Mexican American Bar Association Recognizes Claudia Calderon

Claudia Calderon is one of  the paralegals here at The Law Office Of Ball And Yorke.

 Claudia was recognized for her hard work by M.A.B.A. (Mexican American Bar Association) this last Friday at their annual scholarship dinner. Claudia is working very hard to finish law school at the local Ventura College Of Law while continuing to work for our office full time. We are proud to have employees that give back to the community and aspire to great things.

Please join us in congratulating her!

The Importance Of Keeping Solid Documentation

It is important to make a strategy for keeping your case relevant documentation. Pictures, recordings, written statements, bills, police reports, emails and much more are all documentation that can be used and will very likely be asked for in many legal cases.

Say you were in a car accident, it may take many months before anything goes to court. Once it does with all that has happened from the accident until the court appearance it is often very difficult to keep track of it all without having a plan.

Here are some tips that will help you make sure you have the right documentation when you need it.

When In Doubt Keep It- If you are unsure of whether not to keep an item or not keep it. Especially if you haven't yet talked to a lawyer about your case strategy. It may be something useful that can be used. You want a professional to make those decisions.

Always Make Multiple Copies- Remember that your lawyer is going to need copies, you will need at least 2 copies (in case one gets lost) and your insurance company will need copies and that's just for the people on your side.

Make A Digital Copy- Scanning your documents onto the computer make it easy to organize them and keep them together. It also makes it convenient for creating copies, say at a law office by using a flash disk. Email is another great way to do this and is often quite secure. The great thing about emails is that they have time stamps demonstrating a time-line becomes very easy if you use emails.

Use Your Email For Responses- This is a great way to demonstrate what communication was taking place over time. If you were called and talked to by someone who is involved with the case you may want to make a habit of emailing them back what you felt was talked about it and asking for a confirming response, even if you were on the same page on the phone. Its funny, people have more of a habit of doing what they say when they write it down.

Have Them Write Down Your Goals- When working with attorneys, union reps, and insurance agents ask them to right down their goals and strategy for your situation so you can use that as a benchmark for performance later as well as make sure everyone is on the same page.

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Facebook As Court Evidence?

YES IT IS!
Lets face it with the advent of the internet the world is a much smaller place. People can be found in a blink online if you know what to look for. Facebook has made this info even more accessible. As a user of facebook I do believe it is important to use and create a community online because of the many benefits and opportunities it lends, but, you must also be aware of some of the possible problems associated with it.

With courtroom evidence it can be a particularly troubling web application. Below I have attached a link an article from USA Today a couple years back that illustrates the effect facebook can have on a court's decision.

In the article a young man in college caused an accident while drunk driving that caused a 20 yr old girl to be severely injured and hospitalized for over a week. 2 weeks after he was charged with drunk driving this young man attended a Halloween party dressed as  prisoner with an orange jump suit labeled jail bird. Not surprisingly these pictures were found and submitted to court to demonstrate that the defendant was not remorseful for his actions. Ultimately, this information was used as character evidence by the judge and the defendant was given longer sentencing.

    The important thing to remember is that facebook is for the world to see and once its posted that information is no longer yours its the world's and it can be used to bite you on the butt if you aren't careful. Please read this startling article on facebook in use at courts for character reference.

here is the link to the article:
http://www.usatoday.com/tech/webguide/internetlife/2008-07-19-facebook-trials_N.htm


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Defendants Wrongful Use Of Process

It is a tort to use the civil or criminal form of process to primarily seek a result other than that for which the form of process was intended. The conduct that encompasses the abuse of process is a defendant's wrongful use of the process for an ulterior purpose and some willful act in the use of the process to accomplish that ulterior purpose.

For example, if a defendant obtains a judgment against a plaintiff for a debt, and the plaintiff subsequently pays the debt, the defendant is liable for abuse of process if he takes out an execution on the judgment.

Abuse of process does not involve the wrongful bringing of a suit, which is the tort of malicious prosecution. Rather, it involves the improper use of the process after the suit has properly begun. Abuse of process also does not cover situations in which a defendant has an incidental motive of spite or an ulterior purpose to bringing the action if the action is brought primarily for the purpose for which the form of process was intended. Thus, a person who prosecutes an accused based on the accused's unlawful act is not abusing the process merely because he incidentally does not like the accused.

The usual case of abuse of process occurs with relation to extortion, whereby a person uses the process to put pressure upon another to compel him to pay a debt not related to the action.

The defendant will be liable to the plaintiff for any harm caused by the abuse of process.

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Negligence Per Se

Ordinarily, a jury determines whether a defendant was negligent in a personal injury action. However, in some cases, a court may determine that a defendant was "negligent per se." If a court determines that a defendant is guilty of negligence per se, then the defendant's negligence is conclusively established and the plaintiff is not required to offer further evidence of the defendant's negligence. Most negligence per se cases involve an unexcused violation of a law. For example, a plaintiff is involved in an automobile accident with a defendant. The plaintiff files a personal injury action against the defendant. It is undisputed that the defendant was driving at 85 miles per hour at the time of the accident. According to state law, a person may not drive in excess of 65 miles per hour. A judge may determine that the defendant is guilty of negligence per se because he was violating the speed limit law at the time of the accident. If so, the defendant's negligence will be conclusively established.

In order for the doctrine of negligence per se to apply:

(1) the law must have been designed to prevent the kind of harm for which the plaintiff seeks to recover; and

(2) the plaintiff must be within the class of persons for whose protection the law was adopted.

In the above example, the speed limit law was designed to prevent automobile accidents, and the plaintiff is seeking to recover for injuries sustained in an automobile accident. Therefore, the law at issue was designed to prevent the kind of harm for which the plaintiff seeks to recover.

If the law at issue has nothing to do with the plaintiff's injuries, then the doctrine of negligence per se will not apply. For example, the defendant was not violating the speed limit law at the time of the accident, but his car violated an environmental emission law. The defendant's violation of that law had nothing to do with the accident, so the doctrine of negligence per se will not apply.

In the first example above, in which the defendant was violating the speed limit law at the time of the accident, the speed limit law was adopted to protect drivers. The plaintiff was a driver at the time of the accident, so he is within the class of persons for whose protection the speed limit law was adopted.

If the defendant was violating the environmental emission law at the time of the accident, and the law was designed to protect the natural habitat of endangered condors, then the plaintiff is not within the class of persons for whose protection the law was adopted, and the doctrine of negligence per se will not apply.

A court may refuse to find a defendant negligent per se if the defendant had a valid excuse for violating the law. For example, if the defendant's brakes failed just before the accident and he was unable to slow down his car, then the court may refuse to find him negligent per se based upon his violation of the speed limit law.

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When Should You Sue?

Before you file a lawsuit, you need to decide a few things about your potential case.

Here are three fundamental questions you must ask yourself.

1. Do I have a good case?
2. Am I comfortable with the idea of a compromise settlement or going to mediation?
3. Assuming a lawsuit is my best or only option, can I collect if I win?

If you answer no to any of these questions it is probably not a good decision to sue.

Do I Have a Good Case?

To figure out whether you have a good case, it helps to know that lawyers break each type of lawsuit ("cause of action" in attorney-speak) into a short list of legally required elements. It follows that as long as you know what the elements are for your type of lawsuit, it's usually fairly easy to determine whether you have a good case. For example, a lawsuit against a contractor for doing substandard construction would be for breach of contract (because the contractor agreed either orally or in writing to do the job properly). The legal elements for this type of lawsuit are as follows:

Contract formation. You must show that you have a legally binding contract with the other party. If you have a written agreement, this element is especially easy to prove. Without a written contract, you will have to show that you had an enforceable oral (spoken) contract, or that an enforceable contract can be implied from the circumstances of your situation.

Performance. You must prove that you did what was required of you under the terms of the contract. Assuming you have made agreed-on payments and otherwise cooperated, you should have no problem with this element.

Breach. You must show that the party you plan to sue failed to meet his or her contractual obligations ("breach of contract" in legalese). This is usually the heart of the case -- you'll need to prove that the contractor failed to do agreed-on work or did work of unacceptably poor quality.

Damages. You must show that you suffered an economic loss as a result of the other party's breach of contract. Assuming the work must be redone or finished, this element should also be relatively straightforward to prove.

Is There an Alternative?

Even if you decide you have a good case, don't rush down to the courthouse to file a lawsuit. First, think about ways to settle your dispute out of court. You can talk directly with your opponent and try to negotiate a mutually beneficial compromise. Or you can hire a mediator -- a neutral third person who will help you and your opponent evaluate your goals and options in order to find a solution that works for everyone. Also, and especially if your contract provides for it, you may be able to submit your dispute to binding arbitration. This is a good faith action which could save public money by being settled out of court.

Can I Collect if I Win?

Your answer to the third question is incredibly important. There is no point in getting a court judgment against a deadbeat. While most reputable businesses and individuals will pay you what they owe, if they don't have it, they can't pay you. Even if your opponent tries to stiff you there is not much help that the court will offer you in claiming the money or property won in court.

Normally, if an individual is working or owns valuable property -- such as land or investments -- collection is not too difficult. You can instruct your local law enforcement agency (usually the sheriff, marshal or constable) to garnish that person's wages or attach his or her non-exempt property. For a successful business, especially one that receives cash directly from customers, you can authorize your local sheriff or marshal to collect your judgment right out of the cash register. And in many states, if you are suing a contractor or other business person with a state license, you can apply to have the license suspended until the judgment is paid.

Note: If you can't identify any collection source -- for example, if you're dealing with an unlicensed contractor of highly doubtful solvency -- think twice before suing. A judgment will be of no value to you if the business or individual is insolvent, goes bankrupt, or disappears.

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Why Everyone Should Have Uninsured Motorist Coverage (UIM)

Un-insured motorist coverage is perhaps one of the more obscure lines of insurance applications but it is often the most needed insurance. In fact this it is the policy they don't want you to pick out because it is the one that they have to payout on most and is some of the cheaper insurance policies you can buy.

Yes, here in California we use insurance to minimize our liability to others while we drive. With everyone required to be insured before they can drive, that should cover everyone, making it so you don't have to worry about the liability of a car accident right? Wrong, when in a car accident you are going to be facing bills. With these bills coming up you may find that California minimum required policy is $15,000 and that is nowhere near enough. If the crash wasn't your fault your insurance will do everything they can to pass on the liability to the other company, rather than take care of their client and then ask for the bills to be paid later. Sadly, this is how it works. and the insurance companies certainly give you the runaround prolonging payouts as much as they can which is what you can expect from them. There is a way to get your insurance on your team when you have been hit by someone else, and it is actually pretty cheap.

There is only one way to have this done and that is with UIM. UIM ( uninsured or underinsured coverage) is useful for two reasons, first the obvious one: if you are hit by someone who does not have auto insurance you will still be insured. The other reason is if they do not have enough insurance coverage. If you you are in a car accident and injured it is more than likely that your medical expenses will well pass the minimum requirements for CA insurance liability which is $15,000. To ensure that this does not occur all insurance companies are mandated to offer UnInsured Motorist insurance at a reduced rate even. How UIM works is on top of the existing insurances. So if you are hit by a person who has the minimum insurance policy of $15,000 and you are injured. That $15,000 is going to be a plink in the bucket but you can be saved by the UIM. Say you got a policy for 100,000, that will then take effect on top of the insurance policy of the person who collided with you so now you have 115,000 worth of coverage and that is quite a bit more realistic for the cost medical care and bills while you are laid up recovering. The other amazing part of this is that now your insurance has a vested interest in making sure the other insurance company pays so that they don't have to. Suddenly the insurance is actually starting to work for you and sooner because of their liability for payout. What a great product UIM is right?!

The thing is, these insurance companies present this option as an extra when this should be a mandatory fixture, especially if you plan on driving more than one person often. Insurance companies play down the importance of UIM because it is where they loose most of their money. You will often see a pop up screen asking if you want the extra coverage and having decline highlighted, the insurance companies do this because you are trained to dislike and close pop ups especially when asking for money. Ignore the temptation to close the page and look it over, purchasing UIM could be one of the best decisions you have ever made.

The Backgound: Law Office Of Ball And Yorke

Ball & Yorke

From 1989 through 1997, Ball & Yorke successfully represented the interests of large corporations, including the Vons Companies, Food4Less and Fedco, as well as multinational insurance interests State Farm, Hartford Mutual, CNA, Chubb Insurance and Allstate.

Changes in their philosophy, however, moved the firm to abandon their representation of these powerful interests. The partners found insurance defense work to be unfulfilling and impersonal. Having entered the field in the hopes of serving justice, Allen and Brian parted ways with its corporate clientele and turned their focus on the interests of injured individuals on a full time basis.

To this day, the firm continues to represent the interests of individuals whether they are plaintiffs or defendants.

Since 1998, Ball & Yorke has represented thousands of individuals and their families in a wide variety of civil matters, from personal injury to real estate. Allen and Brian have helped people hurt in car accidents, stood with the victims of insurance bad faith and fraud, represented employees wrongfully terminated, and assisted those afflicted with catastrophic personal injury matters. Ball & Yorke has handled complex business litigation on behalf of small business owners, successfully represented consumers from defects in faulty products, and has masterfully resolved complex real estate transactions.

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How To Find A Great Lawyer

A step by step guide on finding the right lawyer for you.

When it Counts, You Need a Professional

If your legal problem is complex or involves lots of money, you might not want to handle the entire matter without a lawyer. After all, lawyers do more than provide legal information. They offer strategic advice and apply sophisticated strategies and technical skills to legal problems. You will want to find a lawyer who's willing to help you educate yourself to the maximum extent possible and to take over as your formal legal counsel only if necessary.

How to Find the Right Lawyer

Locating a good lawyer who can help with your particular problem may not be easy, I would not suggest trusting someone just because they are on the back of a phonebook or on some pop up add. There's not enough information in these sources to help you make a valid judgment.

Personal Referrals

A better approach is to talk to people in your community who have experienced the same problem you face. Ask who their lawyers were and what they think of them. Talking to many people who had a similar legal issue is always a great first step, chances are you'll come away with several good leads. Just ask around and see who people you trust used. Many firms can deal with an array of legal issues, its about dealing with the right people, people you can trust and work with easily. But, don't make a decision about a lawyer solely on the basis of someone else's recommendation. Different people will have different responses to a lawyer's style and personality; don't make up your mind about hiring a lawyer until you've met the lawyer, discussed your case, and decided that you feel comfortable working with him or her.

Also, it may be hard to find lawyer through a personal referral with the expertise you need (for instance, if your friend had a great divorce lawyer, but you need incorporation advice, the referral may not do you much good).

Lawyer Referral Services

Lawyer referral services are required to be approved by the state bar association. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.

Consider a Specialist

Most lawyers specialize in certain areas, and even a so-called "general practitioner" may not know that much about the particular area of your concern. It can pay to work with a lawyer who already knows the field, such as employment discrimination, personal injury, real estate issues.

Interview the Prospective Lawyers

When you get the names of several good prospects, the next step is to talk to each personally. If you outline your needs in advance, many lawyers will be willing to meet to you for a half-hour or so at no charge so that you can size them up and make an informed decision.

Personality

Pay particular attention to the personal chemistry between you and your lawyer. No matter how experienced and well-recommended a lawyer is, if you feel uncomfortable with that person during your first meeting or two, you may never achieve an ideal lawyer-client relationship. Trust your instincts and seek a lawyer whose personality is compatible with your own. Look also for experience, personal rapport, and accessibility.

Communication and Promptness

Ask all prospective lawyers how you will be able to contact them and how long it will take them to return your communications. And don't assume that because the lawyer seems friendly and easy to talk to that it's okay to overlook this step.

Unfortunately, the complaint logs of all lawyer regulatory groups indicate that many lawyers are terrible communicators. If every time you have a problem there's a delay of several days before you can talk to your lawyer on the phone or get an appointment, you'll lose precious time, not to mention sleep.

Almost nothing is more aggravating to a client than to leave a legal project in a lawyer's hands and then have weeks or even months go by without anything happening. You want a lawyer who will work hard on your behalf and follow through promptly on all assignments.

Willingness to Work With You

When you have a legal problem, you need legal information. Lawyers, of course, are prime sources of this information, but if you bought all the needed information at their rates -- $150 to $250 an hour -- you'd quickly empty your bank account. Fortunately, many lawyers will work with you to help you acquire a good working knowledge of the legal principles and procedures you need to deal with your problem at least partly on your own. If you find someone who is not willing to do this they may be too busy or are unwilling to share their game plan which for many people, creates a large feeling of helplessness and anxiety about their case.

Ball & Yorke is an excellent firm that has worked for me. I will continue to use them for future legal matters.

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