|
|
Statutes of Limitations
New Jersey has a two year Statute of Limitations for Personal Injury
claims. If someone's negligent conduct has caused you personal injury, you generally have
a period of two years in which to file suit against them to recover for your injuries. |
Similarly, if negligent conduct has caused you to suffer/incur property damage, you have a
six year Statute of Limitations for Property Damage claims.What
does this mean? Do you have two years to file a personal injury suit or six years
in which to file a property damage suit, otherwise your claim is barred forever?
Not exactly.
The Statute of Limitations does not run against a minor so that a
minor with a personal injury claim has two years after reaching majority
(adulthood) to bring such a claim.
People sometimes bring suit (within the time period required by the Statute of
Limitations), but, being uncertain that all proper and necessary defendants have been
joined (i.e., named as parties to the suit) proceed to hedge their bets by adding a series
of "John & Jane Does" as parties defendant, with the
announced intention of properly naming such parties when they later become known.
When done in conformance with the procedures enunciated by the New Jersey Supreme Court,
this is accepted, and defendants can later be added by name to a piece of litigation after
the statute of Limitations has run. Through the doctrine of "relating
back", the suit as to the newly specifically named defendants is deemed to
relate back to the original filing of the "John/Jane Doe" complaint against
them. The suit, then, is considered to be brought in a timely fashion if the original
pleading was timely filed.
Under the terms of the "TORT CLAIMS ACT" (which governs claims against
certain governmental entities, such as branches of state and municipal governments, and
their employees), a Notice of Claim against such an entity must be
filed within 90 days of the accrual of the cause of action (i.e., the incident).
Note, you still have the period provided by the Statute of Limitations in which to file
your suit, but it will be dismissed if you failed to timely file the required Notice of
Claim.
Through the Single Controversy Rule, the New Jersey Courts seek to
limit duplicate multiple lawsuits arising from a single incident. Thus, should a
party to an accident bring suit against you shortly after it occurred, this rule would
require you to then assert in that same proceeding any claim arising out of the same
incident that you may have, even though the appropriate time period set by the Statute of
Limitations has yet to run.
There are additional variations and permutations (we have not even mentioned the
Discovery Rule, et cetera). The Point is that it may be to your
best advantage to consult an attorney (without delay) if you even think that you
may have a cause of action. |
|
|
Where there's a Will . . .
Why a Will? Who needs a Will?Most authorities and
practitioners point out that a Will permits you to direct what will
happen to your estate, with minimum bother and expense. |
| If you die without a Will (called
intestacy), there is distribution of your estate as determined by statutory provisions
following a set order of priority of your next of kin, usually with more fees, expenses,
and bother. There are rules dealing with sole property ownership, and special rules
addressing joint tenancy (i.e., mutually owned), joint tenancy with the
right of survivorship and tenancies by the entirety - all of which raise the issue of how
property should be held . . . the answer depending upon the circumstances and wishes of
the testator (person making the Will).
Joe Client makes a Will distributing his property to his wife, daughter Mary and son
Joe Jr. Thereafter another child is born, Sally. Joe does not make another Will,
and, in order to get to the point, he dies. Joe's valid Will neither names nor provides
for the afterborn child Sally. Joe has died intestate as to Sally.
Other points concern leaving property to a minor - several issues
arise. Who will act for the minor? Must guardians be appointed? Will they have to post
bonds? Will these items be a charge against the assets of the estate?
When should you make or redo a Will? Some general guidelines:
- a change in your marital status
- birth or adoption of children
- significant health changes
- retirement
- purchase of real estate
- significant financial changes (positive or negative)
- change of business/employment
Remember - your Will will be operational after your death when circumstances
and situations may vary from those you had actually envisioned during your lifetime.
Will and Probate work mark the measure of the Lawyer. The more care
and competence the lawyer displays in preparing the Will, the less fuss, bother and ado
will be encountered when the Will is probated. This translates to accomplishing the
distribution that the client desired with less expense and smaller fees. |
|
|
Alternative Dispute Resolution
Quick dispositions, lower costs and an opportunity (for
the faint at heart) to sometimes hedge their bets. |
Many people involved in litigation do not want Courts to go the way of Schools, so that
when population increases more courtrooms are added, more Judges put on the payroll,
Secretaries, Court Clerks, Law Clerks, Bailiffs, Sergeants at Arms, et cetera, with
payroll costs escalated by medical/dental/disability plans and retirement benefits.When
a case is submitted to Arbitration, it is common to have a disposition in
less than six months, which is far less than the time required to go
through the Court system and complete a jury trial.
Medical and other experts' reports are generally submitted in lieu of live
testimony (effecting a tremendous costs saving and facilitating scheduling).
Cases are generally concluded in less than a day!
Our courts make use of Arbitration and mediation hearings to expedite their calendars. Private
arbitration and mediation services are also available to fit a wide range of
needs (for example, the American Arbitration Association).
The beauty of Alternative Dispute Resolution is that it is available in many
shapes and sizes:
Say you have a personal injury claim and seek to recover $100,000 in damages. You have
been offered $25,000. Setting aside issue of Comparative Negligence, should a jury find
completely in your favor your case is worth $150,000 to $200,000. However, you could
lose and receive nothing - not even the amount that had been offered!
How about a HI/LO binding arbitration in which you are guaranteed an
agreed upon recovery on one hand and the monetary exposure of your adversary is also
limited to an agreed figure. Both sides limit their risk, but in doing so they take the
risk of losing what might be a more favorable result had they not entered into the binding
HI/LO agreement. (Keep in mind that this type of arrangement is only available upon the
consent of all parties).
How about a mediation/arbitration with no binding decision? Assuming
the mediators to be knowledgeable and respected, their figures (or something close)
usually resolves the matter so that such a hearing does serve a valuable purpose.
In certain instances Statutory provision and/or contract language
prescribe and proscribe certain types of Arbitration.
Some cases will always be tried . . . whether because the litigants
want their day in court (to which they are entitled), or whether the occasional jury
verdict gives a reality check to the arbitrators and mediators so as to finely tune the
system. But Arbitration and Mediation can offer an attractive alternative
under the right circumstances. |
|
|
Driving Violations & Legal Counsel
Do you need an attorney if you have to appear in Municipal Court for a
driving violation? |
For minor violations an attorney may not be necessary.A number of
years ago, one of the South Jersey papers ran an article noting that pro se defendants in
Municipal Court (that is, those appearing without an attorney) did not do as well overall
as defendants who had an attorney present; and then offered the conclusion that this was
evidence of cronyism by the sitting Magistrates (who were attorneys) to their legal
brethren, which completely ignores the fact that people who try to set their own fractures
generally do not get as good results as those who seek qualified medical care, that people
who attempt to repair their own shoes are not likely to get as good a result as those who
use the services of an experienced shoe repair professional.
The practice of law is not truly analogous to that of Medicine or Shoemaking; but training,
experience and expertise make a difference in many endeavors.
An attorney will consider many things . . . When was the citation
issued (it may make a difference)? How does it describe the charges ? If reference is made
to a specific statue, does it properly apply? Have other courts interpreted the statutory
language and what have they said?
In a motor vehicle case, was another driver or drivers involved and
were traffic citations issued to them? Should they be charged with an offense (if you
think that the facts support it you may be able to make a complaint against operators of
other involved vehicles)? Who can prove the case against you (in many instances the
investigating officer who issued the ticket may not have witnessed the claimed offense . .
. and thus cannot directly testify as to the facts of the occurrence . . . he may attempt
to do so by quoting what others have told him - which might be inadmissible as hearsay).
Are witnesses listed on the Police Report? What is their version
(which may be different that what the investigating officer recited as their version . . .
an accident scene does not always provide a quiet interval for developing each person's
full recollection of events that probably occurred without warning)? Are there witnesses not
mentioned in the Police report? Did anyone speak to you at the scene? Did you get their
name . . . if not did you see where they came from? Your attorney may want to
canvass the area or even place an ad in the Personals Column.
Are the physical facts consistent with the theory of the event
incorporated in the investigating officer's report?
Some basic considerations:
- any history of past substance abuse arrests (alcohol, illegal drugs)
- the impact of a possible conviction and/or additional driving points on
insurance charges
- the impact of possible license suspension (employment, dependents)
- any history of prior license suspensions
- the possibility of future arrests or convictions and their cumulative effects
(insurance, points, fines and punishments)
- driving record prior to current incident
- charge of multiple violations
- an attorney's fee
The foregoing is not the end . . . it is merely a beginning. Each case will suggest different
possibilities and methods of approach limited only by the amount of money you are
willing to spend and the experience and ingenuity of your attorney. |
|
|
My dog just bit someone . . .
What should I do?
|
Most attorneys will tell you that you should have purchased liability insurance
that included coverage for such canine behavior prior to the bite.Why?
Because things have changed over the years. Once there was a time when "every
dog was entitled to his first bite". What does that mean? At Common Law
(which New Jersey inherited), an owner of a dog that bit someone could not be held liable
for resultant injury unless there was proof of the animal's "dangerous
propensities". If it was not proven that the dog had previously attacked and bitten
someone, then there was no proof of such "dangerous propensities".
This was all changed when New Jersey enacted a statue that imposed strict
liability for dog bites (even the first one) upon the owner of the canine. As a
matter of historical interest this was initially referred to as the Postman's
Act because their lobby was so instrumental in having the law passed.
If you have liability insurance covering dog bites, report the incident
to your insurance carrier.
If not, consult an attorney.
One more thing . . . since the person writing these lines has no idea how bad the dog
bite in your case may be, nor of the amount of any insurance coverage that you have, nor
of the assets in your name that would be subject to any money judgment (damage verdicts
sometimes exceed available coverage), consult your attorney in any case .
. . leave nothing to chance! |
|
|
Disclaimer |
