Fwd: Agent Orange and Multiple Myeloma

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March is Multiple Myeloma Awareness Month. [image: US Department of Veterans Affairs - Veterans Health Administration] Veterans Health Administration Update: Agent Orange [image: Doctor smiling at Veteran]

March is Multiple Myeloma Awareness Month. There is evidence that exposure to the herbicides used in Vietnam is associated with the development of multiple myeloma. If you are a Veteran with multiple myeloma who was exposed to Agent Orange during service, you may be eligible to receive VA health care and disability compensation. Learn more. http://links.govdelivery.com:80/track?type=click&enid=ZWFzPTEmbWFpbGluZ2lkPTIwMTYwMzA3LjU2MTIzNzMxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE2MDMwNy41NjEyMzczMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MDE5MzUyJmVtYWlsaWQ9Y2FsZWJAbGFuZ3NkYWxlbGF3LmNvbSZ1c2VyaWQ9Y2FsZWJAbGFuZ3NkYWxlbGF3LmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&100&&&http://www.publichealth.va.gov/exposures/agentorange/conditions/multiple_myeloma.asp

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For Whom the Statute Tolls

 Statute of Limitations; A deeper look at the infamous legal concept

    While in law school, students are bombarded with legal doctrines and common law concepts that serve as the backbone of modern law.   Lawyers are taught complicated legal fundamentals with archaic Latin names such as "Res Judicata" and "Res Ispa Loquitur."  While I was attempting to learn such foreign principals in law school, I breathed a sigh of relief when we got to the subject of the “Statute of Limitations”, also known as the ‘SOL.’

     The term ‘Statute of Limitations’ is generally familiar to most of our society.  The broad and basic meaning of an SOL is also known by most people who have worked in any business setting or is a fan of television legal dramas like Law & Order.  A statute of limitations is legislated to serve as an absolute bar to initiating legal proceedings for damages after a determined length of time has elapsed from event that caused the damages.  However, in legal practice the only “absolute” is that nothing in law is this simple or absolute.

     Not until I began practicing law did I realize the complexities associated with the SOL.  Most legal scholars and practitioners will agree that SOLs serve legitimate policy purposes.  For instance, citizens should not live in apprehension or jeopardy of being potentially criminally prosecuted for minor crimes that occurred decades ago.  For instance, imagine the havoc that would ensue if government prosecutors could decide to arrest and prosecute you for vandalism that occurred 15 years ago when you drunkenly decided to egg a fraternity house as a college prank! 

     SOLs are also in place for civil lawsuits in nearly every jurisdiction in the union.  Generally, for purposes of legal collection, it is preferable to have a long statute of limitation.   The longer the SOL the more time a creditor has to skip the debtor and obtain all documents, assignments, statements, etc. necessary to proceed with litigation.  If you have a collection account and the SOL has run prior to filing the complaint against the debtor, you really are SOL (shit out of luck)!   Filing a complaint after the SOL has run will result in the complaint being dismissed by the Court, Sua Sponte, or by an eager debtor’s attorney through filing a nasty motion to dismiss based on violating the SOL.  Incidentally, the later of these two circumstances can also result in the awarding of attorneys’ fees or possibly sanctions for bringing a case in violation of the SOL.  In the worst-case scenario filing a complaint in violation of the SOL can also result in the initiation of an FDCPA case against you, a malpractice claim against the law firm and/or possibly a State Bar investigation.

      There are techniques and strategies you can use to try to extend the statute of limitations, should the need arise.  First, familiarize yourself with the statute of limitation laws within the jurisdiction of the potential lawsuit.  Usually, there will be several different SOLs in place for different civil causes of action.  For example, in Nevada, NRS 11.190(1)(b) places a six (6) year SOL for written contracts, yet NRS 11.190(2)(a) places a four (4) year SOL for causes of action based on “Open Accounts’.  Sometimes you may be of the opinion that you cannot sue on an account because you are past SOL for a certain cause of action; however, upon further review that same placement may be able to be sued upon an alternate theory of liability that has a longer SOL period.

Tolling of a Statute of Limitation:

     It is critical to understand how an SOL is ‘tolled’ within your jurisdiction.  In other words, how is time calculated to determine whether a placement is within the SOL for purposes of filing suit?  Let's say, for example, you have a credit card placement wherein the debtor opened the account in 2006.  Based on the date the account was opened it is clear that the SOL would have run for even the lengthiest of statutory limitations.  Based on this calculation, filing a suit on the case would not be an option.  However, this may not be accurate if your jurisdiction has a tolling statutory prevision.  

Nevada's tolling statute, codified as NRS 11.200, states in part:

‘Whenever any payment of principal or interest has been or shall be made upon an existing contract...the limitation shall commence from the time the last payment was made.’  NRS 11.200

     In essence, this statute means that the SOL does not begin to ‘toll’ or run until the last payment is made on the account, even if the payment is partial and/or late.  This statute can be of tremendous benefit for the Creditor.  Using the previous example, if you can obtain statements that document any payment that was applied to either principal and/or interest within the past six (6) years then that account is within the SOL and the initiation of a suit can proceed.

Conclusion

     Although simple in theory, statute of limitation issues are much more comprehensive in application.  Regardless of any serious allegations or large sums of money at issue, a case cannot commence unless it fits within the SOL for the jurisdiction at issue.  It's important to consider all pertinent facts available when evaluating whether a case falls within the requisite SOL.  The utilization of some of the above tips and techniques may help overcome the SOL hurdle in situations that appear to be past stats on initial review.

 

First written as a guest blog for The National List of Attorneys and published 7/10/14 on The NL Insider as “For Whom the Statute Tolls.”

 

Feeling Guilty

To any and all subscribers and viewers that are interested in the niche area that my legal practice serves:

I am feeling a little guilty that I haven't posted a new blog article in the past few weeks.  Rest assured, I have been busy practicing law in addition to drafting new material that, I feel, is of value and interest.  Recently, I have been fortunate enough to be asked to publish a few guest blog articles for different renown industry organizations.  As such, I have been busy drafting and refining my proposed articles in hopes of reaching a larger audience that will eventually make its way to this, very, blog.

In closing, I appreciate the ongoing opportunity to express my opinions and experiences through blogging.  I find the experience to be enjoyable and rewarding on many levels.  The process of drafting a detailed article will often be remunerated as an improvement in a process within my legal practice.  It is rare to find a time intensive interest, like blogging, that actually increases work productivity and efficiency.  For which, I am grateful.  

 

When to File a Law Suit

It's a Business Decision...Not an Emotional Decision

With the primary exception of family law, the initiation of a lawsuit should not be prompted out of any emotional desire.  For this reason, I practice many areas of law with the caveat  that I will NOT accept a heated divorce or custody case, regardless of how much money the client may offer me.   No offense to family practitioners, as they provide a vital and important, albeit emotionally demanding, service.  

The initiation of a formal law suit is the beginning of a serious, expensive and lengthy process. As such, it should, usually, only be undertaken with the proper goals in mind and any feelings of anger, disgust, hatred, revenge, fairness, deception or even justification left at the door.

The decision to sue someone should boil down to what relief or remedy will suing this person or entity provide.  In other words, what will you gain if you win this lawsuit.  In law school, there are classes devoted to this important principal called "Remedies."  In the practicing world of law, remedies are the reality and should be the driving force behind a healthy practice and adviser to clients.

Before a suit for money damages is filed, you need to look at to what monies are available to pay those damages.  In a civil lawsuit, regardless of what terrible act the defendant has done to you, it really only matters what monies are available to remedy that harm.  In other words, you can't squeeze blood from a turnip.

This means some research and investigation needs to be conducted before you yell out to the wrongdoer, "I'm gonna sue your pants off."   In reality, he/she may not even own the pants they are wearing!

Look to all available assets and money sources of the proposed defendant, including:

  1. Insurance policies
  2. Bank accounts
  3. W-2 paying job
  4. Real Property
  5. Multiple vehicles
  6. Other tangible assets

If the wrongdoer has none of the above, he may likely be legally "judgment proof."  Even if the defendant has some of the above, look to your states exemption statutes as many states limit what assets can be garnished to satisfy a judgment.

If the wrongdoer is judgment proof and it looks like he or she will always be judgment proof than a lawsuit may be an expensive and futile exercise.  A judgment is only as valuable as it is collectible. 

Of course, there are always exception to this rule and additional strategies are sometimes used when initiating a suit.  However, it is critical to always take into account the wrongdoer's potential sources of money before hastily rushing to file suit.

PLEASE BE ADVISED THAT THE INFORMATION DISSEMINATED ON THIS BLOG IS FOR GENERAL INFORMATION PURPOSES AND IS NOT INTENDED OR TO BE CONVEYED AS LEGAL ADVICE.


Courtroom Etiquette 101

The basics of how to get through your court appearance without feeling completely out of place

 Seinfeld Makes it looks Easy

Seinfeld Makes it looks Easy

For anyone who has had to go to court for whatever reason, including newly admitted attorneys, they know it can be a very intimidating and awkward experience.  It doesn't mater the subject matter or the importance of the case, the courtroom experience itself can be frightening.  There is no instruction manual provided, nor does anybody within the courthouse seem too interested in assisting you as they watch you fumble around the courthouse trying not to call attention to yourself.  Some of these generally universal tips may make your next court appearance a little less intimidating.

Depending on the size of the courthouse, be sure to get there at least an hour early.  The first hurdle will be to get through the door and the metal detectors.  Make sure you don't bring anything that can remotely be construed as a weapon.  No pocket knives, pepper spray or even nail clippers are generally permitted, and will usually be tossed by the bailiffs.

Next look closely at your court documents to find which courtroom and department your case is designed.  This is another issue that is usually more complex than it sounds.  Usually, the courtroom numbers don't match the department numbers.  Further, there are usually courts of different jurisdiction within the same courthouse.  So double check your designated courtroom with any case management monitors that may be available in the courthouse lobby.

Remember, your case is not that special to anyone but you

Once you make it to your designated courtroom, the fun and awkwardness are just beginning. In movies and TV shows (such as the image above) when the characters have to appear in court it seems like the entire courtroom is devoted to those characters and their case.  So it stand to reason that people look at their court notice with a set time and date and think that they are the only people set for court on that date and time.  This couldn't be further from reality.  

In the real world, the courtroom is a crowded and often over-calendared; it's a chaotic place. Generally dozens of other people have also been calendared for hearing at the exact same time and place as you!

So whatever you do, don't walk into court and take it upon yourself to go have a seat at the podium and get yourself comfortable until the judge takes the bench, unless your goal is to get publicly lectured by the bailiff and possibly held in contempt of court.

To ensure you won't be spending an evening in lock up on contempt like Joe Pesci in "My Cousin Vinny,"  follow these simple tips upon entry of the courtroom:

  • Arrive at least 15 minutes early to your courtroom, not 15 minutes early to the courthouse.
  • Make sure you have your case name, case number and any court ordered documentation easily accessible.  
  • Upon arrival (as long as court hasn't started yet) linger in the back of the courtroom for a moment and get a feel for the specific court decorum and try to scout out someone who looks to be a familiar and comfortable in that courtroom, whether it be an attorney or a seemingly friendly staff member.
  • Watch that person to get a glimpse of what the check-in procedures are for that specific courtroom.  Every courtroom is different.  Some courtrooms require:  you check in with the court clerk, you check in with the bailiff, only attorneys check in, or nobody checks in.
  • If you see people standing in a line directed toward a particular clerk, it's a good indication that is where you need to be to check-in.  As a general rule, court clerks are very busy and don't have the time or the desire to answer questions or engage in a discussion with you.  So be polite and as direct as possible when checking in with the clerk.
  • NEVER EVER PISS OFF THE COURT CLERK FOR ANY REASON.  They have more power than you realize, and can make your life and case very difficult!
  • If you still feel lost, quietly go up to whomever you sensed to be the most familiar with the setting and easy going, preferably an attorney, and ask where to check in.

Once checked in, take a deep breath and have a seat in the gallery.  The "gallery" is the area with the church pew style seats that are usually behind the Plaintiff and Defendant tables and/or podiums.  You wont approach that area until your case is specifically called.  Ensure your cellphone is turned off or at least silenced as nothing can be as scary or traumatizing as your cellphone ringing while court is in session (depending on the judge).

Before court officially begins, the court bailiff/marshal will call the court to order and generally ask you to stand up while the judge takes the bench.  Never ever sit down before the judge takes his/her seat and the bailiff tells the court to be seated.  Next keep your fingers crossed that you are not the first case called so that you can watch the procedures of other parties as they make their entrance from the gallery to the appropriate Plaintiff or Defendant table.  Generally, attorneys are called first so pay close attention to their movements and verbiage as they address the court.  Once your case is called, it is your time to shine!

Hopefully, the forgoing will alleviate some of the tensions associated with the courtroom experience.  If interested, keep your eye out for my next post on courtroom etiquette 102.

 

PLEASE BE ADVISED THAT THE INFORMATION DISSEMINATED ON THIS BLOG IS FOR GENERAL INFORMATION PURPOSES AND IS NOT INTENDED OR TO BE CONVEYED AS LEGAL ADVICE.






Beware of the Expired Court Judgment

Did you know that most court judgments don't last forever?

Most people are familiar with the concept of the statute of limitations (SOL).  If not, I will certainly be discussing this issue in further detail in future posts.  In a nutshell, the statute of limitations limit the time from which an event occurred to when it is actionable in a court of law for relief.  The SOL serves important interests that will be addressed in future discussions.

But what about if you have already done your due diligence, sued a party and obtained a judgment against them for monies?  Many judgment holders would be surprised to learn that if they don't make collect arrangements to enforce their judgment they potentially run the risk of the judgment "expiring."  In Nevada, judgments expire six (6) years from being issued by a Judge or Justice of the Peace.  NRS 70.010(1)

Once expired, the judgment is, for all intensive purposes, useless and cannot be legally enforceable by any means.  So what happens if your judgment is almost six (6) years old and it hasn't yet been paid?  Fortunately, in most jurisdictions, their is a voluntary legal mechanism in place that can prevent your valuable judgment(s) from expiring and being rendered worthless.  In Nevada, the process is called Judgment Renewal and is accomplished by filing an "Affidavit of Renewal" and complying with the specific requirements set fourth in NRS 17.214.

The Judgment Renewal process in Nevada is not complicated, but it does require the strict compliance with various time, filing and mailing requirements.  If done correctly, the Judgment Renewal process will renew the judgment and outstanding judgment balance for another six (6) years.  In theory, you can continually renew a judgment every six (6) years into perpetuity.  It's important, however, to keep in mind the the primary purpose of obtaining a judgment is to collect the monetary value of the judgment in as short as period as possible.  

That said, if you find yourself in legal possession of an aging judgment it is critical that you timely renew the judgment in accordance with the judgment's jurisdictional requirements to prevent the potential irrevocable expiration of the judgment.

 

PLEASE BE ADVISED THAT THE INFORMATION DISSEMINATED ON THIS BLOG IS FOR GENERAL INFORMATION PURPOSES AND IS NOT INTENDED OR TO BE CONVEYED AS LEGAL ADVICE.

First Blog Entry - The Attorney Disclaimer :)

In anticipation of a, hopefully, interesting and informative legal blog; I need to make sure I cover my bases.  

As such, PLEASE BE ADVISED THAT THE INFORMATION DISSEMINATED ON THIS BLOG IS FOR GENERAL INFORMATION PURPOSES AND IS NOT INTENDED OR TO BE CONVEYED AS LEGAL ADVICE.

Further, very little in law is black or white, and statutes and cases change frequently.  Much of the information to be discussed is of a general nature and may be generally applicable in most states across the country.  However, every state has their own set of statutes, rules, cases and otherwise.  Any specific information is predicated on the current Nevada statutory scheme.

No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.

 Now that I got that over with, I hope my next posting will be of more value to the reader.