The 9th Circuit Court of Appeals

Dubbed “the most often overturned” court (an untrue, but popular belief), the 9^th Circuit encompasses a vast area of the country, from far-flung islands of the Pacific to Montana and Idaho. Conservatives view the 9^th Circuit Court as a “liberal, activist” court – a term generally used by conservatives when a court’s opinions tend not to fall in lock-step with the conservative agenda. Conservatives would divide the court into several more circuits, in an effort to dilute what the far right sees as too much power in one Court of Appeals.

I think it is the most interesting court to follow, in terms of its writings and its opinions – the 9^th Circuit does not shy away from controversy….it has, for example, tackled issues of medical marijuana and the use of “God” in schools.

The Court also wrestles with drier issues, such as the “mailbox rule” – a rule that all first-year law students learn (some to hate!). In its usual fashion, the 9^th tackles such issues with flair and wit. In a recent writing (cited below), it stated:

“This case provides fresh meaning to James M. Cain’s ‘The Postman Always Rings Twice.’¹ Anton Vacek was first struck by a Post Office truck, and then had his damage claim stamped out because the Post Office lost it in the mail.

¹JAMES M. CAIN, THE POSTMAN ALWAYS RINGS TWICE (KNOPF, 1934); See also THE POSTMAN ALWAYS RINGS TWICE (WARNER, 1981); THE POSTMAN ALWAYS RINGS TWICE (MGM, 1946); LE DERNIER TOURNANT (LUX PRODUCTIONS, 1939). The title is ironic because there is no reference to a postman either in Cain’s book or in the subsequent film adaptations. When asked for an explanation, Cain purportedly explained that his manuscript had been rejected by 13 publishers prior to being accepted for publication on his 14th attempt, so that when the publisher asked him what he wanted the work to be entitled he drew on this experience and suggested The Postman Always Rings Twice. Like Vacek, Cain apparently had come to associate the postal service with dark disappointment.” [Vacek v. United States Postal Service, No. 04-15961 (9th Cir. May 24, 2006).]

In my very humble opinion, may the 9^th Circuit keep on rolling (as currently configured) – it brings a sense of humor and style to the majority of its rulings. And it remains undaunted by those who would homogenize America in every conceivable fashion.

Uninspired — but there’s always Jon Stewart!!!

Why, do I love Jon Stewart and why do I never miss the Daily Show?

I know – who doesn’t love Jon Stewart? Pretty much everyone with a brain loves Jon — am I brain-dead? Not yet. But I feel I shouldn’t love the mighty Stewart. Reason? Got two: he makes dumb jokes about lawyers and about the law.

Why rail against dumb lawyer jokes? They’re funny, aren’t they? Most of them are, yes! Some are just dumb. Like most who are law students or those working on becoming lawyers or real lawyers, I enjoy good lawyer jokes. But, under the current administration, I’m not certain that making a joke of all lawyers is a wise choice. Some lawyers deserve as much ridicule as we can muster. However, we may need some of the good ones — to fight back against…oh, so many current and stupid policies. So, Dear Jon, please know that diluting lawyer power with ridicule isn’t necessarily a smart move right now — not against all of the lawyers, anyway.

Ok, the other reason……I bought a “Jon Stewart for President” t-shirt, and I sorta meant it — meant it until I heard him make some baseless comments about the Constitution. Then…….Well, then I thought “the man, as wise as he truly is, does not understand the basics of the very document that allows him to say whatever he wants (and Lord knows, whatever Stewart says usually needs saying!) on his show every night.” He needs some help. Tried to email him – but he’s way out of the “let me drop a line with my stupid thoughts” email league, isn’t he? Thought of snail mail, but what are the chances, really, that he’d ever see it?

Ok, so by blog? This blog? This isn’t exactly what I’d call high-profile. But what the hell — here’s my lame attempt to get a message to Jon Stewart:

Jon, dear man, to use your own words against you — and I never admired you more than when you said these words — you’re hurting America. Whenever you attack the Constitution without reason or understanding - you’re causing harm. You have to learn to appreciate what an amazing document it is, and then you can (and perhaps should) attack at the current state of the law at will.

For the sake of those who watch you — particularly for the kids, try to talk to Erwin Chemerinsky – he’s a Duke University professor. He’s a fascinating man – a Constitutional scholar for the ages. When they say he wrote the book on the Constitution – they aren’t kidding – I think he has written four of them. Check out his web page at Duke Law.

Be really brave — ask Professor Chemerinsky to come on your show – you may think that because he is considered to be one of the top legal minds in the country, he’ll be boring. He won’t be. He’s engaging and entertaining; he comes complete with a kick-ass sense of humor…..Ask any law student who has listened to one of his lectures.

Failing a chat with the Professor, pick up one of his books. Don’t let us down, Jon. While it’s certainly your right to dislike lawyers, and to lack faith in the Constitution, please do so from an informed viewpoint, else you run the risk of sounding just like Bill O’Reilly. You would hate that, wouldn’t you?

Oh wait, one more question…….If anyone actually sees this — will it cost me the tickets that I finally scored to the Daily Show?????

Uninspired

I love blogging – except when I can’t, for reasons of time or inspiration….and I’ve little time and zero inspiration today. So why bother anyone who may stumble across this blog? Well, I do have questions….

Important questions. Like why does my copy of Word want to drive me crazy? Why does it keep giving me indecipherable error messages? And why, when I try to fix it, does it always tell me to find the disc? Isn’t the program that loaded when I paid enormous bucks for it big and smart enough to fix itself? And, that age-old question, where the hell did I put the disc????

What is an RSS feed? I know, it’s Really Simple Syndication, or Real Stupid Stuff – whatever…. But how does it work? Does anyone (outside a handful of brilliant programmers) really know? And why do I care? More questions — next blog…..

Why Should I Hire An Attorney to Do What I Already Pay My Insurance Company To Do???

After the Accident

After an accident, many feel that they can deal with their own insurance company without any help from an attorney. Sometimes that is true. If your injury is due to an auto accident and the claim involves, primarily damage to your vehicle and one visit to an emergency room, it probably makes sense to settle with your insurance company.

If your accident is more serious, if you are injured and you need more than emergency room care, it make sense to speak to a personal injury attorney (make certain that the initial consultation is free of charge).

The Insurance Company
After an accident, you will hear from an insurance company about your claim. That insurer may work for your employer, or may insure a homeowner (for dog bites or injuries sustained on another’s property), or the insurer may work for an automobile insurance company. There are as many different kinds of insurance companies and types of policies as there are accidents. The insurance companies train those who contact you to be friendly and to act as if they are concerned for your well-being. They will tell you that they will help you to get the compensation you deserve, and will often tell you that hiring a lawyer will not be necessary, or may actually delay the settlement of your case. They are well-trained to make you feel good about working directly with them, without the help of an attorney.

This is the job of the insurance company. Insurance companies are in the business of making money. They make money by charging high premiums and by denying claims. They make money by failing to pay a fair amount of money for your injuries and damages. They are trained to make certain the company pays you very little for your injuries, or denies your claim completely.

Enter the Attorneys

So why do you need an attorney? No one likes attorneys – they are the bulldogs, the sharks – use any animal comparison that you like. But when you hire an attorney, that attorney is working for you. That attorney becomes your bulldog; your shark; and will fight for your rights against the insurance company.

Insurance companies are not happy when attorneys become involved; often that means the company must pay its own attorneys to fight the case, and attorneys are paid more than adjusters.

When an insured person hires an attorney, the insurance companies usually drop the “nice guy” attitude. We know this, because, at the Accidental Lawyer’s firm, we deal with insurance adjusters every day. Not all adjusters are unpleasant, but they are paid to be aggressive and intractable. Attorneys are accustomed to this; their experience and skill allows them to determine whether the adjuster is being reasonable or unreasonable and how to handle the adjuster in each situation.

Attorneys Know Your Rights

Experienced attorneys know how much time you have to file your claim. An attorney knows that the time for filing varies depending upon the type of accident, who was involved in the accident, and from state to state.

A skilled attorney knows who to sue. Often accidents involve multiple parties – each party may have some blame for the accident. For an injury which takes place at work, there may be more than just workers’ compensation benefits available to you; another party (such as a subcontractor, or delivery van) involved may also have some share of the blame for the accident.

There may be occasions when you are partially to blame for an accident. The amount of compensation or the ability to be compensated at all if you have some fault varies from state to state.

There is no simple answer in many situations. If your case is a valid one, an experienced attorney can guide you through the morass and pitfalls to a reasonable compensation for your injury.

If You Should Decide Not To Hire An Attorney

Remember, in all dealings with an insurance company, that the company is a for-profit business, and it won’t make money by paying out claims. It will only make money by collecting premiums and not paying adequate compensation when a claim is made by one of its insured.

When you speak to an insurance representative, everything you say is being noted by that representative. In fact, they will often request a recorded statement. That statement may later be used against you to deny you fair compensation. Be wary of what you sign. Read all documents that are sent to you by the insurance representative.

If you have questions, contact an attorney. If your injury occurred in California, contact the Accidental Lawyer for a free initial consultation and sound advice at 510-465-1500 or 1-800-824-4418.

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Wrongful Death

Wrongful death is a term used when a person dies as the result of a wrongful action of another. That death can be caused by either another person or by the wrongful act of a company, city, state or federal agency. Some of the most common causes of wrongful death are vehicle accidents, plane and train crashes, construction accidents, medical malpractice and defective products.
When someone we love dies, the pain can be overwhelming. The pain can be even greater when a loved one dies due to the fault of another, because it seems as if that death could have, and should have, been prevented.

Money is a poor substitute; it is however the only remedy the law has given us to right such a wrong. Often, those who bring a wrongful death lawsuit feel they may have done good for others, as their lawsuit may cause a government agency to write new regulations or a company to change its policies in order to increase safety for others.
At such a stressful time, a personal injury attorney with experience in this area of the law is a necessity. Such an attorney can evaluate your case and tell you whether you have a right to bring a case against the one who caused the death of your loved one.
Fees

At the Accidental Lawyer’s firm, no fees are charged unless and until the firm wins your case. The fees are a reasonable percentage of the amount obtained by our firm for your loss. The firm and the client will sign an agreement about the fees and costs arrangements prior to the acceptance of the case by the firm. All terms will be explained prior to signing the retainer agreement.

Settlement or Trial?

The Accidental Lawyer and staff are experienced in both trying cases in court and in settling cases out of court. Often the trial court will order the parties involved in the lawsuit to attempt to settle the case out of court. The court will not, however, force a settlement. That decision is one for each party to make, with the advice of their attorneys.
Settlement. If a case can be settled out of court to the satisfaction of both parties, then that may be the right decision to make. The Accidental Lawyer will always present all of the available information necessary for the client to make a decision, but the decision to settle or go to trial is that of the client.
Often, those who assist in settling cases (called mediators or arbitrators) will say that the case is well-settled if both parties go away from the settlement discussion feeling as if they didn’t “win”.

Trial. Trial is what great lawyers live for – trials are the reason many become lawyers. There is nothing more interesting and exciting for a good and very experienced trial lawyer than a tough trial.

That said, a trial can be very difficult for clients. Trials are confusing and expensive, the procedures can be intimidating, and juries are unpredictable. These are some of the reasons that many clients will decide to settle prior to trial.
At the Accidental Lawyer, the attorneys are seasoned professionals who have won many cases at trial. The attorneys will advise you of the pitfalls of both settling and trying cases and allow you to determine the course your case will take.
If a wrongful death has occurred in California and you wish to speak to an attorney (even if you are not certain that the death was wrongful), please call the Accidental Lawyer at 510-465-1500 or 1-800-824-1424 for a free consultation.
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What To Do After An Accident

It is always difficult to know exactly what to do after an accident.  Accidents happen so quickly and are so upsetting that most who are involved in auto accidents (including attorneys!) fail to get vital information necessary to obtain adequate compensation for thier losses – the loss of, or damage to, a vehicle; medical expenses and loss of wages for the time lost from work due to the accident. 

The following list includes suggestions that may help you if you should become involved in an accident:

• Always keep a disposable camera in your vehicle.  Take pictures of the scene (only if it is safe to do so!) to show the positions of the vehicles before they are moved.  Take pictures of the damage one to your vehicle.  Keep these pictures after you take them.
• Get the names, addresses and phone numbers of anyone who may have witnessed the accident.
• Get the names, addresses, phone numbers, insurance information and driver’s license information of the other drivers involved in the accident.  Always write down the license plates of the vehicles involved in the accident (to give to the police or DMV if necessary).
• Call the police to determine whether the department is able to respond to your accident.  Often the police will not respond to a minor fender-bender, due to a lack of resources.  If this is the case, go to the police station to make a report as soon as possible.
• Go to a doctor – seeking medical attention immediately is often something people fail to do – either they are too busy, or feel as if they have not been injured.  It is very important that you allow yourself to be evaluated by a medical professional; that you describe all of your injuries, detailing each part of your body that hurts.
• Understand that many injuries will not become painful right away.  Injuries to muscles and tissue often become very painful several days after the injury occurs.  It is important to follow up your initial medical visit so that the doctor can determine the extent of your injuries.
• Call a personal injury attorney for a case evaluation.  Be certain, when you call, that the evaluation will be done at no charge.  At the Accidental Lawyer, the initial consultation is free; in fact, there is no fee unless and until we win your case.