IF YOU’RE GOING TO REPRESENT YOURSELF, AT LEAST DO A GOOD JOB

BY: Attorney Peter Decato.
Lebanon NH

    I continue to be intrigued by the statistics:  50%-75% of the cases on file in our local courts (New Hampshire and Vermont) have at least one contestant who appears on their own behalf (as in representing themselves).  While representing oneself is a person’s right, I offer one admonishment: if you are going to represent yourself, at least do a good job!

    To help you do a good job, you should seek advice from an attorney. We can give you advice whether you are the person who brought the action or whether you are on the defense. 

    I don’t know why so many people want to represent themselves.  I can’t quite figure it all out.  I’m sure, though, for many people, it has to do with costs.  If being frugal is leading you to represent yourself, then how much more frugal can you be than to buy just a few hours of a lawyer’s time?  Investing in a few hours of a lawyer’s time can often be the difference between a well prepared litigant and a poorly prepared one.

    For those of you who are considering suing someone without the help of an attorney, I have a quiz for you.  I will wait until you get a pad and paper.........Are you ready?  Please assume you’ve been involved in a “fender-bender.”  As a result, your clunker (a 2000 Ford pickup) has been totaled.  You’ve received some personal injuries, but you’re not certain of the full extent.  You’ve lost two weeks of work and you expect to lose some more work in the future as you attend doctor’s appointments, undergo an MRI, etc.  Please answer the following:

    1.    Where can you bring suit?  What are the jurisdictional limits of our courts?
    2.    Can you simply fill out a form when bringing suit or must you say something definite covering a variety of subjects (e.g., duty, breach, causation and damage)?
    3.    Do you have to say your opponent caused the accident?
    4.    Do you have to indicate what your damages are, when you really don’t know yourself?
    5.    After suit is brought, can you ask your opponent questions?  Can you obtain documents from them?  How do you get information from other people (like the investigating police officer)? 
    6.    You’ve received some questions from your opponent and some of the questions seem very personal and totally unnecessary (e.g., they want to know if you are having sexual relations).  Do you have to answer these questions?    How can you avoid answering questions in an appropriate situation?
    7.    Do you have to wait to go to trial or can you file a motion with the court asking for judgment “summarily.”  Are there shortcuts to getting to where you want to get?
    8.    Once the final hearing arrives, what do you do?  Who do you call as witnesses?  How do you ask them questions?  How do you question your opponent?  (By the way, your opponent has a “fancy lawyer” from the “big city”).
    9.    How do you prove what your clunker was worth?
    10.    What do you do with your medical bills?  How do you get them into evidence?
    11.    How do you get your doctor to testify?  He/she is telling you they are way too busy to come to court. 

    How do you think you did on this test?  I suspect you got some questions “right” and some questions “wrong.”  If you got any questions wrong, you could benefit from a consultation.  If you got them all wrong, you better get in here right now!

    The quiz I gave you dealt with a personal injury case, but I could have given you a quiz on a case involving a breach of contract, a divorce, or a defamation case or any other type of case.  Whatever the case, there are court rules and court procedures to know about.  It can get a bit complicated, but it isn’t so complicated that you can’t figure out what to do.

    Remember: if you’re going to represent yourself, at least do a good job.  As you know, when you’re not well prepared, a person who represents themselves has a fool for a client. 







               

Estate Planning. That’s exactly what we do.

 By: Renee A Harvey, Esquire
Decato Law Office  603-640-2020


Regardless of your net worth, it is important to have a basic estate plan in place.  Estate planning ensures that the important people in your life are taken care of and your financial goals are met after you die.  Now, it may be the subject matters involved – death, incapacity, probate, taxes – that causes many of us to avoid putting an estate plan in place; or it may be the uncertain economic times and the need to budget “nonessentials”.  However, by making the choice to forgo an estate plan and save money, in the long run you are not really saving at all.  Without a proper estate plan in place at your death, not only may your loved ones not necessarily inherit from your estate, your estate may have to pay the high costs of probate proceedings and attorney’s fees, not to mention a lengthy probate process.

How do you get started then? 

A good place to begin is to take inventory of your assets.  These include your real estate, insurance policies, investments and retirement savings.   Then you can ask yourself three important questions: (1) Whom do you want to make financial decisions for you if you cannot make them for yourself; (2) Whom do you want to make medical decisions for you if you cannot make them for yourself; and, (3) Whom do you want to inherit your assets?  By considering these in advance, your meeting with us will be more productive and expedite the planning process.

What documents are involved?

An estate plan has several components:

▸    Will.  A will provides instructions for distribution of your assets upon your death.  It recites family relationships, and it appoints executors, trustees and guardians to manage your assets.  Most importantly, it names the beneficiaries who are to receive your real estate, cash assets and personal property. 

▸    Durable Power of Attorney.  A power of attorney allows you to name and authorize another person to act for you in the event that you are not capable of acting on your own behalf.  This power terminates at your death, but provides you with someone who, in the event of your incapacity, has the power to step into your shoes and make financial decisions for you during your life.

▸    Health Care Power of Attorney.  A health care power of attorney also allows you to name and authorize another person to make medical decisions for you in the event that you are incapacitated.  This power also terminates at your death. 

▸    Living Will.  A living will speaks to your wishes regarding the use of life sustaining measures in the event of a terminal illness.  It does not authorize another person to make decisions for you, but it expresses your wishes regarding whether you do or do not want life support.  A living will, coupled with both powers of attorney documents can lessen family conflicts and avoid court intervention in the event that you are unable to make decisions on your own behalf.

▸    Revocable Trust.  A living trust makes sense for some people.  There are many different types of trusts that accomplish different goals.  A revocable living trust can manage your financial affairs during your lifetime, during incapacity, at your death, and after your death.  It is a vehicle that allows trust assets to avoid the probate process, therefore lessening the amount of time and money spent in the ultimate distribution of your assets.

    You cannot buy a sound estate plan off the shelf.  The quality is a direct result of your own interest, understanding and participation, along with the help of skilled advisors, because there is more to the estate planning process than just the documents.  Even if you already have an estate plan in place, it may not be optimal and it may be time to revisit it.  It will provide you with peace of mind to have a will in place and know that you have provided for those you care about.
   
   

Those frivolous claims and lawsuits!

 Written by Attorney Brad Wilder.

We all know the difference between right and wrong, and many times we know when another is not telling the truth.  In some cases, we can even produce evidence to prove it.  Equally important, however, is the expectation that none of us should be required to defend against frivolous arguments, claims or lawsuits brought by third parties.  The difficulties associated with being a lawyer are only compounded when a client seeks explanation why he/she should have to respond to frivolous allegations or claims.  I have never been able to justify nonsense.
    
    In most cases, our legal system runs effectively and efficiently, but then there are the exceptions.  What is particularly bothersome is that courts appear to do little to address frivolity and the expense associated with having to respond to it.
 
  From my perspective, judges are the gatekeepers that bear the responsibility of insuring that justice is carried out and the legal system is not abused.  This responsibility should include holding accountable those who elect not to tell the truth and those who bring arguments and claims that are unworthy of serious attention. 

The last thing I appreciate doing in my profession is trying to explain to my hardworking clients why they are having to defend against frivolity.  It seems I am having to address the question far too frequently.  Recently, I did not have a good answer for clients who asked  why a court is allowing someone to raise claims that were resolved years ago.  The only thing I could assure my clients is that a demand for sanctions would be made.  Whether the court would grant sanctions is a different issue than whether the court should.

News Item What Happens to Courts if the Federal Government Closes?

News Item What Happens to Courts if the Federal Government Closes?

Relevant and material evidence

Written by Attorney R. Peter Decato.

Trial attorneys often run into the phrase “relevant and material evidence.” Just like there is a
difference between “salt” and “pepper” and between “hot and cold”, there is also a difference
between relevant evidence and material evidence. The difference is subtle. Evidence is material if it is offered to prove or disprove a specific fact in issue. 

Thus, evidence is material if it relates to one of the particular elements in the case. For example, in a driving while under the influence case, if evidence is being offered to show impairment, it is material. If evidence is not material, the other party may object to the use of the evidence on grounds that it would mislead the trier of fact. The evidence might also get the trier of fact into collateral issues and thereby prove a distraction to the resolution of the real issues in the case. 

Immaterial evidence should be excluded. Some evidence may be admissible even if it does not bear directly on an issue of fact in the case. For this to happen, there has to be a relationship shown to the weight or credibility of the evidence. Thus, when a witness testifies their credibility, perception, memory and narration or communication are all material even though they are not directly related to an issue of fact.
 

Evidence is relevant as opposed to being material if it indicates a relationship between facts that increases the probability of the existence of the other. It must tend to prove or disporve a material fact in the case. Revelant evidence is viewed by its probative value. A trier of fact (judge or jury) determines the sufficiency or weight of the given evidence. In order for evidence to meet the relevance threshold, there must be merely some probative value. Relevant evidence used to prove or disprove an issue at trial is considered to be material evidence. Irrelevant evidence is inadmissible. Not all material evidence is relevant because although the evidence might deal with the particular subject matter, it lacks probative value because it is dealing with a collateral issue unrelated to the elements of proof in a given case.