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By Lauri Ann Schmid, Attorney.
These 2011 legal articles are from “Legally Speaking,” a syndicated column and appears in the Savage Pacer newspaper, Savage, MN.

DECEMBER

The Rights of Renters (12-19-11)

As the state of the housing market leads increasing numbers of people to consider renting as a housing option, they should know that they have certain rights. Landlords are well within their rights to reject a person with a poor credit history, insufficient income to pay rent, negative references from a previous landlord or employer, or a prior eviction lawsuit. On the other hand, the Federal Fair Housing Acts prohibit discrimination on the basis of race, color, religion, national origin, gender, age, familial status (having children), and physical or mental disability. With this in mind, anyone who feels that he or she has been unlawfully discriminated against may try to negotiate an acceptable settlement or file a lawsuit.

If you have any questions about landlord or renters rights, or about any legal issue at all, please call our office. We are proud to take cases that involve bankruptcy, estate planning, wills, trusts, corporate law, and real estate law. Our attorneys provide a balanced range of legal services combined with a singular commitment to our clients. We are positive and energetic, responding to our clients’ needs with clarity, diligence and integrity. If you have any questions, call 952-226-1202 to make an appointment. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: When two or more people sign the same rental agreement or lease or enter into the same oral rental agreement, they are co-tenants and share the same legal rights and responsibilities.

For Renters (12-5-11)

Conditions in the real estate and financial markets are leading numbers of people who have never rented before to look for apartments. If you count yourself among these new renters, you should know the difference between a lease and a rental agreement. While a lease is for a set term, a rental agreement is for a tenancy that may be terminated by either party at any time, usually after giving reasonable notice. Some landlords may favor rental agreements because they don’t want to be locked into a fixed term or rent amount. A rental agreement that attempts to lock in a tenant while allowing the landlord to terminate the tenant at any time is not likely to be legally enforceable.

If you have any questions about the difference between a rental agreement and a lease, or about any legal issue, please call our office. Our experienced lawyers provide personalized service for clients in a number of areas, including bankruptcy, estate planning, wills, trusts, corporate law, and real estate law. If you have any questions or would like to schedule an appointment, please call 952-226-1202. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: An agreement that calls for one party to perform while the other party can get out at any time is not a binding contract.

NOVEMBER

Your End-of-Life Wishes (11-21-11)

If you have deliberated about what kind of medical treatment you would want if you are at the end of your life and unable to communicate, your wishes may be expressed in an end-of-life directive. One such directive, a “living will,” clearly states the kind of life-sustaining medical treatment(s) you would/would not want if you couldn’t speak for yourself. Documents of this type, which come into play when a person is in a coma or vegetative state, should be in the hands of an attorney or trusted family member or friend. Another directive, known as a “medical power of attorney,” allows a select person to be an agent of the non-responsive person and make decisions about his or her care.

Thinking about things like a living will can be uncomfortable or even upsetting. But it’s much better if you take care of these things now, instead of leaving them unresolved until there is a crisis. If you are interested in writing any sort of end-of-life document, including a living will, will, or assigning a medical power of attorney, please contact our office at 952-226-1202 to make an appointment. Our attorneys have the compassion you want and the expertise you need to make sure your wishes are carried out. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: Because the laws governing advance directives vary by state, it is important to sign directives that comply with your state’s laws.

Are You Willing to be Summarily Dismissed? (11-7-11)

If you are behind on your debt payments and the creditor decides to sue you, he may try to convince the judge that none of the facts of the case are in dispute and that he (the plaintiff) is entitled to payment as a matter of law. For instance, the creditor may say that you signed an agreement, made no payments, and have no valid reason for not paying. If the judge agrees with the creditor filing a “summary judgment motion,” he or she can enter the judgment against you without a trial ever taking place. However, if there are important facts in dispute, you have every reason to contact a lawyer and oppose the summary judgment.

During these difficult times, legal and financial issues have become entwined and you need a good lawyer to help you sort out all the details. Our compassionate attorneys have years of experience dealing with the various aspects of financial difficulties and we can help you if you’re struggling with debt issues or bankruptcy. In addition, we provide legal services if you’re writing a will, dealing with probate, or simply thinking about writing a will. If you have any questions or would like to schedule an appointment, please call 952-226-1202. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: While responding to a summary judgment motion can be complicated, the entire lawsuit may be at stake. Consult with a lawyer to see whether it is worth your while to fight.

OCTOBER

Working Solutions (10-3-11)

Employees facing long-term health problems may understandably feel reluctant to discuss the matter with their employers. However, maintaining silence may prove counterproductive since employees who are demoted or fired before making their chronic conditions known may not be covered by the law. Those working at firms with 15 or more employees are protected by federal law, which says that a worker cannot be fired for a disability as long as he or she can perform the “essentials” of his or her job, even if reasonable changes must be made in the work environment. At firms with 50 or more employees, workers are entitled to 12 unpaid weeks of leave within a 12-month period if a physician deems it necessary.

Do you have a question about working with a chronic condition? If so, please call our office. Our lawyers have years of experience dealing with all aspects of the legal system and will be happy to answer all of your questions. Our practice accepts a wide variety of cases, including those that deal with employment litigation as well as wills, estate planning, real estate law, and personal injury cases. If you have any questions, call 952-226-1202 to make an appointment. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: A lawyer with experience in employment law can help guide employees through state and local laws that apply to small companies.

Separate Paths to the Same Place (10-10-11)

Traditionally, it has been common for married couples who were in agreement regarding how their property should be distributed to write a joint will. While this approach would seem to make a great deal of sense, it may be fraught with potential shortcomings. Joint wills are drawn up with the intention of preventing the surviving spouse from changing his or her mind about how the property should be distributed after the death of the first spouse. However, from a practical standpoint, it may create a logjam in which the property is tied up in prolonged title and probate determinations. Moreover, legal battles may ensue in which the surviving spouse is challenged over revoking any part of the joint will.

Writing a will is an emotionally fraught task. Add in these legal complexities and the job becomes all that more difficult. At our office, our compassionate attorneys have years of experience dealing with the various aspects of writing wills, as well as estate planning, probate issues, and other everyday legal issues. We provide the understanding you want as well as the expertise you need. If you have any questions or would like to schedule an appointment, please call 952-226-1202. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: For the reasons cited above, it often makes better sense for a husband and wife to write separate wills even if they agree on how their property should be distributed.

Your Personal Stake In Your Case (10-24-11)

When it comes to determining “special damages” in a personal injury case, plaintiffs and their lawyers can rely on financially quantifiable losses such as medical costs, lost time on the job, and documented income losses to provide them with easily identifiable numbers. However, “general damages” are not as easy to calculate. To begin with, general damages include pain and suffering and other forms of non-economic loss to which it is difficult to attach numbers. Less predictable is the way that a jury might react to a plaintiff’s mental anguish or disfigurement. One thing that experienced lawyers do know is that plaintiffs who are sincere and able to make emotional connections with a jury are likely to fare best.

It takes an experienced and savvy lawyer to properly gauge a jury and the proper amount to request for general damages. That’s why, if you are considering pursuing a personal injury case, you need to call our office right away. We provide experienced and aggressive representation for clients in a wide variety of personal injury cases and we can make sure you get all the money that you deserve. Call 952-226-1202 to make an appointment today. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: It is part of a lawyer’s job to gauge the plaintiff’s ability to be a good witness and adequately impress the jury with the seriousness and implications of his or her injury.

SEPTEMBER

Juries Large and Small (9-1-11)

Unlike the “petite juries” that serve during public trials to decide whether criminal defendants are guilty, “grand juries” meet in secret proceedings to decide whether to indict suspects charged with crimes. Another factor that sets grand juries apart from petite juries is that grand jurors typically serve for months, not days. Grand juries are also made up of 15 to 23 jurors (16-23 in federal courts) and need not be unanimous to indict. During an indictment proceeding, a prosecutor presents the charges and evidence to the jury without the suspect or his or her lawyer present. Witnesses may be called. If the grand jury decides to indict, it returns a “true bill.” If not, it returns a “no bill.”

Do you have a question about indictment, grand juries, petite juries, or any other aspect of the legal system? If so, please call our office. Our lawyers have years of experience dealing with all aspects of the legal system and will be happy to answer all of your questions. Our practice accepts a wide variety of cases, including those that deal with wills, estate planning, real estate law and family law. Please call 952-226-1202 to schedule a free initial appointment to discuss the merits of your case. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: Even if a grand jury returns a no bill, charges may still eventually be filed by the prosecutor, who can return to the same grand jury with more evidence or present the same evidence to a second grand jury.

The Cry Over Spilled Coffee (9-19-11)

Those professing our legal culture to be overly litigious often point to 1992’s “hot coffee” case as an example of product-liability litigation gone mad. That case involved an elderly woman who accidentally spilled coffee from a well-known fast-food chain on her lap and sustained third-degree burns over 6% of her body as a result. After suing, the woman received $200,000 in compensatory damages (later reduced to $160,000) and $2.7 million in punitive damages. Underlying this award is the fact that discovery produced hundreds of similar incidents between 1982 and 1992 involving customers who were served coffee at temperatures about 40 degrees hotter than competitors’ coffee. The company knew of the scalding risk but neither reduced the temperature nor warned customers.

Have you been hurt through the negligence of a company or person? Do you feel that you deserve compensation for your pain and injuries? Our compassionate attorneys have years of experience dealing with a wide variety of personal injury cases, including car accidents, truck crashes, and, of course product liabilities. We will work hard to get you the money that you deserve. Please call 952-226-1202 to schedule a free initial appointment to discuss the merits of your case. Our address is 6001 Egan Drive, Suite 140, Savage, MN. Multiple Services. Singular Commitment.

HINT: After a series of appeals, the woman in the “hot coffee” case settled with the fast-food chain for what was reported to be a punitive award of $480,000 (three times the compensatory damages).

AUGUST

Proving Your Case (8-8-11)

Plaintiffs in civil cases generally have to prove their cases by “a preponderance of the evidence,” meaning that the judge or jury must be convinced that each element of the plaintiff’s legal claim has been proven only slightly better than 50 percent. However, there are a few types of civil cases in which the burden of proof may be higher. For instance, cases involving claims for fraud or for the breach of an oral agreement to make a will may require the plaintiff to prove the truth of each element by “clear and convincing evidence.” The evidence generally must be stronger in claims requiring this higher burden of proof. Knowing the difference helps plaintiffs know what they are up against.

If you have any questions about the burden of proof in a case, or about any legal issue, please call and make an appointment to speak with one of our compassionate lawyers. We have years of experience dealing with all aspects of the legal system and will be happy to help you understand your case. Our practice accepts a wide variety of cases, including those that deal with estate planning, corporate services, bankruptcy, and real estate law.

HINT: The burden of proof in civil cases is considerably less than the “beyond reasonable doubt” standard to which criminal trials must adhere.

You Versus The Insurance Company (8-22-11)

When individuals suffer injury resulting from another person’s negligence, the responsible party’s insurance company often makes an immediate settlement offer. At this point, would-be plaintiffs are advised to politely decline the offer and consult with a personal injury lawyer, who can provide an idea of what the case may actually be worth. However, this does not necessarily mean that a settlement is out of the question. Most personal injury cases involving insurance companies end in settlements, largely because insurance companies are in the business of covering policyholders and limiting their liability, have the money to pay out, and generally do not want protracted legal battles with unsure outcomes. It is up to the plaintiff to get the best settlement possible.

If you feel that an insurance company has been treating you unfairly, or if you have any questions about a potential settlement, please call our office. Our compassionate attorneys have years of experience dealing with insurance companies in order to settle a wide variety of personal injury cases, from auto and truck accidents to wrongful death. The big companies have lawyers looking out for their interests, you should too.

HINT: A good settlement not only ensures a plaintiff of a win, it also avoids a protracted trial that can drain energy and emotions.

JULY

Debts After Death (7-11-11)

The current financial climate may lead some to wonder what becomes of debts incurred by the deceased as they apply to an inheritance. As far as “unsecured” debts are concerned, they are paid from the estate as the executor decides. These include the most common types of debts such as medical bills. “Secured debts” are those that are owed on a specific property that must be paid before the property can belong to its owner free and clear. The most common example of a secured debt is the mortgage on a house. When property left in a will is subject to a secured debt, the debt legally passes to the beneficiary with the property.

Do you have any questions about debt? Our compassionate and discreet attorneys understand the many issues surrounding the complex issues of debt and we can offer advice, whether you’re wondering about unsecured debt, foreclosure, or bankruptcy. In addition, we can also help with real estate law and probate issues.

HINT: In some cases, the deceased may have provided resources to pay off a secured debt in his or her will so that the beneficiary may be relieved of the responsibility of paying it off.

The Jury Deliberates (7-25-11)

At a trial’s conclusion, attorneys from both sides will give their closing arguments, which will sum up the evidence in a final bid to influence the jury’s decision. The jury then receives its “charge,” which is the judge’s instructions on the law that applies to the case and definitions of the relevant legal concepts that may prove pivotal in the jury’s deliberations. In some cases, the jury will be given a list of questions to answer. The jury is only supposed to consider the evidence presented at the trial, but jury members are usually told by the judge that they can use a witness’s demeanor to determine if he or she is believable. After that, the jury deliberates privately.

Of course, not all legal matters involve a jury. Many are small things that require nothing more than a visit to your attorney’s office. We take pride in providing personalized and expert service for all of our clients, whether it’s a high-drama jury case or simply a matter of writing and signing your will. Our practice takes cases involving personal injury, estate planning, corporate services, bankruptcy, real estate law, personal injury, wrongful death, and employment litigation.

HINT: Opposing attorneys will consult with the judge presiding over their case to make sure that each of their client’s interests is represented and nothing prejudicial occurs.

JUNE

A Delicate Matter (6-6-11)

While parents are notoriously reluctant to share details of their finances with their children, there are times when adult children must press the issue. For instance, research shows that individuals with even early-stage Alzheimer’s disease experience trouble with simple financial tasks, which makes them easy targets for fraud. In order to help their elderly parents manage their money when they no longer can, adult children are strongly urged to discuss “power of attorney.” This document authorizes an appointed person (“agent”) to handle financial transactions (from signing checks to selling homes) for the person unable to do so on his or her own. A “durable power of attorney” takes effect immediately, which may help matters before they reach the tipping point.

Power of attorney is just one aspect of end-of-life planning which requires a lawyer. There are also wills, trusts, living wills, and estate planning to consider. It’s not a pleasant task, but one that is much easier if you undertake it now, with the help of a lawyer. We can help you sort out these complex issues and make sure that everything is in order. Then you can rest easier, knowing that all the hard work has been done for your loved ones.

HINT: A “springing power of attorney,” which does not take effect until a person is deemed incompetent by a doctor, may be problematic if the doctor does not want to get involved in a legal issue that may be disputed.

Who’s Your Lawyer? (6-27-11)

Many people think that they have no need of a family lawyer. The fact is, however, that occasions may arise when a family lawyer is every bit as valuable as a family doctor or dentist. Most of the legal issues surrounding the average person do not involve traffic violations, personal injury, or crime. Instead, most people have need of a lawyer when it comes to real estate matters such as buying or selling property or a landlord-tenant dispute. Only a minority of such matters involve litigation. Instead, consultation with a lawyer is needed to understand and carry out legal arrangements such as transferring a title. When these and other legal questions arise, whom are you going to call?

From real estate law to help writing a will, our attorneys take pride in providing personalized and expert service for all of our clients, big or small. We are happy to help you deal with the everyday legal issues that don’t make for high drama, but are important nonetheless. We can help with real estate law, wills, trusts, and probate issues.

HINT: Very often real estate disputes involve the return of earnest money after a real estate transaction goes bad.

MAY

(Nearly) as Good as New (5-9-11)

If you were to suffer an injury as the result of another person’s negligence, the law provides a way for you to be restored to your pre-injury condition. Both economic (out-of-pocket) and non-economic (loss of physical and mental well-being) losses are restored through monetary compensation. The term “general damages” refers to non-economic losses such as “pain and suffering,” the valuation of which is left largely to the jury’s discretion. “Special damages” are awarded for compensable harms such as medical expenses and lost wages, which can be quantified with bill statements, pay stubs, and other records. Thus, it is vitally important that you, the plaintiff, give a full accounting of your losses so that you may be properly compensated for them.

Determining the amount of compensation due to you for general or special damages is a long and complex process that must balance a number of different variables. That’s why you need an experienced personal injury lawyer to figure out how much you’re owed. Our attorneys have years of experience representing a wide variety of personal injury cases, including auto and motorcycle accidents and wrongful deaths, so we can accurately determine the amount of compensation that you deserve.

HINT: A plaintiff must specifically ask for special damages, which are also called “consequential damages” in the initial complaint.

Laying Claim (5-23-11)

While most civil lawsuits involve breach of contract or negligence claims, there are a number of other legal claims that may form the basis of a civil suit. For instance, if someone were to threaten you with a weapon, and you had a reasonable fear that the defendant was about to commit an immediate battery, you would have grounds for filing a suit for “assault.” There is also the case of “false imprisonment,” in which a defendant intentionally and unlawfully restrains the plaintiff’s freedom of movement, such as the salesperson who refuses to allow a shopper to leave a store when there was no legitimate reason to suspect shoplifting. A lawyer can determine when a legal claim can be made.

If you’ve been the victim of assault or hurt through someone else’s negligence and you have any questions about whether you have grounds for a civil case, you need to talk to a lawyer right away. Our attorneys have years of experience dealing with all sorts of civil cases, from personal injury suits to assault cases.

HINT: If you were to lend a possession of yours (such as a car) to a friend, and he or she were to sell it for profit without your permission, you would have grounds for the legal claim of “conversion.”

APRIL

On the Right Side of the Law (4-2-11)

There is more to the practice of law than television’s depictions of high courtroom drama and criminal behavior. In fact, most people in need of the services of attorneys are more likely to need professional representation when purchasing real estate or divorcing their spouses. Lawyers are also expert in the exceedingly important matters of drawing up and reviewing contracts as well as setting up corporations and other business entities. Attorneys may be called upon to initiate or defend civil suits that involve a range of wrongdoing, including personal injury. They also play roles in matters of death, wills and taxes. In future columns, we will show you how to put yourself on the right side of the law.

Welcome to our column. We hope you will find upcoming installments to be both practical and informative. We’re proud to say that our attorneys provide a balanced range of legal services combined with a singular commitment to our clients. Our areas of practice include personal injury law, real estate law, family law mediation, bankruptcy, and corporate law, among others. We are positive and energetic, responding to our clients’ needs with clarity, diligence, and integrity.

HINT: A lawyer’s expertise may also extend to workers’ compensation and rights in the workplace.

Chapter and Verse (4-25-11)

If your debts have become overwhelming and you are looking for ways to get control of your finances, you may be considering bankruptcy. While Chapter 7 bankruptcy allows you to immediately erase many debts, the price you must pay in return is that you must give up any property you own that is not protected by state and federal exemption laws. Chapter 13 bankruptcy permits you to retain your property while utilizing your income to repay some, or all, of your debts. Thus, Chapter 13 bankruptcy may be a good option for those who need time to pay off certain debts and have sufficient income to meet the Chapter 13 requirements. An attorney can answer all your questions.

Are you considering filing for bankruptcy? Do you have any questions about the long-term ramifications of doing so? Then please call 952-226-1202 to schedule an initial consultation with one of our experienced and compassionate attorneys. We can help you navigate the complex issues of bankruptcy and help you through this difficult time while helping to preserve your dignity and future finances.

HINT: When you file Chapter 13, you must submit a repayment plan that demonstrates that you can pay your mandatory debts, and perhaps repay all (or a portion) of your other debts, over a three- to five-year repayment period.

Are You an Employee or Independent Contractor?

Are you working in the construction industry or do you know someone who is? Well, there are new laws going into effect that will apply to individuals who provide “public or private sector commercial or residential building construction or improvement services.” The Minnesota Department of Labor and Industry will begin requiring independent contractor exemption certificates for work performed by individuals as of January 1, 2009. If you or someone you know falls into this category, read on.

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LLCs — Who Needs ‘Em?

As a real estate attorney, I have many clients who want to invest in rental property but don’t know what the first step is after they have decided which property to purchase. I typically will recommend that the client start an LLC (Limited Liability Company) to be the purchaser of the property or to transfer already purchased properties into the entity’s name.

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Health Care Directives — Why the Big Fuss?

Health care directives allow us to express our wishes as to medical treatment in terminal-illness or injuries, and to appoint someone to speak on our behalf in the event we cannot speak for ourselves.

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To Be Or Not To Be … (A Landlord, That Is)

Being a landlord can be a good investment, but it can become a headache if not dealt with correctly. Know what you can and cannot do, have a procedure in place, and know where you can go for answers. Once you have a few rentals under your belt, it will get easier.

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