HE SAYS:

Today’s advanced medical technology may result in the possibility of being subjected to various invasive medical procedures, particularly life support systems, which may serve no purpose other than to prolong the process of dying.  There are two effective ways to make your wishes known as to how you want to be treated when faced with this possibility.

A Living Will is a legal document in which you, as an adult who is now competent, can state your wishes regarding your future health care.

Your instructions are usually intended to apply if you are in any of the following states: (a) in a terminal condition; (b) permanent unconsciousness (persistent vegetative state); or, (c) conscious but with irreversible brain damage such that you will never regain the ability to make decisions and/or express your wishes.  In addition, a Living Will can be used to provide for any expression of your wishes as to your future health care and treatment.

As a general rule, the law allows each person the right of self-determination, including the right to accept or decline medical treatment.   The law, also, usually requires that your wishes be established by “clear and convincing proof” such that your instructions are clear and unequivocal.  A Living Will is the ideal document to express your wishes.   It is important to be as specific as possible, particularly regarding such issues as cardiac resuscitation, mechanical respiration, antibiotics, pain medicines, and artificial nutrition and hydration.   You should also discuss these issues with your family and physicians to further make sure your wishes are known and understood.

A Health Care Proxy is a document which allows you, as a competent adult, to appoint another person as “agent” or “attorney in fact” to make decisions for you regarding your health care in the event you lose your decision making capacity and are no longer able to decide for yourself.

The agent’s authority to make health care decisions for you is activated only upon a determination by your attending physician that you have sustained the loss of your capacity to make health care decisions.   In some cases, a second opinion will be required before your agent can act on your behalf.   Your agent would make sure that your wishes, as expressed in your Living Will, are carried out; however, even absent instructions in a Living Will, your agent can still make decisions based on your wishes, including your religious and moral beliefs, if known to your agent, or, if your agent does not know your views, then in accordance with your best interests.

Having both a Living Will and a Health Care Proxy provides you with the best defense from unwanted health care and treatment.

It is recommended that you discuss these issues with an attorney, your family, and your physician.

 WHAT DO YOU SAY?

HE SAYS:

This is a personal story of perseverance told not to elevate myself but to show how circumstances can push you to overcome setbacks you may encounter in reaching your goals.   In my case, each career crisis that I faced occurred around the time each of my children was born.  At the time, I looked at each situation separately and did not recognize the coincidence or understand how it helped motivate me.   It is only in hindsight that I was able to connect the dots and realize that I was encouraged to persevere by the desire to succeed for the sake of my children.

In early 1982, as a young lawyer, I found that my law career was not fulfilling enough and I decided that I would start to become more involved in trial work.   There are some lawyers who believe that you do not truly practice law unless you are in a courtroom and I started to feel that way.  By August of 1982, I had worked out an arrangement with a small law firm that primarily did contested divorces and they wanted to expand their personal injury practice.   I rented office space from them and agreed to suspend most of my own practice in order to work as an independent counsel to manage and pursue their personal injury cases, including the trials and appeals, for a percentage of their contingency fees.

Since personal injury cases can take a long time to bring to a conclusion, it took me many months before I started to see any real money from this arrangement.   It was difficult for a while but, eventually, I grew the personal injury practice and increased my income substantially.   As it happened, my sons Matthew and Michael were born in November of 1982.   This was not an ideal time to take such a big chance with the direction of my career.

By the fall of 1984, the small law firm that I was involved with was breaking up and during the winter and spring of 1985 a dispute arose over the personal injury files.  This dispute escalated into a full blown law suit over the control of the files and the money they would produce.   Since I was not the attorney of record, I did not have any direct legal rights to the files and was forced to also sue in order to assert my claim on the money generated from my work.  There is nothing more explosive than when lawyers are suing each other over money.

Needless to say, I had to leave and open a new office.   To make matters worse, I had to leave all of the files behind and the money from the files I had worked on was now tied up in court and not available to me.   By that time, almost my entire practice had been devoted to those files, and now I had to start over with few clients and little prospects of any money until I could build up my practice.   Fortunately, some of the former clients ultimately brought their files to me and retained me directly.   It took a long time to bring my practice back to the level of income I had enjoyed and, eventually, I surpassed the success I had attained while working with the other firm.   As it happened, my son Joseph was born in May, 1985.   This was not an ideal time to have to start my career over again.

In January 1989, I bought into a large office building that my brother was renovating for USFSB.   The renovated building included a floor of professional offices.    In the fall of 1989, I decided to move my office to this building.   Since this building was in a different city than where I practiced law, I saw a large and unexpected drop in my business.   It took me well over a year to establish myself in this new community and build my practice back up to its former success.   As it happened, my daughter Julia was born in January, 1990.  This was not an ideal time to suffer such a career setback.

In each case, perseverance and, I believe, the fact that my children needed me to succeed helped me focus on my goal to prosper as a self-employed attorney.

WHAT DO YOU SAY?

HE SAYS:

When I posted “Guilty As Sin” and somewhat whimsically suggested that we dispense with the formalities of due process for those caught in the act of committing their crime or who otherwise were obviously guilty, I was soundly chastised for even considering taking away any rights of the accused.  We abhor even the possibility of wrongfully convicting and punishing an innocent person.

Our criminal jurisprudence, the constitutional right to due process, and our sense of justice all require that anyone who stands accused of any crime by anyone is presumed to be innocent until proven guilty in a court of law after being afforded his right to a fair trial with a jury of his peers.  Stated plainly, all those accused of a crime are, in the eyes of the law, innocent despite the weight of the evidence against them and despite our sympathy for the alleged victim.   By simple logic, if the accused stands as an innocent person, then the accuser or alleged victim must necessarily be presumed to be wrong either because of a mistake, misunderstanding, or because of a false accusation.

We can’t have it both ways.  We can’t cloak the accused with the mantle of innocence and, at the same time, sanctify the alleged victim as being beyond scrutiny, reproach, or doubt.   In fact, the point of the presumption of innocence is that the accusations being lodged must be questioned, investigated, and, ultimately, tested in a court of law before they are officially deemed to be true.  To allow anyone accused of a crime to be judged and condemned in the court of public opinion is to disavow the presumption of innocence we profess to be of such great importance.

Therein lies what I see as the hypocrisy in our rush to judgment when it comes to crimes of sexual misconduct.  We have reached a point in our culture where anyone accused of a sexual crime is vilified and damaged beyond repair in their reputation long before the trial and the alleged victims of these crimes are afforded the benefit of all doubt upon making the accusation.  We have reversed the process by assuming the veracity of the accuser and thus stripping the accused of all presumptions of innocence.

A clear example of this is seen in the fact that the Syracuse University basketball coach was hounded into apologizing for doubting the truth of the accusations against the assistant coach who he defended.  There was nothing to apologize for if we truly believe in the presumption of innocence.  Regardless of whether or not the assistant coach is found guilty, he is, at this point, an innocent man and his accusers are the ones who should be subject to all of the doubt.

I believe in victims’ rights as much as anyone, but, we need to decide if we are going to condemn the accused before or after the trial, particularly, when pressed by our sense of outrage over sexual crimes.  We, as a nation of laws and a society that cherishes its rights, need to come to terms with our belief in the presumption of innocence which has long been the cornerstone of our criminal justice system.   Either we are going to give the benefit of the doubt to the accused or to the accuser as I don’t believe we can do both.

WHAT DO YOU SAY?

HE SAYS:

I very rarely handled criminal cases during my many years practicing law for a number of reasons.   I felt that it was a specialized area of the law that was best left to the experts and even though I handled many civil trials I did not feel comfortable with the unique rules and procedures of criminal trials.   Also, as a practical matter, few criminal defendants have enough money to finance a good defense or to pay you an adequate fee.

However, the most important reason that I never warmed up to criminal law was that I could not, in good conscience, provide a no holds barred, win at any cost defense to people I either knew or believed were guilty.   I am both amazed and perplexed by lawyers who can zealously represent defendants who are guilty of despicable crimes.

Even though this flies in the face of all of the jurisprudence I learned in law school and experienced as a practicing lawyer, I have in recent years developed a very pragmatic approach to the disposition of some criminal cases.   If the defendant, and I don’t mean alleged defendant, is caught red handed with the smoking gun in his hand such as seen in some of the most horrible school or workplace shootings or the recent shooting in Tucson, Arizona, I suggest that the culprit be immediately incarcerated and sentenced.   We can skip the trial and the inevitable sob story defenses that tries the patience and credulity of most reasonable people.  I also don’t particularly think it should matter if the defendant is insane as that just makes him more dangerous so we can dispense with any insanity defenses.   Let’s face it most of these violent murderers are deranged in one way or another.

I would go even further.   Let’s take the case of the woman whose young daughter went missing and her disappearance was not reported for over a month.   Even then, there was a series of lies about her disappearance and only at trial does the defense attempt to raise doubt with various outlandish alternative stories.   I say, if it smells like murder, and in this case literally, if it feels like murder, and if common sense all points to murder, let’s just agree that she is guilty so that we can send her to her punishment.   Do we really need to indulge her with a prolonged trial and media circus just to see if the defense can confuse some aberrant juror into believing that up is down and wrong is right?   Sometimes, we should just let common sense prevail.

Sure, we do not want to convict or punish innocent people.   However, I propose the guilty as sin rule for those cases where there is no doubt, reasonable or otherwise, as to the guilt of the accused.   In those cases, we should expedite the process and dispense with ludicrous trials full of ‘red herrings’ and dubious excuses followed by the inevitable frivolous appeals and instead just give them the go straight to jail card.

WHAT DO YOU SAY?

This is the second part of a two part series.  Click here to read Premises Liability, Part 1.

HE SAYS:

The owner of a business, in addition to maintaining the property in a safe condition, is required to take reasonable care to make sure that his patrons are not negligently or intentionally harmed by his employees or other patrons.   This duty may arise when the owner knows or should have known that an employee or patron poses a danger based on present or past conduct.

There may be no liability, as a matter of law, if the injury is caused by a defect so slight that a prudent person would not reasonably anticipate that it presented a danger.   In contrast, there may also be no liability when a defect is so obvious that it could readily have been observed and avoided.

Liability may be mitigated or even eliminated by certain legal doctrines.   Comparative or contributory negligence doctrines would require the property owner’s liability to be reduced or eliminated by the injured party’s own misconduct or lack of reasonable care for his own safety.

The Assumption of the Risk doctrine states that an injured person cannot recover for risks that he assumed, provided the risks are not unusual or obscure or unduly enhanced by the owner of the premises.   For example, a patron of a sports facility who engages in a sporting activity assumes all of the risks inherent in that activity as well as any obvious conditions of the premises where the activity takes place.   This doctrine could apply to ski resorts, baseball parks, golf courses and any number of other sports or recreational facilities.

In short, be careful and be insured.

WHAT DO YOU SAY?

HE SAYS:

In general, a property owner who opens his property to the public for purposes of gain impliedly warrants the premises to be reasonably safe for the purpose intended and is under a legal duty to exercise due care to maintain the premises in a safe condition.   The duty to maintain the premises in a safe condition includes a duty to make reasonable inspections for defects and repair such defects in a timely manner.

Generally, property owners are held to a single standard or duty of reasonable care based on the foreseeability of someone on their property being placed in danger.   The status of the injured party as a trespasser, licensee or invitee is no longer the determining factor; but, is one factor in determining the foreseeability of that person’s presence on the property and the level of care reasonably required under the circumstances.

In order for a property owner to be liable for a defective condition on the premises, he must have actual notice of the condition and time to correct it or he must be deemed to have constructive notice which occurs when the condition has existed for a sufficient period of time such that the property owner reasonably should have known of and corrected the condition.

A property owner may also have a special duty to keep the adjoining sidewalk in a safe condition when the adjoining sidewalk is used for a special purpose for the benefit of the property owner or he has created a dangerous condition on the adjoining sidewalk.   Examples of this would be when a business uses the adjoining sidewalk to display its goods or as an outdoor eating area such as a sidewalk cafe.

See Part 2 for additional liability issues and certain limits on liability.

WHAT DO YOU SAY?

HE SAYS:

I am sure most people consider lawyers a necessary evil, at best; however, there can be no doubt that, at times, a good lawyer is indispensable.   Since I practiced law for over thirty years, you might think that I am biased in this opinion; however, if you want to be successful, I strongly recommend that you develop a good relationship with a lawyer who can become an integral part of your business team.    Here are some valid reasons  for small business owners to seek the services of a good lawyer.

Before starting any business, it makes sense to meet with your lawyer to discuss the various forms in which you may operate your business as well as the legal and tax ramifications of each business structure.

When operating any business, there will be many occasions when it will become necessary to enter into important contracts and agreements.   In today’s complicated business world, any such legal documents can be rife with pitfalls that can be devastating to your business if you are not careful.   In this regard, there is no substitute for the help and guidance your lawyer can provide you.

The life blood of any business is its cash flow.   The ability to collect accounts receivables is essential to the success of your business.   If your in-house collection efforts fail, you may find that the services of a lawyer is one way to pry that money loose.

Labor and workplace issues such as wrongful termination, sexual harassment, and employee safety can cripple a small business with even a few employees.   This is another area where the advice and counsel of your lawyer can prevent these issues from ever becoming a problem.

You operate your business to make a living and for your family’s future; however, it is not always easy to keep that hard earned money.   The advice of a lawyer can be a great resource to help you plan and implement effective estate and retirement strategies that make sure you and your family hang on to as much of this money as possible.

After you spend years building your business, you may want that business to continue after you retire.   Again, sound legal advice can help you plan for a successful transition of your business to your children or maximize your profits upon a sale to a third party.

Even in the unfortunate circumstances of your business going under, a lawyer will be essential to help you successfully navigate through the complicated Bankruptcy Laws and plan for the orderly liquidation of the business.

From time to time, we will provide blog entries on general business and legal topics that I believe will be of interest to small business owners.   These blog entries will not be intended to be a substitute for the advice of your own lawyers, accountants, and financial planners.

WHAT DO YOU SAY?