López & Sercely PC
Please make sure to use a car seat for children
While I’ll be the first to admit that the current laws in Texas, which require many 6 and 7 year olds to sit in booster seats, are silly, child seats for young children are ESSENTIAL for the well being of a child.
Recently, my firm was contacted by a person who was in a serious car accident their infant child died. The child was being held in the lap of a parent as they were driving down the highway. They were hit by another car, and their car flipped over. A door opened, and the child flew out onto the ground. She died essentially instantly.
Compare this to another child in a car accident in Massachusetts a few weeks ago- the child was properly in a child seat, but the child seat was improperly attached the the car. The entire child seat was ejected form the car and ended up about 40 feet away.
The child had some bruises and some scratches.
I’m a new father, and I love my daughter very much. For all those like her, please use a child seat for all young children. It’s an honest safety concern, and it doesn’t take much for them to suffer permanent damage. Put them in the car seat, please.
The One Bite Rule
In the day to day life, many people interact with dogs that belong to someone else. Some of those people will be attacked, and some, particularly children and pre-teens, will be seriously injured.
Which leads to a horrible rule in many states, including Texas- if the dog is not actually known by the owner to be dangerous, the owner has no liability. Doesn’t matter if his dog seriously injured or even killed the victim- there is NO liability. This is known as the “one bite rule.” In general, barring dogs that everyone knows are dangerous, e.g. pit-bulls and rottweilers, there is no liability for the first bite.
Upon closer reflection, this is incredibly unfair. The owner of the dog gets to make all of the decisions involved-
The dog owner gets to decide to have a dog.
The dog owner gets to decide how to train the dog.
The dog owner gets to decide how much insurance, if any, he will have if the dog hurts someone.
The victim… gets to hope he can convince a judge and jury that the dog owner knew the dog was dangerous, usually done by proving the dog attacked another person.
It is an unfortunate case where the party with all of the control has no legal liability. Every few years, another state gets rid of this antiquated rule, but many people are left without compensation for their serious injuries. It’s not right, it’s not fair, and it should change.
Dirty Insurance Tricks
As every good personal injury attorney will tell you, never trust the other guy’s insurance company after an accident- their goal is to settle the case for as little as possible.
I’ve recently learned that several insurance companies appear to be up to one of their common tricks- sending checks to injured people with the words “full and final release” as the memo. Even more sneaky, I saw that language in a property damage release 2 weeks ago. If signed, these contracts would give up the injured parties right to ever sue the insurance company or its insured for that accident.
Whenever an insurance company asks you to sign something, anything, please consult an attorney to make sure you are not forever waiving your right to compensation. The law offices of López & Sercely are more than happy to give a quick consultation on this if you have any questions.
Why does the First Amendment apply to the States?
Most people know that the First Amendment protects freedom of speech and religion, and thus assume it should apply to the states and, in some cases, to employers, companies, volenteer organizations, etc.
However, the words of the First Amendment are “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
CONGRESS shall pass no law. Not “The States.” Congress.
So why does it now apply to the states? The 14th amendment. The important part, for this discussion, is the First section- “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This law was passed during reconstruction, when many states were passing laws prohibiting the former slaves from applying their natural and civil rights, such as the right to speak as they wished or associate with others they wanted to.
The 14th Amendment, particularly the above so called “privileges and immunities” clause, is what gives the Federal Courts the powers to enforce most of the bill of rights upon the states, such as the very important right to a fair trial by a jury, right against unreasonable search and seizure, and, recently, a right to keep and bear arms.
You May Not Have A Legal Right To A Trial
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Article Three of the Constitution of the United States
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence
Sixth Amendment to the Constitution of the United States
Seems to be pretty clear, doesn’t it? In ALL Criminal prosecutions, and in all trials for crimes (except impeachment), you get an impartial jury. And yet…
According to the Supreme Court of the United States, however, you don’t have a right to a jury trial in every criminal prosecution. In fact, so long as you cannot be jailed for more than 6 months as a result of a crime, you have no Constitutional Right to a jury trial, as such charges are for “petty” crimes.
As for myself, I’m a big believer in the right to a jury. Further, I don’t consider the possibility of being jailed for one month, let alone 6 months, as a fair punishment for a petty crime. If I went to jail for a month or more, I’d almost certainly go bankrupt, and so would most people in the country. So, first of all, we have problems in the understanding of what the words “In all criminal prosecutions” and “Trials of all crimes.” Secondly, we clearly have a problem with the definition of “petty”
There is a school of thought that laws mean what the words in them mean. Most lay people think this is the way law should be interpreted. It seemingly takes a legal degree to not be able to understand the sentence “Trials for all crimes shall be by jury.” And yet, even the Courts acknowledge, when it comes to any contract besides the Constitution, that you follow the plain meaning of the words.
The right to a jury trial is fundamental to our justice system, or at least it was at one time. It’s a shame that it doesn’t exist in so many situations anymore.
Lawyer Jokes of the Week
A lawyer’s dog, running around town unleashed, heads for a butcher shop and steals a roast. The butcher goes to the lawyer’s office and asks, “if a dog running unleashed steals a piece of meat from my store, do I have a right to demand payment for the meat from the dog’s owner?” The lawyer answers, “Absolutely.”
“Then you owe me $8.50. Your dog was loose and stole a roast from me today.”
The lawyer, without a word, writes the butcher a check for $8.50. The butcher, having a feeling of satisfaction, leaves.
Three days later, the butcher finds a bill from the lawyer: $100 due for a consultation.
The Lacey Act
The Lacey Act is a law very few people hear of directly, but one that has caused grave harm to many individuals who have been accused of violating it.
The Lacey Act was passed in 1900. It, and its amendments, was passed to prevent people and companies from trafficking in animals or plants and products made from plants and animals which were acquired in violation of the laws of another country. The law, for example, would punish people who poach an elephant in Africa and try to import the ivory.
While I am all for conservation, there is one very bad part of this law- it applies to any animal or plant products acquired against the laws of any country or state, whether the current possessor was the person who broke the law or someone else.
It applies foreign laws to acts in the United States
There are a multitude of laws and regulations in the United States. The Lacey Act, and laws like it, make it a crime to violated certain laws of 0ther countries! If a person can’t keep track of the laws of just one county, how is it reasonable to expect someone to know the laws of all countries.
Further, as shown in the Gibson Guitar Raid, the US government is not very good at knowing what is against the law in other countries. They did not consult an Indian Attorney before the raid, or they would probably have been informed there was an exception in Indian law that made the wood in the possession of Gibson Guitars legally acquired.
It creates a double jeopardy effect
A person could, in theory, be convicted of violating the Lacey act, be punished for it in the United States, and then be extradited to another country to be punished for the exact same crime. If the violation of another countries laws are bad enough, one would think extradition would be sufficient to resolve the problems.
It applies whether you violate the law intentionally or whether you purchased the items in good faith from someone else who violated the law.
While the criminal portion will typically not apply to a good faith purchaser, there are civil fines and forfeiture laws that would apply and have been applied to many innocent purchasers of illegal goods. It is manifestly unjust to punish a good faith purchaser by fining him for the acts of another. Certainly, if it is a non-good faith purchaser, such penalties could be appropriate, but any law that punishes innocent people is a bad law indeed.
Why I Respect Juries
“A jury is composed of 12 people who are too stupid to get out of jury duty”
-Very Old Joke
I hate it when people make fun of how stupid or wrong juries are. (whereas I love Lawyer Jokes). I respect the service that juries perform. Moreover, I, unlike many people, including many lawyers, trust juries to be the most fair group of people to determine what is fair.
The American Legal System, with some notable exceptions, protects the rights of citizens in both civil and criminal cases by always giving a Plaintiff or Defendant the option to have a jury decide the facts of their case. This is beneficial because judges, even good and honest ones, are much more likely than a jury to worry about outside factors, like politics or what’s best for society. That’s not what a case needs- it needs someone to judge the case in front of it fairly.
One of the great benefits of a jury is that it’s hard to fool all 12 people in a jury if that is a lawyers plan. Putting on a show, as made famous by the movie Chicago, is not actually practical for a jury. It is not easy to pull a fast one on a judge, but the experience and reason of 12 random individuals is much harder to fool.
Further, a Jury is a lot more likely to look at the “soft” factors in a case, such as motive or need, than a judge is. From the law’s point of view, a man stealing $500.00 of food for his family is the same as a man stealing $500.00 in cash for alcohol. From a justice standpoint, their crimes are very different, and a jury will be more easily able to take into account what is truly just.
Many people mock juries, but I tell you, juries are an integral part of the system that protects YOUR rights, both from other individuals or the government.
If you have a legal problem, contact the lawyers of López & Sercely today. With their experience and convictions, they will do everything in their power to see that you receive justice.
Why do lawsuits take so long?
If you’ve ever been involved in a lawsuit, you know that they take a VERY long time to conclude. It seems wrong that it can take 2 or more years for a lawsuit to conclude once filed (and remember, the lawsuit may be filed a year or more after the events that are at the heart of the lawsuit). Here are five reasons it can take so long.
1. It is often in the Defendant’s interest for a lawsuit to take a long time
There are many things a lawyer can do to intentionally delay a lawsuit from concluding. If a Plaintiff has a particularly strong case for a lot of money, then letting a case wait for a year or two can be a good business decision for a Defendant and/or his insurance company.
2. Some cases are very complex.
In your standard 2 person car accident case, there’s only so much that needs to happen before everyone is ready for trial. In a not-so-standard 4 car 8 person accident, it may take a little longer for everyone to do their discovery and make sure they really know what is going on with the case.
3. The Courts are backlogged.
In many of the Texas Courts, it currently takes a year or more to have your trial date arrive. Even when your trial date arrives, an average of 6-9 more cases have also had their trial date arrive, and usually, the oldest case will go and everyone else gets to wait for a new trial date.
4. Some lawyers are very busy.
If your lawyer has a lot of cases, like many personal injury lawyers are, then your lawyer may have multiple cases set for trial on the same day. Obviously, he can only be there for one of those cases, so the rest will be delayed. (at López & Sercely, we strive to avoid this situation by having enough people on staff to see through all of our pending cases).
Ignorance of the law should be a defense
Nowadays, every court that looks at the issue of knowledge of a law has ruled that ignorance of a law is no defense. This relies, supposedly, on the legal maxim set forth by Blackstone:
Ignorantia juris, quod quisque teneture scire, neminem excusat
Roughly translated, this means “ignorance of the law, which everyone is bound to know, is no excuse.” This maxim comes from Rome, where all the laws of the country were posted for all to see in the Forum.
The real question today, of course, is what is everyone bound to know? Over 40,000 laws came into effect at the beginning of this year alone. Granted, not everyone will be effected by everyone of those laws, but even if it was an even division across the states, that would be 800 new laws that effect the average person this year. It’s a a fair guess that there are over 50,000 laws that apply to a person at a time, between state, city, and federal laws.
50,000!
How could anyone possibly know all these laws? How is it fair to expect anyone to know all of these laws?
Certainly, injustice will result if any many can claim ignorance of a law and thereby be found not guilty. The best way to remedy this of course would be to remove 90% or more of the laws from the books. Since that won’t happen, beware, as otherwise you may find yourself guilty of a crime you had no idea you committed.
