April 2017

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What is the difference between a “claim” and a “lawsuit”?

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Criminal Defense Attorney Decatur GA

There is often confusion between the terms “claim” and “lawsuit.” Generally speaking, a claim precedes a lawsuit, meaning that a claim comes first, and if the claim cannot be amicably resolved, the claim can result in a lawsuit. The claim can be a personal injury claim, an insurance claim or any other type of situation where one party believes it has been wronged by another. For example, if you enter into a contract with a roofing company and it fails to complete the job or it doesn’t do the job correctly, you have a claim against the roofing company. The claim arises when the roofing company fails to perform. Depending on the language in the contract, you may need to do certain things to perfect the claim, but the claim nevertheless exists when the work isn’t done or isn’t done right.

A lawsuit is a dispute that has been brought to court. Someone who has a claim but believes they haven’t been properly compensated can file a lawsuit in court. The party who brings a lawsuit is called the “plaintiff,” and the party who is sued is called the “defendant.” A lawsuit is sometimes referred to as a “case.” Technically, a “case” and a “lawsuit” are the same and are different than a “claim,” which comes before a case or a lawsuit.

If you are injured in a car accident and the other driver was at fault in causing the accident, you have a “claim” against the other driver, as a car or motorcycle accident lawyer Delray Beach FL relies on can explain. If attempts are made to settle the claim, but the attempts are unsuccessful, the next step in obtaining fair compensation would be to file a “lawsuit” in court against the other driver. The lawsuit is often referred to as a “case,” and the two terms can be used interchangeably.

A lawsuit also differs from a claim because in a lawsuit, a judge oversees the case and a jury may decide the important issues. In a claim, there is no judge or neutral third-party to oversee the process. A lawsuit can also result in an appeal, where one side or the other can ask a higher court to review some of the decisions made by the judge or jury. The appellate court can confirm the decision reached by the judge or jury, can reverse the decision made or can order a new trial on all or some of the issues. The lawsuit and appeal process can take a number of years to reach a conclusion.

Finally, a claim and a lawsuit are different because there really is very little risk to someone in bringing a claim, while there is risk in filing a lawsuit. Bringing a claim doesn’t usually cost anything, and if it is denied, there is virtually no risk. On the other hand, a lawsuit costs money to file, and if the case is lost in court, the party bringing the lawsuit can be responsible, in certain types of cases, for the defendant’s attorney’s fees and costs. These fees and costs can be tens of thousands of dollars or more, resulting in real risk to the party filing the lawsuit.

Thanks to our friends and contributors from The Law Office of Eric H. Luckman P.A. for their insight into the difference between a claim and a lawsuit.

Three Types of Legal Fees

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1) Hourly Fees

This is the default way lawyers bill their clients. They charge a certain amount per hour and multiply that by the number of hours worked on the case. It sounds simple, but there are a few things to watch out for before you enter this type of fee agreement. First, what’s the hourly rate. It’s impossible to say what’s fair, but you should try to find out how the rate compares to other lawyers in your market. You want to make sure you’re paying a fair rate based on the lawyer’s experience. Next, make sure you know what the minimum billing unit is. Most lawyers bill in 6-minute increments, but some bill in anything up to 15-minute increments. Make sure you know what your lawyer’s practice is. You don’t want to be surprised at your monthly bill.

2) Flat Fees

This is a more modern type of fee agreement where the lawyer agrees to do work for a flat fee regardless of the amount of time it takes. This allows the client to be sure what the price is before getting involved in a case. Flat fees don’t work for every type of legal issue though. While they work well for document drafting, simple negotiations, or contract review, they do not work well for complex litigation issues. This is because it is almost impossible to know in advance how long litigation will last. Flat fees are usually very client friendly, but they are only available in limited types of cases.

3) Contingent Fees

Contingent fees is often called “no win no fee.” At its most basic, a contingent fee means your lawyer will work without being paid up front in return for being paid a percentage of the settlement or judgment at the end of the case. These fee agreements are complicated though, so you need to know a few things before you sign on. First, you need to know who is responsible for the costs of the case. Depositions and expert witnesses can get expensive quickly. If you are responsible for these fees, the fact that you’re not paying your lawyer up front may not mean much. In addition, If you and your lawyer fall out, there are usually provisions in these agreements regarding how the lawyer is to be paid. Often, if you fire your lawyer without cause, you will owe him or her the reasonable value of what the lawyer did for you. Even if the lawyer chooses to end the attorney-client relationship, you may have to pay him or her a portion of the fee at the end of the case.

If you need a lawyer relies on, make sure you understand the type of fee agreement you are signing.

 

Why was the fourth amendment added to the constitution?

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The 4th amendment to the United States Constitution is part of the Bill of Rights, and protects against unlawful search and seizure, as a skilled criminal defense lawyer you rely on can explain. The text of the Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The History of the 4th Amendment

While the 4th amendment was written as a result of colonial experiences, its basis goes back to English common law. Dating back to the early 1600s, there was a tradition in England, including in case law, that a “man’s house is his castle,” such as expressed by Semayne’s Case from 1603.

  • This case discussed both the right of the homeowner to defend from illegal entry, even by government agents, as well as the right of those agents to be authorized to enter based on the King’s process.
  • While this falls far short of the 4th amendment’s protections, the genesis of the amendment is visible here in the principle that a homeowner has the right to defend their home from unauthorized entry.

About a hundred years after Semayne’s Case there was another, very famous and relevant case in England was Entick v. Carrington which was regarding general warrants that did not require specific cause, but were rather regarding all material related to a separate case. The English Supreme Court ruled that kind of warrant invalid because it didn’t give an accounting of what was needed to pursue justice. Instead, it was used to access all of a person’s papers rather than the ones relevant to what was being investigated. There was no showing or declaration of probable cause.

Writs of Assistance

In the American colonies, the issue was with a specific subcategory of general warrant known as, “writs of assistance.” These writs were used to prevent smuggling, by allowing English authorities to enter any business or home and seize smuggled goods. A writ, once issued, was valid through the life of a monarch, and six months beyond that. Following the death of George II, the writs were challenged in the colonies by James Otis. Otis lost, but the arguments he made influenced the future 4th amendment.

Birth of the Basic Principles of the 4th Amendment

The first explicit mention of freedom from unreasonable searches and seizures was from Samuel Adams in Boston, in 1772. The document The Rights of the Colonists and a List of Infringements and Violations of Rights was part of the lead up to the Revolutionary War, and was enumerating the rights the colonists had. While the 4th Amendment was over a decade away, the principles it contains were part of the makeup of the political scene of Revolutionary America.

As with much of the Constitution, the 4th amendment has a long backstory that led it to becoming a significant part of the document which forms the basis of the United States’ legal system. Over 400 years of history, starting in English common law, have led to the way we interpret the amendment today.