Appropriation Lawsuits

Appropriation Lawsuits Privacy is the general right to be left alone and free from unwanted publicity. There are four well-established lawsuits for invasion of privacy: appropriation, false light, intrusion, and disclosure. This article gives examples of appropriation lawsuits. Appropriation is defined as the use of a person's name, likeness, or personality for the benefit of another. Defenses include that the matter is public or that the person who's privacy was invaded gave consent. Flake v. Greensboro News Co. In this case, the first defendant mistakenly put a photograph of the plaintiff in her bathing suit in the second defendant's advertisement. The court declared that "the unauthorized use of one's photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action." The court ruled that the plaintiff could recover nominal damages if she could not prove actual damages. Hinish v. Meier & Frank Co. In this case, the defendant used the plaintiff's name in a telegram to a governor urging the governor to veto a bill. The use of the plaintiff's name was in a matter of politics, not a commercial situation, but that did not stop the court from ruling that the defendant had wrongfully appropriated the plaintiff's name. "Selleck v. Rolling Rock" Based on changes made in advertisements for Rolling Rock beer, an invasion of privacy lawsuit may have been threatened by actor Tom Selleck, star of the television series "Magnum, P.I." Apparently knowing that a celebrity may sue a brewery advertiser for using the celebrity's voice in a radio advertisement for beer, the advertisers of Rolling Rock apparently hired Joe Garvey to narrate Rolling Rock advertisements. Interestingly, Joe Garvey's voice was very similar to Tom Selleck's voice. Again, based on changes made in the advertisements, Tom Selleck apparently reached an agreement with the advertisers of Rolling Rock that Joe Garvey would clearly identify himself in each advertisement for Rolling Rock beer. www.ballandyorke.com

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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Attorney Malpractice Liability to Non-Client

Malpractice Non-Client

In the course of an attorney's representation of a client, he may commit legal malpractice with respect to his prosecution, defense, or appeal of the client's action or his preparation of transactional documents for the client. The attorney's actions may constitute legal malpractice if he fails to use the skill, prudence, and diligence that attorneys of ordinary skill and capacity would use in performing their legal tasks. In addition to being liable to the client, the attorney may also be liable to a non-client in certain circumstances.

No Liability to Non-Client

Generally, an attorney is not liable to a non-client for legal malpractice. The basis of this rule is that an attorney cannot breach a duty to a non-client because there is no privity of contract between an attorney and a non-client.

Liability to Non-Client

In some jurisdictions under certain circumstances, the attorney may be held liable for malpractice to a non-client.

Intended Beneficiaries

An attorney may be liable to a non-client who was an intended beneficiary of the attorney's services to a client. For example, an intended beneficiary of a client's will may be entitled to bring an action against the attorney for improperly drafting the will.

Foreseeable Reliance Exception

A recognized exception to the general rule of no liability to non-clients is that an attorney may be liable if his services to a client were performed so as to influence non-clients to justifiably rely on the services rendered. For example, if an attorney issues an opinion letter regarding the legal status of his corporate client so as to influence potential lenders, the attorney may be liable to the lenders who relied on that letter if the letter was negligently drafted and caused damage to the lenders.

Fiduciary Relationship

An attorney may be liable for malpractice if his negligence causes damage to a non-client with whom he has established a fiduciary relationship. For example, an attorney for a corporation may have a fiduciary duty to the directors of the corporation. Thus, if his malpractice in relation to his services to the corporation causes damage to the directors, he may be liable.

Intentional Torts

An attorney, like other people, may be held liable for an intentional tort committed against a non-client, usually an adverse party of the attorney's client. A non-client may bring a malicious prosecution claim if the attorney misused the legal process for a purpose other than that of securing the proper adjudication of the client's claim. An attorney may be liable for abuse of process if he uses the legal process to secure a collateral benefit not directly related to the process. A non-client may bring an action for fraudulent, malicious, or intentional misrepresentations made by the attorney to the non-client (e.g., during the course of negotiating a settlement). An attorney may also be liable for intentional infliction of emotional distress. For example, the attorney may continually harass an adverse party in an attempt to influence the course of litigation.

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Defendant's 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. Check us out at www.ballandyorke.com

Tort Law - Procedural Law

Tort Law--Procedural Law

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses the civil procedure for enforcing tort law. Filing a Lawsuit The general method provided by civil procedure to enforce the rights and duties provided by tort law is for persons and organizations who believe that any of their rights have been violated to "sue" the persons and organizations whom they allege have failed to do their duty as provided by tort law. To "sue" refers to the initial act required to formally enforce the law, which is to file with a court a group of documents that notify the court and the alleged violators of the alleged violation or violations of tort law. The group of documents is known as a suit, and so the whole process is known as a lawsuit. The lawsuit asks the court to declare that the filers have been harmed under tort law and that they are entitled to satisfaction -- usually money -- from the persons or organizations against whom the group of documents were filed. The court declaration is important because anyone who fails to obey the court's declaration ordering satisfaction is potentially subject to punishment by the court for their failure to obey the court's declaration. The Threat of a Lawsuit Sometimes it is not actually necessary to file a lawsuit to enforce tort law. Sometimes the threat of the successful use of civil procedure encourages and prompts persons and organizations who have failed to obey tort law to settle the substantive law matter out of court. Words Used In a Lawsuit A person or organization who has had one or more of its rights under tort law violated may be known as a victim. The victim is said to have suffered a wrong. The person or organization who has failed to obey one or more of its duties under tort law may be known as a perpetrator, tortfeasor, violator, or wrongdoer. As a general rule, a person or organization that files a lawsuit is known as a plaintiff. As a general rule, a person or organization that responds to a lawsuit is known as a defendant. A victim or alleged victim is usually known as a plaintiff or potential plaintiff. A perpetrator, tortfeasor, violator, or wrongdoer, or an alleged perpetrator, tortfeasor, violator, or wrongdoer, is usually known as a defendant or potential defendant. It is also possible for a person or organization that is sued, a defendant, to counter-sue the plaintiff or plaintiffs. For the sake of clarity, the parties to a lawsuit retain their initial designations as plaintiff or defendant, even though the result of the lawsuit may be a finding that the real victim, if any, is a defendant on the defendant's counter-suit and not a plaintiff on the plaintiff's initial suit. If you have further questions feel free to check us out at: www.ballandyorke.com

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 Needs Un-Insured Motorist Coverage

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.

How To Find A Great Lawyer

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

When it Counts, Leave It To The 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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About Us

The Legal Arch is a continuation of the legal blog Gold Coast Law. We feel we will be better able to be found better by using this much more unique address.

We are interested in providing the resources and information you need to make your personal legal decisions. We hope to help with a variety of issues with focus on employment, wrongful termination, insurance, personal injury, and real estate issues.

Ball and Yorke, a Ventura based civil law firm, supports this blog and offers any help and information needed when creating the resources in this blog. They are also happy to be at your disposal should you feel that you need an attorney.

You can find their site at www.ballandyorke.com.

The Legal Arch

The Legal Arch is a blog about the civil legal processes in and around Ventura County of Southern California. We are committed to being the arch of support that you need to make informed decisions about legal issues that you may face. We hope to be a bridge allowing you to find some understanding of the legal information that could be of use to you in your daily life, as well as when facing crisis, when it is most needed. Our blog is not legal advice, you need to talk to a lawyer to get that, this site simply collects legal information that we feel will be relevant to you and others in our area.