Legal Questions

Judicial Accountability - an Illusion or a Reality

admin — Thu, 28 Aug 2008 11:08:20 +0000

Accountability of the judiciary at every level, in a democracy cannot be doubted. The need of an effective mechanism for the enforcement of judicial accountability, when needed, is a felt need and must be accepted.The method by which judges are selected has become a matter of considerable concern for the citizens of our state. Although judicial elections may always has been important and vital process, the selection process is now coming under particular scrutiny. Some believe that although imperfect, the process in place works well enough to need only minor adjustments; others claim that a major overhaul, even scrapping, of the system is necessary. Certainly attention to the issue is warranted: The provisions in place for judicial accountability all threatened by the spread and deepening of problems that, if left unattended, will erode the public’s confidence in our judiciary.

Objective —- A democracy is highlighted by the fact that each and every part of it is accountable to each other. In this situation, an independant judiciary which is the backbone of the efficient functioning of the democracy in India has come under a lot of scrutiny. How far do we go to ensure the independance of judiciary when transparency is the shrill and persistent demand of the Time. The judiciary – especially the higher judiciary – has put itself up on Cloud Nine, wrapping itself in a cloak of inviolabilityHow are Judges appointed? Why are they appointed? What are their short-comings? How are these dealt with?These are some questions, the answers of which we would endeavour to reach analysing the various relevant provisions of The Constitution Of India.

Basic Disclosure Requirements for Employee Benefit Plans

admin — Thu, 28 Aug 2008 06:08:20 +0000

Under applicable Federal laws, Employee Benefit Plans must include certain disclosures. This article shall address the Basic Disclosure Requirements for Employee Benefit Plans that are provided for in both the public and private sectors under the Employee Retirement Income Security Act, commonly referred to as ERISA.

Most importantly under ERISA, each benefit plan must contain a summary of the plan description. This description serves as the primary vehicle for informing participants and beneficiaries about their plan and how it operates. It must be written for the average participant to understand and be sufficiently comprehensive to apprise covered persons of their benefits, rights, and obligations under the plan. This summary must be provided to participants and those pension plan beneficiaries, such as family members, who are receiving benefits. This summary must be sent to participants and beneficiaries within ninety (90) days of becoming covered by the plan.

The benefit plan must also contain a section addressing claims’ notices and explanation of benefits. This section must include information regarding benefit claim determinations. It should describe the determinations’ process, and inform the participant that adverse benefit determination must include the specific reason(s) for the denial of the claim, reference to the specific plan provisions on which the benefit determination is based, and a description of the plan’s appeal procedures.

An employee benefit plan should also include basic information about the employer’s health plan. Health benefits must be fully explained, and notice must be given in respect to the possibility of obtaining temporary health insurance for employees who lose their jobs, or whose employment is otherwise terminated as provided for in the Consolidated Omnibus Budget Reconciliation Act of 1985 (commonly known as “COBRA”). COBRA provides for a temporary health plan that allows employees to keep their health coverage for a certain amount of time, usually six months, after the termination of their employment. Consequently, employee benefit plans must provide notice to the employee and covered spouses of their right to purchase a temporary extension of group health coverage when the group health plan coverage commences. They must also receive notice if COBRA is unavailable to them and a reason for this exclusion.

For employee benefit plans covering pensions, there are certain additional disclosures the drafter must include, such as a provision covering individual benefit statements must be included. These statements must include statements made to the participants and their beneficiaries of total accrued benefits that have accrued, and the earliest date on which the benefits become non-enforceable. If applicable, the participant must also be notified in the agreement whether or not their benefits are being suspended during certain periods of employment.

As you can see, ERISA grants employees several important rights. Most important are the right to receive important information about their pension or health benefit plans, to participate in timely and fair processes for benefit claims, to elect to temporarily continue group health coverage after losing coverage, to receive certificates verifying health coverage under a plan, and to recover benefits due under the plan. A drafter of an Employee Benefit Plan must be careful to address all of these concerns.

Florida Divorces & Legal Presumptions

admin — Thu, 28 Aug 2008 01:08:30 +0000

Florida divorce law contains many presumptions. A presumption assumes one fact from the existence of another fact. Presumptions are a way to make it easier to establish a fact or to implement the state’s public policies. Here are some of the presumptions in Florida divorce law:

Marriage Presumptions

Florida law presumes that a marriage is valid when the parties have a ceremony and live together under a belief that they are lawfully married.

Equitable Distribution Presumptions

Florida law presumes that assets and debts accumulated during the marriage are marital and subject to equitable distribution.

Florida law also presumes that both spouses made an equal contribution to the marriage.

Equitable distribution presumes a 50/50 split of assets and debts as the starting point for division.

Child-Related Presumptions

Children born during a marriage are presumed to be the legitimate children of the spouses.

Florida courts are presumed to have continuing jurisdiction over child matters when the original decision came from a Florida court.

Shared parental responsibility is also assumed in Florida law.

Alimony Presumptions

Florida divorce law presumes that an entitlement to alimony in a long-term marriage and presumes no entitlement in a short-term marriage.

Once ordered, Florida law presumes an ability to pay support amounts ordered by the court.

When you represent yourself in a Florida divorce case, you are presumed to know all the court rules and the law, including the legal presumptions. If you are the petitioner in a Florida divorce case, let the presumptions help you prove your case. If you are the respondent in the case, you will need evidence to overcome or rebut the presumptions if any are raised in your Florida divorce case.

New York construction accident lawyer ensure settlement that you deserve Posted By : Paul Justice

admin — Wed, 27 Aug 2008 20:08:10 +0000

New York is a bustling city and there is always new construction going up around the city. With new construction comes danger as there are many preventable accidents at construction sites that end up injuring both construction workers and innocent people who just happen to be in the area. Some injuries are minor and dont even in result in any missed work (or very little). Some are serious enough to require hospitalization and obviously some unfortunately end up being fatal. Regardless of the seriousness of the accident its important for New Yorkers that have been in an accident on a construction site to have access to a lawyer with the experience to fight for their rights against the high-priced law firms that the construction industry and their insurance companies will be using.

The construction company knows that you have medical bills (especially if you dont have good insurance) that may be overwhelming you. They know you may be missing work and a paycheck that you need for your family. In some cases, they know you have final expenses for a loved one that needs to be attended to. They will offer a settlement that is far too low; thinking you will take it out of desperation. New Yorks best law firms will not allow this to happen. If you are injured in a construction accident in New York, no matter how serious, its imperative to speak to a lawyer who understands the construction world and how to fight for big cases.

New York construction accident lawyer can dissect what happened in the case, figure out whom at the construction site was to blame, determine everyone that is at fault and to what degree, and devise a game plan to ensure that you get every penny in a reward or settlement that you deserve. Some cases are simply a matter of workmans compensation (a concept familiar to all New Yorkers who have worked in construction) or it may be a case of severe negligence where you may be entitled to pain and suffering. The construction companys lawyers will act compassionately toward you, but they certainly dont want you to know everything that you are entitled to and that necessitates having a good lawyer on your side.

As New York continues to grow, we are seeing more and more construction accidents where people receive a small pittance or even nothing at all because they neglected to seek counsel from a quality lawyer. The important thing isnt just to find any lawyer, but one with experience in dealing with accidents at New Yorks construction companies. Its also important to plan ahead in these situations. Medical bills add up quickly and if you are forced out of work they mount even quicker with no way of paying them. If, God forbid, someone is killed in a construction accident they may have been the primary breadwinner of a family that has no way to replace that lost income. That necessitates knowing a good New York construction lawyer in advance.

Census: Mass. has lowest rate of uninsured in US

admin — Wed, 27 Aug 2008 15:08:30 +0000

A new U.S. Census Bureau survey shows Massachusetts has the lowest rate of uninsured residents in the country.

Investing after Pfizer’s flop - 3 strategies

admin — Wed, 27 Aug 2008 11:08:21 +0000

NEW YORK (Money) — Pfizer’s decision to suspend tests of its latest drug for the treatment of high cholesterol underscores the key problem facing most large pharmaceutical companies. Once a drugmaker has reached a certain size, it’s an enormous challenge to generate new blockbusters fast enough to maintain a high growth rate.

Lilly Ledbetter’s Double Play

admin — Wed, 27 Aug 2008 06:08:10 +0000

The Democratic National Convention started yesterday, and already I’ve grown tired of the “where else but in America” mantra — as in “where else but in American can the son of a single mom emerge as the Democratic candidate for president?” or “Where else but in America can a girl raised on the Southside of Chicago get an Ivy League education?” Still, when I learned that Lilly Ledbetter, a retired Goodyear worker and petitioner in Ledbetter v. Goodyear will address the convention tonight, I could only ask, “Where else but in America does an ordinary person have the chance to appear before both the Supreme Court and a national party convention?” — an opportunity that not even lawyers as accomplished as Barack Obama or his wife have enjoyed.

Roadblocks and D.u.i. in Palm Beach County, Fl

admin — Wed, 27 Aug 2008 01:08:30 +0000

Is it legal for law enforcement to use a roadblock to snare impaired drivers in Palm Beach County, Florida? You betcha!.

In Michigan v. Sitz, 496 U.S. 49 (1979) the United States Supreme Court set forth the following factors in considering whether a roadblock is constitutional.: (1) the duration of the stop and the intensity of the investigation (2) the discretion that on the scene officers were allowed. In the Florida case of State v. Jones, 483 So. 2d 433 (1986) the Florida Supreme Court stated that the factors to be considered in determining the validity of a roadblock include (1) the drgree of discretion left to the field officers (2) the location, time and duration of the roadblock (3) the standrards set by superior officers (4) the advance notice to the public (5) warning to approaching motorists (6) the availability of less intrusive methods for conmbatting the problem (7) the effectiveness of the procedure.

The Florida Court also stated that it was important that all seizures be based on specific evidence of an existing violation (2) a showing that reasonable legislative standrds are met and (3) that the field officers carried out the search according to a written plan. So what does it all mean you ask?

It means that in order to conduct a roadblock law enforcement must have written guidelines. These guidelines must be written by superior officers and the guidelines govern the methods of the field officers. The guidelines are to state whether every car ( actually every car would not fly with the court) or every second or fourth car will be stopped. Furthermore, the roadblock must be published in some public forum. You have probably seen the little blurbs in your local paper advertising a coming roadblock on a Friday night at a certain location. This is so you can say to your self I will avoid that area because I have other things to do and I do not wish to be caught up! Yeah great, I am of the opinion that it probably would not change a whole lot if there publication requirement was eliminated! Do you really think that a driver who has had a few is going to remember the article even if he did read it.

Should you wish to discuss your D.U.I. arrest, or life the universe and everything please feel free to call me. A quick reminder to avoid the hassle simply do not drink and drive!

Issues On 18 Wheeler Accident Lawyers

admin — Tue, 26 Aug 2008 20:08:20 +0000

Serious injury vehicle accidents are often the result of an accident involving a large vehicle. The worst cases are usually caused by larger vehicles. When there is an 18 wheeler accident, or a bus accident, or a train accident, the severity of the injury is likely to be higher and the need for a lawyer is greater.

Lawyers often limit their areas of practice to a few specialties, but they do not often narrow specialties into extreme sub-specialties. Personal injury lawyers handle claims arising from someone’ negligence and there is really not much distinction between injuries caused by an 18 wheeler accident or a truck accident or a car accident or a dog attack or a slip and fall. The really distinction in an 18 wheeler accident from a typical car accident, and even the majority of accidents is the severity of the injury.

A typical car accident results in whiplash injuries, meaning cervical injuries that result in serious soft tissue injury pain that tends to go away over time. In a typical 18 wheeler accident at the very least the damage to the victim’s vehicle is much greater than in a typical car accident. An 18 wheeler accident is also likely to cause serious injuries often resulting in fractures, closed head injuries, herniated disc, or death. A car accident is less likely to result in serious injuries. In most 18 wheeler accidents there is also greater insurance coverage than in a typical car accident. This is a result of the existing law which requires it. This makes perfect sense, because the probability of serious injury or death is much greater in 18 wheeler accidents than in car accidents.

When a law firm has 18 wheeler accident lawyers, it would probably be a personal injury lawyer. Most personal injury law firms accept 18 wheeler accident injury claims. Where there is some degree of sub specialty is in the severity of the injury. There might not be an 18 wheeler accident lawyer, or a train accident lawyer, or a bus accident lawyer, or even a motorcycle lawyer, but there are law firms that limit their practice to serious injury cases. This in turn generally means that the accident law firm would only accept cases that are serious, which are generally a result of 18 wheeler accidents, train accidents, bus accidents, and motorcycle accidents. Most serious injury claims arise from these types of accidents. Car accidents can and do result in serious injury claims, but are less likely to result in serious injuries such as brain injury, closed head injury, herniated discs, fractured bones, or death.

The need for a lawyer also rises as the severity of the injury rises. A whiplash injury case may or may not warrant hiring an lawyer. Often insurance companies refuse to pay medical bills incurred in whiplash injury cases, because the physical evidence is minor and suggests there is no injury. This leads injury victims to seek an lawyer, but for the most part the fact that it is a small matter makes hiring a personal injury impractical, because there would not be a sufficient recovery to pay the medical costs and lawyer fees.

Serious injury cases tend to require a lawyer in most situations. An 18 wheeler accident can cause serious injury and some insurance companies attempt to seek a quick settlement and knowingly or neglectfully mislead the injured party to believe that it is in the injured’s best interest to refrain from obtaining an lawyer. Once an agreement is reached the insurance company has not further risk of financial loss on the claim.

Often the injured party is surprised to receive a bill from their health insurance company following the settlement. The bill is often equal to or greater than the settlement. Sometimes the injured party discovers that further medical treatment is required such as a surgery and then attempts to renegotiate with the insurance company and is quickly rebuffed. Sometimes insurance companies keep promising that a good personal injury settlement will follow and keep making the promise until there only a few weeks remaining before the statute of limitations runs out. The victim then receives a letter advising the statute of limitations will run out in two weeks. The same personal injury settlement promises continue, until the statute of limitations runs out. Meaning the victim has lost the right to file a personal injury lawsuit, because too much time has passed.