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Resa Ipsa Loquitor

Resa Ipsa Loquitor

Much of legal malpractice law is based on some form of negligence. To be deemed negligent in legal malpractice a certain set of criteria needs to be met. The doctrine that was formed to define legal malpractice is res ipsa loquitur and under it there are four chief criteria that must be met. However, res ipsa loquitur is a broad term that is applied general to common law with respect to legal malpractice.

In some states legal malpractice laws are very strict while in other state legal malpractice laws are much looser. This difference allows for more cases to be filed in states with loose legal malpractice laws as their res ipsa loquitur is more broadly defined, or easier put allows for more actions to be counted. Conversely in states where legal malpractice laws are strict the res ipsa loquitur doctrine is narrowly defined allowing for specific offenses to be counted, in effect protecting the lawyer against at times what can be upset clients if they lose a case.

Both strict and lose interpretations of res ipsa loquitur have central elements in common law that are then tightened or loosed. So all states play of the same playbook but they interpret the plays differently. Four main elements need to be present in order for a legal malpractice lawsuit to be rock solid. The first is quite simple in a basic normal setting the event that occur to prompt a response against the lawyer would not have occurred if there was not some form of negligence.

The second would be that someone had to be negligent for it to happen the way it did. Both legal and medical malpractice share much in common with res ipsa loquitur doctrine the situations just manifest in different ways. The last two are opposites of each other, the first is that the defendant caused the injury and the second is that the plaintiff in no way helped to cause the injury. Clear examples of legal malpractice and medical malpractice can be shown in this example. When a doctor leaves behind a scalpel it fits all the res ipsa loquitur requirements; it in fact shows gross negligence that no other reasonable doctor would commit.

When a lawyer forgets to submit a filing with the court in turn derailing the case for his or her client it is an example of an action that no other lawyer would commit causing harm to their client, and once again fitting the res ipsa loquitur doctrinal requirements. Depending on the state the doctrine will hold to all parties involved. That is to say if one lawyer makes a negligent mistake or a doctor makes a mistake and in both cases they are part of a team, then the whole team is held accountable.

Even under res ipsa loquitur doctrine the burden of proof with still fall on the plaintiff. However, it may be clearer to surmise negligence in legal malpractice because usually a lawyer needs to do something that can be readily documented as a mistake. However, in both legal and medical malpractice a poor performance by a doctor or lawyer is not ground for malpractice.

Infliction of Mental Distress

Infliction of Mental Distress

Recently there has been a new form of tort laws
attempting to cover a wide range of human nature that was not protected under
the law. Suffering and distress are two elements that for many years in the
United States had been thought to be too hard to quantify, or even defining,
hence there were no court cases or laws on the book regarding the subject. 

However, of late, the study of mental distress and the infliction of suffering
on a person have come under a lot more scrutiny. Yet, depending on the state
making a court claim on the basis of infliction of mental distress is still a
very hard case to win. In many instances lawyers attempt to make mental
distress of the infliction of mental suffering which than cause’s distress
analogous to a physical assault. 

Courts have been hard pressed to define what stress is
outside of a given incident. A car crash, a severe one cause by another, can
indeed produce mental suffering or distress. In a case such as that it is
easier to make the connection to the mental state of a person and the harm done
since it ultimately stems from a physical incident. The courts run into trouble
when there is no physical incident to cause the mental suffering or distress. 

Granted a person can inflict a serious amount of mean words and taunts on another
person but the courts have issue reconciling the verbal actions to distress
unlike how a court can connect a physical punch to an assault. In some states,
such as New York, for a mental distress case to be heard and litigated over the
suffering of an individual had to occur in a public forum. So therefore it
implicitly makes the argument that the person was harassed to a degree (verbal
assault) in a public sphere that led to the person mental anguish do to what
could be a variety of reasons. With the advances of psychiatrics though there
has been more progress being made in understanding how the mind works and how
harsh words can have the same impact as a physical action. 

However, in the
defense of the courts, history has usually illustrated that law catches up to
society. So as new breakthrough in mental study occur and the climate for
change to address the issue of mental stresses changes the courts then will
adopt new laws fitting the climate. The courts have usually been a reactionary
body not a proactive body as taking a proactive approach to developing laws may
be considered as infringements on personal freedom.

Tort laws concerning the infliction of mental distress
will go under much more revision in the upcoming years as the environment has
changed in a way that may allow more discussion on the subject. Some point to
the internet as a key example of where mental distress can take place through
the use of social networking sites. While for some it seems depersonalized
there have now been many cases across the country where taunts online cause
real world tragedies. When tort laws develop further this problem may be
alleviated.

Being Guilty By Suspicion

Being Guilty By Suspicion

In many criminal cases, reasonable suspicion is present, and suggests that a defendant is likely guilty of the crime that he/she has been accused of committing. A defendant may have had the motive and the opportunity to commit the offense. The surrounding circumstances may make a defendant the likely perpetrator. However, in the United States, a defendant is considered to be innocent until he/she is proven guilty. Therefore, an individual is never guilty by suspicion.
Suspicion is never an adequate foundation of a conviction. The outcome of a criminal case can adversely alter an individual’s life, resulting in the destruction of his/her reputation and serious criminal sentences, including incarceration. Therefore, it is important that an individual not be falsely convicted of an offense. As a result, finding a defendant guilty by suspicion is prohibited.
In order to prevent a defendant from being found guilty by suspicion, the United States implements extensive criminal cases. An individual cannot be charged with a crime unless there is suitable evidence indicating his/her guilt. This evidence must convince the jury, beyond a reasonable doubt, that the defendant has committed the offense in question. 
The prosecution will have the opportunity to present pertinent evidence to the jury. Specified elements of the crime must be provided, including the defendant’s motive and intention. The defense will then be granted the opportunity to argue the claims and accusations of the prosecution. Witnesses will be asked to provide testimony regarding the actions of the defendant and the events that occurred. If all presented evidence proves that the defendant is guilty, only then can he/she be convicted of the crime.

Reasonable Suspicion Defined

Reasonable Suspicion Defined

In many instance, law enforcement professionals must use their best judgment to govern their actions and behavior. Reasonable suspicion is a standard of proof that regulates certain behavior in the field of law enforcement. Reasonable suspicion refers to the reasonable belief that an individual has been involved in a criminal offense, or is going to take part in such activities. If a law enforcement agent has reasonable suspicion regarding an individual, he/she is permitted to detain that individual for a short period of time.
During the time that the individual is detained, officials will likely try to obtain probable cause, which will allow them to arrest the individual and acquire search warrants. If a law enforcement agent has reason to believe that an individual is carrying a concealed weapon, the officer has the right to search for these weapons, based on reasonable suspicion.
Though reasonable suspicion is grounds for short term detainment, it does not warrant arrest. Therefore, unless law enforcement officials have probable cause, an individual cannot be arrested. Reasonable suspicion is also not grounds for initiating a criminal case. In order for a criminal case to be initiated, suitable evidence regarding an individual’s criminal behavior must be acquired. 
If law enforcements agents do not have suitable evidence, but detain an individual for an extended period of time, the officers are in violation of the individual’s rights. It is important to note that an officer is not permitted to search, or frisk, an individual for drug or similar contraband. An officer can only employ this behavior if he/she has reasonable suspicion that an individual is carrying a weapon.

Importance of Probable Cause

Importance of Probable Cause

In order for a law enforcement officer to arrest an individual, the officer must have probable cause that the individual committed a criminal offense. Probable cause is also essential for law enforcement agents to acquire search warrants. Under the United States Constitution, an individual cannot be subjected to unreasonable searches, and neither can his/her property. 
Therefore, all person or property searches conducted by law enforcement officials must be reasonable. To ensure that these procedures are reasonable, law enforcement officers must have and identify probable cause. Probable cause is considered to be one standard higher than reasonable suspicion. If an officer has reasonable suspicion, he/she can detain an individual for a short period of time. Probable cause allows for extended detainment.
The term probable cause is generally used to describe a high probability that an individual committed the offense in question. The circumstances surrounding the suspected individual and the case must strongly suggest that he/she has committed a criminal offense. Often, fundamental evidence will be required to hold an individual for an extended period of time.
There must be evidence that effectively links the suspected individual to the crime in question. If there is no evidence available, then officers will likely be required to release the individual, as they do not have probable cause to hold him/her. Probable cause is not grounds for a criminal conviction. Though probable cause can warrant an arrest, concrete evidence must prove an individual’s guilt, in order for him/her to be convicted of a crime.

Be Aware of Prejudgment Remedy

Be Aware of Prejudgment Remedy

A prejudgment remedy is a technique that may be used by creditors during financial lawsuits. In the event that a debtor fails to repay a creditor, a creditor may initiate a lawsuit to acquire the payment that he/she is entitled to, or to seize the property that the debtor has been provided. In most instances, a creditor will be prohibited from collecting from a debtor or contacting a debtor for collection purposed during such procedures. 
The most common example of this occurs in bankruptcy cases. If an individual files for bankruptcy, all of his/her creditors are prohibited from contacting him/her throughout the duration of the case. However, in some instances, an individual may attempt to transfer his/her property, so that this property cannot be seized to compensate the creditors. This can notably diminish the repayment that creditors receive, causing them to lose an extensive investment. 
If a creditor has reason to believe that a debtor may hide certain property prior to the court judgment, the creditor can petition for a prejudgment remedy. In the event that the court grants this remedy, the remedy will protect the assets until a judgment is made. The assets will be taken from the debtor and overseen by the creditor until the case is resolved.
 Due to the nature of a prejudgment remedy, these aggressive techniques are rarely approved by the court. If a creditor wished to acquire a remedy, he/she must meet rigid eligibility requirements and adhere to detailed procedures. In order to obtain a prejudgment remedy, a creditor is required to present suitable evidence, indicating the potential loss of pertinent assets.

Do I Get A Rebuttal

Do I Get A Rebuttal

The process of carrying out a criminal trial is intended to ensure that both parties involved in the trial have adequate opportunity to argue their case. Therefore, the prosecution has the opportunity to present evidence that helps to prove a defendant’s guilt. In addition, the prosecution will provide witness testimony supporting the accusations made against the defendant, and seek to convince the jury of the defendant’s guilt. 
The defense will then be permitted to rebuttal the claims made by prosecution and argue its case. Rebuttals are essentials components of any criminal trial. The defense must be given the opportunity to defend the accused individual, by addressing the evidence and testimony presented by the prosecution. The prosecution can also rebuttal, following claims made by the defense.
There are some fundamental regulations that govern rebuttals. When one party initiates a rebuttal to evidence or testimony provided by the opposition, the rebuttal must directly pertain to the evidence in question. The party that is rebutting is not permitted to introduce new evidence. The argument provided must address the evidence that was presented, and only that evidence.
However, in some instances, rebuttals can permit a party to introduce a new witness. For example, if one party presents testimony that was not declared prior to the trial, than the opposing party is often permitted to introduce a new witness, in order to create an effective rebuttal. However, this witness is only permitted to rebut the claims made by the opposing party, and cannot add additional information.
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