uses a company's resources, the company may also have shop rights to the invention.

Although the employer has a shop right, the employee retains full ownership of the patent and may issue licenses or even sell the patent to third-parties. However, even where the patent is sold to a third-party, the (former) employer retains its shop rights in the patent.

Patent rights vary greatly depending on the details of any one particular case. This article provides only general information regarding employee-employer patent rights. Always talk to an Intellectual Property Lawyer regarding any patent ownership issues.

Common Law Marriage

Common law marriage is a marriage that results from the actions of a couple, despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state's statutory marriage laws. This typically means that the couple has cohabitated for a period of time, usually a year or more, while having an agreement to be married and holding themselves out to the world as husband and wife.

Not every state permits common law marriages. For example, Michigan has elimated common law marriage by statute, and no period of cohabitation will result in marriage. At the same time, where a couple became married under the common law of a different state or country, their marriage is likely to be recognized even in a state such as Michigan. The "full faith and credit" rule of the U.S. Constitution ordinarily compels the recognition of a marriage made valid under the laws of a sister state.

As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. While in one state, a common law spouse might be entitled to a share of the marital estate and even to spousal support, in a state which does not recognize common law marriage that person may not be able to lay claim to jointly acquired assets titled in their partner's name and won't be eligible for alimony or "palimony". Similarly, if cohabitation does not result in common law marriage, one partner may not have any say in how the other partner is treated in the event of disability, may not even have a right to visit their partner in the hospital, and won't have any right to inherit unless expressly named in the partner's will or estate plan. You should also recall that if your common law spouse becomes disabled or dies, it will be up to you to prove the validity of your marriage if your spouse's family excludes you from medical decision-making or tries to exclude you from inheriting property. In short, it pays to know the laws in your state and that if you want your relationship with your partner to be officially recognized, to take the steps necessary to give legal effect to the relationship.

In states which recognize common law marriage, once the requirements have been met the marriage is typically treated in exactly the same manner as any other marriage. By the same token, a valid common law marriage must typically be ended through a formal divorce process. At present, approximately eleven states and the District of Columbia still recognize common law marriages.

States Permitting Common Law Marriage
Alabama
Colorado
District of Columbia
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah
States Permitting Certain Common Law Marriages
Georgia (if the elements were satisfied before January 1, 1997)
Idaho (if the elements were satisfied before January 1, 1996)
New Hampshire (for inheritance only)
Ohio (if the elements were satisfied before October 10, 1991)
Pennsylvania (if the elements were satisfied before January 1, 2005)
In states which don't allow common law marriage, an unusual situation can arise - a couple which underwent what they thought was a valid, state-authorized marriage can find that their marriage was invalid. For example, a divorce may not be properly finalized before a subsequent marriage occurs, rendering that later marriage invalid. Usually, once the problem has been remedied, states will provide a remedy to correct the invalid marriage. For example, some states permit a secret wedding ceremony to be performed by a judge, with a backdated order of marriage, such that the marriage becomes valid from its inception and the rights of the spouses are protected.

Veterans Term Life Insurance

Veterans term life insurance is a policy for service men and women who are discharged from the United States military. If a soldier was injured in World War II, they would be eligible for a term policy. If their commitment in the military has expired, they are able to purchase a veterans universal life insurance policy. If the soldier served in Operation Desert Storm and now is out of the military, he is eligible as well. Regardless of the branch of military, the extent of the military service, or whether or not the soldier served during a time of war, eligibility is granted.

Many different types of companies do not like to guarantee life policies to former soldiers or current service men and women. Many companies feel that the nature of the military job is too dangerous and the risk is too high to provide a policy to them. Often times if a service man or woman has been discharged due to extreme medical disabilities the veterans term life insurance company will not insure the soldier. However, there are programs for those in such situations so they can purchase and acquire veterans universal life insurance or acquire a different protection plan. These types of alternative programs are typically government sponsored.

In order to obtain insurance, any applicant will need to provide documentation that they were a member of the armed forces. Most veterans term life insurance programs do not require a physical to qualify. Various companies that accommodate former soldiers want to make purchasing a policy as easy as possible. Some veterans universal life insurance companies may not require the traditional requirements such as a high credit score, proof of income, minimum income, etc. Some companies have the attitude and mindset that American veterans risked their lives to protect America so they should provide services to them as a gesture of gratitude."Man goeth forth unto his work and to his labour until the evening" (Psalm 104:23). A good and noble company will also provide a good investment rate and combined retirement plan for the veteran.

Dependent children and spouses of former soldiers are eligible to purchase policies. Even widow or widowers of veterans can purchase veterans term life insurance or purchase veterans universal life insurance. Most policies can be purchased at a reduced rate. The only major stipulation to purchasing and obtaining this type of specific policy is that the soldier must have been honorably discharged from the United States military. It is suggested that all those eligible seek out life insurance to protect themselves and their family!

Common Causes of Car Accidents Lawyers

What is the Extent of the Problem of Car Accidents?
Over 40,000 Americans die in car crashes every year. According to the National Highway Traffic Safety Administration, someone is involved in an automobile accident every ten seconds. It is estimated that a person will die in a car crash every 12 minutes. Car accidents are the leading cause of death for Americans 35 years old and younger.

What is the Leading Cause of Car Accidents?
The majority of car accidents are caused by irresponsible driving behavior. Statistics also show that 98 % of car accidents involve a single distracted driver. Some common causes include:

Rubbernecking: Drivers slowing down their cars to watch what is going on
Cell phones: Drivers using their commute time to make phone calls
Driver fatigue
Passenger distractions
Looking at scenery
Adjusting the radio
Rubbernecking is the leading cause of accidents and causes many traffic delays. There is also a trend to enact laws eliminating or limiting the use of cell phones in the car. When determining whether a driver was negligent, courts may look at factors such as driving above or below the speed limit, failing to signal, ignoring weather or traffic conditions, disobeying traffic signs, or driving under the influence.

What are the Other Causes of Car Accidents?
There are other causes of car accidents, including:

Drunk driving: It is estimated that every 30 minutes, a person dies in an alcohol-related crash
Reckless drivers: Drivers who drive recklessly or unsafely cause accidents through their aggressive driving ¿ this may come as a result of improper or excessive lane changing, speeding, or improper passing on the road
Automobile defects: A car accident may occur because of a defect in a driver's car in such a situation, the car manufacturer or supplier may be held liable
Poorly maintained roads
Malfunctioning traffic signals
Other highway defects
Do I Need a Lawyer Experienced with Car Accidents?
If you have been in a car accident and believe that the liability of the other driver, a car manufacturer or supplier, or even the government can be established, you may wish to consult with an attorney. A lawyer would be able to help you with your claim or claims and decide which, if any, to pursue.