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The Philadelphia, Pennsylvania Civil Litigation Attorneys of Brooks, Bradley & Kenney Frequently Asked QuestionsThe following information includes frequently asked questions concerning various areas of the law. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. By contacting the Philadelphia, Pennsylvania litigation lawyers of Brooks, Bradley & Kenney, you can receive a personal consultation regarding your specific legal claim. Personal Injury
In order to prevail in a negligence lawsuit, the plaintiff need only establish that it is more likely than not that the defendant's negligence caused the injuries, and the jury verdict does not have to be unanimous. In order prevail in a criminal case, however, the government must prove the defendant's guilt “beyond a reasonable doubt,” and the jury verdict must be unanimous. Moreover, the number of jurors is not necessarily the same for both types of cases. In Pennsylvania, for example, although 12 jurors are required for a criminal case, fewer jurors are required in civil cases. There may be as many as 12, or as few as six jurors in a civil cases. And as indicated above, the verdict in a civil case does not have to be unanimous. A 5 to 1 majority on the jury panel is sufficient to win a civil case in Pennsylvania. To win a personal injury lawsuit based on tort law, the plaintiff need only prove that a majority of the evidence shows that an injury was caused by the defendant's negligence. This standard of proof is called "the preponderance of the evidence." The different burdens of proof mean that a defendant might be acquitted of criminal charges and yet be found liable in a civil lawsuit stemming from the same facts. What should I do if I've been injured in a slip & fall accident? Most businesses and homeowners carry liability insurance to protect them in the event that someone is injured while on their property. The owner or possessor of a residence, land or place of business has the duty to exercise reasonable care for the protection of those individuals who are invited to come upon the premises; i.e., individuals visiting for business or pleasure. In such cases, the owner, company or person must inspect the premises to discover any dangerous conditions and warn the invitee of dangers upon said premises. Those injured by a negligent owner or possessor of a premise may recover damages for their injuries, including loss of income, medical expenses, pain and suffering, etc. If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue another person for negligence. Assume, for example, a situation in which if you went to a friend's house and were warned against using the back door because the deck was seriously damaged and would not support the weight of a person walking on it. If you decided to ignore the warning and use the back door, the doctrine of 'assumption of risk' would bar recovery for injuries sustained from a fall through the damaged deck. Under what circumstances can a wrongful death occur? Wrongful Death Law provides financial compensation to the family of a person whose death was caused by the negligent, willful or wrongful act of another. Wrongful death cases are filed as a result of a variety of situations, including:
Who can file a wrongful death lawsuit? A wrongful death case alleges that the decedent was killed as a result of the negligence of the defendant, and that the decedent's immediate family members (often called "distributees") are entitled to monetary damages as a result of the defendant's conduct. The most common distributees are surviving spouses and children, and sometimes parents. Pecuniary (financial) injury is the main way damages in wrongful death cases are computed. Courts interpret "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance and medical and funeral expenses. Punitive damages may also be awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, and/or deter others from behaving similarly. Does someone who is simply not satisfied with the results of surgery have a malpractice case? No. In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean that negligence occurred. To succeed in a medical malpractice case, a plaintiff has to prove that a medical injury or related damages resulted from the doctor's deviation from the standard of care pertaining to the procedure, not that the results from a standardized medical treatment were unsatisfactory. Does misdiagnosis fall under medical malpractice? Yes. Medical malpractice is the failure of a medical provider to properly perform their duties, including the diagnosis of your condition. Misdiagnosis may include the failure to run certain diagnostic tests or failure to diagnose a condition in a timely manner. Medical malpractice is essentially the failure of a medical provider (including doctors, pharmacists, radiologists, laboratory technicians and doctors) to use reasonable care in treating a patient. If you have been injured because of misdiagnosis, you may have a claim against the medical providers who treated you. However, Pennsylvania statutes of limitations bar the filing of claims after a certain period of time has passed following the negligent act. For more information, consult the Philadelphia medical malpractice attorneys of Brooks, Bradley & Kenney today. What is the Statute of Limitations? Every state has certain time limits, called "statutes of limitations," that govern the period during which you must file a personal injury lawsuit. In some states, for example, you may have as little as one year to file a lawsuit from an automobile accident. When the statute of limitations expires on your case, you simply don't have a case anymore. Statutes of limitations differ not only from state to state, but also in regard to the kinds of lawsuits involved. In some states the statute of limitations for medical malpractice, suits against governmental agencies, and wrongful death actions is shorter than that for other types of personal injury cases. In general, however, the statute of limitations for personal injury cases is from one to three years, and the time begins from the time of the accident. For more information regarding the limitations for your specific case, please contact Brooks, Bradley & Kenney today. A tort is a civil wrong recognized by law as grounds for a lawsuit. Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person), negligent torts (e.g., causing an accident by failing to obey traffic rules) and strict liability torts (e.g., liability for making and selling defective products). These wrongs result in an injury or harm constituting the basis for a claim by the injured party (tort litigation). Toxic torts are caused by exposure to toxic or dangerous substances, chemicals, dangerous forms of energy and medical products or devices. Toxic tort cases are usually brought as class action lawsuits because usually the same toxin affects large numbers of people. Plaintiffs who win toxic tort lawsuits can recover monetary damages for past and future medical expenses, past and future pain and suffering, lost wages, loss of future earning capacity, loss of enjoyment of life, emotional distress and sometimes punitive damages. Because the effects of toxic substance exposure may take years to manifest, it may be months or years before the toxic tort case is actually litigated. Examples of toxic tort cases include, but are not limited to:
There are many different ways to establish liability in a toxic tort case including negligence, premises liability, breach of warranty, misrepresentation and products liability. In litigating a toxic tort case, the plaintiff must prove that:
Business Litigation
Should I hire a civil law attorney? Are you party to a lawsuit? If so, then you definitely need a civil law attorney to represent you in your case. Even if you are not party to any civil lawsuits, you may find that retaining an attorney can be quite beneficial. For example, if you are creating or party to a trust, contract, mortgage, title or lease, a civil law attorney can advise you of your legal rights and obligations to save you a lot of money and legal hassles down the road. A qualified civil law attorney can also help you if you are running a business, as businesses end up in civil lawsuits all the time. A civil law attorney can give you timely advice that can save you from costly civil law litigation. For more information, contact the Philadelphia civil litigation attorneys of Brooks, Bradley & Kenney today. Business litigation involves business people representing a variety of industries on local, state and federal levels in matters pertaining to such diverse areas as:
What do Business Law Attorneys do? Business law encompasses rules, statutes, codes and regulations that are established which govern commercial relationships and provide a legal framework within which business law attorneys may help you conduct and manage your business. Business law attorneys help you with every aspect of highly diverse business law including areas such as banking and finance law, business formation and organization, business negotiations, business planning, transactional business law, acquisition, merger, divestiture and sale of businesses, and business litigation, as well as environmental, intellectual property, labor and civil law areas. What are some of the most common types of business organizations? The most common types of business organizations include:
What is a nonprofit corporation? A nonprofit corporation (whether incorporated or as an unincorporated association) is an organization in which no part of the income is distributable to its members, directors, or officers. The corporation is not prohibited from making a profit; the prohibition is the distribution of any profits to members, officers or directors of the organization. Nonprofit corporations are formed pursuant to state law. Nonprofit corporations must apply for exempt status, both at the federal and state level. Real Estate
A title is the foundation of property ownership. It is evidence of the owner's right to possess and use the property. Why is transferring the title to real estate different from transferring the title to other items, The reason for the difference is that land itself is different from the other items. Land is permanent and can have many owners over the years. Various rights in land (such as mineral, air or utility rights) may have been acquired by others by the time you come into possession of it, even if the land has never before been built upon. In order to transfer a clear title to a piece of land, it is first necessary to determine whether any rights are outstanding. A title search is a detailed examination of the historical records concerning a property. These records include deeds, court records, property and name indexes and many other documents. The purpose of the search is to verify the seller's right to transfer ownership, and to discover any claims, defects and other rights or burdens on the property. What kinds of problems can a title search reveal? A title search can show a number of title defects and liens, as well as other encumbrances and restrictions. Among these are unpaid taxes, unsatisfied mortgages, judgments against the seller and restrictions limiting the use of the land. A lien is any legal claim on real property that acts as a security for the payment of a debt or other obligation. If the debt is not repaid as promised, the lender or the lien holder can foreclose its claim on the property and force a public sale to pay the debt. There are many types of liens, but the most common lien by far is a mortgage. Other types of liens are commonly encountered and part of the work of the real estate attorney is to check for outstanding liens at the time a real estate transaction closes. These include such things as judgment liens resulting from a court judgment against the owners, mechanic's liens resulting from recent improvements to the property, liens for unpaid taxes and liens for unpaid municipal utilities such as water and sewer. Often, if a seller is divorced, the divorce decree will provide the ex-spouse with a lien on the couple's property to be paid at the time of sale. Title insurance is your policy of protection against loss if any of these problems - even a "hidden hazard" - results in a claim against your ownership. How much could I lose if a claim is filed against my property? That depends on the claim. In an extreme case, you could lose your entire home and property - and still be liable to pay off the balance of your mortgage. Most claims aren't that dramatic, but even the smallest claim can cost you time, money and aggravation, and you may have to pay costs for a legal defense. Eminent Domain is a legal proceeding under which the government can seize a piece of privately owned real estate, even if the owner objects to the seizure, so that the land can be used for some public purpose. Traditionally, eminent domain has been invoked when the government needs the land in order to complete some public project such as a road or a bridge. A recent decision by the United States Supreme Court held that eminent domain proceedings were appropriate even in a case where the government's intention in seizing the land is to sell it to some third party in order to complete a private development project seen as beneficial to the public interest. In exercising its authority under eminent domain, the government is required to pay the owner the fair market value of the property. The land seizure itself is rarely the subject of eminent domain litigation. Most eminent domain lawsuits involve a dispute over the price the government wants to pay for the land. Inverse condemnation in similar in some ways to eminent domain. The difference is that in eminent domain proceedings the government wants to force the landowner to sell his property, while in inverse condemnation proceedings the land owner wants to force the government to buy it. The theory of inverse condemnation is that government action has destroyed or substantially reduced the value of the property. Typically, inverse condemnation will involve, for example, situations in which the government passes zoning or other regulations which make it difficult if not impossible for the land owner to continue using the land for its then existing use. In essence, inverse condemnation urges the court that since the government action has destroyed the value of the property to the owner, the government should have to buy it for fair market value. Wills and Probate
Probate is a process whereby the Court supervises the transfer of assets from the deceased person to his or her heirs and requires the filing of particularized and complicated legal forms. The Philadelphia, Pennsylvania probate attorneys of Brooks, Bradley & Kenney have particular expertise and experience in the area of probate and estate administration. They can promptly respond to your questions and inquiries and assist you with the probate and estate administration process in a professional, courteous and timely manner. If an Estate Tax Return is required, these exemplary attorneys have the expertise and ability to promptly take care of this important tax requirement and can also assist with the following types of probate matters:
The following is a simplified outline of the general probate process:
The probate process can sometimes be completed in approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, claimants not being notified in the original four-month claim period, etc. Are there different types of Wills? There are many types of Wills:
The Philadelphia, Pennsylvania estate planning lawyers of Brooks, Bradley & Kenney can help you or a loved one decide which type of Will is most suitable. Every adult person should consider making a Will. Each year a large number of people die without Wills, leaving major decisions in the hands of the Commonwealth of Pennsylvania. Wills are especially important for parents of children who are under eighteen, as arrangements for the children's financial support and/or appointed guardian can be determined. Without a Will, any property distributed to minor children could be subject to an expensive court-appointed guardianship, which could greatly affect inheritance. And in some states, if you were married and childless, your parents could split your property with your spouse if not alternatively predetermined in a Will. Trusts are the process by which the grantor transfers legal ownership to a person or institution (called the trustee) to manage the property for the benefit of another person (called the beneficiary). Trusts create a fiduciary relationship between the trustee and the beneficiary. The trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property. A grantor may also name themselves as one of the beneficiaries of the trust. What are Estate (Death) Taxes? Estate tax may apply to your taxable estate at your death. Your taxable estate is your gross estate less allowable deductions. Your gross estate includes the value of all property in which you had an interest at the time of death. Your gross estate also will include the following.
The allowable deductions used in determining your taxable estate include:
If you or a loved one has suffered a personal injury due to the negligence of another, need business or real estate litigation advice, require the services of an experienced estate planning attorney, or have questions and want legal counsel on any of the information provided within, please contact the Philadelphia, Pennsylvania litigation attorneys of Brooks, Bradley & Kenney today, at (610) 565-4800, or use the contact form provided on this site to schedule your free consultation with an experienced and trusted Philadelphia civil litigation lawyer. |
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