Legal or attorney malpractice is described as a lawyer’s failure to render professional services with the skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances.

Every time there is a “bad” or “unfortunate” case outcome it is not necessarily legal malpractice. If an attorney gave what turned out to be “bad” or “the wrong” advice, you cannot automatically accuse the prosecutor of legal malpractice. No professional can ensure or promise a positive outcome for his client. It is important to remember that what creates liability is the lawyer’s failure to act in the manner the ordinary or reasonable lawyer would act in handling that matter for his client.

To successfully win a legal malpractice case, a plaintiff must prove that the lawyer’s negligence was the legal cause of some actual damage to the plaintiff. Damages may not be based upon sheer speculation or surmise, and the mere possibility or even probability that damage will result from wrongful conduct does not render it actionable.

It is not sufficient to allege that the underlying case should have settled for more or resulted in a higher verdict at trial. It is not sufficient to allege that “if” the plaintiff had been given the right advice, he might have spent less money in a transaction, or might have received more in the transaction.

For legal malpractice in litigation cases, the need to prove actual damages requires the plaintiff to prove what he would have recovered in the “underlying” action, and that he was denied that recovery by the actions of the lawyer. The jury instruction which is read in California legal malpractice cases tells the jury that California law requires a plaintiff who establishes malpractice on the part of his or her attorney in prosecuting a lawsuit must also prove that careful management of it would have resulted in a favorable judgment and collection thereof.

Because of this, the “new” attorney must litigate the “case within the case”: that is, he must not only prove that the first attorney was negligent, but also that there would have been a recovery in the lawsuit the attorney was hired to prosecute.

If there was difficult or no liability in the underlying case, there is little chance of a recovery in a legal malpractice case. If the defendant had no insurance, or had no assets from which a judgment could be satisfied, there is no actual damage that can be recovered in the legal malpractice case.

John Bisnar is a partner at Newport Beach Personal Injury Law Firm Bisnar Chase. The Bisnar Chase law firm has dedicated their practice to victims of serious injuries due to defective products, negligence and malpractice.

Visit the main website at http://www.bestattorney.com or call 888-265-0161

Federal law prohibits any person who has ever been “convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to ever or for any reason “possess… any firearm or ammunition.” 18 U.S.C. 922(g) makes it a federal crime for any person who has ever been convicted of any felony to ever possess any firearm regardless if it is inside or outside of the home. This blanket federal ban on all felon gun possession is punishable with up to 10 years of imprisonment.

There are exceptions to this rule in some instances. Federal law contains an explicit statutory exclusion which provides that the federal criminal offense of firearms possession is inapplicable to persons who has had their civil rights restored on the predicate state felony conviction. 18 U.S.C. 921(a)(20) provides:

“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly [or implicitly as a matter of state law] provides that the person may not ship, transport, possess, or receive firearms.”

Whether a person has had his civil rights restored for a state conviction is a matter determined by state, not federal law. However, for federal law to recognize the state restoration of rights exception, the terms of the restoration must include the right to vote, the right to seek and hold public office, and the right to serve on a jury. If the restoring state includes the three aforementioned rights then federal law contains an additional clause that must be examined. This clause looks to the actual state law to see if there are any restrictions imposed on the right of the convicted felon to possess a weapon. If there is some added firearms restriction under state law, then the federal clause is triggered to make the possession of any firearms unlawful under federal law, despite the state’s restoration of civil rights.

Is there any other way to regain the right to own a gun? In theory, one can submit an application to the Bureau of Alcohol, Tobacco, Firearms, (ATF) under 18 U.S.C. 925(c) requesting restoration of your gun rights. The application is supposedly granted if it is established . . . that the circumstances . . . and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Neil Lemons represents Teakell Law. For more information on firearm statutes and felony defense in the Dallas/Fort Worth area visit their website http://www.teakelllaw.com.

In recent years, several decisions by the United States Supreme Court have determined how federal courts now apply the federal guidelines at sentencing. The most notable is United States v. Booker, 543 U.S. 220 (2005), where the Supreme Court transformed the federal sentencing guidelines from mandatory to advisory as a way of curing a defect that rendered the guidelines unconstitutional.

In Booker, the Court directed that sentences meted out under the newly advisory guidelines should be reviewed, if challenged, by the federal courts of appeals to determine whether they are “reasonable.” In response, a number of appellate courts gravitated back to the guidelines. They affirmed as “reasonable” within-guideline range sentences, but vacated as “not reasonable” sentences that fell below the guideline range.

The picture became a little more cloudy last year with the decision Rita v. United States, 128 S. Ct. 19 (2007). There the Supreme Court addressed whether a within-guideline sentence could be “presumed reasonable” and determined that it could.

The question of how or whether the presumption applies to sentences below the guideline range was not decided because the petitioner in the companion case, Claiborne v. United States, 127 S. Ct. 2245 (2007), died while it was pending and his case was dismissed.

In the fall of 2007, the Court granted certiorari to the case Gall v. United States, 128 S.Ct. 586 (2007) to answer the question that it was not able to do in Claiborne. On December 11, 2007, the Supreme Court ruled that federal district court judges have greater latitude in imposing a sentence that falls outside the Sentencing Guideline range for a particular sentence.

The Court held that district courts need not be required to give “extraordinary reasons” for departing from the Guidelines, as long as they do no abuse their discretion in imposing a particular sentence.

The Court was not finished yet as it had granted another case by the name of Kimbrough v. United States, 128 S. Ct. 558 (2007), certiorari in order to answer additional questions about the use of the guidelines at sentencing.

In Kimbrough, the Supreme Court affirmed that district court judges have the discretion to deviate from federal sentencing guidelines and to consider other factors – including disparities in crack and powder cocaine sentences – when issuing sentences to drug offenders. This decision seemed to go hand in hand with the United States Sentencing Commission’s amendment to the guidelines that reduced the crack offender offense levels due to disparity.

Many experts agree that these decisions have given federal district judges back the discretion that was once stripped away from them at sentencing. In the pre-Booker days, the sentencing judge had no choice but to follow the guidelines or else run the risk of being reversed by a government appeal in the appellate court.

Finally, these district judges are now free to exercise some long overdue common sense in determining an offender’s sentence.

While the Courts have never brightly defined under the law who actually has a right to own a firearm, for decades the presumption has always been that there is no individual right bestowed upon the citizens of this country. However, things may soon change if some have their way.

The Second Amendment to the United States Constitution is currently creating a quite a stir in the federal courts. For those that are not familiar with the Second Amendment, it provides as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Experts believe that the Second Amendment creates an unlimited right upon individuals to own guns or other weapons. Others disagree and seem to believe that the Second Amendment allows reasonable regulation of gun ownership, such as licensing and registration.

The United States Supreme Court may be putting this issue to rest soon. The question of whether or not an individual has a constitutional right under federal law to own a firearm is being heard in the case District of Columbia v. Heller, No. 07-290. The court granted certiorari in response to an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), which was a decision from the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment. The appellate court then took it a step further and held that the Second Amendment does protect an individual’s right to possess firearms for private use.

A victory for Heller will likely inspire acknowledged gun owners in other jurisdictions to challenge restrictive gun laws passed by states and cities. Accordingly, many commentaries believe that the Supreme Court appears poised to rule that the Second Amendment protects a private right to possess and use firearms.

Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? Moreover, does “arms” mean you can have absolutely any kind of weapon you want, or does the government have the right to say which arms are permitted and which are not? Hopefully, the United States Supreme Court will soon answer these questions for us.

Eyewitness testimony, which relies on the accuracy of human memory, has an enormous impact on the outcome of a trial. In criminal cases, eyewitnesses frequently play a vital role in uncovering the truth about a crime.

The evidence they provide can be critical in identifying, charging, and ultimately convicting suspected criminals. However, eyewitness testimony is not infallible. No evidence seems more convincing upon its first hearing, yet is more unreliable, than eyewitness identification testimony.

Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event. There can be no reasonable doubt that inaccurate eyewitness testimony may be one of the most prejudicial features of a criminal trial.

Time and time again, eyewitness testimony has proven to be unreliable, sometimes resulting in the conviction of innocent persons. In response, the criminal justice system has gradually implemented a variety of procedural protections which include jury instructions, line-ups, the suppression of unreliable identifications, etc.

Since jurors tend to put a lot of faith in eyewitness testimony, a mistaken identification defense requires careful planning and execution. A defense attorney’s role is to approach the subject of eyewitness testimony with a critical and skeptical eye. The defense must educate the jury about the possibility, or even probability, of mistakes.

Although the eyewitness may make a ”positive” identification of a defendant, it is imperative that the defense attorney be prepared to demonstrate that certainty is no guarantee of accuracy. Therefore, a goal of the defense is to demonstrate to the jury how an eyewitness can be honestly mistaken, by pinpointing the causes and reasons for the error.

Many jurisdictions have a preliminary hearing or probable cause hearing as a first stage proceeding. Although the Confrontation Clause guarantees do not apply at such a stage, nonetheless in many jurisdictions the complainant and/or an eyewitness will be called to testify. One of the purposes of preliminary examination, aside from discovering potential damaging testimony, is to become familiar with the witnesses, their temperaments, character, demeanor while testifying, and any other important mannerisms.

This information, sometimes as much as the actual testimony, must be previewed before the witnesses are actually called and examined before the jury at trial.

Even though defense counsel can challenge eyewitness testimony, it will be the judge or the jury who will weigh this testimony against other pieces of the evidence to determine what indeed happened at the time and place in question.

There is no denying that eyewitness testimony can be persuasive evidence before a judge or jury, especially in criminal trials. Research has shown, however, that eyewitness testimony can be systematically fallible in ways that undermine the goals of the rules of evidence.

This does not necessary mean that eyewitness testimony is always inaccurate – it just means that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.

There are many causes of semi truck accidents but some of the most common causes are:

• Drug use: The major cause of the truck accidents is drug use. 26% of the truck drivers who are on prescription drugs are the cause of trucking accidents. Most of the drugs induces lethargy and drowsiness and thus cause accidents. 18% of the drivers who take over the counter drugs for pains or normal fever also cause accidents.

• Disobeying the traffic rules: 23% of all the accidents are caused by the negligence and rashness of the truck drivers. Most of them drive faster than the speed limits and lose the control of the truck and cause accident. Illegal maneuver and wrong overtaking also cause severe accidents.

• Fatigue: The truck drivers need to cover many hundred miles at a stretch. Sometimes they don’t get adequate sleep and rest which cause fatigue. The driver may fall asleep at the wheels and cause accidents.

• Unfamiliar roads: About 20% of the accidents occur as the truck drivers don’t have the complete knowledge of the terrain and roads. The unfamiliarity of the roadways prevents them from anticipating the bends and merging traffic and causes accidents.

• Exterior distractions: Some times some exterior distractions like a sudden crossing of the road by elderly or a kid can cause accident. The truck driver may try to save them and hit somewhere else causing accidents. A sudden searing noise can also distract the truck driver.

Many times it has been found that the driver was engrossed on a mobile phone or music and missed some traffic rules and caused accident.

Drug charges cover a broad range of offenses, from the less severe, such as simple possession of a small amount of drugs, to the more serious, such as participation in the ongoing manufacturing or distributing of drugs. Even minor drug charges, such as drug possession, can be frightening and carry the risk of serious penalties upon conviction. The more serious drug charges, of course, can give rise to even graver consequences. Past drug convictions, the amount of the controlled substance that was found, and the severity of the drug type usually dictate the severity of the charge(s) to be levied. Drugs posing a greater threat to the individual are typically treated with greater legal penalties. In addition to prison time, another significant consequence can be the loss of custody of children in the household.

Issues involving child custody are very complicated especially when one or both of the parents have been charged with a drug offense. Since the issue of child custody is a civil matter, the case will generally be assigned to a family court judge. It is important to note that the case in family court can proceed against a parent even though he/she has not been actually convicted of the drug offense. The standard of proof required in family court is much more relaxed than in criminal court and there is no limitation regarding the information the judge may consider in making a determination on the custody of a child.

If either parent is contesting that the other should not be given custody or visitation then the matter can get even further complicated. When one parent has placed the child in a dangerous situation (this includes exposing the children to illicit drugs) this parent’s right of visitation can be denied and the other parent awarded sole legal and physical custody. In the alternative, the court can also order sanctions such as drug treatment and random tests to insure the safety of child.

Ultimately, the child’s welfare is the court’s paramount consideration. Of course, the fact of the personal relationships or circumstances of the parents are going to be relevant. The court will undoubtedly want to know if the fact that a parent is involved in drug activity is going to impact upon their ability to care for the child. The overall issue the family court will focus on is how the drug offense impacts that parent’s ability to adequately care for the children.

Entrapment is the act of a law enforcement agent inducing a person to commit an offense, which the person would not have, or was unlikely to have, otherwise committed. An entrapment defense generally requires the defendant to prove that he never would have committed the crime absent the police trapping him. At the same time, the government will attempt to show that the defendant was predisposed to committing such a crime so as to negate the entrapment defense. If the government is able to show that the defendant readily and quickly responded to a single invitation, then they may be able to establish that the defendant was inclined to committing the crime on their own. However, even if the defendant was predisposed to committing the crime the government may still be required to prove it was not the law enforcement’s suggestive nature that caused crime to be committed.

As an affirmative defense, a defendant who is claiming that he was entrapped is stating that he did in fact commit the crime for which he is being accused. What the defendant is suggesting is that he should be excused from criminal liability, because absent being lured to the crime or enticement to engage in the criminal activity, he never would have committed the offense. Federal law provides that a defendant can both plead not guilty to the act of the crime and claim an affirmative defense of entrapment. However, both defenses are seldom asserted simultaneously.

Generally, entrapment is most commonly asserted as a defense in sting operations. For example, in the case of a drug sting if the police put pressure upon a person to sell drugs who initially refuses, but is persuaded to do so, then they could be seen as entrapping that individual. In the process of such operations, the police often engage in the same so-called crimes as the target suspect in order to gain the trust of the individual. Sometimes this conduct may be unethical and rise to the level of entrapment.

There are certain limitations, however, on when a defendant may raise an entrapment defense. Serious criminal charges such as homicide or felony murder can never be a defense to entrapment. In addition, if a defendant has a criminal history he may have a difficult time proving an entrapment defense because the government will attempt to introduce evidence of the prior convictions. If the prosecution can demonstrate a previous history of similar crimes then it becomes extremely difficult to prove entrapment.

The circumstances under which an entrapment defense may be employed are fairly specific, but an attorney familiar with an understanding of entrapment defenses may be able to give you more information regarding a particular situation.

Neil Lemons represents Teakell Law. For more information on entrapment testimony defense in the Dallas/Fort Worth area visit their website http://www.teakelllaw.com.

Nowadays, there are lots of local problem in laws in California that needs a professional to solve it. Discrimination based on age, sex, national origin, pregnancy, sexual orientation or marital status that needs the expert and professional lawyer to solve their problem. Federal and local laws prohibit employers from terminating employees for various reasons as mention above. A termination might be considered a wrongful termination if it is based on one of the various reasons above under California law.

If an employer terminates an employee for making complaints about discrimination based on any of the listed classifications above, the termination may be considered an illegal retaliation that can be solve by California labor attorney that have professional and expert lawyer in their field. There are also some problems that they can handle with their professional lawyer such as, discrimination based on disability or retaliation for seeking a reasonable accommodation for disability, discrimination or retaliation for taking a medical leave or a leave to care for a sick parents or children, discrimination or retaliation for making complaints about wage violations, etc. With their labor lawyer California, this company provides a law boutique law firm specializing in California employment labor, overtime law, labor law, wrongful termination and many other problems that happens to the employers.

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One day I happened to go to downtown Charlotte to register some business documents and was told to go from this building to that. From this room to the next. I have a disability from a bad car accident, so on the way through one of the buildings – which happened to have some of the criminal and/or traffic courts I had to sit and rest my back. The only place to sit was inside one of these courtrooms. So I sat and was amazed at what I heard.

It wasn’t what I heard from the judge or assistant district attorney that caught me offguard. It was what I heard from the police. They were there to answer for the citations and such they issued. According to the U.S. Constitution every person is innocent until proven guilty. But to these police officers, that was not the case. These people were referred to as scum, inbreeds that belonged on Jerry Springer, etc… I overheard racist remarks, jokes about the defendents, etc… all muttered between the police officers. I thought these officers took an oath to uphold justice and American laws. It sure didn’t sound like it.

Then I noticed something even more disturbing. There were a few deviant individuals in there, but mostly it was the poor and destitute in there. It was also mostly black people. As I looked around there was not one wealthy or even middle class person present. The only people in these catagories was the lawyers, assistant DA and the judge. It was mostly poor people that are working hard to just barely make it by. The black lady I sat next to was there to fight a speeding ticket and an unregistered license plate. The Assistant DA came over and offered to drop one citation if she would plead guilty to the others. The lady’s reply -

“I was held after at my first job and was rushing to get to my second job so I wouldn’t be late. I have already been late due to my first job and my other job on the weekends. I was afraid of being fired and I would lose my kids to Social Services as I wouldn’t be able to provide for them. I have three jobs just to put food on the table – I can’t afford even one of those fines. I can hardly afford gas. Maybe I should just go on welfare.”

I couldn’t believe what I heard – This lady was working 3 jobs to provide for her kids. She wasn’t doing anything wreckless – her ticket was for going 5 miles over the speedlimit. There was no way she was lying. This brought tears to my eyes – I took what money I had in my pocket and wrapped it in a piece of paper and gave it to her when I walked out. She needed it more than I did and it was the right thing to do. What has this world come to. We punish those who can least afford it – if this lady were rich she would have had her lawyer take care of these things for her.

I just recently read an article in the Charlotte Observer that described how many inconsistencies there are with the court and policing system in Charlotte. Basically from what I saw is the system is geared to take advantage of the poor and destitute. These people aren’t all bad. They are your blue collar hard workers and they are trying to climb out of financial holes many were born into. It wasn’t just this one lady. It was one after another, after another. Good people getting slammed by the system and at fees that they cannot possibly afford – $110 court costs + fines. Let’s see at least 100 people were in that one court room. Thats a lot of money. And there are many courtrooms full of people just like this one in Charlotte.

Hmmm, it sounds like we are taking advantage of the poor to fill probable extravagant local government pockets and coffers. This is just taking advantage of the people that these police as sworn officers swore to protect. It sounds to me like we have created a legalized bully system as I did not hear one police officer that had anything nice to say about these people. And after watching the news and looking things up on the internet I see many articles on police brutality, missuse of power, fraud, corruption – and its not just one instance – there are thousands and thousands of these.

This is wrong and needs to be changed. I’m sure this happens in every city and every state. We need to stand up to this – why is it that the local firemen are the first to the scene, always happy to see kids and help out, and always speak positive regardless of the situation. The police scare people lately. I wouldn’t hesitate to take my kids to see the firemen – they come out with coloring books, stickers and let them play on their trucks. The police are too busy and don’t have time, and to be honest, I wouldn’t want to take my kids to see the police. Not after what I saw in one day in downtown Charlotte. Maybe all I saw were the bad police – where are the good ones? I know there must be some. I just wish there were more of them.

David Maillie is a much sought after internet marketing guru and is also a highly regarded expert on press releases and getting publicity both nationally and internationally. He can be reached at M.D. Wholesale: http://www.mdwholesale.com and at http://www.bestskinpeel.com