What Is Restitution In Criminal Law And When Does It Apply?

Restitution isn’t purely a legal term, so you may have heard it used from time to time in other circumstances far removed from the courts and criminals and defendants among us. It means something similar in either case. Restitution involves setting something back to rights. It means restoring something damaged or lost to the person whose it was. It’s also a process for compensating victims.

In law, we often refer to restitution using another word: “damages.” Either pretty much means the same thing. A criminal defendant may be obligated to pay damages or restitution fees to a victim after a court case has ended. This isn’t the same thing as a fine, which is something you pay the court or government to reimburse them for the time they had to spend prosecuting the case.

For example, if you injured another party in a barroom brawl that you started, you might be forced to pay restitution to cover the victim’s medical expenses. In order for restitution to remain applicable, the victim must prove that those expenses were incurred, up to and including monies lost if the victim’s capacity to produce at work was affected.

Restitution is considered an “equitable” remedy if the court system can find a money trail. If it can trace money owed, then a constructive trust or equitable lien will be set up in order to repay those monies. A constructive trust occurs when one party holds property for another party. An equitable lien pretends one party from benefitting from another.

Restitution is considered a “legal” remedy when the money trail can’t be followed and the property can’t be rightfully identified. Legal remedies are often applied for unjust enrichment or other forms of personal liability. Unjust enrichment is much as it sounds: it occurs when one party receives any kind of benefit from through unlawful or illegal means.

Restitution is a form of compensation primarily used in criminal courts; sort of like a form of civil suit within the criminal legal system. That said, if you don’t acquire restitution through the criminal court system, then you may still be able to bring a civil suit against the defendant because they require a lower standard of proof.

Examining Back To Back Life Sentences

This legal term is strange because how can someone serve two life sentences when we only have one life?  When a judge decrees sentencing and orders back to back life sentences, he is ensuring that the prisoner will stay in prison. In order for this to be applicable, both crimes that the felon was convicted of need to have “life in prison” as an applicable sentence.

When a felon is sentenced to life in prison, most of the time, after 25 years of the sentence, the felon is up for parole. A double life sentence ensures that even after 25 years of serving the first life sentence, the felon has to wait an additional 25 years before being eligible for parole again for his second sentence (even if he “receives parole on the first sentence). Therefore, it ensures at least 50 years of imprisonment.

Sometimes the felon will be sentenced to life imprisonment without the possibility of parole. The only way a felon will be able to leave prison will be through an appeal or through amnesty, reprieve, or commute by a government official. Many judges decide to give two consecutive life sentences as an insurance that the felon will at least be able to carry out one life sentences in the event that one of them gets overturned on appeal.  A good criminal defense attorney will always attempt to get the life sentences served concurrently rather than consecutively.

There are many infamous criminals who are servicing consecutive life sentences such as Ted Kaczynski aka the Unabomber. He is serving 8 consecutive life sentences without the possibility of parole.  Famous mobster John Gotti is also was sentenced to life imprisonment without the possibility of parole. He was convicted in 1992 and submitted his final appeal in 1994. He died in prison in 2002. Rusell Henderson who was convicted of murder and kidnapping of Matthew Shepherd in Laramie, Wyoming, pleaded guilty in order to escape the death penalty. He was sentenced to two consecutive life sentences. His partner Aaron McKinney was also sentenced to two consecutive life sentences.

What Does “Fiduciary” Mean And When Is It Used?

The law can be complicated enough without the absurd jargon associated with many legal scenarios. The word fiduciary can be defined easily enough, but the situations in which it is used are varied and complex.

When used as an adjective, the word refers to the confidence between a trustee and beneficiary. As a noun, it refers to the trustee. Both of these apply in similar ways in a legal framework. It can also refer to a relationship based on ethical understanding, like that of a lawyer and client. A fiduciary is often responsible for money or assets belonging to a second party.

In law, you might hear of “fiduciary duty,” which refers to the obligation one party has to another party. Anyone who has a fiduciary responsibility is required to hold high standards of transparency. There must be no personal benefit for a fiduciary if it comes at the expense of the other party. When this agreement is not upheld, there is a breach of fiduciary duty. The guilty party can be held liable for any resulting damages.

When President Trump took office, he requested a review of the “Fiduciary Rule” in 2017. This rule would require financial advisors to act in the best interests of their clients, which seems like an obvious enough standard. Naturally, Trump wants to kill it (it was Obama’s child, after all). The rule is not yet set in stone, and a review could also allow those in charge of retirement accounts to put their own financial needs ahead of clients whose lives and livelihoods could be adversely affected. The point of the rule is to promote a fiduciary-like relationship between financial advisors and clients much like lawyers and their clients, or doctors and patients.

Although legal jargon can be complicated, sometimes it’s important that the average American knows a term or two for the continued wellbeing of all relevant parties. Fiduciary is one such term, especially where the Fiduciary Rule is concerned. If we don’t have the knowledge to keep our government in check, then it won’t hold itself or others to the necessary standard.

What Is A Laches Defense?

In theory, some civil or criminal lawsuits can come up at any time, even years after an incident occurred.

It doesn’t mean that every single case will be legally legitimate.

In these cases, time is always a factor.

But there are those who will try to ignore time and would rather wait a while and then ambush you with a claim from years ago, perhaps expecting and knowing that you won’t’ have a good defense to put forth.

But in legal circles, that would not be fair. And some legal doctrine demands a fair trial process.

And in situations where there is no statute of limitations on the books, a potential defendant in one of these “ambush” lawsuits can claim what is called a Laches defense to nullify the claim.

The Laches defense is a tactic that essentially protects defendants from these kinds of lawsuits based on an unreasonable time frame in the claim being filed. If the amount of time has passed is sufficient to essentially prevent the defendant from launching a fair defense, the case can be dismissed – despite the validity of the claim – based on the Laches defense.

What determines a valid Laches defense? There are a few things that must be present (or not present, as the case may be):

  • Lack of effective witnesses because of death or relocation.
  • Erosion or disappearance of evidence.
  • The property the plaintiff wants to recover (if applicable) is n longer into eh defendant’s possession.
  • The defendant’s situation has changed for the worse since the incident; meaning that he or she would be less likely to meet any monetary award.

Of course, not all of these elements have to be present in a Laches defense, and even if they all were present, the judge ultimately has discretion in determining whether a Laches defense can be used in that particular claim. As every situation and judge is different, it is difficult to establish any precedent in such cases, so it is always case-specific.

What makes a Laches defense different from a case that has a statute of limitations? A statute of limitations is a law on the books that give a specific time frame for a claim or charges to be brought against a defendant. In these cases, the time frame is codified as a number of months or years and the factors mentioned above for a Laches defense are irrelevant.

A Laches defense is used in other cases in which the incident or the alleged offense does not have a specific statute of limitations on it. There is enough of a risk of nullification that if you have a claim, you are always encouraged to file that claim as quickly as possible to keep your claim legitimate in the eyes of the court.

An ambush is the least popular bush in legal circles.

What Is The Bankruptcy Code?

The Bankruptcy Code is the informal name of the federal bankruptcy law; 11 U.S.C. §§ 101-1330. Bankruptcy laws were created to help people who are no longer in a financially secure situation a chance to start over.

There are several different types of bankruptcy referred to their Chapter in the actual federal law.

Chapter 7 is for liquidation which is the sale of a debtor’s nonexempt property and the distribution of what is earned back to the creditors.

Chapter 9 is for reorganization for municipalities such as cities, towns, villages, counties, and school districts.

Chapter 11 is for reorganization for corporations or partnerships. A debtor usually proposes a plan of action to keep its business alive and the scheduled payments to creditors.

Chapter 12 is for farmers and fisherman and readjusting their debts.

Chapter 13 is for normal wage earners. A debtor is allowed to keep property and use their disposable income to pay off creditors over a three to five year period.

Chapter 15 is for cases dealing with cross-border insolvency. Insolvency is a fancy way of saying the inability to pay debt.

How Do You Know Which Chapter To File? 

A bankruptcy judge and a court trustee examine the assets and liabilities of an individual or a business who cannot pay off their debts. Then they determine which debts the individual or the business will no longer need to pay legally. Therefore, they will determine under which bankruptcy chapter to file.

Bankruptcy does not qualify for student loans, alimony and child support, debts that occur after bankruptcy is filed, taxes, debts from settlements and verdicts.

Bankruptcy will also remain on your credit score for 7-10 years and might prevent you from applying for more lines of credit or applying for jobs. It is only advised for you to file bankruptcy if you are more than $15,000 in debt otherwise the damage to your credit score might be significant.

 

Does Premise Liability Cover Trespassers?

Are you Liable if a Trespasser gets Injured on Your Property?

Premises liability can be one of the more complex areas of personal injury law. In the case of a trespasser, the rules can enter a deeper gray area. I know, this is going to be hard to believe, but in some situations, a trespasser can technically sue for premise liability, even if they were never supposed to be on the property.

As a general rule, property owners are not responsible for trespassers’ injuries.  While there are exceptions to this rule, the court generally has every right to tell the trespasser that the property owner is not liable for their injuries. This rule is not in place to punish trespassers, but it is in place because a property owner cannot always know when a trespasser is on their property. Therefore, the property owner cannot be held responsible for not warning them about safety hazards.

Exceptions to the General Rule

If people trespass on your property regularly, it may be the best practice for the property owner to put up signs around his/her property. The signs will let people known that they are entering private property and are traveling at their own risk.

Another exception to the general rule is if the property owner is engaging in willful and wanton conduct that causes an injury to a trespasser. For example, if you have a piece of land that you do not visit regularly and you notice that there has been a string of robberies, you can not set up a trap with an intention of hurting or killing the trespasser.  In this scenario, the property owner would be liable for the injuries of the trespasser.

When a person trespasses on your property and is injured as a result, it can turn into a very complex case. It is best if you inquire with an experienced premises liability attorney.

What Is Insurance Fraud?

Insurance fraud can happen in two ways, according to the criminal defense lawyers at nstexaslaw.com. First, it happens when a person deliberately lies to get an advantage or benefit to which they are not entitled to. Secondly, it’s when an insurance company denies a benefit that’s due to which another party is entitled to.

Fraud is everywhere, it is in the healthcare industry, auto industry, the workplace, construction industry and more. Costs from fraud with bogus claims amount to billions every year, according to the FBI, making it a huge problem in the society.

Common Types of Insurance Fraud

General Liability Insurance Fraud

This is a broad type of insurance. It covers liability that protects guests on your property from things such as slips and falls. It ideally covers completed operations as well as products liability.

You can protect yourself from general liability insurance fraud by having regular property inspections and having written records of the dates of the inspections. It is ideally wise to be vigilant regarding safety conditions as well as potential obstacles that could result in injury.

Medicare Fraud

In this type of insurance fraud, people try to get your Medicare number and personal information with an aim of impersonating you. It’s always advisable to keep your Medicare card safe as you do with the credit cards.

Only reveal your Medicare number to those you trust. Medical professionals who require your personal information should always ask for your permission if the Medicare number is needed. The permission is usually granted personally or in writing and not over the internet or phone.

Property and Casualty Insurance Fraud

This one can be committed by all kinds of parties including policyholders, insurance applicants, third-party claimants as well as those who offer services to the claimants.

The common frauds in this field included prearranged or planned auto theft, identity theft, arson, burglary, theft of marine vessels, workers compensation, slips and falls and even staged auto accidents.

How To Protect Yourself From Insurance Fraud

There are various ways to protect yourself from this form of fraud. Ensure that you check your bills for accuracy and avoid signing blank insurance claim forms.

Never follow the advice of strangers who contact to offer you legal or medical advice.

Be wary of door-to-door insurance sales as well as any insurance costs that seem too good to be true.

Ensure that companies and agents are licensed. You can verify with your states insurance department.

Be Viligant

Insurance Fraud is happening all over our country, especially in Florida:

What Is Consumer Class Action? Everything You Need To Know

Consumers have the right to sue companies for violating their rights. Consumer class action lawsuits are lawsuits where a consumer, or a group of consumers, sues a company on behalf of themselves and others affected by the same wrongful act. The consumer(s) apply to the court to be appointed a class representative. For such a lawsuit to exist, the company in question must have applied a uniform policy or conduct that affected all the consumers involved.

Consumer class actions are suited to cases where the damages suffered by individual consumers are relatively too small to warrant separate lawsuits. They are also suitable for situations where consumers want a change in the named company’s policy.

There are numerous situations in which consumer class lawsuits are the best way forward. These include situations where companies use unfair marketing or trade practices, violate consumer privacy and protection laws, use debt collection practices that are unfair, commit consumer fraud etc.

Practical examples of how companies usually violate consumer rights include through unwanted robo-calls, charging customers for services not provided, bait and switch marketing and unlawful charges on bills among others.

Things You Should Know About Consumer Class Actions

You are encouraged to register for consumer class action lawsuits you think apply to your situation. In most cases, potential members of a class lawsuit are usually notified through an advertisement or through in store posts.

However, if you think you are a member of a consumer class lawsuit and haven’t been notified, then you can visit the official consumer class lawsuit website, where notifications on all consumer class cases are posted. Alternatively, you can contact the consumer protection arm of your state’s Attorney General’s office.

It is worth mentioning that affected consumers are automatically included in class action lawsuits. However, you still have the right to exclude yourself from such proceedings. This has to be done officially. Once you become a party to a class action lawsuit, your right to file a separate lawsuit is eliminated.

If you think that you have suffered damages over and above what other consumers have, you have the right to lodge a separate lawsuit. It’s recommended that you speak with a qualified attorney to find out whether your case is actionable.

When you are a party to a consumer class action case, it’s worth noting that the damages paid per individual may be quite small. However, it’s recommended that you accept the amount paid out, or else it will be passed on to another consumer who was a party to the same lawsuit. You can donate the money to a charity or use it yourself.

Medical Malpractice: When Can I Bring A Case For Medical Malpractice?

The legal rule called the “statute of limitations” is often heard in various personal injury cases. It is also encountered when a person is bringing a medical malpractice lawsuit. However, it may also refer to any lawsuit that takes place from an injury or an accident, which must be filed within a certain period of time. Failure to file the case within the given period means that the legal claim of the injured person will be lost. He or she can no longer make a claim, as it will be barred along with his or her right to sue.

Each state has its own rule when to bring a case for medical malpractice. The specific time limit allowed by the state usually range from one to six years. Here is a short detail about the time limit when filing a medical malpractice case.

Legal Help

If you sustained an injury because of another person’s action or inaction, you should act promptly. Make sure that you did not exceed the time limit to qualify for the compensation. Then, you can recover damages successfully. In most circumstances, the statute of limitations of a state is not clear. For this reason, you need an expert injury attorney to review your claim for free.

The next step of this legal process is to call a qualified attorney that specializes in medical malpractice. This way, you can guarantee that your rights will be protected. Your attorney should be able to explain and discuss everything about your case. He must be able to state these insights in a clear and simple manner.

The Process of Filing A Medical Malpractice Case

If you wish to bring a claim in this issue, you will also think about how long it will take to be settled. In fact, it is a question that is not easy to answer. If you are the patient, expect to face the case for a couple of years. There are numerous studies about this type of legal case which produced various results. In recent studies, the average period it takes in between the health-related injury and the closing of medical malpractice cases is about five years.

Remember that there is no specific period in the process where settlement takes place. These settlement negotiations may occur at any point. But, these may also happen on multiple occasions as a case progresses. Such settlement agreement takes place under the “courthouse steps.”

What is Lemon Law?

If you experience breakdown after breakdown after a recent auto purchase, then you might be wondering if the lemon law applies to your vehicle. After all, a product is supposed to fulfill its implied function. The lemon law is regulated by a few common sense rules, but the one most people know about is the one that defines what a lemon actually is. If you experience three breakdowns shortly after purchase, then you probably have one.

Lemon law is the branch of law practiced by attorneys who will help you acquire the compensation you deserve after a lemon purchase.

Lemon laws bypass typical warranties by offering better alternatives. A defective vehicle under warranty can be turned in for repair, but most warranties don’t require the vehicle be returned in a set time period. Lemon laws provide that kind of comfort to the consumer.

Although state laws can vary, a lemon law will usually follow a few basic rules. For example, your vehicle is a lemon if it fails three times within a year or before it has been driven 12,000 miles. The law only applies to the scenario that occurs first. If the manufacturer does not repair the defect in a timely manner, then a certified lemon law attorney might be the best option for you.

The underlying point of the law is simple: your new vehicle has a particular defect that either cannot be fixed, or has not been fixed in a reasonable timeframe. Other stipulations might take into account the kind of defect your vehicle experiences. When a lemon law is activated, the dealership that sold you the vehicle is required to offer to buy back the defective vehicle. Normal warranties will never extend this important option to the consumer.