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.