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危機管理・保険

Defamation

アメリカ 弁護士 法律事務所 法律 名誉棄損

Anyone who has been following the U.S. presidential election (and even many people who haven’t been following), knows that Donald Trump has taken center stage and has received most of the media focus throughout the process. A lot of this has to do with the fact that Mr. Trump seems to say outrageous things on a weekly basis. Many people in Japan are aware that Mr. Trump has recently stated that Japan and South Korea should develop nuclear weapons, though Japanese government officials have publicly reiterated the nation’s policy against nuclear weapons.

Though Mr. Trump’s statements are often outrageous and completely untrue, he is permitted to say them in the U.S. without repercussions from the government because of the freedom of speech guaranteed in the U.S. Constitution. However, somewhat ironically Mr. Trump has often sought to use the U.S. judiciary (a branch of the government) to silence those who say negative things about him. Mr. Trump has often sued or at least threatened to sue individuals for “defamation.” In addition, he has gone so far as to say that when he becomes president, he will change defamation laws, presumably to make it easier to sue people for speaking negatively about you.

Mr. Trump’s statements and actions highlight an interesting and somewhat complicated and confusing legal issue. Because the U.S. was once a British colony, the U.S. adopted many old English common laws, including the law that prohibited defamatory speech. As a result, under U.S. law, a person can sue someone else and collect damages because of injurious false statements made by the offender. However, when the United States was created, the founders of the country drafted and ratified a constitution, which states that “Congress shall make no law…abridging the freedom of speech.” In other words, the government is not supposed to restrict people from speaking freely. These two principles are thus at odds. U.S. courts have been forced to try and address the relationship between defamation laws and the freedom of speech in the U.S. The results of the many court cases over the last two centuries are a bit confusing and complicated. However, one thing that is clear is that, even though the U.S. Constitution guarantees freedom of speech, you can still be sued and ordered to pay monetary damages to someone else if you make false, injurious statements about them. It is important to understand this concept if you travel to or decide to move to the United States. While your speech is generally protected, leaving you free to say whatever you want, there are still potential repercussions that can result from the things you say. If you or someone you know is threatened with a defamation lawsuit in the United States, it is very important to talk to an attorney who understands this complex area of law.

(2016 Spring)

"Flying Drones"

アメリカ 弁護士 法律事務所 法律 米国でドローンを飛ばす If you are living in the United States and are one of the many people who has recently purchased an unmanned aircraft system (commonly referred to as a "drone"), you should be aware of the U.S. rules and regulations about drone use. In the United States, the Federal Aviation Agency (FAA) regulates all manner of flight – whether by airplane, helicopter, or even drone. Failure to comply with these regulations can result in very serious penalties. Just last year, a company in Chicago was fined $1.9 million for failing to comply with FAA regulations.

If you want to fly a drone in the United States, the first question you have to ask yourself is what is the reason for your activities. If you are simply flying a drone for pleasure, all you need to do is register your drone with the FAA and make sure you operate your drone in a safe manner away from restricted areas (such as airports). You can register your drone online for $5 here: https://www.faa.gov/uas/registration.

If you are planning to fly a drone as part of your business (no matter how minor the role of your drone is in your business) then the process is much more complicated. Currently, the only way to do this is to apply for what’s called a Section 333 waiver from the FAA. In your waiver application, you need to explain to the FAA the purpose of your operations and how you will perform your operations in a safe manner.

Be advised that under current rules and regulations, in order to fly a drone as part of your business requires you to be a licensed pilot. This is an extreme rule that will almost certainly be done away with once the FAA issues new drone specific regulations in the next year or so. But if you fail to comply, you could find yourself being fined by the FAA.

If you are looking to fly a drone for fun, chances are you won't need special permission from the FAA. But you will need to make sure you comply with certain rules and regulations. If you own a business and are looking to use a drone (either as a primary function of your business or just as a small part of your business), you are going to want to talk to a lawyer to help you navigate the ever-evolving FAA regulatory scheme. While you almost certainly won't meet the same fate as the Chicago company facing the $1.9 million fine, you could very well find yourself with an FAA Civil Penalty on your hands.

(Spring 2016)

"Protecting Your Nest Egg"

アメリカ 弁護士 法律事務所 法律  蓄えを守るにはDuring these uncertain financial times, many Americans are afraid to open up their 401(k) statements or are unsure of where to put their retirement savings besides under the mattress. Although the law can't guarantee you a great return or help you pick the safest stocks, it can provide some important protections when you change jobs or your employer goes out of business.

To help you better understand how the law can protect your retirement funds, US Legal News is offering this primer on laws and agencies that may be useful to you. The Employee Retirement Income Security Act of 1974 (ERISA) establishes many of the mandates and standards for pension plans in private industries. For example, ERISA requires that you be given a yearly summary of all your qualified retirement accounts. This requirement creates accountability for plan investors.

Another federal law, the Pension Protection Act of 2006, forces employers to shore up their plans. Under this law, plans that are not fully funded face additional premiums and penalties. In addition, your state may have other laws in place to regulate the pension and retirement plans of employers within the state.

Various government agencies enforce these laws and provide other protections for investors such as deposit insurance. Such insurance, offered by the Federal Deposit Insurance Corporation (FDIC), protects the money that you place in qualified banks up to a certain amount. This insurance is automatic and means that if the bank should fail, your money (up to a limit) will be guaranteed by the FDIC. Similar protections are available for deposits with credit unions (through the National Credit Union Administration) and those with brokerage firms (through the Securities Investor Protection Corporation). The guaranteed amount varies depending on the type and location of your investment.

Regardless of how well you protect your retirement accounts, a serious change in your employment status may still put your nest egg at risk. However, losing your job doesn't necessarily eliminate your retirement options. There is a good chance your pension is still safe. You must, however, immediately check out the employer's "vesting" policy. Your pension is said to vest when you have the right to all the earned benefits.

If your pension has vested, you have a right to the benefits, even if you leave the job for any reason. By law, your pension rights must either vest completely after five years or vest partially after three years of service. Any vested pension benefits are yours, regardless of whether you leave the job. If your employer terminates your pension plan, you still aren't totally at a loss. If
your plan is considered "qualified," your interest will vest immediately and you have the right to any contributions made by you or your employer. If the employer doesn't have enough money in its accounts, you still aren't totally on your own. "Defined-benefit plans" (plans that guarantee you a certain amount of money each month upon your retirement) are insured by the Pension Benefit Guaranty Corporation, up to a certain amount.

There are a variety of resources available for concerned investors. The Garrett Planning Network offers financial planning advice to consumers on an hourly basis
(www.garrettplanningnetwork.com), as does the National Association of Personal Financial Advisors (www.napfa.org). For more information, check out the Pension Benefit Guaranty Corporation (www.pbgc.gov) or the Pension Rights Center (www.pensionrights.org). And of course, if you are worried that someone has committed fraud in overseeing your pension accounts, do not hesitate to contact your lawyer.

(Winter 2009)

"When Your Guests Drink and Drive: Understanding Dram-Shop and Social Host Liability Law"

アメリカ 弁護士 法律事務所 法律  招待客が飲酒運転するとき:酒場(ドラムショップ)・パーティー主催者責任法Hosting a Super Bowl party for your friends and family can be a stressful time: What will you serve? Where will everyone sit? Is your television big enough? One of the last things you want to worry about is what happens if Uncle Stan drinks too much and then gets behind the wheel of a car. Nevertheless, you should watch Uncle Stan's alcohol consumption not only because of your concern for his safety and that of other drivers, but also because of your possible legal liability should Uncle Stan cause an accident.

As a host, be aware of your state's dram-shop or social host liability laws. These laws identify situations in which a third party can be held liable for the actions of an intoxicated person. Such laws are meant to deter social hosts from over-serving drivers, and to find an additional source of money to help cover damages and injuries caused by drunk drivers. For example, under a traditional dram-shop law, if Uncle Stan gets drunk at Bar X and leaves and drives his car into a church van, injuring three van passengers, the passengers may be able to sue Bar X.

These laws vary broadly by state. However, they generally fall into two categories: laws that are directed only at commercial sellers of alcohol such as Bar X (usually called dram-shop laws), and laws that allow the injured party to sue private individuals who do not sell alcohol but who do serve it or make it available (usually called social host liability laws). State dramshop laws differ on whether a plaintiff must show that the bartender knew the customer he or she was serving was drunk and on whether the bartender must have known the customer was going to get behind the wheel. Social host liability laws vary even more. Some states don't have any such laws at all, while others have strict ones. In some states, these laws focus on underage drinking and only hold a social host responsible if the accident is caused by an individual under the legal drinking age (and in some states, there is a requirement that you are responsible for determining whether Uncle Stan is at least 21 years old before you serve him).

Other states extend social host liability to corporate parties. This could be a critical concern for you if you run a small business. Because these laws vary so much and could easily result in extensive financial liability for you or your business, make sure you fully understand your obligations and responsibilities before hosting that "open bar" party. If you do plan to host a party and serve alcohol, regardless of where you live, there are a few steps you can take in order to avoid legal liability (and, even more importantly, to make sure that your guests get home safely!). Keep taxi information, especially phone numbers, in a public place. Identify one or two designated drivers who will be available at the end of the evening. And eat! Provide plenty of food and nonalcoholic drinks and make them a central part of any get-together.

(Winter 2009)

“Military Families: Protect Your Credit History”

アメリカ 弁護士 法律事務所 法律  給料日ローン:軍人の家族と信用記録の保護If you or a member of your family is preparing for a military deployment, the last thing you want to deal with is identity theft. According to a Federal Trade Commission survey, in 2005 8.3 million Americans were victims of this crime. On average, these victims spent four hours working to restore their identity and credit, but for over 10 percent, it took at least 55 hours to get things straightened out.

Thankfully, an amendment to the Fair Credit Reporting Act is intended to help military families avoid this hassle. Under the Act, "active duty alerts" are available to members of the military who are away from their usual duty station. Your credit report includes information about your address, your bill payment history, and whether you have ever filed for bankruptcy or been arrested or sued. This information is then sold by a nationwide consumer reporting company to businesses that are considering extending you credit. If you have such an active duty alert on your report and a business is attempting to extend credit to someone in your name, the business will see the alert and then must verify the identity of the person seeking credit. This extra step makes it much more difficult to steal the identity of an active duty military member.

Be aware that such precautions are not perfect-if you are interested in getting credit while an alert is in place, it can be time consuming as the business will have to confirm your identity, which may be difficult once you are deployed. However, chances are good that this inconvenience will be much less than that associated with trying to repair your credit.

If you or a family member is interested in obtaining an active duty alert, simply call the toll-free number of one of the three nationwide consumer reporting companies:

You will have to provide identifying information, which can include your name, address, Social Security number, and other personal information. Unless you request that it be removed earlier, such alerts are effective for one year. To learn more about your credit rights, visit ftc.gov/credit.

This amendment to the Fair Credit Reporting Act is just one of a number of legislative efforts aimed at helping servicemembers and their families. For example, the federal government passed a law in 2006 that imposed limits on the ability of payday lenders to target military personnel. Servicemembers and their families should take full advantage of any and all benefits such as these that are offered, both before and during deployment. The Web site of the National Military Family Association (www.nmfa.org) provides detailed information on such programs. Like many financial and identity theft protections, these tools only work if you use them.

Alerts Also Apply To Reservists!
Don't worry if you or a family member is a reservist - active duty alerts still work. So long as you are on active duty and are away from your usual station, you are eligible for active duty alerts, regardless of your status as a reservist.

(Fall 2008)

“Supreme Court Update: The Second Amendment”

アメリカ 弁護士 法律事務所 法律  Supreme Court Update: The Second AmendmentIn the much publicized "gun control case," District of Columbia v. Heller, the modern Supreme Court took the first stab at defining the Second Amendment in over 60 years. Heller involved a challenge to gun-control regulations in the District of Columbia that were some of the toughest in the country: essentially banning all private handguns and requiring that firearms be kept locked in an inoperable condition. The question presented to the Supreme Court was whether these regulations violated the Second Amendment.

In its 5-4 decision, the Court held that the D.C. regulations were unconstitutional under an "individual" reading of the Second Amendment. This means that the Second Amendment right to bear arms now protects the right of individuals -"the people"-to keep firearms for their own self-defense or other private use. The Court majority rejected the argument that the Second Amendment was only meant to protect the right of the states to form and arm an official state-run militia.

So what does this mean for the everyday American? Immediately-not a great deal. Because of the way Justice Scalia wrote the decision, the Court left open the possibility that certain gun regulations will still not be barred by the Second Amendment: for example, laws governing the disarming of convicted felons, creating "gun-free zones," and banning short-barreled shotguns. It will take some time for cases about these specifics to make their way through the various court systems before we really understand the impact of Heller.

(Fall 2008)

“Protecting Your Assets From Lawsuits-Be Proactive”

アメリカ 弁護士 法律事務所 法律 <br />
健康保険及び雇用に関する遺伝子情報に基づく差別禁止法Imagine you are driving home from the store when a child darts into the street. You swerve to avoid him, and in the process, run head first into another car. After it's all said and done, you are sued by the other driver for the costs of her extensive medical care and car repairs. Could she end up getting your house? What about your retirement savings?

Across the country, newspaper headlines are packed with news of multimillion dollar court judgments for plaintiffs. These rulings can provide important relief and support for injured parties. However, they can also bankrupt defendants. Protecting yourself from a large legal judgment may be the last thing on your mind; however, if something goes wrong, you will be thankful for any and all prior planning.

State laws offer varying levels of protection against legal judgments. Therefore, it is important to research your state's laws. Nevertheless, a few general principals do apply. In all cases, you must be proactive. You cannot move or otherwise act to protect your assets from a legal judgment after you have been sued or had an accident for which you might be liable. Courts look negatively upon such moves. Consequently, whatever actions you do decide to take to protect yourself must be done ahead of time.

So what exactly could a large legal judgment put at risk? Again, this depends on your specific state laws, but there are some general rules. Any 401(k) plans and company pension benefits are likely protected. IRAs are another matter-their vulnerability will depend on where you live and whether the judgment forces you to declare bankruptcy. Life insurance policies are usually safe, as are any proceeds being paid to you from another person's policy. However, if you take such proceeds in a lump sum, a court judgment may be able reach them.

A major worry for many people facing a large legal judgment is their home. Since your house is often your largest investment, and at the end of the day, it is the place your loved ones call home, it may make sense to start liability planning here. In most states, a primary residence (meaning the place you intend to live most of the time) is protected to some degree from legal judgments. Some states place limits on the amount of value that will be protected, but these caps can vary.

Likely, your best bet to protect your home and other assets is to make sure you have adequate insurance coverage. Liability insurance is the most common insurance used to protect home owners. The liability portion of your homeowners' insurance is designed to cover unintentional injuries on your property and unintentional damage to other people's property-in other words, injuries caused by your negligence are covered, but not injuries inflicted on purpose.

If you have significant assets, you may also want to consider taking out an umbrella policy. For an additional fee, an umbrella policy protects you from a big judgment that might quickly eat up your regular coverage. These policies are relatively inexpensive because the insurers are betting ou'll never need them. The coverage picks up where your home and auto policies leave off, so in order to obtain one, you have to have certain levels of basic home and auto liability insurance. You also have to meet certain eligibility requirements, such as owning no more than a certain number of cars and not having been convicted of driving under the influence in the recent past.

Because no two policies are the same, it is important to carefully study yours and know what will and will not cover. Read the fine print. You may need additional coverage if you have a home-based business or natural or manmade attractions on your property, such as a pond or pool. Regardless of what form of protection you pick, at the bottom line, all that matters is that you and your family are protected!

(Summer 2008)

“The Innocent Shoplifter”

アメリカ 弁護士 法律事務所 法律  万引きの冤罪Almost all of us have had the experience while shopping of making a purchase, leaving the store, and having the alarm go off. You know you didn’t steal anything, and more often than not, the salesperson calls you back and removes a theft-deterrent device that was inadvertently left on your purchase. But what if it isn’t as simple as this? What if store personnel detain you for shoplifting? Can they legally hold you against your will?

Retail theft results in huge losses for businesses. This so-called shrinkage is a major worry for businesses that can see a substantial portion of their profits walk out the door with thieves. It is understandable that many stores put a great deal of time and effort into installing shoplifting deterrents, training staff to be vigilant, and in some cases, hiring staff specifically trained in loss prevention. However, even the best training can’t prevent all mistakes.

Innocent people often engage in behaviors that store security may be looking for: repeatedly returning to the same spot in the store, taking multiple items into a fitting room, and not talking to salespeople, just to name a few. Because what are often innocuous acts can sometimes look like shoplifting signals, there is a chance that as an innocent shopper, you may end up as an accused criminal. But, if you remain calm, after a short delay, you usually can be on your way.

In most states, merchants are allowed to reasonably detain a suspected shoplifter for questioning and a limited investigation. Usually, in order for a detention to be reasonable, the merchant must have a realistic belief that you attempted to shoplift. This often requires that store employees believe they saw you take some property and that they kept you in their continuous sight until you tried to leave the store without paying.

Once management has decided to detain a suspected shoplifter on the abovementioned grounds, the law generally permits store employees to do so, but only for a “reasonable” period of time. What counts as “reasonable” will vary but is likely limited to the time needed to identify the suspect and call local law enforcement. Most state laws allow merchants to ask suspects for identification and to return any unpaid merchandise. In some areas, employees may even pat down suspects if there is reason to believe that they may have a weapon. In a nutshell, if you have done something to raise the reasonable suspicions of store employees, they probably can detain you.

If you are wrongly detained, try your best to remain calm and reasonable. Chances are that the store employees are worried about their safety; therefore it makes sense for you to take care not to do anything to make them think you are a threat, which might, in turn, put your own hysical safety at risk. You can try to the best of your ability to explain your behavior (“I thought I put the shoes in the correct box.”) However, realize that the employees may not give much weight to your explanations; chances are good they have heard it before. While you are being detained, the store employees should be willing to accommodate any reasonable requests, such as for water, prescription medication, or use of the bathroom. If local law enforcement is called and you are detained by the police, you should immediately state your desire to speak to an ttorney. Be polite, but wait until your attorney arrives before engaging in any lengthy discussions with the police.

Store security might say that you are expected to pay for the property they allege you took, which is common practice, and in many places, legal. This is known as civil recovery and allows the store to directly ask you to pay what they think you owe without any court or law enforcement involvement. While you are detained, you should protest politely any supposed fines. After the event, you should write a letter to the company’s head of loss prevention, explaining
why you don’t believe you should have to pay. Although no court involvement is initially required, these notices and allegations should be taken seriously. Leaving something such as this unattended could result in major fines and headaches. If you believe your rights were violated during the detention or if the store continues to pursue you for payment, you should talk to your attorney about your options and possible remedies.

(2008年春) Copyright © 2008 Hisaka Yamamoto (Photo: © Vadimone | Dreamstime.com)

"You and Foreign Law Enforcement"

アメリカ 弁護士 法律事務所 法律  CollegeStudentTravel.jpgTraveling overseas is an exciting adventure: seeing new places, speaking a different language, learning about a culture. However, having a run-in with the law is one kind of excitement you don't need. Even if you have done nothing wrong, the possibility of being arrested or detained in a foreign country is a risk you need to take very seriously. By understanding what you should do before you leave, knowing your rights, and keeping in mind the limits on what U.S. officials can do for you, you will be more likely to quickly resolve any problems you might encounter and return home safely.

There are a number of important steps to take before you travel abroad. First, check the U.S. Department of State's travel warnings and alerts (www.travel.state.gov/travel/warnings.html ). These notifications alert travelers to possible threats, political unrest, or violence in specific areas of the world. You should also consider registering with the Department of State. Registering can be done online for free (https://travelregistration.state.gov/ibrs) and ensures that if there is an emergency, either back home or at your destination, American officials can easily contact you. Lastly, before you go, leave copies of your travel documents and passport with a family member or friend. That way, if something does happen, someone back home will have your identification information.

Then, when you are traveling, remember that you are subject to the laws of the country you are in, which may be different from those back home. Ignorance of the law is never an excuse. If you are arrested abroad, try to remain calm. Once you are taken into custody, you should immediately ask to speak to a consular officer at the nearest U.S. Embassy or Consulate. Many countries have agreements with the United States to ensure that you have this right (and the citizens of those countries have the reciprocal right in America). If your request is turned down, you should keep asking, politely, but continually.

American Embassy and Consulate officials are valuable allies for citizens arrested abroad; however, it is important to note that they can't provide a "get out of jail" card. Still, although American officials usually cannot represent you in court, they can provide you with a list of qualified attorneys, contact your family, and help get you money from your family back home. American officials will also monitor your health and safety and will protest any abuse or maltreatment. So remember: Your best protection when traveling abroad is to do the necessary research ahead of time, understand the rules of the host country-and keep your wits about you!

Tips For Parents-What To Do When Your Child is Abroad
With the summer moving into full effect, many teens and college students are getting ready to spend the summer traveling abroad, or packing and preparing for an upcoming semester abroad. For the kids, these opportunities are exciting times filled with learning and fun. For parents, these can be times of stress and worry. You can help your child prepare for any international travel by ensuring that your son or daughter understands how to respond to interactions with foreign law enforcement. The following list outlines some important topics and tips:

  • Get the Information: Make sure you have all of the information about your child's trip, ncluding flight information, hotel accommodations, any planned side-trips, and the names of all ravel companions. Have your child makes copies of all necessary travel and identification ocuments (passports, tickets, credit cards, etc) and leave a copy of them with you. Your child hould also bring extra copies of any travel documents in case something is lost.

  • Help Your Child Get Informed: Work with your child to research the destination country. Has the Department of State recently issued any travel alerts? It will be helpful for your child to learn at least a couple of key phrases in the destination country's language including: "Help!" "I need a hospital" and "Please call the American Embassy."

  • Talk About Safety: Without being overly alarmist, have an open and frank discussion with your child about the dangers of traveling abroad. Be sure to mention the old adage "there is safety in numbers" and outline the dangers of alcohol and other intoxicants. Some countries may have relaxed laws on alcohol and drugs as compared to the United States; others have much harsher laws. Even if your child is unlikely to engage in such activities, you should still consider having an honest discussion about the dangers.

In the end, remember, this is a once in a life time experience for your child: let him or her go and experience the world and have faith that you have prepared your child as well as you can.

(Summer 2008)

"Preparing for Deployment"

アメリカ 弁護士 法律事務所 法律 派兵の準備If you have a loved one in the armed services, you probably know the worries associated with military life. It is a life with many uncertainties: where is the next duty station; when is the next deployment; when is the next phone call home? However, you can help with the preparation for an upcoming deployment by taking on some legal and financial responsibilities. This can alleviate some of your loved one’s worries and provide for a level of certainty that some matters back home are under control.

Without careful planning, a family member, other than a spouse, has little authority to act on behalf of a deployed loved one. In some cases, family members may not even be aware of the need to act. Before deployment, military personnel and their families should talk about important issues that will need to be addressed during deployment. These include taxes, real estate or rental properties (including investment and vacation properties), automobile payments and insurance, life and property insurance, credit cards, and any recent installment purchases (common for large purchases such as televisions and washers). Additionally, it is essential to talk about any upcoming or current litigation, including both civil and criminal proceedings. A simple traffic ticket can become a big headache if left unattended. By simply talking about these issues, you can ensure that everyone is on the same page.

Power of Attorney

A power of attorney is one of the best ways to make sure that you can take care of these and other law-related issues for a deployed loved one. A power of attorney is a written document in which servicemembers (the principal) grant certain authority to someone they trust (the agent or “attorney in fact”) to act on their behalf. A power of attorney may be very specific, authorizing a person to sell a car, for example. Or it can be very broad, allowing the agent to do almost anything on the principal’s behalf. Military personnel can use a power of attorney to give a family member or friend the ability to access bank accounts, make rent or mortgage payments, make car payments, and pay utilities and other bills.

It is important to note that a power of attorney isn’t a guaranteed solution for every situation. Some agencies may require additional documentation. For example, the Social Security Administration often requires you to fill out their specialized paperwork in order to be able to receive payments on behalf of another person. Many states will require you to use their specific forms if you wish to file someone else’s taxes. Regardless, a power of attorney is a good starting point and, at the very least, will document your deployed loved one’s intentions. Armed services support organizations can help you identify your options and assist you in the drafting of a power of attorney agreement.

Most powers of attorney are effective only as long as the principal (your loved one) has what the law calls “capacity.” The idea is that agents cannot do something that principals would not be able to do for themselves. So, if your loved one becomes incapacitated, your authority under a regular power of attorney is nullified. You can, however, draft a special power of attorney so that the agent’s power and authority extends through any incapacitation. Usually called a durable power of attorney, a document such as this clearly states the agent’s intent that the power continue after disability or incapacity. If such a situation is a realistic possibility, it is important to work with an attorney to draft any documents correctly and unambiguously.

The SCRA

The Servicemembers Civil Relief Act (SCRA) provides important protections for active duty servicemembers and is a key aspect to any military family’s deployment preparations. Under the SCRA, certain civilian obligations can be postponed or suspended during deployment. These include some credit card debt, mortgage payments, pending trials, some taxes, and residential leases. The SCRA protections apply to all servicemembers, Reservists, and members of the National Guard only while they are on active duty. Be aware that the SCRA is not a fail-safe and doesn’t eliminate all obligations, but it can help alleviate some worry.

Regardless of the plan you and your loved one decide on, it is important to talk through all of the obligations and responsibilities that will need attending to during deployment. Additionally, military members and their families should take full advantage of the services and support offered by the appropriate branch of the armed services. These legal, financial, and social services can provide invaluable help and support, both in preparing for deployment and during deployment.

Prior to any deployment, military personnel and their loved ones should make sure they have a plan for

  • Making necessary payments, including
  • Rent
  • Mortgage payments
  • Insurance, including automobile, life, and property
  • Car payments
  • Utility bills
  • Filing federal and state income taxes.
  • Receiving any government benefits, such as Social Security.
  • Handling any credit card debt and payments.
  • Overseeing any legal proceedings.
  • Drafting a power of attorney or, if needed, a durable power of attorney.

(Spring 2008)

Photo:C-17 Globemaster © Igmarx | Dreamstime.com

“Your Kids and Online Social Networks”

アメリカ 弁護士 法律事務所 法律 子供とオンライン・ソーシャル・ネットワークIf you are the parent of a tween or teen, chances are you are familiar with some type of online social network, whether it be Myspace, Facebook, or Friendster. These networks give kids an opportunity to express themselves creatively, to contact friends old and new, and to learn about new music and art. However, they also create security and safety concerns for parents and kids alike. These sites can make very personal information about your child available to virtually anyone with a computer, and in some situations, can even introduce your children to individuals of questionable motives, or worse.

As a parent, you have the legal right to restrict your child’s access to the Internet. This means that in the most serious case, you have the ability to completely eliminate your child’s ability to go online. Although Congress can’t do as much as parents, it has tried to help. It has successfully made it a federal crime to send obscene, indecent, or offensive messages or images to anyone under 18. Additionally, Congress has denied federal funding to libraries and schools that fail to install blocking software that prevents kids from accessing certain websites. There is currently a bill making its way through the federal government that would require libraries and schools to also block social networking sites. However, the government must walk a fine line in order to ensure that it doesn’t violate the First Amendment guarantee of free speech. The Supreme Court has said that cyberspace is different than other media, and therefore can’t be regulated or policed to the same degree as television or radio.

Therefore, as a parent, much of the policing and safety responsibilities fall directly on you. Don’t panic. Although you may feel like your child knows more about computers than you do, developing a safety plan may be easier than you think. The first step is to talk to your children about your concerns and about what kids can do to protect themselves. This includes thinking about how accessible they want to make information (many sites allow users to restrict who can see their information) and to never post their full names, contact information, or any other identifying information. Remind your child that once information is online, they can’t get it back, even if they delete it. Old versions of profiles can be saved by other people and cannot be retrieved.

Once your child has established a profile, you may want to ask him or her to let you see it. It’s a good idea to give children a day’s notice so that they can remove any information they would prefer to keep private from you and to eliminate the “gotcha” factor. Then, spend some time with your child having him or her explain the profile to you, showing you his or her “online friends” and any photos or other information posted. You may end up learning a great deal about your child that you didn’t previously know.

Going forward, you should monitor your child’s internet use, and of course, keep the computer in a public space in your home where you can look in. However, realize that your child doesn’t have to use the computer at home in order to access the internet. Libraries, internet cafes, and friends’ houses all offer opportunities for your child to access the internet without your nowledge. Thus, it is important to talk to your child frequently about internet safety. Both the Federal Trade Commission (www.ftc.gov) and WiredSafety (www.wiredsaftey.org) provide helpful tips for parents when talking to kids about social networks and internet safety.

If you think your child’s safety is being threatened through an online social network, don’t wait for the problem to get worse, be proactive. Be on the lookout for signs that may indicate something is wrong. This includes: your child spending a lot of time online, especially at night; your finding any pornographic or questionable photos on your computer; or if your child starts turning off the computer or quickly changing websites when you walk into the room. If you are concerned that something is going on, work with your Internet Service Provider to establish parental permissions that can give you access to your child’s profiles and emails. However, if you discover that your child has actually been targeted by an online predator, act immediately. First, shut off the computer in order to save any evidence. Next, contact your local police, the FBI, and the National Center for Missing and Exploited Children (www.missingkids.com). By talking to your child about online safety and being aware of what your child is doing online, you can minimize the risks associated with online social networks and maybe get to know your child a bit better.

(Winter 2007)

“Disaster Readiness - Be Prepared, Be Protected”

アメリカ 弁護士 法律事務所 法律 災害対策−準備と保護After the events of 9/11, Hurricane Katrina, and the Southern California wildfires of 2007, federal, state and local governments have spent a great deal of time and money on disaster preparation. However, in order to truly ensure that your family and loved ones are ready, you should take some steps yourself.

The first step to be disaster-ready is to simply talk with your family and develop a plan. This plan should include a meeting place for all family members to congregate in the event of an emergency or evacuation. You may want to consider selecting two places, one close to your home and another out-of-state should it be too dangerous to stay near home. You should also designate an out-of-state contact person who family members can check-in with. During an emergency, it may be easier to call someone long distance than to try to reach local numbers. You should make sure that each family member has a copy of the plan, as well as contact names and phone numbers.

You should also prepare emergency kits in order to ensure that if something were to happen, your family has essential necessities. When putting together your kit, focus first on the basics: fresh water, food, clean air, and warmth. The following checklist can help:

  • water - you should plan to have one gallon of water, per person, per day, for at least three days;
  • food - consider stocking three days worth of non-perishable food;
  • flashlights;
  • extra batteries;
  • first aid kit;
  • a whistle - to signal for help;
  • dust masks;
  • moist towelettes, garbage bags, and plastic ties - can be used for personal sanitation;
  • basic tools including a hammer, a wrench, and pliers;
  • a can opener; and
  • local maps.

You may also want to consider including:

  • prescription medication;
  • pet food and water for pet;
  • important documents;
  • money;
  • sleeping bags and blankets;
  • a change of clothes; and
  • books games, activities for children.

Remember - during an emergency, ATMs and computers may not work. You will want to makes sure you have copies of important family documents and extra money. When putting together an emergency kit, consider including copies of insurance policies, identification, and bank account statements. You should also pack some cash, travelers’ checks, and change. All paper should be kept in a waterproof, portable container.

If you are one of the millions of American pet owners, chances are you have worried about what would happen to your furry friend during an emergency. While planning for your family’s emergency care, take a minute to consider your pet. Remember, typically what is best for you is what is best for your pet. In other words, if you think you will need to evacuate, consider ahead of time how your pet will evacuate. You should maintain copies of all your pet’s identification
documents, recent vet records, and a recent photo of you and your pet together. When creating your emergency plan, remember that public shelters don’t always accept animals. You may want to consider developing a buddy system with a neighbor or friend. This would ensure that in case you are unable to return home, someone else would know to check in on your pet and make sure it is safe and attended to.

Once you have planned and prepared, make sure you stay informed and updated as to possible threats and dangers. This can be as simple as checking the local news and weather daily. The federal government has created resources to help you prepare and to stay informed, including www.ready.gov and 1-800-BE-READY. These resources also provide local information regarding both preparation and possible threats. By being aware and prepared, you can serve as the first, and most important, resource for your family during a disaster.

(Winter 2007)

"Holiday Travel - Know the Rules and Know Your Rights

アメリカ 弁護士 法律事務所 法律 休暇中の旅行−規則と権利With the holidays fast approaching, you likely have a lot on your mind - travel arrangements, work schedules, parties, and gifts. If you do plan on traveling, particularly on an airplane, you may want to take a moment to review the rules and regulations for air travel.

The first question many have when confronting airport security is “is this legal? Can they do that?” The basic answer is yes. Although the Fourth Amendment to the U.S. Constitution says that the government must have a warrant to search you, airport searches are considered special needs” exceptions to this rule. Courts across the country have ruled that airport searches are reasonable because they serve a purpose beyond simple law enforcement. Some courts have even gone so far as to hold that when you fly, you are implicitly consenting to being searched. In today’s post 9/11 world, you can assume that you are going to be searched in some manner and that you will have to follow restrictions on what you can bring on the plane.

Carry-On Restrictions
The limit on liquid carry-on items is the restriction that presently receives the most attention. A common complaint amongst travelers is that the limitations seem random and odd. However, according to the Transportation Security Administration (TSA), these restrictions are based on extensive explosives testing and ensure that no effective amount of a single explosive could make it onto a plane.

To help remember the amount of liquids you can carry on a plane, TSA urges passengers to focus on “3-1-1.” This means: no more than three ounces of any one liquid; all liquids placed in one quart-sized, clear, plastic, zip-top bag; and only one zip-bag per passenger. TSA requires this separate clear bag in order to reduce clutter and make the entire screening process more efficient. There are of course exceptions to this restriction, including: baby formula, juice for children, and any liquids required for a disability or medical condition. Remember, when in doubt, your best bet to avoid hassles and delays is to simply put liquids in your checked luggage.

Other rules have long been in place that prevent you from carrying potential weapons, such as knives, box cutters, and golf clubs. Nevertheless, TSA allows numerous surprising items in your carry-on, such as disposable razors, scissors (under four inches in length), cigar cutters, and corkscrews. Again, if you are unsure, your best choice is to just check your bags.

Complete Restrictions
TSA has totally banned some items even from your checked bags. These items generally pose a fire risk, and include gun powder, flares and fireworks.

If you have any questions or concerns regarding what you can and cannot carry on a plane or check in your bags, you should consult TSA’s website at www.tsa.gov. It is important to stay up to date as these restrictions can change quickly and can easily impact your holiday travel.

Other Security Procedures
If you have traveled on a plane recently, you know that restrictions on carry-on and checked luggage are not the only security procedures currently in place. As has been the case for decades, every passenger must present their carry-on bags for x-ray examination and must walk through a metal detector. Again, these procedures have been upheld by various courts as acceptable searches.

Additionally, many airports also conduct “random searches.” These searches are usually in addition to the metal detectors and often involve an extra “pat-down” of the passenger and a hand-search of the carry-on bags, meaning that a TSA officer actually looks inside the bag. This is an area ripe for claims of discrimination, but so long as the searches are actually random, usually computer assigned, there is no constitutional violation.

Other security procedures include canine patrols and stronger cargo security. Also, many airports now conduct random searches of cars as the approach they facility. These searches usually consist of a visual investigation of the trunk, the interior of the vehicle and its underside.

Different Abroad
It is important to note that TSA requirements are only applicable in the United States. If you are traveling abroad over the holidays, you will want to determine the restrictions and regulations in place where you are traveling. Most restrictions are similar; however there are sometimes important differences. For example, for a period of time in 2006, passengers traveling out of the United Kingdom were not allowed to have any carry-on bags. The European Commission (ec.europa.eu) provides information on passenger rights and restrictions when flying in the European Union, and your air carrier can provide you with the specific requirements for your flight.

What You Can Do
There are many things you as a traveler can do to ensure that your travel experience is relatively hassle free.

Arrive Early: Give yourself plenty of time at the airport before your flight is supposed to take off. Going through all the security steps is a lot less stressful if you aren’t in a hurry.

Don’t Wrap Presents: Wait until you get to your destination to wrap any gifts.
Wrapping paper may prevent security officials from being able to properly assess the contents of your bags and can increase delays.

Listen To Announcements: Airport and security officials will often make announcements about specific security requirements (such as removing your shoes).
Pay attention to any announcements and follow directions.

Plan Ahead: Before you travel, make sure you know the exact restrictions for the airports you will be using, for your airlines, and for the countries you will be in. Knowing exactly what will be required of you beforehand is the best way to ensure smooth travel.

Follow Up: If you feel your rights have been violated, if you have been discriminated against, or if the airlines failed to provide adequate customer service, make sure to follow up and voice your concerns. TSA and the Department of Homeland Security are very sensitive to charges of discrimination during the screening process. Both agencies have complaint-filing instructions on their websites. If you have a problem with a specific airline, a call or email to their customer service department never hurts – and may result in some extra frequent flyer points for you!

What To Do If Detained?
Usually airport security is merely a hassle and slight delay. However, occasionally it can quickly dissolve into a serious legal situation. During your travels, if you are delayed by airport or immigration officials, the first step is not to panic, but also to realize that this is not a time for jokes or belligerence.

If you have been detained by security officials, it may be easiest and quickest for you to simply follow their directions and requests. The reason for your detention could be as innocent as a random additional search following predetermined procedures. The news is filled with stories about situations that quickly escalate because a detained passenger becomes angry or abrasive. If you are polite and follow directions, there is a chance that you will quickly be on your way and may still make your flight.

If you truly are “detained,” meaning you don’t feel you have the right to leave freely, realize that you are considered “in custody” for constitutional purposes. This means you have the right to remain silent and to talk to a lawyer. Ask polite questions to determine why you are being detained and attempt to get the names and badge numbers of any officials questioning you. Immediately report the detention to the airline and attempt to continue with your travel plans if possible. If for any reasons you think your rights were violated, do not hesitate to contact TSA, the Department of Homeland Security, or your attorney.

(Winter 2007)

"Legal Update - Fourth Amendment"

アメリカ 弁護士 法律事務所 法律 最高裁最新判例:修正第4条As a passenger in a car stopped by police, you probably wouldn’t feel free to simply walk away. In June, the United States Supreme Court ruled that you aren’t expected to. Brendlin v. California asked the Court to decide whether a passenger in a car stopped by police should be considered “seized” within the meaning of the Fourth Amendment, which bans “unreasonable searches and seizures.” Under the Court’s prior decisions interpreting the Fourth Amendment, if you are seized illegally by government officials, any resulting evidence cannot be used against you at trial. Courts have long recognized that the driver of a stopped car has been “seized” and therefore can challenge the constitutionality of both the stop and the government’s use of any resulting evidence. Before Brendlin, courts disagreed about whether passengers had this same right.

The Supreme Court held that Brendlin, a passenger, could challenge the constitutionality of a traffic stop. In reaching this result, the Court applied its test for identifying Fourth Amendment seizures − would a reasonable person in the same position feel free to leave? In ruling that passengers in stopped cars are likely going to think that they can’t leave, the Court noted: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver.”

If you think your rights under the Fourth Amendment have been violated, or if you are interested in learning more about your rights as a passenger, talk to your lawyer about your options.

(Fall 2007)

"Neighborly Relations"

Neighborly RelationsWith the warm weather, many Americans enjoy outdoor activities, reacquainting themselves with backyards and patios. These activities sometimes result in disputes with neighbors. Now that you’re sitting on your deck again, you’ve noticed that your neighbor’s tree has a dead branch hanging precariously over your prized petunias. Or maybe the fifteen-year-old kid next door has taken up the drums this summer, and practices in the garage very loudly and very late. What can you do?

It is always best, if at all possible, to resolve disputes with your neighbors informally. Step one should be to discuss the problem with your neighbors. Maybe they don’t know about the dead branch threatening your garden, and perhaps the parents of the aspiring percussionist don’t realize how far the sound of his practicing carries. If things don’t change, you’ll want to know the applicable local ordinances and subdivision and municipal regulations. You can look in the municipal code (found online or at your local library or city hall or by contacting your local council representative).

You may be permitted to trim the tree branch threatening your petunias, with certain restrictions:

  • You may trim up to the boundary line only.
  • Unless the tree poses “imminent and grave harm” to you or your property, you need permission to enter the tree-owner’s property.
  • You may not cut down the whole tree.
  • You may not trim the tree in a way that will destroy it.

It is always best to notify the neighbor before pruning his or her tree. If the owner objects, offer reassurance that the job will be done professionally and responsibly. If the tree has already caused damage to your property, state law determines the scope of the owner’s liability. Liability generally depends on the extent of the damage.

The would-be drummer is likely addressed in your municipal code through limits to allowable decibel levels. Your local police may have a decibel machine that can measure the noise of the unnerving drum solos. Such measurement will be crucial should you need to proceed against your neighbor in court.

Be sure to check the details of any municipal noise ordinance. Many noise regulations are limited to certain “quiet times” when most people are asleep.
These quiet times generally start between 10:00 p.m. and midnight and last until 7:00 a.m. or 8:00 a.m. on weekdays, and sometimes later on weekends. Though the rules of politeness require the next-door musician to keep it down when asked, the laws may only require it between certain hours. If talking to your neighbor doesn’t resolve the problem, obtain a copy of the applicable ordinance and mail it, along with a letter of warning, alerting your neighbor that his or her actions are breaking the law. Be sure to keep a copy for yourself.

Wait a reasonable amount of time for your neighbor to comply with your request before advancing the dispute to the next level. If it is clear that the letter has not resolved the dispute, suggest mediation.

Mediators are trained to listen to both sides in a dispute, identify problems, and suggest compromises and equitable solutions. A mediator is an impartial third party who, unlike a judge in a courtroom setting, does not decide a winner and a loser, but rather strives to make both parties win. With a mediator, there can be no resolution until both parties agree, and the two sides are more likely to comply with the resolution, since both agree to it.

In the case of the would-be percussionist, your neighbor might be subject to prosecution as a nuisance. Nuisance is a legal term for a person’s unreasonable action that interferes with your enjoyment of your property. Your local ordinance may make nuisance a crime (usually a misdemeanor) or a civil violation. Whether criminal or civil, the city carries the burden of prosecuting a nuisance case.
Your role as the complaining neighbor is limited to testifying if the case goes to trial. Any money collected from the neighbor will be in the form of fines paid to the city, not damages to you.

Your lawyer can help you determine the best course of action in an extended dispute with your neighbor. If your lawyer is not a trained mediator, he or she will be able to help you find one. If mediation fails, or if your neighbor refuses to attend mediation with you, your lawyer can advise you on pursuing a civil lawsuit or filing a nuisance complaint with the city.

(Summer 2007)

"Moving Season"

Moving SeasonMore than 40 million Americans change residences each year, and a large number of those moves take place in the summer months. If you are preparing to move, it is important to know your rights and responsibilities when hiring a moving company.

Most moving companies are legitimate, reputable businesses, but there are a growing number of complaints against interstate movers who hold their clients’ possessions hostage on their truck, demanding far higher sums than their agreed- upon estimate. There are several key characteristics to look for that will help you avoid running into rogue movers:

  • The movers should offer or agree to an onsite inspection. Do not trust estimates done sight-unseen that seem too good to be true. They probably are.
  • The company’s Web site should feature a local address and information about their registration and insurance.
  • On moving day, you should see a company-owned or marked fleet truck, not a rental.

For interstate moves, the Federal Motor Carrier Safety Administration (FMCSA) requires the company to have a U.S. DOT number. You can double check this registration at www.protectyourmove.gov. For moves within a state, regulations vary. Check with your local consumer affairs agency for more information.

Once you have selected your mover and you feel confident that they are a reputable company, you should understand what their liability is with your belongings. All movers must provide basic liability of $0.60 per pound per article. This protection is provided at no extra cost to you. However, with it, the moving company is liable by weight rather than value. For instance, under this no-cost liability, if the mover loses or destroys a ten-pound object valued at $1,000, they are still only liable for $0.60 multiplied by ten pounds, or $6.00.

You also have the option of Full-Value Protection (FVP), a comprehensive protection plan. Under FVP, if any article is lost, damaged, or destroyed, the mover must repair it, replace it, or pay you the current market value of that item. You will automatically receive this level of protection if you do not waive it in writing. Be warned, your moving company will charge you for this protection, and the cost is a percentage of the total value you place on your shipment. The more value you assign to your property, the more it will cost to secure FVP.

As a third option, some movers may also offer separate liability insurance through a third-party insurance company. If you choose to purchase this extra liability insurance through your mover, the mover is required to issue a policy or other written record of it at the time of purchase. Without such documentation, the mover is liable for any loss or damage caused by its negligence.

There are some actions that will limit or reduce the mover’s normal liability. These actions include the inclusion of perishable, dangerous, or hazardous materials without your mover’s knowledge and the failure to notify the mover in writing of articles valued at more than $100 per pound (for instance, jewelry, silverware, china, furs, computer software, etc). Additionally, many movers will refuse to accept liability for damages caused to articles they did not pack. As a result, you may want to consider allowing the movers to pack your more valuable items to assure they will be covered.

Some homeowners’ and/or renters’ insurance policies cover damage or loss sustained during moves. Check the details of your policy before making a decision about liability insurance or FVP for your move. To protect yourself in an unforeseen dispute, be sure to receive a bill of lading from your mover. The bill of lading is the contract between you and the mover. Legally, the mover must prepare one for every shipment it transports. The moving company representatives who load your belongings onto the truck should give you a copy before or at the time of the loading. Read the bill of lading before you accept it. Do not sign it until you fully understand and accept what it says, and take care to have it available until your shipment is delivered, paid for, and any claims are settled.

When arriving at your new home, your mover will expect you to sign a receipt for your shipment. This receipt should indicate that you have received the materials. It may not contain any language releasing the company or its agents from liability. If any such language is present, strike it out before signing.

If your move results in loss or damage to any of your property, you have the right to file a claim to recover money. File the claim as soon as possible. If your claim is not settled to your satisfaction, you may use arbitration to settle it. Every mover must participate in an arbitration program, and movers are required to provide information about their arbitration program prior to moving day. If you cannot settle a claim, and arbitration fails, or you choose not to go to arbitration, you may file a civil action. Your lawyer can help you determine if this would be an appropriate course of action.

(Summer 2007)

"If You’re Stopped By the Police"

If You’re Stopped By the PoliceIt can happen at any time-a police car appears in your rearview mirror, red lights flashing. What now?

The first order of business is to pull over to the side of the road as soon as it is safe to do so. The police officer will pull in behind your vehicle and park.

Although there is no specific etiquette for police stops, generally you should remain in your car and wait for the officer to approach. You will be asked to show your driver’s license, and possibly your vehicle registration and proof of insurance, so while you’re waiting, you might take these items out of your wallet. Avoid making sudden movements and try to keep your hands in plain sight.

The officer may question you about your identity if the picture or physical description on your license doesn’t seem to match you.

If an officer starts to write a ticket, there is usually nothing you can do to stop it. Sometimes, however, you may be able to point out helpful circumstances beforehand: “But officer, that ‘No Left Turn’ sign is facing the wrong way.”

What if the officer wants to search your car?

If you don’t object to the intrusion and are certain you have absolutely nothing to hide, you can always give the officer permission to search. If you don’t want the search to proceed, however, you should state clearly and politely that you do not consent.

The law governing which area of your car the police may search in which circumstances is constantly changing. Moreover, state laws sometimes offer motorists greater protections against traffic stops and searches than federal laws do. If you have a question about a search the police have conducted of your vehicle, it is best to consult a lawyer in your state.

Generally, however, it is safe to say that if the officer has lawfully stopped your vehicle and has probable cause to arrest you, he or she has the right to search you, the passenger compartment and any containers in the passenger compartment. And if the officer has probable cause to believe that evidence of a crime like drugs is present in your vehicle, he or she can search anywhere that evidence might be located, including the trunk, without a search warrant.

And the officer may be allowed to “stop and frisk” you even if you are not under arrest if the officer has a reasonable suspicion that you are involved in an illegal activity or are carrying a concealed weapon.

What if you’ve had a few drinks?

Driving under the influence is a serious offense that under some circumstances can be charged as a felony with a possible prison sentence.

A police officer will stop you anytime he or she has reason to believe you are driving under the influence of drugs or alcohol. Among the driving behaviors that will cause an officer to become suspicious: driving erratically by repeatedly slowing down and then putting on a burst of speed; weaving from lane to lane; driving too slow; straddling the center lane; driving in the wrong lane.

If after approaching your car the officer smells an odor of alcohol, the officer will ask you to get out of your car and to stand beside it. After you obey the officer and get out of your car, you probably will be asked to perform a series of “field tests” or to take a “preliminary breath test.”

Different police departments employ different field tests. You may be asked to touch your index finger to your nose while closing your eyes and holding your head back, or to stand for 30 seconds on one foot, or to walk an imaginary straight line, or to allow the officer to shine a flashlight into your eyes to evaluate the reaction of your pupils.

Depending on the results of the field or preliminary breath tests, you may be asked to give a blood sample, give a urine sample, or take a Breathalyzer test. Can you refuse to perform the tests? Yes. But should you? There is no categorical answer to this question.

On the one hand, unless you are positive you’ve only had one or two alcoholic beverages, common wisdom holds that it may be harder to convict a driver if no tests were taken. On the other hand, if you refuse to take a test, your driving license will probably be suspended automatically for a long period of time. In some states, your refusal can be used against you in court.

Clearly you are in serious trouble either way-and in serious need of a lawyer.

(Spring 2007)

"Dog Law"

Dog Law Spring is puppy-shopping season for many dog lovers. But it pays to remember that although dogs may be a person’s best friend, they are potentially dangerous property in the eyes of the law.

Following widely publicized maulings by American Pit Bull Terriers, many communities and states that had not already done so began considering legislation that would make it easier to hold dog owners liable for their pets’ first unprovoked attack on humans. Dog bite laws vary greatly from state to state, but in many states landlords can also sometimes be held liable for injuries caused by their tenants’
dogs.

But isn’t “every dog entitled to one bite?” In a word, no. That saying is an imprecise paraphrase of old English laws under which dog owners generally would not be held accountable for their pet’s “first bite” unless the owner knew or should have known that the dog had a propensity to bite. After the first bite, the owner would be deemed to have been put on notice and could be held liable for any subsequent incidents.

Even under that rule, which may still be in effect in some states, a dog may not actually have to bite someone for the owner to be put on notice that it is likely to bite someone. A dog’s habit of snarling and lunging at passersby, for example, might be enough to alert the owner of the dog’s dangerous nature.

And although there is considerable debate over whether an entire breed can be viewed as “vicious,” some juries may view a pit bull owner’s explanations with the sort of skepticism auto insurers accord drivers of high-performance sport cars.

Well, if state laws are rendering owners liable for their dogs’ first bite, what good is a guard dog? The answer is that if you would be entitled to shoot an intruder because you reasonably believed you were in imminent danger of serious harm, your dog would also be entitled to attack. On the other hand, you would not be entitled to shoot a small child who wandered onto your property; nor would you be allowed to permit your dog to attack him or her.

For situations falling between those two extremes, some states permit dog owners to defend a lawsuit by showing that their pet was provoked, that the victim was a trespasser, or that the property was posted with warning signs.

Of course, owners who “sic” their dogs on someone run the risk of being charged with assault or even murder, just as if they had deliberately shot that person.
In sum, then, owners should be alert to their dogs’ temperament and take appropriate precautions to protect others from harm. In many states, simply saying “He never bit anyone before” may be akin to saying “I didn’t know the gun was loaded”--a less than perfect defense to a negligence suit.

(Spring 2007)

"Foiling ID Theft in the Military "

Foiling ID Theft in the Military Identity theft occurs when one person uses the personal information of another person to commit fraud or theft. In many cases, identity theft involves someone using your Social Security number to apply for credit cards in your name. The thief then runs up credit card bills, which go unpaid, damaging your credit record. As a result, you may be refused loans, cars, and even job opportunities.

Identity theft can pose particular problems for members of the military who are in active service. Amendments to the Fair Credit Reporting Act allow you to place a special alert called an active duty alert in your credit report. According to the Federal Trade Commission, the alert requires creditors to verify your identity before granting credit in your name. If you cannot be contacted, the law allows you to use a personal representative to place or remove an alert.

To place an active duty alert on your credit record, call the toll-free fraud number of one of the three nationwide consumer reporting companies: Equifax, Experian, or TransUnion. Active duty alerts on your report are effective for one year, unless you request that the alert be removed sooner. If your deployment lasts longer, you may place another alert on your report.

(Winter 2006)

"Storms Have a Price Tag"

Storms Have a Price TagAccording to the Insurance Information Institute, losses in winter storms cost more than $1 billion a year between 1986 and 2005. Water damage and freezing account for approximately 17 percent of all homeowners’ insurance claims, while wind and hail account for close to 50 percent. The average claim for water damage and freezing is $5,095.

(Winter 2006)

"Prepare for Fire and Ice"

Prepare for Fire and IceWinter can be a hazardous time of year in the home. Subfreezing temperatures may lead to burst pipes and related damage. Storms may fell trees and damage homes.
People may slip and fall on or around your property. And electrical fires are a special concern during the winter months when people spend more time indoors and increase their use of lighting, heating, and appliances. It is important to insure against these types of damage and to make your property as safe as possible for family and visitors alike.

Standard homeowners’ policies usually cover winter-related disasters such as burst pipes and wind damage caused by weight of ice or snow, as well as fire- related losses. Basic home insurance policies will only cover the actual cash value of your home and its contents; broad policies and comprehensive policies will provide the replacement value. Check your insurance policy to find out what kind of coverage you have. If you rent, then standard renters’ insurance should cover damage to your personal property caused by winter perils. And winter-related damage to cars is often covered under the comprehensive portion of an auto insurance policy.

Insurance can also protect you if someone is injured on your property as a result of your negligence. For example, home insurance should cover the costs (including medical bills and the cost of legal representation in a lawsuit) you could incur if someone were to slip on your broken steps and suffer an injury, or if someone were to trip over your living-room rug at a party. Of course, you should take steps to make sure your house does not pose such hazards. Try to place power cords in such a way as not to trip passers-by, repair stairs and handrails promptly, and warn visitors of any special hazards in your home. You do not have a legal duty to clear your property of snow and ice (although local ordinances may require you to clear the public sidewalk outside your home), but you may be negligent if you create a hazard, for example, if a leak from your gutter creates an ice slick.

There are several steps you should take to ensure that you get the most out of your insurance coverage if you ever suffer damage.
-Prepare an inventory of all the insured items in your household. The most effective way to do this is to photograph or videotape insured items.
-Keep copies of all your insurance documentation in a safe place inside your house, and in a safe place outside your home.

Of course, it’s even better to take steps to prevent and avoid damage. Installing gutter guards and cleaning out gutters can help ensure that rain and meltwater flow away from the house and into the ground, rather than into your walls and ceilings. Caulking cracks in walls and around windows can also help avoid water damage. You can minimize the risk of storm damage by trimming trees, getting weak branches removed, and chopping down dead trees before they fall. You can avoid burst pipes by keeping your house warm and insulating your basement and attic. Just in case, learn how to shut off your water in an emergency. Most important of all, protect yourself and your family by checking that smoke and fire alarms work properly. And if you have any questions about claims under your insurance, be sure to consult your lawyer.

(Winter 2006)

"Preappoved Credit Card Offers"

Preappoved Credit Card OffersIf you have a credit card and a decent credit record,
chances are that you receive dozens of “prescreened” or
“preapproved” offers for credit cards every month.

There’s nothing wrong with these offers. You get them because
companies that solicit new credit card accounts have asked a
consumer reporting company for a list of people in the
database who meet certain criteria or who have a certain
credit score. Receiving preapproved offers-or rejecting them-does not have any effect on your credit rating. In fact, prescreened offers can be useful if you are in the market for a credit card. They can help you learn about what’s available, compare costs, and find the best product for your needs. Because you are preselected to receive the offer, you can only be turned down under limited circumstances.

However, preapproved credit card offers do contain sensitive personal information.
If other people have access to your mail, or if you dispose of preapproved offers in the trash without shredding them, then they can put you at risk for identity theft. If you decide that you don’t want to receive prescreened offers of credit and insurance, you can opt out of receiving them by calling 1-888-5-OPTOUT or by visiting www.optoutprescreen.com. The telephone number and website are operated by the major consumer reporting companies.

(Fall 2006)

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