Fish Tank

Friday, March 23, 2012

Zoom, Zoom

child driver driving recklessI don't know how it is but my daughter is only 2 and already she loves to be in the drivers' seat.  Abosolutely LOVES it!  As soon as she's free of the confines of her car seat, she'll jump up front and turn the wheel, twist the knobs, push all the buttons, honk the horn, flash the blinker, crank up the radio till our ears pop and is laughing the whole time.  I can see my insurance going up as we speak. 

What concerns me, though, is not so much the insurance cost(s) of adding a teenager to my insurance policy but it's whether she'll learn what not to do behind a wheel.  The other day I was reading about a bunch of kids who were out racing and crashed and, well...no one won that race.  Another article detailed how a teen alcoholic had wrapped herself (and her three fellow teenaged passengers) around a tree.  In fact, daily I read news articles that read like an obituary page.  Scary stuff, to be sure.

Maybe you have a child who is preparing to venture forth into the world of learner's permits and liability insurance.  Might I suggest that before you allow your pride and joy to get behind the wheel, you at least get smart about the laws of your state/country as they relate to underage drinking or how liable you can be if, say, you're child happens to get in an accident and the other driver is injured or (heaven forbid) killed.  A resource dedicated to preserving life that has been around for not a short while is the Mothers Against Drunk Driving (MADD) website.  This site is important if only for the fact that many courts around the country have modeled their drunk driving sentencing criteria around MADD sanctioned programs.  Those living in the state of California can view the California Vehicle Code at www.leginfo.ca.gov/calaw.html.  For persons not living in California, you can view all other state codes through a very useful resource located at Findlaw.com.

A great print (as in book) resource dealing with automobile law (found at most law libraries) is Blashfield's Automobile Law and Practice (West).  The best part of this resource is that while it covers laws from all jurisdictions, it is complete enough to give a good overview of the liability laws governing vehicles powered with combustible engines.


So, to recap - if you or your loved ones are going to drive (and they will, eventually), know what you're up against.  Go to your local law library and read up on automobile liability, teach your children what not to do behind the wheel, and, if all else fails, strap in and hang on for the ride of your life!

Wednesday, March 21, 2012

Research is EASY (once you get the hang of it)


Once upon a time many moons ago my dad, brothers and I went camping.  O.K., we went camping several times but this time stuck in my head.  On the second night, my brothers (I'm the youngest of 7 kids) decided to play a trick on me and we all went on a snipe hunt.  No, a snipe is not that gloomy looking dude in the Harry Potter movies - a snipe is a furry creature so elusive that it has yet to be caught (or photographed.  Heck, bigfoot has been photographed more times than a snipe!).  I must have spent hours looking for that blasted animal.  I never found him but I did push one of my brothers into the lake - which made up for everything.

The reason I bring this up is because I've been thinking about this blog and what it means.  Specifically, what is "research?"  Well, according to the world of Bret (that's me),  research is the process of looking for stuff to help you do stuff (write a paper, conquer the world, that sort of stuff).  "Legal" research is the process of locating legal stuff (cases, codes, regulations, secondary resources), to help you complete legal stuff (write a complaint or motion, draft a client letter, create a contract, organize a business trust - that sort of stuff).

So, say you are, in fact, looking to create a business trust (which has nothing to do with probate).  As it turns out, a business trust is an unincorporated business created to do the something for someone else.  Like, if you had a group of investors who didn't want to get their hands dirty with investing, they'd create a business trust to buy investments for them.  It limits their liability.  So, where are you going to go to find stuff about this stuff?  There are a few places but the resource I found most helpful was Fletcher Cyclopeida of the law of Corporations (West).  Fletcher is divided into two sets.  This resource identifies the theory behind the concepts.  So to learn about business trusts, you'll want to snag volume 16A.  Then to see what forms you'll need to create your business trust, take a look at Fletcher Corporation Forms Annotated (West) and look in volume 6A and you're off and running.

Let's try another one.  Say you've been sexually harassed and/or discriminated at work and then you're terminated (i.e. fired) because they say you're not a team player (believe me, it happens to guys AND gals and it happens more often than it should).  Where are you going to go to find stuff about this stuff?   There are a few places to look but the resources I found helpful were Employment Discrimination Law (BNA), Mental and Emotional Injuries in Employment Litigation (BNA), Workplace Harassment Law (BNA), Termination of Employment (West), and EEOC Compliance Manual (CCH).

So, to recap, the purpose of "research" is to look for stuff to help you do stuff.  Whether you're looking for legal stuff or stuff not legal, the BEST place to look for it is at your local library. 

Thursday, March 15, 2012

Definition of the Month of March 2012

Have you ever been in that situation where you knew what you wanted to say or you knew the specific definition of a word and it was hanging on the tip of your tongue (so to speak) but you just couldn't (for the life of you) think of it at that precise moment but then as you were laying in bed (and just as you drifted off to sleep) you remember and jump and scream out the word/definition freaking out everyone around you?  Have you ever?  I do all the time which is why I am on a campaign to help you (and those sleeping next to or around you) by defining some legalesque words so that you're not stumbling around trying to remember what you should have said 20 minutes ago.

So, today's word is WRIT.  A "writ" is a court's written order commanding the addressee to do our refrain from doing some specified act.  Pretty simple definition - not so simple application because there are several different kinds of writs.  For purposes of this post, I'll cover three popular ones.

Writ of Habeas Corpus.  This writ is a document to bring a person before a court to ensure that a person's imprisonment is not illegal.  Basically what this means is that a person was tried for a crime and was found guilty.  Like most people sitting in prison, everyone things they got the shaft at their trial so they file appeal after appeal to get the court to ignore what a jury of 12 random people thought.  The Writ of Habeas Corpus says that there was error in the decision to put me in prison and this is that is why I should either be set free or be given another trial.

Writ of Mandamus.  This is a document issued by a court to compel performance of a particular act.  Generally used at the Appellate court level to force a trial (or administrative) court to do (or not do) something.  For example: say a government ordinance says the county MUST meet and confer (discuss) the terms of an employee contract, but the government entity (i.e. city, county, state) doesn't want to.  A writ of mandamus can be issued to force the entity to meet with the union - but it can't force it to accept any specific terms.  Yeah, it can be complicated sometimes.

Writ of Prohibition.  This is a document issued by a court to a lower court that prohibits or forbids a certain action.  It is important to note that the writ of prohibition only prevents threatened actions.  Actions which have already occurred can be challenged with a writ of review (certiorari).  Writs of Prohibition will be granted to prevent a court from enforcing a preliminary injunction, or to sanction a nonparty to an action, or to prevent a court from proceeding with a new trial.  In each instance, the treat was actual - not assumed (meaning that the threat has to be in the works and not something that might have happened or could have happened).

Like I tell everyone who comes into our law library, if you don't understand something, get smart and look it up.  Omnipotent as Law Librarians are, sometimes even we miss things so it's best that you do your homework and dig around until you find a answer to your own question.  Oh, and if you do, do you mind letting me know so I can maintain my persona of omnipotence?

Wednesday, March 14, 2012

You Can Do It!

So, I had this guy come into our law library the other day claiming he knew nothing about legal research.  Nothing, nada, zip-o.  15 minutes later, we discovered that he did know quite a bit about legal research and he was off and running.  See, the thing is, everyone knows to do legal research.  That's right, everyone reading this post (and I do mean everyone) has the power to do their own legal research.  Let me elucidate.

First, some questions.

  • Question 1:  By raise of hands, how many of you went to high school?  How about any college (2-year or a 4-year brick and mortar or online school)?  Anyone do any graduate work (master's program, Ph.D., J.D.)?
  • Question 2:  Did any of you who raised your hand do any book reports in high school?  How about any 5-page research papers?
  • Question 3: Where is the Table of Contents in a book?  Where is the Index?
If you answered "at the front" to the Table of Contents and "at the back" to the Index, you now know darn near most everything you need to know about how to do legal research.  OK, there are a few other details to it but that's basically all you need for most legal research projects.  Why then do people freak out when you put the word "legal" in front of the word "research" and you/they suddenly forget how to do research?

OK, so I say you know how to do legal research - but maybe you need some proof?  A little coaching, perhaps?  Not a problem:  Say you're in dire need of information about the Madrid Protocol because you're looking to register a trademark in a foreign country.  What are you going to do?  Well, if I may make a suggestion - what you might start with an easy resource such as Patent, Copyright & Trademark: an intellectual property desk reference (Nolo Press). Starting in the Index, look under "M" for "Madrid Protocol" and you're on your way!  See?  Easy peasy!

Let's try another one.  Say you're a music teacher and you're looking to add to your students repertoire.  You found a piece of music you like and you want to make copies for your class(es) but are not sure if making that many copies is legal, what are you going to do?  Well, if I may make a suggestion - what you might start with is to take a look at Kohn on Music Licensing (Aspen), look in the Index under "F" for "Fair Use" and you're on your way!  This couldn't be more easy if I was doing it for you.

So see how easy this legal research stuff is?  You may never be a lawyer but that doesn't mean you can't do legal research in your sleep!  If you ever run into any trouble at your local law library, just spend a few minutes at the Reference Desk and the law librarian can help set you on your way to legal research bliss.

Wednesday, March 7, 2012

Definition of the Month of February 2012

research easy discoverOne thing that scares people most about law and legal things is that they don't know the definitions of most words.  It's the not knowing that scares the bejesus out of them.  Knowing this, what I'm going to do from here on out is every so often define some of the words and phrases used most often (and maybe even a few that aren't) so that you can go into court or your local county law library and sound like you know what you're talking about.  So that you know, the resource that I use to find all of my definitions is called Black's Law Dictionary (West).  Black's is the industry standard for law dictionaries.

So, today's word is JURISDICTION and it is defined as: a governing body's general power/authority to exercise authority over all person's and things within its territory.

In California, there are three court JURISDICTIONs:

  1. Superior Court (i.e. lowest level court)
      Small Claims: matters from $0-$10,000
      Limited Court: matters from $10,001-$25,000;
      Unlimited Court: matters from $25,001+
  2. Courts of Appeal: cases appealed from the superior court
  3. California Supreme Court: has discretionary appellate jurisdiction over all cases reviewed by the Courts of Appeal (meaning they can refuse to hear cases on appeal if they wish) and California state death penalty cases.
What would be great if every state court system were the same. In the New York court system, the supreme court is the lowest court. The thing is, every state does it's own thing.  What you need to do is to locate your state's court website to see what is located where.

Now, you might ask (go ahead, ask) why is it important to know about JURISDICTION?  It's important because say you lived in California but you were vacationing in Wyoming and you get rear-ended.  In what state do you sue for damages (because now your car is totaled and they say it was all your fault that they weren't watching where they were going)?  


Let's try another one.  Say you bought a pair of shoes online (with a company based in Georgia).  When they arrived at your house, the shoes were not only the wrong size, but you only got one shoe and now the company won't give you the other shoe or your money back.  Where do you go to get recourse?  In what state to you file suit?  Did you even read the fine print when you bought the shoes (because you know it's where they're going to talk about JURISDICTION).
 

Thus, the reason it's so important to understand JURISDICTION is so you don't go waste your time and money file a law suit in the wrong court.  A great resource on JURISDICTION can be found in Jurisdiction and Forum Selection, 2d by Robert C. Casad (West).

So, whether you know or think you know or know that you don't know what you thought you knew, know that the best jurisdiction for whatever it is you do need is at your local county law library (because we always know what you don't know that you need).