News - Page 10 of 37 - Laws101.com

What are the Federal Rules of Evidence?

Legal Assistant August 14, 2021Administrative Law, Constitutional Law, Criminal Law, Resources

The outcome of a case ultimately boils down to the strength of the evidence presented. This statement sums up why evidence is so important in civil and criminal trials. It is the only way a judge in a bench trial or jury can establish a defendant’s liability or guilt.

The Federal Rules of Evidence were established to govern the way in which evidence is introduced at trials in a federal court. They were drafted for several years by the US Supreme Court before Congress finally enacted them in 1975. The idea behind them is to have a standard system all federal courts could use to determine the admission or exclusion of evidence in court proceedings.

What are the Federal Rules of Evidence, and why are they so important? Here’s everything you need to know.

Criminal law vs civil law

These are two broad branches of law, each of which has its own set of rules and punishments that govern it. The burden of proof varies between these branches of law and must be considered when introducing evidence at trial.

Criminal law encompasses criminal conduct and the legal punishment for such offenses. The burden of proof in criminal law always falls on the federal or state government to prove guilt “beyond a reasonable doubt.”

On the other hand, civil law addresses disputes between organizations, individuals, or the two, in which monetary compensation in the form of damages is awarded to the plaintiff. In civil law, the burden of proof is on the plaintiff based on “preponderance of evidence” to demonstrate that their assertion is more likely true than not. The evidence presented in civil cases needs to be beyond the balance of probabilities.

Why are the Federal Rules of Evidence important?

You might ask – why do we have rules of evidence in the first place? The whole premise of the rules revolves around a few basic principles – unfair surprise, reliability, efficiency, relevance, and the overall fairness of the court process. They regulate the evidence admitted into a trial and how the jury can use it to reach an unbiased verdict based on fact.

The idea behind them is to eliminate the historical mistrust of jurors by restricting the type of evidence they can receive or the way in which they can use it in their determination of guilt or innocence.

This begs the question – Who rules on the admissibility of evidence? The presiding trial judge determines whether the evidence presented in a trial can be admitted or excluded from the litigation process.

For evidence to be admitted in court, it has to meet two criteria. It should:

Be relevant – The evidence should be material to the case and have probative value.
Not be outweighed by countervailing elements – The evidence should not be privileged, a waste of time, confusing, unfairly prejudicial, or based on hearsay.

What are the Federal Rules of Evidence

It’s important to note that Federal Rules of Evidence only apply to federal court cases. Nonetheless, several states across the country base their own evidence rules on the federal system. Having this knowledge gives you a broader perspective of the rules you can expect to find in your state courts.

Here is a plain-speak overview of each of the 11 articles in the Federal Rules of Evidence:

1. GENERAL PROVISIONS

This section provides information on the rules of admissibility or exclusion and how to object to each.

2. JUDICIAL NOTICE

This refers to the documentation the court may request either party to present or, of its own volition, admit into evidence without having to authenticate or lay a foundation.

3. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

Presumptions are tools used by courts to determine which of the parties in a trial has to prove a particular fact.

4. RELEVANCY AND ITS LIMITS

Evidence is only admissible in court if it determines the validity of one or more facts important to the case.

5. PRIVILEGES

A privilege refers to the right not to disclose confidential information unless the privilege is waived. Examples include attorney-client, husband-and-wife, and doctor-patient privileges.

6. WITNESSES

To testify in a federal case, a witness must be competent enough to offer testimony on information they have personal knowledge of.

7. OPINIONS AND EXPERT TESTIMONY

In addition to personal knowledge, a witness can be allowed to provide a lay opinion if it is useful in understanding a fact based on their observations. If the opinion in question isn’t based on the witness’ personal observation, an expert witness with the skill, training, or experience will be called upon to form such an opinion.

8. HEARSAY

Hearsay evidence is essentially gossip presented as fact in a case. The rules exclude hearsay testimony unless it falls into any of the 24 exceptions.

24 Exceptions to the Hearsay Rule

(1) Present Sense Impression

(2) Excited Utterance

(3) Then-Existing Mental, Emotional, or Physical Condition

(4) Statement Made for Medical Diagnosis or Treatment

(5) Recorded Recollection

(6) Records of a Regularly Conducted Activity

A record of an act, event, condition, opinion, or diagnosis if:

The record was made at or near the time by — or from information transmitted by — someone with knowledge;
The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
Making the record was a regular practice of that activity;
All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11)* or (12)** or with a statute permitting certification; and
The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

* Rule 902(11): Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
** Rule 902(12): Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

(7) Absence of a Record of a Regularly Conducted Activity

(8) Public Records

A record or statement of a public office if:

It sets out:
- The office’s activities;
- A matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
- In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
The opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics

(10) Absence of a Public Record

Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:

The testimony or certification is admitted to prove that:
- The record or statement does not exist; or
- A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
In a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

(11) Records of Religious Organizations Concerning Personal or Family History

(12) Certificates of Marriage, Baptism, and Similar Ceremonies

(13) Family Records

(14) Records of Documents That Affect an Interest in Property

(15) Statements in Documents That Affect an Interest in Property

(16) Statements in Ancient Documents

(17) Market Reports and Similar Commercial Publications

(18) Statements in Learned Treatises, Periodicals, or Pamphlets

A statement contained in a treatise, periodical, or pamphlet if:

The statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History

(20) Reputation Concerning Boundaries or General History

(21) Reputation Concerning Character

(22) Judgment of a Previous Conviction

Evidence of a final judgment of conviction if:

The judgment was entered after a trial or guilty plea, but not a nolo contendere plea;
The conviction was for a crime punishable by death or by imprisonment for more than a year;
The evidence is admitted to prove any fact essential to the judgment; and
When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary

(24) Residual Exceptions

Under the following conditions, a hearsay statement is not excluded by the Rule against hearsay even if the statement is not admissible under any of the other hearsay exception rules:

The statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and
It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Additionally, the statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement—including its substance and the declarant’s name— so that the party has a fair opportunity to meet it. The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

9. AUTHENTICATION AND IDENTIFICATION

Only items that can be identified by witnesses or whose authenticity can be vouched for by an expert are admissible in court.

10. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Photographs, recordings, writings, or any other documentary evidence must be authenticated by an expert or a witness before admission. These also have to be original unless the rules allow for the use of a copy if the original was destroyed.

11. MISCELLANEOUS RULES

The provisions of this section state that the rules of evidence apply in all federal civil and criminal cases. Additionally, it states that the privilege rule is not applicable in grand jury and other miscellaneous legal proceedings. It allows federal judges to exercise their discretion in the admission or exclusion of evidence outside the rules if they deem it necessary.

Do Rules of Evidence apply in arbitration?

The short answer is – no, unless the parties to the arbitration process expressly require it, which is rare.

The provisions of Rule 34(b) of the Commercial Rules of the American Arbitration Association and Rule 30 of the Employment Arbitration Rules state that the materiality and relevance of the evidence presented in arbitration proceedings are at the sole discretion of the arbitrator. They further state that conforming to the legal rules of evidence is not necessary to the process.

GET THE BEST ATTORNEY ON YOUR CASE

A court case is won or lost based on the evidence admitted or excluded in the trial process. If you’re currently facing criminal charges, having proof that helps your case means nothing if you don’t follow the Federal Rules of Evidence to a T. Ensure you get an experienced criminal defense attorney to represent you for the best possible trial outcome.

How Did the Colonial Pipeline Get Hacked and Who’s Next?

Legal Assistant August 11, 2021Administrative Law, Criminal Law, International Law, Regulatory Law

On April 29, 2021, hackers gained access to the Colonial Pipeline Co. IT network. The security breach, which took down the country’s largest fuel pipeline, caused widespread gas shortages across the East Coast.

The cause: a single compromised password.

How did the Colonial pipeline get hacked, and could it happen again? Here’s everything you need to know.

Who Owns Colonial Pipeline

Before we delve into the facts surrounding the largest publicly disclosed cyber attack on a major US infrastructure, one thing is for certain. If Colonial Pipeline Co. was a publicly-traded company, its stock would have undoubtedly plummeted moments after its shut down.

The Colonial is a privately held firm founded in 1961. It was first established as a joint venture between nine oil companies. Today, the $8 billion firm’s ownership is shared among five companies in five countries that sit on four different continents.

Aside from Shell, the other four companies that own the Colonial are pension funds and privately held companies. The other major oil firms that initially had a stake in the firm pulled out for various reasons and, in some cases, at the demand of regulators.

ExxonMobile (XOM), for instance, sold its stake in 1999 following the merger of Exxon and Mobil. The company opted to retain its shares in Colonial’s competitor – Plantation Pipeline. Colonial repurchased XOM’s shares, distributing them proportionately among the firm’s remaining owners.

Fast-forward to 2002 when Marathon Petroleum Corporation (MPC) and BP each sold their stakes in Colonial to a subsidiary of Koch Industries. The conglomerate, which has significant oil interests, is the largest shareholder of Colonial Pipeline Co., with a 28.1 percent stake.

What Happened to the Colonial Pipeline

When the news of hackers gaining access to the pipeline broke, the question on most people’s minds beyond – who hacked the colonial pipeline – was, how can a pipeline be hacked in the first place?

If you’re like most people, the image that comes to mind when you think of the oil industry is likely greasy black fluids, pipes, and pumps. While this may be true to some extent, the reality is – the modern-day operation of gas pipelines is extremely high-tech and digital.

An intricate network of thermostats, pressure sensors, pumps, and valves all work in harmony to control the flow of gas, jet fuel, and diesel across several hundred miles of piping. The Colonial even has a sophisticated smart “pig” – short for pipeline inspection gauge – a high-tech robot that barrels through its pipes, analyzing them for any anomalies.

At the heart of this state-of-the-art operational technology is a centralized system that controls everything, and anywhere you have a network of connectivity controlled by computers means there’s always the risk of a cyber attack.

Why Did the Colonial Pipeline Shut Down

The cyberattack against Colonial Pipeline targeted the company’s IT systems. The operational infrastructure the company uses to transport oil was not directly compromised during the breach.

A hacker group that identified themselves as DarkSide gained access to the company’s network and stole approximately 100 gigabytes of data within a two-hour duration. The hackers then proceeded to infect the company’s IT network with ransomware that affected several of the firm’s systems, including accounting and billing.

To curb the spread of the malware, Colonial shut down the pipeline for several days. Investigations following the incident reveal that the cybercriminals gained access to the company’s system through a Virtual Private Network (VPN) account that allowed employees to remotely access the firm’s network.

According to cybersecurity experts, although the account in question was no longer in use at the time of the attack, the login credentials could still be used to access Colonial’s system. The VPN password was later discovered on the dark web among a batch of previously leaked access credentials.

It is entirely likely that the Colonial employee in question may have used the same password on another account that had previously been hacked. Hackers then used it to gain entry into the pipeline’s IT network.

Further investigations into the incident revealed that the VPN account did not use multifactor authentication. The hackers exploited this loophole to breach the firm’s network. All they had to do was input the employee’s username and password to access Colonial’s systems.

Ransom Demand

On May 7, 2021, a little over a week after the initial breach, an employee in the control room saw a ransom note appear on the computer screen at around 5 a.m. The DarkSide hackers demanded 75 Bitcoin, which was equivalent to about $4.4 million at the time.

Did Colonial Pipeline pay the ransom? Yes, it did.

In a Congressional hearing, Joseph Blount, the Colonial Pipeline CEO, explained the reason behind the company’s decision to yield to the attackers’ demands. According to him, the exact scope of the intrusion was not clear, and it was impossible to determine how long it would take to bring the systems back up again.

Blount made the call to pay the ransom in the hopes that it would speed up recovery time and give them back control of their systems.

As for the 100 gigabytes of stolen data, the Colonial CEO further stated that while the company did have backups, they were not sure whether the data had been compromised or if it was safe to use. The decision to pay for the decryption key was driven in part by this uncertainty.

Threat actors in a ransomware attack usually demand payment in cryptocurrencies like Bitcoin. The reason for this is their (mistaken) belief that government authorities cannot trace it to the recipients, therefore, allowing them to get away with the crime.

The Ransomware and Digital Extortion Task Force of the US Department of Justice were able to uncover the digital address of the crypto wallet the hackers used. Agents of the task force then obtained a court order to seize the crypto assets and were able to recover 64 Bitcoin out of the 75 paid as ransom. Owing to the volatile nature of cryptocurrency, the market value of the 64 Bitcoin recovered was roughly $2.4 million.

What Happens in a Cyber Attack

Stages of a Cyber Attack — Image *Source:* *Unsplash*

Cyber attacks take many forms and are often perpetrated in various stages. There are generally two types of cyberattacks.

1. Untargeted Attacks

In an untargeted cyberattack, a hacker indiscriminately targets as many devices, users, or services as possible. They don’t focus on any particular victim. Instead, their mission is to gain access to vulnerable systems using a wide range of different techniques. Some of these include:

Phishing – The attacker sends out emails to a large group of people directing them to visit a fake website and prompting them to offer up sensitive information.
Ransomware – The hacker disseminates disk encrypting malware that locks users out of the system until they pay a ransom amount for a decryption key.
Scanning – Attackers scan devices to gather port, network, or vulnerability information on these systems before launching a sophisticated attack that undermines their security.
Water holing – The attacker sets up a fake website or compromises an existing one to exploit site visitors.

2. Targeted Attacks

In targeted cyberattacks, hackers single out a particular organization due to a specific interest they may have in it or if they have been paid to target the business in question. They typically take several months to lay out the groundwork before finally launching an attack. Some of the techniques used to mount a targeted cyberattack on an organization include:

Spear phishing – The attacker sends out an email targeting an individual in an organization. The email may contain an attachment with malware or a link that downloads malware to their device, which then infects the company’s network.
Botnet deployment – This delivers a Distributed Denial of Service (DDOS) attack.
Supply chain subversion – This type of attack targets software or equipment that is being delivered to an organization.

Stages of a Cyber Attack

Regardless of the type of cyberattack a hacker employs, they all consist of the same number of recurring phases. Here’s a brief overview of each.

Surveillance – The hacker first investigates and analyzes all the available information about their target to identify exploitable vulnerabilities in the system.
Delivery – They then deploy the most suitable technique to exploit the vulnerabilities they uncovered in the surveillance stage.
Breach – Once they obtain the usernames and passwords of the system, they test them against VPN connections or web-based email systems. If they had sent malware-laced links or attachments, the attacker tries to access the system remotely.
Execute – Once they have total command and control of the target system, they can then carry out their overall objective.

Who’s Next on the List of Targeted Cyber Attacks

A cyber attack on pipeline companies is not new to the energy sector, given the recent attack on Colonial Pipeline to the 2017 NotPetya attack that led to the shutdown of a major part of the Ukrainian power grid.

Cyber attacks don’t just target the energy sector, though. Nearly every area of the global economy has been the subject of a targeted attack. Case in point – the 2020 SolarWinds Cyber Attack.

Russian hackers infiltrated the systems of SolarWinds, a top US Texas-based IT firm. The attack, which went undetected for months, allowed the hackers to spy on the US Treasury Department, Department of Homeland Security, elite cybersecurity firms like FireEye, and several other private companies.

Healthcare cyber attacks are also on the rise. According to a recent article in the Wall Street Journal, the US Department reported that nearly 1 million people every month were affected by data breaches at health care facilities in 2020. Hospitals hacked for ransom 2018 to 2020 cost the healthcare sector hundreds of millions of dollars, with a whopping $203 million reported in 2020 alone.

The prevalence of these security breaches is much higher than the reported cyber attacks on oil and gas companies.

The Cybersecurity and Infrastructure Security Agency Act of 2018

System Security Specialist Working at System Control Center — ***Image Source: Shutterstock***

In November 2018, President Trump signed the Cybersecurity and Infrastructure Security Agency (CISA) Act into law. According to the provisions of the new legislation, the agency was established to protect the country’s critical infrastructure against cyber threats and physical risks alike. CISA also expands the scope of responsibility of the National Protection and Programs Directorate (NPPD) – a critical component of the Department of Homeland Security (DHS).

The cybersecurity law created two main centers within the agency to support its mission:

The National Cybersecurity and Communications Integration Center (NCIC)
The National Risk Management Center (NRMC)

The NCIC is charged with providing cyber-situational awareness, cyber-defense support, incident response, and analysis to territorial, tribal, local, state, and federal governments.

The NRMC’s role is to plan, analyze, and collaborate with government agencies and private entities in the identification and eradication of the critical risks – cyber and otherwise – to the country’s critical infrastructure.

Cybersecurity Executive Order

In May 2021, President Biden signed an executive order to support and improve upon the existing cybersecurity legislation.

First, it proposes the enhancement of federal government systems to make them safer and harder to break into. One of the many measures it pushes for is the modernization of cybersecurity infrastructure by employing zero trust architecture.

Additionally, the new executive order also sets specific, measurable goals for more agile and effective responses to cyber threats targeting the federal government. IT providers are now required to report all cyber incidents that occur regardless of the degree of severity, without any of the contractual barriers that previously barred them from sharing this information with government entities.

The Future of Cybersecurity

All things considered and assessing how cyber attacks affect individuals, companies, and government agencies with regards to losses, the future of cybersecurity is difficult to predict. The industry is constantly evolving in response to the ever-changing behavior of cybercriminals, and new software is always being developed to counter these threats.

One thing is for certain, though. Artificial Intelligence and machine learning will play an integral role in all cybersecurity systems. Unfortunately, it also means that these systems will give hackers new ways to target organizations.

Cybercrime isn’t a problem that’s likely to go away any time soon.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Hands of wife and husband signing divorce

What Is a Legal Separation?

Legal Assistant August 9, 2021Divorce Law, Family Law

The decision on whether to get a divorce or legally separate from your partner can be confusing. Before you decide on which path to take, you need to understand the difference between the two and the legal ramifications of each.

What is a legal separation, and how is it different from getting divorced? This article explores the answer to this question in depth.

Legal Separation Definition

A legal separation is a court order that defines the rights and obligations of a married couple living apart and leading separate lives. It is usually the go-to alternative to a divorce where both parties are unsure about the future of their relationship but still want to establish certain boundaries as they work through their personal and financial issues. Some of these may include the division of assets, child support and custody issues, and spousal support.

What Does Legally Separated Mean

The reasons why a couple would seek a legal separation vary widely. In some cases, it may be due to religious beliefs, as some religions don’t believe in divorce. There are also those couples that go this route when they’re uncertain about the future of their relationship and perhaps hope to reconcile somewhere down the line.

In other instances, couples might view a legal separation as an ideal alternative to divorce when minor children are involved. While the parents operate as separate units, the family may remain intact to maintain order and stability in the home, for the most part at least. Another common reason for couples opting for a legal separation is to hold on to their health and retirement benefits, which might be lost in a divorce.

Recent trends reveal that a rising number of couples are choosing to separate without a court order to avoid the costs associated with formal legal proceedings. Each party’s ability to freely spend money from joint bank accounts or credit cards freezes the moment the date of separation is determined. The same applies to each party’s control over shared assets like vehicles and property.

Additionally, each spouse may become legally responsible for their individual debt. However, this all depends on the provisions of the separation agreement.

Keep in mind that a legal separation is just as serious as a divorce. They are both court orders that outline the duties and legal obligations of each party. Each spouse is bound by these provisions. If the couple does decide to proceed with a divorce, the presiding judge may consider the details of the legal separation agreement in their ruling.

Legal Separation vs Divorce

What is the difference between legal separation and divorce? The most apparent distinction between the two is that one dissolves the marriage and the other does not. Below is a list of the key differences between the two.

Debts

Depending on the obligations detailed in the legal separation documents, each spouse may still be responsible for the debts of the other. In a divorce, the issue of debt is addressed during the dissolution process.

Decision-Making Ability

While a couple may be legally separated, they are married in the eyes of the law. This means that spouses are still considered next of kin. This ceases to be the case once the couple divorces.

A legally separated couple still retains their health care benefits, retirement benefits, and all other benefits they may be entitled to. On the other hand, a divorce terminates these benefits.

Marital Status

professional lawyer consulting spouses about legal documents

Each spouse retains their marital status even while legally separated. They, therefore, cannot marry someone else until their existing marriage is dissolved. A divorced individual is free to remarry.

Property Rights

If one spouse dies while they were legally separated, the surviving partner retains their legal rights to property benefits. A divorce terminates those rights.

Reconciliation/Remarriage

Divorce is permanent, meaning it cannot be reversed. The only way to reconcile with your partner will be to remarry them if a legal reunification is what you’re after. A legal separation makes it much easier for spouses to reconcile.

How to File for Legal Separation

First off, it’s important to note that other types of separation exist. There’s a trial separation where both spouses live apart to determine whether a legal separation or divorce is what they want. This is usually the go-to option when couples start having marital problems.

There’s also a permanent separation where both spouses live apart with no intention of ever reconciling. Such parties are considered permanently separated even though they are not divorced.

Keep in mind that some state laws do not permit legal separation. Learn what your state laws have to say about it to determine whether it is a viable option for you. If your state permits it, you can file for legal separation by submitting a separation agreement to the courts. Alternatively, you could also file for one just as you would when filing for a divorce.

How Much Does a Legal Separation Cost

The precise amount you’re likely to spend all boils down to the state you reside in and whether one of the spouses contests the separation. An uncontested separation can settle for anywhere between $50 and $1,000.

For instance, the court filing fee for a separation petition in New York costs $210. The average cost of a contested legal separation involving complex matters like spousal support and legal decision-making is in the $50,000-$100,000 range.

The length of the separation process varies depending on the state in question and the complexity of the legal separation documents. The typical duration is 6-12 months.

Get Help From a Competent Attorney

Given the fact that each state has its own laws pertaining to debt and property division, it is always a good idea to consult with an experienced divorce attorney if you’re thinking of getting a legal separation from your spouse. That way, you can make a decision based on your current and future circumstances once you understand the legal ramifications involved.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

gavel and a name plate with the engraving Death Penalty

Which States Still Uphold the Death Penalty?

Legal Assistant August 5, 2021Criminal Law

The history of the death penalty in the United States dates back to the 17^th century when Captain George Kendall was executed in Jamestown Colony, the first-ever permanent English settlement in North America.

Kendall was charged and convicted for being a spy for Spain, which at the time was considered a capital offense. Even seemingly minor offenses like killing chickens, stealing grapes, or trading with Indian natives were all punishable by death.

Today, the death penalty remains a highly controversial topic. Some states have outlawed the practice, while others still uphold it in their laws. This article explores the ins and outs of capital punishment, the arguments for and against it, and which states have it embedded in their laws.

Death Penalty Statistics

According to data from the Death Penalty Information Center (DPIC) database, there have been a total of 1,534 executions between January 1977, after the Supreme Court reinstated capital punishment, and June 2021.

A recent survey conducted by the Pew Research Center indicates that 60 percent of respondents favor the death penalty for individuals convicted of murder crimes, while 78 percent fear that there’s always the risk of an innocent person being put to death for a crime they did not commit.

The same survey also showed that 63 percent of Americans believe that capital punishment does not deter individuals from committing serious offenses.

Capital Punishment vs. Corporal Punishment

Capital punishment, also known as the death penalty, refers to the practice of executing an individual who is found guilty of murder. In some countries across the world, crimes like rape and adultery are also classified as capital crimes and are punishable by death.

The corporal punishment definition refers to the use of physical force to inflict injury, pain, or discomfort for a crime or what would otherwise be deemed unacceptable behavior. Popular examples of corporal punishment include flogging, caning, whipping, mutilation, branding, amputation, and blinding. A broader definition of the term denotes the act of disciplining a child in school or at home by spanking, slapping, beating, or pinching them.

Corporal punishment for legal crimes no longer exists in the US criminal justice system. The last flogging in the country happened in Delaware in 1952 before being abolished entirely 20 years later.

While corporal punishment is explicitly outlawed by various international human rights conventions, including the United Nations Standard Minimum Rules for the Treatment of Prisoners and the European Convention on Human Rights, many prisons still covertly administer this form of disciplinary action to detainees.

The historical rationale behind the use of corporal punishment has been that the injury, pain, degradation, and humiliation it inflicts on the offender deters them from committing a similar offense in the future.

However, this claim has since been refuted by empirical evidence showing that offenders subjected to corporal punishment were more likely to commit the same crimes they were convicted of compared to those who were imprisoned for their offenses.

Corporal Punishment for Children

Spanking and other forms of physical reprimand administered at home are technically legal in all 50 states. While the statutes may vary from state to state, their common denominator is that corporal punishment needs to be “reasonable and not excessive.”

In 2014, a New York court ruled that a father using his open hand to slap or spank his eight-year-old child is considered a “reasonable use of force.”

On the educational front, only 19 states allow the use of corporal punishment in public and private schools.

Arguments for Punishment and Retribution

Before diving into the arguments for and against capital punishment, here’s a quick reminder of the reasoning behind punishment and retribution in general.

Individuals found guilty of committing a crime deserve some form of punishment.
Only guilty people should be punished.
The punishment administered to a guilty person should be proportional to the severity of the crime.

The singular premise of these arguments is that real justice can only be served if people suffer for their wrongdoing and in a manner that’s appropriate for the crime committed. That being said, below is a brief overview of the arguments for and against the death penalty.

Arguments for the Death Penalty

When someone commits murder, they effectively give up their human right to stay alive.
The punishment should fit the crime, meaning if someone takes away another person’s life, they deserve to lose theirs as well.
Administering the death penalty to a killer stops them and deters others from committing similar crimes in the future.
The very small likelihood of executing an innocent person is balanced by the benefits society gets by deterring potential offenders from committing murders.

Arguments Against Death Penalty

Capital punishment goes against the most basic of all human rights – the right to life.
Death by electrocution or lethal injection isn’t always painless and doesn’t always go as planned; the individual may die a painful death.
No tangible statistics prove that the execution of murderers deters others from committing similar crimes.
The criminal justice system is not perfect, and an innocent person may end up getting wrongfully executed.

What Crimes Get the Death Penalty

Federal capital offenses punishable by death usually involve murder committed under special circumstances involving children, multiple crimes, or protected classes. Here are a few examples of crimes that get the death penalty.

A civil rights offense that results in death
First-degree murder
Murder committed during kidnapping or hostage situations
Murder of a member of the Supreme Court, Congress, or the Executive
Murders committed during drug-related, drive-by shootings
Murders committed using a firearm during drug-trafficking offenses

Which States Have the Death Penalty

According to the latest statistics from the DPIC database, there are a total of 27 death penalty states and 23 non-death penalty states, including the District of Columbia. Capital punishment is legal in:

Arkansas
Arizona
Alabama
California
Florida
Georgia
Idaho
Indiana
Kentucky
Kansas
Louisiana
Montana
Missouri
Mississippi
North Carolina
Nevada
Nebraska
Oregon
Oklahoma
Ohio
Pennsylvania
South Dakota
South Carolina
Texas
Tennessee
Utah
Wyoming

The death penalty is also permitted within the US military and at the federal level. It’s important to note that while capital punishment may be legal in the jurisdictions listed above, many of those states have not had an execution in over a decade. Some state governors, including those for Pennsylvania, Oregon, and California, have even imposed formal moratoriums on capital punishment.

The Death Penalty and Criminal Justice Reform

Several criminal justice reform organizations across the country continue to fight relentlessly against the death penalty, arguing that racial disparities are deeply rooted in the legal system. They’re calling out the “tough on crime” policies that have led to the mass incarceration of Black and Brown people, which has had no impact on the reduction of violent crime.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

What Is the Defense Base Act (DBA)?

Legal Assistant August 5, 2021Administrative Law, Employment Law, Personal Injury Law

If you or a loved one has suffered injuries while working in a foreign country supporting the military, you may be entitled to compensation under the Defense Base Act (DBA).

The law is an extension of the Longshore and Harbor Workers’ Compensation Act (LHWCA) and is designed to compensate any injured civilian deployed overseas under a US government contract.

This article takes an in-depth look into the Defense Base Act law to help you understand your rights and whether you qualify for compensation.

What Is the Defense Base Act

The Defense Base Act is a type of workers’ compensation that allows injured civilians working with the American defense forces to file claims for medical benefits and weekly compensation.

During World War II, Congress used the Longshore Act law as the framework for enacting the DBA. The LHWCA always applies to injury cases unless the DBA states otherwise.

The Zone of Special Danger

Before going any further, you need to be aware of a unique doctrine known as the Zone of Special Danger that applies to all DBA claims. The LHWCA and DBA are pretty similar to conventional workers’ compensation laws. They compensate workers for the costs associated with medical treatment and lost earning capacity for injuries they suffer in their line of work.

In all cases, the Acts typically address whether the victims were injured while working under an active contract. That’s where the doctrine comes into play.

Regular workers’ compensation laws don’t apply to employees who sustain injuries outside the scope of their employment. Those laws usually have a caveat that requires workers to have been engaged in employment-related activities at the time of the injury.

If they were injured while engaging in a recreational activity, they would not be entitled to any compensation. The same applies if they were involved in an activity that goes against company policy or horseplay. Workers’ compensation laws would not cover them in such scenarios.

The Zone of Special Danger has no such requirement. Under the doctrine, if an individual is contracted to work in a Zone of Special Danger, all potential and actual injuries fall in the realm of “work-related.” Even recreational activities would be considered part of the job.

The provisions of the doctrine are designed to protect workers when the circumstances surrounding their line of work increase the likelihood of physical injury. The Zone of Special Danger in Defense Base Act cases is so broad (especially those in war zones) that it would be difficult to dispute an injury as not work-related.

NR v. Halliburton

An employee contracted to work at a military base in Afghanistan was injured while traveling to his departure point. His decision to do this was in direct contravention of the orders of on-base Military Police, whose safety procedures required him to travel by military convoy.

The worker believed that doing this would pose a more significant threat to his well-being and decided to use other travel means instead. The Military Police were deployed to arrest him, and a scuffle ensued. He was injured while resisting arrest and filed a DBA claim once he returned home.

An Administrative Law Judge dismissed the claim on the grounds that the worker’s refusal to adhere to the safety procedures in place meant that his injuries fell outside the scope of employment. In the ruling, the judge stated that the worker was ineligible for Defense Base Act compensation because his injury had nothing to do with the inherent risks associated with his day-to-day work. As a result, the Zone of Special Danger was no longer applicable.

The US Department of Labor’s Benefits Review Board later reversed this ruling, citing the language used in the Longshore Act law – compensation is payable regardless of fault.

O’Leary v. Brown-Pacific-Maxon

This is another example of an injury that falls within the Zone of Special Danger. A worker ended up drowning while trying to save two of his colleagues who were swimming in dangerous waters near their employer’s recreational facility. The beneficiaries of the deceased worker received Defense Base Act compensation under the Zone of Special Danger.

The spirit of the doctrine is simple: Any type of contractual work performed in hazardous conditions overseas means that workers cannot escape the inherent risks in their working environment. Because of this higher-than-usual threat of harm, all activities that don’t fall within the scope of state workers’ compensation laws are covered under the Zone of Special Danger doctrine embedded in the Defense Base Act.

War Hazards Compensation Act

The 1942 War Hazards Compensation Act was enacted to supplement the DBA. The law embodies the national policy that the general public bears the losses from war risk deaths and injuries.

The Defense Based Act covers employees who suffer injuries resulting from war risk hazards. These claims are administered under the Department of Labor’s DLHWC (Division of Longshore and Harbor Workers’ Compensation).

The War Hazards Act provides for three main types of claims:

1. Injuries That Don’t Fall Under the NAFIA or DBA

Employees who may be covered under the NAFIA (Nonappropriated Fund Instrumentalities Act) or DBA but whose injuries cannot be compensated under the two statutes would be able to file claims under the War Hazards Act.

WHCA also covers individuals whom the US government engages for non-official services in foreign territories. Nonetheless, given how broad the DBA’s Zone of Special Danger is, these types of injury claims are pretty rare.

2. Detention Claims

The WHCA covers compensable employees under the NAFIA and DBA laws who are taken hostage or imprisoned by hostile forces. These individuals would also be able to file a direct claim under the provisions of the War Hazards law.

3. Self-Insured Employers

A self-insured employer or an insurance carrier is entitled to file for compensation for expenses and losses they incur from war risk hazards. A special fund set up under the Federal Employees Compensation Act is responsible for these reimbursements.

An insurance carrier would be most interested in the provisions of Section 104(a). According to the Reimbursement Claims law:

Any compensation fund, insurance carrier, or employer obligated to pay out benefits to any individual on account of their death or injury within the scope of the Federal Employees Compensation Act, or the DBA can apply for reimbursement.
If the death or injury for which the benefits were paid resulted from a war risk hazard, the compensation fund, insurance carrier, or employer can apply for reimbursement.
The compensation fund, insurance carrier, or employer can apply for reimbursement for medical expenses, funeral and burial expenses, death and disability payouts, and claims-processing expenses.

Defense Base Act Insurance

Any federal contractor that employs workers on a military base outside American borders or on foreign public work contracts is subject to the Defense Base Act. The provisions of this federal law require certain contractors to provide insurance coverage against job-related injuries that meet the requirements stipulated by the Act.

This type of workers’ compensation is known as Defense Base Act insurance. Contractors can purchase it through approved insurance carriers, although they have the option to self-insure if they get approval from the US Department of Labor.

The penalties for non-compliant contractors working with the US government abroad are severe. Not only would they be required to pay the benefits the injured worker is entitled to, but they would also be barred from using any of the following arguments in court if the victim sues them for failing to pay up:

Assumption of risk: The contractor cannot argue that the worker was aware of the risks involved when they took the job.
Contributory negligence: The contractor cannot argue that the worker’s negligence contributed to their injury.
Fellow-servant rule: The law bars the contractor from arguing that a fellow employee’s negligence resulted in the injury.

If an employer fails to compensate the worker as provided for by the DBA insurance requirements, it constitutes a gross misdemeanor. If found guilty, they could be looking at imprisonment for a period not exceeding one year, a fine of up to $10,000, or both.

What Does DBA Insurance Cover

DBA insurance coverage offers the benefits generally provided by workers’ compensation insurance. It includes death benefits, disability benefits, and medical expenses. Insured workers are covered for the entire duration the contract is in force, whether or not the injury occurred during working hours.

If an injury results in permanent disability, a worker is entitled to a weekly payment amounting to two-thirds of the average weekly wages they received before the disability. The total amount payable is capped at a maximum of $1,030.78 per week. An injured employee is also entitled to compensation if they suffer a partial disability.

Additionally, if the injury results in the worker’s death, the surviving beneficiary will receive 50 percent of the deceased’s average weekly wages. If there are two or more beneficiaries, that number goes up to 66.7 percent. The law defines a “survivor” as a spouse and children.

DBA insurance also covers foreign employees, the only difference being that benefits are paid out in a single lump sum instead of weekly disbursements.

How to File a DBA Claim

The Defense Base Act covers several different types of injuries, such as those to the eyes, ears, feet, legs, toes, arms, hands, fingers, and any other kind of bodily harm. It also covers pulmonary injuries, PTSD, depression, anxiety, and other mental health injuries. Aggravation injuries and cancer are also compensable.

The DBA claims process requires an injured worker to fill an Employee’s Claim for Compensation form (LS-203) available on the Department of Labor’s website. They can do this themselves or through a Defense Base Act lawyer who can file it on their behalf. The same form can be used to file a claim under the LHWCA and NAFIA laws as well. Injured workers must see to it that they provide all the relevant documentation associated with their injury.

Keep in mind that all claims must be filed within a year from the date the injury or death occurred. Each claim is fax-filed with the DLHWC, which then assigns a case number to it before issuing a notice to the insurance carrier or employer, letting them know that a claim has been filed.

If the worker retains an attorney, their lawyer will need to file Form LS-203 along with a retainer notice to let the DLHWC know that they are authorized to litigate on their behalf.

Before the DLHWC can make a recommendation, it will want to hear from the employer. All parties will need to take part in an informal conference before the DLHWC can issue a memorandum. If any of the parties disagrees with the memo, they’re required to file a Form LS-207 citing their reason for objection.

From that point on, either party may choose to go the traditional adjudication route by referring their case to the Office of Administrative Law Judges.

Defense Base Act Settlements

Formal adjudication does not offer any alternatives. Nonetheless, both parties may discuss settlement in the course of the proceedings. An Administrative Law Judge or the DLHWC can only approve a settlement if it is considered “reasonable.”

To determine whether or not this is the case, they typically consider three critical factors:

Medical files: Has the worker achieved the maximum possible medical improvement?
Loss of earning potential: Has the worker returned to work, or can they find another form of employment?
Disputed issues: What are the factual or legal issues being disputed, and what bearing do they have on the claim?

The DLHWC has 30 days to review a settlement. If it deems it reasonable, it will go ahead and issue a Compensation Order to the employer, who then has 10 days to wire the settlement money.

Given the complexity of such claims, it’s always advisable to retain the best Defense Base Act attorney to represent your interests in such matters. That way, you know your rights are protected every step of the way.

Do you have any legal questions for us? Chat online with a Laws101 attorney who can answer your questions regarding DBA claims.

Who Is Liable In a Drilling Rig Accident?

Legal Assistant July 28, 2021Business Law

If you make your living working on an offshore oil rig, you know it ranks among one of the most dangerous jobs in the world. The constant exposure to highly combustible materials, alongside the proximity of heavy equipment and slippery decks, means that the risk of serious and often life-threatening accidents is significantly higher compared to other occupations.

One of the major risk factors for oil rig workers that could potentially lead to fatal and non-fatal injuries is fatigue. According to data from the Bureau of Labor Statistics (BLS), individuals in this fieldwork in shifts that run for as many as 12 hours every day for up to two weeks, with no days off in between. It’s no surprise then that the slow reaction times that come with working long hours leave employees vulnerable to mishaps.

Regardless of what causes an oil rig accident, the real question is – Who is liable? Here’s everything you need to know.

Common Causes of Injuries on an Oil Rig

Federal law dictates that all employees have the right to work in a safe environment and under conditions that don’t endanger their well-being regardless of location.

Nonetheless, if you work on an oil rig, your risk for injuries is considerably higher compared to professionals working in other fields. Below are some of the most common causes of injuries on an oil rig.

Caught-Between, Caught-In, and Struck-By Hazards

Three in every five fatalities that occur on an oil rig are the result of caught-between, caught-in, and struck-by hazards. Accidents are more likely to occur when working around unguarded equipment and machines with moving parts; working under loads that are suspended mid-air; and working with spinning chains, elevators, tongs, casing, and pipes.

Falls

This is yet another common cause of injuries for individuals working on an offshore oil platform. Falls usually result from slips caused by oil or water on the oil platform itself or the equipment; or tripping over holes or machinery. In some cases, falls may result from improper use of ladders or not having proper guardrails installed for additional support.

It is the responsibility of maritime employers to ensure that they provide adequate training on fall prevention, in addition to installing personal fall arrest systems (PFAS), safety nets, guardrails, siding, and anti-skid deck plating for fall protection.

Electrocution

Sometimes, accidents may stem from energy hazards, which are quite common aboard oil rigs. The absence of grounding prongs, damage to extension cords, improper servicing of electrical equipment, failure to adhere to proper Lockout/Tagout (LOTO) and re-energizing procedures are all potential causes of electrocution on an oil drilling platform.

Explosion

An oil rig explosion can be wildly catastrophic. Drilling platforms frequently have highly combustible materials traversing through them. If the fuel being ferried to and fro is not properly contained, or a vessel ends up striking the oil rig, an explosion might be inevitable.

Maritime employers have to ensure that all the necessary precautionary measures are taken to reduce the risk of an oil rig fire and provide safe working conditions for the employees at all times.

Heavy Equipment

Caught-between, caught-in, and struck-by accidents often go hand-in-hand with heavy equipment hazards. The most notorious culprits in several heavy equipment injuries that occur on oil rigs are cranes. These enormous machines are capable of carrying extremely heavy loads.

Without proper and regular maintenance, or in the hands of inexperienced crane operators, this gigantic piece of machinery can be very dangerous. The most common injuries that result from heavy equipment on an oil rig include driving, overloading, and tipping accidents, as well as operator and mechanical errors.

Helicopter Accidents

Granted, a helicopter accident may not be the first cause that comes to mind when thinking of drilling rig accidents. Nonetheless, given the fact that it is the most common means of transporting oil rig workers to and fro between the offshore rig and base on land, it is not unusual to come across helicopter crashes from time to time.

Such accident cases tend to combine several fields of personal injury law, including – wrongful death, aircraft accidents, and oil rig accidents.

Hazardous Weather Conditions

The offshore weather out at sea is vastly different from that onshore. The surges of ocean water, high-speed winds, and heavy rainfall brought on by storms can make the conditions on an oil rig extremely dangerous.

The weather can be so severe that oil rig workers have to evacuate the site several days ahead in anticipation of a treacherous storm. In some instances, however, some workers have to be left behind to ride out the storm and ensure the rig remains intact during such conditions.

Employees may end up getting struck by lightning, hit by objects blowing in the wind, slipping and falling on wet docks, or even getting pushed off the drilling platform into the rough ocean waters.

Deepwater Horizon What Happened

In the catastrophic 2010 BP oil rig explosion off the Gulf of Mexico coastline, the Deepwater Horizon sank, causing several injuries and fatalities among the employees working on the platform. A massive amount of oil spilled into the ocean, causing devastating effects on the marine life, wetlands, and small businesses in the vicinity.

Federal investigators found that the primary cause of the explosion was a malfunction of the cement located deep within the 18,000-foot-deep well. The cement was supposed to keep the gas and oil confined within the wellbore. As a result of the breakdown, natural gas shot onto the drilling platform under tremendous pressure, which ignited, causing the explosion.

The federal report compiled by a joint task force made up of the US Coast Guard and the Bureau of Ocean Energy Management, Regulation and Enforcement concluded that BP – the drilling company that owned the well – took several shortcuts to complete the Macondo well project. The report revealed that the company was tens of millions of dollars beyond budget and ran several weeks behind schedule.

Ultimately, BP was responsible for the accident. However, the company’s chief contractors, Halliburton and Transocean, were also found to be partially liable. Halliburton was the company contracted by BP to undertake the cementing operations, while Transocean was the owner of the mobile drilling rig.

Federal investigators further found that BP and its contractors violated several laws that required the companies to:

Operate in a safe manner
Conduct frequent and reliable tests to ensure that well pressures remain within the stipulated limits
Notify federal regulators of any changes made to drilling plans
Take the necessary containment measures to ensure that oil and gas do not get released into the environment

The damage caused by the explosion and subsequent oil spill was estimated at billions of dollars. Approximately five million barrels of oil spilled into the ocean polluting hundreds of miles of fish habitats, marshes, and beaches.

Who Is Liable In a Drilling Rig Accident?

Below is an overview of the various legal remedies available to oil rig explosion victims.

Jones Act

The Merchant Marine Act of 1920 – commonly referred to as the Jones Act – provides a comprehensive legal framework that offers protection to maritime employees who get injured at sea. The Jones Act provides a means through which injured seamen can sue their employers since they do not qualify for workers’ compensation under the provisions of maritime law.

Individuals covered by the Jones Act include crew members, officers, and captains, whose time spent working on a vessel out at sea accounts for more than 30 percent. Individuals working on an offshore oil rig are also considered seamen under the provisions of the act.

The law requires oil drilling companies to provide reasonably safe working environments for their employees. If an accident occurs aboard an oil rig platform, resulting in injuries or fatalities, the employer can be held liable if they are found to have been negligent.

Some examples of unsafe working conditions that may find an oil drilling company liable for any injuries or deaths that occur include:

Absence of personal fall arrest systems (PFAS), safety nets, guardrails, siding, and anti-skid deck plating
Failure to provide the workers with proper equipment
Inadequate training of the oil rig workers
Poor equipment maintenance
Presence of water, oil, or other slippery substances on the drilling platform
Assault by a fellow oil rig worker

Proving Liability Under the Jones Act

In conventional negligence claims, the burden of proof rests on the plaintiff to show, beyond a reasonable doubt, that the defendant’s negligence was the direct cause of the accident in question. In legal terms, this is referred to as “proximate cause.”

The Jones Act works a little differently.

If you were injured while working on an offshore oil rig, the burden of proof rests on you showing that your employer’s negligence was the proximate cause of your injuries, only that in this case, the burden of proof is significantly lower than that of standard negligence cases.

To prove liability under the Jones Act, you’re only required to show that your employer’s negligence played a part – however small – in the injuries you sustained. Even if there were three other significant causes of your injuries, the provisions of the Act still allow you to recover damages from your employer.

This rule applies even in instances where the oil drilling company you work for was only responsible for one percent of the injuries you sustained. The Deepwater Horizon survivors were able to sue the company on these grounds.

Damages Under the Jones Act

To claim compensation for injuries you sustained in an oil rig accident, you’re entitled to seek the usual types of damages available to victims in standard personal injury cases. These include:

Loss of earning capacity
Loss of wages
Mental anguish
Pain and suffering
Past, present, and future medical expenses

If you can prove that there was deliberate wrongdoing on the part of the oil drilling company, you may also be able to sue for punitive damages. Additionally, it is not unusual for some courts to award victims interest on their damages in addition to the settlement they receive.

Keep in mind, however, that time is of the essence when it comes to filing such suits. The statute of limitations is capped at three years from the date the injury occurred, so you’ll need to get in touch with an offshore accident lawyer as soon as possible to get the ball rolling.

Nuisance Complaints/Toxic Tort

The Deepwater Horizon explosion led to a massive oil spill that spread to the wetlands. Crude oil is a highly toxic substance that can have devastating effects on marine life, plants, wildlife, and even people.

The oil spill led to the contamination of food sources, the pollution of drinking wells, and even seeped into groundwater. The fumes from the explosion traveled many miles inland, causing a wide range of respiratory issues among people.

These are all examples of toxic tort claims that can be launched against drilling companies in oil rig accidents that result in oil spills.

Economic Damages

The effects of an oil spill can have far-reaching repercussions on many businesses, particularly those in the fishing and tourist sectors. If you are a business owner whose enterprise has been affected by a drilling rig accident, you can file a lawsuit for the economic damages you suffered as a direct result of the spill.

Environmental and Regulatory Damages

In the Deepwater Horizon case, several environmental groups filed lawsuits against the federal government for the role it played in the drilling rig disaster. In one of the suits, the plaintiff alleged that the government had unlawfully allowed BP to drill in 6,000+ feet of water without conducting a worst-case and blow-out oil spill analysis.

When the government fails in its oversight and regulatory role to prevent such accidents from happening, it can be held liable in a civil suit.

Talk to an Experienced Attorney

If you find state and federal laws confusing, maritime law is a whole different beast. It may not always be clear who the at-fault party is. If you were injured in a drilling rig accident, get in touch with an offshore accident lawyer as soon as possible to help you seek the compensation you deserve.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

What Happens if a Car Defect Causes a Fire or Accident?

Legal Assistant July 28, 2021Business Law

Every year, an estimated 189,500 vehicles in the United States experience car fires. These result in close to 1,200 injuries, 300 deaths, and more than $1.1 billion in property loss and damages.

A huge portion of these accidents occurs in vehicles with diesel or gas engines, although the number of incidents involving electric cars is also on the rise.

While the proximate causes of the fires may not always be apparent, the US Fire Administration indicates that equipment malfunctions have been determined to be responsible for roughly 24 percent of vehicle fires. These could be anything from electrical wiring faults and improperly installed devices to a defect in the vehicle design.

With that in mind, what happens if car defects cause a fire or accident? Here’s what the law has to say about it.

What Causes Car Fires?

Contrary to what you might believe, vehicles do not spontaneously burst into flames unless there’s some underlying issue the driver may not be aware of. Below are some of the most common vehicle defects that may result in a fire.

Fuel Leak in Car

Leaking fuel tanks are arguably the most common cause of car fires. Fuel tanks need to be designed with fuel cell bladders and anti-puncture shields and mounted in front of the rear axle. This area needs to be free from brackets and other sharp objects that could puncture the tank, causing a leak.

Additionally, defective or poorly-routed fuel lines may end up rupturing in a collision. If the punctured line starts leaking, a small spark is enough to ignite the fuel within. Leaking flammable substances such as oil or gas are the perfect recipe for raging fires, especially in the presence of superheated metal.

Car Electrical System Failure

Modern vehicles have a lot of electrical components, which means a ton of wiring. These wires and cables may get damaged in a collision which may, in turn, cause sparks. If the collision in question also caused a fuel leak in the engine, the sparks from the cables may ignite oil, gas, or combustible fumes. Even in the absence of flammable fluids, defective cables and ignition wiring may short and spark a fire.

Engine Overheating

An overheated engine will rarely cause a car fire. The vehicle will simply stall in most cases, and you may see what looks like “smoke” emanating from the car bonnet. While it may look like there’s something burning, this “smoke” is actually steam from the radiator.

Just because car fires are rarely caused by overheating engines doesn’t mean they don’t happen. Vehicle engines can get extremely hot, and when they do, they can trigger a chain reaction that ignites the flammable parts of the car, leading to a fire.

The same applies to overheated catalytic converters. Vehicle exhaust systems can get super-hot. Think 2,000 degrees. Catalytic converters that get hotter than that can ignite the flammable parts of the vehicle, setting the rest of it on fire.

Ford Recalls

In 2017, Ford issued a nationwide recall on certain models of its Transit Connect, Fusion, Fiesta, and Escape vehicles with EcoBoost engines, after dozens of reports of overheating. The Ford EcoBoost problems witnessed in the 1.6-liter engine models stemmed from a design flaw that caused low coolant levels, subsequently increasing the likelihood of underhood fires and engine failure.

According to the carmaker, the recall was issued to fit cars with coolant level sensors to prevent the engine cylinder head from overheating, cracking, and leaking oil.

However, in a lawsuit filed against the company, several Ford car owners allege that the company did not address the full range of vehicles affected by the design flaw. The 1.5-liter and 2.0-liter engine models also experienced similar Ford EcoBoost problems.

Hybrid and Electric Car Battery Defects

If a car battery gets damaged for any reason, it is only a matter of time before it ignites, setting the rest of the car on fire. The risk is bigger for electric cars and hybrids since their batteries are much larger compared to those of conventional gas/diesel-powered engines.

Lithium-ion batteries for electric cars can catch fire for several reasons. For instance, if the software that regulates how much electric current flows into the battery while charging malfunctions, the battery can ignite as a result of too much or too little charge. Lithium-ion batteries can also ignite due to a manufacturing defect, misuse, or damage resulting from normal wear and tear.

What Happens if a Defect Causes a Fire or Accident?

The first thing you need to do is get in touch with a vehicle defect lawyer as soon as possible to explore the various legal remedies available to you.

Defective motor vehicle lawsuits are different from ordinary personal injury claims for negligence. The burden-of-proof standard is much lower and does not require plaintiffs to show that the at-fault party was negligent. It isn’t a requirement under the doctrine of strict liability. All you’re required to show is:

The vehicle in question or a constituent component had an “unreasonably dangerous” defect that caused your injuries. The defect may have come about during the design, manufacture, handling, or shipping of the vehicle. It may also have come about by failing to warn consumers of a dangerous aspect of the car.
The vehicle was being used in a manner that the manufacturer intended at the time the injury occurred. For instance, if you were using a sedan to cross a rocky stream, you may not be able to recover damages.
The vehicle had not been significantly changed from its original condition at the time of purchase. “Significantly” in this case means altering the vehicle in a way that affects its performance.

The legal compensation you may be entitled to include pain and suffering, medical expenses, lost wages, and out-of-pocket expenses you incurred. If you can prove deliberate wrongdoing on the manufacturer’s part, you may be able to recover punitive damages as well.

Talk to an Experienced Attorney

Litigation involving car defects can be quite complex. If you were injured in a car accident stemming from a defect in the vehicle’s design or operation, get in touch with a vehicle defect lawyer as soon as possible to help you get the compensation you deserve.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Are 2nd Amendment Sanctuary Cities Legal?

Legal Assistant July 24, 2021Administrative Law

According to a recent survey, 1,930 counties across the country have enacted Second Amendment Sanctuary legislation at the county or state level. This represents a whopping 61.39 percent of all United States counties.

While some state legislatures have declined to follow suit, various counties are pushing back by choosing to enact their own ordinances. Hundreds of boroughs, townships, and cities countrywide are also passing similar resolutions.

What is a 2nd Amendment sanctuary, and are these cities legal? Here’s everything you need to know.

What Is the 2nd Amendment – A Brief History

The 2nd Amendment is no doubt one of the most hotly contested sections of the US Constitution. Despite only being a single sentence, it leaves a lot of room for individual interpretations depending on who you ask.

The 2nd Amendment was ratified in 1789 alongside nine other amendments collectively referred to as the Bill of Rights. Its entire premise is to prevent the government from infringing on what it describes as a “well-regulated militia.” The meaning of that single phrase has been the topic of debate for centuries.

Until 2008, there were hardly any groundbreaking opinions on the topic based on the Supreme Court’s interpretation. It did, however, find that the 2nd Amendment does guarantee an individual’s right to “keep and bear arms.” This, in turn, makes it difficult for Congress to enact gun-control legislation to regulate gun ownership.

Here’s a brief background on what the original intent of the Second Amendment was when it was passed in 1789.

Several scholars and historians agree that the spirit embodied in this section of the Constitution was to eliminate the need for the US to have a standing army. As time progressed, this interpretation evolved to grant individuals the right to own firearms for self-defense purposes.

What Is a 2nd Amendment Sanctuary

A 2nd Amendment Sanctuary, or 2A Sanctuary for short, is a city, town, or county that resists state and federal gun legislation. It adopts a formal resolution that either withholds support of gun-control laws or affirms support for 2nd Amendment rights. Here’s what that means.

If a locality doesn’t agree with a particular piece of gun legislation that appears to infringe on the residents’ constitutionally protected right to keep and bear firearms, the local government authorities will not enforce such laws. For instance, government authorities in many 2A sanctuaries don’t enforce bans on owning high-capacity magazines, assault weapons, and bump stock, despite the enactment of legislation that outlaws such practices.

Are 2nd Amendment Sanctuary Cities Legal

First off, it’s important to note that so-called sanctuary laws have no bearing on getting prosecuted for a federal law gun violation. That being said, sanctuary laws may not even be necessary from a legal standpoint since the right to keep and bear firearms is a constitutionally protected right under the 2nd Amendment.

In the District of Columbia v. Heller, the Supreme Court reaffirmed this right, but with a caveat stating that it also doesn’t mean keeping and bearing firearms in “… any manner whatsoever… for whatever purpose….”

It’s equally important to remember that in the event of a conflict in the rights provided for by the 2nd Amendment, federal law always supersedes state and local legislation. A Federal District Court in any jurisdiction across the United States has the power to determine the constitutionality of an infringement on your rights to keep and bear firearms. This applies to real or perceived infringement by federal, state, or local authorities and their respective ordinances.

Ultimately, any further appeals on infringement matters are taken to Federal Circuit Courts and the US Supreme Court.

Do “Sanctuary Resolutions” Have Any Legal Effect

The answer to this question depends on the extent to which these ordinances conflict with the existing state and federal gun laws.

For instance, the board of supervisors for Tazewell County, VA, passed a sanctuary resolution that prohibits county employees from enforcing Virginia’s new gun laws. The resolution also bars county funds from being used in the enforcement of the novel legislation. According to the board, the new laws are unconstitutional and, in their opinion, infringe on state citizens’ Second Amendment rights.

Nevertheless, the state law in Virginia expressly bars local governments from enacting laws that are inconsistent with or in direct contradiction to the existing state laws. Moreover, Virginia state legislation specifically strips local governments of the power and authority to regulate firearms.

The resolution passed by this 2nd Amendment sanctuary county and others like it demonstrate a fundamental misinterpretation and misunderstanding of not just the spirit with which it was written but also the limitations it imposes on those rights. Such moves are illegal since it is tantamount to engaging in direct rebellion against the state, in addition to being inconsistent with the provisions of the Second Amendment.

The Role of Constitutional Sheriffs in the Sanctuary Movement

After several states passed a wave of gun reforms, several law enforcement officials aligned themselves with the constitutional sheriff movement, asserting that they would not enforce the new gun prohibitions citing the laws as unconstitutional. According to the officials in the movement, their position granted them the authority to determine whether or not local and state laws are constitutional, even if it meant defying the federal government.

In Nevada, for instance, all 17 sheriffs in the state publicly voiced their opposition to the gun laws, stating that they would not enforce them. In New Mexico, 30 out of the state’s 33 sheriffs also declared their support for gun sanctuaries.

Although the constitutional sheriff movement was already in force before the 2nd Amendment sanctuary movement, the two are generally considered the same.

Other 2nd Amendment sanctuary states that have passed resolutions opposing state enacted gun-control laws include:

Alabama
Arizona
Georgia
Idaho
Indiana
Kansas
Kentucky
Missouri
Nebraska
Oregon
Tennessee
Texas
Washington

The Bottom Line

The resolutions being passed in so-called 2nd Amendment sanctuary cities have no legal force in the eyes of the law. While it may be argued that state and federal legislation to promote gun safety does not infringe on citizens’ constitutional right to keep and bear firearms, the existing laws still have to be followed. Anyone found violating state and federal gun laws is liable to prosecution despite the 2nd Amendment sanctuary resolutions.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

How Does a Bill Become a Law?

Legal Assistant July 22, 2021Constitutional Law, Resources

The U.S. Congress is the legislative branch of the government whose function is to create laws. It consists of the House of Representatives and the U.S. Senate, both of which have to approve a bill before the President can sign it into law.

How does a bill become a law? Here’s everything you need to know about the process.

How a Bill Becomes a Law: The Step-by-Step Process

First off, what branch of government makes laws? The short answer is – the Legislative branch, which is made up of the House and the Senate, which are collectively known as Congress.

The function of the Executive branch is to enforce those laws, while that of the Judicial arm is to interpret them. That being said, here’s a detailed breakdown of how laws are made.

Step 1: Conception of an Idea

Every law begins its lifecycle as an idea. Anybody can come up with it. When they do, the next step involves getting in touch with their respective representative in Congress to share it with them. If they (the representative) like it, they can then kick start the legislative process.

It involves lots of research before writing up the proposed law, also known as a bill. Once the representative drafts the bill, they then engage with their fellow representatives to get them to sponsor it so that it can be introduced in the House or the Senate.

Step 2: Introduction of the Bill

The next phase involves introducing the bill to Congress. This process begins in the House, where representatives introduce bills by placing them inside a box on the desk of the House clerk. The clerk assigns a reference number to the bill with the prefix “H.R.” They then read the bill to all the representatives in the House before sending it to a House committee.

Senators can also introduce bills to the Senate in the same way that House representatives do, only that in this case, the bill number has the prefix “S.”

Step 3: Committee Action

A committee is then set up to analyze the bill based on its subject matter.

In most cases, the bill will be referred to one of the sub-committees, who may then:

Request government agencies to furnish them with relevant reports
Hold hearings with experts and any interested parties to provide testimony on the issues highlighted by the bill
Based on the insight they obtain, they can then use this information to revise or “mark-up” the bill
Report the bill to the full committee for further consideration

At this point, based on the insight provided by the subcommittee, the full committee may make a recommendation to:

Release the bill, i.e., reporting the bill out of committee
Lay the bill aside, i.e., table it
Revise the bill
Pass the bill

Upon committee approval, it then goes to the floor to be debated by all the lawmakers.

Step 4: Floor Action

At this stage, the bill goes back to the full House or Senate so that the House representatives or Senators can debate it further before approval. They may propose certain changes to it by adding additional text or altering the existing clauses.

During a debate, the representatives explain their stance on the bill and their reasons for agreeing or disagreeing with it. The duration of a debate varies depending on the level of opposition in the House or Senate.

Once the debate concludes, the clerk then reads each section of the bill as the representatives make the necessary changes to it.

Step 5: Voting Action

The members of the House and Senate then vote on the respective versions of the proposed bill.

Voting takes place in any of the following three ways:

A voice vote where the House Speaker or the Senate’s Presiding Officer asks those in favor of the proposed bill to say “aye” and those against it to say “no.”
A division vote where the groups in support of and those against the proposed bill are each asked to stand for a headcount;
A recorded vote where every individual is required to cast a ballot with their name on it to allow the public to see how they voted; The House uses an electronic voting system to do this while the Senate does this by roll call.

Step 6: Conference Committees

Before a bill can advance to the next stage, it needs approval from both chambers of Congress. When the Senate amends and approves a bill or a version of it that has already been passed by the House, or vice versa, a conference committee is then set up to resolve any legislative differences that there may be between the two versions of the bill. This is done through bargaining and negotiation until they reach a final compromise.

Step 7: Presidential Approval

This step addresses the question – Who signs bills to become laws? The short answer is – the President of the United States. After both Chambers pass the bill, it is sent to the President for final approval.

The President can either sign the bill to make it a Public Law or reject it through a veto. If a bill is vetoed, it goes back to Congress for further reconsideration. If the President fails to sign the bill within 10 days of receiving it, it automatically becomes law.

Step 8: The Creation of a Law

The Public Law is then assigned a number with the prefix “P.L.” by the Federal Register Office before the Government Printing Office prints it. The law can be issued in the form of a single publication or slip form. It is then organized in the order it was passed before being codified by subject matter.

FAQ

Is an Executive Order a Law?

No, it is not. An executive order is a written, signed, and published directive from the President that targets the operations of the federal government. It has the force law, doesn’t require any Congressional intervention, and cannot be overturned.

What Is Common Law?

This is a collection of unwritten rules based on different sets of legal precedent derived from judicial decisions and related quasi-judicial tribunals.

Who Makes Federal Laws?

The U.S. Congress is the legislative arm of the government that makes federal laws. It is made up of the House of Representatives and the U.S. Senate.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

What Does It Mean to Have a Lawyer on Retainer?

Legal Assistant July 10, 2021Business Law

If you’re thinking of hiring an attorney for your business, the first thing you’ll need to do is “retain” them. This is the term used to describe the process of creating an attorney-client relationship with that particular lawyer and involves paying a lawyer retainer fee in exchange for legal representation.

A lawyer retainer is most useful for individuals and businesses that require a considerable amount of consistent legal work but cannot afford to hire a lawyer on a full-time basis. How does a lawyer retainer work, and what exactly does it cover? Here’s everything you need to know about it.

What Is a Retainer Fee for a Lawyer and How Does It Work?

A retainer fee is the upfront payment made to a lawyer in exchange for legal representation. The amount is usually paid in advance for services to be rendered.

The specific amount you’re required to pay will depend on several factors, one of which includes how complex your legal issues are. Having a lawyer on retainer means that you’ll be paying them a fixed amount of money periodically for the duration you’ll need them.

While the idea of having a lawyer on call might sound appealing, there are a couple of things you need to consider before taking this step.

1. Why Do You Need the Attorney?

Unless you’re involved in a serious accident, you may find that you only require legal representation once every few years. If that’s the case, you don’t need to have a lawyer on retainer.

2. Have You Checked Your Insurance Policies?

Make a point to go through the fine print in your insurance policies. Most of them usually pay for attorney representation if you’re ever involved in an accident or incident. This is generally the case for car and homeowner’s insurance. You, therefore, don’t need to pay an attorney out-of-pocket to fight any potential lawsuits you might be facing.

3. What About Your Employee Benefits?

If you work for a large organization or you’re a member of a union, there’s a good chance that a lawyer on call might be part of your benefits. They deal with most routine legal issues, including real estate matters, wills, and certain lawsuits. It doesn’t make financial sense to have another lawyer on retainer when your employer already has one for you.

Retainer vs. Retainer Agreement – What’s the Difference

Having a lawyer “on retainer” and “retaining a lawyer” may sound the same, but they’re not. When you “retain” a lawyer, it means that you have contracted them for your legal issues. The money you then pay to them is referred to as the retainer. Having them “on retainer” means you’ll be paying them periodically over an extended duration to handle your legal issues on an ongoing basis.

Once you hire an attorney, you’re required to sign an agreement. This contract is known as a lawyer retainer agreement. It details the obligations of both parties, the contact rules, the attorney-client terms, expectations, retainer fees, etc.

A retainer agreement will often vary in content and length depending on the terms. However, regardless of the type of case or jurisdiction, retainer agreements will usually have the following parts.

Nature and Scope of the Work

The agreement needs to provide details on the kind of work the client expects the attorney to do on their behalf. It also needs to specify the type of case they will be representing the client in. Some retainer agreements may go a step further by specifying the behavior and actions the attorney won’t engage in.

Retainer Fee

The agreement will always indicate the amount charged to the client. It provides a detailed breakdown of how the figure was arrived at and the specific charges for each service rendered. For instance, if there’s a flat fee to be charged for a particular project or specific case, this will be indicated on the lawyer retainer agreement.

Client Expenses

There are certain expenses that clients are usually expected to cover. These may include travel expenses or filing-related costs. There is also a set amount the client is required to pay, whichever way the case goes. An attorney retainer agreement should always specify these expenses.

Other Terms

In addition to the standard terms outlined above, a lawyer retainer agreement may also include:

An avenue for fees arbitration if a dispute arises
Conflict checks
No guarantee of the case result
The privacy policy of the attorney and their law firm detailing what happens to the client’s files and property once the case concludes
The right for the attorney to withdraw representation
The right for the client to terminate the contract with the lawyer
Whether contract lawyers, paralegals, or associates will need to be brought onto the case, and the associated expenses for each

What Does a Lawyer Retainer Fee Cover?

Right off the bat, it’s important to keep in mind that a retainer is not supposed to cover the entire cost of a legal issue. Think of it as an advance payment for a specific number of hours of the lawyer’s services and the costs associated with starting your case. There are generally three types of retainers:

A general retainer: This contracts the attorney’s services for a specific duration as opposed to a specific case/project.
A retaining fee: This refers to a lump-sum deposit paid into a trust account in advance. The lawyer withdraws against the available balance as they complete specific tasks on a case/project.
A special retainer: This is a fixed lump-sum amount paid to a lawyer to take on a particular case/project. This arrangement, however, is prohibited in some states since the client cannot discharge the attorney until the conclusion of the case/project.

The average retainer fee for a lawyer is not standard. Some lawyers may charge $1,000, while for others, it may be as high as $1,000,000 or more. It ultimately depends on the lawyer in question, as well as the nature and scope of the legal services you’re hiring them to do.

Final Thoughts – Can You Get a Retainer Back From a Lawyer?

The language of the retainer agreement would ideally control what portion of the retainer you can get back from a lawyer. Remember, retainers are earned upon receipt. As the lawyer continues to work on your case/project, they withdraw against the balance in the trust account. If there’s any money left from the retainer, you would be entitled to getting it back.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

Page 10 of 37
←
1
...
9
10
11
...
37
→

Criminal law vs civil law

Why are the Federal Rules of Evidence important?

What are the Federal Rules of Evidence

1. GENERAL PROVISIONS

2. JUDICIAL NOTICE

3. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

4. RELEVANCY AND ITS LIMITS

5. PRIVILEGES

6. WITNESSES

7. OPINIONS AND EXPERT TESTIMONY

8. HEARSAY

24 Exceptions to the Hearsay Rule

9. AUTHENTICATION AND IDENTIFICATION

10. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

11. MISCELLANEOUS RULES

Do Rules of Evidence apply in arbitration?

GET THE BEST ATTORNEY ON YOUR CASE

Who Owns Colonial Pipeline

What Happened to the Colonial Pipeline

Why Did the Colonial Pipeline Shut Down

Ransom Demand

What Happens in a Cyber Attack

1. Untargeted Attacks

2. Targeted Attacks

Stages of a Cyber Attack

Who’s Next on the List of Targeted Cyber Attacks

The Cybersecurity and Infrastructure Security Agency Act of 2018

Cybersecurity Executive Order

The Future of Cybersecurity

Legal Separation Definition

What Does Legally Separated Mean

Legal Separation vs Divorce

Debts

Decision-Making Ability

Health Care and Social Security Benefits

Marital Status

Property Rights

Reconciliation/Remarriage

How to File for Legal Separation

How Much Does a Legal Separation Cost

Get Help From a Competent Attorney

Death Penalty Statistics

Capital Punishment vs. Corporal Punishment

Corporal Punishment for Children

Arguments for Punishment and Retribution

Arguments for the Death Penalty

Arguments Against Death Penalty

What Crimes Get the Death Penalty

Which States Have the Death Penalty

The Death Penalty and Criminal Justice Reform

What Is the Defense Base Act

The Zone of Special Danger

NR v. Halliburton

O’Leary v. Brown-Pacific-Maxon

War Hazards Compensation Act

1. Injuries That Don’t Fall Under the NAFIA or DBA

2. Detention Claims

3. Self-Insured Employers

Defense Base Act Insurance

What Does DBA Insurance Cover

How to File a DBA Claim

Defense Base Act Settlements

Common Causes of Injuries on an Oil Rig

Caught-Between, Caught-In, and Struck-By Hazards

Falls

Electrocution

Explosion

Heavy Equipment

Helicopter Accidents

Hazardous Weather Conditions

Deepwater Horizon What Happened

Who Is Liable In a Drilling Rig Accident?

Jones Act

Proving Liability Under the Jones Act

Damages Under the Jones Act

Nuisance Complaints/Toxic Tort

Economic Damages

Environmental and Regulatory Damages

Talk to an Experienced Attorney

What Causes Car Fires?