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Monthly Archives: February 2015

5 Things a Tax Lawyer Can Do (That You Probably Can’t)

What can a tax lawyer do for you, that you may not be able to do on your own? With so many online tax filing options, taxpayers may start thinking they're experts when it comes to filing properly and getting the biggest possible refund. What many of us fail to realize, however, is just how complex the tax code can be. In some cases, it may take an expert to make sure you get a big refund check in the mail and not an audit notice from the IRS. (Or to make sure it's just an audit notice and not a criminal summons.) So here are five things that a tax lawyer can potentially help you with: 1. Respond to IRS Audit and Collection Notices. If the federal government comes calling, you'll probably want some help, especially if you owe the IRS money. Dealing with notices, interviews, and the myriad tools the IRS has at its disposal to collect taxes can be a daunting task. While it is possible that the IRS made a mistake in determining how much you owe, it may take a trained professional to discover the error and advocate on your behalf. 2. Try to Keep You Out of Jail. There can be serious penalities for not filing a tax return or paying in an accurate and timely manner. While you can't go to jail for not paying your taxes, you can be imprisoned for trying to cheat on your taxes. If you're being accused of tax fraud or some other tax-related crime, a tax lawyer can work to keep you on the right side of the line or help differentiate between an honest mistake and a dishonest filing. 3. Navigate Confusing IRS Documents. There are nearly 2,000 IRS forms and publications, many of which can be incomprehensible to a layperson. From listing your rights as a taxpayer, to listing arcane deductions like dental expenses and weight loss programs, to listing the ways the IRS can collect on tax debts, it may take an expert tax attorney to understand it all and guide you through the IRS' complicated tax procedures. 4. Figure Out Your Business / Self-Employment Taxes. Corporations may be "people" in court, but businesses and individuals are taxed differently. Did you work a few days from home last year? Do you telecommute every day? How large is your home office? And did you do some side work? All of these professional situations can affect your income tax filing, and it may take a lawyer to sort out which. 5. Advise You on How to Lower Your Taxes in the Future. Figuring out this year's tax filing is all well and good. But what if you're already worried about your potential tax hit next year? There are several methods to lowering your future tax liability, and a tax lawyer can help you figure out which ones are best for you. Whether you've got the IRS knocking on your door or you want to knock a few dollars of your tax liability, these are just a few things that a qualified tax lawyer may be able to do for you. Related Resources: Browse Tax Lawyers by Location (FindLaw Directory) Hiring a Tax Attorney (FindLaw) 5 Questions to Ask a Tax Lawyer (FindLaw's Law and Daily Life) 5 Signs You Need a Tax Lawyer, Not a CPA (FindLaw's Free Enterprise)
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Amid Controversy, Same-Sex Marriage Is Legal in Ala.

Alabama was the source of a good bit of controversy surrounding same-sex marriage last week, after a federal judge declared the state's law prohibiting same-sex marriage unconstitutional. Right after that, however, the Alabama Supreme Court's Chief Justice Roy Moore issued his own order telling state judges and employees not to recognize same-sex marriages or issue licenses. Moore's conflicting order led to questions about who trumps whom when it comes to federal trial courts and state supreme courts, but the U.S. Supreme Court put the issue to rest by refusing to review the case. What's going on down in Alabama? Same-Sex Marriage Is Constitutional -- Maybe On January 23, a federal trial judge in Alabama struck down Alabama's same-sex marriage ban as unconstitutional. The state refused to allow one of the women in the case to adopt the other woman's son because it didn't recognize their marriage as valid. Citing to recent same-sex marriage decisions, including the U.S. Supreme Court's 2013 ruling in U.S. v. Windsor, Judge Callie V.S. Granade concluded that Alabama's law violated the Equal Protection Clause of the U.S. Constitution and ordered the state to no longer enforce the ban. Granade's order set the stage for Alabama to become the 37th state to permit same-sex marriage -- except that, on February 3, Alabama Supreme Court Chief Justice Roy Moore issued a memo to state probate court judges (who are in charge of marriages) indicating they weren't bound by the federal court decision, which Moore said was contrary to state law. On February 8, he ordered probate judges and state employees not to recognize same-sex marriages. Legal scholars tend to agree that Moore's opinion doesn't override a federal judge's opinion. Moore is no stranger to making controversial decisions. He was removed as chief justice in 2003 when he refused to obey a federal court order to remove a Ten Commandments monument from outside the courthouse, but Alabama voters returned him to office in 2012. The Supremes Decide Not to Weigh In The U.S. Supreme Court implicitly affirmed Granade's order on Monday, when it refused to grant an emergency petition by Alabama's attorney general to stay Granade's decision, which would have suspended the issuing of marriage licenses in the state. Justices Thomas and Scalia dissented, arguing that the state law should have been stayed to allow a federal appellate court to weigh in. The dissent also took time to criticize the Court's recent practice of not staying a federal appeals court's order when it finds a state law unconstitutional. With the U.S. Supreme Court out of the picture, Alabama counties began issuing marriage licenses -- well, most of them, anyway. According to The New York Times, some Alabama courts protested the decision by not conducting any marriages at all. Related Resources: Confusion in Alabama as Some Defy Court Order to Grant Gay Marriage Licenses (Los Angeles Times) Ark. and Miss. Gay Marriage Bans Struck Down (FindLaw's Law and Daily Life) Same-Sex Marriage Returns to Supreme Court: 3 Things You Should Know (FindLaw's Law and Daily Life) Gay Marriage Update: Kan., Mo., and 6th Circuit (FindLaw's Law and Daily Life)
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Robin Williams Estate Fight: How Do You Challenge a Trust?

Almost six months after the tragic death of Robin Williams, the predictable has happened: There's a squabble over his estate. The battle pits Williams' three children (from his two previous marriages) against his widow Susan, to whom he was married for three years. Williams left behind a comprehensive estate plan consisting of trusts for his real estate and for his children. Because trusts are a more bulletproof option than distribution through a will when it comes to estate planning, how can you challenge a trust? Here are a few possibilities: 1. Lack of Capacity. As with wills, one of the main ways to challenge a trust is to claim that the settlor (the person who created the trust) lacked the capacity to create the trust in the first place. This would require a person challenging the trust to show that the settlor: (1) didn't understand the nature of what he was doing, (2) didn't understand the nature of his property, and (3) didn't understand his relationship to people affected by the trust. 2. The Requirements of a Trust Are Not Met. A trust is created only when the settlor manifests an intent to create a trust, places property in the trust, and designates a beneficiary. Even these requirements, though, are malleable. For example, the settlor can instruct the trustee to select a beneficiary, or group of beneficiaries, based on some criteria the settlor provides. Also, a trust won't fail because it doesn't name a trustee; a court can always appoint one. In either situation mentioned above (lack of capacity or the requirements of a trust are not met), the trust would fail. The court would then create a resulting trust, which would treat the trust assets as though they were being gifted, as in a will. If the settlor had a will, the trust assets could fall into the "residue," which consists of unallocated testamentary gifts. If the settlor did not leave a will, then the court would distribute the trust's assets according to state rules of intestacy. 3. Ambiguity. Ambiguity doesn't invalidate a trust, but it could affect the distribution of the trust's assets. In the case of Robin Williams' trust, his widow Susan is arguing that the trust isn't specific enough as to the items of jewelry or personal belongings that Williams distributed to her and his children. As it can with a will containing an indefinite term, a probate court can interpret the language of the trust to determine what the settlor intended. Related Resources: Browse Trusts Lawyers by Location (FindLaw) Robin Williams' Estate Plan: Good, But Not Great (CNBC) 3 Things You Should Know About Robin Williams' Trusts (FindLaw's Celebrity Justice) Legal How-To: Deciding Which Estate Planning Tool(s) to Use (FindLaw's Law and Daily Life)
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What Counts as Criminal Mischief?

Although many criminal charges are very specific, others, such as criminal mischief, can encompass a wide variety of criminal behavior. Criminal mischief generally includes what is commonly known as vandalism, dealing mainly with crimes committed against property such as defacing someone's building with graffiti or breaking the windows of a business. Although vandalism may be included under state criminal statutes forbidding "criminal damage" or "malicious trespass," in many states, vandalism may be charged as criminal mischief. What typically counts as criminal mischief? Here are a few examples of criminal mischief laws in different states: Texas. Under the Texas Penal Code, criminal mischief includes knowingly damaging or destroying another person's property or tampering with the property of a person if that tampering causes loss or substantial inconvenience to the owner or another individual. Texas' criminal mischief statute also forbids intentionally or knowingly making markings "including inscriptions, slogans, drawings, or paintings" on another person's property. In Texas, criminal mischief is a felony if it causes a loss of more than $1,500 or involves fencing used for livestock or game animals. Alabama. Under Alabama law, criminal mischief is considered intentionally inflicting damage to property, when you have no right (or reasonable grounds to believe that you have a right) to do so. Criminal mischief is a felony in Alabama if the damages exceed $2,500 or are inflicted by means of an explosion. Otherwise, criminal mischief is either a Class A or Class B misdemeanor. New York. New York also charges criminal mischief as a felony when a person intentionally damages another person's property (without right or reasonable grounds to believe he has a right) in an amount exceeding $1,500 or by means of an explosion. Misdemeanor criminal mischief in New York includes a number of different acts such as breaking into a locked vehicle to steal property or intentionally participating in the destruction of an abandoned building. If you've been charged with criminal mischief or another crime, a criminal defense attorney can explain your legal options and represent you in court. You can learn more about criminal charges, criminal court procedure, and your constitutional rights at FindLaw's section on Criminal Law. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Man Bulldozes Home Without Telling Wife; Gets Arrested (FindLaw's Legally Weird) Doughnut Vandalism Leaves Ore. Town Glazed and Confused (FindLaw's Legal Grounds) Woman Arrested for Vandalizing Florida Satanic Display (FindLaw's Legally Weird)
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Do You Need a Lawyer for Your Car Accident Case?

If you're involved in a car accident, do you need the help of a car accident attorney? For very minor accidents, filing an insurance claim with your or the other drivers' insurance is often the easiest way to repair damage to your vehicle or to cover medical expenses related to minor injuries. Drivers also have the option of taking a claim for a relatively minor amount to small claims court. But there are other situations in which the assistance of an attorney may be necessary. When should you consider hiring an attorney to handle your car accident case? Here are a few common scenarios: There's a dispute about who's at fault. In a car accident, the party at fault for causing the accident is generally liable for the other person's damages or injuries. When fault in an accident is in dispute, a lawyer can help you prove that the other party was entirely or at least mostly at fault. There's a dispute over how much you have to pay or how much you'll receive. The majority of personal injury claims arising from car crashes are settled before ever reaching trial. But you may need a lawyer to successfully negotiate your settlement to ensure that you don't get stuck receiving less or paying more than you should. Serious injuries resulted, especially injuries that require ongoing medical care. When injuries arising from a car accident require long-term medical attention, calculating damages may be more difficult and the amount of damages involved may be dramatically increased. A lawyer will know how to properly prove or dispute these damages in court. You're being taken to court. If you are being sued as a result of your car accident, trying to defend yourself in court may be more difficult than it seems. An experienced lawyer will know the court system inside and out; he or she will be able to gather the evidence needed to defend you in court or negotiate a fair settlement with the other side. You just don't want to have to handle your own claim. Bringing or defending a car accident claim may take years to resolve and in any event may require a significant amount of time and effort. Having a lawyer handle your case can take the pressure off, preventing you from agreeing to an unfair settlement or missing an important deadline in your case. If you have more questions about your case, keep in mind that many car accident attorneys offer free consultations. You can also learn more about car accident lawsuits at FindLaw's section on Car Accident Liability. Related Resources: Injured in a car accident? Get your claim reviewed by an attorney for free. (Consumer Injury) 5 Things a Car Accident Lawyer Can Do (That You Probably Can't) (FindLaw's Injured) Can You Settle a Car Accident With No Insurance? (FindLaw's Injured) 5 Signs You May Need a Car Accident Lawyer (FindLaw's Injured)
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GM Recall Compensation Fund: 4K Claims, 93 Settlement Offers So Far

GM's ignition-switch recall compensation fund is no longer accepting claims, as the January 31 deadline has passed. But that doesn't mean consumers are without recourse if they (or their loved ones) were injured in a recalled vehicle. As you probably know, GM issued a series of recalls in 2014 after an ignition-switch defect in about 2.6 million vehicles was linked to dozens of injuries and deaths. As federal investigations began, GM set up a victim compensation fund to deal with death and injury claims. In a regulatory filing released Wednesday, GM disclosed details about the fate of many of those claims, The Detroit News reports. Here's what consumers need to know: GM Compensation Fund Claims: By the Numbers GM's victim compensation fund began accepting claims August 1, 2014. According to GM's regulatory filing, during the six-month claims period that ended January 31: A total of 4,180 claims were filed, including more than 1,100 in the final week alone; So far, 482 claims have been rejected, including one that sought compensation for a dog's death; and Reportedly, 455 claims involved a death. Officially, 51 deaths have now been linked to the GM ignition-switch defect. To date, GM has made 93 settlement offers, and none have yet been rejected, according to The Detroit News. It could take another six months to review all of the claims. Is It Too Late to File a Claim? Though GM is standing by its January 31 cutoff date for compensation fund claims, some politicians want the company to extend the deadline. Regardless, anyone injured in a recalled GM vehicle may still be able to pursue legal action; because each case is different, an experienced attorney can review your claim and advise you on the best way to proceed. As for GM car owners who believe they've suffered economic damages (i.e., loss of their vehicle's market value) because of the recalls, a potential legal roadblock related to GM's 2009 bankruptcy reorganization could stand in the way of compensation. (We previously blogged about the "old GM" v. "new GM" issue here.) Despite the potential bankruptcy reorganization issue, more than 100 class-action lawsuits have been filed against GM seeking economic damages. The bankruptcy issue is being heard in a New York courtroom this week, The Detroit News reports. Related Resources: Injured in a recalled GM vehicle? Have an attorney review your claim for free. (Consumer Injury) GM Recall: Do You Need a Lawyer? (FindLaw's Injured) Should You Hire an Injury Lawyer Even If You Plan to Settle? (FindLaw's Injured) GM Ignition Switch Lawsuit: Overview (FindLaw)
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Online Shopping: What’s Buried in the Fine Print?

When you're shopping online, do you actually read the fine print? If you don't, you're not alone, according to a new survey by FindLaw.com. A majority of online shoppers -- 54 percent -- say they either skim or ignore online user agreements, terms of service, or other legal fine print they encounter. On the other hand, 46 percent of shoppers say they read "most" or "every word" of such agreements. The survey results are nearly identical to a similar FindLaw survey in 2011 -- though since that time, the online shopping market has grown by 50 percent to $300 billion. This suggests many online shoppers may not really know what they're getting themselves into. What's In the Fine Print? So what's typically buried in the fine print that most online shoppers ignore? Here are a few common examples of what you might be missing: Arbitration clauses. If a dispute arises, online agreements often require users to pursue arbitration instead of a lawsuit. This may limit a consumer's ability to seek relief from the court system, as some arbitration rulings cannot be appealed. Refund and return policies. What happens if you're not satisfied with the purchase you made? The legal fine print may only offer store credit, or may impose a specific time frame for returns and refund requests. Ownership v. purchase of a license. E-book owners may be surprised to learn they're actually purchasing a license to read digital books; e-book licensees typically can't share or give away their e-books to relatives or friends. Are These Agreements Enforceable? Though many courts have upheld online agreements, regardless if the consumer has read them or not, one recent ruling suggests that not all types of online fine print will pass the test. A federal appeals court in August held that an online bookseller's customer agreement -- which was buried behind a link hidden on its website -- did not give consumers sufficient notice of the legal terms they were supposedly agreeing to. That made those terms unenforceable in the eyes of the court. To learn more about consumer rights, check out FindLaw's section on Consumer Protection. If you have questions about legal fine print, and especially if you're involved in an online shopping dispute, an experienced consumer protection lawyer can help you figure out your best course of action. Related Resources: Browse Consumer Protection Lawyers by Location (FindLaw) Rushing to Shop Online? Beware Legal Pitfalls (FindLaw's Law and Daily Life) 5 Tips to Protect Yourself When Using Craigslist (FindLaw's Law and Daily Life) Contracts and Electronic Signatures (FindLaw)
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When Can You Get a Change of Venue for a Criminal Trial?

The Boston Herald reported today that the 1st U.S. Circuit Court of Appeals has given the judge in charge of accused Boston Marathon bomber Dzhokhar Tsarnaev's case until 5 p.m. tomorrow to rule on a change of venue request. This is apparently the third change of venue request Tsarnaev's attorneys have filed with Judge George A. O'Toole. The defense wants the trial conducted in a different state, claiming that Tsarnaev wouldn't be able to get a fair trial in Massachusetts. So when can a defendant move for a change of venue? Fairness and Impartiality A "venue" is the geographic location where a court proceeding is held. In Tsarnaev's case, that venue is the District of Massachusetts, a federal judicial district that encompasses the whole state. (Some states are divided into more judicial districts, depending on how populous the state is.) The Constitution affords a criminal defendant the right to a fair and impartial trial, which includes jurors who haven't already made up their minds about the defendant's guilt or innocence before ever seeing any evidence in court. If no impartial jurors -- or not very many -- can be found in the venue where the crime occurred, then the trial can be moved to a place where impartial jurors can be found. Tsarnaev's lawyers claimed that there's no way he could receive a fair trial in the same district where such a notorious crime occurred. The most recent motion for a change of venue, filed January 22, supported that claim with questionnaires completed by over 1,300 prospective jurors, 68 percent of whom already believe Tsarnaev is guilty, and 65 percent of whom claim a "connection or expressed allegiance to the people, places, and/or events at issue in the case." What Are the Rules for a Venue Change? The Federal Rules of Criminal Procedure give two reasons for moving a criminal trial to another district, including a district in another state. These are: If the defendant can't obtain a "fair and impartial" trial in the district; or For the convenience of the parties, victims, witnesses, or "in the interest of justice." When a venue change is granted because of a perceived lack of fairness and impartiality, it's often because the crime alleged was incredibly newsworthy. For example, the 2009 criminal trial against Johannes Mehserle, the Bay Area Rapid Transit police officer later convicted of involuntary manslaughter for killing Oscar Grant, an unarmed train rider, was moved from Oakland, California, to Los Angeles after a judge determined Mehserle couldn't get a fair trial in Oakland. Of course, moving a trial to a different place can be controversial. The trial of the LAPD officers accused of beating Rodney King in 1991 was moved from Los Angeles County to nearby Ventura County after a judge determined the officers couldn't get a fair trial. Ventura County, however, was predominantly white, leading to speculation that the officers wouldn't have been acquitted in a more racially mixed county. Related Resources: Browse Criminal Defense Lawyers by Location (FindLaw) Making the Case for a Change of Venue in Tsarnaev Trial (The Boston Globe) Dzhokhar Tsarnaev Criminal Complaint Filed in Federal (Not Military) Court (FindLaw's Courtside) Boston Bombing Anniversary: A Legal Update (FindLaw's Blotter)
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Women Criminal Defense Attorneys: San Francisco Woman Defender Handcuffed Outside Court for Doing Her Job

There has been outrage in the defense community about a San Francisco public defender who was handcuffed and detained outside court for simply doing her job and representing her client. The video of the encounter is embedded below and I invite you to watch it if you haven’t seen it. The public defender is attorney Jami Tillotson. Her boss, Jeff Adachi, immediately blasted the police deputy for his actions in the media and was quoted in the San Francisco Examiner as saying “This not Guantanamo Bay.” He continued, “If this happens to a public defender in front of her client, I can only imagine what is happening on our streets.” When you watch the video is the clear that Tillotson is respectful and demonstrates professionalism while asserting her clients rights in reaction to what is obviously bullish police behavior. Tillotson demonstrates tremendous courage and defender spirit. Bravo to her and the San Francisco public defenders office for standing up against such blatant abuse.
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‘Suge’ Knight Case: When Can a Judge Revoke Bail?

Last week, we blogged about music producer Marion "Suge" Knight's arrest on suspicion of murder for allegedly running over two men with his car. One of the men died. Today, a Los Angeles judge revoked Knight's bail, which had been set at $2 million. The Los Angeles County Sheriff's Department claimed that Knight was a flight risk. Under what circumstances can a judge revoke bail? Flight Risk, Criminal History, Danger to Others Bail, of course, is security ensuring that a defendant will come back to court for his trial. Instead of remaining in jail pending, and during, trial, a defendant can pay 10 percent of the bail amount to a bail bondsman, who promises the court that the defendant will appear. Bail schedules are set by law and are roughly proportionate to the offense committed. Knight's bail of $2 million is on the highest end of the amount a judge can require in California. A judge can revoke bail or set a particular bail amount for a number of reasons, but bail is typically revoked when a defendant, who's out on bail already, commits another crime. That didn't happen in Knight's case, but the district attorney apparently thought Knight was enough of a risk that he asked for bail to be revoked during Knight's plea hearing. The California Penal Code allows a judge to consider such things as the defendant's criminal history, the maximum sentence he could face, the danger to others if the defendant is out on bail, and the way the crime was committed. There's one instance where a judge can't release a defendant on bail at all: When a defendant is charged with a capital crime and "the proof of his or her guilt is evident or the presumption thereof great." In order for that to be true, though, the defendant would basically have to be found at the crime scene with the bloody knife. In Knight's case, however, there's at least a dispute about what happened and whether Knight accidentally or intentionally ran over the victim. Check All the Boxes In Knight's case, the sheriff's department and prosecutors asked the judge to revoke bail not only because of the risk that Knight might flee the jurisdiction, but also that he might intimidate witnesses while he's out. The possibility of forfeiting $2 million might not be enough of an incentive to stay in Los Angeles, given that a guilty verdict could mean life in prison, thanks to Knight's criminal history. Knight served five years in prison for beating up a rival of Tupac Shakur on the same night that Shakur was killed while driving in Knight's car. Knight went to prison in 1997 for violating the terms of his probation, was released on parole, then went back to prison in 2003 for violating parole by hitting a parking lot attendant. Related Resources: Suge Knight Charged With Murder in Fatal Compton Hit-and-Run (Los Angeles' KABC-TV) Failure to Appear in Court: What Can Happen? (FindLaw's Blotter) After Arrest, How Long Until a Bond Hearing? (FindLaw's Blotter) Wiz Khalifa Skips Court Hearing on Pot Bust; Arrest Warrant Issued (FindLaw's Celebrity Justice)
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