Law Review

Most people find themselves completely confused by the law and legal terms. If you even so much as glance at the fine print on your phone bill you are overwhelmed with a slew of legal terms like “Arbitration” and “Summary Judgment”. Well, look no further, because we will define some common legal terms right here.

Sometimes we hear people in the news or on television talk about burdens of proof and standards of evidence. The University of California, Santa Barbara A Standard of Evidence as the “measuring stick” by which an administrator or judicial body makes a decision. What this means that all evidence that is presented in a trial has to reach a certain level of proof. There are three general standards: proof beyond a reasonable doubt, clear and convincing evidence and preponderance of the evidence.

Proof Beyond a Reasonable Doubt: This is the highest standard of proof and it is only applicable in criminal cases. This is probably the standard you have heard repeated most frequently in the news, on TV and in movies. What this means is that the prosecution must prove that the person on trial is guilty of committing the crime beyond a reasonable doubt. In other words, proof that leaves you firmly convinced of the defendant’s guilt. Now, there are very few things in this life that you can be absolutely certain of, and the prosecution does not have to give proof that overcomes every possible doubt. Basically, if the evidence leaves the jury firmly convinced of the defendant’s guilt, then they must find them guilty. However, if the jury believes that there is a vey real possibility that the accused person is not guilty then the jury must find them not guilty.

Clear and Convincing Evidence: This is the second highest standard of proof. This standard does not require the evidence to be as convincing as proof beyond a reasonable doubt but it must be more convincing than preponderance of evidence, which is applied to most civil lawsuits. In this circumstance the party must prove that there is no serious or substantial doubt as to the truth of the facts that are being proven. This standard applies only in limited cases, such as in medical malpractice cases against emergency room doctors.

Preponderance of the evidence: This is the lowest standard of evidence. This is where the jury must decide a verdict based on the weight of the evidence. Essentially, the parties must prove whether their respective facts are more likely true than not true. Another way of saying this is proof by the greater weight of the evidence, however slight. This isn’t decided based off of how many exhibits there are, or how many witnesses testify; it is based on how strong the evidence is on either side.

So now you know a few more basic legal terms. Stay tuned in the future for more basic legal definitions...

SykesInjuryLaw.com

As Seen on TV

September is an exciting month for us at Robert B. Sykes and Associates, we’ve mentioned before that we LOVE TV and movies, especially those shows and movies that have to do with the law, and all of the best lawyer shows start up this month. One of the things we love to do is compare these shows to the actual practice of law. We like this so much, we’ve decided to make this a regular feature on our blog. Periodically, we are going to make a post focusing on one or two movies or TV shows having to do with the law and explain what is like a real law practice and what isn’t.

This week we are comparing CBS’s The Good Wife and ABC’s Boston Legal. These two shows are supposed to represent what people think of when they think of lawyers and law firms. Out of these two, The Good Wife is the most true-to-life. For those of you who do not know what the show is about, Alicia Florrick (Julianna Margulies) is a lawyer who quit working to take care of her children. Her husband, Peter (Chris Noth), is a state’s attorney who is jailed due to a scandal. After this, Alicia returns to work as a lawyer to support her children.

Most of the legal aspects seen in The Good Wife are pretty realistic. One of the things it shows is the long and laborious process of going through a lawsuit. Throughout the show you see the attorneys doing legal research and investigating the case by tracking down witnesses, deposing witnesses, and looking at the scene of an incident to see if a case has any merit. The lawyers in this show also take cases on that, if it were in a real life situation, the damages would be significant enough, and there would be good reason enough to take the case. The show is also realistic when it shows hearings and other minor Court proceedings, which generally happen without an audience present in the Courtroom.

In addition to all of the pre-trial work shown in the show, the courtroom scenes, although abridged so it can be shown in half an hour or less, are fairly accurate. They show the lawyers taking turns questioning, objecting, and giving reasons for objecting to certain questions and evidence.

Boston Legal, on the other hand, is entertaining, but absolutely ridiculous insofar as the law is concerned. This show is a comedy spin off of the drama The Practice where one of the attorneys, Alan Shore (James Spader), comes and works for Denny Crane (William Shatner) at the fictional law firm Crane, Poole & Schmidt, where all sorts of legal antics take place.

First off, the lawyers at Crane, Poole and Schmidt take absurd cases. For instance, one case is of a woman who wants to sue God for the death of her husband. Another case involves someone suing a casino for his massive gambling debts. In real life, no lawyer would take cases like most of the ones depicted in the show.

How trials are depicted in the show is unrealistic as well. The show starts with one of the lawyers getting a ridiculous case, figuring out a trial plan, and going to court in a very short amount of time. When the characters are in court, they act out in the most absurd way. For instance, one of the episodes deals with someone who is accused of murdering a judge. The defense lawyer then accuses not one, not two, but THREE witnesses as they are testifying on the stand of the murder. Or sometimes when the lawyers are in court, they will go off on a huge theatrical rant, which in real life would be objected to by the other attorney and the judge. Here, they are allowed to continue without distraction.

Even though legal shows can be very misleading, you can still pick up some interesting facts about the legal process. However, it’s a safe bet that you will not get shot by your attorney with a paintball gun if you get into a disagreement.

Sykesinjurylaw.com

Tamsen Reid

Recently there have been several news stories about our client, Tamsen Reid, who was illegally strip searched by former Box Elder County deputy Scott Womack. Last November, Tamsen, who was 17 at the time, was traveling in a car with some friends when the driver of the car she was in was pulled over by Womack for speeding. Womack then conducted a search of the car, and ordered the three female passengers to stand in the snow at the side of the road, lift up their shirts, and pull out their bras, allegedly to see if they were hiding anything.

Womack then collected the driver’s licenses of all 5 teens and took them to his police car, reportedly to check for wants or warrants. Womack claimed there was an outstanding warrant for possession of heroin in Arizona that matched the name and ID for Tamsen Reid. This was a lie. Womack threatened to take Tamsen to jail unless she proved she was not the person with the warrant, which she could do by submitting to a “brief” strip search in his car to show him she did not have the tattoos and piercings that identified the “wanted” person. Womack was a uniformed Sheriff’s Deputy in a marked police car. Tamsen did not want to get in trouble or go to jail, so she sat in the front seat of the Womack’s car and removed her clothes, showing him she did not have the tattoos and piercings described. Womack even tried to check for vaginal piercings. Tamsen did not realize this was a grossly illegal strip search by an officer who was egregiously abusing his authority. She just knew she didn’t want to be taken to jail. After Womack got his eyeful, he let Tamsen go and issued her friend a warning about speeding.

Shortly before her 18th birthday, Tamsen decided to check into the warrant that Womack said he found. She discovered that there was no such warrant. She realized she had been duped into removing her clothes for the sick enjoyment of a uniformed Sheriff’s Deputy. Fortunately, Tamsen was referred to our office, and after some investigation, we filed a lawsuit against Womack based on, among other things, his deplorable violation of Tamsen’s Fourth Amendment Rights.

Further investigation revealed that Tamsen was not the first woman that Deputy Womack used this ploy on. Other women had complained to the Box Elder Sheriff’s Office about similar conduct by Womack. In cases where the Sheriff or the County had knowledge of complaints, the law holds the Sheriff and the County responsible for failing to prevent Womack from acting illegally. After the previous complaints, Womack should have been suspended and/or terminated. Instead he was allowed to continue patrolling the streets, and to continue violating the rights of citizens he happened to stop, such as Tamsen.

We have since learned that Womack is no longer employed by the Box Elder Sheriffs. Of course, we are happy to hear this, but it was too late for Tamsen. We continue to pursue this lawsuit on Tamsen’s behalf.

SykesInjuryLaw.com

Update for the Medicaid Class

The Court has now signed the final order and judgment approving the class action settlement! A copy of the signed order can be viewed here or on the class website. We expect the State to send payments out on Wednesday, September 7th. However, the State has indicated that it may not be able to send out the payments until Wednesday, October 5th because the order was signed so late in the month (under the terms of the settlement agreement, payments have to go out on the first Wednesday of the month). Please remember to keep us informed of any address or name changes. Thanks, we appreciate your patience.

How do I Know if I Have a Medical Malpractice Case?

Medical procedures can be risky, and sometimes they go wrong and can cause severe injury. However, not every bad outcome is a result of medical malpractice. If you are injured by a doctor or other health care provider, you might wonder if you have a medical malpractice claim, and whether you need to contact an attorney. Here are a couple of things to keep in mind when you are considering a medical malpractice lawsuit:

1. Bad Treatment v. Malpractice: All health care providers do things differently. You might be surprised to know that your provider is not legally required to give you the best care and treatment. Even if you receive poor treatment and you are injured, there may not be malpractice. Malpractice occurs when a health care provider violates the standard of care. The standard of care means that your doctor has a duty to use the same level of care and skill that other professionals in the same type of practice would use. This is a nationwide guideline for medical professionals. When a doctor performs below this level AND causes an injury, you may want to consider a medical malpractice suit to compensate you for your injury.

If you have received poor treatment, even if you are injured, you will not have a case unless your doctor violated the standard of care for professionals in his field. How can you tell the difference? All medical procedures involve risks. In this circumstance, when an attorney is evaluating a case, he or she will often ask a medical expert to review your medical records and see if they can determine if the doctor made a mistake that caused your injury, and thus performed below the accepted standard of care.

2. Severity of Your Damages: If you were injured by a medical mistake, the damages you suffered need to be fairly significant before you can bring a case. Medical malpractice lawsuits are typically very hard-fought battles that may take hundreds of hours of attorney time. A case where the injury is not fairly significant can cost more to work on than what you would be compensated for in damages. In this situation, even if an attorney is able to get money for your injuries, you will have spent all of that money on the costs and in hiring an attorney. For this reason, it does not make sense for you to hire an attorney unless you have significant or permanent damages.

3. Statutes of Limitation: For every type of court case there is a deadline before which the case must be filed. Once this deadline has passed, you will be barred from filing a lawsuit, with few exceptions. The statutes of limitation are different in each state and may vary depending on who or what institution is being sued. In Utah you typically have two years from the date of injury to file a medical malpractice claim. However, if you are suing a government employee or facility, such as a University or County hospital or doctor, you have only one year to file your lawsuit.

Still not sure if you have a case? Give us a call and we can help you figure it out.

SykesInjuryLaw.com

Why We Need the Civil Justice System

We all know the story of David and Goliath. The Israelites were in a war with the Philistines who had a great Giant fighting for them who was undefeated. David, a young man, tells the King that he will go and fight for the Israelites. He only takes a sling and some stones, and because of his courage and strength of character, he knocks Goliath down with his sling and defeats the Philistines.

If you have been injured, had your civil rights violated, been the victim of a medical mistake, or have been wronged civilly in any other way, you might feel like you are going up against Goliath. You will have to sue the corporation or insurance company representing the other party for the damages you suffered. The civil justice system is a way for the common man to be equal to the large corporations they are suing, regardless of their wealth or social status.

Because of the civil justice system products are safer, the environment is cleaner, and medical care is safer. Because of our 7th Amendment rights to have a fair trial by jury when we are civilly wronged, we live much better lives.

In this day in age, we hear a lot of buzz words like tort reform, frivolous lawsuits, and jackpot justice. These terms were created by political action committees intent on limiting your access to the courts for the benefit of the large businesses. These businesses, so-called “concerned citizens” groups, and lawmakers who insist on reforming the civil justice system go to great lengths to deceive you into believing that the courts are overrun with absurd lawsuits, when in reality, they are not.

Many of us have heard of these so-called “frivolous lawsuits". They are lawsuits that appear to have a ridiculous premise, and somehow, the plaintiff gets an even more ridiculous multi-million dollar settlement. Most of the time, you only hear the information that makes the plaintiff look silly. You won’t hear, however, the facts that show there is a legitimate claim, and that the damage that the claimant suffered was very real.

The corporation or the insurance company that insures the defendant who is being sued must pay for the damages they are responsible for. To minimize such payments, the corporations have spent bundles on marketing schemes to make the general public – and juries- believe most lawsuits are brought in bad faith. Because of this, tort reform laws are passed that limit your access to the courts and limit the amount that a settlement or jury award can be.

Because of tort reform, corporations, or rather Goliath wins. The civil justice system needs to remain in place so that injured people have a chance to bring their case on a level playing field.

“Now, gentlemen, in this country, our courts are the great levelers. In our courts, all men are created equal. I'm no idealist to believe firmly in the integrity of our courts and of our jury system - that's no ideal to me. That is a working, living reality.” -Atticus Finch, To Kill a Mocking Bird by Harper Lee

SykesInjuryLaw.com

Good News for Medicaid Class Recipients

Taken directly from MedicaidClass.com:

On August 2nd, the Court granted final approval of the class action settlement, including the payments to all class members. It is anticipated that these payments will be sent out on Wednesday, September 7th.

Both our office and the State’s attorneys are doing everything they can to get the payments out on this date, although we cannot guarantee this.

We appreciate your patience.

There will be a new blog post soon.