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Marc A Sherman

Marc Sherman’s Answers

20 total


  • Can I sue a negligent driver that hit my car in the rear on a highway ramp if my driver has an active Maryland drivers license?

    I own the vehicle. I was a passenger in my car and injured with whiplash, I went to the er. The cops at the accident scene told me that if I claimed injury that they would have to arrest the driver because of a previous NYS parking permit that she...

    Marc’s Answer

    As in most lawsuits, you are required to establish the defendant's liability for the accident and the damages caused. Here, liability is very much in your favor because, in New York, a driver who rear-ends another car is presumed negligent. However, as discussed above, you have to establish serious personal injury under New York's no fault law. That is, you would have to establish, generally, that you had to miss work/school for a certain period of time because of the accident, or that you were bedridden or homebound for a certain period of time, or that you suffered at least $50k in damages (such as medical bills). The information provided does not indicate that you were injured badly enough (hey - that's a good thing!). A visit to the ER for whiplash just wouldn't be enough to establish the "severe injury" threshold. Under these circumstances, your insurance company would simply compensate you and then go after the other driver's insurance company for reimbursement. This illustrates the purpose of the no fault laws, which is to keep minor accidents out of the courts (which are clogged enough) and to let the insurance companies fight their policy-holders' battles.

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  • Do I have any chance of charges being dropped in an appeal? If so, is it pointless due to the amount of time it would take?

    I was arrested September 27th, 2012 for Criminal Posession in the 7th with 2 others that received same charge. It was then lowered and I was then given a plea deal for 12 months probation. I took the plea deal, and then I ended up missing a stupid...

    Marc’s Answer

    Assuming you could make a timely appeal, which seems unlikely, you should be aware that reversal of a conviction is rare - exceedingly so when the conviction is based on a plea of guilty. As to your question whether an appeal could result in the charges being dropped - the best outcome would more likely be simply that the plea is vacated, in which case the DA could still have an opportunity to try your case. Again - such an outcome, based on the info you've provided, seems very unlikely.

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  • Deposition questions

    In the deposition does the defendants attorney have to be present if witnesses are being deposed

    Marc’s Answer

    Generally, a deposition should not commence until all parties are present. Even in cases where there are multiple defendants, third-party defendants, etc., each party should be represented unless, as stated above, there is an express waiver.

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  • What rules do judges have to follow when making a decision in the Court of Appeals for the Federal Circuit?

    What are they required to go over? What must be said, or how much needs to be explained?

    Marc’s Answer

    I join in the answers of the attorneys above, and add the following: An appellate court will only consider preserved arguments and the record on appeal. What does that mean? At the trial level, parties can parties can also raise all kinds of objections and arguments. For example, a party can object to the adversary's attempt to offer a certain document into evidence, or to certain testimony of a witness. Also, parties at the trial level can offer all kinds of evidence and arguments to prove their cases or disprove their adversaries' cases. At the appellate level, however, you cannot raise any arguments that were not raise (i.e., preserved) below. If, for instance, you did not object to your adversary's introducing a certain document into evidence at trial, you cannot raise the argument on appeal that the document was erroneously admitted at trial. In addition to considering only preserved issues, the appellate court will only consider evidence that was presented at trial. This typically includes trial transcripts, pleadings, motions, etc. that were part of the trial. So even if you discovered some very compelling "smoking gun" document that was not introduced at trial, you generally cannot refer to it on appeal.

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  • Can A nanny prove she was employed if she was paid in cash?

    Paid a nanny in cash for 3 years and just wanted to know.

    Marc’s Answer

    Your question requires elaboration in order to fully understand your needs. If, for example, your nanny is looking for another job and wants to show her employment history to prospective employers, you might consider simply writing a letter for her stating the dates of her employment with you, as well as her duties, compensation, etc.

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  • Is it difficult to write up an opening appeal. I have gathered information online. I need to know what I am facing.

    I am in the stage of writing an opening brief. I have all the rules and litterature I need to start writing. Please let me know if you have any good advise as to what I should know before starting.

    Marc’s Answer

    • Selected as best answer

    I join the answers of the other attorneys here, and add the following: outline your brief. Organization is key to clarity and persuasiveness. Organize your facts section logically - this may mean chronologically, but not necessarily. For example, you might organize your facts section according to witness testimony in the proceedings below. Another important thing about your facts section - resist the temptation to argue and avoid hyperbole. For example, don't state: "smith negligently slammed into the rear of my car." Instead, state: "smith struck the rear of my car." Later, in your argument section, you can state that smith was "negligent" and that, given the force of the impact, he "slammed" into your car. As for the argument section - outline each point in the following order: first, state the ISSUE (i.e., what legal issue did the court below get wrong); second, state the RULE (i.e., what laws - statutes and case law - govern the issue); third, state your ANALYSIS (i.e., apply the facts of your case to the rules); and fourth, state your CONCLUSION (i.e., the results of your analysis).

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  • ***READ ADDED DETAILS FIRST...and HR refuses to give to give this person past documents that show she was a very good worker.

    If a person worked in a healthcare setting for 5 years at the same desk job position and was recently terminated for alleged findings of a HIPAA violation, how can that person continue to use that institution as a reference on a resume (while appl...

    Marc’s Answer

    The employer is not obligated to provide you with any kind of endorsement or proof of what a good worker you were. However, that doesn't necessarily mean they'll bad-mouth you if a prospective employer calls for a reference. Many employers have a policy of only verifying the dates of employment and refuse to comment on the quality of a former employee's work - whether the former employee left on good or bad terms. Since you still have plenty of good contacts there, however, you might try indluding their names and direct contact info when asked for references.

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  • Could a letter and contract from a prospective employer keep me out of jail on informal probation violations?

    i was arrested last month on an unrelated charge, which has been dismissed. i had two warrants in orange county for failure to attend batterers treatment classes. i was released on my own recognizance with a promise to appear next week. i have alr...

    Marc’s Answer

    Not sure how things work in CA: But you seem to have very good grounds to have the judge modify whatever order you are subject to.

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  • I was adjudicated for a felony as a juvenile when I was 17. Now 10 years later can my employer terminate me because of that?

    I have had this job since I turned 18 and was under the impression that they did a background check on me before I was hired. Now I'm about to receive a promotion and am concerned that it might come up again because they will be doing another chec...

    Marc’s Answer

    Although I can appreciate your anxiety, I don't understand why you think your employer might terminate you now if they already knew of your adjudication from the first background check. I'm not sure how things work in AZ, but if you were adjudicated as a juvenile offender, that should mean that your record is not discoverable. In any case, the key question here is whether you are an "at will" employee (more common) or a contract employee (less common). If you are at will, like most of us, then the simple fact is this: your employer can terminate you at any time for any legal reason. Reasons that are not legal include, for example, race-based discrimination. But firing someone because of a criminal history is probably legal. Hopefully your employer either forgot about your history from the previous check (if they did one). Alternatively, if your employer discovers your history for the first time before your promotion, hopefully they'll understand that it was a youthful indiscretion committed a long time ago and that you have already proven your value to them.

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