HOW TO ENFORCE A COURT JUDGMENT – PART ONE

There may come a time when you are forced to take legal proceedings against an individual or a business to recover money owed to you, or perhaps you will need to claim compensation for a loss you have suffered, either because of physically injury or damage to your property.  If you are successful at trial or if the other party does not defend the claim, the court will order judgment in your favor.  But obtaining a judgment from the court is only the first step.  It is often the enforcement of the judgment that can be the more challenging and frustrating stage.

The McGill Law office is committed to not only helping our clients achieve the best outcome in legal proceedings, but ensuring they are able to recover the money awarded to them by the court in the most practical and efficient way.  We want to share with our readers the steps that must be taken and the options they have available when enforcing a judgment. 

We have prepared a two-part guide that we hope our readers will find informative as well as providing them with the comfort that, if they are owed a debt or are entitled to compensation, the McGill Law Office has the knowledge and experience to best represent their interests.

Introduction

Under the terms of a judgment the court will order the losing party, the “judgment debtor”, to pay a sum of money to the successful party, the “judgment creditor”.  Once you have obtained a judgment, it is up to you to enforce it, the court will not assist in collecting the money on your behalf.  Below are the legal steps that need to be taken to collect your judgment.

Requirements before you begin enforcement

You must wait at least 30 days from the date of the Entry of Judgment to begin collection.  This period gives the judgment debtor time to pay the debt in full or explore payment arrangements.  If the debtor takes no action during the 30 days, you may take steps to enforce the judgment.

During this period we will write to the other party demanding that you be paid the judgment amount immediately.  If the debtor is unable to pay the full amount immediately, we will take your instructions as to whether you are willing to accept periodic payments.  If an acceptable payment plan can be agreed between you and the debtor, we will complete a form called a Stipulation for Time Payments and a copy will be filed at court.  If we cannot agree a payment arrangement with the debtor, we will proceed to enforce the judgment using one or more of the methods below.

Demanding the losing party to disclose their assets to the court

If we need more information about the debtor’s assets in order to levy them, we will request that the court order the debtor to attend a hearing to answer questions about the debtor's assets and income.  In order to compel a debtor to attend a hearing we would make an application to the court for an order for Appearance and Examination.  The application is issued with a hearing date by the clerk of the court and must then be served on the debtor.

If the debtor fails to pay the amount specified in the Appearance and Examination, they will have to attend a hearing.  At the hearing the judge will make the debtor answer questions we have prepared, which will typically consist of questions about the real estate they own, how much income they earn and the amount of money they have in the bank.  If the debtor fails to appear for the hearing, a bench warrant may be issued for their arrest.

Receiving money from the losing party’s employer

This method of enforcement is legally referred to as an Earnings Withholding Order or Wage Garnishment, as it was historically known.  An Earnings Withholding Order requires the debtor’s employer to send up to 25% of the debtor’s net (after tax) wages to the Sheriff, who then passes it on to us on your behalf.  If the employer has already been served with an Earnings Withholding Order for the debtor, the order for withholding may not be processed until the previous order is paid off. 

In order to take this course of enforcement we will need to know where the debtor works.  We may already know this information or we may have obtained in the court’s examination of the debtor.  If the debtor is self-employed, an Earnings Withholding Order is not an enforcement option that can be pursued and we will have to consider one of the alternative methods outlined below.

We then need to serve an issued Writ of Execution and Application for Earnings for Withholding Order on the debtor’s employer.  In Marin County these documents can be served by Sheriff’s office for $35.  We will also need to complete Sheriff's Instructions that provide details of the name and address of the place of business being served.  The employer must respond to the Sheriff within 15 days confirming that the debtor works there and how frequently they are paid.  The debtor may challenge the amount of the seizure of their wages if they can prove they need part or all of earnings withheld to support themselves or their family.

Receiving money from the losing party’s bank account

Under this enforcement process the debtor’s bank account will be frozen for 10 days, during which time the debtor is notified of the levy.  The bank is then required to give any money in the account at the time of the levy, up to the judgment amount plus costs, to the Sheriff’s office.  The Sheriff holds the funds for 20 days and releases the funds to us on your behalf.  You must know both the name of the judgment debtor’s bank and which branch the debtor uses.  It is very helpful to have the account number, however it is not necessary.  If needed, information can be obtained from the court’s examination of the debtor.

We will give the Sheriff's office a Writ of Execution and Sheriff’s Instructions.  When the Sheriff freezes the account, the judgment debtor will receive a Notice of Levy.  The judgment debtor may oppose the levy of bank funds by filing a Claim of Exemption with the Sheriff listed on the Notice of Levy.  We will then have to oppose the Claim of Exemption and a hearing date will be set for the court to hear the debtor’s objections.

In Part Two of Enforcing a Court Judgment we will look at securing a lien over property, seizing money of a business, seizing personal property of a business and recovering the costs of enforcing your judgment.

Content prepared by Richard Parry. © Richard Parry, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

That Fatal February Car Crash

A big heavy SUV, a Cadillac Escalade, more massive and unwieldy still because it was towing a trailer, smashed into the car ahead.  The Escalade and its train might have kept a safe interval between it and the car in its front but it was not able to brake in time to avoid the collision.   As often happens in such cases, the Escalade’s driver suffered no injuries as a result of the collision.   Kim Howe, the driver of the stricken car, was not so lucky.  She is dead, pronounced so at the scene of the accident.

 

"Perhaps she did have just an instant of realization. Horror."

 

When her car was hit, Kim had no time to react.  There was nothing at all that she could do.  Perhaps she did have just an instant of realization.   Horror.  The force of the rear end collision pushed Kim’s car right into the lane of oncoming traffic on California’s scenic and fast moving Pacific Coast Highway.  Kim’s car suffered a crushing head-on collision with a big Humvee travelling at high speed in the opposite direction.  This second crash crushed the front end of Kim’s passenger car as it crushed the life out of Kim.

It was recently reported that Caitlyn Jenner, who was still Bruce Jenner at the time of the accident, will not be charged with manslaughter for rear-ending Kim Howe’s car.  Nonetheless, Jenner has been sued for negligently causing Howe’s death.  The amount of evidence to prove Jenner’s liability in this “wrongful death” case is less than that needed to prove a crime and the issues are somewhat easier for Kim Howe’s heirs than they were for the Los Angeles District Attorney who investigated Jenner for criminal manslaughter.  Jenner’s insurance company is, no doubt, handling the lawsuit.  Perhaps Jenner has high enough insurance coverage limits for the value that will put on Kim Howe’s life.  Perhaps not.  If Jenner does not have high enough insurance limits, well, then, some of the proceeds from Jenner’s television show may end up in the hands of Kim Howe’s family.  

 

"One thing is for sure and that is that Jenner was driving too fast to stop the big heavy Escalade before it rear ended Kim Howe's much less massive car."

 

The point of the Los Angeles District Attorney’s investigation was to determine if it could be proven, beyond a reasonable doubt, that Jenner violated the vehicle code and that this violation was the cause of Kim Howe’s death.  It seems that the focus was on California’s basic speed law.  This law says that, regardless of the posted speed limit, no driver should drive faster than is safe given the conditions.   One thing is for sure and that is that Jenner was driving too fast to stop the big heavy Escalade before it rear ended Kim Howe’s much less massive car.  This, apparently, was not enough for the District Attorney to file manslaughter charges.

The question to be determined in the civil lawsuit is a bit different from the question in the criminal investigation.  The standard of proof is different as well.  Kim’s family must only prove that Jenner was negligent and this proof need not be “beyond a reasonable doubt”.   If a preponderance of the evidence shows that Jenner was not reasonably prudent in controlling the Escalade and that this caused Kim’s death, Jenner is liable and must pay damages.   How much?  Well, what is the value of a life?  What was the value of Kim’s life?

 

"If the case is settled, it is likely that we will never know what value was placed on Kim Howe's life."

 

It is likely that we will hear reported sometime in the future that the civil case against Jenner has been settled.  I write this with some confidence because civil cases, in which there is any arguable merit in the claim, are usually settled without a trial.  If the case is settled, it is likely that we will never know what value was placed on Kim Howe’s life.  It is likely that this value will be kept confidential.  If Kim’s family and Jenner’s insurer and Jenner are unable to settle the case, we will certainly hear the blow by blow, day after day in newspapers, on television, in social media and on the radio.  This “wall to wall” coverage will be due to Jenner’s celebrity, the monetary value of which will ironically likely increase as the value of Kim Howe’s life is determined by a California jury.   

What is a life worth?  How does the justice system place a value on a broken bone, on a compressed or severed spinal cord, on a traumatically injured brain or on the myriad other injuries that are inflicted on innocent people each and every day?  These losses and injuries are not exactly equitable to dollars.  The simple solution at the McGill Law Office is that, for every personal injury client whom we represent, our aim is to obtain the maximum possible monetary recovery and nothing less.

Content prepared by Edmond McGill. © Edmond McGill, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

PERSONAL INJURY: REAR ENDER

As Dalia was patiently waiting in the designated turning lane to make a left turn into the shopping mall, she glanced into the rear view mirror just in time to see the car speeding towards her, ever growing larger in the mirror.  Dalia had no time to take evasive action.  Even if she had had time, there was nothing, really, that she could do.  She couldn’t switch to the right lane without being hit by other fast moving cars not making a turn.  Nor could she execute the left turn without causing a murderous head on or broad side collision with traffic coming from the other direction.  Nothing for it but to sit there and brace for impact.

 

"Cars spun, glass shattered, air bags deployed, time slowed and finally the dust settled."

 

At last coming to attention, the other driver attempted to apply his breaks in the seconds before the inevitable impact - Too little, too late.  Dalia’s car was hit hard in the rear and pushed into the lane of fast moving cars coming in the opposite direction.  Fortunately the driver of the first car reacted quickly and swerved enough to make the collision with Dalia a glancing blow rather than a head on impact.  Cars spun, glass shattered, air bags deployed, time slowed and finally the dust settled.

Paramedics removed Dalia from her car.  She could not get out by herself.  Two paramedics helped her to the ambulance where she was immediately nauseous from the shock.   Pain was just beginning.  Dalia was examined in the emergency room.  She was stunned and had contusions and abrasions and a stressed left wrist, probably the result of attempting to brace herself  by holding the steering wheel too tightly.  Her neck was sore but x-rays showed nothing.   Besides the contusions and abrasions that would heal themselves in a short time, the emergency room doctor diagnosed a sprained left wrist and cervical stain (whiplash).  Dalia was discharged from the emergency room with a prescription for pain medication and instructions for treatment of the sprains and strains.  “Just give it six to eight weeks”, the emergency room doctor told Dalia, “and you will be back to normal.”

The negligent driver’s insurance company swept in immediately.   A friendly adjuster contacted Dalia and offered to pay her the full current value of her car which was a total loss.   Dalia was also offered a moderate amount for her physical injuries which, after all, did not amount to much.  The insurance adjuster told Dalia that the offer was generous since Dalia, fortunately, was not injured badly and would fully recover in a couple of months.   “There is a check ready for you right now.  Just sign this release of all claims and the money is yours.”

It was a month after the accident and Dalia really wanted to feel better and she thought that perhaps she did.  The contusions were all but healed and the wrist was less painful and obviously getting better.  Her neck didn’t hurt too much but she had pain and odd feelings in other parts of her body, pins and needles in her fingers and her foot seemed to hit the ground oddly when she walked.  Dalia wanted to feel okay.  She wasn’t the kind of person to complain or exaggerate about injuries or maladies. Maybe she should just sign the release and take the money that the insurance company offered and be done with it, she thought.

However, to be sure that she was doing the right thing and because Ed McGill doesn’t charge for a consultation for a personal injury case, Dalia called Ed to discuss the case with him.

“I certainly do hope that the emergency room doctor’s diagnosis is correct”, Ed told Dalia.   “You are better off with a moderate claim for personal injury damages because that means that your injuries are not serious.   But it is important to have the correct diagnosis – important for your medical care and important for your legal care.  Sometimes the doctors can know more a bit after a traumatic event.”  

 

"Sure enough, the MRI showed that the soft disc material in Dalia's cervical spine had been deformed as a result of the accident."

 

Dalia’s family physician referred her to an orthopedic specialist who, after considering the type of accident she was in and the medical signs and continuing and changing symptoms, referred her for an MRI scan of the cervical spine to determine if the injury to her neck was more than muscle strain caused by minor whiplash.  

Sure enough, the MRI showed that the soft disc material in Dalia’s cervical spine had been deformed as a result of the accident.  The disc material was putting pressure on the nerve roots and beginning to put pressure on the spinal cord itself.   Dalia could try to alleviate her symptoms by conservative treatment, exercises and pain medication but it appeared that, sooner or later, she would need spinal surgery.

Dalia’s case was far more serious than muscle strain due to whiplash and she was wise to take care to get the correct diagnosis before signing a release and accepting inadequate compensation.  Cases like Dalia’s handled by the McGill Law Office are not settled for less than the full amount of insurance that is available or for their full value.  We want to know the complete extent of our client’s losses before we even approach an insurer to resolve a claim.

Dalia’s case is a fictionalized composite of cases that the McGill Law Office has handled involving auto accidents and spinal injuries.  These cases sometimes are diagnosed as minor muscle injuries or sprains.  We want to be sure and we always caution our clients not to jump at offers made by insurers and to wait until all injuries are fully diagnosed by the medical providers.  The goal of the McGill Law Office is to obtain full compensation for our clients.  Patience and persistence are the bywords to success in this and we apply both to our clients’ cases.

Content prepared by Edmond McGill. © Edmond McGill, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

PERSONAL INJURY: NUDIST RESORT

My friend and the McGill Law Office’s great ad hoc partner Rod Sisson called me from Anchorage.  He wanted to know if I would like to join him in representing an Alaska resident who was terribly injured at a nudist resort in California.  Of course, I asked Rod to tell me more.

When someone is injured as a result of a defect in the safety of a building or as a result of an unsafe condition on someone’s land, this is generally called a “premises liability” case.  The McGill Law Office has, over the years, prosecuted many premises liability cases for clients who have been seriously inured on someone else’s property.  You might even categorize the case just previously reported, where city workers were burned in a gas explosion, as a premises liability case.  We have represented clients in premises cases in many different settings, from an open-air mall in Hawaii to a residential deck with a railing that collapsed in California.  Rod’s call, identifying the premises in question as a nudist resort, described a unique setting to be sure.

 

"The lighting of the stairway was old and not adequate and the safety railing was not accessible because it was overgrown with unpruned shrubbery."

 

Our client suffered terrible injuries.  He required four surgeries.  Even with these surgeries, he ended up with a permanent disability and the expectation of pain for the rest of his life.  His resulting disability meant that he had to give up his former occupation.   Our client was severely damaged, physically, psychologically and economically.  

It didn’t really matter that this case occurred at a nudist resort although that was certainly an attention grabber.  Our client fell at twilight while descending an outdoor stairway, returning from the resort’s swimming pool to his cabin.  It should have been expected that guests would be bare footed or wearing flip flops when using these stairs coming form or going to the pool.  The lighting of the stairway was old and not adequate and the safety railing was not accessible because it was overgrown with unpruned shrubbery.   Our client’s foot twisted a bit on the uneven surface of on of the steps.  No railing to be seen meant that he could not recover his balance.  Down he went, all the way from the top of the long stairway to the very bottom.

 

"Because we prepared so well and because we were clearly ready for trial, our client received just compensation before the first juror was seated in the jury box."

 

Rod and I were successful in this case because we thoroughly prepared.  Medical experts could testify about the injuries and the surgeries, from the first just after our client’s admission to the hospital by way of the emergency room, to the last that could not avoid a permanent disability and perpetual pain.  We engaged a team of other than medical experts.  For us, representing clients in personal injury cases is not mass production.   We did the individualized work that we knew from long experience with success was necessary to get the very best result.  To help us achieve the justice that our client deserved, in addition to medical experts,  Rod and I engaged a premises expert, a recreational facilities expert, an economist and a bio mechanics expert.  With our experts, we conducted site inspections and we took the depositions of witnesses.  Because we prepared so well and because we were clearly ready for trial, our client received just compensation before the first juror was seated in the jury box.

If you, or someone whom you know has been injured because of the actions or inactions of another person or entity, it is important to act fast to preserve the evidence and to prepare the case.   Insurance companies and those responsible for injuries do not pay compensation out of the goodness of their hearts.  They pay compensation because of hard evidence of wrongdoing, because of the thorough preparation of the McGill Law Office and because of our evident determination to do all that is necessary to achieve just results for our clients.   There is never a fee to consult with Ed McGill about a personal injury case and no fee at all unless and until compensation is paid by the wrongdoer or the wrongdoer’s insurer. 

Content prepared by Edmond McGill. © Edmond McGill, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

PERSONAL INJURY: METHANE GAS EXPLOSION

The old dump was just next to the city’s property where a big storm water drainage vault was located.  The dump was in the process of being closed.  It was to be sealed and capped and prepared as a building site for a large commercial enterprise.  Elaborate and careful engineering was required to close the dump properly and, with the help and advice of geotechnical engineers, a state of the art surface water drainage system was installed by contractors hired by the dump site owner and its development company for that purpose.  This surface water drainage system was tied into the city’s conduits that led directly to the vault that the city workers were struggling to open.  When they could not get a bolt loose on the grate covering the vault, the city workers applied a power wrench.  The wrench generated a spark and the spark ignited the methane gas that had accumulated and settled deep in the concrete vault.   

As organic material decomposes in a dump-site methane gas is produced.  Sometimes there is so much of this gas that dumps actually sell it for energy use.  In this case the methane gas migrated into the dump’s new surface water drainage system and, from there, into the city’s conduits and down into the depths of the vault where the power wrench generated the spark that ignited the gas in an explosion that severely burned two city workers.

 

"When the case came to Ed McGill, he realized immediately that these workers were entitled to much more."

 

You might think that city workers who were blown up and severely burned in an explosion while they were on the job would be limited to the relatively moderate benefits provided by the city’s workers compensation program.   After all, they were on the job and workers compensation insurance is designed to compensate workers who are injured on the job. When this case came to Ed McGill, he realized immediately that these workers were entitled to much more.  Even though they were injured on the job, the workers’ injuries were caused by the dump site  owner, by the engineers and by the contractors working to close the dump site.  It was they who planned and built a surface water drainage system without ensuring that it did not carry dangerous gas into the city’s vault.  Claims and lawsuits against parties other than the employer are not barred by the usual exclusivity of workers compensation coverage.

The workers were treated at the hospital with the best burn center in the area.  Their treatments, including painful debridement and skin grafts were long and painful.   Because Ed McGill recognized that these workers were not limited to workers compensation benefits, all of the other responsible parties were sued and the workers received money compensation many many times greater than any worker’s compensation award.  Reimbursement money for the workers compensation benefits might normally have to be paid from the proceeds of the lawsuit.  Because Ed McGill effectively argued that the city’s negligence in failing to train the workers to test for gas disallowed the city from obtaining that reimbursement, this money was kept by the workers.  

 

"Forty years of experience in the courtroom and a reputation for achieving great results with juries gives Ed the credibility that leads to the result of clients being fully compensated even without a trial."

 

Individual attention to cases and to the needs of Ed’s clients are the conditions necessary for the best results.  This case was settled “on the courthouse steps” just as a jury trial was to begin.  If the defendants and their insurers had not pooled their resources to offer very large amounts of money compensation, Ed McGill was ready, willing and able to bring the case to the jury.  Forty years of experience in the courtroom and a reputation for achieving great results with juries gives Ed the credibility that leads to the result of clients being fully compensated even without a trial.  Defendants and their insurers, confronted with Ed’s meticulous and thorough preparation, his willingness to try cases and his reputation for results in trial surrender to the inevitable and fully compensate Ed’s clients.  

If you, or anyone whom you know, has been harmed as a result of the actions of another, give Ed McGill a call. Remember, there is no charge to discuss the case and never any fee in a personal injury case unless and until a recovery is made from the person who caused the harm or from that person’s insurer.

Content prepared by Edmond McGill. © Edmond McGill, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

PERSONAL INJURY: INTRODUCTION

Photo by Keith Brofsky/Photodisc / Getty Images
Photo by Keith Brofsky/Photodisc / Getty Images

City workers are blown up and severely burned in an explosion caused by methane gas migrating from a nearby dump.  A poorly maintained stairway causes a man to take a terrible fall at a nudist retreat.  A young woman is never seen by a doctor at a medical clinic and suffers severe brain damage as a result of a blood clot that a doctor certainly would have diagnosed.  A deck railing collapses, launching a man down to a terrible encounter with the concrete slab below.   An automobile safely stopping at a traffic signal is rear-ended at high speed causing the driver to suffer serious spinal injuries of the neck and back requiring surgery and a long period of rehabilitation.  

 

"Our aim is to obtain the highest possible money compensation for each and every client we represent."

 

We don’t do a high volume personal injury practice at the McGill Law Office.  You will not see our services for personal injury clients advertised on late night television.   Each case, each personal injury client of the McGill Law Office is given close attention and individualized services.   Our aim is to obtain the highest possible money compensation for each and every client we represent.  

Our highly individualized services require outputs of energy, time and resources that are not really possible in a high volume personal injury practice.  Our clients are kept informed at every step of the process.  Our clients are the decision makers in their cases and we believe that they must understand the process and be fully informed in order to make good decisions about their cases.  With our adversaries, often insurance companies and their lawyers, we are amiable but very aggressive and absolutely relentless and persistent.  They know that we will take the time, spend the resources and apply the energies necessary to get our clients the very best results.

Up next, I will write a little more about each of the real cases touched on in the first paragraph.  

A sad reality of our lives is that people are injured and killed as a result of the wrongful acts of other persons or institutions.  If you know of anyone in these circumstances who might need the services of the McGill Law Office, Edmond McGill will be happy to take the call.  There is never any charge for such a phone conference and anyone calling need not feel committed at all.   When we and a new personal injury client have agreed to go forward with a personal injury case, there is no need for the client to worry about attorney’s fees as the case moves forward.  There is no fee unless there is a recovery for the client and all fees, in personal injury cases, are taken from the recovery at the end of the case and not paid by the client as we go along.

Content prepared by Edmond McGill. © Edmond McGill, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

 

INTERNATIONAL LAW: THE INTRODUCTION OF THE FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND WHAT YOU NEED TO KNOW

The Foreign Account Tax Compliance Act, or FATCA as it is universally known, is the centerpiece of U.S. efforts to curb tax evasion everywhere.  It was introduced in 2010 as the revenue-raising portion of the domestic jobs stimulus bill, the Hiring Incentives to Restore Employment (HIRE) Act, but its impact is only now being felt.  Since being passed into federal law, the U.S. government has negotiated various agreements with foreign nations effectively extending the enforceable application of FATCA to the global stage.

The historic legislation has made significant waves internationally, particularly in offshore financial centers where local secrecy and confidentiality laws had often made it incredibly difficult for the U.S. authorities to identify and tackle tax evasion.

 

"The U.S. topped a list of countries most effected by tax evasion, with the nation projected to be losing approximately $337 billion a year."

 

In 2011, the Tax Justice Network estimated that tax evasion represented 5% of global GDP.  The U.S. topped a list of countries most effected by tax evasion, with the nation projected to be losing approximately $337 billion a year.  Given increasing global trade and growing international investment opportunities, it is a figure that was only going to spiral unless action was taken.  The U.S. government's response was FATCA.

Life before FATCA

Before the introduction of FATCA, the IRS was largely reliant on the honest and accurate reporting by individuals, corporations and trustees of their foreign assets and income.  International confidentiality and secrecy laws meant that the IRS could not undertake a review of foreign bank accounts and assets owned by U.S. citizens or corporations held abroad.  Although the U.S. Treasury could seek the assistance of foreign courts in cases where there was clear and compelling evidence of tax evasion, it could not gain access to financial accounts on suspicion alone.

The IRS’s inability to effectively investigate tax reporting created a culture of casual tax evasion. It should be noted that unlike tax avoidance, which is the legal application of loopholes in the law to minimize tax liability (as discussed on our previous blog on Offshore Financial Centers), tax evasion is a criminal offense punishable by hefty fines and prison sentences.  

 

"The IRS’s inability to effectively investigate tax reporting created a culture of casual tax evasion."

 

Shell companies would be set up offshore with a sole U.S. director and shareholder, but the income would either not be reported or would be inaccurately reported. Given that several offshore jurisdictions have legislation keeping directors' registers and shareholders' registers confidential, the IRS had no way of conducting compliance checks to see what interests U.S. citizens had in foreign companies.  Foreign trusts would be established to hold assets including corporations, real estate, stock and foreign currencies, but again the assets would not be properly reported as the assets of trusts are also protected by foreign confidentiality laws.  Furthermore, U.S. citizens and green card holders were living abroad, sometimes earning substantial tax-free wages, without ever declaring their foreign earned income to the IRS.

Collectively, this lax attitude towards accurate financial reporting, whether it be intentional, reckless or negligent, became alarmingly common, particularly as the movement of financial assets became easier and less expensive in an increasingly global economy.  The cost to the U.S. Treasury was massive.

    "Countries with Largest Tax Evasion Amount v3" by Guest2625 - Own work. Licensed under CC BY-SA 3.0 via Commons

 

"Countries with Largest Tax Evasion Amount v3" by Guest2625 - Own work. Licensed under CC BY-SA 3.0 via Commons

The Introduction of FATCA

In March 2010, FATCA became law and compelled all foreign financial institutions (FFIs) to search their records for suspected U.S. persons who held accounts with them and report their assets and identities to the U.S. Treasury.  FATCA’s stated objectives include: -

  • FATCA targets tax non-compliance by U.S. taxpayers with foreign accounts.
  • FATCA focuses on reporting:
    • By U.S. taxpayers about certain foreign financial accounts and offshore assets
    • By foreign financial institutions about financial accounts held by U.S. taxpayers or foreign entities in which U.S. taxpayers hold a substantial ownership interest
  • The objective of FATCA is the reporting of foreign financial assets; withholding is the cost of not reporting.

The consequences under the law for FFIs’ non-compliance are severe.  If an FFI fails to enter into the necessary reporting arrangements with the IRS, a 30% withholding tax is imposed on U.S. source income and other U.S. related payments of the FFI.  This is not a position any FFI wants to find itself in.

Intergovernmental Agreements

The U.S. has learned over several decades that without the appropriate international compliance and enforcement regime, federal law is of limited value.  After all, FATCA has not introduced anything new in terms of taxation; U.S. citizens and residents have long been subject to reporting foreign financial interests and paying tax on their worldwide income.  What FATCA sought to change was compliance with the tax code that was so regularly ignored by corporations and individuals alike.

To make FATCA effective, the U.S. used its considerable trade and political leverage to enter into intergovernmental agreements with the majority of developed foreign nations, which implemented FATCA into local law and established tax information exchange protocols.  A full list of the countries that have already signed treaty agreement with the U.S. can viewed here - list of treaties.

Impact of FATCA

Despite being introduced into Federal law in 2010, most of the foreign reporting obligations did not come into force until 2013-14, following the introduction of the key filing and reporting dates contained in the intergovernmental agreements discussed above.  Now that FATCA has been adopted by local law around the world, meaning enforcement of non-compliance is a much less burdensome process, FFIs have become acutely aware of their reporting obligations.  The result is that the vast majority of FFIs have systematically reviewed their clients’ identities and their financial interests, ensuring they are ready to report to the IRS directly, or indirectly through their national tax authority, depending on the form of the intergovernmental treaty entered into.

 

"...the burden placed on FFIs has prompted several foreign financial institutions to turn away U.S. citizens or residents looking to open up a bank account."

 

For FFIs, the cost of opening a bank account, complying with the due diligence and reporting each year to the IRS, often makes it unprofitable to provide a banking service to U.S. citizens. So much so that the burden placed on FFIs has prompted several foreign financial institutions to turn away U.S. citizens looking to open up a bank account.   Furthermore, companies are reluctant to appoint U.S. citizens as directors or officers given the heightened reporting obligations which accompany their appointment.

What can we expect going forward?

The best way to look at what the future holds is to appreciate that for the first time the IRS will be able to cross reference the tax filings and foreign bank account reporting (FBAR) of each U.S. individual and corporation, with the information reported by FFIs.  The implications are massive and are expected to expose widespread tax evasion.

The reporting obligations of FFIs includes any interest in bank accounts, mutual funds, hedge funds, private equity, directors fees, pensions, annuities, real estate, beneficial interests in trust assets and much more.  If U.S. persons or corporations have not fully reported any interest they will be in breach of U.S. tax code.  Inaccurate reporting can now be identified with little effort. Even if U.S. individuals or corporations who have previously failed to report their foreign interests do begin to accurately report, it will not change the fact the IRS will have evidence of past negligent or fraudulent reporting.  For example, if an FFI reports an individual has had an investment account in the Bahamas for the last ten years, which they have never reported to the IRS and from which they receive annual dividends, that individual will be in hot water regardless of how he reports in the current tax year.

Over the next few years you can expect to hear about the IRS pursuing those individuals or companies that have avoided paying substantial tax liability through inaccurate tax reporting, which in most cases will be treated as tax evasion. Exactly how the IRS pursues more modest sums of money that have not been properly reported remains to be seen, but there is no question the IRS will have substantial evidence to pursue thousands of individuals and corporations should it choose to.

As legal advisers, we would strongly recommend that all U.S. citizens and green card holders, wherever they reside in the world and wherever their income is generated, to seriously consider the impact of FATCA and the fundamental change in culture that is unfolding.  The U.S. authorities now have the tools they has long been seeking to uncover a wide variety of tax fraud.  The IRS will treat any breaches of U.S. tax code far more favorably if the individual or company comes forward, as opposed to the IRS contacting them.  If you require advice on FATCA and the compliance regulations placed on FFIs, please contact the McGill Law Office.  If you believe you are in breach of U.S. tax code and require advice on exploring your options we recommend you contact your accountant or a specialist tax attorney.

Content prepared by Richard Parry. © Richard Parry, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

INTERNATIONAL... CUSTODY

Just what does actress Kelly Rutherford have in common with a California company mining gold in Alaska?  Read on and see how George Washington’s caution about “foreign entanglements” applies to both.

Gold Rush, LLC, a California based prospecting and treasure hunting company, is being threatened with suit in New York for defaulting on a loan from Empire Bank.  The loan was made to purchase the specialized gold mining equipment ordered from Walkabout Digs, an Australian Company that had the equipment manufactured in China by Ling Solutions, Ltd.  The equipment was delivered directly to the waterfront land in Alaska were Gold Rush leases mineral rights.  Walkabout has a standing relationship with Empire Bank and requires that all financing arrangements made by US companies for the purchase of its Chinese manufactured equipment be made through this New York bank. Gold Rush contracted with Golddiggers, Inc. to do the actual mining in Alaska.

Golddiggers’ workers say that the equipment doesn’t work.  Walkabout and Ling say that Golddiggers’s workers were incompetent and do not know how to use the equipment.  Walkabout’s friendly bank in New York says that it does not care.  It just wants to be paid. Will there be lawsuits all over the world? Will the law of New York apply or the law of China or the law of California or Alaska’s law? How will a court’s order from one country be enforced in another?  You just wanted the gold.  Oh, what a mess.

 

"Actress Kelly Rutherford is learning all about the complications of disputes that involve multiple jurisdictions, domestic and foreign."

 

Ah, but this is nothing compared to other complicated and heartbreaking multi-jurisdictional disputes involving the children of disputing parents who are citizens and residents of different countries.  When Irene from Seattle marries Philip from Paris or Henry from Philadelphia marries Olga from Saint Petersburg, bliss is followed by children and then, sometimes, children are followed by international marital warfare.

Actress Kelly Rutherford is learning all about the complications of disputes that involve multiple jurisdictions, domestic and foreign.  More precious than gold are the objects of contention in her court cases in California and New York.  The bi-coastal court fight has already bankrupted Rutherford and, now, courts in both American states disclaim jurisdiction over the children because they live primarily with their father in the little country of Monaco.  A next round will have to be brought expensively in European courts.  

 

"While her children are visiting under the joint custody order issued by a Pennsylvania judge, Olga refuses to return the children to Pennsylvania and seeks an order from a Russian court giving her sole custody."

 

Irene, who married Philip, appears in a French court waiving the order from an American court giving her custody of her children who were spirited out of the United States by their father.  While her children are visiting under the joint custody order issued by a Pennsylvania judge, Olga refuses to return the children to Pennsylvania and seeks an order from a Russian court giving her sole custody.  Is that order from the Pennsylvania judge going to fly in Russia?  Oh, for a dispute over gold mining equipment!

It certainly is a smaller world in our modern times. Business deals and personal relationships bridge across continents and oceans from state to state and from nation to nation.  But whether you are mining gold in Alaska with Chinese machinery purchased from an Australian company or forming families with Peggy Sue from Tennessee and Hans from Salzburg, you are subject to the tangles, contradictions and competitions from courts in different places with different laws and different loyalties.  

So whether you are a California prospecting company seeking glittering fortune in the far north of Alaska or an American actress fighting for custody of her children in California, New York and Monaco, be advised that you may find yourself in a tangle of competing courts, thousands of miles apart, applying different laws, protecting different interests and ordering different solutions.

© 2015 Edmond McGill

....................................................

Facts, including the names of the companies, related to gold mining in Alaska are fiction and neither this part of the narrative nor the fictional companies should be confused with actual companies or their businesses.

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

INTERNATIONAL LAW - OFFSHORE FINANCIAL CENTERS: WHAT ARE THEY AND WHAT DO THEY OFFER?

In business, people often talk about offshore ventures and the advantages associated within offshore investment.  But what exactly is meant by doing business ‘offshore’ and why do so many businesses and individuals invest money, move assets and incorporate companies in these foreign jurisdictions? 

Over the last decade the media and political spotlight has begun to focus heavily on the hoards of cash that U.S. corporations are stockpiling offshore.  In 2014, a securities filings review by Bloomberg revealed that U.S. multinationals had stockpiled $2,100,000,000 ($2.10 trillion) in profits overseas to avoid taxes.  Tax avoidance is the legal usage of tax regimes to reduce the amount of tax payable.  Several loopholes exist both domestically and internationally that hundreds of U.S. corporations take advantage of to great effect.

 

"U.S. multinationals have stockpiled $2,100,000,000,000 (2.10 trillion) in profits overseas to avoid taxes"

 

In a world where global trade and investment is expanding at a rapid rate, it is important to understand these issues.  Businesses and individuals are looking at how offshore financial centers can benefit them and lawyers are increasingly being asked to advise on the advantages that can be gained from such opportunities.

So what is an offshore financial center?

There is no agreed definition of what constitutes an offshore financial center.  Tolleys, a leading global tax guide, has sought to define them as the politically correct term for what used to be known as tax havens.  An IRS publication in 1981 famously stated that "a country is a tax haven if it looks like one and if it is considered to be one by those who care".  These are not particularly helpful definitions and impart connotations of money laundering and tax evasion.  They are also somewhat misleading in the modern day in light of increased regulation in the offshore world as well as extensive mutual assistance treaties and intergovernmental agreements that have enhanced transparency and compelled tax reporting from foreign financial institutions. 

Generally speaking, it is accepted that an offshore financial center is a country that satisfies the following criteria. 

  • Relatively small jurisdiction
  • Low or no tax
  • Specializes in commercial and corporate services
  • Offers those services to non-residents
  • Focuses on investment and asset protection

These countries also share common characteristics that have been important factors in their recognition as leading offshore financial centers.  They usually have politically stability, a respected legal and judicial system, low regulation and experienced professionals.  It is for this reason that several offshore financial centers are British Crown dependancies, British overseas territories or former parts of the British empire. 

Where are these financial centers?

The most common offshore financial centers include Bermuda, Cayman Islands, British Virgin Islands, Bahamas, Hong Kong, Singapore, Luxembourg, Switzerland and Panama.  Ireland and New Zealand are also becoming more prominent in the offshore market, despite traditionally being regarded as primary jurisdictions.  Even the U.S. state of Delaware is regularly seen as an offshore financial center given the disproportionate number of companies that are incorporated in the state.

 

"The Cayman Islands has no income tax, no corporation tax, no inheritance tax and no capital gains tax."

 

Each of these jurisdictions is prominent in one or more of the major offshore markets.  The Cayman Islands has no income tax, no corporation tax, no inheritance tax and no capital gains tax.  It leads the collective investment market thanks to its accommodating mutual funds legislation.  It is estimated to house about 75% of the world’s hedge funds and nearly half the industry's projected $1.1 trillion of assets under management.  It is also a major player in the captive insurance market.  The Bahamas and Panama lead the market in registered vessels while the British Virgin Islands is the registered home to the largest number of offshore companies in the world (roughly 600,000).  The British Virgin Islands has approximately 30 registered companies per capita, which is the highest ratio of any country.

Switzerland has more recently focused on tax exemptions and Singapore is rapidly becoming a leader in private banking, hedge funds and wealth management. Bermuda leads the captive insurance market and has established a growing presence in the primary insurance market, an industry not traditionally associated with offshore centers, becoming the third largest in the world.  It is also popular for fund management and aircraft registration.  Ireland offers a competitive 12.5% corporate tax rate and provides attractive legislation that allows companies incorporated there to obtain an effective tax rate closer to 2% by utilizing its territorial tax regime.

 

"The British Virgin Islands has approximately 30 registered companies per capita, which is the highest ratio of any country."

 

The management of subsidiaries, or shell companies as they are often referred to, is well illustrated by Ugland House, a five-story office building in the Cayman Islands that is the registered office for 18,857 companies.  Like many other offshore jurisdictions, the Cayman Islands levies no income taxes on companies incorporated in the country.  Simply by registering subsidiaries in the Cayman Islands, U.S. companies can take advantage of the Cayman Islands' tax regime and pay no tax on their foreign earned income.  They may also be able to utilize accounting loopholes so that portions of U.S. earned income can be recorded as being earned in the Caymans.

Can U.S. businesses legally avoid or reduce their taxes by setting up companies offshore?

The U.S. worldwide system of corporate taxation requires multinational corporations to pay taxes twice, first to the foreign country in which they do business and then to the IRS once they repatriate their profits.  U.S. businesses are required to pay the 35% federal corporate tax rate on their income no matter where it is earned - domestically or abroad.

Corporations operating in foreign countries pay income taxes to the country in which those profits were earned. For example, if a subsidiary of a U.S. company earns $100 million in profits in Singapore, it pays the Singapore corporate income tax rate of 17% (or $17 million) on those profits.  When those profits are brought back to the U.S., an additional tax equal to the difference between the U.S. tax rate of 35% and the Singapore corporate rate of 17% ($18 million in this case) is collected by the IRS. Between the two nations, the U.S. company will have paid a total of $35 million, or 35%, in taxes on its foreign profits.  If a U.S. company that was incorporated in the Cayman Islands earned $100 million, it would not pay any corporate tax to the Cayman Government, as there is no corporation tax in the jurisdiction.  The company would however be liable for the full 35% federal corporate tax when it brings the funds into the U.S.

U.S. companies can delay paying U.S. tax on their foreign profits choosing instead to pay the additional tax when the profits are eventually repatriated.  If the business does not need to bring the profits of its foreign business back in to the U.S., it is able to defer its tax liability until such time that is chooses to repatriate the money and can instead utilize the funds offshore, paying no or nominal tax to a foreign government.  Large companies can reinvest the money to expand their global business and some are said to have used sophisticated methods of exploiting tax code to invest the money held by offshore subsidiaries in U.S. assets and securities.

General Electric leads the long list of U.S. corporations that store cash offshore, currently holding $119 billion overseas. However, in terms of recent performance, it was Microsoft and Apple that stacked up the most foreign profits offshore in 2014.  The eight largest tech companies, including Microsoft Corp., Apple Inc., Google Inc., and IBM Corp. account for more than a fifth of the $2.1 trillion currently being stockpiled offshore by U.S. corporations.  Last year alone saw the eight largest tech giants amass $69 billion in offshore profits.

Bloomberg has reported that Apple generated $23.3 billion in offshore profit during 2014, the vast majority of which is held by Irish subsidiaries.  That amounts to the entire annual budget for both the Department of Transportation and the Social Security Administration.  Microsoft generated even more foreign profit, raking in $29 billion, all of which is stockpiled offshore.  

Last year President Obama proposed applying a 14% mandatory tax on the stockpiled profits and a 19% minimum tax on foreign earnings going forward. The one-time tax would generate $268 billion over six years, which Obama wants to use for infrastructure.  Obama’s plan hasn’t advanced in Congress, amid Republican objections, and it appears that the current tax loopholes are here to stay, at least for the short-term future.

 

"General Electric currently leads the long list of U.S. corporations that store cash offshore, currently holding $119 billion overseas."

 

As most small and medium sized businesses rely on the profits of foreign earned income, they do not have the luxury of keeping the profits offshore.  Such an arrangement also prevents companies from using the funds to pay dividends to its shareholders.

Despite not being able to reduce their tax liability per se, large U.S. multinationals regularly structure their businesses so that they may take advantage of offshore tax regimes, allowing them to avoid U.S. tax and reinvest the funds to further global business expansion. It would seem that the U.S. corporations with offshore stockpiles are waiting for a government incentive to repatriate their cash, as was the case in 2004 when a law was passed that gave companies a voluntary repatriation holiday with a 5.25% tax rate.  President Obama and top Republicans on the tax-writing committee have stated there would not be a repeat of the 2004 law, but it would not be surprising to see some form of incentive to be tendered to attract large multinationals to bring home some of the $2.1 trillion currently sitting offshore.

So what are the benefits of incorporating, registering or investing in an offshore financial center?

With tax reduction being a benefit that can only truly be enjoyed by corporations with substantial foreign profits, why would businesses or individuals look to set up a company, fund or trust offshore?

Asset Protection - Wealthy individuals who live in politically unstable countries utilize offshore companies or set up foreign trusts to hold family wealth to avoid potential expropriation in the country in which they live. Trusts are also widely used by many, including U.S. citizens, to prevent their assets from being seized by creditors or becoming subject to lawsuits.  Given that U.S. courts can assert jurisdiction over assets located within the U.S., it is wise to ensure that any assets an investor is looking to protect by utilizing offshore laws are not physically held within U.S borders.

Avoidance of forced heirship provisions - Many countries from France to Saudi Arabia (and the U.S. State of Louisiana) continue to employ forced heirship provisions in their succession law, limiting the testator's freedom to distribute assets upon death. By placing assets into an offshore corporation, and then having probate of the shares determined by the laws of the offshore jurisdiction (usually in accordance with a specific will or codicil sworn for that purpose), the testator can sometimes avoid such restrictions.

Collective Investment Vehicles - Mutual funds, hedge funds and private equity funds are formed offshore to facilitate international distribution. By being domiciled in a low tax jurisdiction, investors from around the world only have to consider the tax implications of their own domicile or residency.  This makes the management and distribution of these funds significantly easier and more cost effective.

 

"High-profile investors do not want rivals or the public knowing what stocks they're investing in."

 

Confidentiality - Most offshore financial centers give the benefit of secrecy legislation or a form of conditional relationship law. These laws provide investors and shareholders with the privacy protection afforded under strict corporate and banking confidentiality. Breaching these laws can have serious consequences for the offending party. Disclosing information in relation to an account holder is a breach of banking confidentiality and disclosing information about shareholders is a breach of corporate confidentiality.  It is often wrongly perceived that those corporations and individuals who rely on these banking secrecy and confidentiality laws are criminals seeking to hide their actions. But the reality is that many high-profile investors can gain a substantial economic advantage keeping their identity secret while accumulating shares of a public company.  High-profile investors do not want rivals or the public knowing what stocks they're investing in. If they did, they could lose a significant commercial advantage as smaller investors buy the same stocks that they have targeted for large volume share purchases, which drives up the price.  Despite the strict enforcement of these confidentiality laws, where there is clear evidence of drug trafficking, money laundering or other illegal activities, the regulators and judicial systems will not serve to protect offending parties.

  The Sao Paulo Stock Exchange (Bovespa) by Rafael Matsunaga, CC

The Sao Paulo Stock Exchange (Bovespa) by Rafael Matsunaga, CC

Diversification of Investment – Regulators in some countries, including the U.S., restrict the investment methods and opportunities of citizens, much to the frustration of investors who are seeking to diversify their investments and manage them in such a way that allows them to take advantage of market conditions without regulatory interference. Funds and accounts registered offshore are much more flexible, in many cases allowing investors unlimited access to international markets and to all major exchanges.  There are no restrictions on investment objectives or trading strategies.  Importantly, investors are free to take advantage of opportunities in developing nations, particularly those that are privatizing industries previously run by the state.  China's decision to privatize some sectors has investors lining up to invest in the world's largest consumer market.  Africa is also attracting substantial foreign investment in its private sectors (technology, retail and business services) and its former state-run industries.

In conclusion, as global trade and investment increases, there is a greater need to understand the services, key legislation and opportunities available in offshore financial centers.  The offshore world does not necessarily present the direct tax reductions with which they are often associated (at least not for U.S. citizens and U.S. corporation), but they do offer significant benefits.  Most notably, more and more U.S. corporations are engaging in offshore corporate restructuring to increase net profit margins and develop their global operations, while growing numbers of investors are turning to offshore registered funds to benefit from the greater opportunities available in global markets, free from the burdensome U.S. regulatory framework and protected by confidentiality laws.

Content prepared by Richard Parry. © Richard Parry, 2015

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

SERVICE DOG FRAUD - GREATER ENFORCEMENT NEEDED

2014_ADAH_PUP_WEB.JPG

Does my dog comfort me? Most definitely. Does she, in a sense, guide me? I believe so. Does she serve me as not only a loyal pet, but a confidant, friend and companion? Yes. But, is Luna a service dog? No.

She’s lovingly licked my tear-stained cheek in times of grief, growled at strangers (pizza delivery guys) lurking at our door, eaten our tax forms, and filled our lives with an undeniable joy since we brought her home approximately six months ago. I inarguably feel better when she is around which is why we run together, watch TV together and play on the beach together. Yet still, a small black labrador who holds more resemblance to a child in our life than an animal, is just that, which is why we stay true to the law in acting as her owners.

 

"Fraudulent service dogs impact the human beings with disabilities whom these animals were specifically trained to help."

 

There is a difference between Luna and that yellow lab who helps a familiar young man with oversized sunglasses cross the busy street. There is a difference. And my husband and I are aware of this difference. More than that, we are conscious of who it harms when dog owners ignore the Penal Code and fake their pets as service animals while (literally) sniffing out fine cheeses at Saturday’s artisan Farmer’s Market. Fraudulent service dogs impact the human beings with disabilities whom these animals were specifically trained to help.

Such fraud is rife, especially in the Bay Area. The root of this problem, I believe, is that people do not think it’s a big deal to slap on a fake vest and call their teacup chihuahua a service dog. Somewhere between the Farmer’s Market and Nordstrom the line that divides Guide Dogs for the Blind and the pomeranian that Mr. Roberts’ new girlfriend likes to carry around in her purse got blurred.

The thing is, it is a big deal. It’s a big deal because it directly affects those people with serious disabilities who need their service dogs, as outlined by the U.S. Department of Justice, to do special tasks that their owners could not do without their assistance. The Americans with Disabilities Act allows specified animals to be in areas where other pets are not in order to accommodate often severe disabilities, i.e., amputee, blind and mentally ill individuals who need these animals’ help in order to function. 

 

"I have been kicked out of businesses because employees think I'm an imposter."

 

Peter Morgan, is one of the individuals seeking to bring about change in a culture of fake service dogs that is getting out of control.  Peter suffers from a spinal disorder that prevents him from bending over without pain.  His service dog, Echuka, is trained to pick up items Peter drops to stop him from getting hurt.  But service dog fraud is making it difficult for Peter to keep Echuka with him in places is most needs support.

"In the last few years, the questions and the looks I get have radically changed," Peter says. "Now wherever I go, I see fraudulent service dogs. I have been kicked out of businesses because employees think I'm an imposter."

Falsifying a badge for your untrained retriever not only disrupts businesses and their clientele, but adversely affects those with disabilities who actually need their service animals to live their lives, which is why California made it a criminal offense to fraudulently present a regular pet as a service dog back in 1994. Since then, other states have been following suit. Most recently, on July 1st, 2015, Florida passed a similar law, highlighting the fact that this is a national, and even international problem.  

 

"... punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both"

 

Masquerading Fido as a service dog just so you can bring him on your trip to Whole Foods has serious consequences, as outlined in the California Penal Code:

365.7. Knowing and fraudulent representation as owner or trainer of guide, signal or service dog; penalty

(a) Any person who knowingly and fraudulently represents himself or herself, through verbal or written notice, to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog, as defined in subdivisions (d), (e), and (f) of Section 365.5 and paragraph (6) of subdivision (b) of Section 54.1 of the Civil Code, shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.

(b) As used in this section, “owner” means any person who owns a guide, signal, or service dog, or who is authorized by the owner to use the guide, signal, or service dog.

So not only is it a big deal because of who is being adversely affected; it’s a big deal because if you violate the law in these circumstances, you could do jail time.

A local non-profit has been leading the fight for better enforcement of California’s Penal Code. Canine Companions for Independence, with its national headquarters based in Santa Rosa, is an organization that betters the lives of those who actually need service dogs by attentive training of animals and an ongoing support system. By starting a petition to protect the rights of people who legitimately need service dogs, a petition aiming to stop service dog fraud, Canine Companions has begun promoting this important change in our society. 

As a dog owner, I sympathize with the notion of bringing your dog with you wherever you go. But as a law-abiding citizen and pro-active member of society, I know when to leave Luna at home with a bone (or more aptly, a bully stick). Whether we will see greater enforcement of the law remains to be seen, but there is no doubt that fake service dogs are having a negative impact on society and action is needed. I respect what true service dogs are able to do for people who cannot do it all on their own and more needs to be done to protect these dogs and their owners.  I also have no desire to do time behind bars or face a hefty fine. Do you?

Content prepared by Alicia Parry

Copyright 2015 Alicia Parry

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

REAL ESTATE - DECK COLLAPSE

The nice set of flats in the Richmond District of San Francisco was a great investment.  Tenants were providing good income for George and Harriet’s golden years.  They bought the place at the right time, 25 years ago, on the advice of their accountant.  It was a buyers’ market – good price and interest rates were not too high.  Both flats were in excellent condition when they bought the building and renters were standing in line to sign leases.  From the very beginning, increasingly so every year since they bought the flats, the income rose and, until recently, the upkeep and maintenance had cost next to nothing.  Recently, however, after 25 years of tenant use and exposure to the elements, it was time for significant investment in maintenance and upgrades.

 

"Nothing was broken, just some scrapes and cuts and a bit of sprain."

 

Sally, the downstairs tenant wasn’t hurt too badly.  As was her custom in the late Summer, she was coming up the back steps to leave Gwen and Tommy some fresh vegetables from her garden.  The step just gave in and her foot went through right up to the ankle.  Nothing was broken, just some scrapes and cuts and a bit of a sprain. It was taken care of by a trip to Urgent Care, a tetanus shot, a cold pack and an Ace support bandage.  Sally had to hobble around for a few weeks but she was alright after that. The insurance company took care of everything and George found some local guys to make repairs to the stairway.  The workmen weren’t very qualified but, after all, it was just an outdoor landing and stairway.  George and Harriet bought the place to make money not to spend money. Those guys cost a lot less than an expensive licensed contractor.

 

"Mid flight Tommy's foot caught something that spun him a bit so that he hit bottom first instead of head first and that's why they took him to the hospital instead of the morgue."

 

Most evenings Tommy enjoyed a cold beer standing on the little landing in the back up the upstairs flat where Sally left fresh vegetables..  It didn’t matter if the fog was in and that it was cold even in the summer.  It was a half hour of decompression, a transition from work to home.  Tommy leaned back, putting just a bit of his weight on the railing.  With the dry rot and nails rusted to dust, the railing just gave way and Tommy was all of a sudden air-born, somersaulting to a bone crushing encounter with the concrete 12 feet below.  Mid-flight Tommy’s foot caught something that spun him a bit so that he hit bottom first instead of head first and that’s why they took him to the hospital instead of the morgue.  

While Tommy was awaiting surgery, Gwen called Ed McGill.  Ed immediately dispatched his trusted expert forensic property inspector who examined the landing, stairway and railing.  The forensic inspector took many high quality photographs and wrote a comprehensive report on the conditions that he observed.  Ed then wrote to the owners, George and Harriet, and informed them of what had happened.  In his letter, Ed asked George and Harriet to preserve the stairway, deck and railing  which were evidence.  This time George and Harriet did call a contractor who immediately sent a crew to the site.  They tore down the old stairway and landing and hauled everything to the dump.  George and Harriet were getting rid of the evidence.  A new stairway and landing were up in the blink of an eye.

George and Harriet knew about the dangerous condition of the stairs – one tenant had already been injured before Tommy’s twelve foot fall.  Instead of making repairs competently, they chose to save money by hiring incompetent workers.  They willfully ignored the danger to their tenants and were, therefore, exposed to punitive damages in addition to the usual damages that resulted from Tommy’s fall.  Insurance does not cover punitive damages.  In addition, after being asked to preserve important evidence, George and Harriet were eager to destroy this evidence, including the rotten railing that was the cause of Tommy’s fall. George and Harriet hurt themselves when they destroyed the evidence of their guilt.  They did not know it at the time but Ed had already had his expert make a full report complete with high quality photographs.  A jury would be told that George and Harriet’s actions in dumping the evidence showed that they knew that they were guilty and that they were trying to hide the truth.

 

"Quick action by Ed in immediately dispatching his forensic expert and asking George and Harriet to preserve the evidence clinched this case even before the lawsuit was filed."

 

A lawsuit was filed and, given the powerful evidence that Ed had gathered, George and Harriet’s attempt to hide their guilt and their exposure to punitive damages, their insurance company was made to pay almost a half million dollars, fully compensating Tommy for his injuries.

Quick action by Ed in immediately dispatching his forensic expert and asking George and Harriet to preserve the evidence clinched this case even before the lawsuit was filed.  Tough follow-through and readiness to bring Tommy’s case before a jury insured the maximum settlement from the George and Harriet’s insurer.   Good lawyering brings the best results.

[This is a fictionalized account of one of Ed’s actual cases.  To preserve required confidentiality, names, places and some incidental facts have been changes.]

Content prepared by Edmond McGill

Copyright 2015 Edmond McGill

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

REAL ESTATE - LAND MOVEMENT

For 10 years before the city approved the developer’s plan to build three houses on the lots behind and above them, Grace and her family had lived in joyous isolation in their wonderful home overlooking the San Francisco Bay.  “Well, that’s a lot better than building a big house on the downhill in front of us. Our million-dollar view of the San Francisco Bay would never be the same if we had to stare over an ugly roof.  Anyway, it will be nice to have neighbors – “build away”, Grace said, accepting the inevitable.

 

"At first you could hardly notice the cracks in the patio concrete..."

 

Grace and her family tolerated the noise and disruption and the three houses were finished in no time at all.  The houses sold immediately.  Grace and her family welcomed their new neighbors and, their broad vistas undisturbed, really felt no change at all in the enjoyment of their home other than that they could share the spectacular setting with their new friends.

At first you could hardly notice the cracks in the patio concrete – just thin white lines like varicose veins running through the flat pink slab.  Grace wasn’t sure that the bathroom door hadn’t been sticking a bit for a long time. But she knew that she had never had a problem opening the sliding glass door from the master bedroom to the little garden patio where she enjoyed taking a first cup of coffee in the morning.  No, that door always worked fine, she thought.  It glided open – just a touch and a light push.  That’s all it took every morning for 10 years.

 

"But Penny said there was no insurance for acts of nature."

 

The structural engineer found the cracks in the foundations.  The cracks were new, he could tell, and there were no old cracks. Grace’s house had recently started to move – glacially, but ever forward.  “Well, yes, we can anchor the house in bedrock and impede the movement and we can make that glass door slide easily again - for a time.  But … .”

This was getting expensive so Grace called Penny Premium, her ever up beat insurance agent.  But Penny said that there is no insurance for acts of nature.  Grace’s homeowner’s insurance could offer no help at all with the ten thousand dollars estimated for further studies and the who knows how much for engineering solutions to stabilize the house.  As a real estate agent, Grace knew that there was nearly a total loss of market value for the house since almost no one would buy a house that was moving down the hill.  “No insurance for that either”, advised Penny Premium.

Grace’s case is a fictionalization of actual cases done by Ed McGill. Uphill building can change the courses of subterranean and surface waters.  Moving water moves other things, like Grace’s house.  When the new houses were built, the developer and the city changed the courses of subterranean and surface waters flowing down onto Grace’s property.  Instead of directing waters safely around Grace’s house, they misdirected and concentrated waters on and under the surface right into Grace’s house’s foundations.

 

"You can win a case such as this and protect your home and family with solid legal counsel."

 

The city changed watercourses when it built surface water drainage for the road to the new houses and was liable to Grace under the theory of inverse condemnation.  Besides compensation, the city was responsible for paying Grace’s attorney’s fees.  Of course, the developer and the uphill owners were liable too.  Their insurers had to pay Grace compensation as well.  In situations like Grace’s, they must reroute the watercourses so that the damages cease. Finally, Grace’s insurer was liable to her for its “bad faith” denial of her claim.

The law will punish insurers that abandon their insureds.  The insurance company can be made to pay compensation, attorney’s fees, emotional distress damages and punitive damages.  When the contributions of all those liable were calculated, in a similar case, Ed obtained compensation for his client in an amount, after his fees were paid, that exceeded the actual market value of the house and the owner kept the house with the land movement stabilized.  In the end, there was far more than enough money in damages for all of the repairs and changes with plenty of money in addition for all of the trouble. You can win a case such as this and protect your home and family with solid legal counsel.

Content prepared by Edmond McGill

Copyright 2015 Edmond McGill

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

REAL ESTATE - CONSTRUCTION DEFECTS

Real estate agents, construction professionals and new home buyers should be careful of assumptions.  Real estate agents should take care in advising the waiver of independent inspections even in newly constructed houses. Builders should be careful about contracting with and supervising subcontractors and others.  Consulting professionals such as structural engineers should carefully and expressly define and limit the scope of their work in writing, to avoid being held liable for the bad work of others.  Buyers of newly constructed houses should not rely on city inspections or on the impressive superficial beauty of a new house.  They and their agents should “look behind the walls” before signing the papers or else everyone might find themselves in a long, expensive and unhappy court battle.

 

"Buyers remorse began to take hold."

 

It was a brand new beautiful four-bedroom house with vaulting ceilings, spacious views, easy access to town and to vast open spaces from just outside of the back door.  The real estate agent was as happy as the young family, one and all looking forward to moving day.  The house was perfect, worth every penny of the young family’s now exhausted savings and the commitment to a thirty-year mortgage.  

It’s often true that a newly built house has a few punch list items that the builder will take care of even after the sale has closed but the family became concerned when, after a few minor things were adjusted, the builder-developer just seemed to lose interest.   They looked harder at the house and found more things that were not as they were supposed to be.  The driveway turn around did not measure to the dimensions that were represented.  The hardwood floors were paper thin rather than the thickness represented.  Doubt and disappointment began to take the place of joy.  “Buyers remorse” began to take hold.  

 

"Please have your clients and their young children vacate the house immediately."

 

The house was new.  It passed all of the city inspections during its construction and cleared the final inspection when it was finished.  The real estate agent and the family didn’t see the point in paying for expensive inspections by independent experts so they all depended on the city inspectors, the representations of the developer, the glossy brochures and the beautiful look of the newly built house.  

The family hired a retired city inspector to have a look around to see what else might be wrong.  Starting at the bottom, as seemed sensible, the inspector slid into the crawlspace to see how the house was connected to its foundations.  Then out he flew, a light speed exit, because what he saw gave him fear that the house might fall on him at any moment.  He didn’t say much other than that the family should have a competent structural engineer look over the place very carefully.

Now completely alarmed, the family called the McGill Law Office and Edmond McGill dispatched a  highly qualified structural engineer to make a thorough inspection of the structural elements of the house.  “Please have your clients and their young children vacate that house immediately.  It could collapse catastrophically in a big wind or a small earthquake and crush them all to death.”

The developer-builder, the real estate agents, various subcontractors and the engineering company that provided structural calculations were all sued successfully, successfully for the homeowners that is.

The family was innocent, justifiably relying, as they had, on the professionals who built the house and the real estate agents who marketed and sold it.  

The builder-developer relied on his subcontractors and failed to properly supervise the work or to properly inspect it before putting the house on the market.  

The engineering firm did very little work, only providing accurate calculations for the builder; however, this firm failed to have a written contract that might have protected it by stating expressly and clearly that it had no responsibility to supervise how its work was used or rather, in this case, misused.

The real estate agents were professionals.  It may have been reasonable for the family to rely on the fact that the house was just built and that the city had made inspections but agents should have discourage the family from not getting their own inspections or, failing that, they should have created a better written record that the family was informed that even though the house was new, independent inspections should be conducted and that the family decided not to do so against the advice of the real estate agents.

 

"The family was more than made whole by having obtained good legal advice and counsel."

 

In the end, the insurers of all who were sued contributed to a settlement that, after lawyer’s fees and legal expenses were paid in full, provided more than enough money to repair all of the deficiencies and to provide high quality substitute housing for the family while the work was being done.  In addition, the family was compensated generously for their trouble and a bonus was paid as well by the builder, not from his insurer, but from his own pocket, because of the callousness in putting this family in danger of life and limb.

The family was more than made whole by having obtained good legal advice and counsel. The builder-developer might have saved himself a lot of trouble by consulting with an attorney and might have avoided a lawsuit if his attorney had advised him to make complete construction remedies as soon as the buyers’ complaints started. Real estate agents would profit by developing a standing relationship with a trusted attorney to whom they can direct questions for quick and non costly answers.

The engineering firm could have completely avoided exposure to any liability.  The only work it did was to make calculations which it did accurately.  Not having a thorough written contract, which a good attorney could have drafted for it to fit most of its engagements with few changes for each, placed on this firm the legal presumption that it would supervise the application of its calculations.  The was an error in business law rather than in engineering.

Having a relationship with a good lawyer sooner rather than later can save a lot of grief and a pile of money.

Content prepared by Edmond McGill

Copyright 2015 Edmond McGill

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

AUTO ACCIDENTS - PART IV: SUBMITTING A CLAIM & NEGOTIATING A SETTLEMENT

Your attorney will build a case around the evidence to prove liability (discussed in Part One) and seek the maximum amount of compensation owed to you under the law.  The objective is to demonstrate that you have acquired excellent legal representation, to show that your claim is well supported and that you will press your claim as far as necessary in the courts to achieve just compensation.

I. Obtaining the evidence needed

Your attorney will obtain the police report, statements from witnesses, all relevant medical records and evidence from the scene of the accident.

Your attorney will also engage forensic experts, including medical experts, to report and to testify regarding:

  • The nature and extent of your injuries,
  • The pain and suffering caused by your injuries,
  • The reasonableness of medical expenses, including treatment and prescriptions,
  • Other financial losses such as loss of income, lost or damaged property,
  • The impact of the accident on your life and
  • Any claim for future care if your injuries will continue to affect you.

II. Submitting a demand for compensation

After considering the evidence, and assuming it supports a claim for compensation, your attorney will ordinarily prepare a demand letter to the insurance company of the driver responsible and invite the insurance company to make an offer to settle the claim. Your attorney may give the insurance company a time period for admitting liability and/or making an acceptable offer for compensation. Alternatively, your attorney may proceed to file a lawsuit in the appropriate court at once.

III. Negotiations

The objective of any dispute is to achieve the best possible resolution without the need to try the case in court. The best settlements are achieved when the attorney is ready, willing and able to try the case to a jury. This will demonstrate to the insurance company that your case should be taken seriously. Where an insurance company knows that a plaintiff has a strong case and a lawyer who is experienced and ready to take the case before a jury, that insurance company is far more prepared to settle on the plaintiff’s terms without going before a jury.

For four decades Edmond McGill has used his experience representing victims of all sorts of wrongs, to their property, to their businesses and to their persons, to enforce their rights and to assist them in receiving the compensation they deserve. If you would like to discuss a case with Edmond, please contact the McGill Law Office at enquiry@mcgill-lawoffice.com or call 415 508 5323.

Content prepared by Edmond McGill and Richard Parry.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

AUTO ACCIDENTS - PART III: DO I NEED AN ATTORNEY?

Photo by Comstock/Stockbyte / Getty Images

PART THREE - DO I NEED AN ATTORNEY?

I have known cases where the award for damages has increased by 10 times the amount first offered by an insurer once an experienced attorney has taken conduct of the lawsuit.  While it is possible, in cases of minor accidents with property damage only, for an unrepresented person to achieve a reasonable settlement of a claim, cases with major property damage or injuries to the person should be handled by an attorney.

What will an attorney add?

The benefits, if you select the right lawyer, will include: -

  • A quick and accurate assessment of whether your claim is likely to be successful
  • An accurate valuation of your case
  • Advice on time-frames and procedures
  • Identification of all losses that you can claim (some of which you might not consider)
  • Removal of the stress of dealing with the insurance company and the court
  • Your case will be taken more seriously by the insurance company
  • You will have someone who can aggressively challenge the insurance company to ensure that you get fair compensation

Insurance companies are known to make low offers and to attempt to get claimants to sign releases quickly, whilst insisting it is a final offer, in an effort to eliminate potentially costly lawsuits, and remove legal exposure.  A victim’s case can often be worth 5 times, or sometimes 10 times many of the amounts first offered by some insurance companies.  An experienced attorney will know what compensation you should be entitled to given the facts and evidence. 

It is also important to remember that if you accept a low offer in settlement of your case, say $20,000, and later speak to an attorney who advises that your case was in fact worth $100,000, you will generally have lost your right to pursue the culpable driver and his or her insurance company for any further compensation.  Use patience, care and the help of a good attorney to insure that you are justly compensated. It is therefore important that any settlement award you accept accurately reflects the compensation you are entitled to.

Here are a few questions that  I would recommend you should consider when deciding whether you need an attorney to represent you: -

  • Is blame for the accident being disputed by the other driver’s insurance company?
  • Are you likely to have ongoing pain and suffering or need corrective surgery / treatment?
  • Did you suffer loss of earnings (past or future) because of the accident?
  • Did you incur expenses as a result of the accident?
  • Do you need assistance with understanding your legal rights for recovering compensation?
  • Do you know the full extent of your injuries?
  • Are you certain of the fair amount of compensation owed to for your injuries and loses?

If you answer yes to any of the above questions then you should consider instructing an attorney.  If you do decide to obtain professional representation it is important that you identify an attorney whom you trust to competently and aggressively pursue your claim.  If you don’t have faith in the attorney you hire, the claims process can be a frustrating one.  I would be happy to provide a free 20 minute consultation to discuss your case so that we can identify determine if I am the right lawyer for you.

Content prepared by Edmond McGill and Richard Parry.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

AUTO ACCIDENTS - PART II: STEPS TO TAKE AFTER AN ACCIDENT

A promotion of the McGill Law Office.

PART TWO – STEPS TO TAKE AFTER AN ACCIDENT

I. Pull over and call 911

You should always call the police once you have moved your vehicle to a safe area and put your hazard lights on.  If anyone has sustained serious injuries, your first call should be to 911 to seek immediate medical assistance.  However, even if no one is injured you should always call 911 for police assistance.  If there is damage to your vehicle, your insurance company will soon be engaging with the at-fault driver’s insurers. Having a police officer attend the scene ensures a neutral accident report will be prepared based on the facts and witness statements.

II. Exchange information with the other driver

If you sustain any damage to your vehicle or suffer any injuries, your ability to recover compensation from the at-fault driver is dependent on being able to identify the individual(s) responsible.  You should always insist on getting the at-fault driver’s insurance information.

While the exchange of information is required by law, I would advise that you do not make any statement regarding the accident to the other driver, particularly one that could be deemed as accepting any portion of the blame.  Often you do not know all of the facts.  For example, it may later be revealed that the other driver was speeding, was on the phone or went through a red light.  Always be honest with an investigating police officer but be sure not to admit fault when you are not at fault.

III. Make notes, obtain witness details and take photos

Remember an insurance provider will review the relevant documentation supplied by the parties, normally several months (sometimes years) after the accident occurred.  If you are able to submit notes made at the time of the accident, contemporaneously made witness statements from neutral parties and photographs from the scene of the accident, which support your version of events, it is far more likely that the insurance company will agree to pay a fair settlement of compensation rather than proceed to trial. 

You should record the time of the accident, the direction each vehicle was travelling, the approximate speed of the vehicles and any other details when fresh in your mind.  You should also ensure that you and the police take the full name and contact information of anyone who witnessed the accident.

IV. Seek medical assistance

If you have sustained serious injuries you will be taken by ambulance to receive immediate medical attention.  If, however, your injuries appear to be moderate to minor, it is strongly recommended that you seek medical assistance at the very earliest opportunity.  Obtaining a contemporary record of the extent and severity of your injuries is key to producing evidence to support your claim.

Those victims who do not wish to incur the cost of seeking medical attention or hope to recover from injuries without treatment often find it more difficult to prove the true extent of their injuries as there is no objective record. 

Injuries caused by sudden impact can often have long-lasting effects, particularly whiplash injuries.  Whiplash is a sudden strain to the muscles, bones and nerves in the neck.  It is important that these and similar injuries be properly diagnosed.  If the injuries are left untreated they can become very serious and permanently restrict movement.  The extent of the injuries should be recorded by a medical professional, who can also advise on the best course of treatment to obtain the most complete recovery possible. Sometimes the full extent of injuries, which may appear minor at the time of the accident, do not emerge until long after the accident.  It is important to persist in treatment to be sure that injuries are fully diagnosed and properly treated.

You have a legal obligation to ‘mitigate your losses’, which requires you to take reasonable steps to prevent your injuries or expenses from escalating.  This means that if you let your injuries become more severe by failing to seek reasonable medical assistance, the compensation you will be entitled to may be limited. 

You should maintain a detailed journal recording the degree of pain, restrictions of movement, limitations of activities, incidental expenses and treatment you receive.

In my next blog I will focus on whether you need legal representation for an accident - 'Auto Accidents - Part III - Do I need an attorney?'

Content prepared by Edmond McGill and Richard Parry.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

NFL CONCUSSION LAWSUIT SETTLEMENT TO REACH $1 BILLION

A promotion of the McGill Law Office.

On April 22nd, 2015, a federal judge approved a settlement agreement that is expected to cost the NFL $1 billion over 65 years to resolve thousands of concussion lawsuits.  The NFL will welcome the court’s approval, coming a week before the NFL draft, allowing it to draw a line under a four-year litigation and re-focus on growing its global brand and revenue stream.

Background

On January 31, 2012, several individual lawsuits against the NFL were consolidated into one master case known as In re National Football League Players’ Concussion Litigation.  The master lawsuit claimed negligent conduct and fraudulent concelament on the part of the NFL, resulting in neuro-degenerative disease and injury to professional football players.  In the amended complaint the players' claimed that “the NFL has been aware of the growing body of scientific evidence and its compelling conclusions that professional football players who sustain repetitive MTBI (Mild Traumatic Brain Injury) during their careers are at greater risk for chronic neurocognitive illness and disabilities both during their football careers and later in life.

Approximately 6,000 of the league’s 20,000 retired players were a part of the master lawsuit against the NFL.  The alleged breach of the NFL’s duty of care to its players concerned the NFL’s failure to disclose the known risks of repeated concussions to players who returned to the field.

Among the plaintiffs were star footballs, unknown players and the spouses of retired and deceased athletes.  Each of them claimed compensation for pain, suffering and related expenses (primarily medical), which was argued they would have never incurred had the NFL acted responsibly and revealed the information it possessed.

Given the popularity of the NFL, the lawsuits sparked national interest, which led to debate and research about the health dangers of football-related head injuries.  Many felt the NFL litigation had the potential to reach the scale of the tobacco litigation of the 1990’s, with which it shares many similarities.  Like the tobacco litigation, there can be no dispute the players knew playing football was dangerous, but the plaintiffs questioned what exactly the NFL knew.  The litigation had such wide implications it placed huge uncertainty over the future of the NFL. 

The NFL responded to the lawsuits by filing a motion to dismiss the claims, relying on a federal employment pre-emption defense.  The argument being that the plaintiffs’ action “is a labor dispute, the resolution of which depends upon an interpretation of the terms of the applicable CBAs (Collective Bargaining Agreements)”.  The CBAs require arbitration to resolve an employment dispute, which is a significantly less costly process.  The NFL also argued that the plaintiffs had failed to properly state a claim and that the suits were time-barred (not filed within the appropriate time limit).

The NFL’s defenses were strong enough to make many independent legal commentators feel that the plaintiffs’ case would fail, which of course gave the NFL significant bargaining power.

The settlement

Under the terms of the settlement, awards could reach $1 million to $5 million for those diagnosed in their 30s and 40s with Parkinson’s disease or Lou Gehrig’s disease, or for deaths involving chronic brain trauma.  NFL representatives say the average individual award is likely to be about $190,000.

U.S. District Judge Anita B. Brody approved the settlement after twice sending it back to lawyers after reservations the proposed fund of $765 million might run out. Those negotiating the settlement did not increase the original $765 million proposal, but agreed to remove that figure as a cap.  NFL general counsel Jeff Pash said that Judge Brody’s approval of the settlement “powerfully underscores the fairness and propriety” of the landmark agreement.

The settlement means the NFL does not have to disclose what it knew about the risks and treatment of concussions, so the public may never find out just how culpable the league was in ignoring the consequences of head injuries.  However, the NFL has committed to addressing the concussion epidemic publicly, agreeing to changing protocols for evaluating injured players during games and launching an advertising and social media campaign to promote safe play at all levels of football.

Is this a fair settlement?

Despite the size of the settlement, critics believe the NFL is getting off lightly given that the league generates annual revenues of approximately $10 billion.   To put the NFL’s revenues in perspective, the league generates more money than the annual GDP of 54 countries (as reported by the IMF in 2014).  But should a company’s annual revenue be a factor in establishing a fair amount of compensation?

Many feel that the NFL’s decision not to disclose the damaging effect the game had on its players should have resulted in a far heavier penalty, whether in terms of additional compensatory awards to the players or a fine for the NFL.  $1 billion over a 65-year period is unquestionably small change to the league, but it is the figure that both parties to this dispute have negotiated and agreed.

The NFL was able to use the delay of a trial as leverage during its negotiations.  The league and the retired players knew that a failed settlement would lead to a trial, delaying financial awards and medical treatment for several years.  With many of the retired players, and their families, requiring financial support and urgent medical testing, there was great incentive for them to reach a settlement with the NFL.

That said, like most lawsuits of this scale, a trial would represent years of costly litigation and even Justice Brody made reference to the fact that the ex-players’ lawsuit faced an uncertain prospect of success.  With this in mind, and the fact that several of the players may not have much time left, given the nature of the diseases from which the suffer, the settlement is seen by some as a positive and sensible outcome.  Ex-players can receive the treatment they need immediately and can enjoy their remaining years with their families without the stress of litigation.

Has the lawsuit hurt the NFL?

Amazingly, despite the several years of media and legal focus on the health risks and inadequate safety protocols, the NFL, and football as a sport, remain as popular as ever.  Statistics show that there has only been a slight decline in the number of high school students playing football.  Perhaps more surprising is that only 5 percent of parents polled last summer by Associated Press-GfK (public opinion polling) said they have discouraged their child from playing in the last two years as concern over head injuries has increased.

According to Forbes, the NFL is the highest-grossing sport league in the world.  In 2010, NFL Commissioner Roger Goodells set the ambitious goal of the league generating $25 million by 2027. This was seen as fanciful at the time, but with talks of expanded playoffs, larger television deals and an NFL franchise in London, record making profits look set to continue.

What can we learn from this high-profile litigation? 

From a legal perspective, the dispute highlights the responsibility of companies, associations or private individuals, to carefully consider the duties of care they owe and the steps they need to take in order to discharge that duty.  In the case of the NFL, it concerned the disclosure of information highly relevant to the health and safety of professional athletes to whom they owed a legal responsibility.  But the importance of the disclosure of information in any industry could be just as damaging.  For example, there may be significant liability for failure to disclose the potential negative effects of a new drug in the pharmaceuticals industry or failing to disclose the risks associated with a financial investment scheme within the banking industry.

This is a landmark lawsuit in which the NFL ultimately chose to remove the risk and uncertainty of litigation that had the potential to not only result in a substantial damages award, but could have led to irreparable harm to a brand that generates billions.  By ensuring that it does not have to disclose what it actually knew about the effect head injuries had on the league’s players, the NFL has protected itself and its image from further media scrutiny, the potential backlash of it’s worldwide fan base and most importantly its commercial sponsors.  

Despite the apparent strength of the NFL's defenses, credit should be given to the NFL's legal and PR team for managing and disposing of a lawsuit that could have had catastrophic consequences.  This should be a lesson to other defendants who find themselves in high value and high profile lawsuits; where there is an exit route, even a very costly one, you should always look to preserve the future success of a marketable brand or product.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

'BE KIND TO LAWYERS DAY' - ORIGIN AND PERCEPTION

A promotion of the McGill Law Office.

  NON SEQUITUR BY WILEY MILLER, September 1993

NON SEQUITUR BY WILEY MILLER, September 1993

It's hardly one of the more common national days of celebration.  In fact, the majority of lawyers are not aware that April 14th is National Be Kind to Lawyers Day.  However, the celebration itself should be embraced by a profession that has at times struggled with its image.

Origin of the day

The celebration was established in 2008 by Steve Hughes, a Public Speaking professional who worked closely with lawyers.  Steve believed that lawyers did not deserve the public contempt and negative publicity that they regularly received. He therefore proposed a celebration in between April Fool's Day and the US Tax Filing day to be held each year to show appreciation to those who make it their responsibility to handle the nation's legal matters.

The celebration has gathered interest and support abroad, which has led to a movement seeking to change it into the 'International Be Kind to Lawyers Day'.

Is the negative public perception unwarranted?

For centuries public satire has targeted the integrity of lawyers.  Since Shakespeare, practitioners of the law have often been portrayed as dubious characters.  There is a tombstone in Surrey, England, of a lawyer who died in 1772 that reads "God works wonders now and then—here lies a lawyer, an honest man".

Recent times have seen the legal profession thrust into the public arena in the form of high profile trials (O.J. Simpson and Michael Jackson spring to mind) as well as network television and Hollywood's dramatization of the legal industry.  Tom Cruise famously played the starring role as Mitch McDeere in John Grisham's 'The Firm', which focused on the sinister side of a prestigious law firm.  Paul Newman in 'The Verdict' played a drunk that deceives clients into thinking he has their best interests at heart, while 'Michael Clayton' sees a major corporate law firm engage George Clooney's services as a fixer to do its dirty work.  This fictional world has played a powerful role in presenting firms and attorneys as heartless sharks greedy for their next pay-day.

The reality is that for every dishonest or shady attorney there are hundreds who have the utmost respect for the profession, their ethical obligations and most importantly the duties they owe to their clients. However, what does differ is the experience, personality and dedication with which attorneys progress their clients' matters.  I have worked with many lawyers over the years and I am proud to be part of a profession that for the vast majority is made up of men and women of integrity and respect for the rule of law.  My advice to any individual or business looking for an attorney would be to take some time to satisfy yourself you have found competent legal representation that fits your needs.

Celebrate National Be Kind To Lawyers Day

If you have an attorney or are friends with an attorney you should know that their working day is usually long, stressful and tiring.  They are committed to getting their clients the best outcome possible and invest a lot of time and energy to achieve that.  Most good lawyers regularly work evenings and weekends to stay on top of a case, and are on-hand to step in whenever you need them to protect your interests and defend your rights.

I encourage marking the day by letting attorneys know its National Be Kind to Lawyers Day. The attorney in question will almost certainly appreciate the comment.  Plus, being on good terms with an attorney can only be a good thing. In tribute to the day I recommend watching 'A Few Good Men', to restore any doubts in the profession... and to watch Jack Nicholson give one of the best court room scenes on movie history!

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

AUTO ACCIDENTS - PART I: WHAT THE LAW SAYS

A promotion of the McGill Law Office.

PART I - THE LAW

I. Proving liability in an auto accident

California is a "fault state" when it comes to car accidents, meaning a plaintiff (the injured party) is required to prove fault and liability before he or she can receive compensation.  There are no minimum requirements in California, in terms of the seriousness of the injury or the likely compensation recovery, as there are in several other states.  To prove liability, a Plaintiff must show that the driver at fault was 'negligent', which caused the plaintiff to suffer damage (physical injury or financial loss).  The four elements that a Plaintiff must prove are: - 

1.  A legal duty was owed - drivers owe a legal duty to all foreseeable victims, being other drivers, passengers, pedestrians and cyclists, to operate their vehicle with a reasonable standard of care.

2. The duty was breached - the duty is breached where a driver fails to operate a car to the standard of a reasonable prudent driver.  A reasonable prudent driver is deemed to drive at an appropriate speed, concentrate on the road and obey the laws of the highway.  

3. Causation – means showing that the breach of duty has led to injuries.  The driver's action or inaction has caused injury to someone who was owed a duty of care (a foreseeable victim).  In other words, had the driver been operating the vehicle in a reasonably prudent manner, the accident would not have occurred.

4. Damage - the driver's actions must have caused injury (physical harm or economic loss).

II. Who is responsible for the accident?

The driver at fault is generally responsible for the damage caused by the accident.  Assuming the driver is insured, which is a legal requirement of using a vehicle on the road, the at-fault driver’s insurance company will be responsible for paying out compensation for all injuries and loss.

In certain circumstances insurance companies might attempt to withdraw or limit insurance coverage if there is evidence of a breach of the policy by the driver at fault.  For example, some insurance policies exclude coverage if the driver has an out-of-date driver’s license.  Insurers may also attempt to exclude or limit coverage when the driver at fault tests over the limit for alcohol.  However, this would usually concern the driver at fault's insurance coverage and possibly his passengers, if they knew the driver was under the influence.  It is unlikely this would affect insurance coverage in a claim by an injured third party.

If it transpires the driver did not have a current insurance policy (which is illegal) or insurance coverage is successfully denied or withdrawn by an insurance company, then your claim will be against your own insurer pursuant to your uninsured motorist coverage or against the individual who personally caused the accident.  Before investing time, energy and money seeking compensation directly from the driver at fault, it is advisable to explore whether the individual has the means to pay any compensation.  You could spend a lot of time and money obtaining a court judgment for compensation, only to find the defendant has no money or assets from which you can recover compensation.

III. What compensation may you receive?

The law holds the at-fault driver responsible for two types of damage caused, ‘general’ damages and ‘special’ damages.  General damage assesses the ‘pain, suffering and loss amenity’ caused by the accident.  There is substantial case-law in California, and the wider U.S., that has quantified and created guidelines as to the amount of compensation a victim can receive from anything ranging from minor whiplash or a sprained wrist, to more serious injuries including brain damage or the loss of a limb. 

Special damages assess the out-of-pocket expenses that are reasonably incurred by the victim as a result of the accident.  Common special damages include: -

  • Medical treatment (surgery, rehabilitation treatment, medication etc.)
  • Care and assistance while you recover (this can be claimed for both professional care and assistance provided by friends and family)
  • Lost earnings (Past and future earnings if you are unable to work as a result of the accident)
  • Repair or replacements costs for damage sustained to your vehicle or personal items

IV. Shared fault

If you are deemed to share some of the blame for causing the accident this will affect the amount of compensation you can recover.  California is a ‘pure comparative fault State’, which means the amount of compensation an injured person can recover following an accident will be reduced in proportion to their percentage of fault.  For example, if you were 20% at fault for the accident, and damages were agreed or awarded at $50,000, you would receive $40,000 in compensation (with the agreed or awarded amount being reduced by $10,000 to reflect your proportion of blame).

V. Time limits for bringing a lawsuit

Any lawsuit seeking damages (compensation) from an accident must be filed within a certain time limit from the date of the accident or the injured person's legal claim will be 'time barred' and their right to sue will be lost.  In California, pursuant to Cal. Code of Civ. Proc. Sec. 335.1, the statute of limitations for filing a personal injury claim is generally two years.  

However, where the suit is against a federal, state or local government entity a 'notice of claim' must be filed within six months of the accident.  It is therefore crucial that you assess the correct party to sue and file a lawsuit within the appropriate time-frame.  The statute of limitations is strictly applied and those who fail to file a lawsuit within the necessary period will lose their right to claim, regardless of how compelling the evidence is against the at-fault driver.

In my next blog I will focus on what you should do if you are ever involved in an auto accident - 'Auto Accidents - Part III - Steps to take after an accident?'

Content prepared by Edmond McGill and Richard Parry.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.

AUTO ACCIDENTS - INTRO: WHAT YOU NEED TO KNOW

A promotion of the McGill Law Office.

WHAT YOU NEED TO KNOW ABOUT AUTO ACCIDENTS

Being involved in a car accident is a traumatic experience, but being aware of your rights at this stressful time and having good legal representation is often the difference between receiving fair compensation for your injuries and not.  The steps you take after an accident will determined your ability to pursue a successful claim and the amount of compensation you are likely to recover.

I have prepared a 4-part mini series of publications addressing the things you need to know if you are involved in an auto accident.  These publications will teach you about: -

1.       The law concerning auto accident claims;

2.       Steps to should take after an accident;

3.     Whether you need at attorney; and

4.       Building a case and negotiating a settlement.

The publication summaries are designed to help educate people about how the compensation process works and what they can do to ensure they receive fair compensation for the injuries and losses they have suffered as a result of another driver's carelessness. The legislation in California and the practices of insurance companies contain several hurdles that injured parties need to overcome to successful recover compensation to which they are entitled.  I want to share with you the main obstacles victims face and the steps you can take to preserve your claim.

I will be publishing Part 1 - "What the law says" on my blog later today.  The remaining parts of the series will be published each week.

I hope you find these legal summaries helpful. Please do not hesitate to contact me if you wish to discuss a claim for compensation or any other area of law that my law practice offers.

In my next blog I will focus on the federal and state legislation that affects auto accident claims - 'Auto Accident - Part I - What the law says'

Content prepared by Edmond McGill and Richard Parry.

....................................................

This message and the information presented here do not create or evidence an attorney-client relationship nor are they intended to convey legal advice or counsel.  You should not act upon this information without seeking advice from a qualified lawyer licensed in your own state or country who actually represents you. In this regard, you may contact The McGill Law Office and then representation and advice may be given if, and only if, attorney Edmond McGill agrees to do so in a written contract signed by him.